# Suresh Trivedi v. U.O.I

- **Citation:** (2023) 4 ILRA 1044
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-04-10
- **Case number:** Criminal Appeal No. 1918 of 2019
- **Bench:** Brij Raj Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/suresh-trivedi-v-u-o-i-49789
- **Pages:** 12

## Headnote

Criminal Law - The Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Sections 8 (c), 20(b)(ii)(C) & 25 -
Constitution of India, 1950 - Article 21 -
The Code of Criminal Procedure, 1973 -
Section 313 - Rigorous imprisonment -
Appeal against conviction - Issue for
consideration
-
Appellant
was
not
provided legal assistance during trial,
the proceedings were done in absence of
counsel for appellant, his pairokar left
pairavi - PW3 was examined by amicus
curiae of co-accused on 23.1.2019 - On
23.1.2019, co-accused was represented
through amicus curiae - The order sheet
indicates
there
was
no
counsel
representing
the
case
of
appellant,
proceeding of PW 3 was closed on oral
St.ment of ADGC - Appellant is in jail
since
18.08.2014
-
Appellant
has
undergone minimum sentence in jail,
without fair trial - He was not afforded
amicus curiae to defend himself during
evidence of PW3, proceeding u/s 313
Cr.P.C., thus trial is fatal, violative of
Article
21
-
Charges
framed
on
04.07.2019 second time u/s 25, not
proved, no evidence was adduced and
judgment was passed one day after i.e.
05.07.2019, trial appears to be vitiated -
PW1, PW2 and PW3 supported the
prosecution case - Sections 42, 50 of
NDPS Act has been complied with -
Conviction is upheld. (Para 11, 21, 25,
26, 28, 29,30)

Appeal is partly allowed. (E-13)

List of Cases cited:

## Text

1044 INDIAN LAW REPORTS ALLAHABAD SERIES
year on furnishing a personal bond of
Rs.20,000/- (Rupees twenty thousand) and
two sureties each of the like amount.
During this period, they shall maintain
good conduct and keep peace and on
breach of this condition, they shall appear
before the Court to receive punishment. It
also appears justified that under Section 5
(1) (a) of the Act, each appellant is directed
to deposit Rs. 4000/- as costs and
compensation within a period of one month
from the date of receipt of certified copy of
this order as compensation out of which Rs.
2000/- shall be paid to each injured, namely
Prem Narayan and Jamuna Prasad and Rs.
2000/- shall be paid to PW-3 Satish Kumar
Jain, owner of the bus. In case of death of
these injured, their legal representatives
shall be entitled to receive their shares of
compensation.

47. With aforesaid modification, the
criminal appeal is disposed of accordingly.

48. Let a certified copy of this order
along with record be sent to the court
concerned
for
compliance.
In
case,
probation
bonds
is
not
filed
and
compensation amount is not deposited by
the appellants accused, they will have to
undergo the sentence awarded by the trial
court.
----------
(2023) 4 ILRA 1044
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 10.04.2023

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Criminal Appeal No. 1918 of 2019

Suresh Trivedi ...Appellant
Versus
U.O.I. ...Opposite Party
Counsel for the Appellant:
Sri Pal Singh Yadav, Sri Chandra Shekhar
Pandey, Sri Prathama Singh

Counsel for the Opposite Party:
Sri Digvijay Nath Dubey

Criminal Law - The Narcotic Drugs and
Psychotropic Substances Act, 1985 -
Sections 8 (c), 20(b)(ii)(C) & 25 -
Constitution of India, 1950 - Article 21 -
The Code of Criminal Procedure, 1973 -
Section 313 - Rigorous imprisonment -
Appeal against conviction - Issue for
consideration
-
Appellant
was
not
provided legal assistance during trial,
the proceedings were done in absence of
counsel for appellant, his pairokar left
pairavi - PW3 was examined by amicus
curiae of co-accused on 23.1.2019 - On
23.1.2019, co-accused was represented
through amicus curiae - The order sheet
indicates
there
was
no
counsel
representing
the
case
of
appellant,
proceeding of PW 3 was closed on oral
St.ment of ADGC - Appellant is in jail
since
18.08.2014
-
Appellant
has
undergone minimum sentence in jail,
without fair trial - He was not afforded
amicus curiae to defend himself during
evidence of PW3, proceeding u/s 313
Cr.P.C., thus trial is fatal, violative of
Article
21
-
Charges
framed
on
04.07.2019 second time u/s 25, not
proved, no evidence was adduced and
judgment was passed one day after i.e.
05.07.2019, trial appears to be vitiated -
PW1, PW2 and PW3 supported the
prosecution case - Sections 42, 50 of
NDPS Act has been complied with -
Conviction is upheld. (Para 11, 21, 25,
26, 28, 29,30)

Appeal is partly allowed. (E-13)

List of Cases cited:

1. Ramanand @ Nandlal Bharti Vs St. of U. P.
reported in 2022 LiveLaw (SC) 843

2. Azeemul Hasan Vs U.O.I. AIROnline 2022 All
3821
4 All. Suresh Trivedi Vs. U.O.I.
1045
3. Sridham Adhikari Vs U.O.I. AIROnline 2021
All 6814

4. Manoj Kumar Soni Vs U.O.I. AIROnline 2020
All 2434

5. Chandra Shekhar Prasad Sah Vs U.O.I.
AIROnline 2022 All 1484

6. Rajendra Singh Vs St. of U.P. Lucknow & ors.
2017 (6) ALJ 482; (2017) 6 All WC 6151

7. Fuman Singh Vs U.O.I. AIROnline 2022 All
3819

8. Mukesh Kumar Vs U.O.I. AIROnline 2022 All
3820

9. Raj Kumar Savita Vs U.O.I.2021 (3) ALJ 748;
AIROnline 2021 All 522

(Delivered by Hon'ble Brij Raj Singh, J.)

1. This criminal appeal has been filed
under Section 374 (2) Cr.P.C. against the
impugned judgment and order dated
05.07.2019 passed by VIth Additional
District
and
Sessions
Judge/Special
Judge/Prevention
of
Corruption
Act
(U.P.S.E.B.) Lucknow in Criminal Case
No.38 of 2015, Case Crime No.29 of
2014, under section 8 (c)/20(b)(ii)(C) of
The Narcotic Drugs and Psychotropic
Substances Act, 1985 (in short ''NDPS
Act') whereby convicting and sentencing
the appellant for 15 years rigorous
imprisonment and fine of Rs.1,50,000/-
and in default of payment of fine, six
months additional simple imprisonment,
under section 25 NDPS Act, Police
Station DRI, Lucknow for 10 years
simple
imprisonment
and
fine
of
Rs.1,00,000/- and in default of payment
of fine, additional simple imprisonment
for four months. Both the sentences were
directed to run concurrently and that the
period of confinement in jail shall be
remitted.

2. As per prosecution case, the
complainant has stated that he received
information on 17.08.2014, that a white
Swift Dezire Car bearing No.UP78 BW
8210, is being used for smuggling of
contraband charas of commercial quantity
by concealing it in cavity of back seat of
the car. After getting information, a team of
Officers
of
Directorate
of
Revenue
Intelligence (in short ''DRI') comprising of
Shri Sanjeev Katiyar, Dharmendra Kumar,
Fahim Raja and Ajit Kumar were entrusted
to apprehend the accused. Section 42 of
NDPS Act was complied with and
thereafter the aforesaid team proceeded to
Shaheed Path on the Faizabad Road at
11:30 a.m. The team had also taken
witnesses Pawan Singh, Radhey Lal. They
were waiting for arrival of the aforesaid
Swift Car and they saw that said car was
coming to the place where they were
standing. They surrounded the car and a
person introduced himself as Driver of the
car. The person sitting on the driving seat
told that his name was Suresh Trivedi and
other person told that his name was
Lakshman
Sharma.
Thereafter,
the
information was given to the higher
authorities of DRI. The car driver denied
any contraband charas in the car and when
some pressure was put, he told that there is
cavity at the back seat of the car in which
charas has been concealed. In compliance
of Section 50 of NDPS Act, Sanjiv Katiyar,
the informant had given notice to Suresh
Trivedi and Lakshman Sharma and they
were asked whether they wanted to be
searched before the Gazetted Officer. Both
the accused persons stated before them that
they did not want to get themselves
interrogated or searched by the Gazetted
Officer. Both the accused were brought to
the office of DRI 2/31 Vishal Khand,
Gomti Nagar. The car was checked and
cavity was found in the back seat of the car
1046 INDIAN LAW REPORTS ALLAHABAD SERIES
in which 111 packs of charas was found in
the polythene cover. The total weight of
charas was 107 kg and about 25-25 samples
of recovered charas were prepared and they
were sealed on the spot and it was found that
the market value of the recovered charas was
1,07,00,000 i.e. (Rupees One Crore Seven
lacs.). The sample was sealed and signatures
were made on the sealed cover. The recovery
memo was prepared by Sanjiv Katiyar, the
Information Officer on 17.08.2014 and the
proceeding ended at 11 o'clock in the night of
17.08.2014. The independent witness also
made their signature on the recovered memo.
The statement of both the accused Suresh
Chandra Trivedi and Lakshman Sharma were
recorded on 18.08.2014 and by following
section 43 of NDPS Act, they were arrested
and were produced before the court on
18.08.2014. Thereafter, they were sent to jail
by the Judicial order. The sample was sent for
FSL examination to Delhi. The FSL report
dated 08.10.2014 and 24.09.2014 indicates
that the samples were of charas. After getting
adequate
evidence,
both
the
accused
Lakshman Sharma and present appellant
were
booked
under
section
8
(c)/20(b)(ii)(C)/25 NDPS Act, 1985 and case
was registered at Police Station DRI,
Lucknow.

3. The Investigating Officer filed
complaint under section 8 (c)/20(b)(ii)(C)/25
NDPS Act, 1985 and on the basis of
complaint, recovered contraband charas, the
samples, the site plan, the statement of
accused and medical report and the FSL
report, the court framed the charges on
27.05.2016 against both the accused under
the aforesaid sections. The accused appellant
pleaded not guilty and requested for trial.

4. The prosecution had produced PW1
Sanjiv Katiyar, Information Officer of DRI;
PW2 Dharmendra Kumar; PW3 Abhishek
Chatterjee. Certain evidences from Exhibits
Ka-1 to Exhibit ka-32 were also examined.

5. The appellant and co-accused
Lakshman Sharma were confronted under
Section 313 Cr.P.C. and they deposed
before the Court that they were falsely
implicated. Learned counsel submitted that
the police had arrested the appellant and
other co-accused from their house and they
were falsely implicated by showing false
recovery.

6. After hearing the arguments on
27.05.2016, it was found that charges were
framed and there was some defect i.e. why
again charges were framed on 04.07.2019
under Sections 8(c)/20(b)(ii)(c)/25 NDPS
Act, 1985 and charges were framed
separately. The accused pleaded not guilty
and requested for trial and also denied the
charges. The Special Prosecuting Officer
submitted that no evidence was required
and submitted that evidence adduced
earlier, may be considered. After adducing
evidence on record, the trial court passed
judgment convicting and sentencing the
appellant under the aforesaid sections,
hence, the present appeal has been filed by
the accused appellant.

7. PW1, Information Officer Sanjiv
Katiyar, was examined before the Court
and he deposed before the Court that on
17.08.2014, he was asked by DRI to reach
office at 10:30 a.m. He reached office at
10:30 a.m. where Dharmendra, Fahim Raja,
Ajit Kumar were present. It was told to him
that information was received that white
car was used for smuggling contraband
charas which is coming from Barabanki to
Lucknow and will go to Kanpur. On the
written information, the team proceeded to
Faizabad road at 11:30 through private
vehicle. They also took two witnesses from
4 All. Suresh Trivedi Vs. U.O.I.
1047
Husariya Chauraha, Gomti Nagar and after
reaching to the place, they were waiting at
4 o'clock in the evening, they saw that a car
was coming from Faizabad Road which
was surrounded by them. The team
members
introduced
themselves.
The
person sitting on driving seat told his name as
Suresh Trivedi and at the side of the driver
Lakshman Sharma co-accused was sitting.
They were asked by the search team that they
were keeping contraband charas in the car
and they accepted the fact that they were in
possession of charas in the car. Section 50 of
NDPS Act was complied with. They
submitted before them that they did not want
to be searched before any Gazetted Officer
and they may be searched by search team.
Thereafter, both accused were brought to the
office of DRI, House No.2/31 Vishal Khand,
Gomti Nagar, Lucknow. The cavity was
found in the back seat of the car in which 111
packs were found in the polythene. The
samples were taken and prima facie; it was
found that it was charas. 25-25 gms charas
samples were taken and they were packed
and sealed. The entire contraband charas was
sealed in four bags and the bags were sealed
on which signatures of the search team was
made. Both accused told that they had gone
to Nepal border through Barabanki where
Ramesh loaded the charas which was to be
delivered to Kanpur. As soon as they were
about to reach on the road of Shaheed Path,
they were arrested by the search team. The
complainant PW1 further submitted before
the Court that proceeding went on till 11:30
in the night of 17.08.2014. The statement of
the accused were recorded and memo was
prepared. The samples were taken and the
contraband charas was also sealed. The
accused were examined by the Doctor and
thereafter
they
were
remanded.
PW2
Dharmendra Kumar, Information Officer and
PW3 Abhishek Chaterjee were members of
search team along with PW1. They have
stated the same facts which have been stated
by PW1 before the Court and they have
supported the prosecution case as set up in
the complaint.

8. PW3 has admitted in examinationin-chief that he was made Investigating
Officer by the State vide order dated
25.08.2014 and he was also authorised to
file complaint and all the three witnesses of
fact deposed and tried to prove the case of
prosecution.

9. In cross examination, PW1 Sanjiv
Katiyar deposed that incident took place in
August 2014 and he was unable to
remember the date. He deposed that his
statement was recorded after 3-4 months
from the date of incident. He deposed that
he reached to the place by Innova Car
along with two independent witnesses, who
were picked at Husariya Chauraha. He
further stated that witnesses were not
having vehicle. He further deposed that
addresses of the witnesses were not
verified. He stated that at 4:40 in the
evening, the car was coming and it was
stopped by the driver without any protest.

10. In cross examination, PW3
Abhishek Chaterjee, deposed that he was
Investigating Officer and was not present at
the time of arrest of the accused. He neither
signed the recovery memo nor recovery
memo was prepared before him and the
recovered charas was also not sealed before
him. He was also not involved in doing
weight of the charas. He could not state the
date of incident. He further deposed that he
has not recorded the statement of the
accused rather he had taken statement of
the officials of the department. He further
deposed that under section 67 of NDPS
Act, notice was sent and but the same came
back due to incomplete address.
1048 INDIAN LAW REPORTS ALLAHABAD SERIES

11. While going through the record, a
very wider issue has been raised by learned
counsel for the appellant that the appellant
was not provided legal assistance during
trial and at many stages, the proceedings of
trial were done in absence of the counsel
for the appellant. He has submitted that
pairokar of the appellant had left pairvi and
prosecution led the witness PW3 on
18.12.2018 and rest of the examination-inchief completed on 23.1.2019 and on the
same day, cross examination on behalf of
Lakshman Sharma conducted by amicus
curiae and the next date fixed was on
29.01.2019 and date for cross examination
of appellant was fixed on 11.02.2019. On
11.02.2019, PW3 was not present in the
court and on the statement of learned
counsel for the prosecution, the evidence of
the prosecution was closed on 11.02.2019
and the order was passed that "prosecution
witness closed." it has been submitted by
learned counsel that without affording any
opportunity to the appellant, learned trial
court neither provided any counsel nor
amicus curiae and order was passed for
cross examination with PW3 thus, the trial
is fatal. He further submitted that on
18.2.2019, without providing any amicus
curiae to the appellant, statement under
Section 313 Cr.P.C. was recorded and
thereafter case was fixed on 03.07.2019 for
alteration of charge. On 03.07.2019, the
accused persons were not summoned from
District Jail, Lucknow and next date was
fixed on 04.07.2019 for alteration of charge
and charges were altered on 04.07.2019. It
has been submitted by learned counsel for
the appellant that appellant is confined in
jail since long time that is why his pairokar
could not arrange the expenses and counsel
could not be engaged after evidence of
PW2 as such no counsel of appellant
appeared
on
his
behalf.
In
such
circumstances, it was desirable to provide
amicus curiae to the appellant under the
provision
of
Section
39-A
of
the
Constitution of India as well as Section 304
Cr.P.C. and Section 9 of the Legal Service
Authority Act, 1987.

12. The argument was advanced by
learned counsel for the appellant that the
matter was heard before this Court. This
Court vide order dated 27.01.2013 directed
the counsel for the appellant to file affidavit
indicating as to at what stage, there was no
counsel for the appellant representing his
case before the subordinate Court and ten
days' time was granted to file affidavit and
the learned counsel for the respondents was
also directed to file reply of the affidavit.

13. In pursuance of the directions
issued by this Court, the supplementary
affidavit dated 28.01.2023 has been filed
and the appellant has made specific
averment in paras 2,3, 4, 5 and 6 in which
certain dates have been mentioned and it
has been pointed out that appellant was not
provided any counsel/amicus curiae and the
proceedings of the trial was conducted
without
providing
legal
assistance.
Therefore, the entire trial is vitiated under
Article 21 of the Constitution of India.

14. Learned counsel for the DRI has
filed his reply on 16.02.2023 to the
supplementary affidavit of the appellant.
The said reply filed by DRI is relevant to
be looked into and paras 3, 4 and 5 of the
supplementary affidavit of appellant has
been replied and DRI has not specifically
denied the averment of supplementary
affidavit and nowhere it is replied by DRI
that appellant was provided counsel or
legal assistance. Learned counsel for the
appellant has also annexed the order sheet
of various dates which indicate that
accused have made their signatures and
4 All. Suresh Trivedi Vs. U.O.I.
1049
learned counsel for DRI has made his
signature but there is no counsel for
appellant who has appeared. The order
sheet
dated
29.01.2019,
11.02.2019,
29.11.2018,
11.01.2019,
23.01.2019
24.06.2019, 03.07.2019 indicates that no
counsel
for
accused
appellant
has
represented his case.

15. Learned counsel for the appellant
has relied upon the judgment of Hon'ble
Supreme Court in case of Ramanand @
Nandlal Bharti v. State of Uttar Pradesh
reported in 2022 LiveLaw (SC) 843 in
Criminal Appeal No.64-65 of 2022 dated
13.10.2022.

"39A. Equal justice and free legal
aid. --The State shall secure that the
operation of the legal system promotes
justice, on a basis of equal opportunity, and
shall, in particular, provide free legal aid,
by suitable legislation or schemes or in any
other way, to ensure that opportunities for
securing justice are not denied to any
citizen by reason of economic or other
disabilities."

121. Section 304 of the CrPC
refers to legal aid to the accused at State
expenses in certain cases which reads thus:

"304. Legal aid to accused at
State expense in certain cases.--

(1) Where, in a trial before the
Court of Session, the accused is not
represented by a pleader, and where it
appears to the Court that the accused has
not sufficient means to engage a pleader,
the Court shall assign a pleader for his
defence at the expense of the State.

(2) The High Court may, with the
previous approval of the State Government,
make rule providing for--

(a) the mode of selecting pleaders
for defence under sub section (1);

(b) the facilities to be allowed to
such pleaders by the Courts;

(c) the fee payable to such
pleaders by the Government, and generally,
for carrying out the purposes of sub section
(1).

(3) The State Government may,
by notification, direct that, as from such
date as may be specified in the notification
the provisions of subsections (1) and (2)
shall apply in relation to any class of trials
before other Courts in the State as they
apply in relation to trials before the Courts
of Session."

122. Under Section 9 of the Legal
Services Authorities Act, 1987, the District
Legal Services Authorities are constituted
for every District in the State to exercise
powers and perform functions conferred
on, or assigned to, the District Authority
under the said Act.

123. This Court in para 13 of the
judgment reported in Kishore Chand v.
State of Himachal Pradesh, (1991) 1 SCC
286, held thus:

nd free legal aid and though the
State provides amicus curiae to defend the
indigent accused, he would be meted out
with unequal defence if, as is common
knowledge the youngster from the bar who
has either a little experience or no
experience is assigned to defend him. It is
high time that senior counsel practising in
the court concerned, volunteer to defend
such indigent accused as a part of their
professional duty. If these remedial steps
are taken and an honest and objective
1050 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation is done, it will enhance a
sense of confidence of the public in the
investigating agency."

124. This Court, in the case of
Zahira Habibullah Sheikh (5) and Another
v. State of Gujarat and Others, reported in
(2006) 3 SCC 374, has observed in
paragraphs 30, 35, 38 and 39 as under:

"30. Right from the inception of
the judicial system it has been accepted
that
discovery,
vindication
and
establishment of truth are the main
purposes underlying existence of the courts
of justice. The operative principles for a
fair trial permeate the common law in both
civil and criminal contexts. Application of
these principles involves a delicate judicial
balancing of competing interests in a
criminal trial: the interests of the accused
and the public and to a great extent that of
the victim have to be weighed not losing
sight of the public interest involved in the
prosecution
of
persons
who
commit
offences.

x x x x

35.
This
Court
has
often
emphasised that in a criminal case the fate
of the proceedings cannot always be left
entirely in the hands of the parties, crime
being public wrong in breach and violation
of public rights and duties, which affects
the whole community as a community and
is harmful to the society in general. The
concept of fair trial entails familiar
triangulation of interests of the accused,
the victim and the society and it is the
community that acts through the State and
prosecuting agencies. Interest of society is
not to be treated completely with disdain
and as persona non grata. The courts have
always been considered to have an
overriding
duty
to
maintain
public
confidence in the administration of justice
often referred to as the duty to vindicate
and uphold the "majesty of the law". Due
administration of justice has always been
viewed as a continuous process, not
confined to determination of the particular
case, protecting its ability to function as a
court of law in the future as in the case
before it. If a criminal court is to be an
effective instrument in dispensing justice,
the Presiding Judge must cease to be a
spectator and a mere recording machine by
becoming a participant in the trial evincing
intelligence, active interest and elicit all
relevant materials necessary for reaching
the correct conclusion, to find out the truth,
and administer justice with fairness and
impartiality both to the parties and to the
community
it
serves.
The
courts
administering criminal justice cannot turn
a blind eye to vexatious or oppressive
conduct that has occurred in relation to
proceedings, even if a fair trial is still
possible, except at the risk of undermining
the fair name and standing of the judges as
impartial and independent adjudicators.

x x x x

38. Failure to accord fair hearing
either to the accused or the prosecution
violates even minimum standards of due
process of law. It is inherent in the concept
of due process of law, that condemnation
should be rendered only after the trial in
which the hearing is a real one, not sham
or a mere farce and pretence. Since the fair
hearing requires an opportunity to preserve
the process, it may be vitiated and violated
by an over hasty stage managed, tailored
and partisan trial.

39. The fair trial for a criminal
offence consists not only in technical
4 All. Suresh Trivedi Vs. U.O.I.
1051
observance of the frame, and forms of law,
but also in recognition and just application
of its principles in substance, to find out the
truth and prevent miscarriage of justice."

16. However, important issue has
been raised by the learned counsel for the
appellant that the prosecution led the
witness PW3 on 18.12.2018 and thereafter
rest of examination in chief was completed
on 23.01.2019 and on the same date, cross
examination of Lakshman was conducted
by amicus curiae and the next date was
fixed was 29.01.2019 and thereafter next
date for cross examination by the appellant
was fixed on 11.02.2019 but PW3 was not
present in the Court and on the submission
of learned counsel for the prosecution, the
evidence of prosecution was closed on
11.2.2019 and the order was passed that
"prosecution
witness
closed"
without
affording
any
opportunity
of
cross
examination to the appellant in absence of
appellant's counsel.

17. Heard Shri Pal Singh Yadav,
learned counsel for the appellant and Shri
Digvijay Nath Dubey, learned counsel for
DRI and perused the record.

18. Learned counsel for the appellant
has submitted that two independent eye
witnesses who were mentioned by the
prosecution were not produced before the
Court. He has submitted that all the three
witnesses were departmental witnesses
whereas two independent eye witnesses
have been shown as independent witnesses
but none of them have been examined
before the Court thus, the prosecution case
is highly doubtful and there is false
implication. It has been further submitted
by learned counsel for the appellant that
Court had second time framed charges and
the appellant was framed charges under
Section 25 of NDPS Act on 04.07.2019.
The appellant had pleaded not guilty
against the charge framed second time
under Section 25 of NDPS Act and
requested for trial which is mentioned in
the order dated 04.07.2019. It is submitted
by learned counsel for the appellant that
without adducing any evidence on record,
final judgment was passed on 05.07.2019
just after one day which goes to show that
the trial is unfair and there is complete
violation of the Article 21 of the
Constitution of India.

19. Learned counsel submitted that
the prosecution led the witness PW3 on
18.12.2018 and cross examination on
23.1.2019 of Lakshman Sharma was
conducted by amicus curiae and next date
fixed was 29.01.2019 and again next date
was fixed for cross examination on
11.02.2019 but PW3 was not present and
on the request of learned counsel for the
prosecution, evidence of the prosecution
was closed on 11.2.2019 without affording
any opportunity of cross examination to the
appellant. The cross examination of the
appellant was mandatory but neither
amicus curiae was engaged nor any
opportunity was provided to the appellant
to cross examine PW3 and only on the
statement of learned counsel for the
prosecution, the evidence was closed.
Thereafter, the case was fixed for 313
Cr.P.C. the statement was recorded but no
amicus
curiae
was
provided
to
the
appellant. He has submitted that pairokar of
the appellant had already left pairvi
therefore, it was incumbent upon the trial
court to provide amicus curiae but in
absence thereof, case was fixed on
03.07.2019 for alteration of charge and the
charges were framed in absence of
appellant's counsel. The final judgment was
passed on 05.07.2019 without providing
1052 INDIAN LAW REPORTS ALLAHABAD SERIES
any counsel to the appellant. It has been
submitted that trial is unfair and there is
complete violation of Article 21 of the
Constitution of India because the appellant
was not provided opportunity through
counsel to cross examine PW3 and the
charges were altered under Section 25 of
NDPS Act and thereafter, no evidence was
led
either
by
prosecution
or
any
opportunity was provided to the appellant
to lead the evidence. Learned counsel for
the appellant has submitted that the
statement of fact made by the appellant that
he was not given amicus curiae has not
been denied by the DRI while filing the
reply of the affidavit filed by the appellant.

20. On the other hand, learned
counsel for the DRI has submitted that 107
kgs of charas of commercial quantity
amounting to Rs.One crore seven lac has
been found from the possession of the
appellant. He has submitted that three eye
witnesses have accounted the case against
the appellant and they have been examined
before the court and they had deposed the
prosecution case, which goes to show that
the appellant was involved in smuggling of
commercial quantity of charas. He has
submitted that all the requisite procedure
was followed and thereafter the appellant
was arrested and the trial court conducted
the trial and after adducing the evidence on
record, the court has convicted appellant
under section 8 (c)/20(b)(ii)(C) and Section
25 NDPS Act, 1965. The judgment is
justified and passed after adducing the
evidence of record and no interference is
called for. Learned counsel for DRI has
relied upon catena of judgments which are
as follows: -

(i) Azeemul Hasan v. Union of
India AIROnline 2022 All 3821 ;

(ii) Sridham Adhikari v. Union of
India AIROnline 2021 All 6814;

(iii) Manoj Kumar Soni v. Union
of India AIROnline 2020 All 2434 ;

(iv) Chandra Shekhar Prasad Sah
v. Union of India AIROnline 2022 All 1484
;

(v) Rajendra Singh v. State of
U.P. Lucknow and others 2017 (6) ALJ
482; (2017) 6 All WC 6151

(vi) Fuman Singh v. Union of
India AIROnline 2022 All 3819 ;

(vii) Mukesh Kumar v. Union of
India AIROnline 2022 All 3820 ;

(viii) Raj Kumar Savita v. Union
of India 2021 (3) ALJ 748; AIROnline 2021
All 522.

21. After hearing learned counsel for
both parties, it is apparent that PW3 was
examined by amicus curiae of Lakshman
Sharma co-accused on 23.1.2019. The
proceeding
dated
23.01.2019
itself
indicates that Lakshman Sharma coaccused was represented through amicus
curiae. The order sheet indicates that on
11.02.2019, the case was called out and on
the oral statement of learned counsel for the
prosecution, case was fixed for statement
under Section 313 Cr.P.C. The entire order
sheet
dated
18.12.2018,
11.1.2019,
23.1.2019, 29.01.2019, 11.02.2019 clearly
indicates that there was no counsel
representing the case of the appellant and
the proceeding of PW 3 was closed on the
oral statement of ADGC without affording
opportunity by providing any counsel to the
appellant to cross examine PW3.
4 All. Suresh Trivedi Vs. U.O.I.
1053

22. Learned counsel for DRI has filed
counter
affidavit
dated
16.2.2023
in
response to the supplementary affidavit
dated 28.1.2023 of the appellant and in
paras 3, 4 and 5 clearly indicates that he
was not provided amicus curiae to
represent his case because his pairokar has
left pairvi. The said paras 3, 4 and 5 of the
affidavit is replied by the DRI vide
affidavit dated 16.2.2023 and in paras 2,3
and 4 of the affidavit, there is no denial that
the appellant was provided amicus curiae
to represent his case.

23. The Supreme Court has dealt the
issue of amicus curiae of under trial
regarding
the
representation
of
case
through counsel. The case of Ramanand @
Nand Lal Bharti (Supra). It is thus clear
that trial has become fatal and in absence of
counsel, the proceedings were completed
and appellant was not afforded amicus
curiae therefore, trial at the time of
adducing evidence of PW3 and the second
framing charge which was done on
04.07.2019 and even Section 313 Cr.P.C.
proceeding was recorded in absence of
appellant's counsel. Article 21 of the
Constitution of India is completely violated
and trial was conducted without affording
opportunity to lead the evidence through
counsel.

24. The record reveals that on
04.07.2019 the charges were framed second
time under Section 25 of NDPS Act. The
charges were read and the accused pleaded
not guilty and requested for trial. However,
order dated 04.07.2019 further indicates
that on the statement of counsel for
prosecution evidence was closed and the
judgment was passed on 05.07.2019 just
after one day without leading the evidence
after framing of charges, second time. The
order dated 04.07.2019 available on record
is quoted below :-

U;k;ky;&"k"Ve vij ftyk tt@fo'ks"k
U;k;k/kh'k@
ih0lh0,DV] 1⁄4;wih,lbZch1⁄2 y[kuÅA
fd0 dsl ua0 38@2015
MhvkjvkbZ izfr lqjs'k f=osnh vkfn

04-07-2019

okn is'k gqvkA i=koyh fu.kZ;
gsrq fu;r gSA vfHk;qDrx.k lqjs'k f=osnh ,oa
y{eu 'kekZ e; fo}ku vf/koDrk mifLFkr gSA
fo'ks"k yksd vfHk;kstd Hkh mifLFkr gSA

ekeys esa fu.kZ; rS;kj djrs le;]
i=koyh ds voyksdu ls Li"V gqvk fd fnukad
27-05-2016 dks esjs fo}ku iwokZf/kdkjh }kjk
vfHk;qDrx.k lqjs'k f=osnh ,oa y{eu 'kekZ ds
fo:) ,d gh 'kh"kZ esa vijk/k vUrxZr
/kkjk&81⁄4lh1⁄2@201⁄4ch1⁄21⁄4ii1⁄2 1⁄4lh1⁄2@25 ,uMhih,l,DV
ds v/khu vkjksi fojfpr dj fn;k x;k gS tc fd
mDr vijk/k esa /kkjk&20 o 25 n.MkRed micU/k
ls lacaf/kr /kkjk;sa gS ftlesa fof/k vuqlkj i`Fkd
'kh"kZ esa vkjksi fojfpr fd;k tkuk pkfg;s Fkk]
blfy;s fu.kZ; ls iwoZ mijksDr fojfpr vkjksi eas
la'kks/ku djrs gq;s] mijksDr nksuks /kkjkvksa esa
i`Fkd& i`Fkd 'kh"kZ esa vkjksi fojfpr fd;k tkuk
U;k;ksfpr izrhr gksrk gSA

rnuqlkj vfHk;qDrx.k lqjs'k f=osnh ,oa
y{eu 'kekZ ds fo:) mijksDr vkjksi vUrxZr
/kkjk&81⁄4lh1⁄2@201⁄4ch1⁄21⁄4ii1⁄21⁄4lh1⁄2
,oa
/kkjk&25
,uMhih,l,DV ds v/khu i`Fkd&i`Fkd 'kh"kZ esa
vkjksi fojfpr fd;k x;kA vfHk;qDrx.k dks mDr
vkjksi i<+dj lquk;k o le>k;k x;kA
vfHk;qDrx.k us mijksDr vkjksi ls badkj fd;k
rFkk fopkj.k dh ekax dhA

fo'ks"k yksd vfHk;kstd }kjk iwoZ esa gh
vfHk;kstu }kjk izLrqr lk{; dks i<+s tkus o vU;
dksbZ lk{; u fn;s tkus dk rdZ nsrs gq;s]
rnuqlkj vkns'k i= ij i`"Bkadu fd;k x;k gSA
vfHk;qDrx.k dh vksj ls Hkh fdlh lk{kh ls
1054 INDIAN LAW REPORTS ALLAHABAD SERIES
izfrijh{kk djus gsrq iqu% vkgwr fd;s tkus dk
vuqjks/k ugh fd;k x;k gSA

rnksijkUr mHk;i{kksa dh cgl lquh
x;hA i=koyh fnukad 05-07-19 dks fu.kZ; gsrq is'k
gksA

g0 viBuh;
04-07-19
1⁄4Mh0,u0 flag1⁄2
"k"Ve vij ftyk tt@
fo'ks"k U;k;k/kh'k@ih0lh0,DV]
1⁄4;wih,lbZch1⁄2 y[kuÅA

25. The other fact is also very relevant
to mention here that the appellant had been
arrested on 17.08.2014 and he was sent to
jail on 18.08.2014. The appellant is in jail
since 18.08.2014 till date and appellant had
completed eight years, eight months in jail.
The minimum punishment provided under
section 8(c)/20(b)(ii)(C)and Section 25
NDPS Act is ten years and maximum
punishment is 20 years. It is relevant to
mention here that appellant has undergone
almost minimum sentence in jail that too
without fair trial.

26. After discussing above factual
aspect, the findings of the Court are :-

(i) the appellant was not afforded
amicus curiae to defend himself during
evidence of PW3 and proceeding under
Section 313 Cr.P.C. thus trial is fatal and is
violative of Article 21 of the Constitution
of India.

(ii)
the
charges
framed
on
04.07.2019 second time, under section 25
of NDPS Act, was not proved as no
evidence was adduced on record and the
judgment was passed just one day after i.e.
05.07.2019 thus trial appears to be vitiated.

27. In view of the aforesaid
discussion, it appears that trial was badly
conducted and is in violation of Article 21
of the Constitution of India and the
appellant is undergoing in jail continuously
since
18.08.2014
till
date
and
has
completed eight years, eight months in jail.
Thus, almost minimum sentence of ten
years as provided in the relevant provisions
of NDPS Act is about to be completed and
it would not be a fit case to remand the case
to trial Court.

28. So far as prosecution case is
concerned, the witness of fact PW1 Sanjeev
Katiyar, PW2 Dharmendra and PW3
Abhishek Chatterjee had supported the
prosecution case. Their statement before
the Court has been recorded and after cross
examination, it is found that they have
supported the prosecution case. Sections
42, 50 of NDPS Act has been complied
with. The examination of prosecution
witnesses before the court indicates that
their version before the court is the same
which has been stated by them during
investigation.

29. In view of the aforesaid
discussion, it would not be appropriate to
remand the matter for fresh trial because
more than 8 1/2 years have passed and the
appellant is in jail. I am of the view that the
maximum punishment of 15 years awarded
by court below is liable to be reduced to the
minimum sentence i.e up to 10 years.

30. The appeal is partly allowed. The
conviction is upheld. However, sentence is
reduced up to ten years with fine of Rs.
One lac under Section 8(c)/20(b)(ii)(C) and
in case of default of fine, further six months
simple imprisonment will be undergone by
the appellant and Rs.One lac fine under
section 25 of NDPS Act and in case of
4 All. Kishan Veer Singh Vs. State of U.P.
1055
default, four months simple imprisonment
shall be undergone by the appellant.

31. The appellant will be set free after
completing ten years of sentence, if he is
not warranted in any other criminal case.

32. Office is directed to send a copy
of this judgment forthwith along with lower
court record to the trial Court concerned for
necessary compliance.
----------
(2023) 4 ILRA 1055
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.01.2023

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 3773 of 2019
With
Criminal Appeal No. 2914 of 2019

Kishan Veer Singh ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Apul Misra

Counsel for the Respondents:
Sri H.M.B. Sinha, AGA

Criminal Law - Indian Penal Code, 1860 -
Sections 96, 97, 99, 101, 102, 302/34 &
323/34, - Punishment for murder - Arms
Act, 1959 - Section 25 - The Code of
Criminal Procedure, 1973 - Sections 161
& 313 -Evidence Act, 1872 - Sections 106,
113B, 134 - Appeal against conviction -
Place of occurrence was on door of house
of informant, no evidence contrary has
been adduced by defence side - As per
prosecution, when grass was cut from
sugar cane field of Natthu, the accused
persons reached informant's house, when
informant's son protested, offence was
committed - In cross-examination, P.W.1
admittted of no enemity between him and
accused persons - Accused persons seen
his son plucking the sugar cane, no
altercation took place at that time -
Affirmed by P.W.6 - No contradiction in
ocular evidence adduced by prosecution,
deceased
sustained
firearm
injury,
resulted into his death and corroborated
by medical evidence - Injuries caused to
P.W.2, guarantee of his presence at the
scene of crime - No contradictions in
testimony of P.W.2 - Ocular evidence of
two witnesses, corroborate with each
other, in light of credible evidence,
prosecution was not under obligation to
adduce
any
witness
as
independent
witness - Doctor opined date and time of
occurrence,
medical
evidence
corroborates injuries to accused persons -
Informant side used private defence,
when one fire was shot over deceased,
inflicted
simple
injuries
to
accused
persons - P.W.2 sustained simple injuries,
exercise of private defence was never
exceeded by informant side - Informant
side, entitled for protection u/s 96 IPC -
F.I.R., lodged with utmost promptness, no
delay in lodging, eliminates chance of
false implication - Directions accordingly
(Para 25, 26, 27, 34, 42, 44, 46, 51 - 57,
62, 63, 66)

Appeals are dismissed. (E-13)

List of Cases cited:

1. Bikau Pandey Vs St. of Bihar (2003) 12 SCC 616

2. Anil Rai Vs St. of Bihar (2001) 7 SCC 318

3. Deepak Verma Vs St. of H. P. (2011) 10 SCC
129

4. St. of U.P. Vs Chhotey Lal, A.I.R. 2011 SC 697

5. St. of U.P. Vs Krishna Master, 2010 (5) ALJ
423 (SC)

6. Gangadhar Behera & ors. v. St. of Orrisa,
(2002) 8 SCC 381