# Pramod v. State

- **Citation:** (2007) 3 ILRA 942
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-08-09
- **Case number:** Jail Appeal No.1014 of 1994
- **Bench:** Ajai Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pramod-v-state-41199
- **Pages:** 6

## Headnote

A.G.A.

Narcotic
Drug
and
PsychotropicSubstance
Act-Section
22
and
57punishment of one year R.I. with fine of
Rs. One Lac-challenged on the ground of
violation of the provision of section 50 as
no immediate information of seizure
given to the superior officer-No public
witness-held-being burning example of
sudden arrest and chance recovery-in
absence of allegation regarding biasPolice witness as good as the public
witness-and
the
violation
of
the
provision of section 57 being directory in
nature-cannot effect the genuineness of
recovery proceeding.

Held: Para 6,11,and 12

Since all the three cases, i.e. Special
Cases No. 2/1994, 3/1994 and 4/1994
arose out of the same occurrence, they
were consolidated and case no. 2 of
19994 was declared the leading case in
which evidence was recorded and all the
three cases were disposed of by the trial
Court by a common judgment.

In absence of any evidence regarding
bias, the testimony of a police witness is
as good as that of a public witness. I find
that in the present case, there is no
effect of non examination of the public
witness of recovery because no bias has
been alleged on behalf of the appellants
accused with the police officers/officials
nor any suggestion to this effect has
been given from the side of the defence
to the prosecution witnesses.

In my opinion, since there is nothing on
record
to
show
that
the
seizure
proceedings are not genuine, hence. The
violation of provisions of Section 57
being direct in nature has no effect on
the
genuineness
of
the
recovery
proceeding.
Case law discussed:
2004(2) JIC 410 (Alld) distinguished.

## Text

942 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
demand of dowry. The applicant has filed
a suit for restoration of conjugal right, she
does not want to live with the applicant.
The applicant has taken the loan from his
father-in-law to bear the expenses of the
study with an assurance that same shall be
returned after getting the employment.
The applicant in jail for a considerable
period, therefore, he may be released on
bail.

5. In reply of the above contention,
it is submitted by learned A.G.A. and
learned counsel for the complainant that
the
applicant
and
other
co-accused
persons had compelled the first informant
to pay dowry, a huge amount of the
money has been taken as dowry and to
fulfill the demand of dowry the deceased
was subjected to cruelty and the applicant
has compelled his wife to leave his house
and applicant has extended the threats. In
such
circumstances,
if
applicant
is
released on bail, he shall tamper with
evidence.

6.

Considering
the
facts,
circumstances of the case, submissions
made by learned counsel for the applicant,
learned A.G.A., learned counsel for the
complainant and from the perusal of the
record it appears that there is dispute
between husband and wife, there is
specific allegation against the applicant
that he had demanded the dowry up to the
some extent it was fulfilled thereafter
more demand was raised to fulfill the
same. The wife of the applicant was
subjected to cruelty. The date of the
applicant's arrest/ surrender in the court
concerned has not been mentioned in the
bail application which is mandatory
requirement as provided by the High
Court rules, Allahabad under Chapter
XVIII Rule 18 sub rule (4)(b). The period
of detention is also one of the grounds to
consider the bail of the accused, if
applicant's
arrest/surrender
is
not
mentioned in the bail application, the bail
application shall not be entertained. It is
also one of the ground to reject the bail
application, therefore, without expressing
any opinion on the merits of the case, the
applicant is not entitled for bail. The
prayer for bail the refused. At this stage.

7. It is directed that no bail
application shall be entertained by the
Registry if the date of applicant's arrest/
surrender
is
not
mentioned
therein
because it is necessarily required by the
Rule 18 sub rule (4)(b) under Chapter
XVIII
of
the
High
Court
Rules,
Allahabad.

8. A copy of this order shall be
placed before the Registrar General for
issuing the necessary direction to the
concerned section of the office where the
bail applications are entertained.

9. With the above direction this bail
application is rejected.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2007

BEFORE
THE HON'BLE AJAI KUMAR SINGH, J.

Jail Appeal No.1014 of 1994
&
Jail Appeal No.1015 of 1994
&
Jail Appeal No. 1016 of 1994

Pramod

...Appellant
Versus
State

...Respondent
3 All] Pramod V. State
943
Counsel for the Appellant:
Sri Dr. Abida Syed (Amicus Curiae)

Counsel for the Respondent:
A.G.A.

Narcotic
Drug
and
PsychotropicSubstance
Act-Section
22
and
57punishment of one year R.I. with fine of
Rs. One Lac-challenged on the ground of
violation of the provision of section 50 as
no immediate information of seizure
given to the superior officer-No public
witness-held-being burning example of
sudden arrest and chance recovery-in
absence of allegation regarding biasPolice witness as good as the public
witness-and
the
violation
of
the
provision of section 57 being directory in
nature-cannot effect the genuineness of
recovery proceeding.

Held: Para 6,11,and 12

Since all the three cases, i.e. Special
Cases No. 2/1994, 3/1994 and 4/1994
arose out of the same occurrence, they
were consolidated and case no. 2 of
19994 was declared the leading case in
which evidence was recorded and all the
three cases were disposed of by the trial
Court by a common judgment.

In absence of any evidence regarding
bias, the testimony of a police witness is
as good as that of a public witness. I find
that in the present case, there is no
effect of non examination of the public
witness of recovery because no bias has
been alleged on behalf of the appellants
accused with the police officers/officials
nor any suggestion to this effect has
been given from the side of the defence
to the prosecution witnesses.

In my opinion, since there is nothing on
record
to
show
that
the
seizure
proceedings are not genuine, hence. The
violation of provisions of Section 57
being direct in nature has no effect on
the
genuineness
of
the
recovery
proceeding.
Case law discussed:
2004(2) JIC 410 (Alld) distinguished.

(Delivered by Hon'ble Ajai Kumar Singh, J.)

1. All these jail appeals have been
preferred against the common judgment
and order dated 30.3.1994 passed by Sri
K.N. Singh, the then First Addl. Sessions
Judge, Saharanpur in Special Cases No.
2/1994, 3/1994 and 4/1994 under Section
22 of Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter referred
to as 'the Act'), P.S. G.R.P., Saharanpur
convicting all the three appellants accused
for offence under Section 22 of N.D.P.S.
Act and sentencing them each to undergo
rigorous imprisonment for 10 years and to
pay a fine of Rs.1 lac and in default of
payment of fine to undergo a further
imprisonment for two years.

2. Briefly stated the prosecution case
is that on 18.11.1993 Anil Kumar, S.O.
G.R.P. Saharanpur along with Head
Constable Shishupal Singh, Constable
Ravindra Singh and Constable Narendra
Kumar had gone to platform no. 2 in
connection with the investigation of case
crime no. 108 of 1993, under Section 328
I.P.C. and complainant of the said case
was also present with him. Complainant
of the that case Sri Zaheer Ahmad pointed
out towards three persons sitting on the
bench and informed the police party that
those persons had intoxicating article,
which they had given to him some time
back. Upon this information, the first
informant with the help of the police party
arrested those three persons sitting on the
Bench at about 14.10 hrs. After telling
them the reasons for their arrest all the
three accused were arrested. Before
making enquiry about their names and
944 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
addresses, it was asked from those
persons as to whether they would like to
give their search before a Magistrate or
gazetted officer, which they denied and
asked the police party itself to take their
search. Then the names and addresses of
those persons were asked by the police
party. The first person disclosed his name
as Jasondi. On his personal search 16
packing tablets of Serepas-30 and also the
powder of these tablets kept in a sachet of
brown paper was recovered from the front
pocket of the 'bundi' he was wearing. On
the personal search of second person, who
disclosed his name as Ram Singh, 10
tablets of serepas-30 and 9 tablets
Nitravet-10 and powder of serepas tablets
kept in a brown paper was recovered from
the Gamachha tied up with the waist of
the accused. From the personal search of
the third person, who disclosed his name
as Pramod, 20 tablets of serepas-30 and
one sachet of powder of these tablets kept
in brown paper was recovered from the
turban of the accused. When enquired
about the contraband article possessed by
these accused, they could not give any
satisfactory reply in this regard. Instead
they voluntarily admitted that they have
been caught red handed. The accused
Ram Singh disclosed the modus operandi
of the accused persons. Accused Ram
Singh disclosed that at any railway station
or bus stand, the accused Jasondi after
showing his palm to him used to ask
questions from him. During this time if
any passenger also happen to come to
Ram Singh to show his palm he was
asked to wait and in the meantime,
accused Pramod used to go to bring the
tea from a tea stall and used to mix the
powder of intoxicating tablet in the tea of
that passenger. As soon as the passenger
became intoxicated these accused persons
used to take all his belongings and run
away and after selling the said articles,
they used to make merry. The contraband
articles recovered from the three accused
persons were kept separately in three
pieces of cloths and were sealed at the
spot. Sample of the seal was also
prepared. The tumbler in which tea was
given to the complainant and was lying
empty near that place was also taken in
police custody and was sealed at the spot
and the sample of seal was prepared.
Memo of recovery was prepared at the
spot and was read over to the witnesses
and their signatures were obtained. Copy
of the recovery memo was given to each
of the accused separately and their thumb
impressions were obtained. Thereafter,
accused and the recovered contraband
were taken to the police station and on the
basis of the recovery memo, FIR was
registered at the police station.

3. Charge under Section 22 of the
Act was framed against all the three
accused in three separate cases, which
they denied and claimed to be tried.

4. In order to prove its case, the
prosecution examined Anil Kumar, S.I.,
P.S. G.R.P. Saharanpur P.W.-1, Constable
Ravi Dutta, P.W.-2 and S.I. Khanjan Lal
Gangwar, P.W.-3. P.W.-1 Anil Kumar
proved the prosecution story and the
manner of arrest of the accused and
proved the recovery memo Ex. Ka-1 and
tablets Ex. 1-3 recovered from the
possession of the accused. He also proved
power
Ex.-4-6
recovered
from
the
possession of the accused persons. He
also stated that due opportunity as
required under section 50 of the Act was
given to the accused persons to get
themselves searched before a Magistrate
of a Gazetted Officer to which they
denied. The witness has also stated that he
3 All] Pramod V. State
945
had informed the gazetted officer, i.e.,
Circle Officer, about the arrest of the
accused persons orally. P.W.-2, Ravi
Dutta, has corroborated the testimony of
P.W.-1. P.W.-3, who is I.O. of the case,
has proved G.D. Ex. Ka-3, site plans Exs.
Ka-4 to Ka-6, report of the chemical
examination Exs. Ka-7 to Ka-9 and the
charge sheet Exs.Ka-10 Ka-12.

5. In their statements under Section
313 Cr.P.C. all the accused denied the
prosecution version and have stated that
they have been falsely implicated due to
enmity.

6. Since all the three cases, i.e.
Special Cases No. 2/1994, 3/1994 and
4/1994 arose out of the same occurrence,
they were consolidated and case no. 2 of
19994 was declared the leading case in
which evidence was recorded and all the
three cases were disposed of by the trial
Court by a common judgment.

7. On the basis of oral and
documentary evidences adduced before
the Trial Court all the three accused
persons were held guilty of the charge
under Section 22 of the Act and were
accordingly convicted and sentenced vide
impugned judgment to undergo R.1. for
10 years each and a fine of Rs. 1 lac each
and in default of payment of fine each of
them to undergo additional R.1. for two
years.

8. Feeling aggrieved, these three Jail
Appeals have been preferred by the
accused Jasondi, Ram Singh and Pramod
respectively.

9. I have heard amicus curiae for all
the three accused persons and the learned
A.G.A. and have gone through the record.
Since all the three appeals arise out of the
same judgment, the same have been heard
together and are being decided by this
common judgment.

10. The first argument put forward
by amicus curie on behalf of the
appellants is that there has been a clear
cut violation of the provisions of Section
50 of the Act. It has been submitted that
no information has been recorded at the
police station regarding the fact that the
first informant was proceeding from the
police station in connection with the
recovery of the contraband article. It is
also submitted that there is no evidence to
show that information for the seizure of
the
contraband
was
given
to
the
immediate superior officer within the time
prescribed. It is also submitted that the
accused persons were not made aware of
their right of personal search before a
gazetted officer of a magistrate. To the
contrary, learned A.G.A. argued that it is
a case of sudden arrest and of chance
recovery and, hence, the provisions of
Section 50 of the Act are not attracted to
the present case. Learned A.G.A. in this
regard placed reliance on the decision in
Azhar Hussain Vs. State of U.P. &
another 2004 (2) JIC 410 (Alld.)
wherein it has been held that the
provisions of Section 50 of the Act are not
attracted if the recovery of the contraband
article was made from the person of the
appellant all of a sudden. From the
perusal of recovery memo and oral
evidence on recovery, I find that the
present case is an example of sudden
arrest and the recovery is a chance
recovery. Hence, in my opinion in view of
the principal of law laid down in Azhar
Hussain Vs. State of U.P.& another
(supra) the provisions of Section 50 of
the Act are not attracted.
946 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
11. The next argument advanced on
behalf of the appellants is that there is no
independent witnesses of the recovery and
that the complainant of the case crime no.
108 of 2993 namely Zaheer Ahmad has
also not been examined, who was also a
witness of recovery, hence, adverse
inference will be taken against the
prosecution. To the contrary, it has been
submitted by learned A.G.A. that one
public witness of recovery, namely,
Zaheer Ahmad was already with the
police party, hence, there was no need for
the police party to have collected any
other public witness. It has also been
submitted that this witness has already
been examined in the case in which the
accused persons were being tried for the
offence under Section 328 I.P.C. and in
that case also accused persons have been
convicted and it does not matter that the
said witness could not be examined in this
case. In my opinion, the testimony of the
police witnesses cannot be doubted only
on the ground that the witnesses are
police officers/officials. In absence of any
evidence regarding bias, the testimony of
a police witness is as good as that of a
public witness. I find that in the present
case, there is no effect of non examination
of the public witness of recovery because
no bias has been alleged on behalf of the
appellants
accused
with
the
police
officers/officials nor any suggestion to
this effect has been given from the side of
the defence to the prosecution witnesses.

12. It has been next argued that no
information of the seizure was given by
the arresting officer to his immediate
superior officer within 48 hours of the
seizure, hence, there is violation of the
provisions of Section 57 of the Act, which
vitiates the entire recovery proceedings.
To
the
contrary,
learned
A.G.A.
contended that the provision of section 57
of the Act are only directory and only on
this ground the recovery proceedings
cannot be held to be vitiated. Moreover,
there has been compliance of the
provisions of Section 57 of the Act as the
arresting officer, P.W.-1 has clearly stated
that the information of the seizure was
given to the Circle Officer orally after the
occurrence. In my opinion, since there is
nothing on record to show that the seizure
proceedings are not genuine, hence. The
violation of provisions of Section 57
being direct in nature has no effect on the
genuineness of the recovery proceeding.

13. No other point has been raised
during the course of argument on behalf
of the appellants.

14. From the above, I find that the
prosecution case is fully established by
the documentary as well as oral evidences
adduced during the trial and no material
contradictions have been pointed out in
the
statements
of
the
prosecution
witnesses. The provisions of Section 50 of
the Act are not attracted. There is no
material on record to show that the
appellant/accused
has
been
falsely
implicated. Thus, I am of the opinion that
the prosecution has successfully proved
its case beyond reasonable doubt and the
judgment and order of the lower Court
does not suffer from any infirmity. The
conviction and sentence awarded to the
appellants are liable to be upheld.

15. In the result, the appeals fail and
are dismissed.

16. Copy of this judgment be placed
on records of connected Jail Appeals
No.1015 of 1994 and 1016 of 1994.
3 All] Smt. Seema V. State of U.P. and others
947
17. Dr. Abida Syed appointed as
Amicus Curiae on behalf of the appellants
in all the three appeals shall get
Rs.5,000/- as her fees.

18. Let the lower court record be
sent back to District Judge, Siddharth
Nagar without delay along with a copy of
this judgement for compliance and for
making entry in the relevant record.
Compliance report be submitted within
two months.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.10.2007

BEFORE
THE HON'BLE VINOD PRASAD, J.

Criminal Misc. Application No.25035 of
2007

Smt. Seema

...Applicant
Versus
State of U.P. & others ...Opposite Parties

Counsel for the Applicant:
Ashok Kumar Mishra
Sri Arun Kumar Singh

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

Code of Criminal Procedure-Section 154
(1),
156
(3)-cognizable
offencedisclosed-refusal by Magistrate to direct
the Police to register and investigate the
case-On ground-victim has knowledge of
all
facts-No
further
investigation
required-held-contrary to procedure, as
well as various dictum of the Apex CourtMagistrate is under bounded duty to
enforce the law laid down by the Apex
Court-order
impugned
can
not
sustained-accordingly dismissed.

Held: Para 10

From the perusal of the impugned order
it seems that the Magistrate has refused
to direct the police to register the FIR on
the
ground
that
the
victim
is
a
knowledge of all the facts and the matter
does not require any investigation. This
view of the Magistrate is wholly unsanctified and is against the very spirit of
Section
154(1)
in
conjunction
with
156(3) Cr.P .C. and the law laid down by
the Apex Court. Criminal Procedure Code
no where provides that if the facts of a
cognizable offence is known to the
victim then his FIR should not be
registered. From where the Magistrate is
getting this law is not understandable.
On the contrary Criminal Procedure Code
as well as various rulings referred to
above by the Apex Court clearly speaks
that FIR of all cognizable offence must
be registered.
Case law discussed:
2001 (Suppl.) ACC-957
AIR 1992 SC (Crl.)-426
1993 SCC (Crl.)-177

(Delivered by Hon'ble Vinod Prasad, J.)

1. Smt. Seema Verma a tortured
wife has approached this Court in its
inherent jurisdiction under Section 482
Cr.P.C. praying to quash the order dated
13.9.2007 passed by Additional Chief
Judicial
Magistrate,
Baghpat
in
Application No.440 of 2007, Smt. Seema
Versus Manoj and others, under Section
156(3) Cr.P.C., police station Chhaprauli,
district Baghpat. By the impugned order
learned Magistrate has refused to direct
the police to register the FIR and
investigate the offence of cognizable
nature disclose in the application under
Section 156(3) Cr.P.C. filed by the
present applicant.

2. Before coming to the contentions
raised by learned counsel for the applicant
a resume of facts is sketched below.