IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPEAL NO. 1956 OF 2001 (OLD NO. 1504/1992) Parsadi ……… Appellant/accused Versus State of U.P. ……… Respondent August 20, 2009 Mr. C.K. Sharma, Amicus Curiae, Advocate for the appellant. Mr. M.A. Khan, Brief Holder for the State. HON’BLE DHARAM VEER, J. This appeal, preferred by the appellant under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), is directed against the judgment and order dated 16.7.1992 passed by the Sessions Judge, Haridwar in Special Sessions Trial No. 34 of 1991, State v. Parsadi, whereby the learned Sessions Judge has convicted the appellant/accused under Section 8 read with Section 15 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, ‘the Act’) and sentenced him to undergo rigorous imprisonment for a period of 10 years along with fine of Rs. 1,00,000/- and in case of default in the payment of fine, further two and half years’ rigorous imprisonment was awarded to the appellant/accused. 2. Heard learned Counsel for the parties and perused the entire material available on record. 3. In brief, the prosecution case is that on 25.4.1991 S.I. Rampal Singh along with Constable Bharat Singh and Constable Pramod Kumar was busy in checking in Laksar Station. When they had reached at Platform No. 1 then the informant had informed that a person was sitting under Amaltash tree having Doda Afeem (Poppy Straw). On this information the police party secured a public witness namely Som Pal (P.W.1). After briefing him about the purpose they searched each other. Thereafter they reached near the place where the appellant/accused was sitting. The informant after pointing out the appellant/accused had gone from the place of occurrence. When the police party reached near the appellant/accused, then he tried to flee from the spot but he was arrested after using the necessary force at 4:15 P.M. who had disclosed his name as Parsadi i.e. the appellant-accused. The plastic bag on which he was sitting was opened, inside which about 10 kgs. Doda afeem (Poppy Straw) was recovered. Rs.10/- from the right pocket of appellant-accused was also recovered. When enquired he told that he was going to Punjab along with this Doda Afeem (Poppy Straw) from his village. He had come there from a passenger train and scheduled to board a mail train from there. The recovered Doda Afeem (Poppy Straw) was taken into possession. About 70 gms. of recovered Doda Afeem (Poppy Straw) was taken separately for the purpose of ‘namoona i.e. the contraband sent to the laboratory for chemical examination’ and the same was sealed on the spot in a tin box inside a cloth. The plastic bag and the ‘tin box’ was sealed in separate boxes. Namoona mohar (specimen of seal) was also prepared. Fard Ex. Ka-1 was also prepared on the spot. When asked, the appellant-accused did not desire to go before a Gazetted Officer or a Magistrate for the purpose of search. Fard Ex. Ka-1 was prepared by S.I. Rampal Singh (P.W.2) and a copy thereof was also given to the appellant-accused. On the basis of the Fard, S.I. Rampal Singh lodged the report in G.R.P. Laksar Junction on 25.4.1991 at 5:10 P.M. on the basis of which Chick F.I.R. Ex.Ka-4 was prepared by Head Moharrir Sukhveer Singh P.W.5. Necessary entries were made in the G.D. Copy of G.D. is Ex. Ka-5. 4. Investigation of this case was entrusted to S.I. Mehkar Singh Chauhan (PW4), Station Officer who during the course of investigation prepared the site plan of the place of occurrence, that site plan is Ex. Ka-2. During the course of investigation ‘namoona i.e. the contraband sent to the laboratory for chemical examination’ of 70 gms. Doda Afeem (Poppy Straw) which was sealed in separate packet, was sent to the Forensic Laboratory, Agra through constable Moolchand (P.W.6) on 2.5.1991 and the necessary entry thereof was made in the G.D. the copy of the G.D. is Ex. Ka-6. The appellant- accused after the arrest was sent to the Court along with the recovered Doda Afeem (Poppy Straw) on 26.4.1991 and necessary entry was also made in the G.D. Copy of G.D. is Ex. Ka-7. The recovered Doda Afeem (Poppy Straw) which was sent along with the accused-appellant in the Court on 26.4.1991 was again deposited in the Malkhana on the same day and the entry was made in the G.D. Copy of the G.D. is Ex. Ka-8. The report of the Forensic Laboratory Agra is Ex. Ka-9. During the course of investigation, the I.O. recorded the statements of the witnesses and after completing the investigation, chargesheet Ex. Ka-3 was filed against the appellant/accused. In the Chargesheet the criminal history of appellant/accused was also mentioned in column no. 9 which is reproduced as under: - 1. Case Crime No.137/90 u/s 379/411 IPC, P.S. GRP BE 2. Case Crime No.167/90 u/s 379/411 IPC, P.S. GRP BE 3. Case Crime No.187/90 u/s 398/401 IPC, P.S. GRP BE 4. Case Crime No.188/90 u/s 25 Arms Act, P.S. GRP BE 5. Case u/s 25 Arms Act, P.S. Vishal Ganj. BE 5. Learned Sessions Judge, Haridwar has framed the charge for the offence punishable under Section 8/15 of the Act against the appellant/accused on 20.8.1991. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried. 6. To prove its case, the prosecution has examined PW1 Som Pal, the independent public witness of recovery; P.W.2 S.I. Rampal Singh, witness of recovery, P.W.3 Constable Pramod Kumar, also an eyewitness of recovery; P.W.4 Mehkar Singh Chauhan, the I.O. of the case; P.W.5 Head Constable Sukhveer Singh who prepared the chick F.I.R. and made necessary entries in the G.D., P.W. 6 Constable Moolchand who had taken the recovered contraband to Agra for chemical analysis; P.W.7 Constable Paras Ram who had brought the appellant/accused to the Court for judicial remand from the police station. 7. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him and stated that he has falsely been implicated in this case. In defence, he has examined D.W.1 Narender Kumar. However, the appellant/accused did not produce any documentary evidence. 8. After appreciating the evidence and after hearing learned Counsel for the parties, learned Sessions Judge, Haridwar vide his judgment and order dated 16.7.1992 convicted and sentenced the appellant/ accused as discussed above. Against the aforesaid judgment and order dated 16.7.1992, the appellant/ accused has preferred the present appeal. 9. To prove its case, the prosecution has examined PW2 S.I. Ram Pal Singh, who has stated that on 25.4.1991, he was posted in G.R.P. Police Station Laksar as Officiating Station Officer. From the police station he along with Constables Pramod Kumar and Bharat Singh Kaimdi started at 12:30 P.M. and reached on the platform no.1 at about 4:00 P.M. Then an informant informed him that a person who was sitting under the Amaltash tree was having one bag of Doda Afeem (Poppy Straw) and he was scheduled to go to Punjab. On this information, a public witness Som Pal was procured, who was told the purpose for taking him along with the police party. Thereafter they have searched each other. The informant pointed towards that person and after that he had gone from that place. On seeing the police party approaching him, the appellant/accused tried to flee from the spot but he was arrested by them at about 4:15 P.M. after using the necessary force. The said arrested person disclosed his name as Parsadi (appellant- accused). On search of his bag, 10 kgs. of Doda Afeem (Poppy Straw) was recovered and a note of Rs.10/- was also recovered from his pocket. That bag is Ex.1 and the Doda Powder is Ex.2. About 70 gms. of doda power was taken in a separate tin box and both the boxes were sealed in separate packets and the Fard of recovery Ex.Ka-1 was prepared by him. The other persons present on the spot also signed on that Fard. Copy of the fard was also given to the appellant/accused. He was also asked to be taken before a gazetted officer or a magistrate but he refused to go. The appellant-accused along with the recovered contraband and specimen of seal was brought to the police station. This witness was examined at length but he could not be shaken in his cross- examination. 10. Statement of PW2 S.I. Ram Pal Singh gets corroboration from the statements of P.W.1 Som Pal and P.W. 3 Constable Pramod Kumar. 11. PW4 is Station Officer, Mehkar Singh Chauhan who has stated that in April-May, 1991 he was posted at G.R.P. Laksar Junction. This case was registered in his presence on 25.4.1991. During the course of investigation, he recorded the statements of the witnesses and prepared the site plan of the place of occurrence i.e. Ex.Ka-2. The recovered contraband was sent for chemical examination to the Forensic Laboratory, Agra and after completing the investigation he has filed the chargesheet Ex. Ka-3. 12. P.W. 5 is Head Constable Sukhveer Singh who has stated that on 25.4.1991 he was posted at G.R.P. Laksar Junction as Head Moharrir. On that day on the basis of recovery memo Ex.Ka-1 he had prepared the chick F.I.R. Ex.Ka-4 and the recovered contraband was deposited in the Malkhana and the appellant/accused was put in the lock-up. The necessary entry was also made in the G.D. the copy of G.D. is Ex.Ka-5. Till the recovered contraband and specimen of seal (Namoona Mohar) was under his custody, nobody was allowed to tamper with it. 13. P.W.6 Constable Moolchand has stated that on 2.5.1991 he was posted in G.R.P. Laksar Junction. On that day he had taken the recovered contraband in a sealed box along with the specimen of seal from the Malkhana by the orders of the Court for chemical examination at Forensic Laboratory, Agra and submitted the same in the laboratory. Upto when the recovered contraband was in his possession, nobody was allowed to tamper with it. The entry in the G.D. in this regard was mentioned in G.D. No. 13 at 6:30 A.M. by constable/clerk Balram Singh, copy of that G.D. is Ex. Ka-6. 14. P.W. 7 is Constable Paras Ram who has stated that on 26.4.1991 he was posted at G.R.P. Laksar Junction. On that day he had produced the appellant- accused alongwith the recovered contraband in the sealed condition in the Court and thereafter deposited back the same in the Malkhana of the police station. Upto when the case property remained under his possession, nobody was allowed to tamper with it. Entry in this regard was made in the G.D. by Head Constable Sukhveer Singh (P.W.5). Copy of that G.D. is Ex. Ka-7. The entry of returning back to police station was also made in the G.D. Copy of that G.D. is Ex. Ka-8. 15. Thereafter statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence were put to him in question form, who has denied the allegations made against him and stated that he has falsely been implicated in this case. In defence, he has examined D.W. 1 Narender Kumar. However, the appellant/accused did not produce any documentary evidence. 16. In defence, D.W. 1 Narendar Kumar Garg, Senior Clerk, Laksar Railway Station was examined who stated that he had brought the records of the departure and arrival of trains of 25.4.1991 along with him. On 25.4.1991 the train DLS-Saharanpur to Haridwar arrived at 4:25 P.M. on platform no.1 of Laksar Junction and departed for Haridwar at 4:55 P.M. 17. The learned Amicus Curiae for the appellant/accused has submitted that prosecution has not proved the case against the appellant/accused beyond reasonable doubt for the offence punishable under Section 8 read with Section 15 of the Act. I do not find any substance in the argument of the amicus curiae for the following reasons : “ (i) That PW2 S.I. Ram Pal Singh has stated that on 25.4.1991 he along with Constables Pramod Kumar and Bharat Singh Kamedy started at 12:30 P.M. and reached on the platform no.1 at about 4:00 P.M. Then the informant informed him that a person who was sitting under the Amaltash tree was having 1 bag of doda afeem (Poppy Straw) and he was scheduled to go to Punjab. On this information, a public witness Som Pal was procured. He was told the purpose for taking him along with the police party. Thereafter they have searched each other. The Mukhabeer pointed towards that person and after that he had gone from that place. On seeing the police party approaching him, the appellant/accused tried to run away from the spot but he was arrested by them at about 4:15 P.M. after using the necessary force, who disclosed his name as Parsadi. On search of his bag 10 kgs., doda afeem (Poppy Straw) was recovered and a note of Rs.10/- was also recovered from his pocket. That bag is Ex.1 and the doda powder is Ex.2. About 70 gms. of doda powder was taken in a separate tin box and both the boxes were sealed in separate packets and the fard of recovery Ex. Ka-1 was prepared by him. The other persons present on the spot also signed on that fard. Copy of the fard was also given to the appellant/accused. He was also asked to be taken before a gazetted officer or a magistrate but he refused to go. The appellant-accused along with the recovered contraband and specimen of seal was brought to the police station. This witness was examined at length but he could not be shaken in his cross-examination. Statement of this witness is corroborated from the statements of P.W.1 Som Pal and P.W. 3 Constable Pramod Kumar. (ii) That 70 gms. from the recovered doda afeem (Poppy Straw) was also taken as namoona (sample) on the spot and was sealed and the same was taken to the Court on 26.4.1991 by P.W.7 constable Paras Ram and it was also deposited back on the same date in the Malkhana of the police station. About that G.D. entry Ex.Ka-7 and Ka-8 was also filed which proves that the recovered contraband was taken from the Malkhana to the Court on 26.4.1991 at the time of seeking judicial remand of the appellant/accused and till the recovered contraband was deposited in the Malkhana, nobody tampered with it. (iii) That P.W. 5 Head Constable Sukhveer Singh has also proved that the recovered doda afeem (Poppy Straw) was deposited in the Malkhana on 25.4.1991 and for that he made the necessary entry in the G.D. Copy of which is Ex.Ka-5. (iv) That P.W.6 Constable Moolchand has also stated that he had taken the ‘namoona i.e. the contraband sent to the laboratory for chemical examination’ of about 70 gms of the said contraband on 2.5.1991 to Forensic Laboratory, Agra and to prove it the prosecution has filed copy of G.D. Ex.Ka-6. He has also stated that till the said contraband remained under his possession, nobody tampered with it. (v) That report of the Forensic Laboratory, Agra dated 19.9.1991 Ex. Ka-9 also confirmed after the chemical analysis that the contraband sent for examination was doda afeem (Poppy Straw). 18. In view of my above discussion and conclusion, it is held that the prosecution has successfully proved that on 25.4.1991 at 4:15 P.M., about 10 kgs. of doda afeem (Poppy Straw) was recovered at Platform No.1 of Laksar Railway Station from the possession of appellant/ accused which was kept inside a plastic bag. Thus, the case against the appellant/accused stands proved beyond doubt and the trial court has rightly convicted the appellant/accused for the offence punishable under Section 8 read with Section 15 of the Act. I do not find any illegality or infirmity in the impugned judgment and order dated 16.7.1992 passed by the Sessions Judge, Haridwar and it requires no interference by this Court. 19. In the result, the appeal being devoid of merit is hereby dismissed. Conviction of the appellant/accused vide judgment and order dated 16.7.1992 passed by the Sessions Judge, Haridwar in Special Sessions Trial No. 34/91, State Vs. Parsadi for the offence punishable under Section 8 read with Section 15 of the Act is hereby upheld and sentenced of 10 years R.I. along with fine of Rs.1,00,000/-, in default further R.I. of two and half years, is also confirmed. Appellant/accused Parsadi is on bail. His bail bonds are cancelled. He be taken into custody to serve out the sentence. However, the period already undergone by the appellant-accused during investigation, trial or appeal shall be adjusted after verifying the records. 20. Copy of this judgment be sent forthwith to the trial court for its compliance. Let the lower court record be sent back. (Dharam Veer, J.) 20.8.2009 PRABODH