# Ashok (In Jail) v. State of U.P

- **Citation:** (2019) 1 ILRA 341
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-20
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-in-jail-v-state-of-u-p-44462
- **Pages:** 14

## Headnote

Section
2
Sub-section
(VIIa)
"Commecrial Quantity",- the quantity in
the head of small quantity upto 5 gm.
and commercial quantity above 250 gms.
for "Heroin". (Para 7)

B. Sudden occurrence of recovery of
huge quantity of Smack (Heroin) from
convict-appellant. Hence, no question of
compliance of Section 42 or 43 of the
Act, power of seizure and arrest in public
places, arises. (Para 10)

C. Non-compliance of Section 50 of
N.D.P.S. Act. Section 50 is not applicable
nor attracted where no search of a
person is involved. Search and recovery
from a bag, brief case, container, etc.,
does not come within the ambit of
Section 50 of the N.D.P.S. Act.(Para 11 &
11(2))

Criminal Appeal dismissed.
Chronological list of Cases Cited: -

## Text

_Characters 0–39,830 of 47,660. This is a partial read: ask again with offset=39830 for what follows._

1 All. Ashok Vs. Stae of U.P.
341

31. Let a copy of this judgment
along with lower court's record be sent
back to the court concerned for immediate
compliance.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.08.2019

BEFORE
THE HON'BLE RAM KRISHNA GAUTAM, J.

CRIMINAL APPEAL No. 1000 OF 2012

Ashok ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Sunil Kumar Pathak, Sri Abhishek Mayank,
Sri Ashish Upadhyay, Sri R.P. Dwivedi, Sri S.A.
Ansari, Sri Sanjay Sharma, Sri Sanjay
Sitanshu.

Counsel for the Opposite Party:
A.G.A.

A.
Section
2
Sub-section
(VIIa)
"Commecrial Quantity",- the quantity in
the head of small quantity upto 5 gm.
and commercial quantity above 250 gms.
for "Heroin". (Para 7)

B. Sudden occurrence of recovery of
huge quantity of Smack (Heroin) from
convict-appellant. Hence, no question of
compliance of Section 42 or 43 of the
Act, power of seizure and arrest in public
places, arises. (Para 10)

C. Non-compliance of Section 50 of
N.D.P.S. Act. Section 50 is not applicable
nor attracted where no search of a
person is involved. Search and recovery
from a bag, brief case, container, etc.,
does not come within the ambit of
Section 50 of the N.D.P.S. Act.(Para 11 &
11(2))

Criminal Appeal dismissed.
Chronological list of Cases Cited: -
1. Ajmer Singh Vs. State of Haryana (2010) 3
Supreme Court Cases 746 in Para 14,

2. Jarnail Singh Vs. State of Punjab (2011) 3
Supreme Court Cases 521 in Para 11 and 12,

3. Ajmer Singh Vs. State of Haryana (2010) 3
Supreme Court Cases 746 in Para Nos. 19 to
21 (E-2)
(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This appeal, under Section 374(2)
of
Code
of
Criminal
Procedure
(hereinafter referred to as 'Cr.P.C.'), has
been filed by Ashok, convict appellant,
against the judgment of conviction and
sentence made therein, dated 17.2.2012,
passed by Court of Additional Sessions
Judge, Court No. 5/Special Judge, Agra,
in Special Sessions Trial No. 62 of 2005,
arising out of Case Crime No. 401 of
2004, State Vs. Ashok, under Section 21
of N.D.P.S. Act (hereinafter referred to as
'Act'), Police Station Jagdishpura, District
Agra, wherein convict-appellant Ashok
Kumarhas been convicted for offence
punishable under Section 21 of Act and
has
been
sentenced
with
rigorous
imprisonment of ten years and fine of Rs.
1 lac and in default two years additional
rigorous imprisonment with a direction
for adjustment of previous incarceration
in this very case crime number, with this
contention that trial Court failed to
appreciate facts and law placed before it.
Police arrested convict appellant from his
house on 5.11.2004, for which instant
telegram, complaining fact of arrest from
home, to higher authorities, was sent by
his wife and mother on 5-6.11.2004.
Thereafter, police challened appellant on
7.11.2004 with accusation of recovery of
800 gms. of 'Heroin' from his possession
whereas no such recovery was there nor
prosecution could prove its case beyond
342 INDIAN LAW REPORTS ALLAHABAD SERIES
doubt. But trial Court failed to appreciate
facts and law, thereby, passed impugned
judgment of conviction for offence
punishable under Section 21 of Act. A
sentence, as above, was passed, which
was excessive and deterrent. There was
no compliance of provision of Section 42
of the Act. The alleged place of recovery
was from busy place, with a lot of rush in
that area but no public witness was taken
in alleged recovery memo or First
Information Report. No compliance of
Section 50 of Act was made. Hence, this
appeal, with prayer for setting aside the
impugned judgment and sentence, made
in it.

2. From the very perusal of
impugned judgment and record of trial
Court, it is apparent that First Information
Report (Ex.Ka-2) was got lodged at
Police Station Jagdishpura for offence
punishable under Section 8/22 of Act,
against Ashok KumarSingh son of Om
Prakash Thakur, resident of 27/166 Teela
Gokulpura, P.S. Lohamandi, District
Agra, the then residing at House No. 271,
Puspanjali Colony, Dayal Bagh, P.S. New
Agra, District Agra. On 7.11.2004 at
17:00 P.M., on the basis of recovery
memo (Ex. Ka-6), prepared by Station
Officer Manoj Kumar Mishra, Police
Station Jagdishpura, District Agra, having
mention that on 7.11.2004, S.O. Manoj
Kumar Mishra, along with his police
team, including Sub-Inspector Pratap
Singh,
Sub-Inspector
Bhavar
Singh,
Constable
Devendra
Kumar
and
Constable Arvind Kumar, by Government
jeep registration No. U.P.83 G-0007, with
official driver Durga Prashad, vide G.D.
Entry No. 30 at 12:10 P.M., was present
in area of Bodla Avas Vikas Colony,
Pratap Nagar and when team proceeded
towards Awadhpuri road, one person who
was under suspicious circumstances, ran
towards back side. He was chased and
was apprehended at 14:30 P.M. in the
area of Mohalla Shanti Nagar. Upon
query, he was Ashok Kumar Singh son of
Om Prakash Thakur, resident as above
and he confessed to be with possession of
smack, for which he tried to run from
spot. He was told for summoning some
Gazetted Officer or Magistrate for his
search but he refused and agreed to be
searched by this team itself. Member of
police team took their personal search and
ensured that nothing incriminating is with
any of them. Thenafter, personal search of
Ashok Kumarwas conducted, in which a
plastic
bag
having
print
"Novelty
Matching Center" over it was recovered
from his right hand, which was with two
packets, wrapped in a newspaper and kept
in a polythene, of smack with five small
packets of same, wrapped in paper. This
was with smell of 'Smack'. The two
packets were also with smell of smack.
Balance and weight, for weighing the
same, were tried to be obtained from
nearby. But as there were no shops
nearby, hence, could not be available.
Hence, it was weighed by keeping it over
hand and was perceived to be of about
750 gms. In those five small packets
about 50 gms. Upon query, accused
confessed for sale of those smack in small
packets, in which small packets were of
pure smack and big two packets were
with lesser concentration of smack, which
was being sold to people. The recovered
smack was kept in same wrapper and
polythene. Thenafter wrapped in a clothe,
stitched and sealed on spot; a specimen
seal was prepared. Offence, punishable
under Section 8/22 of N.D.P.S. Act was
made, hence, he was taken in custody.
Recovery memo was got scribed by SubInspector Pratap Singh, under dictation of
1 All. Ashok Vs. Stae of U.P.
343
this informant. All members of team put their
signature over it and accused, along with
recovered articles and recovery memo, with
specimen seal, was brought at police station.
Where this case crime number was got
registered. Investigation resulted submission
of charge-sheet for offence punishable under
Section 8/21 of N.D.P.S. Act. Court of
Special Judge N.D.P.S. Act, after hearing
learned public prosecutor and learned
counsel for defence, vide order dated
15.9.2006, levelled charge against Ashok
Kumarfor offence punishable under Section
8/21 of N.D.P.S. Act, for alleged recovery of
800 gms. of smack (heroin) at 14:30 P.M. Of
7.11.2004 from Mohalla Shanti Nagar within
the area of Police Station Jagdishpura,
District Agra. Charge was read over and
explained to accused. Who pleaded not
guilty and claimed for trial.

3. Prosecution examined PW-1
Constable-clerk
Pratap
Singh,
PW-2
Constable Brijesh Kumar, PW-3 SubInspector Manoj Kumar Mishra, PW-4
Constable Pratap Singh Rana, PW-5
Chauthiram Yadav, PW-6 Sub-Inspector
Chandra Bhushan.

4. For having explanation, if any, of
accused Ashok Kumarfor incriminating
evidence
led
by
prosecution,
his
statement, under Section 313 of Cr.P.C.,
was got recorded by Trial Judge. Accused
answered alleged recovery to be wrong.
Testimony of PW-2, not under his
knowledge
but
being
false.
Entire
evidence led by prosecution and the
alleged occurrence of recovery, including
investigation as well as submission of
charge-sheet, was on incorrect fact. It was
an accusation because of animosity.

5. In defence, DW-1 Desh Raj, DW2 Kamod Singh, DW-3 Ram Singh and
DW-4 Sushila @ Shashi were examined.
Learned
trial
Judge,
after
hearing
argument of learned public prosecutor as
well as learned counsel for defence,
passed impugned judgment of conviction
for offence as above and after hearing,
passed impugned sentence, written as
above, against which this appeal.

6. Learned counsel for the appellate
vehemently argued that convict appellant
was in jail for about seven years, against
award of sentence of ten years, whereas
the weight of the recovered 'Smack' was
not on the basis of balance weight rather it
was on the basis of weighing and
presuming after keeping over hand. It was
not sure as to whether it was a
commercial quantity or a quantity said to
be in between small and commercial
quantity. The weight of 800 gms.
including wrapper and polythene weight
was held to be 800 gms. in report of
Forensic Science Laboratory. But it is not
proved by prosecution as to whether
entire material was sent for chemical
analysis or a part thereof was sent for its
analysis. Hence, the first argument is for
assailing judgment of conviction and the
second is regarding quantum of sentence.
Court may reduce quantum of sentence to
period undergone which is about seven
years.

7.

The
Narcotic
Drugs
and
Psychotropic Substances Act, 1985, Act
No. 61 of 1985, with preamble, is an Act
to consolidate and amend the law relating
to narcotic drugs, to make stringent
provisions for the control and regulation
of operations, relating to Narcotic Drugs
and Psychotropic Substances, to provide
for the forfeiture of the property derived
from, or used in, illicit traffic in Narcotic
Drugs and Psychotropic Substances, to
344 INDIAN LAW REPORTS ALLAHABAD SERIES
implement
the
provisions
of
the
International Convenction on Narcotic
Drugs and Psychotropic Substances and
for matters connected therewith. This
Central
Legislation
was
made
in
operational from 16th September, 1985.
Though, vide amendment inserted by Act
No. 9 of 2001, with effect from 2.10.2001,
Section 2 Sub-section (VIIa) "Commecrial
Quantity", in relation to narcotic drugs and
psychotropic substances was added in
defination clause, which means, any
quantity greater than the quantity specified
by the Central Government by notification
in the official Gazette. It was made by
Ministry of Finance "Department of
Revenue"
vide
Notification
No.
S.O.1055(E) dated 9.10.2001, published in
Gazette of India (extraordinary) Part II,
Section (II) dated 19.10.2001 at pages 15
to 32, which provides the quantity in the
head of small quantity upto 5 gm. and
commercial quantity above 250 gms. for
"Heroin" (Diacetylmorphine) (commonly
known as smack). Meaning thereby, the
samll quantity is upto 5 gms. and
commerical quantity is above 250 gms. of
Heroin. "In between", is a quantity,
contravention of each of these three
categories shall be punishable. In between,
Section 21 has been amended vide
substituion by Act No. 9 of 2001, with
effect from 2.10.2001 for punishment of
contravention in relation to manufactured
drug and preparation - Whoever, in
contravention of any provision of this Act
or any rule or order made or condition of
licence granted thereunder, manufactures,
possesses, sells, purchases, transports,
imports inter- State, exports inter- State or
uses any manufactured drug or any
preparation containing any manufactured
drug shall be punishable -

(a) where the contravention
involves small quantity, with rigorous
imprisonment for a term which may
extend to six months, or with fine which
may extend to ten thousand rupees, or
with both;

(b) where the contravention
involves quantity lesser than commercial
quantity but greater than small quantity,
with rigorous imprisonment for a term
which may extend to ten years, and with
fine which may extend to one lakh rupees;

(c) where the contravention
involves
commercial
quantity,
with
rigorous imprisonment for a term which
shall not be less than ten years but which
may extend to twenty years, and shall also
be liable to fine which shall not be less
than one lakh rupees but which may
extend to two lakh rupees: Provided that
the court may, for reasons to be recorded
in the judgment, impose a fine exceeding
two lakh rupees.

8. Meaning thereby, Court is with no
option to give smaller sentence than given
in the Act by Legislation. For a
commercial
quantity,
the
minimum
sentences has been give to be not less than
ten years but it may extend upto 20 years,
with a fine, which shall not be less than 1
lac rupees, but, which may extend to 2 lac
rupees and Court, by giving a reasoned
judgment, may, for reasons, to be
recorded, impose a fine exceeding 2 lac
rupees. As in the present case the
recovery is of 800 gms. of Heroin
(Smack) which is about more than three
times of limit which brings in commercial
quantity, and for this there is mandatory
punishment not less than ten years, with
fine not less than 1 lac, and the same has
been awarded by trial Judge, hence, under
the legislation as has been enacted by
legislation, any bargain, as has been
argued by learned counsel for the convict
appellant, cannot be accepted by the
1 All. Ashok Vs. Stae of U.P.
345
Court. Hence, the argument advanced by
learned counsel for period undergone i.e.
seven years already suffered by convict
appellant to be treated as the punishment,
for offence of having Heroin, much more
than
heavy
amount
of
commercial
quantity, is not permissible under law and
this is the lowest permissible sentence
awarded by trial Court. Hence, this
argument of reducing sentence is not
tenable.

9. Regarding non compliance of
Section 42 of Act, as vehemently argued
by learned counsel for the appellant, it is
to
be
mentioned
that
Section
42
substituted by Act No. 9 of 2001, with
effect from 2.10.2001, provides power of
entry or authorization -

(1) Any such officer (being an
officer superior in rank to a peon, sepoy
or constable) of the departments of
central
excise,
narcotics,
customs,
revenue
intelligence
or
any
other
department of the Central Government
including para- military or armed forces
as is empowered in this behalf by general
or
special
order
by
the
Central
Government, or any such officer (being
an officer superior in rank to a peon,
sepoy or constable) of the revenue, drugs
control, excise, police or any other
department of a State Government as is
empowered in this behalf by general
knowledge or information given by any
person and taken down in writing that any
narcotic drug, or psychotropic substance,
or controlled substance in respect of
which an offence punishable under this
Act has been committed or any document
or other article which may furnish
evidence of the commission of such
offence or any illegally acquired property
or any document or other article which
may furnish evidence of holding any
illegally acquired property which is liable
for seizure or freezing or forfeiture under
Chapter VA of this Act is kept or
concealed in any building, conveyance or
enclosed place, may between sunrise and
subset,-

(a) enter into and search any
such building, conveyance or place;

(b) in case of resistance, break
open any door and remove any obstacle
to such entry;

(c) seize such drug or substance
and all materials used in the manufacture
thereof and any other article and any
animal or conveyance which he has
reason to believe to be liable to
confiscation under this Act and any
document or other article which he has
reason to believe may furnish evidence of
the commission of any offence punishable
under this Act or furnish evidence of
holding any illegally acquired property
which is liable for seizure or freezing or
forfeiture under Chapter VA of this Act;
and

(d) detail and search, and, if he
thinks proper, arrest any person whom he
has reason to believe to have committed
any offence punishable under this Act.

10. Meaning thereby, this provision
is Power of entry, search, seizure and
arrest without warrant or authorization, in
case of any information, previously
obtained
regarding
commission
of
offence, punishable under this Act for
fulfilling ingredients, written as above.
Whereas in the present case, it was not a
case of previous information or receiving
of information, given by someone, prior
to such arrest. Rather, it was a case in
which police team, led by Station Officer
Manoj Kumar Mishra, while being in
346 INDIAN LAW REPORTS ALLAHABAD SERIES
routine surveillance duty in its area of
P.S. Jagdishpura, found one person who
displayed his hesitation, on seeing police
party, PW-1 and his team became
suspicious. On seeing police personnel,
appellant tried to ran away from the scene
- it was not a case where prosecution
claimed that appellant was apprehended
on the basis of any earlier information
having been given by any secret informer
- it was also not a case of trap, rather it
was a sudden occurrence of recovery of
huge quantity of Smack (Heroin) from
convict-appellant. Hence, no question of
compliance of Section 42 or 43 of the
Act, power of seizure and arrest in public
places, arises.

11. Non compliance of Section 50 of
Act has been vehemently argued by
learned counsel for appellant. In order to
appreciate the contention raised by
learned
counsel
appearing
for
the
appellant with regard to non compliance
of Section 50 of the Act, it is necessary to
notice Section 50 of the Act. It reads as
under:

50. Conditions under which
search of persons shall be conducted:

(1) When any officer duly
authorized under section 42 is about to
search any person under the provisions of
section 41, section 42 or section 43 of the
Act, he shall, if such person so requires,
take such person without unnecessary
delay to the nearest Gazetted Officer of
any of the departments mentioned in
section 42 or to the nearest Magistrate.

(2) If such requisition is made,
the officer may detain the person until he
can bring him before the Gazetted Officer
or the Magistrate referred to in subsection (1).

(3) The Gazetted Officer or the
Magistrate before whom any such person
is brought shall, if he sees no reasonable
ground for search, forthwith discharge
the person but otherwise shall direct that
search be made.

(4) No female shall be searched
by anyone excepting a female.

11 (1). Apex Court in Ajmer Singh
Vs. State of Haryana (2010) 3 Supreme
Court Cases 746 in Para 14 has
propounded as below:

"The object, purpose and scope
of Section 50 of the Act was the subject
matter of discussion in number of
decisions of this Court. The Constitution
Bench of five Judges of this Court in the
case of State of Punjab v. Baldev Singh,
[(1999) 6 SCC 172], after exhaustive
consideration of the decision of this court
in the case of Ali Mustaffa Abdul Rahman
Moosa vs. State of Kerala, [(1994) 6 SCC
569] and Pooran Mal vs. Director of
Inspection (Investigation), New Delhi
&Ors., [(1974) 1 SCC 345], have
concluded in para 57 :

(I) When search and seizure is
to be conducted under the provision of the
Act, it is imperative for him to inform the
person concerned of his right of being
taken to the nearest gazetted officer or the
nearest Magistrate for making search.

(II) Failure to inform the
accused of such right would cause
prejudice to an accused.

(III) That a search made by an
empowered officer, on prior information,
without informing the accused of such a
right may not vitiate trial, but would
render the recovery of the illicit article
suspect and vitiate the conviction and
sentence of an accused, where the
conviction
is
solely
based
on
the
1 All. Ashok Vs. Stae of U.P.
347
possession of the illicit article, recovered
from his person, during such search.

(IV) The investigation agency
must follow the procedure as envisaged
by the statute scrupulously and failure to
do so would lead to unfair trial contrary
to the concept of justice.

(V) That the question as to
whether the safeguards provided in
Section 50 of the Act have been duly
observed would have to be determined by
the court on the basis of the evidence at
the
trial
and
without
giving
an
opportunity to the prosecution to establish
the compliance of Section 50 of the Act
would not be permissible as it would cut
short a criminal trial.

(VI) That the non compliance of
the procedure i.e. informing the accused
of the right under sub-Section (1) of
Section 50 may render the recovery of
contraband suspect and conviction and
sentence
of
an
accused
bad
and
unsustainable in law.

(VII) The illicit article seized
from the person of an accused during
search conducted without complying the
procedure under Section 50, cannot be
relied upon as evidence for proving the
unlawful possession of the contraband.

11(2). Learned counsel for the
appellant contended that the provision of
Section 50 of the Act would also apply,
while searching the bag, briefcase, etc.,
carried by the person and its non
compliance
could
be
fatal
to
the
proceeding initiated under the Act. Apex
Court in Ajmer Singh (supra) has held
"We find no merit in the contention of the
learned counsel. It requires to be noticed
that the question of compliance or noncompliance of Section 50 of the N.D.P.S.
Act is relevant only in a situation where
search of a person is involved and the said
Section is not applicable nor attracted
where no search of a person is involved.
Search and recovery from a bag, brief
case, container, etc., does not come within
the ambit of Section 50 of the N.D.P.S.
Act, because firstly, Section 50 expressly
speaks
of
search
of
person
only.
Secondly, this Section speaks of taking of
the person to be searched by the Gazetted
Officer or Magistrate for the purpose of
search. Thirdly, this issue, in our
considered opinion, is no more res-integra
in view of the observations made by this
court in the case of Madan Lal vs. State of
Himachal Pradesh, 2003 7 SCC 465. The
Court has observed; as follows:

16. "A bare reading of Section 50
shows that it only applies in case of personal
search of a person. It does not extend to
search of a vehicle or a container or a bag or
premises (See Kalema Tumba vs. State of
Maharashtra and Anr.(1999) 8 SCC257, State
of Punjab vs. Baldev Singh(1999) 6 SCC 172
and Gurbax Singh vs. State of Haryana
(2001) 3 SCC 28. The language of section is
implicitly clear that the search has to be in
relation to a person as contrast to search of
premises, vehicles, or articles. This position
was settled beyond doubt by the Constitution
Bench in Baldev Singh's case (supra). Above
being the position, the contention regarding
non-compliance of Section 50 of the Act is
also without any substance."

11(3). In the present case, the
recovery is from a plastic bag having
printed "Novelty Matching Centre" over it
and it was being carried in the right hand
of the convict-appellant. There was no
recovery from his personal search, rather
it was recovery from a container which
was being carried by convict-appellant,
for which there was no requirement for
application of Section 50 of the Act. But
348 INDIAN LAW REPORTS ALLAHABAD SERIES
as personal search too was taken, as was
written in Ex. Ka-1 Recovery Memo. Hence,
on the basis of judgment of Apex Court
given in State of Rajasthan Vs. Parmanand &
another AIR 2014 SC 1384, the observance
of Section 50 of Act was to be taken into
consideration. In the present case, it has
specifically been written in First Information
Report Ex. Ka-2, got lodged on the basis of
recovery memo Ex. Ka-6 that "idMs+ x;s O;fDr
dk uke irk iwNrs gq;s Hkkxus dk dkj.k iwNk x;k rks
viuk uke v'kksd ,l@vks Jh vkse izdk'k Bkdqj
vkj@vks e0ua0 27@166 Vksyk xksdqy iqjk] Fkkuk
yksgkeaMh vkxjk gky irk e0au0 21 iq"ikUtyh dkyksuh
n;kyckx Fkkuk U;w vkxjk] vkxjk crk;k rFkk Hkkxus dk
dkj.k vius ikl LeSd gksuk crk;kA vfHk0 ds ikl LeSd
dh tkudkjh gksus ij v'kksd ls dgk x;k fd tkek
ryk'kh gsrq fdlh jktif=r vf/kdkjh ;k eftLVasV dks
cqyok;k tk;s rks ekaQh ekaxrs gq, cksyk fd fdlh dks
cqyokus dh vko';drk ugha gSA ugha ge dgha ryk'kh ds
fy;s tk;asxas vki yksxksa us tc gesa jaxs gkFk idM+ fy;k
gS rks vki ij gesa iwjk Hkjkslk gSA vki gh tkek ryk'kh
ys yksA""When cause for this running and
hesitation from police was asked, Ashok
Kumarson of Om Prakash Thakur, resident
of Houe No. 27/166 Teela Gokulpur, P.S.
Lohamandi, Agra, presently residing at
House No. 21, Puspanjali Colony, Dayal
Bagh, P.S. New Agra, Agra, shown sign of
fear as he was having Smack with him, for
which he was running, after this knowledge
of having Smack, he was asked for getting
his personal search made before the Gazetted
Officer or Magistrate summoned for, he
requested excuse and mentioned that there is
no need for summoning any other nor he will
go anywhere else for his personal search as
you have apprehended red handed, there is
full faith upon you. You yourself take
personal search.... (English translation by this
Court itself).

11(4). The same is contention in
testimony of PW-3, Sub-Inspector Manoj
Kumar Mishra, and PW-4 Sub-Inspector
Pratap Singh Rana. PW-3 Sub-Inspector
Manoj Kumar Mishra, in his testimony, has
categorically said in Examination-in-Chief
^^Hkkxus dk dkj.k iwNus ij v'kksd us crk;k tks vkt
gkftj vnkyr gSA Hkkxus dk dkj.k iwNus ij v'kksd us
crk;k fd mlds ikl LeSd gS blfy, og ge ge yksxksa
dk ns[kdj Hkkxk FkkA bl ij geus vfHk0 v'kksd ls dgk
fd vc vkidh ryk'kh fdlh jktif=r vf/kdkjh o
eftLVasV ds le{k djk;h tk;sxh rks v'kksd us gels dgk
Fkk fd tc vkius gedks idM+ gh fy;k gS rks gesa vc
vkids Åij iwjk fo'okl gS vkSj gesa fdlh ds le{k
ryk'kh ds fy, ugha tkukA vki gh gekjh ryk'kh ys
yhft,A" "when cause for running after seeing
police
team,
was
questioned,
Ashok
Kumaranswered that he is with Smack that is
why he hesitated and ran away from police.
Upon this, we asked Ashok Kumarfor his
personal search in presence of some Gazetted
Officer or Magistrate, but he refused with this
saying that he has been apprehended by Police
team, upon whom he has full faith. He will
not go to someone else for his personal search
and this Police team, itself may take personal
search... (English translation by this Court
itself). No cross-question upon this testimony
is there in Examination-in-Cross, made by
learned counsel for defence and this statement
of Examination-in-Chief is unrebutted in
cross-examination. The same is situation in
regard to testimony of PW-4 Sub-Inspector
Pratap Singh Rana. This is very well there in
the testimony of Investigating Officer PW-5
Sub-Inspector Chauthiram, in his crossexamination. This was put in question Nos. 3,
4 and 5, recorded under Section 313 of
Cr.P.C., and except a wrong sequence of
occurrence
no
statement
about
noncompliance of Section 50 or not giving that
option or telling about this right, was said by
accused. Hence, in over all appreciation, it is
apparent that provision of Section 50 was
fully complied with.

12. The next argument was
regarding absence of any independent
public witness. Apex Court in Jarnail
Singh Vs. State of Punjab (2011) 3
1 All. Ashok Vs. Stae of U.P.
349
Supreme Court Cases 521 in Para 11
and 12 has propounded that none of
independent witnesses in circumstances
when they are not available or not agree
to be witnesses, is not fatal to the
prosecution. In above case, the fact
involved was that police personal had
noticed odd behaviour of appellant Jarnail
Singh, when he was walking towards
them on a path which led to the village - it
was display of hesitation by appellant, on
seeing police party, that police officer
became suspicious - on seeing police
personal, appellant tried to run away from
the scene - it was not a case where
prosecution claimed that appellant was
apprehended on the basis of any earlier
information having been given by any
secret informer - it was also not a case of
trap and Court held that in such
circumstances it would not be possible to
held that appellant was falsely implicated.

13. In the present case, prosecution
has offered a plausible explanation with
regard to non joining of independent
witnesses, It was clearly stated by PW-3
and 4 that the place, from where,
appellant was apprehended was with
public, going through above path, in fact,
efforts were made to bring independent
public witness, but this reluctance, on the
part of the persons, was neither strange
nor
unbelievable.
Generally,
people
belonging to the same locality could not
unnecessarily
want
to
create
bad
relation/enmity
with
any
other
coresident. Especially, would feel insecurity
from such person, having been accused of
committing a crime.

14. Apex Court in Ajmer Singh Vs.
State of Haryana (2010) 3 Supreme
Court Cases 746 in Para Nos. 19 to 21
has held that when there is sufficient
testimony of prosecution witnesses on
record that efforts were made by the
Investigating Party to include independent
witnesses at the time of recovery but none
was willing and it is true that charge
under N.D.P.S. Act is serious and carries
onrush circumstances. The minimum
sentence prescribed under the Act is
imprisonment of ten years and a fine. In
this situation, it is normally expected that
there should be independent evidence to
support the case of prosecution. However,
it is not an unavoidable rule. Therefore, in
the peculiar circumstances of the case, it
may not be fatal to prosecution. Court in
Para No. 20 has said "We cannot forget
that it may not be possible to find
independent witness at all places, at all
times. The obligation to take public
witnesses is not absolute. If after making
efforts which the court considered in the
circumstances of the case reasonable, the
police officer is not able to get public
witnesses to associate with the raid or
arrest of the culprit, the arrest and the
recovery, made, would not be necessarily
vitiated. The court will have to appreciate
the relevant evidence and will have to
determine whether the evidence of the
police officer was believable, after taking
due care and caution, in evaluating their
evidence." In the present case, PW-3 and
PW-4 both witnesses of fact have said in
their testimony that in spite of best efforts
for taking independent public witnesses,
none agreed to accompanying them. Then
after members of police team took the
search of each other for ensuring that
nothing incriminating was with any of
them and after that too the contraband
was recovered from a bag being carried
by convict appellant. There was no
recovery from personal search of convictappellant and for this there is sufficient
testimony
of
prosecution
witnesses.
350 INDIAN LAW REPORTS ALLAHABAD SERIES
Hence, argument on this score is also of
no avail.

15. Learned counsel for the
appellant vehemently argued that there
was no weighing machine nor it was
weighed and only on the basis of
perception, the weight was fixed, 750
gms. for two packets; of Smack and 50
gms. for remaining five small packets in
all 800 gms. Certainly at the first score,
this appears to be with force. But the
police team did not write that a balance
was managed and recovered contraband
was weighed over it, rather what was
there was written as such and this entire
contraband was sealed with preparation of
specimen seal on spot and this was fully
intact till its analysis by chemical
examination
at
Forensic
Science
Laboratory, where it was held to be of
weight of 800 gms. in all and the same
was found to be "Smack (Heroin)".

16. Ex. Ka-6, report of Forensic
Science Laboratory, Agra, duly tendered
and admissible in evidence is with this
mention that a content, wrapped in a
cloth, and sealed as per specimen seal of
monogram of U.P.P., having a polythene
with its content, i.e. five small packets in
a newspaper piece marked with 1 to 5 in a
polythene packet each one of about 10
gm., and two packets of suspected Smack
in two polythene packet, kept in a
newspaper piece marked as 6 and 7, were
received on 2.12.2004 and the same was
as
per
description,
mentioned
in
transmitting letter, the same were of that
weight and in chemical analysis those
suspected Smack were established to be
Heroin. Meaning thereby, the contents
transmitted
to
Forensic
Science
Laboratory, in intact sealed position, with
specimen seal, was found to be as per
specimen
seal,
and
with
above
description. In chemical analysis, these
contraband were found to be "Heroin".
This documentary evidence has been put
in question to accused, under Section 313
Cr.P.C., as question No. 6, in which the
question regarding proved documentary
evidence Ex.Ka-8, report of Forensic
Science Laboratory, Agra, was asked, but
no answer regarding this report is there.
Rather in answer to question No.6 the
reply is "आआआआ आआआआ आआआ आआ"
Charge-sheet is wrong" i.e. charge-sheet
Ex.Ka-9 has been disputed to be wrong
but Ex.Ka-8, Forensic Science Laboratory
Report, has neither been disputed nor any
answer to question was given.

17. Regarding intermediary link of
taking the entire contraband, recovered on
spot, to Forensic Science Laboratory for
its
examination,
prosecution
has
examined
PW-2
Constable
Brijesh
Kumar, who, in his Examination-in-Chief,
has said that while being posted as
constable on 2.12.2004 at Police Station
Jagdishpura, he vide G.D. Entry No. 30 at
about 12:05 P.M. took a sealed bundle,
with specimen seal, related with Case
Crime No. 401 of 2004 (STATE VS.
ASHOK) under Section 8/21, from
Malkhana of Police Station Jagdish Pura
and deposited it under intact sealed
position, along with specimen seal and
letter of transmission at Forensic Science
Laboratory, Agra. In between, it was
never permitted to be interfered by
anyone. This taking of bundle was entered
in G.D. Entry No. 30 of Police Station
Jagdishpura, under handwriting of Head
Constable Raj Bahadur Singh, who was
posted with this witness and whose
writing and signature is under full
acquaintance of this witness. The true
copy, duly certified, by this witness,
1 All. Ashok Vs. Stae of U.P.
351
under handwriting and signature, of above
original G.D. Entry, which was brought in
the Court at the time of recording of this
testimony, has been filed and exhibited as
Ex.Ka-4 and on the same day of
2.12.2004, vide G.D. Entry No. 50 at
about 17:15 P.M., this witness got entry
of return, after depositing contraband
under sealed intact position at Forensic
Science Laboratory, Agra, and this second
copy of deposit i.e. letter of transmission
was got deposited at Police Station
Jagdishpura and original G.D. Entry of
this deposit, in form of carbon copy,
prepared in one and common process,
under handwriting and signature of
Constable-clerk
Parshuram
has
been
before the witness at the time of recording
of his testimony. This witness was of full
acquaintance of handwriting and signature
of constable-clerk Parshuram, because of
being posted jointly at above police
station and this G.D. Entry has been
exhibited
as
Ex.
Ka-5.
In
crossexamination, a suggestive question has
been put by learned counsel for the
defence
that
this
contraband
was
permitted to be tampered and was not
deposited in laboratory under intact sealed
position. This question has been answered
in negative, with further assertion that the
above bundle of above case crime number
was taken from Malkhana Muharrir under
sealed intact position and this along with
form was deposited at Forensic Science
Laboratory under receipt of same over
duplicate copy and signature of receipt
copy was got obtained for it. No question
over this point has been asked by learned
counsel for defence that this witness was
not posted at above police station on
above date, time and place or Ex.Ka-4
and Ex.Ka-5 were not the original G.D.
Entry or this witness has not taken the
sealed
bundle
packed
along
with
specimen seal and requisite Form from
Malkhana of police station on above date,
time and place or had not deposited the
same at Forensic Science Laboratory,
Agra, or the weight of contraband was
tampered. Rather the same testimony of
Examination-in-Chief is uncontroverted
in Examination-in-Cross and from it this
has been fully proved that the recovered
article, wrapped in a cloth, sealed on spot,
with preparation of specimen seal, sent to
Forensic Science Laboratory for its
analysis, was deposited at police station
concerned, fromwhere vide Ex.Ka-4, it
was transmitted to Forensic Science
Laboratory for its examination and vide
Ex.Ka-5, the receipt of same was
deposited back by this witness at above
police
station.
Hence,
this
was
intermediary
link,
fully
proved
by
prosecution and in Ex.Ka-8, weight has
been established. Specimen seal and its
being
fully
intact
over
bundle
of
contraband with contraband being Heroin,
has been proved by Laboratory. Hence,
weight of 800 gms. in toto of Heroin, as
was perceived by PW-3, on spot, and was
written in recovery memo Ex.Ka-6, was
substantiated
by
Ex.Ka-8,
Forensic
Science Laboratory Report. Hence, this
non weighing on spot was of no adverse
effect over case of prosecution, rather, it
was fully proved by PW-3 and 4 that in
spite of best efforts, balance for weighing
contraband on spot, could not be
available. Hence, whatever was actual
situation, on spot, has been naturally
proved by this testimony.

18. PW-1 Constable Pratap Singh is
witness for registration of above case
crime number on above date, time and
place. This witness has said, on oath, in
his Examination-in-Chief, that, while
being posted as Constable-clerk at P.S.
352 INDIAN LAW REPORTS ALLAHABAD SERIES
Jagdishpura, on 7.11.2004, S.O. Manoj
Kumar Mishra, along with other police
personnel, did their entry at G.D. Entry
No. 30 at 12:10 P.M. for their movement
regarding routine duty and surveillance in
the area and the original G.D. prepared
for one and common process by pasting
carbon, with signature of S.O. Manoj
Kumar Mishra was present before this
witness at the time of recording of his
testimony. He being posted with S.O.
Manoj Kumar Mishra, at above police
station,
was
fully
aware
of
his
handwriting and siganture and the G.D.
Entry, duly certified to be true copy under
handwriting and signature of this witness,
has been proved and exhibited as Ex.Ka1. The return of this police team on the
same day at 17:00 P.M., along with one
sealed bundle of recovered 'Smack' with
specimen seal was entered in General
Diary Entry of police station concerned.
On the basis of recovery memo presented
by this police team chick F.I.R. and
thereby registration of this case crime
number vide entry No. 38 at 17:00 P.M.,
was prepared by this witness under his
handwriting and signature. This Chick
F.I.R. has been fully proved and exhibited
as Ex.Ka-2 and this General Diary Entry,
vide which, this case crime number was
lodged under handwriting and signature
of this witness, has been duly proved and
exhibited as Ex.Ka-3. Accused Ashok
Kumarwas put in lock up and contraband
bundle under sealed and intact position,
along with specimen seal, prepared on
spot, was deposited in Malkhana and this
remained intact with no chance on
interference till its taking to Laboratory.
Information of this registration of case
crime number was transmitted to senior
officers
by
R.T.
Set.
In
crossexamination,
no
question
regarding
Ex.Ka-1, Ex.Ka-2 and Ex.Ka-3 has been
put by learned counsel for defence.
Except suggestive question that this
registration was under influence of
Station Officer and this was a false
concoction.