# Satendra Singh (In Jail) v. State of U.P

- **Citation:** (2020) 7 ILRA 43
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-07-06
- **Case number:** Criminal Appeal No. 6279 of 2018
- **Bench:** Ajit Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satendra-singh-in-jail-v-state-of-u-p-45914
- **Pages:** 9

## Headnote

Order
No.
1/89
Dated
13/06/1989 (Issued by the Narcotics
Department) - The accused were allegedly
having various bundles of charas in their
possession and it is no where mentioned in the
recovery memo that the samples were taken
from all the packets of the recovered charas
from the possession of the accused persons.
The prosecution was required to prove that
samples were taken from all the packets
recovered from the accused appellants and if
this fact was not proved by the prosecution, the
conviction of the appellants cannot be upheld. It
is clear from the record that samples were not
made for chemical analysis from all the packets
recovered from the appellants and therefore, it
cannot be conclusively held that all the packets
recovered from the accused, were charas as
alleged by the prosecution.

It was incumbent upon the prosecution to
obtain samples from all the packets of the
recovered contraband and not having done so it
cannot be proved that the contraband was
present in all the packets.

Criminal
Law-Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 55 - Link Evidence-It is nowhere
mentioned in the impugned judgment and order
or in the lower court record that Maalkhana
Register was produced before the Trial Court.
 Failure of the prosecution to bring on record
the Malkhana register, which is an important
link in the case of the prosecution, and to lead
oral evidence pertaining to the compliance of
the provision of Section 55 of the Act casts a
serious doubt upon the recovery of the
contraband from the accused.

Criminal Law-Code of Criminal Procedure,
1973- Section 100- Independent witnesses-
The alleged recovery was made from the
accused persons from a busy Shashtri Chauraha
in front of LIC office in broad day light at 9:00
A.M., but no public witness i.e. independent
witness was produced in support of the
prosecution story regarding the alleged recovery
from the accused persons.
44 INDIAN LAW REPORTS ALLAHABAD SERIES
Non association of any independent witnesses
by the prosecution at the time of the alleged
recovery, although independent witnesses could
have been easily available in the busy place,
renders the recovery doubtful.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985Section 57 - No such evidence is led by the
prosecution in the present case during the trial
that any report was ever submitted about the
such arrest and seizure in compliance of the
Section 57 to the superior officer.

Non- compliance of the provisions of Section 57
of the Act is bound to reflect on the credibility of
the case of the prosecution and render it
doubtful. (Para 14, 15, 16, 18, 19, 20, 22)

Criminal Appeals allowed. (E-3)

Case Law relied upon/ Discussed: -

## Text

7 All. Satendra Singh Vs. State of U.P.
43

39. I am, therefore, unable to uphold
the
conviction
and
sentence
of
the
appellant. Impugned judgment and order
passed by the Trial Court is accordingly set
aside. The appellant Nazeer is acquitted.
Consequently appeal is allowed.

40. He is in jail. He is directed to be
released forthwith unless wanted in any
other case.

41. Keeping in view the provision of
Section 437-A of the Code, appellant is
hereby directed forthwith to furnish a
personal bond of a sum of Rs.20,000/- each
and two reliable sureties each of the like
amount before the trial Court, which shall
be effective for a period of six months,
along with an undertaking that in the event
of filing of Special Leave Petition against
this judgment or for grant of leave,
appellant on receipt of notice thereof, shall
appear before Hon'ble Supreme Court.

42. A copy of this judgment along
with lower court record be sent to Trial
Court by FAX for immediate compliance.
----------
(2020)07ILR A43
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.07.2020

BEFORE

THE HON'BLE AJIT SINGH, J.

Criminal Appeal No. 6279 of 2018
and
Criminal Appeal No. 6276 of 2018

Satendra Singh ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Mohammad Belal, Sri Agni Pal Singh
Counsel for the Opposite Party:
A.G.A.

Standing
Order
No.
1/89
Dated
13/06/1989 (Issued by the Narcotics
Department) - The accused were allegedly
having various bundles of charas in their
possession and it is no where mentioned in the
recovery memo that the samples were taken
from all the packets of the recovered charas
from the possession of the accused persons.
The prosecution was required to prove that
samples were taken from all the packets
recovered from the accused appellants and if
this fact was not proved by the prosecution, the
conviction of the appellants cannot be upheld. It
is clear from the record that samples were not
made for chemical analysis from all the packets
recovered from the appellants and therefore, it
cannot be conclusively held that all the packets
recovered from the accused, were charas as
alleged by the prosecution.

It was incumbent upon the prosecution to
obtain samples from all the packets of the
recovered contraband and not having done so it
cannot be proved that the contraband was
present in all the packets.

Criminal
Law-Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985
-
Section 55 - Link Evidence-It is nowhere
mentioned in the impugned judgment and order
or in the lower court record that Maalkhana
Register was produced before the Trial Court.
 Failure of the prosecution to bring on record
the Malkhana register, which is an important
link in the case of the prosecution, and to lead
oral evidence pertaining to the compliance of
the provision of Section 55 of the Act casts a
serious doubt upon the recovery of the
contraband from the accused.

Criminal Law-Code of Criminal Procedure,
1973- Section 100- Independent witnesses-
The alleged recovery was made from the
accused persons from a busy Shashtri Chauraha
in front of LIC office in broad day light at 9:00
A.M., but no public witness i.e. independent
witness was produced in support of the
prosecution story regarding the alleged recovery
from the accused persons.
44 INDIAN LAW REPORTS ALLAHABAD SERIES
Non association of any independent witnesses
by the prosecution at the time of the alleged
recovery, although independent witnesses could
have been easily available in the busy place,
renders the recovery doubtful.

Criminal
Law
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985Section 57 - No such evidence is led by the
prosecution in the present case during the trial
that any report was ever submitted about the
such arrest and seizure in compliance of the
Section 57 to the superior officer.

Non- compliance of the provisions of Section 57
of the Act is bound to reflect on the credibility of
the case of the prosecution and render it
doubtful. (Para 14, 15, 16, 18, 19, 20, 22)

Criminal Appeals allowed. (E-3)

Case Law relied upon/ Discussed: -

1. Jitendra Singh Rathore Vs St. of U.P. decided
on 8th January, 2014 (Crl. Appeal No. 4509 of
2006)

2. St. of Orissa Vs Sitansu Sekhar Kanungo
(2003) 1 JIC 329 (paragraphs 3 and 4)

3. Gurbax Singh Vs St. of Har., AIR (2001) SC
1002

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

1. Heard Sri Agni Pal Singh, learned
counsel for the appellant, Sri Ravi Prakash
Pandey and Sri Ram Adhar Ram, learned
A.G.A. appearing for the State.

2. Both the aforementioned criminal
appeals are being decided by a common
judgment and order as these two appeals
were heard together and have been filed
against one and the same judgment and
order dated 29.01.2018 passed by the Trial
Court.

3. These two appeals have been filed
by the accused appellants challenging the
judgment and order dated 29.01.2018
passed by learned Special Judge (D.A.A.
Act)/Additional Sessions Judge, Etawah in
Special Case No. 34 of 2015 (State Vs.
Satendra Singh and another) convicting and
sentencing the appellant under Section 8/20
NDPS
Act
for
ten
years'
rigorous
imprisonment and fine of Rs. 1,00,000/-
with default stipulation that in case of non
payment of the fine appellant will undergo
six
months
additional
rigorous
imprisonment.

4. In brief the prosecution story is that
on 23.07.2015 Sub Inspector Mohd. Afzal
along with his companion police constable
Pradip Kumar while doing checking he met
with SI Pankaj Kumar, Constable Manoj
Kumar and Nand Lal of Police Station
Civil Lines who were on checking duty. On
a motorcycle No. U.P. 78 DK 8780 two
persons came with two bags hanging on
their backs from Shastri Chauraha towards
railway station and seeing police team they
began to turn their motorcycle back to
Shastri Chauraha. At about 9:10 A.M.
(morning) they were caught before LIC
office. From their bags the police found
charas (cannabis). In the bag of accused
appellant Satyendra Singh there was 1.336
kgs of charas wrapped in five polythene
(panni) packets and in the bag of Gajendra
Singh there was 1.264 kgs. of charas in
four round packets and one deflated packet.
Out of both the packets two samples were
prepared each weighing 30 Gms. Under
NDPS Act case was lodged against them.
Investigation was conducted and charge
sheet was submitted in Court. The Special
Court of NDPS Act took the cognizance of
the offence.

5. On 16.12.2015 charges were
framed against the accused appellants
under Section 8/22 NDPS Act. The accused
7 All. Satendra Singh Vs. State of U.P.
45
appellants denied the charges and claimed
to be tried.

6. In support of the case from the side
of prosecution as many as four witnesses
were examined i.e. PW-1 Sub Inspector
Mohd. Afzal, PW-2 Constable Pradip
Kumar, PW-3, Constable Ravindra Singh
and PW-4, SI Ram Babu Singh. Besides
this,
the
following
documents
were
presented before the learned Trial Court :-

1. Ext. Ka-1 (consent letter) ;
Ext. Ka-2 (recovery memo); Ext. Ka-3
(chik report); Ext. Ka-4 (copy of GD); Ext.
Ka-5 and Ka-6 (site plan), Ext. Ka-7
(charge sheet) and Ext. Ka-8 (report of
Forensic Science Laboratory).

7. The accused appellants were
examined under Section 313 Cr.P.C. The
accused appellants have stated in defence
that they were falsely implicated in this
case.

8. The Trial Court after considering
the prosecution evidence and considering
the arguments of both the sides, convicted
the accused appellants as mentioned
aforesaid. Aggrieved by the conviction
these present appeals have been filed.

9. The learned counsel for the
appellant has submitted that the impugned
judgment and order is illegal, unwarranted
and bad in the eyes of law. The sentence is
too severe and the fine of Rs. 1,00,000/-
imposed on the appellant is excessive. It is
also argued that the alleged recovery of
charas is planted by the police and
imposition of the sentence is against the
evidence on record. The prosecution story
is not supported by independent witnesses
and all the witnesses are police personnel.
While making the search and recovery
from the accused appellant compliance of
relevant provisions of the NDPS Act was
not ensured and done by the police party.
Moreover, samples were not taken by the
police from all the packets allegedly shown
recovered from the accused. It was further
argued by the learned counsel that no
evidence has been produced by the
prosecution about the safe keeping of the
alleged recovered contraband after the
alleged recovery. In this regard no
Maalkhana Register was produced and no
such evidence was also produced which
could show that the alleged recovered
contraband was ever produced before the
concerned Station House Officer. It has
also not been shown that the concerned
Station House Officer had taken the
custody of the contraband and then, it was
directed to be placed in the safe custody of
an authorised custodian. Further argument
advanced by the learned counsel is that the
entire prosecution story casts serious doubt
as it has been stated by the prosecution side
that Daroga Ji was having weighing
machine with him. It is not humanly
possible that when the police personnels
come in the field for checking the crime
and its prevention, then, they will have with
them weighing machine also. Therefore,
the impugned judgment and order is liable
to quashed and the appeal deserves to be
allowed.

10. On the contrary, the learned AGA
appearing on behalf of the State have
supported the impugned judgment and
order and they have argued that the
impugned judgment is just, proper and
correct in the eyes of law. The appeal
deserves to be dismissed by this Court.

11. From the perusal of the record,
this Court finds that it is no where
mentioned in the impugned judgment and
46 INDIAN LAW REPORTS ALLAHABAD SERIES
order or in the lower court record that
Maalkhana Register was produced before
the Trial Court. PW-1 before Trial Court
has stated thus:-

"थाने पर मॉल मुल्जिम देने के बाद
मॉल बरामदा मॉल कहााँ जाता है क्या होता है मुझे
नह ीं मालूम है."

12. It is evident from the evidence on
record that the prosecution failed to prove
that samples were taken from all the bundles
(packets)
recovered
from
the
accused
appellants Gajendra Singh and Satendra
Singh. Five packets were allegedly recovered
from accused appellant Satendra and likewise
five packets including one squashed packet
were recovered from accused appellant
Gajendra. But prosecution has not proved
whether samples were taken from every
packets recovered and were sent for
examination by the expert. It has been held
by a coordinate bench of this Court in
Jitendra Singh Rathore Vs. State of U.P.
decided on 8th January, 2014 (Crl. Appeal
No. 4509 of 2006) in paragraphs 28 and 29
thus:-

"28. Moreover from the record, it
further appears that it is categorical case
of the prosecution that 29 packets have
been recovered from a white bag with
which the appellant was found sitting and
the appellant has stated the contraband
article weighed about 25 Kgs. Charas but
P.W.1, who had made the arrest and
seizure of the appellant did not weighed the
contraband article recovered from him and
only on the statement of appellant it was
believed to be 25 Kgs. Charas and no
actual weight was taken by P.W.1 which
further creates doubt whether the alleged
contraband article was the same which was
recovered from the possession of the
appellant and sent to chemical analysis. It
is further noted that 29 packets of Charas
weighing about 25 Kgs. Charas is said to
have been recovered from the appellant but
the sample in question which was taken
before the court by the Investigating
Officer does not disclose or shows that
whether the sample was taken from all the
29 packets recovered from him from a
white bag and send to chemical analysis by
P.W.3 which further creates doubt whether
the 29 packets which were recovered also
contained Charas as from the report of the
chemical analysis shows that he has only
received one bag sealed in a cloth which
was found to be Charas. The prosecution
has thus failed to show from the record that
how many samples were taken from the
contraband article which was recovered
from the appellant and sent to chemical
analysis.
Lastly
from
the
record
it
transpires that no sample of seal was sent
along with the sample to chemical analysis
for the purpose of comparing with the seal
bearing on the sample, therefore, there is
no evidence to prove satisfactorily that the
seal found was in fact the same seal as was
put on the sample bag immediately after
seizure of the contraband. These loopholes
in the prosecution case cannot sustain the
conviction of the appellant in view of the
judgment of the Apex Court in the case of
State of Rajasthan vs. Gurmail Singh
(Supra).

29. The learned A.G.A. though
had tried to justify the conviction and
sentence of the appellant but he could not
point out to the Court from the record
whether the police party had taken the
actual weight of the article, i.e., Charas
recovered from the appellant, whether the
Malkhana register was produced by the
prosecution to show that the article which
was deposited by P.W. 1 in the Malkhana
of the concerned police station and
7 All. Satendra Singh Vs. State of U.P.
47
entrusted to P.W. 4 was the same which
was
produced
before
the
court
on
23.8.1999 and sent to the chemical analyst.
Moreover, he could not also dispute the
fact that the sample was not taken from all
the 29 packets recovered from the white
bag with which the appellant was sitting
and only one sample was taken of the
contraband article which was sent to
chemical analysis."(emphasis supplied)

13. The next argument advanced by
the learned counsel for appellant is that
Malkhana Register was not produced by
the prosecution before the Court below to
prove the seizure list. He has argued that no
reason has been given why the same was
not
produced.
He
has
relied
upon
paragraphs - 3 and 4 of the judgment of
Apex Court in the case of State of Orissa
Vs. Sitansu Sekhar Kanungo, 2003 (1)
JIC 329 (paragraphs 3 and 4) the Apex
Court has held thus :-

"(3) The High Court, in a rather
detailed judgment, stated that the vital
question
was
whether
necessary
safeguards have been observed relating
to the safe custody of articles alleged to
have been seized and thus questioned the
validity of seizure. Admittedly, the seizure
was made on 31st January, 1993 and the
articles seized were produced before the
learned SDJM on 15.4.1993. The seizure
lists related to collected samples of
brown sugar/heroin, the place of seizure
mentioned to be power house road, park
area, Rourkela and the seizure lists were
prepared
on
31st
January,
1993atabout7.15 p.m. and 7.30 p.m. It
has been argued before the High Court
that in the seizure lists, there is a
reference to the plant-site police station
case no. 43 of 1993 which, in the normal
course of events, should not have been
recorded and as such seizure lists became
suspect. The High Court, however, did
not find it convenient to deal with the
matter oh the ground that it may not be
appropriate to deal with the said plea for
the first time in appeal. The High Court,
however, placed strong reliance on the
defence submission of non-production of
the malkhana register. On this ground,
the High Court recorded that the
malkhana register has not been tendered
in evidence and acceptance of the oral
statement of PW5 that the articles were in
the police malkhana of plant-site police
station and nothing else is available on
record would not arise. Significantly
however, no reason whatsoever has been
ascribed as to why the malkhana register
could not be produced thereby exposed
to the adverse presumption under the
Evidence Act that in the event of its
production,
it
would
have
thrown
sufficient light to the detriment of the
respondents in the matter. The High
Court, in its order (being impugned)
noted that even no official attached to the
plant-site
police
station
has
been
examined to further the stand that the
seized articles were kept in the plant-site
police station. PW5, the High Court
noted, has not stated that he had
deposited the articles in the malkhana of
the plant-site police station and there is
thus a vital omission about the custody of
articles and it is on this score, the High
Court thought it fit that the court cannot
be a silent spectator while justice is being
trampled by inept handling of the case. It
further held that in the case at hand, the
non-production of the malkhana register
being one of the vital missing links, the
other factors highlighted above coupled
with the non-production of the malkhana
register have given a fatality to the
prosecution case.
48 INDIAN LAW REPORTS ALLAHABAD SERIES

(4)
The
learned
advocate
appearing in support of the appeal,
however rather confidently stated that since
the provisions of section 57 of the Act are
now settled to be only directory and not
mandatory in nature, the question of nonproduction of the malkhana register though
vital, but the success of a case does not and
cannot depend upon it. It may be a mere
irregularity but cannot go to the root of the
prosecution which make the prosecution
vulnerable.
At
the
first
blush,
the
arguments seem to be rather convincing
but on a closure scrutiny, however, it lost
its efficacy by reason of the fact of there
being no factual support therefor. The High
Court has dealt with the matter purely on
the factual score and concluded adversely
by reason of non-production of malkhana
register coupled with other set of facts, as
argued before the High Court. The doubt
which sprang up as regards the seizure
lists, admittedly cannot be brushed aside.
The seizure lists ought to have been
prepared before the lodgment of the FIR
and as such question of mention of the FIR
no. in the seizure lists would not arise at
all. But in the contextual facts, the
indication of the case number in the seizure
lists has resulted in the submission of the
learned advocate for the defence before the
High Court as also before this Court that
this extra noting on the seizure lists cannot
but be ascribed to be a manipulation in the
document which is not permissible under
the law. The High Court though not placed
much reliance apparently thereon but
obviously the same had its due impact and
effect on the court since in the last
paragraph, the High Court did speak of
"other factors highlighted coupled with the
non-production of malkhana register that
have given fatality to the prosecution case'.
This observation of the High Court by itself
connotes that the High Court has taken
note of it with due particulars and it is on
the issue of facts that the High Court felt
that there would be justice trampled if an
order
is
passed
in
favour
of
the
prosecution."(emphasis supplied)

14. Having gone through the lower
court record this Court finds that the
accused were allegedly having various
bundles of charas in their possession and it
is no where mentioned in the recovery
memo that the samples were taken from all
the packets of the recovered charas from
the possession of the accused persons. The
accused appellant (Satyendra Singh) was
having 1.336 kg. of charas, as per the
prosecution case, and co-accused (Gajendra
Singh) was having 1.264 kg. of charas.
Samples were not taken from all the
packets. PW-1 has not stated in his
statement before the Trial Court that
samples of 30-30 grams were taken from
all the packets (bundles) of the seized
article. Even from the statement of PW -2 it
is not evident that samples were taken from
all the bundles recovered from the two bags
of the accused persons. PW-2 has stated
before the learned Trial Court thus:-

"दोनोीं अभियुक्ोीं को जुमम से अवगत
कराते हुए ९:१० a.m. पर भहरासत पुभलस में
लेकर चरस को अलग अलग कपड़ोीं में रखकर
व 30-३० ग्राम वास्ते नमूना मोहर हेतु चरस को
अलग अलग भनकाल कर शेष चरस को अलग
अलग कपड़ोीं में रखकर स ल मोहर भकया. और
नमूना मोहर बनाया."

15. This Court has perused the entire
evidence in the light of the argument that
no Malkhana Register was produced in
evidence by the prosecution side. Nowhere
from the evidence of the prosecution it is
evident that any special report of the
alleged recovered contraband was sent to
7 All. Satendra Singh Vs. State of U.P.
49
the higher officers as stipulated by the
NDPS Act. It is also evident that alleged
recovered contraband was never produced
before the In-charge of the Police Station
and he never checked or signed or gave the
alleged recovered contraband to be kept in
safe custody as no Malkhana Register was
produced.

16. The argument raised by the
learned counsel for appellants before this
Court that the alleged recovery was made
from the accused persons from a busy
Shashtri Chauraha in front of LIC office in
broad day light at 9:00 A.M., but no public
witness i.e. independent witness was
produced in support of the prosecution
story regarding the alleged recovery from
the accused persons, has force that help this
Court take a different view than the view
taken by the Trial Court. This Court goes
through the entire record of the case and
finds that no where it has been mentioned
in the recovery memo that one or several
persons were contacted by the police party
to witness the alleged recovery of charas
from accused but no public person came
forward for giving the evidence. Had it
been true that effort was made in that
regard, the name and address of the public
persons
would
have
been
certainly
mentioned in the recovery memo. Their
names having not been mentioned in the
recovery memo, casts serious doubt on the
veracity of the prosecution case.

17. The statement of the PW -1 in his
cross examination also casts a serious
doubt on the prosecution story. The PW -1
has stated that he has not called for
weighing machine to weigh the recovered
articles from any shopkeeper. He has
further stated that he was having the same
with him along with seal and other papers.
But in the recovery memo there is nothing
like this averment that this witness who has
made the alleged recovery was having
weighing machine with him and by that
machine the weight of the alleged articles
were taken. It is not humanly possible that
when the police personnels come in the
field for checking the crime and its
prevention, then, they will have with them
weighing machine also. Having regard to
this, the argument of the learned counsel
that as per the prosecution story Daroga Ji
was having weighing machine with him has
force and for this very reason the
prosecution case becomes doubtful and is
liable to be ignored.

18. After considering the rival
submissions, it is clear from the judgment
of this Court in the case of Jitendra
Singh
Rathore
(Supra)
that
the
prosecution was required to prove that
samples were taken from all the packets
recovered from the accused appellants
and if this fact was not proved by the
prosecution,
the
conviction
of
the
appellants cannot be upheld. It is clear
from the record that samples were not
made for chemical analysis from all the
packets recovered from the appellants and
therefore, it cannot be conclusively held
that all the packets recovered from the
accused, were charas as alleged by the
prosecution.

19. The final argument of the
learned
counsel
for
the
accusedappellants
regarding
the
noncompliance of Section 57, relying upon
State of Orissa (Supra), is well founded
since had the Malkhana Register been
produced
before
the
court
below,
seizure list could have been verified by
the court below, however this Section is
only directory and, therefore, much
reliance on the same is not required.
50 INDIAN LAW REPORTS ALLAHABAD SERIES

20. As regards the non compliance of
Section 57 of the NDPS Act which lays
down that whenever a person makes any
arrest or search 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, this Court
finds that no such evidence is led by the
prosecution in the present case during the
trial that any report was ever submitted
about the such arrest and seizure in
compliance of the Section 57 to the
superior officer.

21. In Gurbax Singh Vs. State of
Haryana, AIR 2001 (SC) 1002 the Hon'ble
Apex Court has held in para 9 thus:-

".........In our view, there is much
substance in this submission. It is true that
provisions of Sections 52 and 57 are
directory. Violation of these provisions
would not ipso facto violate the trial or
conviction. However, I.O. cannot totally
ignore these provisions and such failure
will have a bearing on appreciation of
evidence regarding arrest of the accused
or seizure of the article. In the present
case, I.O. has admitted that the seal which
was affixed on the muddamal article was
handed over to the witness P.W.1 and was
kept with him for 10 days. He has also
admitted that the muddamal parcels were
not sealed by the officer in charge of the
police station as required under Section 55
of the N.D.P.S. Act. The prosecution has
not led any evidence whether the Chemical
Analyser received the sample with proper
intact seals. It creates a doubt whether the
same sample was sent to the Chemical
Analyser. Further, it is apparent that the
I.O. has not followed the procedure
prescribed under Section 57 of the N.D.P.S.
Act of making full report of all particulars
of arrest and seizure to his immediate
superior officer. The conduct of panch
witness is unusual as he offered himself to
be a witness for search and seizure despite
being not asked by the I.O., particularly
when he did not know that the substance
was poppy husk., but came to know about it
only after being informed by the police.
Further, it is the say of the Panch witness
that Muddamal seal used by the PSI was a
wooden seal. As against this, it is the say of
PW2 SI/IO that it was a brass seal. On the
basis of the aforesaid evidence and faulty
investigation by the prosecution, in our
view, it would not be safe to convict the
appellant
for a
serious offence
of
possessing poppy-husk."
 (emphasis supplied)

22. This Court finds that in the
present case Malkhana register was not
produced by the prosecution during trial
before the Court. Thus, there is non
compliance of the relevant Section of the
NDPS Act and the prosecution has failed to
prove its case against the accused appellant
in proper perspective.

23. From the perusal of the record of
this case, it is not evident as to who was the
officer - in- charge of the concerned police
station to keep the recovered articles in safe
custody and it is also not clear as to who
was the officer-in-charge of the police
station authorised to seal the samples so
taken by the police team. Further, it has
also not been brought on record whether
any information was given within twenty
four hours to the immediate official
superior of the such arrest or seizure. Thus
non compliance of Sections 55 and 57 of
the Act coupled with the facts that there is
no independent witness to the recovery as
well as non production of Maalkhana
Register before Trial Court and also non
7 All. Smt. Santosh Vs. United India Insurance Company Ltd., Mathura & Ors.
51
preparation of samples from all bundles
goes to show that there are manifest errors
factual and legal in the prosecution case
that warrants interference by this Court in
the impugned judgment and order.

24. In the result, both the appeals are
allowed. The impugned judgment and
order is set aside.

25. The appellants are on bail. The
sureties and personal bonds of the accused
appellants shall stand discharged.

26. Let a copy of this order be
transmitted
to
the
Court
below
for
necessary compliance.
----------
(2020)07ILR A51
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.03.2020

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.

First Appeal From Order No. 866 of 2003

Smt. Santosh & Ors. ...Appellants
Versus
United India Insurance Company Ltd.
Mathura & Ors. ...Respondents

Counsel for the Appellants:
Sri B.P. Verma

Counsel for the Respondents:
Sri Mohan Srivastava

A. Civil Law - Motor Vehicles Act (59 of
1988) - Section 166, 168 - Accident - Claim
petition - Hyper Technical Approach - Tribunal
should not decide claim petition by taking hyper
technical approach and thereby frustrate the
provision of beneficial piece of legislation -
 Held - It was established that the deceased
definitely met with the accident involving two
vehicles - technical defect of pleading should
not be made the basis of rejection of the claim
petition (Para 9)

B. Civil Law - Motor Vehicles Act (59 of
1988) ) - Section 166, 173 - Accident claim
- Cause of accident - Contributory negligence
- Meaning, reiterated - Where the claimant
himself is found to be a party to the
negligence then the claimant claim to the
extent of his own negligence, as may be
quantified, will have to be severed & the
claimant can only be held entitled to such
part of damages/compensation that is not
attributable to his own negligence - a person
who either contributes or is author of the
accident would be liable for his contribution to
the accident having taken place (Para 16)

C. Civil Law - Motor Vehicles Act (59 of
1988) - Section 147 - Liability of insurance
company - it must be proved that there was no
breach of policy condition - Held -Driving license
of tractor trolly driver showed that driver had
license to drive light motor vehicle - Tractor is a
light motor vehicle - As driver had proper driving
license, there was no breach of policy condition
- Even if trolly is insured or not, Insurance
Company would be liable to pay compensation
(Para 19 20)

E. Civil Law - Motor Vehicles Act (59 of
1988)- Section 166 - Compensation - Rate of
Interest - it should be 7.5% (Para 24)

Appeal partly allowed. (E-5)

List of cases cited: -

1.Joshi Rajendrakumar Popatlal Vs Thakor
Ramnaji Hamirji & ors. reported in (2020) ACJ
365

2. Bimla Devi & ors. Vs Satbir Singh & ors.
(2013) 4 SCC 345

3. Gurdeep Singh Vs Bhim Singh (2013) 11 SCC
507

4. Sharanmma Vs North-East Karnataka RTC
(2013) 11 SCC 517