# Sohan Lal v. The State of U.P

- **Citation:** (2024) 8 ILRA 82
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-08-28
- **Case number:** Criminal Appeal No. 2616 of 2006
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sohan-lal-v-the-state-of-u-p-52439
- **Pages:** 6

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Section - 313, Excise Act, 1944-
Section
60,
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985-
Sections 8, 18, 20, 50, 50(1), 55 & 57: -
Appeal - conviction and sentence - police
search - recovery - on being serviced, Ganja as
well as liquor bottles were recovered from the
accused persons - FIR - investigation - chemical
examination - St.ment of witnesses - charge
sheet - conviction - court finds that, admittedly,
all witnesses are police persona and the
prosecution
has
not
produced
other
independent eye-witnesses of the alleged
recovery and even no explanation has been
offered by the prosecution for their nonproduction before any Gazetted officer or
Magistrate, as required by section 50 of NDPS
Act, - held, prosecution failed to prove the
mandatory compliance of section 50 NDPS Act,
and in absence of compliance of mandatory
provision cannot be held as proved beyond
reasonable doubt - hence, this court, unable to
uphold the conviction and sentence of the
appellant - appellant is entitled to be acquitted -
appeal is allowed - direction issued, accordingly.
(Para - 18, 19, 21, 22)

Appeal is allowed. (E-11)

List of Cases cited:

## Text

82 INDIAN LAW REPORTS ALLAHABAD SERIES
the victim and PW-2 both harboured a
belief that her mother was murdered by the
accused appellant. In such circumstances,
we are not inclined to place the testimony
of the victim in the category of wholly
reliable witness such that no corroboration
of her testimony would be warranted.

42. Once the testimony of victim is placed
in the category of partially reliable and partially
unreliable we would be required to look for
corroboration of the victim's accusation in other
evidence on record. Upon a careful evaluation
of the evidence we find that there is no
corroboration of the victim's accusation except
the version of PW-2, who himself is not an eyewitness and his testimony is also based upon the
information furnished to him by PW-1.

43. In the facts of the case, it is apparent
that accused appellant has already undergone
incarceration of more than ten years, nine
months with remission. In light of the
discussions aforesaid, we are inclined to hold
that the defence has succeeded in creating a
doubt on the prosecution case of rape for 13
months upon the victim and, therefore, the
accused appellant is entitled to benefit of doubt.

44. So far as judgment of conviction and
sentence passed by the court of Sessions is
concerned, we find that the trial court although
has noticed the evidence on record but has
completely omitted to consider the import of
the victim's accusation of his father in having
murdered her mother. The possibility of false
implication of the accused appellant on account
of
such
enmity
has
been
completely
overlooked. The fact that the accused appellant
otherwise has no criminal history; there is no
evidence of his sexual perversion otherwise
reported in the past; the accused appellant was
already married and it will be difficult to
conceive that the act of sexual assault for almost
a year may go unnoticed or without a grievance
being raised to anyone seems improbable; the
immediate
provocation
was
the
slapping/punching of the victim by accused
appellant for not providing water which
enraged the informant who assaulted and
apprehended the accused and got him arrested
etc. have been overlooked. In that view of the
matter, we are not persuaded to accept the
reasoning assigned by the court of Sessions in
convicting
and
sentencing
the
accused
appellant,
who
has
already
undergone
incarceration of more than ten years in jail.

45. Resultantly, this appeal succeeds and
is allowed. The judgment and order dated
24.2.2018, passed by the learned Additional
Sessions Judge/Court No.1, Pilibhit in Sessions
Trial No.8 of 2015, arising out of Case Crime
No.622 of 2015, under Sections 376(2)(f),
376(2)(n) IPC and 5/6 POCSO Act, Police
Station Newriya, District Pilibhit is set aside.

46. The accused-appellant, who is
reported to be in jail, shall be released,
forthwith, unless he is wanted in any other case,
subject to compliance of Section 437A Cr.P.C.
----------
(2024) 8 ILRA 82
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 28.08.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 2616 of 2006

Sohan Lal ...Appellant
Versus
The State of U.P. ...Respondent

Counsel for the Appellant:
Sri Jyotindra Mishra

Counsel for the Respondent:
Govt. Advocate
8 All. Sohan Lal Vs. The State of U.P.
83
Criminal Law - Criminal Procedure Code,
1973 - Section - 313, Excise Act, 1944-
Section
60,
-
Narcotic
Drugs
and
Psychotropic
Substances
Act,
1985-
Sections 8, 18, 20, 50, 50(1), 55 & 57: -
Appeal - conviction and sentence - police
search - recovery - on being serviced, Ganja as
well as liquor bottles were recovered from the
accused persons - FIR - investigation - chemical
examination - St.ment of witnesses - charge
sheet - conviction - court finds that, admittedly,
all witnesses are police persona and the
prosecution
has
not
produced
other
independent eye-witnesses of the alleged
recovery and even no explanation has been
offered by the prosecution for their nonproduction before any Gazetted officer or
Magistrate, as required by section 50 of NDPS
Act, - held, prosecution failed to prove the
mandatory compliance of section 50 NDPS Act,
and in absence of compliance of mandatory
provision cannot be held as proved beyond
reasonable doubt - hence, this court, unable to
uphold the conviction and sentence of the
appellant - appellant is entitled to be acquitted -
appeal is allowed - direction issued, accordingly.
(Para - 18, 19, 21, 22)

Appeal is allowed. (E-11)

List of Cases cited:

1. St. of Raj. Vs Parmanand & anr.(2014 vol. 2
SCC (cri) 5630,

2. Vijaysinh Chandubha Jadeja Vs St. of Guj.
(2010 vol. 2 EFR 755),

(Delivered by Hon'ble Shamim Ahmed, J.)

1. The case is taken up in the revised
call.

2. Heard learned counsel for the
parties.

3. This appeal has been preferred
against the judgment and order dated
01.12.2006 passed by learned Additional
Sessions Judge / Fast Track Court No.1,
Raebareli in S.T. No.25/1998, Police
Station
Sareni,
District
Raebareli,
convicting and sentencing the appellant
under Section 20 of N.D.P.S. Act for three
years rigorous imprisonment alongwith fine
of Rs.10,000/- with default stipulation.

4. The prosecution story, in brief, as
disclosed in the first information report, is
that while the S.H.O. Rameshwar Singh
alongwith other police personnel were
searching accused of other case, they saw
four persons on a jeep who were unloading
some sacs. The police personnel caught
them and asked the accused whether he
want to get searched by a gazetted officer
or police may make a search upon him. The
accused consented that police may make
search upon him. On being searched, ganja
as well as liquor bottles were recovered
from the accused persons. On the basis of
aforesaid incident, Case Crime No.60 of
1997 and 61 of 1997, under Section 60 of
Excise Act and Section 8/20 of N.D.P.S.
Act and Case Crime No.62 of 1997, under
Section 18/20 of N.D.P.S. Act was
registered at Police Station Sareni, District
Raebareli.

5. Investigation was handed over to
the Sub Inspector, who in turn got the
sample chemically examined and received
a report. He took the statements of
witnesses of recovery and prepared the site
plan and on finding sufficient evidence, he
filed charge sheet against the accused in the
Court.

6. The accused-appellant was charged
for offence u/s 8/20 N.D.P.S. Act; to which
he pleaded not guilty and claimed for trial.

7. In support of the prosecution case,
the prosecution examined P.W.-1 Sub
Inspector
Janardan
Prasad,
P.W.-2
84 INDIAN LAW REPORTS ALLAHABAD SERIES
Inspector Rishi Kumar, P.W.-3 Constable
Shivnand and P.W.-4 Constable Ramautar
Shukla.

8. Formal proof of prosecution papers
have been admitted by the accused.

9. Appellant was examined under
Section
313
of
Code
of
Criminal
Procedure, 1973, (in short 'Code') wherein
he stated that he had been falsely
implicated due to enmity. No witness in
defence were accused by the accused
persons.

10. Learned trial Court, after going
through the evidence available on record as
well as after due hearing the learned
counsel for both the parties, convicted and
sentenced the appellant under Section 20 of
N.D.P.S. Act for three years rigorous
imprisonment
alongwith
fine
of
Rs.10,000/- with default stipulation.

11. Aggrieved by the aforesaid
judgment and order, the appellant has filed
this appeal.

12. Learned counsel for the appellant
argued that Section 50 of the N.D.P.S. Act
is a mandatory provision. The arresting
officer
has
not
complied
with
that
provision. As such, the recovery is illegal
which vitiates the trial. Learned counsel
further submitted that the alleged place of
recovery is public place but no effort to
invite the public witness at the time of
recovery was made by the police party.
Learned
trial
Court
without
proper
appreciation of the evidence available on
record has illegally convicted the appellant
vide impugned judgment and order which
is liable to be set aside as the prosecution
has miserably failed to prove its case
beyond reasonable doubt. In support of his
argument learned counsel for the appellant
has placed reliance on law laid down by
Hon'ble Supreme Court in Vijaysinh
Chandubha Jadeja Vs. State of Gujarat,
2010 (2) EFR 755 and State of Rajasthan
Vs. Parmanand and another, (2014) 2
SCC (Cri) 563.

13. Learned A.G.A. vehemently
opposed the submission of learned counsel
for the appellant and submitted that there is
no illegality in the impugned judgment and
order as it is settled provision of law that
only on the solitary testimony of witness,
conviction can be maintained and statement
of police witness cannot be rejected on the
ground that he is a police witness. Learned
A.G.A. further submitted that impugned
judgment and order, passed by trial Court,
is well reasoned, well discussed and appeal
is liable to be dismissed.

14. After considering the arguments
advanced by learned counsel for the parties
and after perusal of record, this Court finds
that the prosecution case is based on oral
testimony of police personnel. It is settled
principle of law that only on account of the
fact that prosecution case is based on
testimony of police witness, it cannot be
thrown out, if the evidence of such witness
is wholly reliable.

15. Severe punishment has been
provided in the N.D.P.S. Act to check the
misuse of this Act by the police personnel
or
officers
and
certain
safeguards
particularly Section 50 of N.D.P.S. Act has
been incorporated in this Act that search of
the suspected person must be done before
the
Magistrate
or
Gazetted
Officer.
Similarly Section 55 and 57 of N.D.P.S.
Act provides that seized contraband article
be kept by Station House Officer in safe
custody and report of arrest and seizure be
8 All. Sohan Lal Vs. The State of U.P.
85
sent immediately to immediate Superior
Officer within 48 hours.

16. Hon'ble Supreme Court in
Vijaysinh Chandubha Jadeja Vs. State of
Gujarat, 2010 (2) EFR 755, while
discussing the importance and relevancy of
section 50 of N.D.P.S. Act, in para-22, has
opined as under:-

"22. In view of the foregoing
discussion, we are of the firm opinion that
the object with which right under Section
50(1) of the NDPS Act, by way of a
safeguard, has been conferred on the
suspect, viz. to check the misuse of power,
to avoid harm to innocent persons and to
minimise the allegations of planting or
foisting of false cases by the law
enforcement
agencies,
it
would
be
imperative on the part of the empowered
officer to apprise the person intended to be
searched of his right to be searched before
a gazetted officer or a Magistrate. We have
no hesitation in holding that in so far as the
obligation of the authorised officer under
sub-section (1) of Section 50 of the NDPS
Act is concerned, it is mandatory and
requires a strict compliance. Failure to
comply with the provision would render the
recovery of the illicit article suspect and
vitiate the conviction if the same is
recorded only on the basis of the recovery
of the illicit article from the person of the
accused during such search. Thereafter, the
suspect may or may not choose to exercise
the right provided to him under the said
provision. As observed in Re Presidential
Poll (1974) 2 SCC 33, it is the duty of the
courts to get at the real intention of the
Legislature by carefully attending to the
whole scope of the provision to be
construed. "The key to the opening of every
law is the reason and spirit of the law, it is
the animus imponentis, the intention of the
law maker expressed in the law itself, taken
as a whole." We are of the opinion that the
concept of "substantial compliance" with
the requirement of Section 50 of the NDPS
Act introduced and read into the mandate
of the said Section in Joseph Fernandez
(supra) and Prabha Shankar Dubey (supra)
is neither borne out from the language of
sub-section (1) of Section 50 nor it is in
consonance with the dictum laid down in
Baldev Singh's case (supra). Needless to
add that the question whether or not the
procedure prescribed has been followed
and the requirement of Section 50 had been
met, is a matter of trial. It would neither be
possible nor feasible to lay down any
absolute formula in that behalf. We also
feel that though Section 50 gives an option
to the empowered officer to take such
person (suspect) either before the nearest
gazetted officer or the Magistrate but in
order to impart authenticity, transparency
and
creditworthiness
to
the
entire
proceedings, in the first instance, an
endeavour should be to produce the suspect
before the nearest Magistrate, who enjoys
more confidence of the common man
compared to any other officer. It would not
only
add
legitimacy
to
the
search
proceedings, it may verily strengthen the
prosecution as well."

17. Hon'ble Supreme Court in State of
Rajasthan Vs. Parmanand and another,
(2014) 2 SCC (Cri) 563, again in
paragraph-17, has opined as under:-

"In
our
opinion,
a
joint
communication of the right available under
Section 50(1) of the NDPS Act to the
accused would frustrate the very purport of
Section 50. Communication of the said
right to the person who is about to be
searched is not an empty formality. It has a
purpose. Most of the offences under the
86 INDIAN LAW REPORTS ALLAHABAD SERIES
NDPS Act carry stringent punishment and,
therefore, the prescribed procedure has to
be
meticulously
followed.
These
are
minimum safeguards available to an
accused against the possibility of false
involvement. The communication of this
right has to be clear, unambiguous and
individual. The accused must be made
aware of the existence of such a right. This
right would be of little significance if the
beneficiary thereof is not able to exercise it
for want of knowledge about its existence.
A joint communication of the right may not
be clear or unequivocal. It may create
confusion. It may result in diluting the
right. We are, therefore, of the view that the
accused must be individually informed that
under Section 50(1) of the NDPS Act, he
has a right to be searched before a nearest
gazetted officer or before a nearest
Magistrate. Similar view taken by the
Punjab & Haryana High Court in Paramjit
Singh and the Bombay High Court in
Dharamveer Lekhram Sharma meets with
our approval."

18. Admittedly, the prosecution has
not produced other independent eyewitnesses of the alleged recovery and even
no explanation has been offered by the
prosecution for their non-production. All
the witnesses are police personnel. Nonproduction of independent eye witness is
serious lacuna which has made the
prosecution case very doubtful.

19. In addition to above, admittedly
the appellant, prior to his search, was not
produced before any Gazetted Officer or
Magistrate,
whereas
according
to
prosecution before his search the police
personnel were informed by the appellant
that he was carrying the ganza. Prosecution
has also not produced any written consent
of the appellant for his search. From
perusal
of
testimony
of
prosecution
witnesses, it does not transpire that any
efforts were made by them to produce the
appellant before any Gazetted Officer or
Magistrate, as required by Section 50 of
N.D.P.S. Act, in view of law laid down by
Apex Court in Vijaysinh Chandubha
Jadeja (Supra).

20. Further, it is also pertinent to note
at this juncture that not only the manner in
which the appellant was searched, is
doubtful, the prosecution has also not
prosecuted the case seriously, knowing that
severe punishment has been provided in
N.D.P.S. Act. It produced only four
witnesses
i.e
P.W.-1
Sub
Inspector
Janardan Prasad, P.W.-2 Inspector Rishi
Kumar, P.W.-3 Constable Shivnand and
P.W.-4 Constable Ramautar Shukla and
withheld
other
witness
without
any
justification.

21. In the light of above discussion, it
is clear that the prosecution has failed to
prove the mandatory compliance of Section
50 N.D.P.S. Act. In absence of compliance
of mandatory provision of Section 50
N.D.P.S Act, the prosecution case, based
on testimony of police personnel i.e. P.W.-
1 Sub Inspector Janardan Prasad, P.W.-2
Inspector Rishi Kumar, P.W.-3 Constable
Shivnand and P.W.-4 Constable Ramautar
Shukla, whose statements are not wholly
reliable, cannot be held as proved beyond
reasonable doubt in view of the other
illegalities
and
material
irregularity
committed by the witnesses as discussed
above.

22. Thus this Court is of the view that
prosecution has miserably failed to prove
its case beyond reasonable doubt against
the appellant. The trial Court has not
properly discussed the evidence produced
8 All. Saleem @ Sambha Vs. State of U.P.
87
by the prosecution and has passed the
impugned judgment and order against the
settled
principle
of
law
including
provisions of N.D.P.S. Act. This Court,
therefore, unable to uphold the conviction
and sentence of the appellant. The appellant
is entitled to be acquitted. The impugned
judgment and order is liable to be set aside
and accordingly, appeal is liable to be
allowed.

23. In view of the above, impugned
judgment and order dated 01.12.2006
passed by learned Additional Sessions
Judge / Fast Track Court No.1, Raebareli in
S.T. No.25/1998, Police Station Sareni,
District Raebareli, is set aside and
reversed and accused/appellant, namely,
Sohan Lal is acquitted of the charges
levelled against him. Consequently, the
appeal is allowed. His personal bond and
surety bonds are canceled and sureties are
discharged.

24. Let a copy of this judgment
alongwith the lower court record be sent
immediately to the Trial Court concerned
for necessary compliance.

25. No order as to the costs.
----------
(2024) 8 ILRA 87
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3149 of 2004

Saleem @ Sambha ...Appellant
Versus
State of U.P. ...Respondent
Counsel for the Appellant:
Sri Mohd. Naushad Siddiqui

Counsel for the Respondents:
Govt. Advocate

A. Criminal Law - Indian Penal Code,1860
-- Culpable Homicide & Murder - S. 299
Culpable Homicide - S. 300 Murder - S.
300 "culpable homicide amounting to
murder", punishable under Section 302
I.P.C. - "culpable homicide not amounting
to murder" punishable under Section 304
I.P.C. - 'Culpable Homicide' is the genus
and 'Murder' is its species. All 'Murders'
are 'Culpable Homicides' but all 'Culpable
Homicides' are not 'Murders' - 'Intention'
and 'Knowledge' - Distinction between
the two expressions - Legislature has used
two different terminologies 'Intention'
and
'Knowledge'
and
separate
punishments
are
provided
for
acts
committed with intent to cause bodily
injury likely to cause death and for acts
committed with knowledge that the act is
likely to cause death without the intent to
cause such bodily injury - Knowledge is
awareness of the consequences of the act
-
Knowledge
of
the
consequences
resulting from an act is different from the
intention that such consequences should
result - When intention is not proved, the
offence will be culpable homicide if the
doer of the act causes death with
knowledge that his act is likely to cause
death - Intention - Requisite intention
must be proved by the prosecution. It
must be proved that the accused, by doing
the act, intended to cause death, or had
the aim of causing such bodily injury as
was likely to cause death - Intention is
inferred from the circumstances of the
case, considering the nature of the
weapon, part of the body injured, extent
of the injury, degree of force used,
manner of attack, and the circumstances
preceding and attending the attack -
(Para 57, 58, 60, 65, 67).

B. Criminal Law - Indian Penal Code -
Sections 302, 304 - Murder & Culpable
Homicide Not Amounting to Murder -