# Darbari and Keshav Raj (In Jail) v. State of U.P

- **Citation:** (2004) 2 ILRA 494
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-30
- **Case number:** Criminal Appeal No. 454 of 1995
- **Bench:** Mukteshwar Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/darbari-and-keshav-raj-in-jail-v-state-of-u-p-40409
- **Pages:** 5

## Headnote

A.G.A.

Narcotic
Drugs
and
Psychotropic
Substances Act, 1985-S.20-Conviction
under-Appeal-Hostile
Witness-Both
public witnesses denied recovery of
Charas from possession of appellants in
their presence, non they were arrestedWitnesses
turned
hoside-In
cross
examination by State Counsel witnesses
asserted that their signatures were
obtained on blank papers-no evidence of
independent public witnesses on record
to
support
prosecution
story-Hence
conviction and sentences set aside.

The prosecution produced two public
witnesses Ram Prasad and Ishaque and
both stated categorically that no Charas
was recovered from the possession of
http://www.allahabadhighcourt.nic.in
2 All] Darbari and Keshav Raj V. State of U.P.
495
the appellants in their presence nor they
were arrested. They turned hostile. In
cross-examination by the State Counsel
they asserted that their signatures were
obtained on blank papers. Thus, there is
no
evidence
of
independent
public
witnesses to support the prosecution
story.

 Para 18
Case law discussed:
1999 JT (SC) 595
2004 (48) ACC 610
2004 (48) ACC 265
1994 Crl.L.J. 1
2001 (43) ACC 170

## Text

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
494

16. In view of the foregoing
discussion, I hold that learned Judge
rightly found the appellant guilty for the
offences punishable under Sections 452
and 324 of the Penal Code. I, however,
hold that charge framed against the
accused under Section 201 I.P.C. was not
proved
by
reliable
and
convincing
evidence. Consequently, the appellant is
entitled to be acquitted of the charge
framed under Section 201 I.P.C.

17. It has also been urged that the
incident in question took place in the
month of August, 1974 and since then
about
thirty
years
have
elapsed.
Moreover, the appellant was found guilty
by the court below on 12.5.81. Therefore,
in view of the long gap between the date
of incident, date of conviction and the
date of hearing it would not be just and
proper to send him to prison again. I find
force in this contention. Since the injured
was a public servant and was assaulted at
the hands of the appellant at his official
residence, I am not inclined to extend him
the benefit of Section 4 of the Probation
of Offenders Act.

18. In the result, the appeal is partly
allowed. The conviction of the appellant
under Sections 452 and 324 I.P.C. is
affirmed and he is sentenced to the period
already undergone by him and to pay a
fine of Rs. 1000/- under Section 452
I.P.C. The appellant is further sentenced
to pay a fine of Rs. 1500/- under Section
324 I.P.C. He is acquitted of the charge
framed under Section 201 of the Penal
Code and his conviction and sentence
under this Section are hereby set aside.
The appellant is allowed to deposit the
total fine amounting to Rs. 2500/- within
a period of three months from today. In
default, he is directed to suffer rigorous
imprisonment for a period of two months
and two months under each count.

19. The appellant is in jail. He shall
be released forthwith if he is not wanted
in any other crime.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 30.04.2004

BEFORE
THE HON'BLE MUKTESHWAR PRASAD, J.

Criminal Appeal No. 454 of 1995

Darbari and Keshav Raj ...Appellants
(In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Appellants:
Sri H.N. Singh
Sri Keshav Srivastava
Sri S.N. Tripathi
Sri Rajeev Chaddha

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

Narcotic
Drugs
and
Psychotropic
Substances Act, 1985-S.20-Conviction
under-Appeal-Hostile
Witness-Both
public witnesses denied recovery of
Charas from possession of appellants in
their presence, non they were arrestedWitnesses
turned
hoside-In
cross
examination by State Counsel witnesses
asserted that their signatures were
obtained on blank papers-no evidence of
independent public witnesses on record
to
support
prosecution
story-Hence
conviction and sentences set aside.

The prosecution produced two public
witnesses Ram Prasad and Ishaque and
both stated categorically that no Charas
was recovered from the possession of
http://www.allahabadhighcourt.nic.in
2 All] Darbari and Keshav Raj V. State of U.P.
495
the appellants in their presence nor they
were arrested. They turned hostile. In
cross-examination by the State Counsel
they asserted that their signatures were
obtained on blank papers. Thus, there is
no
evidence
of
independent
public
witnesses to support the prosecution
story.

 Para 18
Case law discussed:
1999 JT (SC) 595
2004 (48) ACC 610
2004 (48) ACC 265
1994 Crl.L.J. 1
2001 (43) ACC 170

(Delivered by Hon'ble Mukteshwar Prasad, J.)

1. Two accused Darbari and
Keshavraj filed this appeal against the
judgment and order dated 10.3.95 passed
by Sri M.P. Gupta, the then Additional
Sessions Judge, Gorakhpur in S.T. No.
188 of 1992 whereby he convicted both
the accused under Section 20 of the
Narcotic
Drugs
&
Psychotropic
Substances Act, 1985 (hereinafter referred
to as the 'Act') and sentenced each of
them to undergo rigorous imprisonment
for a term of ten years and to pay a fine of
rupees one lac. In default in payment of
fine, they were ordered to suffer further
rigorous imprisonment for a period of two
years.

2. In brief, the facts of the case
which led to the prosecution of the
appellants are as under.

P.W.3 S.I. Ram Nagina Singh and
P.W.4 constable Shanker Prasad were
posted as Station Officer and constable
respectively at P.S. Nichlaul (Mahrajganj)
in the month of December, 1989. On 8th
December, 1989, the Station Officer
reached
Jhulnipur
Barrier
by
a
Government vehicle (Jeep) driven by
constable Bal Chandra Yadav. The
Mukhbir informed him that at about 9-00
p.m., two persons coming from Nepal
would go towards Nichnaul after crossing
Amripur
Bridge.
Believing
this
information to be correct, the Station
Officer collected H.C. Rajan Mishra and
three
constables,
including
Shanker
Prasad.
He
picked
up
two
public
witnesses Ram Prasad and Ishaque also in
the way. He accompanied by Mukhbir,
police force and public witnesses reached
Amripur Bridge and the entire force
concealed themselves. At about 9-15
p.m., two persons arrived there. Mukhbir
pointed out towards them whereupon they
were intercepted. They tried to run away
but both were apprehended towards south
of Amripur Bridge.

3. On enquiry, they disclosed their
names as Darbari and Keshavraj. They
were searched upon and from their
personal search Charas weighing about
250 grams. kept in bags were recovered.
Both were found carrying Charas in bags.
The arresting officer kept the recovered
Charas in the bags of the accused and
sealed the bags on the spot. He took out
samples of Charas and samples were also
sealed. A seizure memo was prepared on
the spot and signatures of the witnesses
and police constables were obtained. A
copy of Fard was given to both the
accused.

4. Both the accused alongwith
recovered Charas were brought to the
police station where they were detained in
the lock up and Charas was deposited in
the
Malkhana.
Head
constable
Kameshwar Singh prepared Chik report
on the basis of seizure memo at 11-00
p.m. on the same night. An entry was
made in the G.D. at serial no. 34.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
496
5. The case was investigated by S.I.
Brij Raj Singh. He started investigation,
interrogated the witnesses and prepared a
site-plan on 9.12.89. Samples were sent to
Forensic Science Laboratory, Lucknow
for chemical examination and both
samples were found to be Charas. After
completing
investigation,
the
I.O.
submitted two charge-sheets against the
accused.

6. Both the accused were charged
under Section 60 of the Excise Act and
Section 20 of the N.D.P.S. Act on 9.9.92.
They pleaded not guilty to the charges
and claimed to be tried.

7. At the trial, the prosecution
examined P.W.1 Ram Prasad and P.W.2
Ishaque, who are public witnesses and
had signed the seizure memo also, P.W.3
S.I. Ram Nagina Singh is the arresting
officer and proved seizure memo, P.W.4
constable
Shanker
Prasad
had
also
accompanied the arresting officer on the
fateful night and is a witness of fact and
P.W.5 H.C. Kameshwar Singh had
prepared Chik report.

8. Both the accused in their
statements given under Section 313
Cr.P.C. totally denied their arrest and
recovery of Charas in the manner and
from the place, as alleged by the
prosecution, and pleaded their false
implication on account of enmity. They,
however, led no evidence in defence.

9. After close analysis and scrutiny
of the evidence on record led by the
prosecution learned trial Judge found both
the
accused guilty of
the offence
punishable under Section 20 of the Act
and convicted and sentenced them as
noted above. Hence this appeal.
10. I have heard learned counsel for
the appellants at length, learned A.G.A.
and have gone through the record
carefully.

11. Learned counsel for the accused
appellants has assailed the judgment
under appeal mainly on the grounds that
both the public witnesses who were
allegedly associated with the arrest and
recovery turned hostile and did not
support the prosecution version. The
Charas, which was allegedly recovered
was not weighed and no sample of Charas
was, in fact, taken out on the spot. There
has been no compliance of the provisions
of Section 50 of the Act and no link
evidence was produced in the trial court.
The
investigating
officer
was
not
examined by the prosecution. It was also
contended that recovered Charas was not
produced in the court and the prosecution
could not establish by reliable evidence
that sample which was taken out on the
spot was actually sent for chemical
examination.

12. Learned counsel for the
appellants has placed reliance on the
decisions of the Apex Court in State of
Punjab Vs. Baldev Singh 1999 J.T. 595,
Smt. Krishna Kanwar @ Thakuraeen Vs.
State of Rajasthan [2004 (48) ACC 610],
State of Orissa Vs. Kanduri Sahoo [2004
(48) ACC 265, Valsala Vs. State of
Kerala
1994
CRI.L.J.
1
and
Koluttumottil Razak Vs. State of Kerala
[2001 (43) ACC 170].

13. On the other hand, learned
counsel for the State has supported the
judgment and has urged that court below
committed no illegality in convicting the
appellant and the appeal is liable to be
dismissed.
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2 All] Darbari and Keshav Raj V. State of U.P.
497
14. I have considered the respective
contentions of the parties and what I feel
is that the trial court was not justified in
convicting the appellants for possessing
Charas. First of all, I find that mandatory
provisions of Section 50 of the Act were
not complied with by the arresting officer.
It transpires from perusal of the seizure
memo that the arresting officer had prior
information from the Mukhbir that two
persons coming from Nepal would go to
Nichlaul and they were carrying Charas.
The arresting officer decided to take
action and apprehend the culprits. The
alleged recovery and arrest was made
from a public place. The arresting officer
was, therefore, required under the law to
apprise the appellants of their valuable
right that if they so desired they could be
taken to the nearest Gazetted Officer of
any of the departments mentioned in
Section 42 or to the nearest Magistrate for
personal search. In the present case, there
is not even a whisper that the accused
were apprised of their right to be searched
before a Gazetted Officer or a Magistrate.
It is correct that the arresting officer tried
to strengthen the prosecution case by
saying in the court that both the appellants
were given an option to be searched
before the Gazetted Officer. He, however,
could not disclose that they were apprised
of their right that they could be taken to
the
nearest
Magistrate
also.
P.W.4
Shanker Prasad, a constable also tried to
support the prosecution on this point but
in view of the fact that recovery memo is
totally silent on this point, I am not
prepared to accept the testimony of the
arresting officer as well as P.W.4 Shanker
Prasad in this regard and I hold that there
has been no compliance of mandatory
provisions of Section 50 of the Act. The
law is well settled on the point that in case
it is found that there has been noncompliance with the requirement of
Section 50 of the Act it is difficult to
sustain the conviction and sentence of the
appellants. Consequently, the appellants
are entitled to be acquitted on this score.

15. I find from perusal of the Fard
recovery as well as testimony of the
arresting officer and the constable that
recovered Charas was never weighed by
the police. The arresting officer has not
mentioned in the seizure memo that he
took out samples from both bags being
carried by the appellants. Contrary to this,
S.I. Ram Nagina Singh testified in the
court that a portion of the recovered
Charas was separated and sealed. The
arresting officer proved the recovered
Charas from the possession of the
appellants in the court but he could not
face the test of cross-examination on this
point. He gave out in the opening line of
his cross-examination that he had not
sealed the recovered Charas in the
'Gamcha' and according to him, the
Charas was sealed in the 'Gamcha' by the
employee's of the Forensic Science
Laboratory. It is noteworthy that samples
of the contraband are sent for chemical
examination
and
not
the
whole
contraband article. S.I. Ram Nagina Singh
further demolished the prosecution case
by
admitting
that
there
was
no
distinguishing mark on the bag on the
basis of which he could say that the bag
was the same which was sealed on the
spot.

P.W.4 Shanker Prasad further gave a
death blow to the prosecution story by
saying that recovered Charas was not
sealed in the cloths which was produced
in the court. He further clarified that he
could not say that the bag produced in the
court was same bag, which was sealed on
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
498
the spot. In his own words "NIYALAYA
ME UPLABDH BAG KO DHEKHKAR
GAWAHN NE BATAYA KI MAI NAHI
BATA SAKTA HOO KI YAH BAG
MAUKE PAR BARAMAD HOOYA
THA YA NAHI". Constable Shanker
Prasad gave out that except Charas and
bag nothing was recovered from the
possession
of
the
appellants.
This
statement of the witness does not inspire
confidence. The appellants were coming
from Nepal and were going to Nichlaul.
They must be having some money in their
pockets to meet the necessary expenses.

16. I further find that no link
evidence was produced by the prosecution
to show that the samples taken out by the
arresting officer were actually sent to the
Forensic Science Laboratory and the same
samples were actually examined.

17. The prosecution has further
failed
to
explain
as
to
why
the
investigating officer was not examined in
the trial court.

18. The prosecution produced two
public witnesses Ram Prasad and Ishaque
and both stated categorically that no
Charas was recovered from the possession
of the appellants in their presence nor
they were arrested. They turned hostile. In
cross-examination by the State Counsel
they asserted that their signatures were
obtained on blank papers. Thus, there is
no
evidence
of
independent
public
witnesses to support the prosecution story.

19. In view of the infirmities and
discrepancies
in
prosecution
case/evidence on record, I hold that the
learned trial court committed error in
appraisal of the evidence on record as
well as in the application of relevant law.
Consequently, I hold that the conviction
of the appellants is not sustainable and is
liable to be set aside.

20. In the result, the appeal is
allowed and the conviction and sentence
passed by the trial court against the
appellants are set aside and they are
acquitted. The appellant no 1 is on bail.
His bail bonds are cancelled and sureties
are discharged. The appellant no.2 is in
jail. He will be reliesed forthwith if his
not wanted in any other crime.
Appeal Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 23.4.2004

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Writ Petition No.1358 of 1984

Smt. Sarwari Begum

...Petitioner
Versus
VII Additional District Judge and others

 ...Respondents

Counsel for the Petitioner:
Sri Navin Sinha
Sri Ashish Srivastava

Counsel for the Respondents:
Sri Chandjra Prakash
S.C.

U.P. Urban Buildings (Regulation of
letting, Rent and Eviction) Act, 1972- S.
21(1)
(a)-
Release
application
by
landlady for her own and her son's
residence
after
making
additional
constructions- the need of land lady,
held, bonafide and genuine- Petitioners
could not be saddled to live in one room
of which she is not full owner- She is
entitled to stay in premises in which she
is admittedly sole owner- Thus plaintiff,
held entitled to relief claimed in her