TMI Blog2017 (7) TMI 1085X X X X Extracts X X X X X X X X Extracts X X X X ..... rrect perspective and has also acted wrongly and illegally in holding the accused-appellant to be guilty for carrying on prohibited contraband Charas in commercial quantity. The impugned judgment and order of conviction and sentence is set aside - appeal allowed. - Criminal Appeal No. 3920 of 2016 - - - Dated:- 2-7-2017 - Harsh Kumar, J. For the Appellant/Petitioner/Plaintiff: Prashant Kumar and Ashwini Kumar Ojha For the Respondents/Defendant: G.A. JUDGMENT Harsh Kumar, J. 1. This appeal has been preferred against the judgment and order dated 16.07.2016 passed by the Additional Sessions Judge/Special Judge E.C. Act, District Jhansi in Special Sessions Trial No. 93 of 2014 State v. Santosh Kumar Gupta, convicting the accused-appellant for the offence under section 20 N.D.P.S. Act and sentencing him with rigorous imprisonment for a period of ten years and fine of Rs. One lakh and in case of default in payment of fine with additional period of imprisonment for a period of one year. 2. As per F.I.R., the brief facts relating to the case are, that on 01.09.2014, first informant Sub Inspector Arvind Singh, during patrolling with constables got information that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overy of prohibited contraband Charas was falsely planted upon him, after picking him from home; that the appellant was not found involved in sale of prohibited contraband (Charas) at Mohalla Khanderao Gate near Shankar Ji Temple and nothing incriminating was recovered from his possession; that there is no independent witness of alleged recovery; that no sample of the allegedly recovered material was taken in accordance with rules, from each of the allegedly recovered plates and sachets and the evidence on record shows that alleged sample was not sent for chemical analyzation in accordance with law; that it was proved from the prosecution evidence and report of forensic lab on record that the seal over the sample was tampered and so also the prosecution has failed to establish that the same material which was allegedly recovered from appellant, was sent for chemical analyzation to forensic lab and consequently the report of Vidhi Vigyan Prayogshala is not admissible in evidence; that the appellant has been falsely implicated by falsely planting recovery of prohibited contraband on him in order to put undue pressure on him for getting it vacated the house in Jhansi city in which his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 7 plates and 8 sachets of Charas were sealed separately with ₹ 450/- in another piece of cloth, in presence of the Circle Officer, and nobody came forward for becoming witness. 9. It is pertinent to mention that the sample of recovered material is alleged to have been sent for chemical analyzation to Forensic Lab Agra with a delay of 12 days, which in my opinion, is not very much material. 10. For the purpose of considering the correctness of the impugned judgment and order of correction, I have gone through the evidence on record and deem it expedient in the interest of justice to discuss relevant parts of the statements of PW-1 the first informant and PW-5 the Investigation Officer which are on the basis of prosecution evidence, as under:- Prosecution witness PW-1, the first informant S.I. Arvind Singh in his statement on oath has stated at page 2 that out of the recovered material of 7 plates and 11 sachets, a sample of 50 gms. was taken out and sealed in a piece of cloth, while the rest 7 plates and 8 sachets of Charas were sealed separately in another piece of cloth. At page 6 of his statement he has stated that he do not remember as to whether the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he nearest Magistrate. The F.I.R./recovery memo on record does not state that the accused was made aware of his right to be searched before some Gazetted Officer or the Magistrate as mentioned above and is not alleged to have given any consent for being searched by the first informant Arvind Singh himself. As far as the calling of Circle Officer by the first informant is concerned, the recovery memo states that upon getting information the Circle Officer was called and he accompanied the first informant Arvind Singh as member of raiding party and the search was taken in his presence in accordance with the provisions of Section 50 of N.D.P.S. Act. Learned counsel for the appellant has contended that since the Circle Officer was a member to the raiding party, his presence does not dispense with prosecution from making compliance of mandatory provisions of section 50 of N.D.P.S. Act. 13. Apart from above, the recovery memo states that during search a yellow polythene containing 7 plates and 11 sachets of Charas was recovered from the right hand of the accused apart from recovery of ₹ 450/- from right hand pocket of his pant. 14. Learned counsel for the respondent contende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that there is no independent witness of recovery. 19. In view of above material contradictions in the averments mentioned in recovery memo and the statements of prosecution witness, the very recovery of prohibited contraband from accused appellant becomes doubtful and the prosecution has failed to prove such recovery beyond reasonable doubt. (iii) Sample:- It has been contended by appellant that neither the sample of the allegedly recovered material was taken in accordance with rules nor it was immediately sent for chemical analyzation in accordance with the rules. The allegedly taken sample is said to have been sent for chemical analyzation after inordinate delay of 12 days, but I do not find that such delay may be considered to be fatal to the prosecution case. PW-1 the first informant S.I. Arvind Singh has stated that he had taken sample from each of the 7 plates and 11 sachets total 50 gms. but this fact has not been mentioned in recovery memo. He has admitted that he did not weigh each sachet separately. He has also stated that out of the recovered material after taking sample, rest 7 plates and 8 sachets were sealed separately in another cloth which indicates that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n separate cloths and put the seal of his name Arvind Singh over each bundle. This fact has been reiterated by first informant in his statement on oath as PW-1 at page 7 by stating that However the Forensic Lab Report of 'Vidhi Vigyan Prayogshala, Agra Uttar Pradesh' relied by prosecution states, that sample received in bundle of cloth was found marked with seal of (V.Y. VIVEK YADAV SI. UPP). The prosecution has failed to give any explanation regarding the difference of seal on the bundle of sample, which was analyzed at Forensic Lab and has failed to give any explanation regarding change of seal. Undisputedly Vivek Yadav, is not alleged to be member of raiding party and so the bundle received by Forensic Lab bearing seal of V.Y. VIVEK YADAV SI. UPP may not be treated to be the same bundle over which S.I. Arvind Singh had put his seal, as mentioned in the recovery memo. The absence of any satisfactory explanation with regard to change of seal from 'Arvind Singh' to 'V.Y. VIVEK YADAV makes the entire prosecution case doubtful and brings entire prosecution case under suspicion. From the above change of seal, apart from the fact that prosecution has fail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the city of Jhansi and for getting it vacated, and putting undue pressure on him, he has been falsely implicated in connivance with the local police after picking him, two days before the date of alleged arrest, by planting false recovery of prohibited contraband. 26. It is also pertinent to mention that the burden to prove motive behind false prosecution may not be placed on the accused-appellant. As per settled principle of law the motive remains behind each crime and prosecution is required to prove the motive behind the crime but since the motive remains in the mind of the accused it has been held in number of cases that the prosecution is not bound to prove the motive behind the crime and for not proving the motive, the case of prosecution may not be thrown out, particularly in cases based on ocular evidence. While the prosecution is not bound for strict proof of the motive, behind the crime, how the accused may be burdened to prove the motive of police party behind his false implication and mere contention of accused about probable cause for false implication may be enough, if prosecution otherwise fails to prove its case. 27. In view of the discussions made above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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