# Hukam Singh & Anr. (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 513
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-13
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hukam-singh-anr-in-jail-v-state-of-u-p-45849
- **Pages:** 8

## Headnote

Criminal Law - Indian Penal Code, 1860Conviction of the appellants under Sections
394, 307 read with Section 34, 411 - and
sentenced to undergo 8 years rigorous
imprisonment with fine of Rs.10,000/- each under
Section 307 read with Section 34 I.P.C.. under
Section 394 I.P.C. for seven years rigorous
imprisonment with fine of Rs.5,000/- and under
Section 411 I.P.C. for three years rigorous
imprisonment with fine of Rs.5,000/- The
doctrine of proportionality sentencing for any
514 INDIAN LAW REPORTS ALLAHABAD SERIES
offence has a social goal. Sentence is to be
imposed with regard being had to the nature of
the offence and the manner in which the offence
has been committed. The fundamental purpose
of imposition of sentence is based on the
principle that the accused must realize that the
crime committed by him has not only created a
dent in the life of the victim but also a concavity
in the social fabric.The judicial trend in the
country has been towards striking a balance
between reform and punishment. The protection
of society and stamping out criminal proclivity
must be the object of law which can be achieved
by imposing appropriate sentence on criminals
and wrongdoers - In our country the reformative
and corrective approach has been adopted in
criminal justice administration. There is nothing
on record to show that the accused-appellants
are incapable of being reformed. The accusedappellants are in jail continuously for more than
five years. Every convict is entitled for the
advantage
of
reformative
and
corrective
jurisprudence-The
accused-appellants
had
assaulted the injured causing grievous and
serious injuries, which were fatal to life.
Therefore, their appeals on merit are dismissed
and only heard on the quantum of sentence -
Considering the facts and circumstances of the
case and looking to the facts that appellants are
in jail and more than five years have elapsed;
they are married persons and they have to
support their families; there is no one to look
after their families and their families are at the
verge of starvation and also considering the
status of the appellants this Court considers that
end of justice would be served if the appellants
are punished for the period already undergone
and with fine only. The fine is enhanced from
Rs.20,000/- to Rs.25,000/- each.

Quantum
of
sentence-
Doctrine
of
Proportionality of Sentence - Has a social
goal and is based on the principle that the
accused
must
realize
that
the
crime
committed by him has not only created a
dent in the life of the victim but also a
concavity in the social fabric.
It is settled law that sentence awaded should be
proportionate to the gravity of the offence
committed by the accused so that the accused
must realize the effect of the offence on the life of
the victim and the society.
Quantum
of
Sentence-
Reformative
Theory of Punishment- In our country the
reformative and corrective approach has
been
adopted
in
crimi

## Text

6 All. Hukam Singh & Anr. Vs. State of U.P.
513
already noticed by us and the fact that to
send the appellant back to jail now after 7
years of the annoy and harassment of these
proceedings when he is also going to lose
his job and to earn a living for himself and
for his family members and for those
dependent on him, we feel that it would
meet the ends of justice if we reduce the
sentence of imprisonment to that already
undergone but increase the sentence of fine
from Rs- 200/- to Rs. 400/-. Period of
imprisonment in case of default will remain
the same."

9.

Considering
the
facts
and
circumstances
of
the
case
and
the
substantive period already undergone by
the appellant in this case and the fact that
the appellant is a young person and he is
the only bread earner in the family and that
he might have realized the mistake
committed by him and might remorseful of
his conduct to the society to which he
belongs, I am of the considered opinion
that he should be given a chance to reform
himself and his better contribution to the
society to which he belongs to.

10. Considering the fact that the
accused is in jail since 13.3.2018. He was
awarded maximum sentence of five years;
that he has served two years before
conviction and about two years after
conviction; that he has already served about
four years and it would be appropriate and
proper that the accused be sentenced with
the period already undergone and the
amount of fine be enhanced.

11. Considering all the facts and
circumstances of the case, the accusedappellant is sentenced to the period already
undergone by him in jail during trial and
after conviction an amount of fine of Rs.
4000/- be enhanced to Rs. 10,000/-.

12. Accused-appellant is directed to
deposit the fine of Rs. 10,000/- before
learned lower court at the time of applying
for release order, out of which Rs. 9000/-
shall be paid to the injured, if he/she is
alive and in case he/she is dead, then it
would be paid to his/her legal heirs.

13. Appeal is partly allowed in the
above terms.

14. Copy of this order be transmitted
to the concerned lower court forthwith for
compliance.
----------
(2020)06ILR A513
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.02.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. - 4156 of 2017
&
Criminal Appeal No. - 1807 of 2019

Hukam Singh & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Anil Kumar Srivastava, Sri Ram Bahadur

Counsel for the Opposite Party:
A.G.A., Sri Bharat Singh

Criminal Law - Indian Penal Code, 1860Conviction of the appellants under Sections
394, 307 read with Section 34, 411 - and
sentenced to undergo 8 years rigorous
imprisonment with fine of Rs.10,000/- each under
Section 307 read with Section 34 I.P.C.. under
Section 394 I.P.C. for seven years rigorous
imprisonment with fine of Rs.5,000/- and under
Section 411 I.P.C. for three years rigorous
imprisonment with fine of Rs.5,000/- The
doctrine of proportionality sentencing for any
514 INDIAN LAW REPORTS ALLAHABAD SERIES
offence has a social goal. Sentence is to be
imposed with regard being had to the nature of
the offence and the manner in which the offence
has been committed. The fundamental purpose
of imposition of sentence is based on the
principle that the accused must realize that the
crime committed by him has not only created a
dent in the life of the victim but also a concavity
in the social fabric.The judicial trend in the
country has been towards striking a balance
between reform and punishment. The protection
of society and stamping out criminal proclivity
must be the object of law which can be achieved
by imposing appropriate sentence on criminals
and wrongdoers - In our country the reformative
and corrective approach has been adopted in
criminal justice administration. There is nothing
on record to show that the accused-appellants
are incapable of being reformed. The accusedappellants are in jail continuously for more than
five years. Every convict is entitled for the
advantage
of
reformative
and
corrective
jurisprudence-The
accused-appellants
had
assaulted the injured causing grievous and
serious injuries, which were fatal to life.
Therefore, their appeals on merit are dismissed
and only heard on the quantum of sentence -
Considering the facts and circumstances of the
case and looking to the facts that appellants are
in jail and more than five years have elapsed;
they are married persons and they have to
support their families; there is no one to look
after their families and their families are at the
verge of starvation and also considering the
status of the appellants this Court considers that
end of justice would be served if the appellants
are punished for the period already undergone
and with fine only. The fine is enhanced from
Rs.20,000/- to Rs.25,000/- each.

Quantum
of
sentence-
Doctrine
of
Proportionality of Sentence - Has a social
goal and is based on the principle that the
accused
must
realize
that
the
crime
committed by him has not only created a
dent in the life of the victim but also a
concavity in the social fabric.
It is settled law that sentence awaded should be
proportionate to the gravity of the offence
committed by the accused so that the accused
must realize the effect of the offence on the life of
the victim and the society.
Quantum
of
Sentence-
Reformative
Theory of Punishment- In our country the
reformative and corrective approach has
been
adopted
in
criminal
justice
administration- The judicial trend in the
country has been towards striking a balance
between
reform
and
punishment.
The
accused-appellants had assaulted the injured
causing grievous and serious injuries, which
were fatal to life- Therefore, their appeals on
merit are dismissed and only heard on the
quantum of sentence- end of justice would
be served if the appellants are punished for
the period already undergone and with fine
only.
The reformative approach to punishment as
a measure to reclaim the offender, lays
emphasis on rehabilitation so that the
offender is transformed into a good citizen.
Accordingly, in view of the fact that the
appellant has already undergone more than
half period of his sentence he should be
given a chance to reform himself. Sentence
modified to the period already undergone by
the appellant and fine enhanced. (Para 18,
19,22, 25, 26)

Criminal Appeals partly allowed. (E-3)

Case Law relied upon:-

1. Mohd. Giasuddin Vs St. of AP AIR (1977) SC 1926

2. Sham Sunder Vs Puran (1990) 4 SCC 731

3. St. of M.P Vs Najab Khan (2013) 9 SCC 509

4. Deo Narain Mandal Vs. St. of UP (2004) 7
SCC 257

5. Shyam Narain Vs St. (NCT of Delhi) (2013) 7
SCC 77

6. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

7. St. of Punj. Vs Bawa Singh (2015) 3 SCC 441

8. Raj Bala Vs St. of Har. (2016) 1 SCC 463

9. Kokaiyabai Yadav Vs St. of Chhattis. (2017)
13 SCC 449
6 All. Hukam Singh & Anr. Vs. State of U.P.
515
10. Ravada Sasikala Vs St. of A.P. AIR (2017)
SC 1166

(Delivered by Hon'ble Ajit Singh, J.)

1- Short counter affidavit filed on
behalf of the complainant is taken on
record.

2- Heard Sri Anil Kumar Srivastava,
learned Senior Advocate appearing on
behalf of the appellants in (Criminal
Appeal No. 4156 of 2017) and Sri N.I.
Zafri, learned Senior Advocate appearing
for the appellant in (Criminal Appeal No.
1807 of 2019), Sri Bharat Singh, learned
counsel appearing for the complainant and
Sri Ravi Prakash Pandey and Sri Dinesh
Kumar Singh learned A.G.A. for the State.

3- Delay, if any, in filing the Criminal
Appeal No. 1807 of 2019 is condoned and
the application for condonation of delay, if
any, is allowed.

4- With the consent of learned
counsel for both the parties, these two
above criminal appeals have been heard
together and they are being decided by a
common judgment.

5- These criminal appeals have been
preferred by the appellants-Hukam Singh,
Chainpal and Raksha Pal against the
judgment and order dated 05.06.2017
passed
by
the
Additional
Sessions
Judge/Special Judge, D.A.A., Budaun in
Special Sessions Trial No. 109 of 2014
(State Vs. Rakashpal and others) convicting
the appellants under Sections 394, 307 read
with Section 34, 411 I.P.C. and sentencing
them
to
undergo
8
years
rigorous
imprisonment with fine of Rs.10,000/- each
under Section 307 read with Section 34
I.P.C.. In case of default of payment of
fine, they shall further undergo one year
additional imprisonment, under Section 394
I.P.C.
for
seven
years
rigorous
imprisonment with fine of Rs.5,000/-. In
case of default of payment of fine, they
shall further undergo six months additional
imprisonment and under Section 411 I.P.C.
for three years rigorous imprisonment with
fine of Rs.5,000/-. In case of default of
payment of fine, they shall further undergo
six months additional imprisonment. All
the sentences awarded to the appellants
shall run concurrently. The period of
detention spent by the appellants in jail
shall be adjusted.

6-

In
nutshell,
according
to
prosecution case, an F.I..R. was lodged
against the appellants under Sections
394/37 I.P.C. alleging therein that on
09.08.2014 at about 5-00 P.M. when the
informant was closing the shop of jewellery
then
Rakashpal,
Hukam
Singh
and
Chainpal and another unknown person,
who were armed with iron rods and sariya
in their hands, came in front of informant
shop with intention to kill him and badly
beaten him as a result of which he received
injuries on head, hand and leg and while
going they had taken away 400 gramsof
golden jewellery, five kilograms of silver
jewellery along with cash of Rs.65,000/-.
At the time of incident, some shopkeepers
had gathered there but due to threat nobody
came forward to save him. Before this
incident, there was some 'marpits'; between
the complainant and accused persons.
Accused looted his motorcycle. In this
regard a report was lodged at the Police
Station and the accused were arrested and
sent to jail.

7- A case was registered. After
investigation, charge-sheet was submitted
against the appellants under Sections 394,
516 INDIAN LAW REPORTS ALLAHABAD SERIES
307 & 411 I.P.C. and charges were framed
to which appellants pleaded not guilty and
claimed to be tried.

8- In support of its case, the
prosecution
examined
five
witnesses,
namely,
P.W.1-Deepak
Varma-injured,
P.W.2-
Sunil
Varma,
P.W.3
-
S.I./Investigating Officer Amit Kumar,
P.W.4 -Dr. Brajeshwar Singh and P.W.5 -
Dr. Manoj Mishra and they proved the
relevant documents relating to this crime.

9- Statement of the accused/appellants
were recorded under Section 313 Cr.P.C. in
which they stated that they have been
falsely implicated in this case.

10- After hearing learned counsel for
the
appellants
as
well
as
District
Government Counsel (Criminal), impugned
judgment and order dated 05.06.2017 was
passed
by
the
Additional
Sessions
Judge/Special
Judge,
D.A.A.,
Budaun
convicting the appellants-Hukam Singh,
Chainpal and Raksha Pal, under Sections
394, 307 read with Section 34, 411 I.P.C.

11- Learned counsel for the appellant
submitted that the impugned judgment is
against law and fact. Sentences awarded by
the court below are excessive and harsh.
No offence under Sections 394, 307 read
with Section 34, 411 I.P.C. is made out
against the appellants. Learned counsel for
the appellants further
submitted that
accused-appellants faced trial from jail and
they were not bailed out during trial and
more than five and half years have elapsed
and two accused amongst three are real
brothers (Hukam singh and Chainpal) and
third accused-appellant is a family member
of the aforesaid two appellants. At the time
of incident, the age of the appellants,
namely, Hukam singh was 35 years,
Chainpal 30 years and Rakshpal Pal 26
years, respectively. At present, the age of
the appellants is 40-41 years, 36 years and
30 years, respectively. They are married
persons and they have to support their
families. The appellants belong to the rural
area; they are very poor persons; there is no
criminal antecedent/criminal history against
the appellants and reformative theory is
prevailing in India, hence ends of justice
would be served if the appellants are
sentenced to the period already undergone
and with same fine only.

12- Learned counsel for the appellants
further submitted that F.I.R. was lodged
against three accused-appellants only on
the basis of the fact that assault was
committed by the appellants on the injured.

13- Learned counsel for the appellants
further submitted that all the witnesses of
fact have clearly stated that all accused had
assaulted the injured and general role of
causing injury to injured was assigned to all
accused/appellants, it is not clear who is the
author of injury caused on head, hand and
leg of the injured. Learned counsel for the
appellants has further submitted that he
does not want to press these appeals on
merits. He wanted to press these appeals
only on the quantum of sentence and on the
quantum of sentence has submitted that the
accused are in jail since they have been
arrested in this crime and they were not
released on bail during the trial and after
their conviction. They are in jail since more
than five and half years. They are poor
persons. They are the only bread earners of
their families and their families are at the
verge of starvation.

14- On the other hand, learned A.G.A.
has supported the judgment of the trial
court by saying that injured had deposed in
6 All. Hukam Singh & Anr. Vs. State of U.P.
517
the court below against the appellants
which is corroborated by the medical
evidence; hence the appeal is liable to be
dismissed.

15- In Mohd. Giasuddin Vs. State of
AP, AIR 1977 SC 1926, explaining
rehabilitary & reformative aspects in
sentencing it has been observed by the
Supreme Court:-

"Crime
is
a
pathological
aberration. The criminal can ordinarily be
redeemed and the state has to rehabilitate
rather than avenge. The sub-culture that
leads to ante-social behaviour has to be
countered not by undue cruelty but by reculturization. Therefore, the focus of
interest in penology in the individual and
the goal is salvaging him for the society.
The infliction of harsh and savage
punishment is thus a relic of past and
regressive times. The human today vies
sentencing as a process of reshaping a
person
who
has
deteriorated
into
criminality and the modern community has
a primary stake in the rehabilitation of the
offender as a means of a social defence.
Hence a therapeutic, rather than an 'in
terrorem' outlook should prevail in our
criminal courts, since brutal incarceration
of the person merely produces laceration of
his mind. If you are to punish a man
retributively, you must injure him. If you
are to reform him, you must improve him
and, men are not improved by injuries."

16- In Sham Sunder vs Puran,
(1990) 4 SCC 731, where the high court
reduced the sentence for the offence under
section 304 part I into undergone, the
supreme court opined that the sentence
needs to be enhanced being inadequate. It
was held:

"The
court
in
fixing
the
punishment for any particular crime should
take into consideration the nature of
offence, the circumstances in which it was
committed, the degree of deliberation
shown by the offender. The measure of
punishment should be proportionate to the
gravity of offence."

17- In State of MP vs Najab Khan,
(2013) 9 SCC 509, the high court, while
upholding conviction, reduced the sentence
of 3 years by already undergone which was
only 15 days. The supreme court restored
the sentence awarded by the trial court.
Referring the judgments in Jameel vs State
of UP (2010) 12 SCC 532, Guru Basavraj
vs State of Karnatak, (2012) 8 SCC 734,
the court observed as follows:-

"In operating the sentencing
system, law should adopt the corrective
machinery or the deterrence based on
factual matrix. The facts and given
circumstances in each case, the nature of
the crime, the manner in which it was
planned and committed, the motive for
commission of the crime, the conduct of the
accused, the nature of weapons used and
all other attending circumstances are
relevant facts which would enter into the
area of consideration. We also reiterate
that undue sympathy to impose inadequate
sentence would do more harm to the justice
dispensation system to undermine the
public confidence in the efficacy of law. It
is the duty of court to award proper
sentence having regard to the nature of
offence and the manner in which it was
executed or committed. The courts must not
only keep in view the rights of victim of the
crime but also the society at large while
considering the imposition of appropriate
punishment."
518 INDIAN LAW REPORTS ALLAHABAD SERIES

18- Earlier, "Proper Sentence" was
explained in Deo Narain Mandal Vs. State
of UP (2004) 7 SCC 257 by observing that
Sentence should not be either excessively
harsh
or
ridiculously
low.
While
determining the quantum of sentence, the
court should bear in mind the principle of
proportionately. Sentence should be based
on facts of a given case. Gravity of offence,
manner of commission of crime, age and
sex of accused should be taken into
account. Discretion of Court in awarding
sentence cannot be exercised arbitrarily or
whimsically.

19- In subsequent decisions, the
supreme court has laid emphasis on
proportional sentencing by affirming the
doctrine of proportionality. In Shyam
Narain vs State (NCT of delhi), (2013) 7
SCC 77, it was pointed out that sentencing
for any offence has a social goal. Sentence
is to be imposed with regard being had to
the nature of the offence and the manner in
which the offence has been committed. The
fundamental purpose of imposition of
sentence is based on the principle that the
accused must realize that the crime
committed by him has not only created a
dent in the life of the victim but also a
concavity in the social fabric. The purpose
of just punishment is that the society may
not suffer again by such crime. The
principle of proportionality between the
crime committed and the penalty imposed
are to be kept in mind. The impact on the
society as a whole has to be seen. Similar
view has been expressed in Sumer Singh
vs Surajbhan Singh, (2014) 7 SCC 323,
State of Punjab vs Bawa Singh, (2015) 3
SCC 441, and Raj Bala vs State of
Haryana, (2016) 1 SCC 463.

20- In Kokaiyabai Yadav vs State of
Chhattisgarh(2017) 13 SCC 449, it has
been observed that reforming criminals
who understand their wrongdoing, are able
to comprehend their acts,have grown and
nartured into citizens with a desire to live a
fruitful life in the outside world, have the
capacity of humanising the world.

21- In Ravada Sasikala vs. State of
A.P. AIR 2017 SC 1166, the Supreme
Court referred the judgments in Jameel vs
State of UP (2010) 12 SCC 532, Guru
Basavraj vs State of Karnatak, (2012) 8
SCC 734, Sumer Singh vs Surajbhan
Singh, (2014) 7 SCC 323 , State of Punjab
vs Bawa Singh, (2015) 3 SCC 441, and
Raj Bala vs State of Haryana, (2016) 1
SCC 463 and has reiterated that, in
operating the sentencing system, law
should adopt corrective machinery or
deterrence based on factual matrix. Facts
and given circumstances in each case,
nature of crime, manner in which it was
planned
and
committed,
motive
for
commission of crime, conduct of accused,
nature of weapons used and all other
attending circumstances are relevant facts
which
would
enter
into
area
of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the
public confidence in the efficacy of law. It
is the duty of every court to award proper
sentence having regard to nature of offence
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced.

22- The judicial trend in the country
has been towards striking a balance
between reform and punishment. The
6 All. Hukam Singh & Anr. Vs. State of U.P.
519
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

23- In view of the above, it is clear
that in our country the reformative and
corrective approach has been adopted in
criminal justice administration. There is
nothing on record to show that the accusedappellants
are
incapable
of
being
reformated. The accused-appellants are in
jail continuously for more than five years.
Every convict is entitled for the advantage
of
reformative
and
corrective
jurisprudence.

24- I have heard learned counsel for
the appellants, learned A.G.A. for the State
as well as perused the injury report of the
injured which shows that the accusedappellants had assaulted the injured causing
grievous and serious injuries, which were
fatal to life. Therefore, their appeals on
merit are dismissed and only heard on the
quantum of sentence.

25- After considering the rival
submissions made by the learned counsel
for the parties and considering the facts and
circumstances of the case and looking to
the facts that appellants are in jail since
17.8.2014 and more than five years have
elapsed; they are married persons and they
have to support their families; there is no
one to look after their families and their
families are at the verge of starvation and
also considering the status of the appellants
and considering that the incident took place
on 9.8.2014 and the accused-appellants
were arrested and and since then they are in
jail, this Court considers that end of justice
would be served if the appellants are
punished for the period already undergone
and with fine only. The fine is enhanced
from Rs.20,000/- to Rs.25,000/- each.

26- In above backdrop, both the
appeals are partly allowed. The impugned
judgment and order dated 05.06.2017
passed
by
the
Additional
Sessions
Judge/Special Judge, D.A.A., Budaun is
modified to the extent that the appellants
are sentenced to the period already
undergone under Sections 394, 307/34 &
411 with fine of Rs.25,000/- (Twenty five
thousand). In case of default of payment of
fine, they shall further undergo six months
simple imprisonment. The appellants shall
be released forthwith if they are not wanted
in any other case.

27- The appellants are directed to
deposit the fine of Rs.25,000/- (Twenty
five thousand) within a period of six
months from today, which shall he paid to
the injured (Deepak Varma).

28- Office is directed to send the
copy of this order along with lower court
record
to
the
court
concerned
immediately for necessary compliance.
Compliance report shall be submitted
within three months, which shall be kept
on record.
----------
520 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)06ILR A520
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.05.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. - 4537 of 2018

Darshan Singh Dhimar...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Lalit Kumar Srivastava, Sri Narendra
Kumar Sharma, Sri Sandeep Kumar, Sri
Sunil Kumar Kushwaha

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

Nowhere it has been mentioned by the
prosecution in its evidence as to wherefrom the
weighing machine was brought and from whom
it was brought- It was a public duty cast upon
the concerned police official to disclose the
name of the shop keeper in the FIR as well as in
the charge sheet, but the name of shop keeper
has not been disclosed for the reasons best
known to the prosecution side and this lacuna is
sufficient to make the prosecution story
doubtful- Nowhere it has been mentioned by the
prosecution that the report of the seizure of the
contraband and arrest of the accused was given
to the Superior Officer as laid down by the
Section 42 of the NDPS Act- Nor, the
prosecution
has
adduced
any
evidence
regarding the sending of special report to the
Superior Officer, hence compliance of the
provisions of Section 42 has not been proved by
the prosecution- Compliance of Section 55 was
not made- No evidence by the prosecution has
been led that the recovered articles were given
in the charge of concerned officer of the police
station and the alleged recovered contraband
was kept in safe custody- No evidence has been
adduced by the prosecution that the matter was
produced before the Station House Officer and
he put his signature and seal over the alleged
recovered contraband and then, it was kept in
safe custody or it was given to the Maalkhana
Moharrir who could place it in the safe custody
because
no
Malkhana
register
was
ever
produced in evidence before the Trial Court and
no such oral evidence in this regard was ever
produced by the prosecution before the Trial
Judge - Non compliance of Section 57- No such
evidence is led by the prosecution in the present
case during the trial that any report was ever
submitted about the such arrest and seizure in
compliance of the Section 57 to the superior
officer- Section 50 of the NDPS Act was not
complied with and the non compliance of this
Section has vitiated the whole prosecution
story seriously which makes the conviction of
the appellant by the learned Trial Court
contrary to the law-The requirements of
Section 50 of the NDPS Act are mandatory
and, therefore, the provisions of Section 50
must be strictly complied with- It cannot be
ascertained that the provisions laid down in
Section 50 of the Act were complied with in
its entirety. In this context PW-3, Vidya Kant
Patel, has said only that the arrested person
was apprised of his right if he wished that his
search be conducted before any Gazetted
Officer or Magistrate, he was not agree for his
search before Magistrate and he consented
that search be made by the police party itself.

Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985-
Section 20 - Seizure of Ganja- No
disclosure
by
prosecution
about
the
person from whom the weighing machine
was obtained- Owner of weighing machine
not a witness in the Charge sheet- It was
a public duty cast upon the concerned
police official to disclose the name of the
shop keeper in the FIR as well as in the
charge sheet, but the name of shop
keeper has not been disclosed for the
reasons best known to the prosecution
side and this lacuna is sufficient to make
the prosecution story doubtful.
In order to prove it's case it was incumbent
upon the prosecution to disclose the owner
of the weighing machine and make him a
witness in the police report / charge sheet,
in absence of which the case of the
prosecution becomes doubtful.