The Lucknow Bench of the Allahabad High Court while allowing an appeal said that 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.
A Single Bench of Justice Shamim Ahmed passed this order while hearing a Criminal Appeal filed by Surju.
The appeal has been preferred against the order dated 29.05.2001 passed by the Additional Sessions Judge, S.C/ S.T (Prevention of Atrocities) Act, Sultanpur in Special Criminal Case, Police Station Gosainganj, District Sultanpur, convicting and sentencing the accused under Section 20 of N.D.P.S Act for two years rigorous imprisonment alongwith fine of Rs 5,000/-(in default of payment of fine, the appellant was directed to undergo further six months rigorous imprisonment).
The prosecution story is that S.I Ajit Kumar Singh, the then Officer-in-charge, Police Station Gosainganj was in search of criminals on 11.05.1998 at try-way Barui, Bisui and Imiliya alongwith constables Ranjit Singh, Bhanu Pratap Singh and driver Fateh Bahadur Singh when he noticed a person coming from towards Barui at 12:50 Noon took about turn with steps in speed on seeing police party. He was detained by going 20-25 paces and revealed his name Surju Mallah and gave out his parentage and address.
On being asked, the accused Surju Mallah told Ajit Kmar Singh for having about 2 Kg Ganja in the bag due to which he attempted to run away.
The accused was told about his right to be searched in presence of a Gazetted Officer but he agreed for being searched by Ajit Kumar Singh when he was already detained and admitted to have 2 Kg Ganja in his possession.
The recovered Ganja, wrapped in newspaper, was kept in a plastic lining bag and sealed on the spot. The accused failed to show any license or authority to possess it which amounted to offence under Section 20 N.D.P.S Act.
The accused Surju was taken into custody and brought to the Police Station Gosainganj with recovered articles. Memo was prepared on the spot which was signed over by the witnesses and the accused. No public witnesses could be taken because of the sudden recovery of Ganja from possession of the accused.
Thereafter, a case under Section 8/20 of N.D.P.S Act was registered at Police Station Gosainganj, District Sultanpur and investigation was handed over to the Sub Inspector Rampal Tomar, who in turn got the sample chemically examined and received a report.
The accused-appellant was charged for offence under Section 20 of N.D.P.S Act; to which he pleaded not guilty and claimed for trial.
Appellant was examined under Section 313 of Code of Criminal Procedure, 1973, wherein he stated that he had been falsely implicated as he is a rickshaw puller and he refused to carry table on his rickshaw without fare on being asked by constable.
The trial Court, after going through the evidence available on record as well as after hearing the counsel for both the parties, convicted and sentenced the appellant under Section under Section 20 of N.D.P.S Act for two years rigorous imprisonment along with fine of Rs 5,000/- (in default of payment of fine, the appellant was directed to undergo further six months rigorous imprisonment).
Aggrieved by the aforesaid judgment and order, the appellant has filed the appeal.
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.
Counsel further submitted that the alleged place of recovery is a public place but no effort to invite the public witness at the time of recovery was made by the police party. The 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.
A.G.A vehemently opposed the submission of the 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.
A.G.A further submitted that impugned order, passed by the trial Court, is well reasoned, well discussed and appeal is liable to be dismissed.
The Court observed that,
After considering the arguments advanced by the 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 a settled principle of law that only on account of the fact that the prosecution case is based on testimony of a police witness, it cannot be thrown out, if the evidence of such witness is wholly reliable.
Severe punishment has been provided in the N.D.P.S Act to check the misuse of the 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 articles be kept by Station House Officer in safe custody and reports of arrest and seizure be sent immediately to immediate Superior Officer within 48 hours.
“In the light of the 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 Sub Inspector Ajit Kumar Singh, Constable Bhanu Pratap Singh and Sub Inspector Rampal Singh Tomar, 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.
Thus the 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 by the prosecution and has passed the impugned order against the settled principle of law including provisions of N.D.P.S Act. The Court, therefore, was unable to uphold the conviction and sentence of the appellant. The appellant is entitled to be acquitted. The impugned order is liable to be set aside”, the Court further observed while allowing the appeal.
“In view of the above, impugned judgment and order dated 29.05.2001 passed by learned Additional Sessions Judge, S.C/S.T (Prevention of Atrocities) Act, Sultanpur in Special Criminal Case, Police Station Gosainganj, District Sultanpur, is set aside and reversed and accused/appellant, namely, Surju is acquitted of the charges levelled against him. His personal bond and surety bonds are canceled and sureties are discharged”, the Court ordered.