# Sanjeev Kumar Singh / (In Jail) v. State of U.P

- **Citation:** (2019) 1 ILRA 283
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-09-16
- **Bench:** Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjeev-kumar-singh-in-jail-v-state-of-u-p-44451
- **Pages:** 12

## Headnote

Substances Act, 1985 - Non-Joining of
Independent Witnesses- The obligation
to take public witnesses (independent
witness) is not absolute.

If after making efforts which the court
considers in the circumstances of the case
reasonable the police officer is not able to get
public witnesses to associate with the raid or
arrest of the culprit, the arrest and the
recovery made would not be necessarily
vitiated. The court will have to appreciate the
relevant evidence and will have to determine
whether the evidence of the police officer is
284 INDIAN LAW REPORTS ALLAHABAD SERIES
believable after taking due care and caution in
evaluating their evidence. (Para 15,16,17)

B. Section 114 Evidence Act - gives rise to
the presumption that every official act done
by the police was regularly performed and
such presumption requires rebuttal. The
legal maxim omnia praesumuntur rite it
dowee probetur in contrarium solenniter
esse acta i.e., all the acts are presumed to
have been done rightly and regularly,
applies.
When acts are of official nature and went through
the process of scrutiny by official persons, a
presumption arises that the said acts have
regularly been performed and therefore absence
of independent witnesses reasonably explained
and no illegality found in the same. (Para 16)

C. Section 50 Of the N.D.P.S Act - applies
on personal search only and recovery
from tanker or box does not require
compliance of Section 50 of the Act.
Moreover, the recovery memo and statements
of two recovery witnesses show that it was
explained to the accused before search that he
has a right to be searched before a gazetted
officer or magistrate, and only when the
accused permitted search by police, the search
was conducted and the illegal ganja was
recovered. (Para 18,19,20 and 21)

D. Section 35 and 54 of the N.D.P.S ActConscious Possession - creates a legal
fiction & presumes - the person in
possession of illicit article had culpable
mental state & had committed the
offense.

From the conjoint reading of the provisions of
Sections 35 and 54 of the Act, it becomes
clear that if the accused is found to be in
possession of the contraband article, he is
presumed to have committed the offence
under the relevant provisions of the Act until
the contrary is proved. According to Section 35
of the Act, the Court shall presume the
existence of mental state from the commission
of an offence and it is for the accused to prove
otherwise. It is a settled legal proposition that
once possession of the contraband articles is
established, the burden shifts on the accused
to establish that he had no knowledge of the
same. Additionally, it can also be held that
once the possession of the contraband
material with the accused is established, the
accused has to establish how he came to be in
possession of the same as it is within his
special knowledge and therefore, the case falls
within the ambit of the provisions

## Text

_Characters 0–39,947 of 40,290. This is a partial read: ask again with offset=39947 for what follows._

1 All. Sanjeev Kumar Singh Vs. State of U.P.
283
occurrence. It is an inference to be
deducted
from
the
facts
and
circumstances of each case." In Chand vs.
State of U.P. (2004) 5 SCC 141, it has
been also held that "the plea that definite
roles have not been ascribed to the
accused and therefore Section 149 is not
applicable, is untenable. It is not really
necessary to determine as to which of the
accused persons forming part of the
unlawful
assembly
inflicted
what
particular or specific injury in the course
of the occurrence."

27. In the instant case, from the
prosecution evidence it is established that
all the accused armed with guns, countrymade
pistols
and
lathi
came
and
committed the alleged offence in which
Ram Bharosey and Ram Rais succumbed
to the injuries and Surendra Pal also
received fire arm injury in his head. From
the above, it is clear that all the accused
formed
an
unlawful
assembly
and
committed the alleged offence. As such,
in view of the law laid down by Hon'ble
Supreme Court in the above referred
cases, in our opinion no benefit of doubt
or benevolence can be given to the
appellants as contended by the learned
counsel for the appellants.

28. Thus, upon a wholesome
consideration of the facts of the case,
attending circumstances and the evidence
on record, we do not find that the learned
trial Judge committed any illegality or
legal
infirmity
in
convicting
and
sentencing appellants Atar Singh, Puttoo,
Satyapal and Ramphal in Criminal Appeal
No. 871 of 1986, to undergo two years
under Section 148 of I.P.C., 6 months
rigorous imprisonment under Section
323/149 of I.P.C. and life imprisonment
under Section 302/149 of I.P.C.

29. This appeal lacks merit and is
accordingly, dismissed.

30. Appellants Atar Singh, Puttoo,
Satyapal and Ramphal are on bail. Chief
Judicial Magistrate, Budaun is directed to
take them into custody and send them to
jail for serving out the remaining out of
their sentences.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.09.2019

BEFORE

THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.
CRIMINAL APPEAL No. 981 OF 2015

Sanjeev Kumar Singh
 ...Applicant/Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri O.P. Singh, Sri Brijesh Sahai, Sri
Chandra Bhushan Prasad, Sri Nirvikar
Gupta, Sri Pradeep Kumar Chaurasia, Sri
Rajesh Pratap Singh.

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

A. Narcotic Drugs and Psychotropic
Substances Act, 1985 - Non-Joining of
Independent Witnesses- The obligation
to take public witnesses (independent
witness) is not absolute.

If after making efforts which the court
considers in the circumstances of the case
reasonable the police officer is not able to get
public witnesses to associate with the raid or
arrest of the culprit, the arrest and the
recovery made would not be necessarily
vitiated. The court will have to appreciate the
relevant evidence and will have to determine
whether the evidence of the police officer is
284 INDIAN LAW REPORTS ALLAHABAD SERIES
believable after taking due care and caution in
evaluating their evidence. (Para 15,16,17)

B. Section 114 Evidence Act - gives rise to
the presumption that every official act done
by the police was regularly performed and
such presumption requires rebuttal. The
legal maxim omnia praesumuntur rite it
dowee probetur in contrarium solenniter
esse acta i.e., all the acts are presumed to
have been done rightly and regularly,
applies.
When acts are of official nature and went through
the process of scrutiny by official persons, a
presumption arises that the said acts have
regularly been performed and therefore absence
of independent witnesses reasonably explained
and no illegality found in the same. (Para 16)

C. Section 50 Of the N.D.P.S Act - applies
on personal search only and recovery
from tanker or box does not require
compliance of Section 50 of the Act.
Moreover, the recovery memo and statements
of two recovery witnesses show that it was
explained to the accused before search that he
has a right to be searched before a gazetted
officer or magistrate, and only when the
accused permitted search by police, the search
was conducted and the illegal ganja was
recovered. (Para 18,19,20 and 21)

D. Section 35 and 54 of the N.D.P.S ActConscious Possession - creates a legal
fiction & presumes - the person in
possession of illicit article had culpable
mental state & had committed the
offense.

From the conjoint reading of the provisions of
Sections 35 and 54 of the Act, it becomes
clear that if the accused is found to be in
possession of the contraband article, he is
presumed to have committed the offence
under the relevant provisions of the Act until
the contrary is proved. According to Section 35
of the Act, the Court shall presume the
existence of mental state from the commission
of an offence and it is for the accused to prove
otherwise. It is a settled legal proposition that
once possession of the contraband articles is
established, the burden shifts on the accused
to establish that he had no knowledge of the
same. Additionally, it can also be held that
once the possession of the contraband
material with the accused is established, the
accused has to establish how he came to be in
possession of the same as it is within his
special knowledge and therefore, the case falls
within the ambit of the provisions of Section
106 of the Evidence Act.(Para 22,31 and 32)

E. Non-Compliance of the provisions of
Section 42 (2) and Section 57 of the
N.D.P.S Act - Sections 42 and 43
contemplate
two
distinct
situations.
Section 42 contemplates entry into and
search of any building, conveyance or
enclosed
place,
while
Section
43
contemplates a seizure made in any
public place or in transit.
Therefore,
the
learned
trial
court
has
concluded on the basis of evidence that the
said vehicle from which contraband was
recovered was intercepted at a public place
and on road, and therefore, in the facts of the
case Section 43 of the Act is applicable. Since
PW-3 proved before the trial court G.D. Ext.
Ka-7 in which it is contained that after
registration of offence, information was given
to C.C.R. and superior officers by R.T. Set and
so, where the higher officer has been informed
without any unreasonable delay and the F.I.R.
has reached to the Magistrate without any
further delay, there remains no force in the
argument that Section 57 of the Act has been
violated. (Para 24 to 29)

F. Section 20 (C) of the N.D.P.S Act - The
recovered contraband was slightly above
the commercial quantity (20 kg. 300
gm.)
for
which
10
years
rigorous
imprisonment and one lac fine and in
default 1-year additional imprisonment
will serve the purpose of sentencing.
Accordingly, awarded sentence is liable
to be modified. (Para 34)
Case Law discussed/ relied upon: -
1. Jarnail Singh vs. State of Punjab, 2011 CRLJ
1738(SC),

2. Ajmer Singh Vs. State of Haryana, (2010) 3
SCC 746
1 All. Sanjeev Kumar Singh Vs. State of U.P.
285
3. Dharam Pal Singh Vs. State of Punjab,
2010(71) ACC 548 (SC)

4. Gian Chand & Others Vs State of Haryana,
AIR 2013 SC 33

5. State of Punjab Vs. Baldev Singh, (1999) 6
SCC 172 (Five Judge Bench)

6. T. Hamza vs State of Kerala, (2000) 1 SCC 300

7. Megh Singh vs State of Punjab, (2003) 8
SCC 666

8. Dilbagh Singh v State of Punjab, (2017) 11
SCC 290

9. Kulwinder Singh Vs. State of Punjab, (2015)
6 SCC 674

10. State of Haryana vs Jeneral Singh, (2004)
5 SCC 7188

11. Syco Jabbi vs State of Maharashtra, 2004
(1) Crimes 112

12. Krishna Chandra vs State of Haryana, 2013
(3) CCSC 1558 (SC)

13. Abdul Rasheed Ibrahim Mansuri vs State of
Gujarat, 2000 CrLJ 1384 (SC)

14. Jitendra Singh Rathore vs State of UP,
2014 (1) JIC 511 (Allahabad)

15. State of Karnataka v. Dondusa Namasa
Baddi, 2011(72) ACC 666 (SC)

16. Karnail Singh v. State of Haryana, 2009 (8)
SCC 539 (Five judge Bench)

17. Darshan Singh v State of Haryana, (2016)
14 SCC 358

18. Girish Raghunath Mehta v Inspector of
Custom, AIR 2016 SC 4317

19. State, NCT of Delhi vs Malvinder Singh AIR
2007 SC (supp.) 237 (E-3)
(Delivered by Hon'ble Pradeep Kumar
Srivastava, J.)

1. This criminal appeal has been
preferred against the judgment and order
dated 24.02.2015, passed by Additional
Sessions Judge, Court No. 5, Varanasi, in
Criminal Case No. 424 of 2010 (State vs.
Sanjeev Kumar Singh), arising out of Case
Crime No. 126 of 2010, under Section 8/20
N.D.P.S. Act, Police Station Ram Nagar,
District Varanasi, whereby the accused
appellant has been convicted and sentenced
under Section 8/20 N.D.P.S. Act for 12 years
rigorous imprisonment along with fine of Rs.
1,25,000/- and on default in payment of fine,
for two years additional imprisonment.

2. Brief facts of the case is that S.O.
Isalamul Haq Khan of Police Station Ram
Nagar along with S.I. Mukesh Babu, S.I.
Kamlesh Pal, Constable Dinesh Yadav,
Constable Parvez Khan, Constable Munna
Yadav, Constable Harishchandra with
Constable Driver Surendra Nath Singh on
their Government Jeep were on their law
and order duty on 13.09.2010 and were
involved in checking of vehicles. From an
informer, they received information that
in a gray coloured Indica Car bearing
Registration No. DL 9 CD 0066 is coming
from the side of Padav with illegal "Ganja"
(marijuana/cannabis). Believing on that
information, when that Indica Car appeared
coming from the side of Padav, by throwing
torch light, the police asked the driver to stop
the car but seeing the police, the driver
turned the car towards Pathari Tola. The car
along with driver was intercepted on the turn
of Pathari Tola after using necessary force at
about 10:00 PM. On inquiry, the person
sitting on the driving seat, informed his name
to be Sanjeev Kumar Singh. On being asked
why he tried to run away, he told that in the
dickey of the car, he has two bags of illegal
"Ganja" and, therefore, he was trying to run
away from being apprehended by the police.
He was informed about his right to be
286 INDIAN LAW REPORTS ALLAHABAD SERIES
searched before Magistrate or any gazetted
officer. At this, he said that when he has been
already intercepted, he may be searched by
them. He also said that he does not want to
go elsewhere for his search. Before him, the
members of the police group took search of
each other in order to assure that none of the
police person has anything illegal with them.
From the dickey of the car, two bags were
recovered and on being opened, "Ganja" was
found in the two bags. Constable Dinesh
Yadav brought the weighing machine and
from one bag 10.1 Kg and from the second
bag 10.2 Kg illegal "Ganja" was recovered.
On being asked, he was unable to show any
license for carrying "Ganja". 50-50 grams
sample from both the bags were taken and
the remaining was sealed in both the
recovered bags and the sample was wrapped
in news paper after keeping the same in
white clothes on which the sample seal was
pasted.

3. Recovery memo was prepared by
S.I. Kamlesh Pal on the dictation of the
S.O. and after being informed about the
offence, the accused was taken into
custody along with recovered illegal
Ganja. During the course of arrest and
recovery, some local public arrived there
and on being asked to be witness of
recovery, they did not agree. The
information with regard to arrest was
given to the family members of the
accused
and
recovery
memo
was
prepared, read over and signatures of all
concerned were obtained and a copy
thereof was given to the accused.

4. On the basis of recovery memo,
F.I.R. was lodged. During investigation,
S.I.
Akhilesh
Kumar
recorded
the
statement of witnesses, prepared site map
and after finding sufficient evidence, he
filed charge sheet against the accused for
the offence under Section 8/20 N.D.P.S.
Act. Charge was framed against the
accused for the aforesaid offence. The
accused denied charge and claimed trial.

5. The prosecution has examined
witnesses PW-1 Islamul Haq Khan
(complainant), PW-2 S.I. Kamlesh Pal
and PW-3 S.I. Akhilesh Kumar Singh,
(I.O.) proved Memo of arrest/recovery as
Ext. Ka-1, site map Ext. Ka-2, docket Ext.
Ka-3, charge-sheet Ext. Ka-4, chemicalexamination report Ext. Ka-5, chik F.I.R.
Ext. Ka-6, G.D. Ext. Ka-7 and recovered
illegal "Ganja" was proved as Material
Ext.-1 & Ext.-2.

6. The statement of the accused
Sanjeev Kumar Singh was recorded under
Section 313 Criminal Procedure Code,
wherein, he has denied the incident and
recovery and has stated the prosecution
case to be false. He has further stated that
he has been falsely implicated in the
present case for to not providing illegal
gratification for transportation of his truck
no. UP 62 T 6421. In defence, he has also
submitted registration certificates of two
trucks bearing registration nos. UP 62 T
6421 and UP 65 BT 6816.

7. After hearing both the parties and
perusing the evidence on record, the
learned Additional Sessions Judge has
passed the impugned judgment and
convicted and sentenced the accused
appellant for the offence under Section
8/20 N.D.P.S. Act.

8. Aggrieved by the impugned
judgment, this appeal has been preferred
on the ground that the appellant has been
falsely implicated in the present case. The
conviction and sentence is against the
weight of evidence on record and contrary
1 All. Sanjeev Kumar Singh Vs. State of U.P.
287
to law. Moreover, the sentence awarded is
too severe. The case against the appellant
was not established by the prosecution
and, therefore, the impugned judgment is
liable to be set aside and he is entitled for
acquittal.

9. Heard Sri O.P. Singh, learned
Senior Advocate assisted by Sri Chandra
Bhushan Prasad, learned counsel for the
appellant, Sri Manu Raj Singh and Sri
L.D. Rajbhar, learned AGA and perused
the record.

10. Three witnesses have been
examined from the side of prosecution. PW1 is S.I. Islamul Haq Khan (complainant) has
stated that on 13.09.2010, he was S.O. Ram
Nagar. He along with S.I. Mukesh Babu, S.I.
Maklesh Pal, Constable Dinesh Yadav,
Constable Parvez Khan, Constable Munna
Yadav, Constable Harishchandra with Driver
Surendra Nath Singh were on law and order
duty on their Government Jeep and were
involved in checking of vehicles on Chowk
Chauraha. On the information from an
informer about an Indica Car of gray colour
numbered as DL 9 CD 0066 coming from
the side of Padao with illegal Ganja, they
started checking of vehicles coming from the
side of Padav and the said car appeared and
was given indication by torch light to stop
but the said vehicle turned towards Pathari
Tola. After using necessary force, the said
car was intercepted along with driver at
about 10:00 P.M. at Pathari Tola Turn. The
driver told his name to be Sanjeev Kumar
Singh and informed about two bags of Ganja
in the dickey of the car. He was informed
about his right to be searched before the
Magistrate or gazetted officer but he
voluntarily consented for search being made
by the police group. The police personnel
took search of each other to assure that they
are not carrying any illegal article and
thereafter two bags were recovered from the
dickey of the car having 10.1 Kg. and 10.2
Kg. of illegal Ganja therein, which were
weighed on a weighing instrument which
was arranged from the nearby shop by
Constable Dinesh Yadav. Sample of 50-50
gm. from each bag were taken and sealed
separately. The remaining recovered Ganja
was sealed in the said two bags. Recovery
memo was prepared on his dictation by S.I.
Kamlesh Pal, which was read over and heard
by concerned and the police personnel and
the accused signed over the recovery. The
accused was taken into custody along with
Indica Car and recovered illegal Ganja. The
copy of recovery memo was given to the
accused and again his signature was
obtained. The witness has proved the
recovery memo as Ext. Ka-1. The first
information report was lodged. His statement
was taken by the Investigating Officer. The
witness has also proved the recovered Ganja
as Material Ext. 1 and 2.

11. PW-2 is S.I. Kamlesh Pal who is
also a witness of fact. He has also proved
the recovery by stating that the illegal
Ganja was recovered from the possession
of the accused from two bags which were
kept in the dickey which was 20.3 Kg. in
weight, from which 50-50 grams of
sample was taken and the remaining was
sealed in the said bags. The witness has
identified his signature on the recovery
memo.

12. PW-3 is S.I. Akhilesh Kumar
Singh (Investigating Officer) who has
narrated
the
whole
process
of
investigation and has said that after
obtaining the chemical examination report
from the Forensic Science Laboratory and
after recording the evidence of the
witnesses of recovery and preparing the
site map, he submitted charge sheet
288 INDIAN LAW REPORTS ALLAHABAD SERIES
against the accused. He also proved the
chik F.I.R. Ext. Ka-6 and G.D. Ext. Ka-7
as secondary witness as the chik and G.D.
writer Ram Daras Ram has worked with
him and he was aware about his hand
writing and signature.

13. Learned counsel for the
appellant
has
submitted
that
the
mandatory provision of N.D.P.S. Act
were not complied with by the search
team and the appellant has been falsely
implicated in the present case. There was
no public witness of the recovery which
has been made at a public place. No
information was given about the recovery
and arrest to the superior officers. There is
discrepancy and contradictions in the
statements of the witnesses and the
impugned judgment is not sustainable
under law and is liable to be set aside.

14. The recovery memo shows that
for sample 50 gm. each of the recovered
items from two bags were taken out and
sealed and the same was sent for
chemical-examination, the report of the
Forensic Science Laboratory is on record
as Ext. Ka-5 and that shows that the
recovered
articles
were
ganja
(marijuana/cannabis). So, there remains
no doubt in this regard. PW-1 and PW-2
are the witnesses of recovery who have
proved that the two bags of ganja was
recovered from the accused which was
kept in the Dickey of the car he was
driving at the time of recovery. The
recovery memo has been duly prepared
and signed by witnesses and the accused
himself and the copy thereof has been
delivered to the accused and thereupon he
further signed over memo as a mark of
receipt. It has been further proved by the
witnesses that before conducting search,
the police team conducted search of each
other to ensure that none of them were
possessing any incriminating article at
that time. So far as absence of any public
witness is concerned, the recovery memo
and the statements of recovery witnesses
clearly shows that people gathered there
at that time were asked to become
witnesses but they refused. It is needless
to mention that normally people avoid
becoming witness in such kind of
situation.

15. A reference may be made in this
regard of the judgments in Jarnail Singh
vs.
State
of
Punjab,
2011
CRLJ
1738(SC), Ajmer Singh Vs. State of
Haryana, (2010) 3 SCC 746 and Dharam
Pal Singh Vs. State of Punjab, 2010(71)
ACC 548 (SC). Where the accused, on
seeing the police party, made an attempt
to turn back and escape but was over
powered by the police party and on his
arrest and search "Charas" was recovered
from his possession for which he had no
license and after prosecution he was
convicted for the offence under Section
20 of the N.D.P.S. Act 1985, the Supreme
Court has settled the law on the point that
the
obligation
to
take
public
witnesses(independent witness) is not
absolute. If after making efforts which the
court considers in the circumstances of
the case reasonable the police officer is
not able to get public witnesses to
associate with the raid or arrest of the
culprit, the arrest and the recovery made
would not be necessarily vitiated. The
court will have to appreciate the relevant
evidence and will have to determine
whether the evidence of the police officer
is believable after taking due care and
caution in evaluating their evidence.

16. In Gian Chand & Others Vs
State of Haryana, AIR 2013 SC 3395, it
1 All. Sanjeev Kumar Singh Vs. State of U.P.
289
has been held that mere non-joining of an
independent witness where the evidence
of the prosecution witnesses may be
found to be cogent, convincing, creditable
and reliable, cannot cast doubt on the
version forwarded by the prosecution if
there seems to be no reason on record to
falsely implicate the appellants. In this
case, at the time of recovery of poppy
husk from possession of accused some
villagers
had
gathered
there.
The
Investigating
Officer
in
his
cross
examination made it clear that in spite of
his best persuasion, none of them were
willing to become a witness. Therefore,
he could not examine any independent
witness. Section 114 of the Evidence Act
gives rise to the presumption that every
official act done by the police was
regularly
performed
and
such
presumption requires rebuttal. The legal
maxim omnia praesumuntur rite it dowee
probetur in contrarium solenniter esse
acta i.e., all the acts are presumed to have
been done rightly and regularly, applies.
When acts are of official nature and went
through the process of scrutiny by official
persons, a presumption arises that the said
acts have regularly been performed.

17. In this instant case, the people
gathered there refused to become witness
and there was no option with the police.
Both the police witnesses have proved the
recovery and nothing has come in their
cross-examination worth creating any
doubt on their testimony. Therefore, in
this instant case, the learned trial court, if
found the absence of public witnesses at
the
time
of
recovery
reasonably
explained, I find no illegality in it.

18. It has been submitted by the
learned counsel to the appellant that the
police team did not comply the mandatory
provisions of section 50 N.D.P.S. Act.
Section 50 is as follows:

"Section 50: Conditions under
which search of person shall be
conducted :-

(1) When any officer duly
authorized under Section. 42 is about to
search any person under the provisions of
Section 41, Section 42 or Section 43, he
shall, if such person so requires, take
such person without unnecessary delay to
the nearest Gazettted Officer of any of the
departments mentioned in Section 42 or to
the nearest Magistrate.

(2) If such requisition is made,
the officer may detain the person until he
can bring him before the Gazetted Officer
or the Magistrate referred to in subsection (1).

(3) The Gazetted Officer or the
Magistrate before whom any such person
is brought shall, if he sees no reasonable
ground for search, forthwith discharge
the person but otherwise shall direct that
search be made.

(4) No female shall be searched
by anyone excepting a female.

(5)
When
an
officer
duly
authorized under section 42 has reason to
believe that it is not possible to take the
person to be searched to the nearest
Gazetted Officer or Magistrate without
the possibility of the person to be
searched parting with possession of any
narcotic drug or psychotropic substance,
or controlled substance or article or
document, he may, instead of taking such
person to the nearest Gazetted Officer or
Magistrate, proceed to search the person
as provided under section 100 of the Code
of Criminal Procedure, 1973 (2 of 1974).

6. After a search is conducted
under sub-section (5), the officer shall
record the reasons for such belief which
290 INDIAN LAW REPORTS ALLAHABAD SERIES
necessitated such search and within
seventy-two hours send a copy thereof to
his immediate official superior."

19. Section 50 provides reasonable
safeguard to the accused before search of
his person is made by an officer
authorised under section 42 of the Act to
conduct search. In State of Punjab Vs.
Baldev Singh, (1999) 6 SCC 172 (Five
Judge Bench), it was settled by the
supreme court that search of person under
Section 50 of the N.D.P.S. Act does not
include search & recovery from bag,
briefcase and container etc. Section 50
applies where personal search of a person
is involved. In T. Hamza vs State of
Kerala, (2000) 1 SCC 300, it has been
clarified that Section 50 has been
incorporated
to
provide
statutory
safeguard to lend credibility and fairness
and to avoid arbitrariness keeping in view
the severe punishment prescribed in the
statute. It has been further clarified in
Megh Singh vs State of Punjab, (2003) 8
SCC 666, that Section 50 applies only in
case of personal search of a person and
does not extend to search of a vehicle,
container, bag or premises. In Ajmer
Singh Vs. State of Haryana, (2010) 3
SCC 746 and Jarnail Singh vs. State of
Punjab, 2011 CrLJ 1738(SC)1, the above
view was further affirmed.

20. In Kulwinder Singh Vs. State of
Punjab, (2015) 6 SCC 674, where bags
containing poppy husk were seized from
truck in his the accused were sitting, it has
been held by the Supreme Court that it
was not a case of personal search of the
accused and Section 50 of the N.D.P.S. Act,
1985 was not attracted as Section 50 only
applies in case of personal search of person
and not applicable to search of vehicle,
container, bag or premises. In Dilbagh Singh
v State of Punjab, (2017) 11 SCC 290, it
was held that compliance of Section 50 is
mandatory in case of search of person.
Where the recovered contraband has been
recovered from the car the accused was
driving, Section 50 is not applicable.

21. In the instant case the illegal
ganja has been recovered from the dickey
of the car the accused was driving at that
time. Moreover, the recovery memo and
statements of two recovery witnesses
show that it was explained to the accused
before search that he has a right to be
searched before a gazetted officer or
magistrate, and only when the accused
permitted search by police, the search was
conducted and the illegal ganja was
recovered. The learned trial court has
taken the reference of the judgment of the
Supreme Court in State of Haryana vs
Jeneral Singh, (2004) 5 SCC 7188 and
Syco Jabbi vs State of Maharashtra,
2004
(1)
Crimes
112,
where
the
contraband was recovered respectively
from tanker and box in possession of
accused and it was held that Section 50
applies on personal search only recovery
from tanker or box does not require
compliance of Section 50 of the Act.
Therefore, in view of aforesaid principles
of law and factual matrix also, the
compliance of Section 50 N.D.P.S. Act
was not at all mandatory and I find no
force in the submission of the learned
counsel to the appellant.

22. It has been submitted by the
learned counsel to the appellant during
arguments that the vehicle from which the
alleged recovery was made by police, it
has not been clarified whether the same
was taken into possession by police and
whether any investigation was conducted
to trace the whereabouts of car or the
1 All. Sanjeev Kumar Singh Vs. State of U.P.
291
owner thereof, nor it was clarified where
the said car was taken and kept and
whether any offence was registered in
respect of the said car. From the perusal
of the impugned judgment, it appears that
the learned trial court has discussed this
aspect at length and on evidence, a
finding has been recorded to the effect
that the car was taken into possession by
police and was taken to police station and
an entry thereof was made in the relevant
G.D.
Since
the
illegal
ganja
was
recovered from the dickey of the said car,
it is obvious that the same must have been
opened by the key of the car and when the
car was taken to the police station, the
same could have been possible with the
help of the key. The learned trial court has
taken the view that it was not necessary
for the prosecution to produce the key
before the court during trial nor it was
necessary to book the car under the
provisions of the Motor Vehicle Act. The
learned trial court took the view that the
car was seized by police which is
sufficient for the purpose of the trial of
the instant case and it was not required
that a mention to that effect should have
been necessarily made in the chargesheet. Again it has been also concluded
that if the I.O. did not find the car at the
place of recovery, the same is natural as
prior to that the said car was already
consigned to police station. I find myself
in full agreement with the reasoned
conclusion arrived at by the learned trial
court on the point. This argument that it
has been nowhere established by the
prosecution that the accused was owner of
the car or who was the owner thereof, the
learned trial court has very rightly
concluded that this fact was not required
to be proved nor the prosecution was
under obligation to lead any evidence on
this point. The contraband was recovered
from the dickey of the car he was driving
and there was no other person in the car
and prior to search he himself admitted to
police team that there is ganja in the
dickey.
This
shows
his
conscious
possession over the recovered contraband
and for the purpose of prosecution it was
sufficient.

23. Another submission which has
been made by the learned counsel to the
appellant
is
in
respect
of
alleged
discrepancy in respect of place of
recovery and site-map. The argument is
that the police team was present on
Chowk Chouraha, Ramnagar at place 'C',
and the recovery was made at place 'B'
and it has not been explained when police
team reached at place 'A'. The learned
trial court has discussed this aspect in
detail by taking reference of the statement
of I.O. and site-map and has found on
evidence
that
on
receiving
the
information, the police team started
checking of vehicles coming from the side
of Padaw towards Chowk and tried to
stop the said car by throwing torch light
whereupon, the accused turned the car
towards Pathari Tola and anyhow he was
stopped and caught by police. The court
found that the distance between 'A' and 'C'
was not much and moreover, there were 8
police persons and logically, they were
not static at one place and, as such, no
benefit could be given to the accused.
Again, not mentioning of the police
station in the site-map may be an
omission of I.O., but, the same was not
necessary nor it may indicate that the
recovery was made at the gate of the
police station. Therefore, the learned trial
court did not find any substantial
contradiction in respect of the place of
recovery. The approach of the learned
trial court is based on reasoning which is
292 INDIAN LAW REPORTS ALLAHABAD SERIES
convincing and moreover, the discrepancy
or omission if any in preparation of sitemap is insignificant and has no bearing
over the case in hand.

24. It has been further submitted that
the police team did not comply with the
provisions of Section 42 (2) and Section
57 of the N.D.P.S. Act which requires
conveying of information so received and
search and seizure and as such the whole
trial vitiates. In support of this argument,
the judgments in Krishna Chandra vs
State of Haryana, 2013 (3) CCSC 1558
(SC), Abdul Rasheed Ibrahim Mansuri
vs State of Gujarat, 2000 CrLJ 1384 (SC)
and Jitendra Singh Rathore vs State of
UP, 2014 (1) JIC 511 (Allahabad) have
been referred.

25. Section 42 is as follows:

"(2) Where an officer takes
down any information in writing under
sub-section (1) or records ground for his
belief under the proviso thereto, he shall
within seventy two hours send a copy
thereof
to
his
immediate
official
superior."

Section 57 is as below:

"Whenever any person makes
any arrest or seizure under this Act, he
shall, within forty eight hours next after
such arrest or seizure, make a full report
of all the particulars of such arrest or
seizure
to
his
immediate
official
superior."

26. It has been held in State of
Karnataka v. Dondusa Namasa Baddi,
2011(72) ACC 666 (SC) following
Karnail Singh v. State of Haryana, 2009
(8) SCC 539 (Five judge Bench) that if
no information was taken down in writing
by
police
officer
or
conveyed
to
immediate police officer then any oral
evidence of police officer will not be in
compliance with the provisions of Section
42(2) of the N.D.P.S. Act. In Darshan
Singh v State of Haryana, (2016) 14 SCC
358 also, it has been held that registration
of F.I.R. and its communication to S.P. is
not due compliance of Section 42(2).

27. In this case, PW-3 proved before
the trial court G.D. Ext. Ka-7 in which it is
contained that after registration of offence,
information was given to C.C.R. and
superior officers by R.T. Set. In Dilbagh
Singh v State of Punjab, (2017) 11 SCC
290, it has been held that where higher
officer has been informed without any
unreasonable delay and the F.I.R. has
reached to the Magistrate without any further
delay, there remains no force in the argument
of the learned defence counsel.

28. In Girish Raghunath Mehta v
Inspector of Custom, AIR 2016 SC 4317, it
has been held that Section 42 is not applicable
when contraband is recovered from a public
place. Adequate and substantial compliance is
a question of fact to be determined on the
basis of facts and circumstances of each case.
In State of Haryana vs Jarnail Singh, (2004)
5 SCC 188, it has been laid down that
Sections 42 and 43 contemplate two distinct
situations. Section 42 contemplates entry into
and search of any building, conveyance or
enclosed place, while Section 43 contemplates
a seizure made in any public place or in
transit.

29. In State, NCT of Delhi vs
Malvinder Singh AIR 2007 SC (supp.)
237, accused was on scooter at public
place when stopped and searched on the
basis
of
earlier
information
and
contraband
recovered.
The
Supreme
Court pointing out the distinction between
1 All. Sanjeev Kumar Singh Vs. State of U.P.
293
the two situations contemplated by
Sections 42 and 43, held that Section 42 is
not applicable and Section 43 will apply
where such search has taken place on a
public place. Therefore, the learned trial
court has concluded on the basis of
evidence that the said vehicle from which
contraband was recovered was intercepted
at a public place and on road, and
therefore, in the facts of the case Section
43 of the Act is applicable.

30. Arguments have been advanced
regarding sampling from the recovered
contraband for chemical examination.
Prosecution has alleged that recovered
contraband were kept in two bags, one
containing 10 kg. 100 gm. and other 10
kg. and 200 gm. and from each bag 50
gm. was taken out as sample and both the
samples were sealed separately and the
same was sent for chemical examination
through docket Ext. Ka-3 as stated by
PW-3 I.O. The arguments of defence by
which a confusion was tried to be created
regarding taking sample twice, sending
the same by concerned CO, where the
sample was kept for 11 days and that the
sample was found 50.12 gm. and 50.31
gm. when reached to the Laboratory, have
been rightly negatived by the learned trial
court giving cogent reasons based on
evidence on record, as there was nothing
on record nor any suggestion to the
witnesses that the sealed sample was
anywhere
tampered.
The
recovered
contraband was weighed before being
resealed and prior to search the police
personnel searched each other to remove
any possibility of the contraband being
planted. There was no reason for false
implication and the submission that being
truck owner, because he did not fulfil
illegal demands of police, has no valid
base. Omission in investigation here or
there
was
rightly
ignored
being
insignificant and negligible.

31. In Dharam Pal Singh Vs. State
of Punjab, 2010 (71) ACC 548(SC), it
has been laid down that Section 54 of the
N.D.P.S. Act creates a legal fiction &
presumes the person in possession of
illicit article when possession is once
established, that the accused had culpable
mental state & had committed the offense.

32. In Gian Chand (Supra), the
recovery
of
contraband
has
been
considered from yet an other angle and
the Supreme Court has remarked that
From
the
conjoint
reading
of
the
provisions of Sections 35 and 54 of the
Act, it becomes clear that if the accused is
found to be in possession of the
contraband article, he is presumed to have
committed the offence under the relevant
provisions of the Act until the contrary is
proved. According to Section 35 of the
Act, the Court shall presume the existence
of mental state from the commission of an
offence and it is for the accused to prove
otherwise. It is a settled legal proposition
that once possession of the contraband
articles is established, the burden shifts on
the accused to establish that he had no
knowledge of the same. Additionally, it
can also be held that once the possession
of the contraband material with the
accused is established, the accused has to
establish how he came to be in possession
of the same as it is within his special
knowledge and therefore, the case falls
within the ambit of the provisions of
Section 106 of the Evidence Act.

33. On the basis of above
discussion, I find that in this instant case,
the samples were properly sampled,
sealed and sent to Laboratory for
294 INDIAN LAW REPORTS ALLAHABAD SERIES
examination, certificate to that effect by the
Laboratory that the seal of samples found
intact and the same tallied with specimen
seal, rules out any possibility of any
tampering therewith. The contraband was
recovered from the car the accused was
driving and the car was consigned to police
station also authenticate the conscious
possession of accused. The recovered
contraband was more than two hundred kg
negates the possibility of their being planted
by police. Both the recovery witnesses have
proved the recovery of contraband from the
car the accused was driving. There is no
evidence to show any bias or malice on the
part of investigating agency. There is no
merit in the argument with regards to
compliance of Sections 42, 50 and 57 of the
N.D.P.S. Act. The learned trial court has
appreciated the evidence on record in correct
legal and factual matrix.

34. Section 20 (C) of the Act
provides minimum sentence of ten years
which may be extended to twenty years
and a minimum fine of rupees one lac
extendable up to two lacs in case of
recovery of commercial quantity of
contraband. The learned trial court has
awarded
a
sentence
of
12
years
imprisonment and rupees one lac and
twenty five thousands fine. The recovered
contraband is ganja and in comparison to
other contraband like heroine, smack and
charas, it is very cheaper in cost and
easily
found
herb
with
hardly
international demand and its addiction is
not that serious and may not have vital
impact on individuals. While awarding
sentence, the learned trial court appears to
have become a little mechanical. The
recovered contraband was slightly above
the commercial quantity (20 kg. 300 gm.)
for which 10 years rigorous imprisonment
and one lac fine and in default 1 year
additional imprisonment will serve the
purpose
of
sentencing.
Accordingly,
awarded sentence is liable to be modified.

35. Thus, there appears to be no
perversity or illegality in the impugned
judgment. So far as conviction is
concerned, the same is upheld and the
awarded sentence is modified to mean 10
years rigorous imprisonment and one lac
fine and in default of fine, 1 year
additional imprisonment.

36. With the above modification in
sentence, the appeal is finally disposed off.

37. The convicted appellant Sanjeev
Kumar Singh, if on bail shall surrender
before the learned trial court forthwith to
undergo the remaining sentence.

38. The office is directed to transmit
back the lower court record along with a
copy of judgment for information and
compliance.
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APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2019