# Jagraj / (In Jail) v. State of U.P

- **Citation:** (2019) 1 ILRA 307
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-08-28
- **Case number:** Mahoba in Session Trial No.116 of 2007
- **Bench:** Mrs. Manju Rani Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagraj-in-jail-v-state-of-u-p-44456
- **Pages:** 12

## Headnote

A. Section 8/18 of NDPS Act. - Appeal
against conviction - Defect in framing of
charge. Mere wrong mention of section
Held:- does not vitiate the trial.

Appellant was fully aware that he is being
charged for keeping 200 gms. of Opium
without there being any license to keep the
same. The error appears to have occurred in
mentioning the section of the offence and in
place of "section 18", "section 20" has been
mentioned. Mere defect in the charge will not
vitiate
the
trial
automatically
but
such
eventuality gives an occasion to the accused to
prove or to show that serious prejudice has
been caused to him on account of the
error/defect in framing of charge. (Para 17)

Criminal Appeal dismissed.

Chronological list of Cases Cited: -

## Text

_Characters 0–39,975 of 40,229. This is a partial read: ask again with offset=39975 for what follows._

1 All. Jagraj Vs. State of U.P.
307
appellant Kalluwa during his examination,
nowhere is mentioned in order sheet as to
whether appellant was standing in court
room with so many accused/people or was
standing alone. As it had already observed
that the appellant Kalluwa and P.W-1 Annu
alias Daya Shankar are residents of same
town. Thus, in view of the peculiar facts and
circumstances of this case P.W-1 Annu alias
Daya Shankar had of ample opportunity to
see, appellant after the occurrence and prior
to identification, in Court. His statement
regarding identification of appellant is not
reliable. Similarly statement of P-W-2 Vimla
who also did not know appellant Kalluwa
prior to the occurrence and came to know his
name as told to her by P.W- 3 Rajju, is also
doubtful.

46.

Every
contradiction,
inconsistency between the statement of
witnesses, normally, may not be treated
material but where accused/appellant and
witness are residents of same town and
occurrence had taken place in the night,
neither name of accused nor name of
witness or description of weapon was
mentioned in F.I.R, important natural and
independent witness present at the time of
occurrence
were
not
produced,
no
identification parade was conducted, eye
witnesses are relatives and out of these
witnesses one witness, PW-3 Rajju is not
resident to the nearby place of occurrence,
the contradiction and inconsistency found
herein above are major and important
which have demolished the castle of
prosecution case.

47. Thus, in view of the above, we
are of the considered view that the
prosecution has failed to prove its case
beyond
reasonable
doubt
against
appellant. He is entitled to be acquitted
against charge levelled against him. The
judgment and order passed by learned
Additional Session Judge, Court No.2,
Mahoba in Session Trial No.116 of 2007
is hereby set aside. Consequently, the
appeal is allowed.

48. The appellant is in jail. He, if not
wanted in any other case, shall be released
forthwith.

49. Keeping in view the provision of
Section 437-A of the Code, appellantKalluwa is hereby directed forthwith to
furnish a personal bond of a sum of
Rs.10,000/- each and two reliable sureties
each of the like amount before Trial Court,
which shall be effective for a period of six
months, along with an undertaking that in the
event of filing of Special Leave Petition
against this judgment or for grant of leave,
appellant-Kalluwa, on receipt of notice
thereof, shall appear before Hon'ble Supreme
Court.

50. A copy of this judgment be sent
to Trial Court by FAX for immediate
compliance. Tbe Lower Court's record be
also sent back along with a copy of this
judgment.
-------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2019

BEFORE
THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

CRIMINAL APPEAL No. 5200 OF 2009

Jagraj ...Applicant/Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Harikesh Kumar Gupta, Sri Ajay Kumar
Kashyap, Sri R.B. Pal.
308 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Opposite Party:
A.G.A.

A. Section 8/18 of NDPS Act. - Appeal
against conviction - Defect in framing of
charge. Mere wrong mention of section
Held:- does not vitiate the trial.

Appellant was fully aware that he is being
charged for keeping 200 gms. of Opium
without there being any license to keep the
same. The error appears to have occurred in
mentioning the section of the offence and in
place of "section 18", "section 20" has been
mentioned. Mere defect in the charge will not
vitiate
the
trial
automatically
but
such
eventuality gives an occasion to the accused to
prove or to show that serious prejudice has
been caused to him on account of the
error/defect in framing of charge. (Para 17)

Criminal Appeal dismissed.

Chronological list of Cases Cited: -

1. Willie (William) Slaney vs. State of Madhya
Pradesh reported in AIR 1956 SC 116,

2. State of Orissa vs. Rajendra Tripathi
reported in 2004 SCC (Crl.) 1586,

3. Girdhari vs. State of Rajasthan reported in
(2010) 15 SCC 576,

4. Pon Adithan vs. Deputy Director, Narcotics
Control Bureau, Madras reported in (1999) 6
SCC 1, (E-2)

(Delivered by Hon'ble Mrs. Manju Rani
Chauhan, J.)

1. The present criminal appeal has
been preferred by the accused appellant
Jograj
challenging
the
order
dated
05.06.2009 passed by Additional Sessions
Judge, Court No.1, Pilibhit, in Special
Trial No.63 of 2007 (State vs. Jograj)
arising out of Case Crime No.1080 of
2007 u/s 8/18 Narcotics Drugs &
Psychotropic
Substances
Act,
1985,
Police Station Neuria, District Pilibhit,
whereby the appellant has been convicted
u/s 8/18 Narcotics Drugs & Psychotropic
Substances Act, 1985 and has been
sentenced
for
four
years
rigorous
imprisonment and a fine of Rs.10,000/-
and in default of payment of fine, for six
months further imprisonment.

2. Heard Mr. R.B. Pal, Advocate
holding brief of Mr. Ajay Kumar
Kashyap,
learned
counsel
for
the
appellant and Mr. Om Prakash Mishra,
learned Additional Government Advocate
as well as perused the record.

3. The prosecution case as narrated
in the F.I.R. lodged by P.W.1 SubInspector Gajram Singh is that on
22.08.2007, Sub-Inspector Gajram Singh
along with Constable Ran Singh &
Constable Kanhai Lal was busy in making
enquiry about an application and was also
on patrolling duty, during which when
they reached Pilibhit road near village
Gulhadiyan Dulhan, they received an
input from police informer that one
person sitting near the triangle of village
Dhankuna is possessed with opium.
Relying on this information, the police
personnel made a search of each other to
ensure that none of them were having any
illegal
substance
and
thereafter,
proceeded towards triangle of village
Dhankuna. They also tried to get
independent witnesses, but no one came
forward to become witness of search.
When they reached near the triangle of
village Dhankuna, the police informer
pointed out the person who was having
opium. As soon as the police personnel
reached close to that person, he tried to
run towards village Dhankuna, however
the
police
personnel
chased
and
apprehended him near the triangle of
1 All. Jagraj Vs. State of U.P.
309
village Dhankuna at about 07:30 P.M. and
upon being asked to disclose reason for
his running away from the police, he
confessed that he has opium in the
polythene bag kept in his hand and that is
why he ran on account of fear of his
arrest. The P.W.1 informed him about his
right to be searched in presence of a
Gazetted Officer or before a Magistrate.
But the arrested person reposed faith in
police personnel and consented for being
searched by them. On being asked, he
disclosed his name to be Jograj and upon
being
searched,
one
green
colored
polythene, having therein another white
polythene, was found in his right hand,
wherein a black colored sticky substance
smelling like opium was recovered. After
weighing, the quantity of substance was
found to be about 200 gms. Thereafter
accused Jograj was arrested and was
informed about the grounds for his arrest
and the mandate of law regarding arrest
and the instructions issued by Hon'ble
Supreme Court and National Human
Rights Commission regarding arrest and
search were followed. The recovered
substance was duly sealed and a memo
was prepared and copy thereof was given
to the accused after obtaining his thumb
impression and thereafter, the arrested
accused along with recovered substance
was brought and detained in police station
and on the basis of recovery memo and
arrest memo, an F.I.R. was registered on
22.07.2007 at about 9:10 A.M. The
entries of relevant facts were also made in
the general diary of the police station.
Thereafter
during
investigation,
the
sample of recovered substance was sent to
forensic laboratory at Lucknow for its
forensic examination and subsequently
forensic report was received, wherein
presence of opium was mentioned and
percentage of morphine in the sample was
found to be 2.8%. After completing
investigation,
a
charge-sheet
was
submitted against the appellant u/s 8/18
Narcotics
Drugs
&
Psychotropic
Substances Act, 1985 (referred in short as
NDPS Act hereinafter).

4. The learned trial court, vide order
dated 01.12.2007, framed charge against
the accused appellant u/s 8/20 NDPS Act
and the trial proceeded.

5. The prosecution in order to prove
its case, examined five prosecution
witnesses, out of them, P.W.1 SubInspector
Gaj
Ram
Singh
is
first
informant of the case and is a witness of
arrest of accused appellant Jograj and the
recovery of 200gms. of opium from his
possession. P.W.2 Constable Ran Singh is
also witness of arrest of accused appellant
Jograj and recovery of 200gms. opium
from his possession. P.W.3 Constable
Clerk
Naveen
Kumar
Saxena
had
registered the F.I.R. and has proved the
registration of a criminal case. P.W.4
Sub-Inspector,
Bhuwaneshwar
Singh,
Investigating Officer, had conducted the
investigation and had submitted chargesheet. P.W.5 Constable Satyapal has
given the evidence about collection of
sample of recovered opium and send it to
forensic lab and has proved the link
evidence.

6. Thereafter, the accused appellant
Jograj was examined u/s 313 Cr.P.C., who
denied his involvement in the offence and
stated that some stolen property was
recovered from one person, whose wife
had kept two pants which were stolen
from his house and hence, the police had
challaned him in the false case of
Narcotics
Drugs
&
Psychotropic
Substance. He further stated that he will
310 INDIAN LAW REPORTS ALLAHABAD SERIES
adduce evidence in his defense but no
evidence was adduced by the defense.

7. The learned trial court relied the
prosecution witness and convicted the
accused appellant under section 8/18
NDPS Act and sentenced him to four
years R.I. and a fine of Rs.10,000/- and in
default of payment of fine, six months
further imprisonment. Feeling aggrieved
by this order of conviction and sentence,
the accused appellant Jograj preferred the
present criminal appeal.

8. The learned counsel for the
appellant has assailed the impugned order
of conviction and sentence and has
submitted that:-

(i) The prosecution case is not
supported by any independent public
witness and it would not be safe to rely
upon the evidence of police personnel
only.

(ii) There is anomaly in sending
the substance recovered to forensic lab
and although it is alleged that 40gms. of
sample was prepared and sent for testing
in forensic lab, but the substance alleged
to have been received in forensic lab has
been shown to be 37gms. only and hence,
the
entire
exercise
done
by
the
prosecution appears to be doubtful and the
prosecution case has to be disbelieved.

(iii) The charge framed against
the accused appellant is defective for the
reason that the substance alleged to have
been recovered from the possession of the
appellant is "opium", as such charge u/s
8/18 NDPS Act should have been framed,
but the learned trial court has framed
charge u/s 8/20 NDPS Act which relates
to substance "charas" and thus, there is
ambiguity and illegality in framing of
charge, which goes to the root of the
matter and causes prejudice to the
appellant and hence, the trial of the
accused appellant is vitiated in law.

(iv) The mandatory provisions
of NDPS Act and rules regarding search,
arrest and recovery, particularly sections
42 & 50, have not been complied with by
the police party in the present case, which
vitiates entire proceeding and the accused
appellant is liable to be acquitted.

9. On the other hand, the learned
Additional Government Advocate has
supported the order of conviction and
sentence and has contended that the
prosecution witness are wholly reliable
and the prosecution has proved its case
beyond reasonable doubts and the accused
appellant has miserably failed to show
any prejudice caused to him on account of
the alleged defect in framing the charge.

10. In the light of rival submissions,
this court proceeds to examine the
evidence available on record, which
reflects that the P.W.1 Sub-Inspector
Gajram Singh, the first informant has
stated that on 22.08.2007 he was posted at
police outpost Dhankuna, police station
Neuria and on that day he along with
constable Ran Singh and constable
Kanhai Lal left for outpost Dhankuna
after making an entry in the general diary
to conduct an enquiry on some application
received by him. When they reached near
triangle of village Gulhadiyan Dulhan, an
input was received from police informer
that one person who is sitting at
Dhankuna triangle is having opium in his
possession and he may be arrested.
Believing this information, the police
party after ensuring non-availability of
any illegal substance with them proceeded
to village Dhankuna triangle along with
police informer. P.W.1 Sub-Inspector
1 All. Jagraj Vs. State of U.P.
311
Gajram Singh, the first informant has
further stated that while proceeding, the
police
personnel
tried
to
procure
independent public witness but none from
public was ready to accompany them for
that
purpose.
After
reaching
near
Dhankuna tiraha, the police informer
pointed out towards one person said to
have opium in his possession and while
reaching towards that person, he tried to
run away but was chased and over
powered and was arrested. Upon being
asked, he disclosed that he is having
opium in a polythene bag. Upon this, the
P.W.1 apprised him about his right to be
searched in front of any Gazetted Officer
or Magistrate. The said person reposed
trust in police personnel and stated that he
is not willing to be searched before any
Gazetted Officer or Magistrate. Thereafter
again, P.W.1 tried to procure independent
public witness but none became ready for
that purpose and thereafter the aforesaid
person was interrogated who disclosed his
identity as Jograj Singh S/o Tika Ram,
resident of village Dhankuna, police
station Neuria, District Pilibhit. The
P.W.1 Sub-Inspector Gajram Singh has
also identified the accused in the court and
has stated before the court that he is the same
person who was found to be in possession of
Opium and when he was searched, a black
coloured sticky substance was recovered
from a white polythene which was kept in a
green coloured polythene laying in the right
hand of the accused appellant. Upon being
sniffed, the substance smelled like opium.
P.W.1 Sub-Inspector Gajram Singh has
stated that he asked the constable Kanhai Lal
to procure Taraju Baat and after weighing,
the weight of the substance was found to be
200 grams. The accused Jograj was asked to
produce the license of keeping opium but he
failed to show it. Then again he was
explained about the offence committed by
him and the recovered substance was
taken into possession by the police.
Meanwhile the endorsement of accused
regarding his consent to be searched by
police personnel was also obtained. The
substance was sealed on the spot and a
recovery memo was prepared upon which
the accused put his thumb impression and
the accompanying police personnel also
signed it. A copy of the recovery memo
was also given to accused Jograj and
thereafter he along with accused Jograj
went to police station and the criminal
case was registered against accused Jograj
and the recovered substance i.e. opium
was also kept in malkhana in a sealed
cover. The aforesaid witness was cross
examined by the defense in detail but
nothing material could be elicited from
the cross examination. A suggestion has
also been made to this witness that
accused appellant was arrested from the
house as he was a suspect of theft of a
engine in the village but he did not
confess regarding the theft so he has been
falsely implicated in this case. This
suggestion was readily denied by P.W.1.

11. Similar statements have been
given by P.W.2 Ran Singh, who has
supported the statement of P.W.1 in every
material aspect. Apart from other things, he
has also identified the bundle in which
substance, alleged to have been recovered
from the possession of the accused, was
kept and sealed by Sub-Inspector Gajram
Singh. He has further identified the
signature of Gajram Singh as well as his
own signature on the bundle and has also
identified the thumb impression of accused
Jograj. After opening the seal of the bundle
before trial court, the substance kept therein
in white polythene has also been identified
by P.W.2 as the substance recovered from
the possession of accused Jograj.
312 INDIAN LAW REPORTS ALLAHABAD SERIES

12. P.W.3 Constable Naveen Kumar
Saxena has given his statement regarding
registration of first information report and
has proved the Chik first information
report and other general diary entries
regarding admission of arrested accused
at
police
station
and
also
about
preservation of substance recovered from
accused Jograj in a sealed packet.

13.

The
P.W.4,
Sub-Inspector,
Bhuwneshwar
Singh
who
was
the
Investigating Officer of the case has proved
the steps taken by him during investigation
and he has also proved further investigation
done by Sub-Inspector, Dharam Singh and
has also given statement regarding sending
of sample of recovered substance to forensic
lab and receiving of forensic report from
concerned lab.

14. The P.W.5, Constable, Satyapal
has
given
link
evidence
regarding
preparation of sample and sending it to
forensic lab. He has also stated that a
sample of substance measuring about
40gms. was taken from the bundle and
was forwarded to forensic lab, Lucknow
on 13.09.2007 in a sealed cover and was
deposited
in
the
forensic
lab
on
14.09.2007.

15. With regard to the submissions
made by learned counsel for the
appellant that there is discrepancy
regarding the weight of the sample of
the
substance
recovered
from
the
possession of the appellant. In this
regard, while the prosecution case is
that 40 gms. of substance was sent to
forensic lab, the report of forensic lab
shows that only 37 gms. of substance
was received in the lab. Although
Exhibit Ka-9 by which the sample was
sent shows the quantity of the sample as
"about 40gms.", though a judicial notice
can be taken of the fact that such a minor
difference in the weight of substance in
question may occur on account of
difference of weighing machines and its
accuracy on both the ends, i.e. at the end
of local police and at the end of forensic
laboratory, especially in view of the fact
that because of stickiness of the substance
in question, it may not be completely
taken out from the bundle wherein it was
kept and it may also lose some weight on
account of time gap and may get affected
on account of change of humidity due to
change in weather conditions in between
the time of taking sample and its
examination at forensic lab. Furthermore,
the difference of weight, as suggested by
learned counsel for appellant, is too trivial
and is in fact inconsequential and cannot
be treated as discrepancy in prosecution
evidence and hence, it does not create any
doubt in the mind of the court.

16. With respect to defect in framing of
charge and consequential prejudice to
accused appellant, this court has gone
through the language of charge framed by
the trial court and bare perusal of charge
reveals that the accused/appellant has been
specifically informed to the effect that on
22.08.2007 at about 07:30 A.M., 200 gms. of
Opium have been recovered from the green
polythene held by accused/appellant in his
right hand. A copy of the charge framed
against the appellant is mentioned below:-

"vkjksi

eS]
vkj0ds0
tSu
vij
l=
U;k;k/khश@U;k;ky; la0 1] ihyhHkhr vki] tksxjkt
ij fuEufyf[kr vkjksi yxkrk gwa%&

;g fd fnukad 22-8-2007 dks le; 7%30
cts izkr% okgn xzke /kudquh eas frjkgk ds ikl Fkkuk
U;wfj;k ftyk ihyhHkhr ds {ks= esa vki iqfyl ikVhZ
}kjk fxjQrkj fd;s x;s vkSj vkids dCts ls vkidh
1 All. Jagraj Vs. State of U.P.
313
tek rykसh ls vkids nkfgus gkFk esa idM+s gjs jax
dh ikWyhFkhu ds vUnj ls 200 xzke vQhe cjken
gqbZ ftldks j[kus dk vkids ikl dksbZ ykblsal ugh
FkkA bl izdkj vkius /kkjk 8@20] Lokid औषधी,oa
eu%izHkkoh inkFkZ vf/kfu;e ds varxZr n.Muh;
vijk/k fd;k tks bl U;k;ky; ds izlaKku esa gSA

eS] ,rn}kjk vkidks funsZशnsrk gwa fd
vkidk fopkj.k mDr vkjksi ij bl U;k;ky; }kjk
fd;k tk;sxkA

fnukad% 01-12-2007

vkj0ds0 tSu

vij l= U;k;k/khश@U;k;ky; la0 1

ihyhHkhr

vkjksi vfHk;qDRk dks i<+dj lquk;k o
le>k;k x;kA mlus vkjksi vLohdkj djrs gq,
fopkj.k pkgkA

fnukad% 01-12-2007

vkj0ds0 tSu

vij l= U;k;k/khश@U;k;ky; la0 1

ihyhHkhr

17. Thus it is crystal clear that
accused appellant was fully aware that he
is being charged for keeping 200 gms. of
Opium without there being any license to
keep the same. The error appears to have
occurred in mentioning the section of the
offence and in place of "section 18",
"section 20" has been mentioned. The law
is well settled in this regard that mere
defect in the charge will not vitiate the
trial automatically but such eventuality
gives an occasion to the accused to prove
or to show that serious prejudice has been
caused to him on account of the
error/defect in framing of charge. Chapter
XVII of the Code of Criminal Procedure
deals with the framing of charge. The
relevant provisions in this regard find
place in sections 211, 212, 213 & 215 of
Cr.P.C. which are being quoted below:-

"211. Contents of charge-
(1) Every charge under this Code shall
state the offence with which the accused is
charged.

(2) If the law which creates the
offence gives it any specific name, the
offence may be described in the charge by
that name only.

(3) If the law which creates the
offence does not give it any specific name
so much of the definition of the offence
must be stated as to give the accused
notice of the matter with which he is
charged.

(4) The law and section of the
law against which the offence is said to
have been committed shall be mentioned
in the charge.

(5) The fact that the charge is
made is equivalent to a statement that
every legal condition required by law to
constitute the offence charged was
fulfilled in the particular case.

(6) The charge shall be written
in the language of the Court.

(7) If the accused, having been
previously convicted of any offence, is
liable, by reason of such previous
conviction, to enhanced punishment, or to
punishment of a different kind, for a
subsequent offence, and it is intended to
prove such previous conviction for the
purpose of affecting the punishment which
the Court may think fit to award for the
subsequent offence, the fact date and
place of the previous, conviction shall be
stated in the charge, and if such statement
has been omitted, the Court may add it at
any time before sentence is passed.

212-Particulars as to time,
place and person- (1) The charge shall
contain such particulars as to the time
and place of the alleged offence, and the
person (if any) against whom, or the thing
(if any) in respect of which. it was
committed , as are reasonably sufficient
314 INDIAN LAW REPORTS ALLAHABAD SERIES
to give the accused notice of the matter
with which he is charged.

(2) When the accused is charged
with criminal breach of trust or dishonest
misappropriation of money or other moveable
property, it shall be sufficient to specify the
gross sum or, as the case may be, described
the movable property in respect of which the
offence is alleged to have been committed,
without specifying particular items or exact
dates, and the charge so framed shall be
deemed to be a charge of one offence within
the meaning of section 219.

Provided that the time included
between the first and last of such dates
shall not exceed one year.

213.
When
manner
of
committing offence must be stated- When
the nature of the case is such that the
particulars mentioned in section 211 and
212 do not give the accused sufficient
notice of the matter with which he is
charged, the charge shall also contain
such particulars of the manner in which
the alleged offence was committed as will
be sufficient for that purpose.

215. Effect of errors- No error in
stating either the offence or the particulars
required to be stated in the charge, and no
omission to state the offence or those
particulars, shall be regarded at any stage of
the case as material, unless the accused was in
fact mislead by such error or omission, and it
has occasioned a failure of justice."

18. Like-wise, section 464 of
Cr.P.C. deals with the effect of omission
to frame, or absence of, or error in charge.
It states as under:-

"464. Effect of omission to frame,
or absence of, or error in, charge- (1) No
finding sentence or order by a Court of
competent jurisdiction shall be deemed invalid
merely on the ground that no charge was
framed or on the ground of any error,
omission or irregularity in the charge
including any misjoinder of charge, unless, in
the opinion of the Court of appeal,
confirmation or revision, a failure of justice
has in fact been occasioned thereby.

(2) If the Court of appeal,
confirmation or revision is of opinion that
a failure of justice has in fact been
occasioned, it may-

(a) in the case of an omission to
frame a charge, order that a charge be
framed and that the trial be recommenced
from the point immediately after the
framing of the charge.

(b)In the case of an error,
omission or irregularity in the charge,
direct a new trial to be had upon a charge
framed in whatever manner it thinks fit:
Provide that if the Court is of opinion that
the facts of the case are such that no valid
charge could be preferred against the
accused in respect of the facts proved, it
shall quash the conviction."

19. The Hon'ble Apex Court, while
deciding the reference in the case of
Willie (William) Slaney vs. State of
Madhya Pradesh reported in AIR 1956
SC 116, has elaborately discussed the
purpose and scope of framing of charge in
a criminal trial and has observed in
following manner:-

"Before we proceed to set out
our answer and examine the provisions of
the Code, we will pause to observe that
the Code is a code of procedure and, like
all procedural laws, is designed to further
the ends of justice and not to frustrate
them by the introduction of endless
technicalities. The object of the Code is to
ensure that an accused person gets a full
and
fair
trial
along
certain
well
1 All. Jagraj Vs. State of U.P.
315
established and well understood lines that
accord with our notions of natural justice.

If he does, if he is tried by a
competent court, if he is told and clearly
understands the nature of the offence for
which he is being tried, if the case against
him is fully and fairly explained to him and
he is afforded a full and fair opportunity of
defending himself, then, provided there is
"substantial" compliance with the outward
forms of the law, mere mistakes in
procedure, mere inconsequential errors and
omissions in the trial are regarded as venal
by the Code and the trial is not vitiated
unless the accused can show substantial
prejudice. That, broadly speaking, is the
basic principle on which the Code is
based".

20. In the present matter, the record
shows that at the time of framing of
charge, the accused was heard and after
framing of charge, it was read over and
explained to the accused appellant, but at
that point of time he did not raise any
grievance or objection regarding any type
of error or irregularity in framing of
charge.

21. Similarly, the prosecution
witnesses were examined in presence of
accused and his counsel, who clearly
stated that 200 gms. of opium was
recovered from the possession of the
accused appellant and hence, there was no
occasion to have doubt in the mind of the
accused appellant that he was charged and
was being tried for illegal possession of
200 gms. of any substance other than
opium regarding which he was not having
license. This fact was again put to accused
appellant by the Trial Court while putting
question no.2 at the time of his
examination U/s 313 Cr.P.C. and his
answer to question no.2 goes to show that
he was fully aware of the accusation made
against him. Furthermore, when the
learned Trial Court asked the accused
appellant as to whether he wants to say
anything further, the accused appellant
replied that no such opium has been
recovered from his possession. For ready
reference, the relevant question nos. 2 & 7
put by the learned Trial Court to the
accused and its reply by the accused
appellant are being quoted below:-

"प्रश्नla[;k 2& ih0MCyw0 1 ,l0vkbZ0
xtjke flag dk dFku gS fd idM+s x;s O;fDRk dk
uke irk iwNk vkSj Hkkxus dk dkj.k iwNk rks mlus
crk;k fd mlds ikl iksyhFkhu esa vQhe gSA bl ij
mlls dgk fd rqEgkjk fof/kd vf/kdkj gS fd rqe
viuh tek rykसh fdlh jktif=r vf/kdkjh ;k
eftLVasV ds le{k pydj ns ldrs gks rks vkidh
Lohd`fr ij vkidh tek rykसh yh xbZ rks vkids
nkfgus gkFk esa idM+s gjs jax dh ikWyhFkhu esa dkys
jax dk fpifpik inkFkZ cjken gqvkA ftls mlus
lw[kk o vU; deZpkfj;ks dks सुांघा;k tks mlesa ls
vQhe dh xa/k vk jgh Fkh rFkk cjken vQhe dks
rjktw ckaV ls rksyk rks vQhe dk out 200 xzke
fudykA ekSds ij QnZ iznशफd&1 vafdr dh xbZ rFkk
eky vQhe dks lhy eksgj fd;k vkSj eky o
vfHk;qDRk dks Fkkus esa nkf[ky djds eqdnek iathd`r
djk;kA vkidks blds laca/k esa D;k dguk gS\

mRrj&th ugha xyr gSA

प्रश्नla[;k 7& D;k vkidks dqN vkSj
dguk gS\

mRrj&pksjh dk eky ftlds ;gka cjken
gqvk Fkk mldh vkSjr us esjs ?kj ij nks iSUVsa pksjh
dh esjs ;gka igqapk nh FkhA iqfyl us QthZ vQhe
,u0Mh0ih0,l0 esa esjk pkyku dj fn;k esjs ikl esa
dksbZ vQhe cjken ugh gqbZ FkhA "

22. This statement of accused
appellant makes it amply clear that the
accused appellant was fully aware of the
prosecution allegations at every stage of
the trial and the error in mentioning the
provision number of offence, while
316 INDIAN LAW REPORTS ALLAHABAD SERIES
framing of charge, was not significant
even according to the accused himself.
Thus the submission made by learned
counsel with regard to the error in
framing charge is liable to be rejected.

23. For next submission regarding
non-compliance of mandatory provision
of section 42 & 50 of NDPS Act and
illegality in the arrest and the recovery
from appellant, the record shows that
P.W.1 & P.W.2 have categorically stated
to the effect that the accused was
informed, orally as well in writing on the
form prescribed for that purpose, about
his right to be searched before a Gazetted
Officer or Magistrate and moreover,
P.W.1 Gajram Singh has proved the
aforesaid documents as Exhibit Ka-1
which contains thumb impression of
accused Jograj. The memo of arrest and
the document regarding intimation of
arrest of accused to the District Legal Aid
Committee has also been proved as
Exhibit Ka-2. Like-wise the P.W.1 SubInspector, Gaj Ram Singh had received
information, when he was on the patrol
duty and he might not have chance to
reduce the same into writing and to
dispatch it to the Superintendent of
Police.

24. The position of law in this aspect
of the matter as laid down by Hon'ble
Apex Court in the case of State of Orissa
vs. Rajendra Tripathi reported in 2004
SCC (Crl.) 1586, enlightens this court,
wherein under similar set of facts,
conclusion was drawn in following
manner: -

"8. It has to be noticed that before
the trial Court and the High Court the stand
was taken by the accused persons alleging
non-compliance of Sections 42 and 50 of the
Act. The same was given up by the
respondents in this appeal and in our view
rightly. Considering the time when search and
seizure was done, and the undisputed position
that the detection was made while the officers
were on patrolling duty, Section 42 has no
application. Additionally the evidence of
P.W.s. 1 & 5 clearly shows that the accused
persons were given the liberty to be searched
in the presence of the prescribed officer and
they did not choose to be searched by any
person other than P.W.5. Therefore, the plea
related to non-compliance of Section 50 as
raised during trial and before the High Court
in addition to the concession, plea regarding
non-applicability of Sections 42 and 50 of the
Act is also without any substance. The
residual question is regarding custody of the
contraband articles and corrections in seizure
memo. The evidence on record clearly shows
that the forwarding report clearly indicated
that the articles were being produced before
the Magistrate. The order sheet of the
Magistrate shows that because he was busy
he directed that the articles should be
produced on 10.8.1992 for the purpose of
collecting samples."

25. In one another judgment in the
case of Girdhari vs. State of Rajasthan
reported in (2010) 15 SCC 576, the
Hon'ble Apex Court dealt with the
objection raised by the accused regarding
non-compliance of section 50 of NDPS
Act and rejected such objection, the
relevant portion whereof may be usefully
quoted herein below:-

"4. The learned counsel then
argued that the mandatory requirement of
section 50 has also not been complied with
inasmuch as there was an error in the memo
issued to the appellants as to their right of
being searched by a gazetted officer or
magistrate. He pointed out that in the said
1 All. Jagraj Vs. State of U.P.
317
memo given to the appellants instead of word
"magistrate", the word "Judicial Magistrate"
is used which is not the requirement of section
50 of the Act. We do notice that P.W.7 while
issuing the memo to the appellants has used
this word "judicial magistrate" instead of the
word "Magistrate" found in section 50 of the
Act. But then the learned counsel is unable to
point out to us what prejudice is caused to the
appellant by the usage of the word "judicial
magistrate" instead of the word "Magistrate".
In the absence of any such prejudice being
caused to the appellants, we think this
argument of learned counsel for the
appellants must also fail."

26. Recapitulating facts of the case,
it is found that apart from above noted
circumstances on the issue of compliance
of section 42 and 50 as well as arrest of
appellant and recovery of contraband, the
P.W.1 was not cross-examined on these
factual aspects of the matter and as such,
this court is satisfied that the provision of
section 42 and 50 of NDPS Act has been
duly complied with by the arresting police
party and there is also no illegality in the
arrest and the recovery from appellant.

27. With regard to the submission of
non-compliance of section 52 of Narcotics
Drugs & Psychotropic Substance Act, the
record of the case demonstrates that there is
sufficient material on record to satisfy this
court about due compliance of the provision
of section 52 of NDPS Act. The averment
regarding compliance of section 52 of
NDPS Act is available in the recovery
memo and first information report itself.
The P.W.1 Sub-Inspector, Gaj Ram Singh
and P.W.2 Constable Ran Singh have stated
in their deposition before the court that the
accused appellant was informed about his
right to be searched in presence of a
Gazetted Officer or Magistrate and in this
regard, his written consent was also taken
and produced in the court and was proved
by P.W.1 as Exhibit Ka-1.

28. Similarly, the submission with
regard to the non-presence of independent
witness is also not acceptable in as much
as the presence of independent witness
during search is not mandatory. Moreover
in the present case, it has been stated by
the prosecution witnesses that they had
tried to procure public witnesses but no
one came forward to become the witness
of search and arrest. This statement is not
improbable, in view of the fact that the
accused is resident of the same vicinity,
from where he was arrested. It is a matter
of common knowledge that the covillagers normally don't get ready to give
evidence against another co-villager in
criminal matters. Furthermore, there is no
such circumstance or material available
on record, which may discredit the
evidence of the searching officer who is
responsible government servant. In this
regard, the relevant part of the judgment
of Hon'ble Apex Court in the case of Pon
Adithan vs. Deputy Director, Narcotics
Control Bureau, Madras reported in
(1999) 6 SCC 1, may be referred, which
reads thus:-

"6. It was next contended by Mr.
Lalit that oral testimony of a witness
alone cannot be regarded as sufficient for
establishing that the requirement of
Section 50(1) was complied with. To
support this contention he relied upon the
decision of this Court in T. P. Razak v.
State of Kerala, 1995 Supp (4) SCC 256.
In that case the Sub-Inspector of Police
had searched the accused and recovered
brown sugar from him. He deposed before
the Court that before the accused was
searched he had asked the appellant
whether he wanted to be taken before a
318 INDIAN LAW REPORTS ALLAHABAD SERIES
Gazetted Officer or a Magistrate for the
purposes of search and that the accused
had replied that it was not necessary. As
this fact was not reflected either in the
F.I.R. or in the seizure mahazar and the
independent witness to the mahazar had
not supported the version of the SubInspector this Court held that the
prosecution had failed to establish that
there was compliance with the provision
of Section 50(1) of the Act. As it appears
from the judgment the trial Court in that
case had not considered it necessary to
assess the evidence of Sub-Inspector of
Police since it was of the view that it was
not necessary to comply with the
provisions of Section 50(1). The High
Court had also proceeded on the basis
that the said requirement of Section 50(1)
is directory and, therefore, its noncompliance
was
not
fatal
to
the
prosecution case. It was in the context of
these facts and circumstances that this
Court held:

"Having regard to the fact
that the FIR and Seizure Mahazar do not
mention about the appellant having been
asked before the search was conducted as
to whether he would like to be produced
before a Gazetted Officer or a Magistrate
and the further fact that P.W.1, the other
independent witness, also does not state
about this we are of the view that the
prosecution has failed to establish that
there was compliance with the provisions
of Section 50 of the Act before conducting
the search of the appellant."

In that case no clear finding was
recorded regarding credibility of the SubInspector of Police who was the only witness
on the point. It was upon appreciation of the
evidence led in that case that it was held that
the prosecution had failed to establish that
there was compliance with the provisions of
Section 50(1) while conducting the search of
the accused. We, therefore, cannot agree
with the submission of Mr. Lalit that this
Court in that case has laid down as a
proposition of law that in absence of
independent
evidence
or
any
other
supporting documentary evidence, oral
evidence of a witness conducting the search
cannot be regarded as sufficient for
establishing
compliance
with
the
requirement of Section 50(1)."

29. In view of totality of facts and
circumstances detailed herein above, there
is no merit in the submissions made by
learned counsel for the appellant and this
court finds that the prosecution has been
able to successfully prove its case beyond
reasonable doubt. Hence, the conviction
of the appellant is liable to be upheld. On
the question of sentence, this court is of
the view that the learned Trial Court has
considered the aspect of sentence in detail
and has already taken a lenient view and
as such, under facts and circumstances of
the case, there comes no occasion to alter
or reduce the sentence.

30. The present criminal appeal is
devoid
of
merit
and
is
dismissed
accordingly.
------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 20.08.2019