TMI Blog2010 (10) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the appellants and learned A. G. A. Perused the lower Court record. Both the appeals are connected. They are related to the same time and arrest of the appellants. Same question of law and evidence involved and they are being disposed of by a common judgment. Appellants Roshan and Hakeem Ullah were arrested by S. O. V. P. Shukla on 29-9-1987 and from possession of the appellant Roshan about 4 Kg. Charas and from the possession of Hakeem Ullah about 10 Kg. Ganja were said to have been recovered at about 7. 30 p. m. for which a First Information Report was lodged against appellant Roshan in crime No. 155 of 1987 under Section 20-B/23 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred as the Act a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er recording the evidence, Special Judge, E. C. Act, Basti, by a common judgment, convicted the appellant Roshan under Section 23 of the Act and appellant Hakeem Ullah under Section 20 (b) (1) of the Act. Learned counsel for the appellant contended that the conviction of the appellant Roshan under Section 23 of the Act is against the evidence on record because there is no legal evidence that the contraband Charas was brought from Nepal. It is further contended by the learned counsel for the appellants that the time of recovery is also doubtful and the public witness P. W. 1 has not supported the prosecution case, the conviction cannot be sustained on single testimony of police officer, P. W. 3 Shivanand is a second officer under the subordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, Ext. Ka-10 and Ka-11, is dated 28-1-1988 and 2-2-1988. He proved the registration of the case, Ext. Ka-3, Ka-4 and Ka-5. He further stated that the case was registered in his absence. On 30-9-1987 he recorded the statement of accused persons and other police personnel and inspected the spot and prepared site plan and proved the same as Ext. Ka-6 and Ka-7. In his cross-examination he has stated that he did not sent any special report to his superior police officials. ( 5. ) P . W. 4 V. P. Shukla stated that he alongwith constable Yogendra Kumar Pandey, constable Deo Kumar Singh and constable Nizamuddin Khan were in patrolling duty. He saw two persons coming from railway station. Both were apprehended and from the possession of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of statement of witnesses of fact rendered their testimony unworthy of reliance because it cannot be said that the articles which were alleged to have been recovered from the possession of the appellants were the same which were sent for analysis. A perusal of the record shows that there is no evidence that the contraband Charas or Ganja were being brought from Nepal, though P. W. 4, in his statement, stated that the village from where the appellants were arrested is near the border of Nepal. In absence of any evidence of expert it cannot be proved that the recovered articles were brought from Nepal. In absence of any evidence on this point conviction of the appellant Roshan under Section 23 of the Act is not sustainable. According to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shiv Charan v. State reported in 1999 (1) JIC 167 (All) (LB) ; 1999 (2) EFR 119. Regarding the next submission made by the learned counsel for the appellants that the Investigating Officer is subordinate officer of P. W. 4 and the investigation is not fair, he relied upon the judgments reported in 1995 U. P. Criminal Rulings-57, Ragubir v. State and 1996 (2) JIC 1860 (All) ; 1995 U. P. Criminal Rulings 349, Ram Jatan v. State. It was held in both the cases that the investigation by subordinate officer could not be an independent finding and can be treated as tainted and no reliance can be placed upon it. In the case in hand P. W. 3 Shivanand stated that he is second officer of P. W. 4 V. P. Shukla. This is another lacuna in prosecution case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith making of full report of all the particulars of the arrest and seizure to immediate official superior, has not been complied with. Provision of Section 57 of the Act requires that whenever any person makes any arrest or seizure under this Act he shall within 48 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. The evidence on record is silent about the compliance of this provision. Failure to comply with the said provision will have a bearing on appreciation of evidence recorded, arrest or seizure as well as on the merits of the case as has been held in the case of Gurbux Singh v. State of Haryana reported in 2001 (1) JIC 923 (SC) and Thandi R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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