# Sanjay Kumar Verma (In Jail) v. State of U.P

- **Citation:** (2006) 1 ILRA 433
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-01-13
- **Case number:** Criminal Misc. Bail Application No. 12249 of 2003
- **Bench:** Ravindra Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-kumar-verma-in-jail-v-state-of-u-p-40754
- **Pages:** 5

## Headnote

Code of Criminal Procedure-Section 439Bail
Application
offence
u/s
18/21
N.D.P.S.
Act-applicant
while
driving
Maruti car-during course of search two
polythene
bags
containing
brown
powder-detected as Smack-recovereddifference in weight of the recovered
contraband mentioned in recovery memo
and in the report of Public Analyst-found
too
much-according
to
prosecution
version-the
recovered
contraband
substance was smack-while according to
public analyst report it is hearing both
contraband substance are separately
defined in the Act-held-entitled for Bail.

Held: Para 6

Considering the facts and circumstances
of the case and the decision of Apex
Court as referred above, in the present
case the difference in the weight of
recovered contraband mentioned in the
recovery memo and in the report of
Public Analyst is too much. It is not a
minor difference because in a sample of
10 grams contraband there is difference
of more that 6 grams. It is major
difference. It will have its own adverse.
It is not proper to record any finding at
this stage. The same shall be considered
at the stage of the trial on the basis of
the evidence. According to prosecution
version the recovered contraband was
smack (brown sugar), but according to
Public Analyst report it was found
heroine. According to the N.D.P.S. Act
both the contrabands are separately
defined and both are not the same.
Therefore,
without
expressing
any
opinion on the merits of the case the
applicant is entitled for bail.
Case law discussed:
2005 (51) ACC-315 (SC) relied on.

## Text

1 All] Shankar Dayal Tiwari and another V. D.D.C., Gorakhpur and anoter
433
to the Deputy Director of Consolidation to
decide the revision on merits.
5. Considered arguments of learned
counsel for the petitioners and perused the
record as well as relevant provisions on
the point.

6. In the present case, this is not
disputed
that
only
appeal
was
maintainable, but an incompetent revision
was preferred. As soon as the mistake was
detected, an appeal was preferred and an
application was moved to the Deputy
Director
of
Consolidation
to
grant
permission to withdraw the revision
which was allowed by the impugned
order.

7.

Rule
111
of
the
U.P.
Consolidation of Holdings Rules, 1954
provides for presenting the application for
revision which reads as under:-

"An application under Section 48 of
the Act shall be presented by applicant or
his
duly
authorised
agent
to
the
Joint/Deputy/Assistant
Director
of
Consolidation, nominated by the Director
of Consolidation, Uttar Pradesh for the
District
or
Settlement
Officer
(Consolidation) unit concerned or failing
posting
of
any
such
Joint/Deputy/Assistant
Director
of
Consolidation in the district, to the
District Deputy Director (Consolidation
within 30 days of the order against which
the application is directed. It shall be
accompanied by copy of the judgment or
order in respect of which the application
is preferred. Copies of judgment or order,
if any, of other subordinate authorities in
respect of dispute shall be filed alongwith
the application."

8. Though Order 23 Rule 1 of the
C.P.C. is not applicable to the U.P.
Consolidation of Holdings Act, but
Consolidation authorities can exercise
discretion to secure end of justice in the
case and as revision was not competent,
the Deputy Director of Consolidation
rightly permitted to withdraw the same.
An Authority having no jurisdiction to
entertain the revision has no jurisdiction
to decide the revision on merit. The order
was rightly passed by the Deputy Director
of Consolidation permitting to withdraw
the revision.

9. Thus, it is clear that if an
authority has power to entertain any
revision, it has also power to permit
withdrawal of the revision.

10. The Deputy Director of
Consolidation has permitted to withdraw
the revision in the facts of the case. There
is no error of law apparent on the face of
record.

For the reasons, as above, writ
petition has no force and is dismissed.
Petition dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.01.2006

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 12249
of 2003

Sanjay Kumar Verma...Applicant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
434 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Sri S.K. Mishra
Sri Dileep Kumar
Sri Rajeev Gupta
Counsel for the Opposite Party:
Sri A.N. Mulla
A.G.A.

Code of Criminal Procedure-Section 439Bail
Application
offence
u/s
18/21
N.D.P.S.
Act-applicant
while
driving
Maruti car-during course of search two
polythene
bags
containing
brown
powder-detected as Smack-recovereddifference in weight of the recovered
contraband mentioned in recovery memo
and in the report of Public Analyst-found
too
much-according
to
prosecution
version-the
recovered
contraband
substance was smack-while according to
public analyst report it is hearing both
contraband substance are separately
defined in the Act-held-entitled for Bail.

Held: Para 6

Considering the facts and circumstances
of the case and the decision of Apex
Court as referred above, in the present
case the difference in the weight of
recovered contraband mentioned in the
recovery memo and in the report of
Public Analyst is too much. It is not a
minor difference because in a sample of
10 grams contraband there is difference
of more that 6 grams. It is major
difference. It will have its own adverse.
It is not proper to record any finding at
this stage. The same shall be considered
at the stage of the trial on the basis of
the evidence. According to prosecution
version the recovered contraband was
smack (brown sugar), but according to
Public Analyst report it was found
heroine. According to the N.D.P.S. Act
both the contrabands are separately
defined and both are not the same.
Therefore,
without
expressing
any
opinion on the merits of the case the
applicant is entitled for bail.
Case law discussed:
2005 (51) ACC-315 (SC) relied on.

(Delivered by Hon'ble Ravindra Singh, J.)

1. Heard Sri Dileep Kumar, Sri
Rajeev Gupta and Sri S.K. Mishra learned
counsel for the applicant and the learned
A.G.A.

2. This application is filed by the
applicant Sanjay Kumar Verma with a
prayer that he may be released on bail in
case crime no. 64 of 2003 under Sections
18/21 N.D.P.S. Act., P.S. Jaspura, District
Banda.

3. According to prosecution version
the first informant S.I. Kamal Yadav got
an information that the applicant had gone
to Banda to purchase smack (Brown
sugar). Therefore, the first informant
along with some other police personnel
proceeded towards the Banda where an
information was given by Mukhvir Khas
that the applicant was moving in Banda
city, in a white maruti car and he was
having smack. The Maruti Car bearing
registration No. UP 32-W- 2594 of the
applicant was intercepted. An attempt was
made to collect the public witnesses but
nobody was ready to become the witness.
The applicant was arrested on 8.5.2003 at
7.55 p.m. At that time the applicant was
driving a maruti car. He disclosed his
name and he was asked to give his search
and he was apprised about his right that
search may be given by him before a
Gazetted Officer or the Magistrate, but he
stated that the search may be given before
any Gazetted Officer. Therefore, through
R.D. Set information was given to C.O.
(City), Banda. On that information Sri
Subhash Chandra Shakya C.O. (City),
Banda came at the place of occurrence
and at about 9.00 p.m. the search of the
applicant was made and from a cavity of
the Maruti car he taken out two polythene
1 All] Sanjay Kumar Verma V. State of U.P.
435
bags containing brown powder, by its
smell it was detected as smack. The
applicant confessed that he was taking the
recovered contraband to Lucknow and
Barabanki for the purpose of sale. The
recovered contraband was weighed. In the
first packet it was found 470 grams and in
the second packet it was found 535 grams
and from each the packets 5 grams smack
was taken and each was kept and sealed in
two different match boxes. According to
prosecution version 1005 grms smack was
recovered from the possession of the
applicant. According to prosecution both
the match boxes were sealed on the spot
and the remaining recovered contraband
was also sealed.

4. It is contended by the learned
counsel for the applicant that in the
present case for the purpose of sample 5
grams recovered contraband was taken
from the each packet and packed and
sealed in two different match boxes. One
match box was having the brand of
Chameli and the second match box was
having the Hurricane brand and according
to Chemical Analyst report only 1970 mg
heroine was found in a sample kept in the
hurricane match box and 1950 mg heroine
was found in a second sample kept in
Chamely brand match box. According to
prosecution version in each match boxes
the recovered contraband was kept.
According to prosecution version the total
weight of sample sent for chemical
analysis was 10 grams, but according to
the report the weight of total sample was
found 3.920 grams. There is a difference
of 6.080 gms. There is a variation in the
weight of the recovered sample and it is
not a minor difference, because there is a
difference of more than 6.00 grams. It is a
major difference. In such a major
difference no reliance can be placed on
the prosecution story, because it is
demolishing the factum of the recovery
and sampling the same. It is further
contended that according to prosecution
version the recovered contraband was
smack, but according to Chemical Analyst
report dated 27.6.2003 it was found
heroine
which
belies
the
whole
prosecution story. It shows that the
sample of the recovered contraband was
not sent for the Chemical Analyst. The
reliance has been place on the decision of
the Apex court of the case of 'Rajesh
Jagdamba Avasthi Vs. State of Goa
{2005(51)ACC 315}. In this case from the
shoe of right foot 100 grams charas and
from the shoe of left foot 115 grams
charas was recovered. The recovered
charas was packed and sealed in two
envelops A and B, but according to
Chemical Analyst report 98.16 grams
charas was recovered from envelop A in
which according to prosecution version
100 grams charas was packed and sealed
and from envelop B 82.54 grams charas
was found in which accoording to
prosecution version 150 grams charas was
packed and sealed. The accused was
convicted by the trial court as well as by
the High Court, but the accused was
acquitted by the Apex Court by observing
in para 12 and 13 of the Judgement,
which is as under :-

"We do not find it possible to
uphold this finding of the High Court.
The appellant was charged of having
been found in possession of charas
weighing
180.70
gms.
The
charas
recovered from him was packed and
sealed in two envelopes. When the said
envelopes were opened in the laboratory
by Junior Scientific Officer, P.W. 1. he
found the quantity to be different. While
in one envelop the difference was only
436 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
minimal, in the other the difference in
weight was significant. The High Court
itself found that it could not be described
as a mere minor discrepancy. Learned
Counsel rightly submitted before us that
the High Court was not justified in
upholding the conviction of the appellant
on the basis of what was recovered only
from envelop 'A' ignoring the quantity of
charas found in envelope 'B'. This is
because there was only one search and
seizure, and whatever was recovered
from the appellant was packed in two
envelopes. The credibility of the recovery
proceedings is considerably eroded if it is
found that the quantity actually found by
P.W. 1 was less than the quantity sealed
and
sent
to
him.
As
he
rightly
emphasized, the question was no how
much was seized, but whether there was
an actual seizure and whether what was
seized was really sent for chemical
analysis to P.W. 1. The prosecution has
not been able to explain this discrepancy
and, therefore, it renders the case of the
prosecution doubtful.

This is not all. We find from the
evidence of P.W. 4 that he had taken the
seal
from
PSI
Thorat
and
after
preparing
the
seizure
report,
panchnama, etc. he carried both the
packets to the police station and handed
over the packets as well as the seal to
inspector Yadav. According to him on
the next day, he took back the packets
from the police station and sent them to
P.W. 3, Manohar Joshi, Scientific
Assistant in the Crime Branch, who
forwarded the same to P.W. 1 for
chemical
analysis.
In
these
circumstances, there is justification for
the argument that since the seal as well
as the packets were in the custody of the
same person, there was every possibility
of the seized substance being tampered
with and that is the only hypothesis on
which the discrepancy in weight can be
explained. The least that can be said in
the facts of the case is that there is
serious doubt about the truthfulness of
the prosecution case."

5. It is opposed by the learned
A.G.A. by submitting that there is minor
discrepancies in the weight of the sample.
According
to
prosecution
version
according to public analyst report due to
such minor difference the prosecution
story can not be demolished. It is further
contended that there is minor difference
between the smack and the heroine. The
applicant has himself disclosed that he
was having a smack. Therefore, in the
recovery memo the recovered contraband
was mentioned as smack (brown sugar),
but according to Public Analyst report it
was confirmed that the alleged recovered
contraband was heroine and there is no
other discrepancies in the prosecution
story. Therefore, the applicant is not
entitled for bail.

6. Considering the facts and
circumstances of the case and the decision
of Apex Court as referred above, in the
present case the difference in the weight
of recovered contraband mentioned in the
recovery memo and in the report of Public
Analyst is too much. It is not a minor
difference because in a sample of 10
grams contraband there is difference of
more that 6 grams. It is major difference.
It will have its own adverse. It is not
proper to record any finding at this stage.
The same shall be considered at the stage
of the trial on the basis of the evidence.
According to prosecution version the
recovered contraband was smack (brown
sugar), but according to Public Analyst
report it was found heroine. According to
1 All] Sanjay Kumar Verma V. State of U.P.
437
the N.D.P.S. Act both the contrabands are
separately defined and both are not the
same. Therefore, without expressing any
opinion on the merits of the case the
applicant is entitled for bail.

7. Let the applicant Sanjay Kumar
Verma involved in case crime no. 64 of
2003, under Sections 8/21/ N.D.P.S. Act,
P.S. Jaspura, District Banda be released
on bail on his furnishing a personal bond
and two sureties each in the like amount
to the satisfaction of the court concerned.
Application Allowed
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.09.2005

BEFORE
THE HON'BLE VINEET SARAN, J.

Civil Misc. Writ Petition No. 51275 of 2004

Seema Mourya

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri S.D. Shukla

Counsel for the Respondents:
Sri Ajit Kumar Singh
S.C.

Constitution of India, Art. 226-Writ
jurisdiction-Petition govt. selected for
Special
B.T.C.-based
on
forged
and
fabricated document-after verification-it
was found that such marks sheet was
never issued from university argument
even on the basis of correct mark sheet
admission can not be denied-held-not to
be accepted-Teacher a noble professionunder
writ
jurisdiction-apart
from
discretion-equity must be in feavor of
petitioner.

Held: Para 7

As such, in the aforesaid circumstances
the petitioner would not be entitled to
any indulgence by this Court, specially in
its
discretionary
jurisdiction
under
Article 226 of the Constitution of India.
For a petitioner to be entitled to the
relief under this jurisdiction, she is not
only expected to show that law is in her
favour but that equity is also in her
favour. In the present case, may be the
petitioner would be entitled to admission
on the basis of her correct marksheet but
in the present case, equity being totally
against
her,
as
she
had
initially
approached the authorities for admission
on the basis of forged and fabricated
marksheet and giving wrong declaration,
she would not be entitled to any relief.

(Delivered by Hon'ble Vineet Saran, J.)

1. By means of this writ petition the
petitioner has challenged the order dated
11.11.2004 passed Principal, District
Institute
of
Education
&
Training,
Robertsganj,
District
Sonbhaddra,
Respondent no.3, by which the admission
of the petitioner in the institute for
undergoing the course of B.T.C. has been
cancelled. A further prayer has been made
for a direction in the nature of mandamus
commanding the respondents to permit
the petitioner to pursue her studies in the
second year B.T.C. training course and to
appear in the final examination.

2. The main ground for cancellation
of the admission of the petitioner as set
out in the impugned order is that in the
admission
form,
the
petitioner
had
declared that she had obtained 1143/1800
marks in B.A. examination which she