# Mehboob (In Jail) v. State of U.P

- **Citation:** (2021) 8 ILRA 533
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-02
- **Case number:** Criminal Appeal No 6794 of 2019
- **Bench:** Subash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mehboob-in-jail-v-state-of-u-p-47269
- **Pages:** 9

## Headnote

(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:-

## Text

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
534 INDIAN LAW REPORTS ALLAHABAD SERIES
was convicted and sentenced with rigorous
imprisonment for 5 years and fine of Rs.
5,000/- for the charge under section 8/15 of
The Narcotics Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred
to as the Act) and in default of payment of
fine the appellant was directed to undergo
for additional imprisonment for one year.

2. The brief of facts giving rise to this
criminal appeal are that on 3.4.2018 SubInspector Sanjeev Kumar along with police
party
while
on
patrolling
received
information from the informant (Mukhbir
Khas) that one person along with 10-12
Kgs. poppy straw in a plastic gunny bag
would come from the side of Umari by eRikshaw and would pass by the Newada
Railway crossing. On this information SubInspector Sanjeev Kumar along with police
party reached to the Newada Railway
crossing and after waiting for some time
one person came by e-Rikshaw and
alighted from e-Rikshaw and proceeded
along with white colour plastic gunny bag
in his hand towards Newada Railway
crossing. The informant indicated to the
police party that he was the very person
who had poppy straw in the plastic gunny
bag. That person was apprehended at 21:30
hours and he told his name Mehbood, son
of Sattar, resident of tenanted house of
Afzal Jabruddin Mohalla Daulatbagh, P.S.
Nagfani, District Moradabad. This person
told that he had poppy straw in the plastic
gunny bags. The police party asked him for
his personal search before the Magistrate or
a gazetted officer. This person refused for
the same and reposed his trust in the police
party in taking search of him and a consent
memo was prepared under section 50 of the
Act. The thumb impression of this accused
was taken on this consent memo. In the
plastic gunny bag 12 polythene packets of
one kg., each were kept. On being opened
one packet it was found to be narcotic
drugs I.e. poppy straw. The weighing
machine brought by constable Basant
Kumar and on being weighed it was found
11.800 Kg. poppy straw. Out of 12 packets
11 packets were sealed in the same plastic
gunny bag and same was also made
specimen and one packet of 970 gms.,
poppy straw was kept in one white colour
cloth for forensic examination and same
was sealed in cloth and made specimen.
The accused Mehboob was made aware in
regard to commission of offence by him
under section 8/15 of the Act and his arrest
memo was prepared keeping in view the
safeguards. The recovery memo was
prepared on the spot which was signed by
the accused and all the police personnel
present at that time and on the basis of this
recovery memo case crime no. 0089 of
2018 was registered under section 8/15 of
the NDPS Act against the accused
Mehboob with the police station Kanth,
District Moradabad. The Investigating
Officer
after
having
concluded
the
investigation filed charge sheet against the
accused Mehboob before the court of
Sessions Judge, Moradabad which was
registered as SST No. 806 of 2018 and
cognizance was taken thereon.

3. The trial court framed the charge
against the accused Mehboob under section
8/15 of the Act and charge was read over
and explained to the accused who denied
the charge and claimed to be tried.

4. On behalf of prosecution to prove
the
charge
against
the
accused
in
documentary
evidence
filed
recovery
memo, Exb. Ka-1, consent memo for
personal
search
of
police
personnel
Exb.Ka-2, consent memo of accused
Mehboob under section 50 of the Act, ExbKa-3, arrest memo, Exb-Ka-4, site plan of
place of occurrence Exb. Ka-5, FSL report,
8 All. Mehboob Vs. State of U.P.
535
Exb. Ka-6, charge sheet, Exb. Ka-7, check
FIR, Exb. Ka-8, GD entry in regard to
registering the case crime, Exb. Ka-9.

In oral evidence examined PW-1
Sub-Inspector Sanjeev Kumar, PW-2, SubInspector, Lokesh Kumar Tomar, PW-3,
Sub-Inspector Mukesh Singh.

5. The statement of the accused
Mehboob was recorded under section 313
of Cr.P.C., who denied incriminating
circumstances in evidence against him and
stated that he is innocent and has been
falsely implicated in this case.

6. The trial court after hearing learned
counsel for the parties convicted the
accused Mehboob vide judgment and order
dated 13.9.2019 for the offence under
section 8/15 of the Act and punished him
with rigorous imprisonment for 5 years and
fine of Rs. 5,000/-. In default of payment of
fine additional imprisonment of one year
was directed to be undergone by the
convict.

7. Aggrieved from the impugned
judgment of conviction and sentence dated
13.9.2019 this criminal appeal is preferred
on behalf of the appellant/convict Mehboob
on the ground that the impugned judgment
and order dated 13.9.2019 is against the
fact and law and the same is against the
weight of evidence on record. The
impugned judgment and order is based on
conjectures and surmises. The trial court
has not appreciated the evidence on record
in
proper
perspective.
There
is
no
independent
witness
of
the
alleged
recovery. No compliance of the provisions
of sections 41,42,50 and 57 of the Act was
made
during
search
and
seizure.
Accordingly, prayed to allow this criminal
appeal and to set aside the impugned
judgment of conviction and sentence and to
acquit the appellant from the charge
levelled against him.

8. I have heard Sri Mukesh Joshi
learned counsel for the appellant, learned
AGA for the State and perused the
materials brought on record.

9. Learned counsel for the appellant
has submitted that as per prosecution
version the police party had received the
information from the informant (Mukhbir
Khas) that one person along with 10-12
Kg., poppy straw in a plastic gunny bag
was to come from the side of village Umari
and would pass by the Newada Railway
crossing. Accordingly, police party relying
upon the information of Mukhbir Khas
reached at the Railway crossing Newada.
The police party also waited there for some
time and as such that person alighted from
e-Rikshaw and proceeded towards the
Newada Railway crossing having a plastic
gunny bag in his hand and on the indication
of
Mukhbir
Khas
that
person
was
apprehended by the police party and from
his possession 12 Kg., poppy straw was
recovered in 12 polythene packets of one
kg., each which was kept in a white colour
plastic gunny bag. It is also further
submitted that as per provisions of section
42 of the Act the head of the police party
had to reduce the information received
from the Mukhbir Khas in writing and did
not inform to his superior officers in this
regard before apprehending the accused.
Therefore, the violation of mandatory
provisions of NDPS Act is the ground of
acquitting the accused.

10. In this regard, on behalf of
prosecution PW-2 Sub-Inspector Sanjeev
Kumar who is complainant in his statement
says that on 3.4.2018 he was deployed as
536 INDIAN LAW REPORTS ALLAHABAD SERIES
Sub-Inspector with the Police Station Kanth
and on that day he along with Sub-Inspector
Lokesh Kumar Tomar, Constable 706 Rahul
Kumar Yadav and Constable 966 Basant
Kumar reached the police station making
entry in Rapat No. 64 at 18:38 hours and
were on patrolling and checking of the
vehicles to maintain law and order within the
limit of police station concerned. The
informant (Mukhbir Khas) had informed
him that one person was to come from the
side of village Umari by e-Rikshaw and
would pass through Newada Railway
crossing and that person was carrying 1012 Kg., poppy straw in a plastic gunny bag
and relying on this information of Mukhbir
Khas he along with police party reached to
Newada Railway crossing and on the
indication of the informant (Mukhbir Khas)
that person was apprehended after a wait of
10-20 minutes at the Railway crossing.

This
witness
in
his
crossexamination says that he did not give any
information to his superior officers which
he has received from the Mukhbir Khas.
Again this witness says; he informed the
higher authorities in regard to the information
received from Mukhbir Khas but no entries
were made in this regard in the recovery
memo.

PW-2
Sub-Inspector
Lokesh
Kumar Tomar in his examination-in-chief
also supports the FIR case and says that the
information was received from the Mukhbir
Khas that one person was to come
carrying poppy straw with him.

PW-3
Sub-Inspector
Mukesh
Singh also corroborated the statement of the
complainant.

11. From the statement of three
witness it is found that the police party
had received the information from the
Mukhbir Khas that one person was to
come from the side of village Umari
carrying 10-12 kg., poppy straw in a
plastic gunny bag and he would pass by
the Newada Railway crossing.

Admittedly,
this
information
received from the informant (Mukhbir
Khas) was not taken down in writing in
view of section 42 (1) of the Act and a
copy of the information was not given to
the immediate superior officer within 72
hours in view of section 42 (2) of the Act.
Therefore, the mandatory provision of
Section 42 of the Act was violated.

The Hon'ble Apex Court held in
Sukhdev Vs. State of Haryana 2013
Criminal Law Journal 841 that the
compliance of section 42 of the NDPS Act
is mandatory. The contravention of it
vitiates the trial.

The Hon'ble Apex Court in
Kishan Chand Vs. State of Haryana
reported LAWS (SC) 2012-12-55 held in
para 12 as under:-

"12. In our considered view, this
controversy is no more res integra and
stands answered by a Constitution Bench
judgment of this Court in the case of
Karnali Singh(supra). In that judgment, the
court the very opening paragraph noticed
that in the case of Abdul Rasid Ibrahim
Mansuri Vs. State of Gujrat (2000) 2 SCC
513, a three Judge Bench of the Court had
held that compliance of Section 42 of the
Act is mandatory and failure to take down
the information in writing and sending the
report forthwith to the immediate officer
superior may cause prejudice to the
accused. However, in the case of Sajan
Abraham (supra), again a bench of three
8 All. Mehboob Vs. State of U.P.
537
Judges, held that this provision is not
mandatory and substantial compliance was
sufficient. The Court noticed, if there is
total non-compliance of the provisions of
Section 42 of the Act, it would adversely
affect the prosecution case and to that
extent, it is mandatory. But, if there is
delay, whether it was undue or whether the
same was explained or not, will be a
question of fact in each case."

12. Learned counsel for the appellant
has submitted that the place of occurrence
is public place and no independent witness
of public was made party to the recovery
memo which casts doubt on the recovery
memo itself because all the witnesses of the
recovery memo are police personnel.

From the perusal of the recovery
memo Exb. Ka-1 it is found that the place
of occurrence is Newada Railway crossing
and time of occurrence is 21:30 hours on
3.4.2018. This recovery memo is Exb.Ka-1.
PW-1 S.I. Sanjeev Kumar and PW-2
Lokesh Kumar Tomar both have stated that
they asked the persons of public to be
witness but none was ready for the same.
Therefore, independent witness of the
recovery memo was not made.

On the ground that no witness of
public was made party to the recovery
memo, the whole of the prosecution case
can not be discarded but it may be one of
the grounds to cast doubt on the
prosecution story.

13. Learned counsel for the appellant
has
further
submitted
that
before
apprehending
the
appellant/convict
Mehboob no compliance of section 50 of
the Act was made. Non compliance of the
mandatory provision of section 50 of the
Act vitiates the whole of the trial.

On behalf of the prosecution
witness PW-1 S.I. Sanjeev Kumar says
that all the police personnel of the police
party had taken search inter se and no
narcotics
drugs
and
psychotropic
substance was recovered from any one of
the
police
personnel.
Accordingly,
recovery memo of the same was prepared
which was signed by S.I. Sanjeev Kumar,
and Lokesh Kumar Tomar, Constable
Rahul
Yadav
and
Constable Basant
Kumar. This memo in regard to search of
police personnel has been proved by the
prosecution witness PW-1 S.I. Sanjeev
Kumar as Exb. Ka-2.

PW-1, S.I. Sanjeev Kumar and
PW-2 Lokesh Kumar Tomar also in their
statement say that before making search of
the accused Mehboob they made the
accused Mehboob aware in regard to his
right to get search before the Magistrate or
gazetted officer but this accused stated that
he reposed his trust in the police party and
he was not needed to be searched in
presence of the Magistrate or gazetted
officer. In regard to the same a consent
memo was prepared which was signed by
S.I. Sanjeev Kumar, S.I. Lokesh Kumar
Tomar, Constable Basant Kumar and
Constable Rahul Yadav and this consent
memo was also read over to the accused
Mehboob, who after having understood the
contents of this consent memo affixed his
thumb impression on this consent memo.
This consent memo has been proved by
PW-1 S.I. Sanjeev Kumar as Exb. Ka-3.

As per prosecution case the
recovery of the alleged 12 Kg., poppy straw
from the possession of the accused
Mehboob was not a chance recovery rather
police party apprehended him after having
received information from the Mukhbir
Khas.
538 INDIAN LAW REPORTS ALLAHABAD SERIES

As per prosecution case 12 Kg.,
poppy straw was recovered out of plastic
gunny bag in 12 polythene packets of one
kg., each and this gunny bag was in the
hand of appellant/convict Mehboob.

It
is
settled
law
that
the
compliance of section 50 of the Act is
mandatory. The 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.

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.

The Hon'ble Apex Court held in
Rajendra Vs. State of U.P. 2004 (48) SCC
304 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.

14. Learned counsel for the appellant
has also submitted that the sampling of the
recovered poppy straw was not made as per
provisions of the Standing Order No. 1/89
dated 13.6.1989, Section II (General
Procedure For Sampling Storage, etc.),
which is quoted as below:-

"2.1. All the drugs shall be
properly classified carefully weighed and
sampled on the spot of seizure.

2.2. All the packages/containers
shall be serially numbered and kept in lots
for sampling. Samples from the narcotics
drugs and psychotropic substance seized
shall be drawn on the spot of recovery, in
duplicate, in the presence of search
witnesses (Panchas) and the person from
whose possession the drug is recovered,
and a mention to this effect should
invariably be made in the punchanama
drawn on the spot.

2.3. The quantity to be drawn in
each sample for chemical test shall not be
less than 5 grams in respect of all narcotic
drugs and psychotropic substances save in
the cases of opium, ganja and charas
(hashish) where a quantity of 24 grams in
each case is required for chemical test. The
same quantity shall be taken for the
duplicate sample also. The seized drugs in
the packages/containers shall be well
mixed to make ti homogeneous and
representative before the sample (in
duplicate) is drawn.

2.4. In the case of seizure of a
single package/container, one sample in
duplicate shall be drawn. Normally, it is
advisable
to
draw
one
sample
(in
duplicate) from each package/container in
case of seizure of more than one
package/container.

2.5.
However,
when
the
packages/containers seized together are of
identical size and weight, bearing identical
markings, and the contents of each package
given identical results on colour test by the
drug
identification
kit,
conclusively
indicating that the packages are identical
in all respects, the packages/containers
may carefully bunched in lots of 10
packages/containers except in the case of
ganja and hashish(charas), when it may be
bunched
in
lots
of
40
such
packages/containers.For each such lot of
packages/containers,
one
sample(in
duplicate) may be drawn.
8 All. Mehboob Vs. State of U.P.
539

2.6. Where after making such lot,
in the case of hashish and ganja, less than
20 packages/containers remain and, in the
case of other drugs, less than five
packages/containers remain, no bunching
would be necessary and no samples need
be drawn.

2.7. If such remainder is 5 or
more in the case of other drugs and
substances and 20 or more in the case of
ganja and hashish, one more sample (in
duplicate) may be drawn for such reminder
package/container.

2.8. While drawing one sample
(in duplicate) from a particular lot, it must
be ensured that representative samples in
equal quantity are taken from each
package/container of that lot and mix
together to make composite whole from
which the samples are drawn for that lot.

2.9. The sample in duplicate
should be kept in heat-sealed plastic bag as
it is convenient and safe. The plastic bag
container should be kept in a paper
envelope which may be sealed properly.
Such sealed envelope may be marked as
original and duplicate. Both the envelopes
should
also
bear
the
No.
of
the
package(s)/container(s) from which the
sample has been drawn. The duplicate
envelope containing the sample will also
have a reference of the test memo. The
seals should be legible. This envelope
along with test memos should be kept in
another envelope which should also be
sealed
and
marked
"Secret-
Drug
sample/test memo", to be sent to the
chemical laboratory concerned."

As per evidence available on
record it is found that the sampling of
the poppy straw was not taken as
representative sampling. There were 12
packets of one kg., each bearing poppy
straw in plastic gunny bag. Out of the 12
packets, 11 packets were sealed in a plastic
gunny bag on the spot; while one packet of
poppy straw which was 12th one was
sent for examination to Forensic Science
Laboratory (in short FSL) as such, out of
12 packets only one packet was sent for
examination and no sampling was taken in
any quantity from the remaining 11
packets of poppy straw.

The FSL report Exb. Ka-6 is on
record. As per FSL report the result of
poppy straw which was sent in a polythene
bag having 950 gms was found to be poppy
straw.

The Hon'ble Apex Court held in
Criminal Appeal No. 1397 of 2007 Union
of India Vs. Bal Mukund and others vide
judgment dated 31st March 2009 held in
paragraph 39 as under:-

" There is another aspect of the
matter which can not also be lost sight of
Standing Instruction No. 1/88, which had
been issued under the Act, lays down the
procedure for taking samples. The High
Court has noticed that PW-7 had taken
samples of 25 grams each from all the five
bags and then mixed them and sent to the
laboratory. There is nothing to show that
adequate quantity from each bag had been
taken. It was a requirement in law."

Therefore, in the case at hand the
violation of the Standing Order dated
1/89 dated 16.9.1989 Section II General
Procedure for Sampling etc., has been
made, because out of 12 packets of
poppy straw which was found in as
plastic gunny bag from the possession of
the appellant only one packet was sent to
540 INDIAN LAW REPORTS ALLAHABAD SERIES
the
testing
to
the
FSL
and
no
representative sampling was taken from
the remaining 11 packets. As such, there
is nothing on record to support the
prosecution case that in the 11 remaining
packets the narcotics drugs was also
poppy straw.

15. Learned counsel for the appellant
has also submitted that there is no evidence
adduced on behalf of the prosecution that
the recovered poppy straw was kept in a
sealed cover and specimen was made in a
proper way in safe custody from the date of
recovery upto the date of sending one
packet for testing to the FSL. No malkhana
register was produced and nor the same
was proved on behalf of the prosecution.
Therefore, there is violation of section 55
of the Act.

From the perusal of the record it
is found that the police party apprehended
the appellant Mehboob on 3.4.2018 and 12
Kg., poppy straw in 12 packets in
polythene, one kg., each which was kept in
a plastic gunny bag were recovered from
his possession. Out of these 12 packets, 11
were sealed in a plastic gunny bag and one
packet was sealed in a cloth for sampling
and same was sent to the FSL on
16.4.2018.

PW-3 S.I. Mukesh Singh is the
investigating officer of case crime no. 89 of
2018. This witness in his statement says
that he sent a packet of sampling for
examination to the FSL, Moradabad and
receiving of the same was entered in the
case diary. The FSL report Exb. Ka-6 was
received and after conclusion of the
investigation in view of the statement of the
witnesses, documents on record, FSL report
and charge sheet was filed against the
accused Mehboob.

The recovered contraband was
sealed by S.I. Sanjeev Kumar. During
investigation same was taken by him in
his possession and the memo of the same
was not prepared by him. Today, he has
not brought the case property before the
Court. The malkhana register is not
brought by him. The receiving of the
sampling of FSL report was got on the
malkhana register.

From the FSL report itself Exb.
Ka-6 it is found that the sampling of this
case crime was sent on 16.4.2019 to FSL
Moradabad; while in view of recovery
memo Exb. Ka-1 the alleged 12 kg.,
poppy straw was recovered on 3.4.2018.
From the date 3.4.2018 whether the
seized poppy straw was kept in safe
custody, is nothing on record to prove
the same. 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.

Hon'ble Apex Court in State of
Rajasthan Vs. Gurmail Singh 2005
Criminal Law Journal 1749 held that
malkhana register was not produced in
evidence to prove the seized article, but
kept in malkhana. No sampling of the same
was sent along with sample of laboratory
for the purpose of comparing sealing in the
sample bottle. No evidence that the seal
was intact. Acquittal proper.

16.
Therefore,
in
view
of
reappreciation of the evidence on record it is
found that the prosecution has failed
miserably to prove its case beyond doubt.
The conviction of the appellant bears
infirmity and same deserves to be set-aside
8 All. Smt. Poornima Asthana Vs. State of U.P. & Anr.
541
and the appeal is allowed. The appellant is
in jail. He be released forthwith, if he is
not wanted in some other case provided
the bail bonds are furnished on his behalf
before the trial court in compliance of
section
437-A
of
Cr.P.C.,
to
the
satisfaction of the court concerned.

17.
Let
the
copy
of
the
judgment/order be certified to the court
concerned for necessary information and
follow up action.
----------
(2021)08ILR A541
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 17.08.2021

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Criminal Revision No. 300 of 2020

Smt. Poornima Asthana ...Revisionist
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Revisionist:
Rajerndra Prasad Sharma

Counsel for the Opposite Parties:
Govt. Advocate, Prem Shankar

(A) Criminal Law - Maintainability of
recall
application
in
a
criminal
revision
-
The
Code
of
criminal
procedure , 1973 - Section 64 -
Service
when
persons
summoned
cannot be found - Chapter XVIII of
Part III of The Allahabad High Court
Rules , 1952 - Rule 9 - Issue of notice,
Rule 12 - Service of notice by post or
publication , Rule 22 - Notice - No
party having knowledge of the case
can force the Court to first pass an ex
parte order and then claim right to
recall the same even when its bona
fide is not proved.(Para - 10)
Present criminal revision decided ex parte by
the order dated 4.1.2021 - against the
applicant-respondent No.2 - treating service
of notice sufficient upon him - Application
filed by the husband applicant-respondent
No.2 - to recall the final order dated 4.1.2021.

HELD:- The notice was issued upon the
applicant-respondent No.2 as per proforma
prescribed under Chapter XVIII/Rules 9 and
22 of Rules of 1952. Service of notice is duly
effected upon a family member of applicantrespondent No.2. This Court does not believe
the conduct of the applicant-respondent No.2
to be bona fide in not appearing in the case
and stating that the notice was not served
upon him. The applicant-respondent No.2 had
knowledge of the pendency of the present
case and when ex parte order was passed, he
claims his right to recall the order on ground
of non-appearance, which in the given facts
cannot be said to be bona fide. In view of the
aforesaid, the application for recall deserves
to be rejected with costs. (Para - 9,10)

Application for recall rejected. (E-6)

(Delivered by Hon'ble Vivek Chaudhary, J.)

(Crl. Misc. Application No.66006 of
2021: Application for Recall of Order
dated 4.1.2021)

1. This application is filed by the
husband
applicant-respondent
No.2
to
recall the final order dated 4.1.2021 passed
in the present criminal revision.

2. By the order dated 4.1.2021, the
present criminal revision was decided ex
parte
against
the
applicant-respondent
No.2, treating service of notice sufficient
upon him. By the said order, the
maintenance amount granted by the Court
below under Section 125 CrPC was
enhanced from 1500/- to Rs.3000/- per
month with effect from 8.10.2001 (from the
date of institution of proceeding) till
14.1.2020 (date on which judgment was