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

- **Citation:** (2019) 1 ILRA 899
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-06
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashok-kumar-tiwari-in-jail-v-state-of-u-p-44497
- **Pages:** 5

## Headnote

Substance Act of 1985- Section 20(b) (ii)
(B)-
recovery
of
Charas-ConvictionChallenge to-Once Police Party had come
to know about possession of Contraband
(Charas)
which
Appellant
was
possessing,
it
was
incumbent
and
mandatory on the part of the police party
to have carried out inter se, search first
among its own members, but the police
party failed to observe it-therefore,
consequence of this omission would be
that the recovery cannot be accepted to
be genuine one but it can be said to have
been planted by the police-conviction
order set aside. (Paras 10 12 14 15 16)
Appeal allowed. (E-6)

## Text

1 All. Ashok Kumar Tiwari Vs. State of U.P.
899
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.08.2019

BEFORE
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No. 1613 OF 2007

Ashok Kumar Tiwari...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Meraj Ahmad Khan, Sri Akash Tomar
(A.C.)

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

A. The Narcotic Drugs and Psychotropic
Substance Act of 1985- Section 20(b) (ii)
(B)-
recovery
of
Charas-ConvictionChallenge to-Once Police Party had come
to know about possession of Contraband
(Charas)
which
Appellant
was
possessing,
it
was
incumbent
and
mandatory on the part of the police party
to have carried out inter se, search first
among its own members, but the police
party failed to observe it-therefore,
consequence of this omission would be
that the recovery cannot be accepted to
be genuine one but it can be said to have
been planted by the police-conviction
order set aside. (Paras 10 12 14 15 16)
Appeal allowed. (E-6)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard Sri Akash Tomar, learned
Amicus Curiae for the appellant, Sri Om
Narain Tripathi, learned A.G.A.-I assisted
by Sri Sanjay Kumar Rajbher and Sri
Jitendra Kumar, learned A.G.A.s, Sri
Ajay Kumar Singh and Sri Rajiv Kumar
Rai, learned brief holders for the State and
perused the material brought on record.

2. The present appellant - Ashok
Kumar Tiwari has preferred this criminal
appeal against the judgment and order of
conviction dated 21.2.2007 passed by the
Court of Additional Sessions Judge, Court
No.5, Kanpur Nagar in Sessions Trial No.
424 of 2005 (State vs. Ashok Kumar
Tiwari), arising out of Case Crime No.80
of 2005, under Section - 20 (b) (ii) (B) of
the N.D.P.S. Act, 1985 (hereinafter
referred to as 'Act, 1985'), Police Station -
Govind Nagar, District - Kanpur Nagar,
whereby the appellant has been convicted
and sentenced to rigorous imprisonment
for seven months coupled with fine Rs.
1,500/- (Rupees One Thousand Five
Hundred Only) with default stipulation to
undergo imprisonment for one month.

3. Facts relevant for adjudication of
this appeal, as reflected from record
appears to be that S.I. Sri Ashok Kumar
Pandey, the informant P.W.1 was on
patrolling duty on 11.3.2005 in his area
for maintaining peace. When he along
with his police party reached at Dada
Nagar Factory, in front of the same he
saw two persons coming from State Bank
crossing side and had wallets in their
hand, wherein something was kept. They
on being sighted by the police, got startled
and began to move away. The police party
after speeding up apprehended them
around 10:00 p.m. in front of 10-B - Dada
Nagar Factory. On being inquired, the
accused told his name as Ashok Kumar
Tiwari s/o Uma Shanker Tiwari, resident
of Kachchi Basti, Vivekanand Nagar,
Police Station - Govind Nagar, District -
Kanpur Nagar. On search being made of
his person, from the right side back
pocket of the jeans, 120 grams of 'charas'
(contraband) was recovered kept in a
white- coloured polythene bag. Besides,
the police party also recovered some iron
900 INDIAN LAW REPORTS ALLAHABAD SERIES
clips numbering twelve belonging to the
Railway Department.

4. The police also made recovery
from another person regarding whom, no
reference is being made because this
appeal does not relate to that of the other
person. On being asked about the
authority to keep the contraband 'charas'
he could not show any authority.
However, he stated that he usually takes
'charas' for his ebriety for drugs and he
utilises it as such, while a little part is sold
out for expenses. The police party tried to
arrange independent public witness on the
spot but no one agreed to be a witness to
the fact of recovery. The accused was also
offered his choice to be searched before a
Gazetted Officer, whereupon the offer
was
declined.
However
weighing
equipment
was
arranged
and
the
recovered contraband was weighed on the
spot. Then it weighed 120 grams and the
same was kept under seal. Specimen seal
was prepared and the accused was
apprised of his offence and was taken into
custody. A memo of arrest and recovery
was prepared on the spot by P.W.1 S.I.
Ashok Kumar Pandey. It was read over to
the accused and his signature was
obtained on it. After complying with the
mandatory provisions of Act, 1985, the
accused along with the recovered material
(contraband) was brought to the police
station, where a case was registered at
00:15 hours (12:15 A.M.) on 12.3.2005 at
aforesaid police station. The recovery
memo is Exhibit Ka-1, whereas the Chick
F.I.R. is (Exhibit Ka-5). Similarly, a case
was registered at the aforesaid police
station at aforesaid crime number on
12.3.2005 at aforesaid time against the
applicant, under Section 18/20 of the
N.D.P.S. Act. Thereafter, investigation of
the case ensued and the same was
entrusted to P.W.6 S.I. Ram Shyam
Misra, who recorded statement of various
witnesses, inspected the spot and prepared
the spot map (Exhibit Ka-7) and also
recorded statement of various persons. On
23.3.2005, the sealed recovered 'charas'
was
sent
to
the
Forensic
Science
Laboratory for chemical examination and
after
completing
investigation
on
10.5.2005 filed charge-sheet against the
accused- Ashok Kumar Tiwari (Exhibit
Ka-8). The report of Forensic Science
Laboratory was obtained by the I.O. on
20.5.2005 and that was made part of the
case diary. The appellant was heard on
point of charge against him and the trial
court was satisfied with prima facie case
against the appellant, consequently it
framed charge under Section - 20 (b)
(ii)(B) of the N.D.P.S. Act, 1985. The
charge was read over and explained to the
accused, who denied the charge and opted
for trial.

5. The prosecution in all produced
six prosecution witnesses. P.W.1. S.I.
Ashok Kumar Pandey, who is the
informant. P.W.2 Head Constable- Sri Jai
Jai Ram, who accompanied the police
party at the time of the alleged arrest and
recovery of the accused. P.W.3 Head
Constable-
Hukum
Singh,
who
is
Malkhana Moharrir and has proved safe
keeping of the recovered material at the
police malkhana and has proved the
relevant entry of the malkhana register as
Exhibit Ka-2. P.W.4 Constable- Karam
Chandra Yadav, who had taken the
sample/the material recovered to forensic
science
laboratory
and
the
docket
prepared has been proved as Exhibit Ka3. P.W.5 Head Constable- Rajendra
Prasad, who has noted the relevant entry
of the recovery memo in the concerned
Check F.I.R. at Police Station - Govind
1 All. Ashok Kumar Tiwari Vs. State of U.P.
901
Nagar on 12.3.2005 at 00:15 hours (12:15
A.M.). The copy of the Check F.I.R. has
been proved as Exhibit Ka-5 and the case
was registered at the relevant G.D. of the
aforesaid date and time at aforesaid police
station, copy whereof is Exhibit Ka-6.
P.W.6 S.I. Ram Shyam Misra, who has
conducted investigation and has filed the
charge-sheet against the applicant.

6. Evidence for the prosecution was
closed and statement under Section - 313
Cr.P.C., was recorded, wherein the
accused denied the allegations and
submitted that Kallu Tiwari and Bachchu
Tiwari of his locality are on good terms
with the police. They usually meet these
police personnels. These two persons had
killed son of his 'bua' (sister of father of
the accused). They are inimical to the
accused. Both are on good acquaintance
with constables- Charan Singh and Jai Jai
Ram. Complaint was also moved before
the higher authorities, due to which, both
these in collusion with the police have
falsely booked the appellant in this case.
Nothing has been recovered from his
possession.

7. The defense did not lead any
evidence.

8. The trial court after marshalling of
facts and evaluating the evidence and upon
consideration
of
respective
submission
recorded aforesaid finding of conviction thus
sentenced the accused as aforesaid.

9. Consequently, this appeal.

10. Learned Amicus Curiae, Sri
Akash Tomar has vehemently contended
that in this case, the entire proceeding has
been carried out in utter disregard to the
mandatory provisions of the Act, 1985
and the relevant provisions under Section
- 50 of Act, 1985 have not been followed
in letter and spirit and in case, due to
which entire search allegedly carried out
on the spot becomes illegal and the very
search itself is vitiated, then the entire
case become highly suspicious. In this
case, the police party headed by P.W.1
S.I.
Ashok
Kumar
Pandey
after
apprehending the accused had come to
know about fact that the accused is
possessing
the
contraband
'charas',
whereupon offer was made for search be
conducted either before a Magistrate or a
Gazetted Officer, but the same was
declined and search was opted to be
carried out by the police itself. But the
prime factor is that prior to carrying out
the search of the accused, the police party
did not care to work out any search inter
se of its members and there is no whisper
either in the recovery memo (Exhibit Ka1) or in the statement of P.W.1 Ashok
Kumar Pandey or the other witnesses of
fact (P.W.2) that prior to conducting
search of the accused by the police party
any inter se search was made out by the
members of the police party in order to
ascertain whether the police party was
possessing
any
unauthorised/unobjectionable
material.
How can police party straightway carry
out the search of the accused without first
carrying out inter se search of themselves.
The point is that two persons of the
accused's locality Bachchu Tiwari and
Kallu Tiwari have intimate acquaintance
with constables Charan Singh and Jai Jai
Ram and they usually visit their house.
The fact is that both the aforesaid
Bachchu Tiwari and Kallu Tiwari had
murdered the son of 'buwa' (aunt) of the
accused. Both the aforesaid Bachchu
Tiwari and Kallu Tiwari acting in close
collusion with the police have got the
902 INDIAN LAW REPORTS ALLAHABAD SERIES
accused falsely implicated in this case.
Various complaints have been made
against them previously to the higher
authorities. Nothing incriminating, in fact,
has been recovered from the possession of
the accused. He is innocent.

11. Learned A.G.A. has supported the
finding of conviction and the sentence
awarded and has claimed that the finding of
conviction is just and consistent and the same
is based on material/contraband recovered
from the possession of the applicant. There is
no violation of the mandatory provisions of
search as contained under Section - 50 of the
Act, 1985.

12. Upon consideration of the
submission and the rival claims, the moot
point that arises for adjudication of this
appeal relates to fact, whether the
prosecution has been able to establish the
charge under Section - 20 (b) (ii) (B) of
the N.D.P.S. Act, 1985 beyond reasonable
doubt against the accused.

13. At the outset, it can be observed
that the prosecution witnesses of fact have
no doubt proved apprehension of the
accused around 10.00 p.m. on 11.3.2005,
somewhere in front of Dada Nagar
Factory and after apprehending the
accused, it is alleged that on search being
made, 120 grams of 'charas' kept inside the
back pocket of jeans worn by the accused
was recovered. However, an option was
extended to the accused to get himself
searched in the presence of a Gazetted
Officer or a Magistrate, but the entire
recovery memo and the testimony of the
prosecution witnesses of fact, say P.W.1
and P.W.2, is absolutely silent on the point,
whether any inter se search was made by
the police party among themselves prior to
the carrying out of the search of the accused
on the spot in order to ensure that they are
not in possession of any noxious material of
any sort. Therefore, it is obvious that it was
not ascertained on the spot by the police
party as to whether any unauthorized
material is in their possession or not. This
leaves many questions to the root of the
authenticity of the alleged contraband
recovered from the possession of the
accused.

14. For the sake of argument, it can
be stated that the arrest was sudden and
there was no prior information about any
contraband being in possession of the
appellant. Therefore, the point of prior
search, inter se, made between and among
the personnel of the police party was not
possible, but the argument does not stand
to its legs for the reason that as per the
testimony of S.I. Ashok Kumar Pandey as
recorded in his examination-in-chief on
page no.8 of the paper-book, it has been
categorically stated that he apprehended
the accused at around 10.00 p.m. at
aforesaid place on 11.3.2005 and at that
point of time, he was told by the accused
that he is possessing 'charas'. Then as per
his testimony, offer was made to the
accused to get himself searched before a
Magistrate or a Gazetted Officer, which
was refused. There is no mention either in
the recovery memo or in the testimony of
P.W.1 and P.W.2 even to the least that any
effort, whatsoever, was made for any inter
se search being made on the spot among
the police personnel for ensuring certainty
to the fact of recovery that the police party
was not possessing any suspicious material
and this vital factual aspect cannot be
ignored merely because the arrest was
sudden. Once, the police party had come to
know about possession of contraband
'charas',
which
the
appellant
was
possessing,
it
was
incumbent
and
1 All. Sher Khan Vs. State of U.P. and Anr.
903
mandatory on the part of the police party to
have carried out inter se, search first
among its own members, but the police
party failed to observe it. Now, the
consequence of this omission would be
that the recovery cannot be accepted to be
genuine one but it can be said to have been
planted by the police. The particular
circumstances of this case and the
statement of the accused as submitted
under Section - 313 Cr.P.C. discloses fact
that two persons namely Bachchu Tiwari
and Kallu Tiwari are inimical to the
accused and who are acquainted with a few
members of the police party, who are
police
constables
and
the
aforesaid
Bachchu Tiwari and Kallu Tiwari have
murdered son of 'buwa' (aunt) of the
accused and complaint have been moved
against them to the higher authorities, due
to which they are highly inimical towards
the accused and because of their good
acquaintance and terms with constables
Charan Singh and Jai Jai Ram, a plot has
been clandestinely hatched to falsely
implicate the accused with the recovery of
'charas' and other things. This statement
cannot be sidelined because the police
constable- Jai Jai Ram is also a witness to
the fact of recovery alleged.

15. Thus, the outcome of the entire
recovery proceeding goes under cloud and
becomes highly suspicious and the recovery of
120 'grams' of 'charas' by itself cannot be
accepted to be true as alleged by the
prosecution
for
the
reasons
aforesaid.
Consequently, the argument floated at the bar
by the learned Amicus Curiae, Sri Akash
Tomar is upheld and it is observed that the
entire recovery process becomes highly
dubious and vitiated and it is cardinal principle
of criminal jurisprudence that in case of
recovery under the mandatory provisions of the
Act, 1985, if the factum of recovery becomes
dubious, then the entire case goes. On the
above point of recovery, the trial court has not
contemplated even in the least and the trial
court overlooked this vital aspect and ignoring
that vital aspect erroneously recorded finding of
conviction, which finding of conviction cannot
be sustained and justified in its form under facts
and circumstances of this case.

16. Consequently, the conviction
recorded and the sentence awarded
against the accused-appellant also stands
vitiated and is liable to be set aside.

17. Resultantly, this appeal succeeds
and the same is allowed. The judgment
and order of conviction dated 21.2.2007
passed by the Court of Additional
Sessions Judge, Court No.5, Kanpur
Nagar in Sessions Trial No. 424 of 2005
(State vs. Ashok Kumar Tiwari), arising
out of Case Crime No.80 of 2005, under
Section - 20 (b) (ii) (B) of the N.D.P.S.
Act, 1985, Police Station - Govind Nagar,
District - Kanpur Nagar is hereby set
aside
and
the
accused-appellant
is
exonerated of the charge in question.

18.

Let
a
copy
of
this
order/judgment be certified to the court
below for necessary information and
follow up action.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.07.2019

BEFORE
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

CRIMINAL APPEAL No. 7354 OF 2018

Sher Khan ...Appellant
Versus
State of U.P. and Anr. ....Opposite Parties