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

- **Citation:** (2021) 10 ILRA 531
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-24
- **Case number:** Criminal Appeal No. 3162 of 2018
- **Bench:** Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/omvir-in-jail-v-state-of-u-p-46368
- **Pages:** 6

## Headnote

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985
-
Section 8/18- Conviction- Sentence of five
years of rigorous imprisonment- Nothing
adverse has come to the fore that may
reflect on any violation of Section 50 of
the N.D.P.S. Act which is mandatory to be
complied with and compliance of two
Sections 55 and 57 are merely regulatory
and more or less its compliance has also
been made, that does not create any dent
in the prosecution case, therefore, the
trial court was justified in recording
conviction against the appellant under
Section 8/18 N.D.P.S. Act, for which no
infirmity is perceptible in the judgment
and order impugned in this appeal.
Consequently, the conviction recorded by
the trial court is upheld.

As no violation of Section 50, 55 and 57 of the
Act is made out and the procedure of preparing
samples and recovery memo of the seized
contraband also cannot be faulted with, the
conviction of the accused held to be just and
proper.
Quantum of Sentence- Recovery of opium
less than commercial quantity- Sentence
of five years rigorous imprisonment-
Quantum
of
sentencing
part
of
the
judgment
is
concerned
that
under
prevailing facts and circumstances of this
case, appear to be too harsh for which
reasons
are
specific.
Imposition
of
sentence
for
5
years
rigorous
imprisonment is not justified in the
prevailing facts and circumstances of this
case and it cannot be approved of at this
stage and it should commensurate with
the
offence
in
question;
moreso
in
proportionate to the degree the offence
has been committed. Here only 300 grams
of opium which is much below the
commercial quantity i.e. 2.5kg. has been
recovered
in
this
case.
Hence,
the
sentence
of
5
years
rigorous
imprisonment
with
fine
Rs.20,000/-
imposed by the trial court is palliated to
three
years
rigorous
imprisonment
coupled with fine Rs.10,000/-, in case of
default in payment of fine he would have
to
suffer
additional
two
months
imprisonment.

Settled law that imposition of sentence should
be proportionate to the gravity of the offence.
Hence, as recovered contraband is much below
the commercial quantity therefore sentence held
to be excessive and accordingly modified to
three years rigorous imprisonment along with
enhancement of fine.

Criminal Appeal partly allowed. (E-3)

## Text

10 All. Omvir Vs. State of U.P.
531
(2021)10ILR A531
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No. 3162 of 2018

Omvir ...Appellant(In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Shilpa Ahuja, Sri A. Kumar Srivastava, Sri
Chandra Bhan Singh, Sri Naseem Ahmad,
Sri Salman Ahmad, Sri Sameer Khan, Sri
Sanjeev Kumar Tripathee, Sri Suresh
Kumar srivastava

Counsel for the Respondent:
A.G.A.

Criminal Law - Narcotics Drugs and
Psychotropic
Substances
Act,
1985
-
Section 8/18- Conviction- Sentence of five
years of rigorous imprisonment- Nothing
adverse has come to the fore that may
reflect on any violation of Section 50 of
the N.D.P.S. Act which is mandatory to be
complied with and compliance of two
Sections 55 and 57 are merely regulatory
and more or less its compliance has also
been made, that does not create any dent
in the prosecution case, therefore, the
trial court was justified in recording
conviction against the appellant under
Section 8/18 N.D.P.S. Act, for which no
infirmity is perceptible in the judgment
and order impugned in this appeal.
Consequently, the conviction recorded by
the trial court is upheld.

As no violation of Section 50, 55 and 57 of the
Act is made out and the procedure of preparing
samples and recovery memo of the seized
contraband also cannot be faulted with, the
conviction of the accused held to be just and
proper.
Quantum of Sentence- Recovery of opium
less than commercial quantity- Sentence
of five years rigorous imprisonment-
Quantum
of
sentencing
part
of
the
judgment
is
concerned
that
under
prevailing facts and circumstances of this
case, appear to be too harsh for which
reasons
are
specific.
Imposition
of
sentence
for
5
years
rigorous
imprisonment is not justified in the
prevailing facts and circumstances of this
case and it cannot be approved of at this
stage and it should commensurate with
the
offence
in
question;
moreso
in
proportionate to the degree the offence
has been committed. Here only 300 grams
of opium which is much below the
commercial quantity i.e. 2.5kg. has been
recovered
in
this
case.
Hence,
the
sentence
of
5
years
rigorous
imprisonment
with
fine
Rs.20,000/-
imposed by the trial court is palliated to
three
years
rigorous
imprisonment
coupled with fine Rs.10,000/-, in case of
default in payment of fine he would have
to
suffer
additional
two
months
imprisonment.

Settled law that imposition of sentence should
be proportionate to the gravity of the offence.
Hence, as recovered contraband is much below
the commercial quantity therefore sentence held
to be excessive and accordingly modified to
three years rigorous imprisonment along with
enhancement of fine.

Criminal Appeal partly allowed. (E-3)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard Sri Sanjeev Kumar Tripathi,
learned counsel for the appellant and Sri
Bhanu Pratap Singh, learned A.G.A. for the
State and perused the records.

2. The instant criminal appeal
challenges the judgment and order dated
29.05.2018 passed by the Additional
Sessions Judge, Court No.2, Amroha, in
532 INDIAN LAW REPORTS ALLAHABAD SERIES
Special Session Trial No.14 of 2015 arising
out of Case Crime No.177 of 2015 State
Vs. Omvir son of Roomal Singh, under
Section 8/18 N.D.P.S. Act, Police Station
Adampur, District Amroha whereby the
appellant Omvir having been convicted
under the aforesaid Sections of N.D.P.S.
Act has been sentenced to five years
rigorous imprisonment coupled with fine
Rs.20,000/- with default stipulation for six
months additional imprisonment.

3. Relevant facts of this appeal as
discernible from record suggest that the
appellant was caught by the police patrolling
party on the tip off information by some
informer near Ojpura bridge / culvert on the
road within Police Station Adampur, District
Amroha, description of the same indicates
that S.I. Amrish Tyagi and S.I. Rohit
Sharma were patrolling along with their
colleagues within Police Station Adampur
and were passing from Dhabarsi and
reached village Pashupura where they
received tip off information from the
informer that some person is coming to the
village Pashupura from Ojpura side who is
possessing illicit contraband. The police
party believed this information and tried to
arrange public witness but no one was ready
to stand public witness, therefore, the police
party inter-se made search for each other
and assured that there is no adverse material
/ contraband in their possession. Because of
paucity of time, the police party kept
themselves hiding on both sides of the road
near
Ojpura
bridge
/
culvert.
After
sometime, one person was sighted coming
from Ojpura side who was pointed out by
the informer. In the meanwhile, the informer
went away. When that person came closer to
the police party, the police personnel came
out of their hiding and after using necessary
force at about 4:30 p.m. apprehended that
person.

4. On being asked about his name, he
told that he is Omvir son of Roomal Singh,
resident of Shibaura, Police Station Didauli.
District Amroha. He also informed that he is
possessing 300 grams of opium whereupon
he was offered choice to be searched before
some gazetted officer / Magistrate whereupon
he reposed faith in the police party itself for
search being made. The search was made out
whereupon a green bag was recovered from
his right hand wherein some substance was
found kept wrapped inside a polythene, it was
opium weighing 300 grams. Therefore,
Constable Shripal was sent to arrange for
scale to the village Dhabarsi from where he
obtained scale for weighing the contraband
from the shop of some goldsmith. The
recovered opium was weighed on the spot
whereupon it weighed 300 grams, 10 grams
of the recovered opium was taken out for
sampling and was kept in separate polythene
bag and rest of the recovered opium say 290
grams was also kept in another cloth and both
bundles were sealed and specimen seal was
prepared, memo of arrest and recovery was
prepared under Section 8/18 N.D.P.S. Act.

5. Once the memo of arrest and
recovery and the other documents were
prepared on the spot and after reading out
contents of the same and after informing
the appellant, he was arrested for offence
under Section 8/18 N.D.P.S. Act. The
contents were also read out to the police
personnel who also signed on it. Perusal of
memo of arrest and recovery memo Ext.
Ka-4 also indicates that after it was so
signed, a note was appended at the bottom
of the second page of the aforesaid Ext. Ka4 that copy of memo (of arrest and
recovery) is being given to the appellantaccused Omvir Singh. Memo of arrest is
Ext. Ka-5. Memo of scale whereby
recovered
contraband
was
properly
weighed and found 300 grams, out of
10 All. Omvir Vs. State of U.P.
533
which 10 grams was taken out for sampling
purpose, rest of 290 grams was kept under
seal, memo of the same is Ext. Ka-2. Memo
of offer to be searched before any gazetted
officer or Magistrate is Ext. Ka-3.

6. After completing the necessary
exercise, the appellant was taken to the
Police Station Adampur where on the basis
of Ext. Ka-4, memo of recovery and arrest,
report was lodged against the accused by
the informant S.I. Amrish Tyagi, at Police
Station Adampur, District Amroha which
was taken down at 6:30 p.m. at Case Crime
No.177 of 2015 under Section 8/18
N.D.P.S. Act. Check F.I.R. is Ext. Ka-8.
Relevant entry was also made in the
concerned general diary of the aforesaid
date and time at Serial No.34 under the
aforesaid Sections of N.D.P.S. Act at the
aforesaid Police Station, copy of the
general diary entry is Ext. Ka-9.

7. The investigation of this case was
done by S.I. Devendra Kumar PW-3, he
took note of the contents of the Check
F.I.R. and recorded statement of the
constable concerned who noted entry in the
Check F.I.R. and concerned general diary
of date 25.04.2015. He also prepared site
plan of the place of arrest and recovery Ext.
Ka-6 and proceeded to record statement of
various witnesses and sample collected by
the police party earlier was sent to Forensic
Science Laboratory for chemical analysis.
After
recording
statement
and
after
receiving analyst report as above, note of
the contents of the same was made in the
general diary and charge sheet no.160 of
2015 was filed against the appellant in the
court below which is Ext. Ka-7 under
Section 8/18 of the N.D.P.S. Act.

8. The trial court heard the appellant
on the point of charge and considering the
merits of the case and after hearing both the
sides, it was of the opinion that prima facie
case under Section 8/18 N.D.P.S. Act is
made out. Consequently, charge was
framed against the appellant under the
aforesaid Sections of the N.D.P.S. Act on
27.07.2016 and the same was readover and
explained to him who denied the same and
claimed to be tried.

9. To prove its case, the prosecution
in all produced five prosecution witnesses,
a brief sketch of the same is hereinunder:

10. S.I. Amrish Tyagi PW-1 is
witness of fact, he has prepared prosecution
papers. S.I. Rahul Sharma PW-2 is witness
of fact of arrest and recovery. S.I.
Devendra Kumar PW-3 is the Investigating
Officer, he conducted investigation and
filed charge sheet. Head Constable Ganga
Ram PW-4 entered relevant entry in the
Check F.I.R. and also registered case,
entered contents in the relevant general
diary against the appellant and proved
relevant papers as Ext. Ka-8 and Ext. Ka-9,
respectively. Constable Amar Pal Singh
PW-5 has proved Ext. Ka-10, relevant
entry in the register of Malkhana as entered
in the handwriting of Constable Ramdin
with whose handwriting, this witness is
acquainted with.

11. Thereafter evidence for the
prosecution was closed and statement of
the accused-appellant was recorded under
Section 313 Cr.P.C. wherein he disowned
the liability that anything noxious was ever
recovered from his possession.

12. No evidence, whatsoever, was led
by the defence.

13. As a sequel to it, the case was
posted for extending arguments pros and
534 INDIAN LAW REPORTS ALLAHABAD SERIES
cons by the parties and after the arguments
were concluded the trial Judge vetted the
case on merits, returned finding of
conviction against the appellant and passed
the aforesaid sentence.

14. Consequently, this appeal.

15. Contention, in brief, is that the
police party has slapped absolutely false
case without any rhyme or reason and fact
is that nothing of the sort ever took place
on 21.04.2015 on the road near Ojpura
bridge / culvert. Nothing was ever
recovered from the possession of the
appellant and to say that 300 grams of
opium
was
recovered
from
him
is
absolutely false and a big lie. No public
witness was arranged despite the fact that it
was day time and the incident allegedly
took place on the road near Ojpura bridge /
culvert even then the police party failed to
arrange public witness and there is no
whisper in the record about any name as to
who were the persons who refused to stand
as public witness.

16. The mandatory provisions of
N.D.P.S. Act - say Section 42, 50, 55, 57
have not been complied with in letter and
spirit due to which adverse presumption
cannot be drawn against the appellant that
he was possessing opium. The appellant is
neither previous convict nor has any
criminal history except the present case.

17. Lastly on the point of quantum of
sentence, it has been urged that that
appellant is a young man and the fact is that
some altercation took place with the police
party which led to his false implication in
this case. Considering his young age, he
should be given one chance to reform
himself and leniency must be shown
because the appellant has to support his old
father and mother, therefore, sentence
should be reduced to the minimum
imprisonment to secure the ends of justice
otherwise
his
entire
future
will
be
jeopardized.

18. Learned A.G.A. appearing for the
State retorted to aforesaid submission and
urged that relevant provisions of N.D.P.S.
Act have been complied with in letter and
spirit in this case. Factum of recovery has
been proved, to the hilt, not only by the
prosecution witnesses but also by the
analyst report that the contraband and the
sample sent for chemical examination was
on analysis found opium.

19. The prosecution story on the face
inspires confidence. The entire episode is
coherently stitched in such manner that any
possibility of false implication of the
appellant in the case, per se, stands ruled
out and no worthy argument has been
extended on behalf of the appellant as to
how and why the real culprit will be spared
and in place of him, the accused-appellant
will be falsely implicated in this case.
There is no anomaly in the entire
prosecution case and the charge under
Sections 8/18 of N.D.P.S. Act stands
proved beyond all reasonable doubt. The
trial court after adverting to the aforesaid
aspects of the case and vetting the merits
rightly recorded the finding of conviction
based on material on record.

20. Also considered the above
submissions.

21. In the light of rival submissions
and the claim of the appellants and the
prosecution, the moot point that arises for
adjudication of this appeal relates to fact
whether the testimony of the prosecution
witnesses of fact is innocuous and the
10 All. Omvir Vs. State of U.P.
535
charge framed against the appellants has
been proved beyond reasonable doubt or it
is case of no evidence as claimed by the
appellants?

22.

Insofar
as
the
aforesaid
contentions are concerned, as per the
prosecution story, it is obvious that the
prosecution witnesses S.I. Amrish Tyagi
PW-1, S.I. Rahul Sharma PW-2, H.C.P.
Nasir Ali and Constable Shripal were on
patrolling duty on 21.04.2015 around 3:40
p.m., a reference of the same finds mention
at Serial No.29 of general diary of the same
date 21.04.2015 at 15:40 hours. When the
police party reached Pashupura, they
received tip off information from informer
to the extent that some person possessing
opium is coming over to Pashupura from
Ojpura side. The police tried to arrange
public witness but considering welfare, no
one was ready to stand witness for the
police party. Thereafter, because of paucity
of time, the police party inter-se made out
search of each other and assured that no
adverse material is possessed by anyone of
them.

23. The police party proceeded
towards Ojpura and kept themselves hiding
on both sides of the road. After a short
while, some person was sighted who was
pointed out by the informer to be the
person possessing contraband. He went
away from the scene as that person came
nearer to the police party. The police party
came out of their hiding and after using
necessary force arrested the appellant. On
being asked about his name, he told his
name Omvir son of Roomal Singh, resident
of Shibaura, Police Station Didauli. He also
informed that he is possessing 300 grams of
opium. On this disclosure, prior to carrying
out search, the appellant was offered a
choice to be searched either before the
gazetted officer or the Magistrate but he
refused the same and reposed faith in the
police party itself.

24. Thereafter, search was made out
and a green bag was recovered from his
possession wherein some substance /
material was found kept in white polythene
which was opium weighing approximately
300 grams. Constable Shripal was sent to
arrange for scale who obtained it from
goldsmith's
shop
and
the
recovered
contraband was weighed then it aggregated
to 300 grams, out of which 10 grams was
kept for sampling purpose and sample so
colleced and the recovered substance were
kept separate in one polythene bag and in
white cloth, under seal and relevant papers
were prepared on the spot and meme of
arrest and recovery was also prepared and
copy of memo of arrest and recovery Ext.
Ka-4 was given to the appellant, he was
taken to the police station where a case was
registered at Case Crime No.177 of 2015
under Sections 8/18 N.D.P.S. Act, relevant
entry was also made in the concerned
general
diary
and
the
investigation
followed and 10 grams sample earlier
collected was sent to the forensic science
laboratory for analysis from where report
was obtained to the ambit that the
recovered material is opium, the analyst's
report is available on record.

25. The aforesaid process has been
amply proved by statement of the two
prosecution witnesses of fact namely S.I.
Amrish Tyagi PW-1 and S.I. Rahul Sharma
PW-2. They have narrated the entire
incident. They have been cross examined
by the defence wherein nothing adverse has
come to the fore that may reflect on any
violation of Section 50 of the N.D.P.S. Act
which is mandatory to be complied with
and compliance of two Sections 55 and 57
536 INDIAN LAW REPORTS ALLAHABAD SERIES
are merely regulatory and more or less its
compliance has also been made, that does
not create any dent in the prosecution case,
therefore, the trial court was justified in
recording conviction against the appellant
under Section 8/18 N.D.P.S. Act, for which
no infirmity is perceptible in the judgment
and order impugned in this appeal.
Consequently, the conviction recorded by
the trial court is upheld.

26. Thus insofar as the point of
quantum of sentencing part of the judgment
is concerned that under prevailing facts and
circumstances of this case, appear to be too
harsh for which reasons are specific.
Considering future family liability of the
appellant that the appellant is a young man
and he has old parents to look after, and he
has promised not to repeat similar offence
in future and he is repentful to the situation
and undertakes that he will reform himself
as a good citizen and he will not repeat
similar offence in future and prayed that the
sentence should be confined to the
minimum possible as that would serve ends
of justice.

27. Therefore, imposition of sentence
for 5 years rigorous imprisonment is not
justified in the prevailing facts and
circumstances of this case and it cannot be
approved of at this stage and it should
commensurate with the offence in question;
moreso in proportionate to the degree the
offence has been committed. Here only 300
grams of opium which is much below the
commercial quantity i.e. 2.5kg. has been
recovered in this case. Hence, the sentence
of 5 years rigorous imprisonment with fine
Rs.20,000/- imposed by the trial court is
palliated
to
three
years
rigorous
imprisonment
coupled
with
fine
Rs.10,000/-, in case of default in payment
of fine he would have to suffer additional
two months imprisonment.

28. Accordingly, the sentencing part
of the impugned judgment and order dated
29.05.2018 passed by the Additional
Sessions Judge, Court No.2, Amroha, in
Special Session Trial No.14 of 2015 arising
out of Case Crime No.177 of 2015 State
Vs. Omvir son of Roomal Singh, under
Section 8/18 N.D.P.S. Act, Police Station
Adampur, District Amroha, is hereby
modified to the aforesaid extent.

29. In this case, the accused-appellant
is in jail since 29.05.2018 and sentence of
three years rigorous imprisonment shall
come to an end on 28.05.2021, if the
amount of fine Rs.10,000/- is also paid on
or
before
28.05.2021
otherwise
the
appellant shall have to suffer two months
imprisonment. Therefore, the appellant
shall serve out the aforesaid remaining part
of the sentence as above.

30. The instant appeal is allowed,
partly accordingly.

31. Let a copy of this order/judgment
be certified to the court below for necessary
information and follow up action.
----------
(2021)10ILR A536
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 18.01.2021

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 2591 of 2020

Mukesh Kumar ...Appellant(In Jail)
Versus
State of U.P. ...Respondent