# Mohammad School v. State of U.P. & Anr

- **Citation:** (2022) 4 ILRA 76
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-02
- **Case number:** Criminal Appeal No. 3930 of 2016
- **Bench:** Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohammad-school-v-state-of-u-p-anr-48311
- **Pages:** 17

## Headnote

Section 8/20 of NDPS Act

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
3131-
The
statement of the accused-appellant under
Section 313 Cr.P.C. is not a substantive
piece of evidence. It can be used for
appreciating
evidence
lead
by
the
prosecution to accept or reject it. The
statement of accused-appellant as stated
in statement under Section 313 Cr.P.C.
will
be
taken
into
consideration
in
appreciating the evidence of prosecution
and in arriving at a conclusion regarding
the
truthfulness
and
falsity
of
the
prosecution case.

Settled law that statement of the accused
recorded u/s 3131 of the CrPc is not substantive
evidence but the same can be used to
appreciate the evidence of the prosecution and
the truthfulness thereof.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985-
Section 50- The Charas was recovered
from the bag which was in his right hand
not from his personnel search, therefore,
the compliance of Section 50 of NDPS Act
was not needed.

Where the recovery of the contraband is made
from the bag of the accused and not from his
person, then Section 50 of the Act will not be
attracted.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985-
Indian Evidence Act, 1872- Section 118,
Code of Criminal Procedure, 1973- Section
100 (4) - Absence of public witnesses-
effect of- The recovery was made from the
accused-appellant
without
prior
knowledge by the police personnels that
accused-appellant
has
Charas
and
recovery was made all of sudden in a
lonely place of grove where no public
witnesses
were
present.
In
above
circumstances,
non-joining
of
public
witnesses in search will not affect the
prosecution case. Police personnels are
competent witness to adduce evidence
before the learned court below, therefore,
there is no substance in the argument of
the learned counsel for the accusedappellant that in absence of independent
witness no reliance can be placed.

Where the recovery is sudden and from a
desolate
spot
where
independent
public
witnesses
may
not
be available
to
the
prosecution, then merely because only police
personnel were examined as witnesses will not
4 All. Mohammad School Vs. State of U.P. & Anr.
77
affect the case of the prosecution adversely as
police personnel are also competent witnesses.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985-
Section 52-A - Sending of the entire
contraband for chemical examination will
not render the recovery of contraband and
chemical examination report of forensic
science
laboratory
Ex.Ka-11
as
inadmissibility.

Section 52-A of the Act merely provides for the
disposal of the seized contraband and lays down
the procedure for the same. Hence, sending the
entire seized contraband to the FSL will not
make the recovery doubtful. ( Para 17, 19, 20,
23, 24, 30, 36)

Criminal Appeal rejected. (E-3)

Case law/ judgements relied upon:-

## Text

_Characters 0–39,764 of 58,590. This is a partial read: ask again with offset=39764 for what follows._

76 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant is reduced by four years and as
such one year sentence as well as the fine
of Rs. 25,000/- and in case of default
further six months additional rigorous
punishment is being upheld.

19. With the above modification, the
appeal is accordingly disposed off, finally.

20. Office is directed to send the
certified copy of this judgment along with
lower court record to the court concerned
for information and necessary action.
----------
(2022)04ILR A76
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2022

BEFORE

THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 3930 of 2016

Mohammad School ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant:
Sri Syed Irfan Ali, Sri Mohd, Naushad, Smt.
Beena
Mishra,
Sri
Praveen
Kumar
Srivastava, Sri Vijay Prakash Chaturvedi, Sri
A.K. Rai

Counsel for the Respondents:
A.G.A.

Section 8/20 of NDPS Act

Criminal
Law
-
Code
of
Criminal
Procedure,
1973-
Section
3131-
The
statement of the accused-appellant under
Section 313 Cr.P.C. is not a substantive
piece of evidence. It can be used for
appreciating
evidence
lead
by
the
prosecution to accept or reject it. The
statement of accused-appellant as stated
in statement under Section 313 Cr.P.C.
will
be
taken
into
consideration
in
appreciating the evidence of prosecution
and in arriving at a conclusion regarding
the
truthfulness
and
falsity
of
the
prosecution case.

Settled law that statement of the accused
recorded u/s 3131 of the CrPc is not substantive
evidence but the same can be used to
appreciate the evidence of the prosecution and
the truthfulness thereof.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985-
Section 50- The Charas was recovered
from the bag which was in his right hand
not from his personnel search, therefore,
the compliance of Section 50 of NDPS Act
was not needed.

Where the recovery of the contraband is made
from the bag of the accused and not from his
person, then Section 50 of the Act will not be
attracted.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985-
Indian Evidence Act, 1872- Section 118,
Code of Criminal Procedure, 1973- Section
100 (4) - Absence of public witnesses-
effect of- The recovery was made from the
accused-appellant
without
prior
knowledge by the police personnels that
accused-appellant
has
Charas
and
recovery was made all of sudden in a
lonely place of grove where no public
witnesses
were
present.
In
above
circumstances,
non-joining
of
public
witnesses in search will not affect the
prosecution case. Police personnels are
competent witness to adduce evidence
before the learned court below, therefore,
there is no substance in the argument of
the learned counsel for the accusedappellant that in absence of independent
witness no reliance can be placed.

Where the recovery is sudden and from a
desolate
spot
where
independent
public
witnesses
may
not
be available
to
the
prosecution, then merely because only police
personnel were examined as witnesses will not
4 All. Mohammad School Vs. State of U.P. & Anr.
77
affect the case of the prosecution adversely as
police personnel are also competent witnesses.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985-
Section 52-A - Sending of the entire
contraband for chemical examination will
not render the recovery of contraband and
chemical examination report of forensic
science
laboratory
Ex.Ka-11
as
inadmissibility.

Section 52-A of the Act merely provides for the
disposal of the seized contraband and lays down
the procedure for the same. Hence, sending the
entire seized contraband to the FSL will not
make the recovery doubtful. ( Para 17, 19, 20,
23, 24, 30, 36)

Criminal Appeal rejected. (E-3)

Case law/ judgements relied upon:-

1.
Mohammad
Mustafa
Vs
St.
of
U.P.
MANU/UP/0220/2014 ( cited)

2. Mohan Singh Vs Prem Singh AIR 2002 SC
3582

3. Dehal Singh Vs St. of H.P (2010) 9 SCC 85

4. St. of MP Vs Ramesh (2011) 4 SCC 784

5. Dharanidhar Vs St. of UP (2010) 7 SCC 759

6. St. of Raj. Vs Parmanand and ors (2014) 85
SCC 662

7. St. of Himachal Vs Pawan Kumar with St. of
Raj. Vs Bhanwarlal AIR 2005 SC 2265

8. Sama Alana Abdullah Vs St. of Guj. (1996) 1
SCC 427

9. Anil @ Andya Sadashiv Nandoskar Vs St. of
Maha. (1996) 2 SCC 589

10. Pradeep Narayan Madkoonkar Vs St. of
Maha. (1995 ) 4 SCC 255

11. Mohan Singh Vs St. of Har. (1995) 3 SCC
192

12. PP Beeran Vs St. of Ker. AIR 2001 SC 2420

13. Devendera Kumar Mishra Vs St. of UP 1998
Crl (J) 2348 (at page 2350 in paragraph 3)

(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard learned counsel for the
accused-appellant, learned A.G.A. for the
State and perused the record.

2. The instant appeal has been filed by
accused-appellant under Section 374(2) of
Cr.P.C. against the impugned judgement of
conviction and order of sentence dated
29.4.2013 passed by Additional Sessions
Judge (ECP), Siddharth Nagar in Special
Case No.9 of 2011 (State Vs. Mohd.
School), arising out of Case Crime No.11
of 2011, under Section 8/20 of NDPS Act,
Police
Station-
Shohratgarh,
District
Siddharth Nagar, by which the accusedappellant was convicted under Section
20(b)(ii)(C) of NDPS Act, 1985 and was
sentenced
to
undergo
rigorous
imprisonment for a period of 10 years with
a fine of Rs.1,00,000/-, in default thereof,
to further undergo imprisonment for two
years.

3. The brief facts of the prosecution
case are that PW-1 S.I. Dinesh Kumar
Yadav, In-charge SOG along with his
companion police personnels was busy in
patrolling duty near Nepal border for taking
care of the area and for preventing of
smuggling by a Government Specio Jeep
No.UP55-G-0030 and on the way he took
along with him S.I. Ram Samujh Prabhakar
and Ct. Shriram Sharma from the police
booth Shohratgarh. As soon as they reached
near the north of grove in Village Dhanaura
Mustahkam, they saw a person in the light
of Jeep coming from Nepal side with a bag
and suddenly he started hiding himself in
78 INDIAN LAW REPORTS ALLAHABAD SERIES
the grove to avoid the light of vehicle. On
suspicion, he was apprehended with the
help of his companion personnel. On being
asked the reason of hiding, he told that he
is having narcotic substance 'Charas' and
told his name as Mohammad School. He
was informed that it is his legal right to be
searched before Magistrate or Gazetted
Officer, thereupon, he stated that he may be
searched by him and given his consent for
being searched after execution of consent
letter Ex.Ka-1. The yellow plastic bag
which was in his right hand, was searched
and from it four packets of beige coloured
plastic on which J.O.R. was written and
two packets of yellow plastic were
recovered. On tearing the packets, Charas
was found and on being weighed by the
scale kept in vehicle, it was found to be 5
Kg and 150 gm along with plastic packet.
In respect of authorisation for keeping
Charas,
he
could
not
show
any
authorization letter. Thereafter, he was told
that his act is punishable under Section
8/20 of NDPS Act and was taken in police
custody on 4.1.2011 at 19:50 p.m. He was
arrested and the arrest memo was prepared
Ex.Ka-2. After keeping the recovered
narcotic substance Charas in the same bag,
it was stitched and was sealed and the
sample seal was prepared. On enquiry, it
was also told by the accused-appellant that
the said Charas was given to him by Thapa
at Nepal Taulihwa Border. He has also told
that a year ago, he was escaped by digging
tunnel from Taulihwa Jail from Nepal along
with eight more prisoners. Recovery memo
of Charas was ascribed by S.I. Ram Samujh
Prabhakar (PW-2) on dictation of S.I.
Dinesh Kumar Yadav, which was read and
explained to accused-appellant and police
perssonels.
Thereupon,
all
police
personnels put their signatures on recovery
memo
(Ex.Ka-3)
as
witness.
The
information regarding arrest of accusedappellant was given to the family member
of the accused-appellant. He was taken to
the police station Shohratgarh and was
handed over along with contraband and
recovery memo to H.C.P. Dharambir Shahi
at
20:30
p.m.
On
4.1.2011,
H.C.P.
Dharambir Shahi has ascribed the Check
Report (Ex.Ka-9) at 22:30 p.m. at Police
Station Shohratgarh and after making
necessary entry in GD (Ex.Ka-10) vide
report No.48 , the case was registered as
Case Crime No.11 of 2011, under Section
8/20 of NDPS Act and the contraband was
kept in the Malkhana after making
necessary entry in Malkhana Register
(Ex.Ka-6).

4. The investigation of the case was
undertaken by S.O./S.I. Anoop Kumar
Shukla (PW-5). He copied the check report
and GD entry in the case diary. He also
copied the consent letter signed by
accused-appellant
and
recorded
the
statement of informant S.I. Dinesh Kumar
Yadav
and
inspected
the
place
of
occurrence and prepared site plan Ex.Ka-7
at the pointing out of S.I. Dinesh Kumar
Yadav. The entire contraband recovered
from the accused-appellant was sent to
Forensic Science Laboratory, Lucknow
along with sample seal and docket Ex.Ka-4
by Ct. Babban Singh (PW-3) and entry in
this respect was made in Case Diary on
16.1.2011
(Ex.Ka-5).
Contraband
was
received on 17.1.2011 at Forensic Science
Laboratory, Lucknow at Sl. No. 347. On
physical and chemical analysis vide report
dated 17.1.2011 Ex.Ka-11, the contraband
was found to be Charas. He recorded the
statements
of
accompanying
police
personnels as witnesses of recovery and
after completing the investigation, the
charge-sheet (Ex.Ka-8) was submitted
against
the
accused-appellant
Mohd.
School.
4 All. Mohammad School Vs. State of U.P. & Anr.
79

5. The cognizance of offence
punishable under Section 8/20 NDPS Act
was taken by the then learned Sessions
Judge, Siddharth Nagar on 30.3.2011
against the accused-appellant and the
copies of police papers were given to the
accused-appellant in compliance of Section
207 Cr.P.C. After hearing learned counsel
for the parties, charge of the offence
punishable under Section 20(b)(ii)(C) of
NDPS Act was framed against the accusedappellant to which he has pleaded not
guilty and claimed to be tried.

6. In order to prove its case,
prosecution has examined informant SI
Dinesh Kumar Yadav as PW-1 and S.I.
Ram Samujh Prabhakar as PW-2 to prove
factum of recovery of contraband, recovery
memo Ex.Ka-3, consent letter Ex.Ka-1 and
memo of arrest Ex.Ka-2. Prosecution has
also examined Ct. Babban Singh as PW-3
to prove carrying of contraband along with
sample seal and docket Ex.Ka-4, safe
custody and entry of GD Ex.Ka-5.
Prosecution has also examined Ct. Ram
Agya Prasad as PW-4 to prove the safe
custody of the contraband at police station
and its entry in Malkhana Register Ex.Ka6. Prosecution has also examined I.O./S.I.
Anil Kumar as PW-5 to prove site plan
Ex.Ka-7, charge-sheet Ex.Ka-8 and step
taken in investigation. He proved by
secondary evidence the check report
Ex.Ka-9 and GD entry registering the case
Ex.Ka-10. The report of Forensic Science
Laboratory Ex.Ka-11 was also tendered by
prosecution.

7. The statement of the accusedappellant under Section 313 of Cr.P.C. was
recorded by learned court below, wherein
he has stated that the witnesses are
deposing falsely against him. Regarding
deposition of Ram Agya Prasad (PW-4)
relating to entry made by him in Malkhana
Register, the accused-appellant has stated
that false entry was made in the Malkhana
Register. With regard to the Investigation,
he stated that fake charge-sheet was filed
by
conducting
fictitious
investigation
against him. It is stated that he was picked
up from Sukrauli Bazar by police in
presence of public and was kept there for
two days and had taken his mobile and
cycle. Thereafter, he was sent to police
station Siddharth Nagar, where he was kept
for four days and thereafter, he was taken to
the police station Jogiya where he was kept
for 22 days. After that by planting false
recovery, he was booked in this case. The
accused-appellant has not examined any
witness in his defence.

8. After hearing learned counsel for
the parties and appreciating the evidence on
record, learned court below has held that
the testimonies of the prosecution witnesses
are liable to be relied on and it is proved
beyond reasonable doubt that on 4.1.2011
at 19:50 p.m. in the grove in the north of
Village Dhanaura Mustahkam 5 Kg and
150 gm of Nepali Charas was recovered
from the accused-appellant for which he
has no authorization letter and convicted
him for offence punishable under Section
20(b)(ii)(C) of NDPS Act and sentenced
him to undergo rigorous imprisonment for
10 years with a fine of Rs.1,00,000/-, in
default
thereof,
to
further
undergo
imprisonment for two years by impugned
judgement of conviction and order of
sentence. Feeling aggrieved by it, the
instant appeal has been preferred by the
accused-appellant Mohd. School.

9. It is contended by learned counsel
for the accused-appellant that recovery
memo does not bear the signature of the
witnesses of the recovery. It is further
80 INDIAN LAW REPORTS ALLAHABAD SERIES
contended that no independent witness was
made by the police party to join the search
of the accused-appellant, therefore, the
recovery is doubtful. It is further contended
that accused-appellant has not signed on
the consent letter and his signature on
recovery memo does not match with his
signature on consent letter. It is further
contended that on the recovery memo there
is over writing on number 20 of 8/20 NDPS
Act as earlier it was written as 8/22 NDPS
Act which indicates that recovery memo is
fabricated and doubtful. It is further
contended that before search procedure the
provision of Section 50 of NDPS Act was
not followed. It is further contended that
the sample seal, by which the contraband
was sealed at the time of recovery, was not
produced before the court below, therefore,
it is not proved that the contraband, which
is alleged to have been recovered from the
accused-appellant, was produced before the
court below and on this ground alone the
accused-appellant is entitled for taking the
advantage of acquittal. He relied on the law
laid-down
by
Hon'ble
High
Court
Allahabad in "Mohammad Mustafa Vs.
State of U.P. MANU/UP/0220/2014". It is
further
submitted
that
the
impugned
judgement of conviction and order of
sentence dated 29.4.2013 passed by learned
court below is against law and is liable to
be set aside. It is further contended that the
sentence awarded to the accused-appellant
is too severe and excessive. It is further
contended that the accused-appellant has
neither committed the alleged offence nor
the charges have been proved against him
beyond reasonable doubt, and therefore, the
court below has committed manifest error
and illegality in convicting and sentencing
the accused-appellant in the present case. It
is further contended that the prosecution
has failed to prove its case beyond
reasonable doubt. It is further contended
that there are so many doubts and suspicion
regarding the alleged recovery of the
contraband from the accused-appellant,
therefore, the benefit of doubt might have
been extended in favour of the accusedappellant by the learned court below. It is
further contended that police has prepared a
forged and fabricated consent letter by
putting a forged signature of the accusedappellant because the accused-appellant has
not signed the consent letter. It is further
contended that from the recovery memo it
transpires that nothing was recovered from
his personal search except alleged recovery
of contraband from the bag which is
alleged to have in his right hand. It is
further contended that the case against
accused-appellant was not proved beyond
doubt and the impugned judgement of
conviction and order of the sentence passed
by learned court below is liable to be set
aside and accused-appellant is liable to be
acquitted.

10. Learned A.G.A. for the State has
opposed the arguments advanced by the
learned counsel for accused-appellant and
has contended that the recovery of
contraband from the possession of the
accused-appellant is proved from the
statements of S.I. Dinesh Yadav (PW-1)
and Ram Samujh Prabhakar (PW-2). It is
further contended that from the statement
of PW-1 it is proved that the recovery
memo was prepared on the spot on his
dictation to S.I. Ram Samujh Prabhakar
(PW-2) and was witnessed by companion
police personnels. It is further contended
that the safe custody of keeping the
contraband after entering in the Malkhana
Register is proved by the statement of Ct.
Ram Agya Prasad (PW-4). He had also
proved the extract of Malkhana Register
Ex.Ka-6. It is further proved from the
statement of Ct. Babban Singh (PW-3) that
4 All. Mohammad School Vs. State of U.P. & Anr.
81
he had brought the contraband along with
docket Ex.Ka-5 to the Forensic Science
Laboratory for its chemical analysis. It is
further contended that he has also proved
the entry of GD dated 16.1.2011, by which
the contraband was taken out from the
Malkhana and brought to Forensic Science
Laboratory. It is also contended that on
physical and chemical examination of the
contraband was found to be Charas which
is a narcotic substance. It is further
contended that the accused-appellant was
apprehended all of sudden with a bag
containing the contraband in his right hand,
therefore, there was no necessity for
compliance of Section 50 of NDPS Act. It
is further contended that the accusedappellant was searched after giving his
consent by signing the consent letter stating
therein that he does not want to be searched
before Magistrate or Gazetted Officer and
he has trust upon the informant and wants
to be searched by him. It is further
contended that after drawing proforma of
the consent, the accused-appellant has
signed on it, thereafter he was searched. He
has further contended that the accusedappellant has deliberately missed ''0' in
between 'Mo' and 'School' on the consent
letter so that he may create false defence. It
is further contended that the contraband
was recovered from the accused-appellant
in the lonely place so no independent
witness was available to join the search. It
is further contended that the recovery of the
contraband
is
corroborated
by
the
testimony of SI Ram Samujh Prabhakar
(PW-2). It is further contended that the
contraband was produced by S.I. Dinesh
Kumar Yadav (PW-2) in the court and got it
exhibited as material exhibit. It is further
contended that the safe custody of the
contraband in Malkhana of the police is
proved by the prosecution as well as
sending the contraband to Forensic Science
Laboratory
is
also
proved
by
the
prosecution. It is further submitted that
learned court below has rightly held the
accused-appellant guilty and convicted and
sentenced him in accordance with law. It is
further contended that the minimum
sentence prescribed by law was awarded to
the
accused-appellant.
It
is
further
contended that the judgement of conviction
and order of sentence passed by court
below suffers from no illegality, therefore,
the appeal is liable to be dismissed.

11.

I
have
given
thoughtful
consideration to the contentions raised by
learned counsel for the parties and have
gone through the record. After considering
the submission of learned counsel for the
parties and perusing the lower court record
as well as the record of appeal, the
following questions are necessary to be
determined for deciding this appeal:-

(i) Wheather the 'Charas' which
is alleged to have been recovered from the
accused-appellant has been falsely planted
by the police officer and accompanying
police personnels upon the accusedappellant and the signature of the accusedappellant on the consent letter was forged
by the police personnels?

(ii) Whether the compliance of
Section 50 of NDPS Act is needed and if it
is so whether the compliance of Section 50
of NDPS Act has been made?

(iii) Whether the signature of the
accused-appellant on the consent letter
Ex.Ka-1 is forged?

12. In this case S.I. Dinesh Kumar
Yadav (PW-1) in his testimony has stated
that on 4.1.2011, he was posted as Incharge
of SOG at Siddharth Nagar and was going
towords the border of Nepal on patrolling
duty for taking care of his area by
82 INDIAN LAW REPORTS ALLAHABAD SERIES
Government Spacio Jeep No.UP50-G-0030
along with his companion Ct. Ravindra
Mohan Pandey and Ct. Panna Lal for
prevention of smuggling and on the way he
took along with him S.I. Ram Samujh
Prabhakar and Ct. Shriram from police
Booth Shohratgarh. When they reached
near the north of the grove of Village
Dhanaura Mustahkam, in the light of the
vehicle they saw a person with a bag in his
hand coming from the side of Nepal, who
started hiding himself in the grove to avoid
the light of the vehicle. On being
suspicious, he was apprehended from the
grove with the help of his companion
police personnels and on being asked his
name and address as well as the reason of
hiding himself, he disclosed his name as
Mohd. School son of Rahmatullah resident
of Baldia Chilha Bazar, Police Station-
Chiliha, District- Siddharth Nagar and also
told that he was having narcotic substance
'Charas' and that is why he was hiding
himself from the light. When the police
personnels came to know that he is
possessing 'Charas'. S.I. Dinesh Yadav
informed his right of personal search before
the competent Magistrate or Gazetted
Officer, thereupon, he desired to be
searched by them. Thereafter, the police
party searched each other and on being
satisfied that no one has any objectionable
thing, he drew written consent of Mohd.
School and he put his signature on it. After
execution of consent letter Ex.Ka-1, he
searched the bag which was in his hand and
inside the bag four packets of Beige
coloured plastic packets and two packets of
yellow colour were recovered and being
opened 'Charas' was found wrapped in
white polythene in each packet and on
weighing from scale it was found 5 Kg and
150 gm Charas. Thereafter, accusedappellant Mohd. School was arrested after
informing him the grounds of arrest that his
act is punishable under Section 8/20 of
NDPS Act at 19:50 p.m. Thereafter,
recovery memo was prepared by S.I. Ram
Samujh Prabhakar on his dictation and the
recovery memo was signed by the police
party. The copy of the same was given to
the accused-appellant and the packets were
again kept in the bag and sealed it and
prepared sample seal, recovery memo
Ex.Ka-3. He further deposed that before
arrest the arrest memo Ex.Ka-2 was
prepared and he proved the consent letter,
recovery memo and arrest memo. He
further deposed that the accused-appellant
along with contraband and recovery memo
was
brought
to
the
police
stations
Shohratgarh and the contraband was
handed over to Constable/Clerk who
deposited
the
contraband
in
police
Malkhana after making necessary entry in
Malkhana Register and registered the case
against accused-appellant and lodged into
the lock up. S.I. Dinesh Yadav (PW-1) has
deposed and proved the contraband article
in the court and got exhibited as material
exhibit. The contraband article and the
sealed bag related to this case was
produced by Ct. Ram Agya Prasad from
Malkhana Police Station- Shohratgarh in
sealed condition to which the case was
registered under Section 8/20 of NDPS Act,
Police
Station-
Shohratgarh,
District
Siddharth Nagar, was written and having
signature in English which is illegible and
he stated and identified the handwriting as
well as signature of S.I. Ram Samujh. On
opening the sealed packet before the court,
four packets were found beige coloured
plastic and two packets in yellow plastic
from the bag. Individually each of the six
packets, it was found written as 178 -C111. The cylindrical rod shaped charas was
found wrapped in golden and white plastic
foil in each packet. Witness S.I. Dinesh
Kumar has deposed that these contraband
4 All. Mohammad School Vs. State of U.P. & Anr.
83
articles were recovered from the bag
possessing by accused-appellant in his right
hand at the time of search. From which one
yellow packing in which two packets of
Charas was found, one is found in white
packing and material containing charas as
Material Ex.-1, and other in yellow colour
packing containing Charas Material Ex.-2
and yellow packing in which the above two
packets were found was exhibited as
Material Ex.-3. Likewise, in beige packet in
which four packets of Charas wrapped in
golden plastic foil charas as Material Ex.4,
packet of Charas as Material Ex.-5, beige
packet Charas as Material Ex.-6, and black
packet charas as Material Ex.-7 were
produced in the court and got exhibited. He
also deposed that the seal on the bag was
found intact at the time of producing it
before the court.

13. Witness S.I. Dinesh Kumar Yadav
was cross-examined whereby he has
admitted that the sample seal by which the
bag containing contraband was sealed was
not available before the court. He has
further stated on oath that prior to this case
he has not sent the entire recovered
contraband for testing to Forensic Science
Laboratory. He has further deposed that he
could not remember that there was no
public way adjacent to the place of
occurrence. It is further deposed by him
that each packet of Charas which he has
produced in the court was opened from
corners at the time of production before the
court when the sealed packet was opened.
He has further deposed that he does not
know that who had opened the packets. He
has also stated that the packets of Charas
are not in sealed condition. He has denied
the suggestion of the counsel for accusedappellant that Charas was not recovered
from the accused-appellant Mohd. School.
He has also denied the suggestion that
Mohd. School has been falsely implicated
in this case and no recovery has been made
from him. At this point, it is relevant to
refer the statement of the accused-appellant
recorded under Section 313 of Cr.P.C. the
purpose of which is elucidated by Hon'ble
Apex Court in the case of "Mohan Singh
Vs. Prem Singh AIR 2002 SC 3582" are as
under:-

"......The statement of accused
under Section 313 Cr.P.C. is not a
substantive piece of evidence. It can be
used for appreciating evidence led by the
prosecution to accept or reject it. It is,
however, not a substitute for the evidence of
the persecution. As held in the case of Nishi
Kant (supra) by this Court, if the
exculpatory part of his statement is found
to be false and the evidence led by the
prosecution is reliable, the inculpatory part
of his statement can be taken aid of to lend
assurance
to
the
evidence
of
the
prosecution. If the prosecution evidence
does not inspire confidence to sustain the
conviction of the accused, the inculpatory
part of his statement under Section 313
Cr.P.C. cannot be made the sole basis of his
conviction."

14. The Hon'ble Supreme Court in the
case of "Dehal Singh Vs. State of
Himachal Pradesh (2010) 9 SCC 85" has
observed as under:-

"......We do not find any substance
in this submission of Mr. Mishra. Statement
under section 313 of the code of criminal
procedure is taken into consideration to
appreciate the truthfullness or otherwise of
the case of prosecution and it is not an
evidence. Statement of an accused under
section 313 of the code of criminal
procedure
is
recorded
without
administering oath and therefore said
84 INDIAN LAW REPORTS ALLAHABAD SERIES
statement cannot be treated as evidence
within the meaning of section 3 of the
Evidence Act. Appellants have not chosen
to examine any other witness to support
this plea and in case none was available
they were free to examine themselves in
terms of section 315 of the Code of
Criminal
Procedure
which,
inter-alia
provides that a person accused of an
offence is a competent witness of the
defence and may give evidence on oath in
disproof of the charges. There is reason not
to treat the statement under section 313 of
the code of criminal procedure as evidence
as the accused cannot be cross-examined,
with
reference
to
those
statements.
However, when an accused appears as
witness in defence to disproof the charge,
his version can be tested by his crossexamination. Therefore, in our opinion the
plea of the appellant Dinesh Kumar that he
had taken lift in the car is not fit to be
accepted only on the basis of the statements
of the appellants under section 313 of the
Code of Criminal Procedure."

15. The Hon'ble Apex Court in the
case of "State of MP Vs. Ramesh (2011) 4
SCC 784" has held as under:-

"......Statement of the accused
made under section 313 Cr.P.C. can be
taken into consideration to appreciate the
truthfulness or otherwise of the prosecution
case. However, as such a statement is not
recorded after administration of oath and
the accused cannot be cross-examined, his
statement so recorded under section 313
Cr.P.C. cannot be treated to be evidence
within the meaning of section 3 of Indian
Evidence Act 1872. Section 315 CRPC
enables an accused to give evidence on his
own behalf to disprove the charges made
against him. However, for such a course,
the accused has to offer in writing to give
his evidence in defence. Thus, the accused
becomes ready to enter into the witness
box, to take oath and to be cross-examined
on behalf of the prosecution and/or of the
accomplice, if it is true required."

16. The Hon'ble Supreme Court in the
case of "Dharanidhar Vs. State of UP
(2010) 7 SCC 759" has held as under:-

".....The proper methodology to
be adopted by the court while recording the
statement of accused under section 313
CRPC is to invite the attention of the
accused
to
the
circumstances
and
substantial evidence in relation to the
offence, for which he has been charged and
invite his explanation. In other words, it
provides an opportunity to an accused state
before the Court as to what is the truth and
what is his defence, in accordance with law.
It was for the accused to avail of that
opportunity and if he fails to do so then it is
for the court to examine the case of
prosecution on its evidence with reference
to the statement made by the accused under
section 313 CRPC."

17. The statement of the accusedappellant under Section 313 Cr.P.C. was
recorded, wherein he has stated that the
witnesses have given false testimony
against him. Regarding deposition of Ram
Agya Prasad (PW-4) with respect to entry
made by him in Malkhana Register, he has
stated that the false entry was made in the
Malkhana Register. With regard to the
investigation, he has stated that fake
charge-sheet has been prepared by fictitious
investigation. He has further stated that he
was taken away from Sukrauli Bazar by
police of police station Mohana in presence
of public and was kept there for two days
and his mobile and cycle was taken in
police custody. Thereafter, he was sent to
4 All. Mohammad School Vs. State of U.P. & Anr.
85
the police station of Siddharth Nagar,
where he was kept for four days and was
taken to police station Jogiya, where he
was kept for 22 days. After that by showing
false recovery, he was booked in this case.
But in cross-examination nothing was
asked from the witnesses S.I. Dinesh Yadav
(PW-1) and S.I. Ram Samujh (PW-2)
regarding his arrest from the Sukrauli
Bazar openly and keeping him in different
police station for 22 days, and thereafter, he
was booked in this case. From the law laid
down by Hon'ble Apex Court as discussed
above, it is quite evident that a statement
given by the accused-appellant under
Section 313 Cr.P.C. can be taken into the
consideration for appreciating the evidence
of the prosecution with reference to the
statement made under Section 313 Cr.P.C.
The statement of that accused-appellant
made under Section 313 Cr.P.C. can be
taken into consideration to appreciate the
truthfullness
or
otherwise
of
the
prosecution case. The statement of the
accused-appellant
under
Section
313
Cr.P.C. is not a substantive piece of
evidence. It can be used for appreciating
evidence lead by the prosecution to accept
or reject it. Witnesses of the recovery, S.I.
Dinesh Yadav (PW-1) and S.I. Ram Samujh
Prabhakar (PW-2) were cross- examined by
learned counsel for the accused-appellant in
the lower court in reference to the
statement given by accused under Section
313 of Cr.P.C., which lead assurance that
the recovery of the Charas as alleged by
them is truthful and reliable and inspires
confidence.

18. In this regard, it is also pertinent
to mention that S.I. Ram Samujh (PW-2) in
his statement before the court has stated
that on 4.1.2011, he was posted at Police
Station- Shohratgarh. He has further stated
that on that day he was present near the
Police Booth Shohratgarh at about 07:00
p.m. in connection with law and order duty
along with Ct. Shriram Sharma Ram.
Meanwhile, S.I. Dinesh Yadav SOG
incharge arrived there in company with Ct.
Panna Lal Yadav, Ct. Ravindra Mohan
Pandey with Government Jeep and all of
them proceeded for taking care of his area
and for prevention of smuggling and as
soon as they reached near the north grove
of the village Mustahkam, in light of the
Jeep, a person was found coming from
Nepal side with a bag in hand, he started
hiding himself to avoid the light of Jeep.
On being suspicion, he was stopped by
companion police personnels in the grove
and on being asked the name and address
and also the reason of hiding himself, he
became stunned. Again on being asked for
reason of hiding by applying tactics, he told
his name as Mohd. School son of late
Rahmatullah resident of Chilha and told
that he is in possession of narcotics. He was
told that he has right to be searched before
competent Magistrate or Gazetted Officer,
if you so desire they will be called or he
will be taken before them for search. He
has stressed upon them that they may
search him. After obtaining the consent of
Mohd. School on consent letter, he has
stated that he was caught by them and even
if it is searched before the Magistrate or
Gazetted Officer, Charas will come out
before them also. Thereafter, consent and
memo were prepared and got it signed by
accused-appellant. After which police party
searched each other, then no suspicious
object was found with anyone. After that
Mohd. School was searched and a bag was
found in his right hand inside it two plastic
packets one yellow colour and one beige
plastic packets were recovered and inside
the yellow colour plastic packet two small
packets of Charas wrapped in white and
yellow plastic foil and four packets were
86 INDIAN LAW REPORTS ALLAHABAD SERIES
found in beige plastic. Inside the packet,
Charas in shape of cylindrical rod was
found wrapped in plastic polythene. The
charas was weighed by scale which was
kept in Jeep and its weight was found 5 Kg.
and 150 gm of Charas. The accusedappellant
was
asked
to
show
the
authorisation for possession or carrying
Charas but he could not show it and started
apologizing for his mistake again and
again. Charas was taken in custody at about
19:50 p.m. and recovered Charas was put in
the same bag and was sealed and sample
seal was prepared. Thereafter, accusedappellant was asked about the source of the
charas received, it was told that narcotic
substance Charas was given by a Thapa at
the Tawliwa border in Nepal the name is
not known. On enquiry he told that one
year ago he fled by digging tunnel from of
Tawliwa in Nepal and along with him eight
other prisoners were also escaped. He has
further stated that S.I. Ram Samujh (PW-2)
scribed the recovery memo Ex.Ka-3 on
dictation of S.I. Dinesh Kumar and has read
over to informant and accompanying police
personnels and thereafter S.I. Dinesh
Kumar informant signed it and police
personnels also signed on recovery memo
as witnesses and the copy of it was given to
accused-appellant Mohd. School. He has
further deposed that S.I. Dinesh Kumar
Yadav had taken to police station the
recovered contraband along with accusedappellant and recovery memo and got the
case
registered
at
Police
Station-
Shohratgarh. It was further deposed that the
recovery
memo,
consent
memo
in
compliance of Section 50 NDPS Act and
the memo of arrest of the accused-appellant
was prepared in light of torch and headlight
of the Jeep. In cross-examination, he has
stated that SOG incharge S.I. Dinesh
Kumar though met him in Shohratgarh
Town at 07:00 p.m. He has further
corroborated that the place of occurrence is
6 kilometer from Shohratgarh police booth.
He has further corroborated that they
reached at the place of occurrence at 07:40
p.m. and had seen the accused-appellant
hiding from headlight of Jeep at the same
time. He has further corroborated that it
took two hours in completing the entire
proceeding at the place of occurrence. He
has further stated that the Charas was
sealed and sample seal was prepared at the
place of occurrence. He has further
corroborated that the Charas was sealed in
that bag from which it was recovered. He
has denied the suggestion of counsel for the
accused-appellant that he had apprehended
the accused-appellant from his house. He
has also denied the suggestion of counsel
for the accused-appellant that Mohd.
School was doing business of firecrackers
by preparing it manually and because of not
greasing the hand of SOG incharge he was
falsely implicated.

19. As discussed earlier that the
counsel for accused-appellant has not asked
any question regarding apprehending the
accused-appellant from Sukrauli bazar in
broad day in public view and later he was
kept for 22 days in illegal police custody
and later on he was challenged by planting
false
recovery.
Therefore,
in
above
circumstances the statement of accusedappellant as stated in statement under
Section 313 Cr.P.C. will be taken into
consideration in appreciating the evidence
of prosecution and in arriving at a
conclusion regarding the truthfulness and
falsity of the prosecution case. Nothing
came in their cross-examination which
indicates that false recovery was planted on
accused-appellant. In above circumstances,
it is proved that the depositions of the
witness S.I. Dinesh Kumar (PW-1) and S.I.
Ram Samujh (PW-2) is unimpeachable and
4 All. Mohammad School Vs. State of U.P. & Anr.
87
liable to be relied. From their consistent
statements, it is proved beyond doubt that
on 4.1.2010 a bag was recovered from
accused-appellant in which two packets
were recovered out of one packet two
packets and out of another packet four
packets of contraband were recovered.

20.

From
above
unimpeached
testimonies of S.I. Dinesh Kumar (PW-1)
and S.I. Ram Samujh (PW-2), it is proved
beyond reasonable doubt that accusedappellant was apprehended at 07:40 p.m.
on 4.1.2021 in the lonely place from grove.
There is no evidence on record, which
proves that they have any previous
knowledge
regarding
possession
and
carrying of contraband by the accusedappellant. From the evidence on record, it
also transpires that the accused-appellant
stopped on suspicion all of sudden and he
told that he has Charas in his bag in his
right hand, therefore, no public witness can
be procured which is quite natural.
Therefore, non-joining the public witnesses
in search is not in any way adversely affect
the prosecution case. It is further proved by
the evidence on record that the Charas was
recovered from the bag which was in his
right hand not from his personnel search,
therefore, the compliance of Section 50 of
NDPS Act was not needed although it is
proved beyond reasonable doubt from an
unimpeached testimonies of S.I. Dinesh
Kumar (PW-1) and S.I.