Chinku Gupta vs State Of U.P.

on 24 August, 2018

Chinku Gupta vs State Of U.P. on 24 August, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Reserved on : 28.7.2018

Delivered on : 24.8.2018

Court No. - 15

Case :- JAIL APPEAL No. - 2811 of 2016

Appellant :- Chinku Gupta

Respondent :- State Of U.P.

Counsel for Appellant :- From Jail, Harish Chandra Tiwari A C

Counsel for Respondent :- A.G.A.

Hon'ble Dinesh Kumar Singh-I,J.

1. Heard Sri Harish Chandra Tiwari, Amicus Curiae, Sri Deepak Mishra, Learned A.G.A. appearing
for the State and perused the record.

2. This Criminal Jail Appeal No. 2811 of 2016 has been filed against the judgment and order dated
05.04.2016 passed by the Additional District and Sessions Judge, Fast Track Court No.1, Siddharth
Nagar, in Special Sessions Trial No. 20 of 2014 (State Vs. Chinku Gupta), under Section 8/20 of
NDPS Act, Crime No. 61 of 2014, Police Station Dhebarua, District Siddharth Nagar, whereby the
appellant Chinku Gupta has been convicted under Section 8 read with section 20 of NDPS Act and
awarded punishment of ten years rigorous imprisonment with a fine of Rs. 100,000/- and in default
of payment of fine six months additional simple imprisonment.

3. The facts of the present case in brief are that on 11.02.2014, when S.I. Manoj Kumar Tripathi
(PW1) was on patrol duty with his team-mates namely, constable no. 637 Ajay Kumar Gautam
(PW5) along with other police officials of SSB and reached near Pachpedua trisection (Tiraha), one

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 1

 Chinku Gupta vs State Of U.P. on 24 August, 2018

person who was standing near private bus stand just before railway crossing, saw the police party
and all of sudden, he took reverse turn and started fleeing from there. Upon suspicion, the police
party chased him and caught hold of him at about 50 steps from there; he revealed his name to be
Chinku Gupta son of late Laxman Prasad Gupta resident of Ward no.6, Krishna Nagar, Police
Station Kapilvastu in Nepal. When the reason for his fleeing was enquired, initially he started
disclosing irrelevant things but thereafter, he stated that he was having 'Charas' in his possession
and, therefore, due to apprehension he had tried to flee from there after seeing the police party.
After having come to know that he was having narcotic substance, he was apprised about his right
that if he wanted to be searched in presence of a Magistrate or a Gazetted Officer, such an Officer
would be called by them. At this, he stated that since he has already been arrested, therefore, there
was no need to call any such officer and that he was ready to be searched by them only. Thereafter,
after having made search of each other and having obtained written consent (Exhibit Ka-2) from the
accused, a personal search was made of the accused, pursuant to which four bundles of charas were
recovered in 'Panni' from the 'Phet' of his pant. The weighing machine was arranged for taking
weight of the contraband substance and it was found to be 2 kg in weight. He disclosed that the said
charas was purchased from Krishna Nagar in Nepal and the same was required to be sold to the
person who was to reach near bus stop, but he did not know his name. Thereafter, the police
apprised the accused that he had committed an offence under Section 8/20 of NDPS Act and after
having followed the directions of Human Rights Commission as well as Hon'ble Supreme Court, he
was arrested at 18:00 hours in the evening. From the said recovered contraband substance--charas,
50 gms. was taken out by way of sample from one bundle, while rest of the bundles alongwith the
bundle from which the sample was taken, were kept in one white cloth and were sealed on the spot
and also sample of seal was taken. A large number of public persons has assembled there but when
they were requested to be a witness of the said recovery, they proceeded ahead from there without
disclosing their name. The recovery memo (Exhibit Ka-1) was prepared in the light of torch, which
was got signed by all after having read out its contents to them and the information was also
transmitted through proper channel to the house of accused about his arrest. Thereafter, the
accused along with the recovered contraband substance were taken to the police station, where
constable no. 449 Ajay Kumar Divedi (PW2) had written chick FIR the same day i.e. on 11.2.2014 on
the basis of recovery memo which is Exhibit Ka-4 and made entry of the same in General Diary at
report no. 30 at 21:15 hours which is Exhibit Ka-5. The investigation of this case was assigned to
SHO Ramesh Yadav (PW3) who received all the relevant papers such as chick FIR, copy of General
Diary, consent letter (Exhibit Ka-2) of the accused and after having recorded of the statements of
PW1, PW2 and accused Chinku Gupta, he prepared site plan (Exhibit Ka-6). Further he got the
sample of the contraband substance, sent to Forensic Science Laboratory for its examination and
after having found the accused guilty, submitted charge-sheet (Exhibit Ka-8) against him under
Section 8/20 of NDPS Act. Forensic Science Lab's report is Exhibit Ka-7, photocopy of Malkhana
register is Exhibit Ka-13.

4. Charge was framed against the accused on 7.8.2014 under Section 20 of NDPS Act, to which he
pleaded not guilty and claimed for trial.

5. In order to prove the prosecution case against the accused, S.I. Manoj Kumar Tripathi, who is
witness of fact and had obtained written consent of the accused for being searched by the police

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 2

 Chinku Gupta vs State Of U.P. on 24 August, 2018

party as well as prepared the recovery memo on the spot, has been examined as PW1; constable no.
449 Ajay Kumar Divedi, who prepared chick FIR and made entry of this case in General Diary, has
been examined as PW2; SHO Ramesh Yadav, who conducted the investigation in the case and after
having found the case proved against the accused submitted the charge-sheet, has been examined as
PW3; constable no. 527 Awdhesh Prasad, who had taken the sample of the contraband substance to
the Forensic Science Laboratory for being tested, has been examined as PW4; constable no. 637 Ajay
Kumar Gautam, the other witness of fact, in whose presence the accused was arrested and recovery
of contraband substance was made, has been examined as PW5.

6. After aforesaid witness of prosecution, the evidence of prosecution was closed and the statement
of accused was recorded under Section 313 Cr.P.C. on 18.8.2015, in which he stated that the
prosecution case was false against him and that he was implicated in this case due to enmity and
pleaded innocent. However, he has not examined any witness in his defence.

7. After having considered the entire evidence on record, the learned Trial Court vide judgment and
order dated 5.4.2016 has held the accused-appellant guilty under aforementioned sections and
awarded him punishment which has been mentioned above.

8. The learned Amicus Curiae has assailed this judgment on several counts namely, there was no
compliance made by prosecution of mandatory provision of Section 50, 52 and 57 of NDPS Act; no
independence witness was sought to prove recovery; the testimony of police witnesses is unreliable
and requires to be discarded being contradictory with respect to material particulars; the entire
process of making recovery from the accused appellant has been done at the police station because
the thumb impression of the accused was obtained at police station and in this regard attention to be
drawn towards discrepancy noticed in statement of PW5 and PW1; no question was put to the
accused under section 313 Cr.P.C. with respect to the compliance of section 50 of N.D.P.S. Act; the
weight of the contraband substance being 2 kg was not mentioned in the FIR; the sample was not
collected from all the four bundles of contraband substance--charas-which are alleged to have been
recovered from the accused, rather the same was collected from just one bundle out of four, which is
improper and would not be treated to be representative sample of the narcotic substance allegedly
contained in four bundles, besides that no explanation had come on record with respect to the cello
tape having been found on the recovered substance when it was placed before court during the
testimony of PW1 being recorded before court, and in FIR no such fact was mentioned that at the
time of recovery of the said substance, the same was sealed on the spot with the aid of cello tape
also; the sample seal has also not been found on record, which makes the recovery of entire
substance suspicious; according to the PW3, the contraband substance was got out from 'Mallkhana'
on 22.2.2014, thereafter it's sample was sent to the Forensic Science Laboratory, which was in
contradiction with the fact recorded in FSL's report, which says that the said sample reached there
on 21.02.2014; and that this lacuna was subsequently got filled up by examining PW4; the
compliance of section 57 has not been done which is reflected from the statement of PW1 at page 15
of the paper book wherein it has come on record that there was no information available on file that
the information to higher Authority with respect to recovery of contraband substance from the
accused had been sent by RT set.

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 3

 Chinku Gupta vs State Of U.P. on 24 August, 2018

9. A perusal of impugned judgment would indicate that relying upon the law laid down in Vijaysinh
Chandubha Jadeja vs. State of Gujarat, 2011 (2) SCC page 891 (SC), it is held by the learned trial
court that the compliance of under Section 50 of N.D.P.S. Act has been made because the accused
had been apprised of his right of search in presence of Gazetted Officer or a Magistrate, but he did
not avail the same. With respect to the contradictory statement of PW1 who stated that eight 'Gulli'
charas was recovered, while PW5 stated that only four 'Gulli' charas was recovered from the
accused, to this discrepancy the learned trial court explained away by mentioning that it was
apparent from the evidence on record that on personal search of accused, from pant of the accused,
four packets of charas were recovered and in each packet there were two pieces, thus the total
recovered charas in four packets would be taken to be eight pieces.

10. Further, it is mentioned that the recovered substance which was presented before court, in that
also four packets were presented which contained eight pieces. Therefore, he has concluded that
since in four packets there were eight pieces of charas, the difference in the statement of PW1 and
PW5 has occurred and such difference does not go to root of the truth and on that basis it could not
be said that the accused needs to be acquitted, being given benefit of doubt of any such recovery
having been made from him.

11. Further, it is mentioned that the argument of defence that the sample seal was not got proved by
producing the same before court, does not sustain because the purpose of the sample seal is only for
the substance to be sent to the Forensic Science Laboratory and not for the court. By sample seal,
only this much is to be proved as to whether the sample of the recovered substance which was sent
to the Forensic Science Laboratory was of the same substance which was actually sealed on the spot.
Because, the sample seal is prepared for being affixed on sample of substance, to be sent to Forensic
Science Laboratory, therefore, even if the sample seal is not proved by prosecution, no adverse
inference could be drawn.

12. Further, it is mentioned that the argument of the defence that there was no mention made in
Malkhana register about keeping the sample of contraband substance, makes truthfulness of
recovery of contraband substance doubtful, does not sustain, because it is evident from the
statement of Investigating Officer that he had produced the accused before court for remand and
after returning from there the case property (recovered contraband substance), sample seal and
sample of the contraband substance, all were deposited in Malkhana in front of him. He had further
made it clear that the sample of contraband substance and sample seal were deposited by him in
Malkhana and after making docket of the same, sample of contraband substance and sample seal,
were sent to Forensic Science Lab for being examined and therefore, finding is given that nothing
adverse could be elicited from him in his cross examination to disbelieve his statement in court.
Therefore, if the mention of sample of contraband substance and sample seal has not been made in
Malkhana register, no adverse inference would be drawn in respect of these and on that basis no
benefit could be given to the accused.

13. Further, it was argued before the trial court that no percentage of charas was mentioned in the
report of Forensic Science Laboratory, but to this argument, it is held by the trial court that the
purpose to send the sample to Forensic Science Laboratory is only to find out whether the recovered

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 4

 Chinku Gupta vs State Of U.P. on 24 August, 2018

substance was narcotic substance or not and accordingly in FSL's report, clear mention is made that
the said sample was found to contain charas, therefore, no benefit would accrue to the accused if no
mention is made of percentage of charas found in the sample.

14. Regarding the argument of defence with respect to there being no public witness of recovery,
learned trial court has held that it was evident from statement of witnesses of fact that the
independent witnesses were requested to be witness this recovery but no one came forward and thus
the said explanation was found to be satisfactory.

15. With regard to non-compliance of Section 57 of N.D.P.S. Act, it is held by the trial court that the
said information about the recovery from the accused of the contraband substance was transmitted
to higher authorities through post as well as telephone, which is evident from the deposition of PW3
and thus it was held that the compliance of the said section was found to have been made.

16. Learned A.G.A., per contra, has argued that the trial court has passed perfectly legal judgment
and that it contains no legal or factual error, accordingly appeal deserves to be rejected.

17. Now this court has to evaluate the evidence adduced by the prosecution and see as to whether,
the view taken by the learned court below is a tenable view or does it require to be over-turned in the
light of position of law on the date when the occurrence is alleged to have taken place.

18. First of all, I would like to take up the objection of the learned Amicus Curiae raised with respect
to non-compliance of Section 50 of N.D.P.S. Act. In this regard reliance has been placed by him
upon Arif Khan @ Agha Khan vs. State of Uttarakhand AIR 2018 SC 2123 (Supreme Court). In this
case, the question arose before the Hon'ble Supreme Court for consideration as to whether the
search / recovery made by police officials from the appellant-accused of the alleged contraband
(charas) could be held to be in accordance with the procedure prescribed under Section 50 of
N.D.P.S. Act. The law relied upon in this case by the Hon'ble Apex Court, was laid down in Vijaysinh
Chandubha Jadeja vs. State of Gujarat, 2011 (1) SCC page 609, in which it was held that the
requirements of Section 50 of N.D.P.S. Act was mandatory and therefore, the provisions of section
50 must be strictly complied with. It was, further, held that it was imperative on the part of police
officials to apprise the person intended to be searched of his right under Section 50 to be searched
either before a Gazetted Officer or a Magistrate. It was held in this case that it was equally
mandatory on the part of authorised officer to make the suspect aware of the existence of his right to
be searched before a Gazetted Officer or a Magistrate, if so required by him and this required a strict
compliance. It was held that the suspect (person believed to be carried contraband substance) may
or may not choose to exercise the right provided to him under Section 50 of the N.D.P.S. Act, but so
far as the officer is concerned, an obligation is cast upon him under Section 50 of NDPS Act to
apprise the suspect of his right to be searched before a Gazetted Officer or a Magistrate. Relying
upon the said law, the Hon'ble Apex Court held in this case as follows (relevant paras of the
judgment are reproduced herein below):-

"28. First, it is an admitted fact emerging from the record of the case that the
Appellant was not produced before any Magistrate or Gazetted Officer; Second, it is

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 5

 Chinku Gupta vs State Of U.P. on 24 August, 2018

also an admitted fact that due to the aforementioned first reason, the search and
recovery of the contraband "Charas" was not made from the Appellant in the
presence of any Magistrate or Gazetted Officer; Third, it is also an admitted fact that
none of the police officials of the raiding party, who recovered the contraband
"Charas" from him, was the Gazetted Officer and nor they could be and, therefore,
they were not empowered to make search and recovery from the Appellant of the
contraband "Charas" as provided Under Section 50 of the NDPS Act except in the
presence of either a Magistrate or a Gazetted Officer; Fourth, in order to make the
search and recovery of the contraband articles from the body of the suspect, the
search and recovery has to be in conformity with the requirements of Section 50 of
the NDPS Act. It is, therefore, mandatory for the prosecution to prove that the search
and recovery was made from the Appellant in the presence of a Magistrate or a
Gazetted Officer.

29. Though, the prosecution examined as many as five police officials (PW-1 to PW-5)
of the raiding police party but none of them deposed that the search/recovery was
made in presence of any Magistrate or a Gazetted Officer.

30. For the aforementioned reasons, we are of the considered opinion that the
prosecution was not able to prove that the search and recovery of the contraband
(Charas) made from the Appellant was in accordance with the procedure prescribed
Under Section 50 of the NDPS Act. Since the non-compliance of the mandatory
procedure prescribed Under Section 50 of the NDPS Act is fatal to the prosecution
case and, in this case, we have found that the prosecution has failed to prove the
compliance as required in law, the Appellant is entitled to claim its benefit to seek his
acquittal."

19. From the above citation, it is apparent that the Hon'ble Apex Court in Arif Khan's case (supra)
did not find the compliance of Section 50 of N.D.P.S. Act to have been made after having evaluated
the evidence on record and accordingly passed an acquittal order allowing the appeal. However, it is
clear that the basis, which has been adhered to in the said judgment, is the law laid down by Hon'ble
Apex Court in Vijaysinh Chandubha Jadeja's case (supra), which has clearly laid down that the
suspect person may or may not choose to exercise his right to be searched in presence of the
Gazetted Officer or a Magistrate, but a duty is cast upon the officer making arrest, to apprise the
suspect of his right to be searched before a Gazetted Officer or a Magistrate. Therefore, this court
has to see, on the basis of evidence on record, whether raiding police party had apprised the accused
that he could opt to be searched in presence of a Gazetted Officer or a Magistrate. There are a
number of other rulings on the point that the compliance of Section 50 may be proved on the basis
of oral evidence adduced by the witnesses, even if there is no written consent obtained from the
accused. In the case at hand however, a written consent is alleged to have been obtained by the
raiding party and it is the case of prosecution that the accused denied to exercise his right of search
in presence of such a Magistrate or a Gazetted Officer, instead gave consent to be searched by the
police party itself. The statement of witnesses of fact, PW1 and PW5 has been thoroughly gone
through by me and I find that in testimony of both these witnesses it has come adequately that

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 6

 Chinku Gupta vs State Of U.P. on 24 August, 2018

accused was apprised of his legal right of being searched before a Gazetted Officer or a Magistrate,
but he did not opt for the same, therefore, in this case not only by oral rather by a written consent it
has been proved by both the witnesses of fact i.e. PW1 and PW5 and hence no infirmity is found in
the judgment of the court below with respect to compliance of Section 50 of NDPS Act having being
made by the prosecution.

20. The next most important point raised by the learned Amicus Curiae which requires to be dealt
with is that the recovery of contraband substance (charas) cannot be held proved because it is not
made clear as to whose seal was affixed on the place of occurrence when the sample was taken, on
the sample of contraband substance as well as on the residue, which are alleged to have been
separately sealed. The link evidence is missing to establish that the sample which was taken on the
spot was the same which was sent to the Forensic Science Lab for being examined, because at the
time of receipt of sample in the Forensic Science Lab it was found to bear seal of (District Judge
SDR U.P.). Therefore it ought to have been proved by the prosecution as to whose seal it was, which
was affixed on the sample of the contraband substance on the spot and when and in what manner
the said sample along with the sample of seal and the residue, which were separately sealed, were
taken to the Malkhana for being kept safely there and before whom the said seal, which was affixed
on the spot, was broken on the sample of contraband substance and the seal of (District Judge SDR
U.P.) was affixed thereon; the prosecution has failed to do so. And the connected argument which is
also very significant is that the sample was allegedly taken from only one bundle, while four bundles
of charas, each containing two pieces each, are being alleged to have been recovered, therefore such
kind of collection of sample would not make it a representative sample of the entire charas alleged to
have been recovered from the accused - appellant, which is in violation of the Standing Instructions
No. I/88 and Standing Instructions No. I/89 which have been issued by the Narcotics Department
as a guideline to be followed by the officers authorised to make raids in respect of recovery of
contraband substance which have been recognised as binding in Noor Aga vs State of Punjab and
Another, (2008) 16 SCC 417, the relevant paragraph no. 87 is quoted herein below for the sake of
convenience:

"87. Preservance of original wrappers, thus, comes within the purview of the
directions issued in terms of Section 3.1 of Standing Order 1 of 1989. Contravention
of such guidelines could not be said to be an error which in a case of this nature can
conveniently be overlooked by the court. We are not oblivious of a decision of this
court in South Central Railway vs G Ratnam, (2007) 8 SCC 212, relating to
disciplinary proceedings, wherein such guidelines were held not necessary to be
complied with, but therein also this court stated: (SCC p. 222, para 23) "23. In the
cases on hand, no proceedings for commission of penal offences were proposed to be
lodged against the respondents by the investigating officers."

21. The relevant part of the Standing Order No. 1/89 dated 13/06/1989 is reproduced herein below:
-

Sampling, Classification, etc of drugs 2.1 All the drugs shall be properly classified,
carefully, weighed and sampled on the spot of the seizure.

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 7

 Chinku Gupta vs State Of U.P. on 24 August, 2018

Drawl of samples 2.2 All the packages/containers shall be serially numbered and kept in lots for
sampling. Samples from the narcotic drugs and psychotropic substances seized, shall be drawn on
the spot of recovery, in duplicate, in the presence of search witness (Panchas) and the person from
whose possession the drug is recovered, and a mention to this effect should invariably be made in
the panchnama.

Quantity to be drawn for the sampling 2.3 The quantity to be drawn in each sample for chemical test
shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in
cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for
chemical test. The same quantity shall be taken for the duplicate sample also. The seized drugs in
the packages/containers shall be well mixed to make it homogeneous and representative before the
sample (in duplicate) is drawn.

Method of drawl

(a) Single container/package.

2.4 In the case of seizure of a single packet/container, one sample (in duplicate) shall be drawn.
Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of
seizure of more than one package/container.

(b) Bunch of packages/containers 2.5 However, when the packages/containers seized together are of
identical size and weight, bearing identical markings and the content of each package given identical
results on colour test by the drug identification kit, conclusively indicating that the packages are
identical in all respects the packages/containers may be carefully bunched in lots of 10
packages/containers/except in the case of ganja and hashish (charas), where it may be bunched in
lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in
duplicate) may be drawn.

Drawl of representative samples:

2.8 while drawing one sample (in duplicate) from a particular lot, it must be ensured
that representative samples are in equal quantity, taken from each package/container
of that lot and mixed together to make a composite whole from which the samples are
drawn for that lot.

22. In the light of above position of law, this court has to see as to whether the
argument of the learned Amicus Curiae has any force and whether in the light of that
the prosecution has been able to prove the recovery of the contraband substance
(charas) from the accused - appellant. This would require the relevant piece of
evidence recorded by the trial court to be taken into consideration.

23. In recovery memo it is mentioned that four bundles of ''Panni' containing charas
were recovered from the possession of the accused, which on being weighed was

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 8

 Chinku Gupta vs State Of U.P. on 24 August, 2018

found to be 2 KGs, out of which 50 gram was taken out as sample from one bundle
and rest of the bundles were sealed in a white cloth and the sample was kept in a
''Panni' and thereafter was sealed in a cloth and sample seal was prepared. It is not
made clear in this recovery memo as to whose seal was affixed on this sample as well
as the residue, which was necessary. PW 1 has repeated the same version as
mentioned above in the examination-in-chief and further stated that the recovered
contraband substance, sample and sample seal were got deposited safely in Malkhana
of the police station. He has further stated that the case property related to this case
was presented before court in sealed condition by Jai Mangal Singh Baghel, whereon
thumb impression of accused/appellant was present. PW 1 stated that the said bundle
bore his signature and also bears seal of Sessions Judge dated 12/02/2014 with ''seen'
written on it. The said case property was opened and it was found that inside a cloth
four packets wrapped in ''Panni' were there and in each of the four packets, two
pieces each of charas were found kept and cello tape was also pasted thereon. In one
of the packets, only small quantity of charas was found, to which the witness stated
that, from this packet charas was taken out for sample and the same was separately
sealed, this charas was recovered from the accused - appellant. In cross-examination
he admitted that sample was not taken from each packet, the same was taken only
from one packet. All the four packets were weighed together and not separately, but
he does not recollect as to from where the weighing machine was obtained. He
further stated that the sample seal was not on the file. He had deposited the sample
seal at police station and a copy of the recovery memo was provided to the accused,
which he had torn. The contraband substance was in four packets containing eight
pieces, but this fact of eight pieces was not mentioned in the recovery memo.

24. The other witness of fact, PW 5 has corroborated the version of recovery of 2
kilogram charas from the accused and sample of 50 gram being taken and the rest of
the charas being separately sealed, in examination-in-chief. In cross-examination he
initially stated that 50 gram quantity was taken out as sample at police station but
immediately thereafter he stated that the same was taken out on the spot. His
signature was not found on the sample of the contraband substance. On written
consent, Exhibit Ka-2, no signature was there of any officer. The recovered
contraband substance was in four pieces and thereafter stated that it was in four
bundles. He did not recollect as to whether he was present at the time when the
accused was taken to police station. The statement of this witness seems very casual
as he could not explain that the recovered material was in four bundles and each
bundle contained four pieces, as was narrated by PW 1. Even he has not been able to
tell as to whose seal was affixed when the said recovered contraband substance was
being sealed on the spot along with its sample which is said to be separately sealed.
He has also not been able to clarify as to where the seal was kept.

25. PW 2 is the constable who had registered the chick F.I.R. and had made entry in
GD on 11/02/2014, who has stated in cross-examination that the case property was
kept in Malkhana and nothing else was kept there with it.

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 9

 Chinku Gupta vs State Of U.P. on 24 August, 2018

26. PW 3, is the Investigating Officer who has stated that he had written Parcha No. 3
of CD on 22/02/2014, in which it was recorded that after taking out the case property
from Malkhana he had sent constable Awdhesh Prasad vide Docket No. 1604 to court
for examination purpose, whereon after order of court he was sent to Forensic
Science Lab, Lucknow, where the case property was deposited at Docket No. 1604.
Further he stated that the accused was presented along with recovered substance
before court for the purposes of remand by him as investigating officer. The
recovered case property bore signature of the complainant and accused and remand
sheet was signed by the Magistrate. The sample of the contraband sub`stance was
deposited in Malkhana in his presence after remand of the accused and sample seal
also was deposited and the charge- sheet was submitted before the report had been
received from Forensic Science Lab.

27. PW 4 constable Awdhesh Prasad has stated in examination-in-chief that on

19/02/2014, when he was posted at PS Dhebarua; he was dispatched vide GD No. 16
at 12.10 hours from the police station regarding examination of the contraband
substance of the present case. After collecting sample of the contraband substance
along with sample seal and other papers he had appeared before the District Judge,
who had compared the sample seal with the seal affixed on sample of the contraband
substance and thereafter he had affixed his own sealed, sample of which was also
prepared and after asking him to put signature on Docket, the same was certified by
him. Thereafter with sample of the substance and the sample seal he was dispatched
at 5.00 hours vide report No. 4 on 20/02/2014, whereafter he deposited the said
sample seal in Malkhana along with the sample of the contraband substance in sealed
condition. Thereafter on 20/02/2014 he was dispatched for Forensic Science Lab
with the said sample seal and the sample of the contraband substance to Lucknow,
where he presented these items on lot No. 1604 on 21/02/2014, receipt of which is
Exhibit Ka-7. He returned on 22/02/2014 vide report no. 21 at 13.10 hours at PS, GD
of which was filed by him. The sample seal and the sample of the contraband
substance which he had received on 19/02/2014 for preparing the Docket, bore
whose signature, he could not tell. In Malkhana register (Exhibit Ka-13) the entry of
this case property is made at serial no. 12. After preparation of Docket on 19/02/2014
he had not deposited the said articles in Malkhana, rather the same was deposited on
20/ 02/2014 and in the meantime he retained the said articles with him. On
19/02/2014 he remained in Siddharth Nagar and did not reach PS. On 21/02/2014
he had deposited the Docket in Forensic Science Lab, Lucknow and thereafter he had
returned. In cross-examination he has also stated that in Malkhana register there is
no entry of sample seal or sample of the contraband substance nor any signature of
any officer is made in respect of the said entry. This witness has sought to give the
explanation as to how the seal of (District Judge SDR U.P.) came to be affixed on the
sample of contraband substance which was sent to the Forensic Science Lab, but he
could not explain as to whose seal was affixed on the place of occurrence/recovery of
contraband substance, which was compared by the District Judge, when he obtained
order from the District Judge for carrying the sample of the contraband substance for

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 10

 Chinku Gupta vs State Of U.P. on 24 August, 2018

being examined by the Forensic Science Lab. The only explanation that he could give
was that the seal affixed on the said sample of contraband substance was compared
by the District Judge and thereafter he affixed his own seal on the said sample to be
taken to be Forensic Science Lab for being examined. It has also not been explained
from the side of the prosecution during arguments as to what was the necessity for
opening the sample of contraband substance which is alleged to have been sealed on
the spot, and for getting the same sealed again before the District Judge. It is also on
record that according to this witness the said sample remained in his possession from
19/02/2014 till 20/02/2014, although it was against propriety and rule that he
should have retained the said article with him for any length of time. It was
incumbent upon him to immediately deposit the same back in the Malkhana and
thereafter the same ought to have been collected again from there for being taken to
the Forensic Science Lab, which has not been done. It may further be added here that
no entry of the sample seal as well as sample of contraband substance, has been
stated to have been made in Malkhana Register, which makes it doubtful as to
whether these articles were kept in Malkhana or not. This link evidence was
extremely important for proving the recovery of the said contraband substance from
the accused/appellant to be genuine.

28. From the above evidence it is crystal clear that both the witnesses of fact i.e. PW 1
and PW 5 have failed to specify as to whose seal was affixed on the spot at the time of
recovery of contraband substance from the accused/appellant. Further both the
witnesses have admitted that the said sample seal which was used in sealing the
sample of the contraband substance as well as the residue was not on record/file. In
view of this when the said property was produced before court during examination of
PW 1 and PW 5, how could it be identified by them to be the same property which
according to them was recovered on the place of occurrence. Even during the
presentation of case property before court, it was not disclosed as to whose seal was
used at the spot, which was tallied when the said case property was presented before
court for identification by the PW 1 and PW 5. It is further evident that in the
Malkhana register, the PW 4 has admitted that no entry was made of sample of
contraband substance recovered as well as that of sample seal. The Malkhana register
(Exhibit Ka 13) has entry of 1 KG 240 grams charas related to this case, while
recovery of the total contraband substance is reported to be 2 kilograms and the
sample taken out of it was only 50 gram, which does not match with the quantity
which is reported to have been entered in the Malkhana register. Moreover the said
Malkhana register does not bear signature of any officer, hence it cannot be held to be
maintained in accordance with rules. The lacunae disclosed above go to the root of
recovery of the contraband substance - charas - which appears to be not proved
beyond pale of certainty. Also it could not be said with certainty that the sample of
the same contraband substance which is alleged to have been recovered from the
accused/appellant on the place of occurrence was sent to the Forensic Science Lab. It
is also doubtful as to where the said sample as well as the sample seal were kept as no
entry of these articles is being found in the Malkhana register and whatever entries

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 11

 Chinku Gupta vs State Of U.P. on 24 August, 2018

are found is not matching with the remaining quantity of the contraband substance
which should have been deposited after excluding 50 grams of charas collected as
sample.

29. It may also be pointed out that the necessary guidelines provided in Standing
Order 1/89 which have been cited above for collecting sample of the contraband
substance as well as for making recovery of the contraband substance have also not
been followed, which were supposed to be followed as per the law laid down by
Hon'ble Supreme Court in Noor Aga's (supra). All this makes the recovery of the
contraband substance from the accused suspicious. It may also be mentioned here
that the burden may be shifted upon the accused under sections 35 read with Section
54 of NDPS Act that the said recovery was not made from the accused - appellant
only when the prosecution was able to prove the recovery of the said contraband
substance beyond reasonable doubt. Therefore in this case no such burden is possible
to be shifted upon the accused - appellant, as prosecution has failed to establish
recovery of two KG charas from the accused beyond reasonable doubt.

30. Next, it may also be mentioned here that the sample was taken only from one
bundle which contained two pieces of charas and not from the pieces of charas which
were kept in other three bundles, which would not make the sample to be
representative sample of the contraband substance allegedly recovered from the
accused/appellant as has been laid down in the above-mentioned Standing Order
1/89, therefore even if it be taken to be true that the sample sent to the FSL was
found to be charas, it could not be ascertained as to what quantity of charas would be
alleged to have been recovered from him, because the said sample was taken from
only one bundle, which was not weighed separately.

31. Further it may be mentioned that, the evidence which has been considered above,
would clearly show that no compliance has been made in letter and spirit of Section
57 of the NDPS Act, which provides that as soon as recovery is made of the
contraband substance from the accused, a written information is required to be
immediately communicated to the higher authorities. In the case on hand, the
witnesses of fact have stated that the said information was communicated to the
higher authorities only by RT set which would not be in accordance with law. It may
be mentioned that these precautions have been taken by the legislature keeping in
view the huge/harsh punishment provided for recovery of commercial quantity of
contraband substance from an accused. The principle of law is that higher the
punishment, more meticulous the compliance of the provisions is required. In the
case on hand, this court finds that the prosecution has not been able to prove
recovery of contraband substance from the accused beyond reasonable doubt, in such
circumstances the compliance of Section 57 of the NDPS Act was all the more
necessary to prove genuineness of the recovery. The link evidence is very weak to
establish that such recovery was made from the accused.

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 12

 Chinku Gupta vs State Of U.P. on 24 August, 2018

32. The next argument made is that no independent witness was sought to be taken
to prove the recovery. In this regard it is established position of law that the
deposition of police witnesses is not to be disbelieved only because they are police
witnesses, provided their testimony is credible if tested on the touchstone of cross
examination meticulously. But, it would always be advisable for the prosecution to
make an effort to take the public witness if available. In the case at hand, it has come
on record in the testimony of eye-witnesses that there were public witnesses but none
of them was ready to be a witness of the said recovery. In such situation, it was
advisable that the raiding party ought to have noted down the names of the persons
who were requested to be witness of recovery but declined, but no such name is
found to have been recorded by the raiding party; the deposition to the effect that
none of them would disclose his name does not appear to be believable, which would
go against the prosecution case.

33. This court finds that the learned trial court has not made a proper appreciation of
evidence and despite there being gaping flaws, he has gone on to convict the accused
appellant under the afore-mentioned Section. The impugned judgment and order
needs to be set aside and is accordingly set aside.

34. Appeal is allowed, the judgment and order dated 05/04/2016 passed in Special
Sessions Trial No. 20 of 2014, State vs Chinku Gupta is set aside. The accused is
acquitted of offence under sections 8/20 of NDPS Act. Accused- appellant is in jail .
He shall be released in this case forthwith if not detained in any other case. The case
property shall be destroyed in accordance with rules after period of appeal is over.

35. Let a copy of this judgment be transmitted to the court concerned forthwith by
office for necessary compliance.

36. The learned Amicus Curiae Shri Harish Chandra Tiwari shall be paid Rs.
10,000/- for assisting this court ably in deciding this appeal.

Date: 24.8.2018

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 13

 Chinku Gupta vs State Of U.P. on 24 August, 2018

Indian Kanoon - http://indiankanoon.org/doc/109282614/ 14