# Basant Lal Pal & Anr. (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 526
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-25
- **Case number:** Criminal Appeal No 4320 of 2009
- **Bench:** Ajay Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/basant-lal-pal-anr-in-jail-v-state-of-u-p-47268
- **Pages:** 8

## Headnote

Law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Sections 147, 342/149, 394 & 395 - The
Code of Criminal procedure, 1973
-
Section 111,151, 107 , 116 & 197 -
Prosecution of judges and public servants
.
Appellant No.2 died and appeal abated against
him - Complainant had Rs.2839/- as revenuecollection with him - amount snatched by police
along with government record - constable and
three other constables started beating him by
fist, legs and rule - locked him up in lockup -
facts
not
proved
by
the
prosecution
-
government-peon was with complainant -
material witness - not produced by the
prosecution - court below concluded - a class-IV
employee and could not dare to depose against
police personnel - prosecution withheld best
witnesses - no explanation why best witnesses
were not produced - wrongful confinement not
made out - Concerned SDM issued notice under
Section 111 Cr.P.C. - after proceedings notice
was dropped - if after judicial consideration
notice was dropped by SDM then it cannot be
said
that
police
wrongfully
confined
the
complainant and his son at police-chauki .
HELD:-Prosecution witnesses not at all reliable
witnesses.
Material
witness
Tehsildar
and
alleged eye-witness (peon) were withheld by the
prosecution and they were not produced before
the learned trial court. Trial court failed to
appreciate the evidence on record correctly and
judiciously
and
based
its
findings
and
conclusions only on the basis of assumptions
and
presumptions.
Hence,
findings
are
perverse.(Para - 27)

Criminal Appeal allowed. (E-6)

## Text

526 INDIAN LAW REPORTS ALLAHABAD SERIES
----------
(2021)08ILR A526
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.08.2021

BEFORE

THE HON'BLE AJAY TYAGI, J.

Criminal Appeal No 4320 of 2009

Basant Lal Pal & Anr. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Ajatshatru Pandey, Sri Akhilesh Kumar,
Sri Anees Ahmad, Sri J.S.P. Singh, Sri R.K.
Singh, Sri S.K. Pal, Sri Shiv Nath Singh

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

(A)
Criminal
Law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Sections 147, 342/149, 394 & 395 - The
Code of Criminal procedure, 1973
-
Section 111,151, 107 , 116 & 197 -
Prosecution of judges and public servants
.
Appellant No.2 died and appeal abated against
him - Complainant had Rs.2839/- as revenuecollection with him - amount snatched by police
along with government record - constable and
three other constables started beating him by
fist, legs and rule - locked him up in lockup -
facts
not
proved
by
the
prosecution
-
government-peon was with complainant -
material witness - not produced by the
prosecution - court below concluded - a class-IV
employee and could not dare to depose against
police personnel - prosecution withheld best
witnesses - no explanation why best witnesses
were not produced - wrongful confinement not
made out - Concerned SDM issued notice under
Section 111 Cr.P.C. - after proceedings notice
was dropped - if after judicial consideration
notice was dropped by SDM then it cannot be
said
that
police
wrongfully
confined
the
complainant and his son at police-chauki .
HELD:-Prosecution witnesses not at all reliable
witnesses.
Material
witness
Tehsildar
and
alleged eye-witness (peon) were withheld by the
prosecution and they were not produced before
the learned trial court. Trial court failed to
appreciate the evidence on record correctly and
judiciously
and
based
its
findings
and
conclusions only on the basis of assumptions
and
presumptions.
Hence,
findings
are
perverse.(Para - 27)

Criminal Appeal allowed. (E-6)

(Delivered by Hon'ble Ajai Tyagi, J.)

 1. This appeal has been preferred
against the judgment and order passed by
Additional Sessions Judge/Special Judge
(Dacoity Affected Area), Lalitpur in
Sessions Trial No.03 of 1998 (State vs.
Basant Lal and another) under Sections
147, 342/149, 395 IPC, by which accused
appellants-Basantlal Pal and Ghanshyam
were convicted under Sections 394 and 342
IPC and sentenced for 10 years RI and
Rs.10,000/- fine under Section 394 IPC and
one year RI under Section 342 IPC. During
the pendency of this appeal, Ghanshyamappellant No.2 died and appeal was abated
against him.

2. In this case, initially First
Information Report bearing Case Crime
No.23/1993 was filed against five accused
persons namely, Basantlal Pal, Ghanshyam,
Ram
Narain,
Rajendra
Singh
and
Rameshwar Dayal (all police personnel).
Investigating Officer filed final report in
court due to not finding any evidence. Final
report was accepted by learned Magistrate
against which a revision was preferred
before learned Sessions Judge. Learned
Sessions Judge, allowed the revision and
directed
the
learned
Chief
Judicial
Magistrate to decide the matter afresh.
Learned CJM took cognizance. In the
meantime,
complainant
also
filed
a
8 All. Basant Lal Pal & Anr. Vs. State of U.P.
527
complaint before Special Judge (Dacoity
Affected Area) and the court summoned
the above named accused persons for trial.

3. The relevant brief facts of this case
are that complainant-Hari Shankar stated in
report that he is 'collection-amin' in TehsilTal
Behat,
District-Lalitpur.
Between
23.12.1992 and 25.12.1992, he was in his
area for collection of land-revenue and on
25.12.1992, he was returning to his home
after collecting Rs.2,839/- as revenue
collection, at about 7:00 p.m., he reached
before police-outpost Baansi with his peon
Nathu Ram. Basantlal Pal, In-charge
outpost, constable Ghanshyam and three
other constables came out. They started
beating him by fist, legs and rule. They
robbed the amount of Rs.2,839/- of revenue
collection and government record from him
and locked him up in lockup. On hue and
cry of complainant, one Badri Prasad and
already locked up in police-chauki Brij Lal
had seen the occurrence. It has also been
stated in complaint that at 12:00 mid-night
also above police-personnel beaten the
complainant and his son Krishna Kant, who
was already inside the lockup. Next day,
accused persons challaned him under
Section 151, 107 and 116 Cr.P.C. and
produced before Sub Divisional Magistrate,
Talbehat. At the time of challan, accused
persons forcefully returned Rs.800/- to the
complainant. By the order of S.D.M.,
medical examination of complainant and
his son was conducted and SDM released
them on bail.

4. Before making the charge, accused
Rameshwar Dayal died and case was
abated against him. Charge under Section
395 IPC was framed against rest of the
accused persons and later on charge was
amended by the learned trial court and it
was framed under Sections 147, 342 read
with Sections 149 and 395 IPC. After trial,
learned court below acquitted the accused
persons Rajendra Singh and Ram Narain of
all the charges levelled against him and
convicted the accused Basantlal Pal and
Ghanshyam under Sections 394 and 342
IPC and sentenced them for 10 years RI
under Section 394 with fine of Rs.10,000/-
and for one year RI under Section 342 IPC.

5. Aggrieved by this judgment,
appellants preferred this appeal, but during
the pendency of the appeal, appellant No.2Ghanshyam died and appeal was abated
against him. Now sole appellant Basantlal
Pal contested this appeal.

6. Heard learned counsel for the
appellant, learned AGA for the State and
perused the record.

7. Learned counsel for the appellant,
first of all, argued that appellant was a
public servant, but prosecution did not take
prosecution sanction as provided under
Section 197 Cr.P.C., which says that when
any person who is or was a Judge or a
Magistrate or a Public Servant not
removable from his office saved by or with
the sanction by the government is accused
by any offence alleged to have been
committed
by
him while
acting
or
purporting to act in discharge of his official
duty, no court shall take cognizance of such
offence except with the previous sanction.
Learned counsel for the appellant also
referred the judgment in the case of Ayush
Kumar and others vs. State of UP, 2019
LawSuit (All) 612, Anil Kumar Jha vs.
State
of
Chattisgarh,
2016
LawSuit
(SC)382 in support of his argument.

8. I am not convinced with the
aforesaid argument because in this case, no
doubt, all the accused persons were police-
528 INDIAN LAW REPORTS ALLAHABAD SERIES
personnel, but they were charged for the
offences of alleged robbery and wrongful
confinement, which do not come in
discharge of their official duties. Previous
sanction of government under Section 197
Cr.P.C. is required, in case when public
servant was acting in discharge of his
official duty, but making robbery or
wrongful confinement does not come under
the purview of discharging the official
duty. Hence, prosecution sanction as
provided under Section 197 Cr.P.C. was
not at all required in this matter.

9. Learned counsel for the appellant
next submitted that appellant along with
other
police-personnel
was
falsely
implicated in this case. The real fact of the
matter was that there were two real
brothers, Raju and Kaushal Kishore, whose
buffalo entered the field of complainant
and his son Krishna Kant and destroyed
some crop there. Complainant and his son
got annoyed and complainant's son Krishna
Kant got that buffalo admitted in kanjihouse, which was situated near the policechauki-Baansi at 7:00 pm on 25.12.1992.
This was the bone of contention between
the parties and there was altercation
between both the sides at kanji-house. On
hearing the noise, police reached the said
kanji-house and arrested complainant, his
son-Krishna Kant, Raju and Kaushal
Kishore and locked them up in the policechauki and next day they were challaned
under Sections 107, 116 and 151 Cr.P.C. as
complainant and his son-Krishna Kant one
party and Raju and Kaushal Kishore as
opposite party and they were produced
before
Sub
Divisional
Magistrate-Tal
Behat, District-Lalitpur. Complainant-Hari
Shankar got annoyed with this action of
police and he cooked up the false story of
beating him and snatching the amount of
revenue collection and government record.
He lodged complaint against all the policepersonnel of police-outpost Baansi.

10. Learned counsel for the appellant
submitted that five witnesses of fact were
produced in this case and there are material
contradictions in their statements.

11. Learned AGA argued that all the
five witnesses of fact supported the
prosecution version and Brij Lal (PW1) is
an independent witness, he has also
supported the prosecution story. Learned
AGA further submitted that complainant
and his son got injuries also, which are
proved by the medical examination report.
Hence, prosecution case was proved
beyond any reasonable doubt and the
learned court below rightly convicted and
sentenced the appellant.

12. Learned counsel for the appellant
argued that injuries were on the person of
Raju and Kaushal Kishore also and
prosecution has failed to explain their
injuries. Their injuries were proved by
Dr.C.P. Nagar (PW4). Learned trial court
did not take care to appreciate the evidence
correctly in legal frame work. Brijlal
(PW1) cannot be said to be independent
witness as he was already inside the lockup
and he was brought by the police to the
lockup after his altercation with some
person and that person was not picked up
by the police. Due to that reason, he gave
false statements against the appellants.
Another prosecution witness, namely Badri
Prasad Gupta (PW5) is said to see the
occurrence from outside the police-outpost
while it was not possible to view the
happenings of inside from standing outside
the police-chauki.

13. First of all, it comes that
prosecution case is completely silent on the
8 All. Basant Lal Pal & Anr. Vs. State of U.P.
529
motive of appellant and other police
personnel. It is not at all told by
prosecution
witnesses
and
even
by
complainant in his complaint as to why
complainant's son Krishna Kant was
already in lockup when police gave beating
to complainant and locked him up also.
Hari Shanker Goswami (PW2) in his
examination-in-chief has stated as under:

"दरोगा जी ने िेरी जेि िें रखे 2839
रूपये जेि से मनकाल मलये थे तथा िेरा सरकारी
ररकािा िुंशी घनश्याि ने छीन मलया था तथा िुझे
लॉकअप िें िंद कर मदया मजसिें िेरे पुत्र
कौशल मकशोर को पुमलस ने पहले से िन्द कर
रखा था।"

14. Krishna Kant s/o Hari Shanker
Goswami was examined as PW2. He has
also admitted in his statement that when his
father was locked up by the police, he was
already in lockup, but prosecution is also
silent on the point why police caught the
complainant outside the police-chauki gave
him beating, dragged him inside the chauki,
snatched his government amount and
government record and locked him up, the
reason of this is not at all explained by any
of the prosecution witnesses. It has also not
been explained by any of the witnesses as
to why Raju and Kaushal Kishore were
brought to the police-chauki after half an
hour of the occurrence with complainant.
This is not at all explained anywhere by
prosecution.

15. Krishna Kant (PW3), who is son
of complainant, has stated in examinationin-chief the exact version of defence. He
has admitted that on 25.12.1992 at about
4:30 p.m., he saw that buffalo of Raju
destroyed his crop in his field. He caught
the buffalo and took it to the kanji-house.
On the way, Raju met him and threatened
to leave the buffalo or he will get him
locked up by asking Sub Inspector of
police-chauki. It is also admitted by him
that he caught the buffalo of Raju and
admitted in kanji-house and took the
receipt. It is the version of defence that
both the parties were quarreling at kanjihouse and for that reason, police arrested
them and challaned them. This version of
defence is matched with the statement of
Krishna Kant (PW3). Statement of Krishna
Kant reads as under:

"(3) िै कांजी हाउस से िाहर मनकल
रहा था करीि दो सिा दो िजे का सिय था यह
तीनों मसपाही जो हामजर अदालत हैं चौकी
इन्चाजा S.I. िसन्त लाल पाल ि का० रािेश्वर
दयाल िहाँ आ गये थे और िुझे पकड़ कर िांसी
की पुमलस चौकी के अंदर ले गये थे और िुझे
िहाँ लात घूसों ि लाठी की ठूसों से िार पीर् कर
चोर् पहुचाई थी तथा कांजी हाउस की रसीद ि
साढे तीन रूपये मनकाल मलये थे।"

16. Hence, with the above statement
of PW3, it is admitted that police arrested
Krishna Kant from the kanji-house.

17. Prosecution witnesses PW2 and
PW3 set up the motive in their respective
statements that Raju used to to supply milk
in police-chauki so the police-personnel
were under his influence and due to that
reason they locked up them in policechauki, but this motive, set up by
complainant and his son fails miserably
because police at that time locked up Raju
also along with Kaushal Kishore and
challaned under Sections 107, 116 and 151
Cr.P.C. If in any case, motive is set up by
the prosecution, it is the burden of
prosecution to prove the motive, but in this
case, prosecution is completely failed to
prove the motive due to arrest of Raju and
Kaushal Kishore. Even the complainant-
530 INDIAN LAW REPORTS ALLAHABAD SERIES
Hari Shanker, concealed the fact that his
son Krishna Kant caught the buffalo of
Raju, admitted in kanji-house and there was
altercation between Krishna Kant and Raju.
Complainant did not disclose the above fact
either in FIR or complaint, yet he has
admitted this fact by saying that:

"भैंसे कांजी हाउस िें िन्द करने के
सम्बन्ध िें कृष्णाकान्त ि राजू के िीच मििाद
होने िाली िात F.I.R. या पररिाद िें या ियान िें
िताना जरूरी नहीं सिझी थी।"

Hence, it is clear that this fact
was concealed by the complainant.

18. Further, it was burden on
prosecution to prove that complainant had
Rs.2839/- as revenue-collection with him
and this amount was snatched by police
along with government record. But, these
facts were also not proved by the
prosecution. It is said by prosecution that
the government record was snatched by
police, therefore, it may be presumed that
receipt took was also snatched by the
police, but the complainant (PW2) has told
the names of persons from whom he made
recovery of revenue and provided them
receipt. Those persons could be summoned
by the prosecution for evidence, but they
were not summoned and they were not
produced in evidence, who could show that
they paid the amount of revenue-collection
to the complainant. It is also submitted by
complainant that before the occurrence at
about 5:30 p.m., Tehsildar-Talbehat met
him and checked him, but Tehsildar was
also
not
produced
in
evidence
to
corroborate the fact that complainant was
having government revenue and record
with him before one and a half hour of
occurrence. It is also very much necessary
to note that as per prosecution version
government-peon was with the complainant
and when police caught him, at that time
also, he was with the complainant. Badri
Prasad (PW5) has also stated in his
statement that he was present at the place
of occurrence and was seeing entire
occurrence while standing outside the
police-chauki and after the occurrence, he
went from there. The peon was very
material witness, but he was also not
produced by the prosecution. In this regard,
learned court below has concluded that he
was a class-IV employee and could not
dare to depose against police personnel.
This conclusion drawn by the court below
cannot be accepted. Hence, prosecution has
withheld best witnesses and there is no
explanation at all why these best witnesses
were not produced. Therefore, adverse
inference shall be drawn and it will be
presumed that if they would have been
produced in evidence, they would have
deposed
against
prosecution
version.
Hence, prosecution failed to prove that at
the time of occurrence, complainant was
having Rs.2839/- as revenue-collection and
government
record
was
with
the
complainant. Contrary to this, record shows
that the receipt took the complainant was
lost somewhere and it was not snatched by
police-personnel
because
paper
No.303(kha) is a press release issued by
Additional District Magistrate (Finance &
Revenue) Lalitpur, wherein it is stated that
the
receipt-book,
which
was
with
collection-amin
Hari
Shanker
(complainant) had lost somewhere. This
press release has also mentioned the
numbers of used and unused receipts and it
is also directed in this release that if
somebody finds it, it should be returned to
him or Tehsildar-Talbehat and unused
receipts
were
declared
unauthorized.
Although, this document is not exhibited,
but it is from government record and
8 All. Basant Lal Pal & Anr. Vs. State of U.P.
531
cannot be overlooked. Moreover, it was not
contradicted by the prosecution.

19. It is admitted fact that on the next
day of occurrence, police produced both the
sides before concerned SDM and Rs.800/-
were returned to the complainant by the
police, which according to the police was
recovered from his personal search at the
place of occurrence. The complainant has
stated that police forcefully returned the
Rs.800/- and did not return full amount of
Rs.2,839/-. Hence, learned trial court
committed mistake by not accepting
amount of Rs.800/- as amount of his
personal search.

20. Prosecution version is also
doubtful keeping in view the injuries of
PW2 and PW3. Prosecution has set up the
case that police gave very harsh beating to
the
complainant-Hari
Shanker
(PW2)
outside the police-chauki and dragged him
inside and locked him up and in the midnight at 12 o'clock also, police gave beating
to complainant and his son (PW3). Badri
Prasad (PW5) also stated in his statement
that police gave them beating with lathi.
The relevant extracts from the statement of
PW5 are quoted as under:

"दरोगा जी हरी शंकर को घसीर्ते
हुये लात घूसे िारते हुये चौकी के अंदर ले गये
थे। उन्होंने जूते पहने हुये पैर से पन्द्रह िीस ढोड़े
हरी शंकर को िारी थी। घनश्याि िुंशी ने लाठी
के दस पन्द्रह प्रहार हरी शंकर पर मकये थे हरी
शंकर मजससे जिीन पर मगर गये थे।"

21. Hence, as per the above statement
of Badri Prasad, police gave beating to
complainant and his son by lathi so harshly,
therefore, he fell down on ground and
complainant was hit by lathi by 10-15
times. With regard to above statement of
PW2 and PW3 regarding beating, if injuries
of PW2 and PW3 are considered, these
injuries do not support the prosecution
version as stated by PW2 and PW3. The
injuries of the complainant-Hari Shanker
were examined by Dr.Chandra Prakash
Nagar (PW4) and he has mentioned only
three injuries as under:

"(i) नीलगू मनशान 2 cm x 1 cm जो
मक िाये तरफ पीछे की ओर था जो 11 cm िायें
पकािे के हड्डी के नीचे की तरफ था।

(ii) खरोंच का मनशान 3 cm x 0.5 cm
जो मक दामहने घुर्ने के मपछले िाले भाग िें था।

(iii) िायें कान के ऊपरी भाग पर
चोर् से उत्पन्न सूजन थी।"

22. These injuries were of simple in
nature and it was just one contusion and
one abrasion and one swelling injury
likewise injuries of complainant's son
Krishna Kant were as under:

"(i) ददा युक्त सूचन िायें कन्धे के
जोड़ से 4 cm नीचे।

(ii) नीलगू मनशान 8.5 cm x 1.5 cm
जो मक पीछे की ओर िाये घुर्ने के तीन से०िी०
नीचे की तरफ "

23. Hence, there was only one
swelling and one contusion to Krishna
Kant. No other injury was found on the
person of complainant and his son. So
above injuries do not co-relate with the
version of PW1, PW3 as well as PW2 and
PW5, who say that police gave very harsh
and immense beating to them at the time of
their arrest and also at 12 o'clock in the
mid-night by using fist, punch, shoes, lathi
and danda. The complainant (PW2) has
532 INDIAN LAW REPORTS ALLAHABAD SERIES
also stated that he got bleeding also, but
there was no sign of any bleeding in his
medical
report.
Hence,
injuries
of
complainant and his son are not at all corelated with the version of prosecution
regarding beating. It also falsifies the story
of prosecution.

24. Learned AGA has argued that Brij
Lal (PW1) was independent witness and he
has supported the prosecution case, but in
my view, Brij Lal cannot be said to be
independent witness as he has stated in his
statement that on the date of the said
occurrence, police has put him in the
lockup at about 11-12 in the noon because
he had marpeet with Bhai Khan and police
locked him up only and left Bhai Khan,
therefore, he cannot be accepted as
independent witeness.

25. The entire findings of learned trial
court seems to be based on assumption and
not in consonance with the evidence on
record. It transpires that on the same day of
occurrence, there was some altercation and
quarrel
between
the
complainant-Hari
Shanker, his son-Krishna Kant as one party
and Raju, Kaushal Kishore as other party
because Krishna Kant got the buffalo of
Raju admitted in kanji-house. The certified
copy of receipt of buffalo of admitting it in
kanji-house (Ex.kha1) is produced as
Ex.kha1 and it shows the time of admission
of buffalo as 7:00 p.m. by Krishna Kant.
Krishna Kant (PW3) has admitted in his
examination-in-chief that police caught him
at kanji-house and next day, police
produced both the sides before Sub
Divisional
Magistrate-Talbehat
for
breaching the peace.

26. As far as the offence under Section
342 IPC for wrongful confinement is
concerned, the same is not made out as it is
admitted fact that on the very next day of the
said occurrence, police produced both the
parties before SDM by challaning them under
Sections
107,
116
and
151
Cr.P.C.
Concerned SDM also issued the notice under
Section 111 Cr.P.C. and after proceedings
notice was dropped, but it is clear that judicial
consideration took place and if after judicial
consideration notice was dropped by SDM
then it cannot be said that police wrongfully
confined the complainant and his son at
police-chauki. If trial court was of the opinion
that complainant and his son were wrongfully
locked up by police even then it was on
record before learned trial court that they
were challaned under Sections 107, 116 and
151 Cr.P.C. and, accordingly, judicial
proceedings took place against them and they
cannot be said to be confined wrongfully by
the police.

27. Hence, with the above discussion,
this Court reaches the conclusion that
prosecution witnesses were not at all reliable
witnesses as discussed earlier. Material
witness Tehsildar-Talbehat and alleged eyewitness Nathu Ram (peon) were withheld by
the prosecution and they were not produced
before the learned trial court. I am of the
definite view that learned trial court failed to
appreciate the evidence on record correctly
and judiciously and based its findings and
conclusions only on the basis of assumptions
and presumptions. Hence, findings are
perverse.
Therefore,
prosecution
has
miserably failed to prove its case beyond
reasonable
doubt
and
by
incorrect
appreciation of evidence. Learned trial court
wrongly
convicted
and
sentenced
the
appellant. Hence, the conviction and sentence
of appellant cannot be sustained and the
appeal is liable to be allowed.

28. Accordingly, this appeal is
allowed.
8 All. Mehboob Vs. State of U.P.
533

29. The conviction and sentence of
appellant-Basant Lal Pal under Sections
394 & 342 IPC is hereby set aside and
appellant is acquitted with all the charges
levelled against him.

30. Appellant is on bail. His personal
bond
is
cancelled
and
sureties
are
discharged.
----------
(2021)08ILR A533
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2021

BEFORE

THE HON'BLE SUBASH CHAND, J.

Criminal Appeal No 6794 of 2019

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

Counsel for the Appellant:
Sri Ajay Pandey, Sri Mukesh Joshi

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

(A) Criminal Law - The Narcotics Drugs
and Psychotropic Substances Act, 1985 -
Section 8/15,42,55 - Section 50 - appeal
against conviction - compliance of section
50 of the Act is mandatory - mere
information to the accused that he had
option to be searched either in presence of
gazetted officer or Magistrate is not
enough - It is required that the accused is
actually brought before the gazetted
officer or the Magistrate and give option
in order to impart authenticity - Section
50 of the Act applies only in case of
personal search and does not extend to
the search of vehicle container of bag or
premises.(Para -13 )

12 Kg., poppy straw recovered out of plastic
gunny bag - in 12 polythene packets of one kg.,
each - gunny bag was in the hand of
appellant/convict - sampling of the poppy straw
was not taken as representative sampling -
nothing on record to support the prosecution
case that in the 11 remaining packets the
narcotics drugs was also poppy straw.

HELD:-
In the present case as the poppy
straw was in a plastic gunny bag which was
being carried by the appellant, the provision of
section 50 of the Act would not attract . No
malkhana register was produced on behalf of
the prosecution in regard to compliance of
section 55 of the Act. Certainly, provisions of
section 55 of the Act are directory in nature; but
the violation of the same also casts doubt on
the prosecution story. In view of re-appreciation
of the evidence on record it is found that the
prosecution has failed miserably to prove its
case beyond doubt. Conviction of the appellant
bears infirmity and same deserves to be setaside.(Para - 13,15,16)

Criminal Appeal allowed. (E-6)

List of Cases cited:-

1. Sukhdev Vs St. of Har. , 2013 Criminal Law
Journal 841

2. Kishan Chand Vs St. of Har. , LAWS (SC)
2012-12-55

3. Rajendra Vs St. of U.P. , 2004 (48) SCC 304

4. U.O.I. Vs Bal Mukund & ors. , Criminal Appeal
No. 1397 of 2007

5. St. of Raj. Vs Gurmail Singh , 2005 Criminal
Law Journal 1749

(Delivered by Hon'ble Subash Chand, J.)

1. The instant Criminal Appeal is
preferred on behalf of the appellant
Mehbood against the state of U.P., against
the judgment and order dated 13.9.2019
passed by the Additional Sessions Judge,
Court No. 11, Moradabad in Special
Sessions Trial No. 806 of 2018 (State of
U.P. Vs. Mehbood) whereby the appellant