IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 664 of 2001 Old Criminal Appeal No. 334 of 1997 Dated of Decision: 05.05.2010 Tek Chand …Appellant versus State of U.P. …Respondent CORAM:- HON’BLE MR. JUSTICE B.C. KANDPAL HON’BLE MRS. JUSTICE NIRMAL YADAV Present: Mr. Rajendra Kotiyal, learned counsel for the appellant. Mr. Nandan Arya, learned A.G.A. for the State. Nirmal Yadav, J. This appeal has been preferred by appellant-Tek Chand under Section 374 (2) of the Code of Criminal Procedure (hereinafter referred to as Cr.P.C.) against the judgment and order dated 06.02.1997 passed by the Ist Additional Sessions Judge, Dehradun in Session Trial No. 84 of 1987 whereby the appellant has been convicted for the offence punishable under Sections 8(b) & 8(c) read with Section 18 of the Narcotic Drugs and Psychotropic Substances Act and sentenced to rigorous imprisonment for 15 years and fine of Rs. 1,50,000/-. In default of payment of fine he has further been ordered to undergo one-year rigorous imprisonment. In compliance of the order dated 06.09.2005 passed by this Court summoning the record of the lower court, Office In- charge of record room, District Judge Dehradun informed that the record of Sessions Trial No. 84 of 1987 has been turned to ashes in an incident of fire during the night on 7th December 1999; hence record could not be made available. On 21st December 2006, District Judge, Dehradun was again directed for the reconstruction of the record of the case within a period of one month. In compliance of the said order the District Judge, 2 Dehradun informed that every possible effort were being made to reconstruct the record. The Court again directed the District Judge, Dehradun for taking steps to get the record reconstructed. Thereafter several reminders were sent to the District Judge, Dehradun for reconstruction of the record. In compliance thereof the District Judge, Dehradun vide his memo-dated 02.06.2006 informed that steps were being taken to get the record constructed. Vide letter-dated 16.10.2009 the Office In-charge of the record room District Judge, Dehradun sent the reconstructed record, which constituted only of photocopy of the judgment of conviction and order of sentence dated 06.02.1997 passed by the trial court. Further vide report dated 15.04.2010 the Additional Sessions Judge, Dehradun informed that sincere and concerted efforts were made in compliance with the direction of the High Court for the reconstruction of the record but no fruitful result could be yielded, thus, the reconstruction of the record of the Session Trial was not possible. Learned A.G.A. was also directed to obtain the report from the District Magistrate and police authorities as to whether the papers pertaining to this case were available with the prosecution agency or the police authorities. Learned A.G.A. stated at the bar that he had received information from the office of the District Magistrate that efforts were made to trace out the documents with regard to this case, however, no documents could be available. The learned A.G.A. submitted that written information in this regard is expected to be received by him in due course which shall be placed before this Court. The record is still incomplete as the copy of the F.I.R., the recovery memos and the other documents, which were placed on record by the prosecution and the defence during the course of 3 trial and which had been exhibited are not available for arriving at the just decision of the case. We have heard Mr. Rajendra Kotiyal, learned counsel for the appellant, Mr. Nandan Arya, learned A.G.A. for the State and perused the judgment of the trial court available on record. Learned counsel for the appellant submitted that occurrence in this case took place on 4th May 1987, thus after a long passage of 23 years reconstruction of the record is not possible or practicable to dispose of the matter and therefore, mandate of law contained in Sections 385 and 386 of the Cr.P.C. cannot be carried out. Thus the appellant deserves to be acquitted. In support of his argument learned counsel for the appellant referred to the judgment of the Apex Court in the case of State of U.P. Versus Abhai Raj and another reported in [2004 Supreme Court Cases (Cri) 901], Bani Singh and others Vs. State of U.P. reported in [1996 Supreme Court Cases (Cri) 848], Shyam Deo Pandey and others Vs. The State of Bihar reported in [1971 Supreme Court Cases (Cri) 353] and the judgment of Allahabad High Court in the case of Aziz Khan Vs. State of U.P. reported in [1992 (29) ACC pg 223] and Khalil Ahmad Vs. State of U.P. reported in [1986 (23) ACC pg 270]. On the other hand, Mr. Nandan Arya, learned A.G.A. for the State submitted that as per the provisions of sub-clause (b) of sub-Section (1) of Section 386 of the Cr.P.C. in an appeal from conviction, the appellate court may, after perusing such record and hearing the appellant or his pleader and the Public Prosecutor, reverse the finding and acquit or discharge the accused or order him to be re-tried by a court of competent jurisdiction. The appellate court may, if he considers that there is no sufficient ground for interfering, dismiss the appeal. In case the record is not available or reconstruction is not practicable, a 4 direction for re-trial by a court of competent jurisdiction may be directed, which would serve the interest of justice. Sections 385 and 386 of the Cr.P.C. provides the procedure for hearing the appeals and the powers of the appellate court. Sections 385 and 386 of the Cr.P.C. are reproduced hereunder: - Section 385. Procedure for hearing appeal not dismissed summarily. –(1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given- (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf; (iii) if the appeal is from a judgment of conviction in a case instituted upon compliant, to the complainant; (iv) if the appeal is under Section 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate court shall then send for the record of the case, if such record is not already available in that Court and hear the parties; Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not except with the leave of the Court urge or be heard in support of any other ground. 386. Powers of the Appellate Court.- After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor, if he appears, and in case of an appeal 5 under Section 377 or section 378, the accused, if he appears, the Appellate court may, if it considers that there is no sufficient ground for interfering, dismiss the appeal, or may- (a) in an appeal from an order of acquittal, reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial, as the case may be, or find him guilty and pass sentence on him according to law; (b) in an appeal from a conviction- (i) reverse the finding and sentence and acquit or discharge the accused, or order him to be re- tried by a Court of competent jurisdiction Subordinate to such Appellate Court or committed for trial, or (ii) alter finding, maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same; (c) in an appeal for enhancement of sentence- (i) reverse the finding and sentence and acquit or discharge the accused or order him to be re-tried by a Court competent to try the offence, or (ii) alter the finding maintaining the sentence, or (iii) with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, so as to enhance or reduce the same; (d) in an appeal from any other order, alter or reverse such order; (e) make any amendment or any consequential or incidental order that may be just or proper; Provided that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such enhancement. 6 Provided further that the Appellate Court shall not inflict greater punishment for the offence which in its opinion the accused has committed, than might have been inflicted for that offence by the Court passing the order or sentence under appeal. As per the provisions of sub-Section (i), (ii) & (iii) of Clause-b of Section 386 of the Cr.P.C., in an appeal from a conviction, the appellate court has the power to reverse the finding of the trial, thus resulting into acquittal or discharge. The Court may also issue direction for re-trial by a court of competent jurisdiction or alter the finding, maintaining the sentence or with or without altering the finding, alter the nature or the extent, or the nature and extent, of the sentence, but not so as to enhance the same. Section 385 of the Cr.P.C. provides that the appellate court shall send for the record of the case and hear the parties. The finding on merit can only be returned after consideration of the material on record. But in case it is not possible because of the destruction of the record, the proper course for the appellate court would be to direct re-trial after reconstruction of the record. If in spite of positive and constructive efforts to reconstruct the record is not possible then after perusal of the copy of the judgment and the order passed by the trial court and hearing the counsel for the parties, the exercise of the power as indicated in Section 385 of the Cr.P.C. can be resorted to. The Apex Court in the case of Bani Singh (Supra) observed as under: - “The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, if ‘must’ call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385- 386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the 7 appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross- checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recoded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non- prosecution but only contemplates disposal on merits after perusal of the record.” However, difficulty arises when reconstruction is not possible and there is a long gap of time between the trial and the hearing of the appeal. Would it be possible for the trial court to decide the matter without referring to the record? The provisions of Section 385 of the Cr.P.C. require to send for the record to enable the appellate court to peruse the same before finally deciding the appeal. It is not an idle formality but casts an obligation on the court to cross check the reasoning of the trial court with the evidence on record with a view to satisfying itself as to whether the reasoning and the finding recorded by the trial court, are consistent with the material evidence on record or not. In the present case, in compliance with the order of this Court the authorities i.e., Sessions Judge, prosecuting agency as well as the counsel for the parties made sincere efforts for the reconstruction of the record, however, from all the sources, the Court was informed that the reconstruction of the record was not possible. The alleged recovery from the appellant took place in the year 1987 i.e. 23 years ago and even after the sincere and concerted efforts made by all the authorities and the parties, reconstruction of the record is not practicable. Thus the parties are not able to facilitate this Court to dispose of the appeal and the further course of re-trial and fresh adjudication by the Sessions Court has also been rendered impracticable due to loss of vitally important basic records, thus enabling this Court to cross check the reasoning given by the trial court with the evidence on record. 8 Even on merits, the learned counsel for the appellant argued that no case against the accused-appellant is made out. The appellant has been charged under Section 8(b) and (c) of the Narcotic Drugs and Psychotropic Substances Act, which provides as under: - “8(b) cultivate the opium poppy or any cannabis plants; or 8(c) produce, manufacture, possess, sale, purchase, transport, warehouse, use, consume, import inter-State, export inter- State, import into India, export from India, or transship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorization also in accordance with the terms and conditions of such licence, permit or authorization: Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf: [Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.] This section has been introduced by Act No. 2 of 1989 i.e. with effect from 29.05.1989. The alleged recovery of the opium from the residence of the appellant has been stated to be made on 4th May 1987. It is argued that at the time of the alleged recovery there was no prohibition to cultivate or to possess opium and therefore the accused has not committed any offence, then he is not liable to any punishment under the said provisions. A perusal 9 of the judgment, it is revealed that the prosecution case suffers from material contradiction and discrepancies. As per the prosecution case 1.500 kg. opium was recovered from the residence of the accused-appellant. However, as per the deposition of Ramesh Chandra (PW-2) in the court the substance recovered from the possession of the accused on weighment was found to be 1.100 kg. There is no explanation as to how the substance was reduced from 1.50o kg. to 1.100 kg. Another material defect in the prosecution case is that the two independent witnesses i.e., S.D.M., Sri R.K. Sharma, Chakarata and Sri Kakkad, C.O. Mussorrie who accompanied the raiding party have not been produced as witnesses, which creates serious doubt in the prosecution case. According to the prosecution case, the polythene containing the alleged opium was recovered in the corner of the house of the appellant but not an iota of evidence has been produced nor any efforts were made by the prosecution to prove that the said house was in exclusive possession of the appellant. On careful consideration of the rival submissions made by learned counsel for the parties, we are of the view that in the absence of the record, we are unable to cross check the findings and reasoning returned by the trial court with the evidence on record, with a view to satisfy ourselves that findings recorded by the trial court are consistent with the material on record. Even after perusing the material defects as referred above and also pointed out by the learned counsel for the appellant, we are of the view that the reasoning and findings of the trial court are not in consonance with the provisions of the Narcotic Drugs and Psychotropic Substances Act. Therefore, prima facie, we are of the view that applying the principle laid down in the authorities referred by the learned counsel for the appellant issuance of direction for re-trial of the case at this stage would not be practicable to arrive at the just decision of the case. The basic inconsistency pointed out by 10 the learned counsel for the appellant that no offence under Sections 8(b) & 8(c) of the Narcotic Drugs & Psychotropic Substances Act is made out against the accused-appellant as these provisions have been inserted in the Act only with effect from 29th May 1989 whereas the alleged recovery in the present case was made on 4th May 1987. In such circumstances, arguments of learned counsel for the appellant appears to be just and serving the interest of justice. In view of the above discussion, the appeal preferred by appellant-Tek Chand is allowed. The judgment and order dated 06.02.1997 passed by the Ist Additional Sessions Judge, Dehradun in Sessions Trial No. 84 of 1987 is set aside. The accused-appellant is acquitted of the charges framed against him. The accused-appellant is on bail, his bail bonds are cancelled and the sureties are discharged. (Nirmal Yadav, J.) (B.C. Kandpal, J.) VKG 05.05.2010