TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 62
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.... alongwith some police officials was going towards Burdpur on patrol duty in order to check the smuggling, and as soon as he crossed the Kasba Navgarh, he received a secret information by police informer (Mukhbir) that two persons having charas with them are coming on a Hero Honda Motorcycle C.D. Don No. U.P.58B-7469 from Nepal. Believing on the secret information, S.O.G. Incharge Dinesh Kumar Yadav proceeded towards Burdpur and saw two persons coming on a Motorcycle. The informer after identifying them left the place. The police team tried to stop the motorcycle on which the appellants turned around their motorcycle and tried to run away, however, they were apprehended by the police team with great efforts. On being inquired, the person, who was driving the motorcycle told his name as Sanjay Pandey and the pillion rider disclosed his name as Lakshmi Kant @ Mangru Gupta. When they were asked about the reason for their running away, they informed that they had charas with them therefore, they were trying to run away. Both the accused were informed by the police team that as they have charas with them, they have the option to be searched before a gazetted officer, however, both of th....
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...., who alongwith the Investigating Officer has produced the samples of contraband/ Charas before the Sessions Judge, Siddharth Nagar and after the inspection of the Court, has taken it to F.S.L. Lucknow for chemical examination, P.W.5 is Constable Ram Nakshtra Gautam, who has prepared the check report and has duly proved it before the Court as Ext. K-2, P.W.5 has also produced the Malkhana Register before the trial court and has proved its relevant entries related to the present case by identifying his hand writing, P.W.6 is Constable Nagendra Singh, who has made entries regarding registration of the case in the general diary. He has proved the carbon copy of the G.D. identifying his own hand writing and signature on it. Apart from the above oral evidence, several documents prepared by the police during course of investigation, including the F.S.L. Reports were produced by the prosecution in order to prove its case. After conclusion of the prosecution evidence, the statement of appellants were recorded under Section 313 Cr. P.C. in which both of them denied from the charges and claimed their false implication. Appellant Sanjay Pandey stated that police had arrested him 13.09.2009 a....
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.... containing the sample be properly marked. Learned counsel for the appellants has submitted that aforesaid order also provides that sample should be sent either by the registered post or through special messenger duly authorized for such purpose, and the sample must be dispatched to the laboratory within 72 hours of the seizure. Learned counsel has further contended that in the present case, whereas the report of the F.S.L., Lucknow shows that seal of the District Judge, Sidharth Nagar was found on the sample and the prosecution, has not produced any link evidence to prove as to how and when the seal was changed. 4. There is no compliance of Section 42 and 57 of N.D.P.S. Act. 5. There is no evidence as to what happened of the motorcycle seized by the police and also of the mobile phone of Laxmi Kant Gupta @ Mangru Gupta. 6. Malkhana register is manipulated, hence, it is not reliable. 7. The statements of the witnesses are not reliable due to several contradictions, omissions and improvement. 8. P.W. 5 and 6 both have stated that they have not seen any injury on the body of the accused, whereas injury reports of the appellants which are available on the record show otherwi....
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....stated that on 14.09.2009 he was posted as In-charge S.O.G., Siddharth Nagar. On that day, when he was going towards Burdpur alongwith Constable Chandra Bhan Paswan, Constable Dinesh Kumar, Constable Yogendra Kumar, Constable Phool Chandra Chaudhari, and Constable Dilip Yadav to check smuggling, he received a secret information by a police informer, 'Mukhbir', that two persons were coming from Nepal on motorcycle having charas with them. PW-1 has further stated that believing on such secret information, he proceeded alongwith Mukhbir towards Burdpur, and as soon as he reached Madhubeniya, he saw two persons coming on a motorcycle. Seeing the police, they tried to run away from there by turning around their motorcycle, but the police party surrounded and caught them. The driver of the motorcycle disclosed his name as Sanjay Pandey and pillion rider told his name as Laxmi Kant Gupta @ Mangru Gupta. They confessed that, as they have illegal charas with them, therefore, they were running away seeing the police. They were informed that they have a right to be searched in presence of gazetted officer, however, they stated that when the police has already apprehended them, they ar....
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....d the statement of P.W.1 and the facts mentioned in the recovery memo and there is no need to repeat the same. However, during his cross-examination, he has admitted that samples were not drawn from all the 338 pieces of Charas. He has stated that the higher officers were informed by the Wireless and Mobile Phone. PW-3 S.I. Lal Bahadur Bharti, who is the Investigating Officer of this case, has stated that on 15.09.2009 he was posted at P.S. Siddharth Nagar and was entrusted with the investigation of this case. He has stated that he had inspected the place of occurrence and had prepared the site plan. He has further stated that on 22.09.2009 he had brought the recovered charas to the Court where docket was prepared and Constable Devi Sharan Pandey was entrusted with the task of taking the charas to F.S.L. Lucknow for chemical examination. He has proved the site plan as Ext.11-K and the charge sheet submitted by him as Ext. Ka-4 respectively. During his cross-examination, he has admitted that nothing was recovered from the possession of the accused Sanjay pandey, except Rs. 150/- in cash. He has stated that charas was sent to Vidhi Viggyan Prayogshala, Lucknow after 8 days by him an....
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....in this case. Only due to the reason that the prosecution witnesses are police officials, their entire evidence cannot be discarded, specially when no material discrepancy is seen in their statements. The Hon'ble Apex court in its recent judgment rendered in Baldev Singh Vs. State of Haryana, 2016 Cri. L.J. 154 has held as under: "There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness." ......... "In his statement under Section 313 Cr.P.C., the appellant had not stated anything as to why would the police foist the false case against the appellant. It is to be noted that huge quantity of poppy straw was recovered fro....
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.... speed exchange of information, some of the provisions of N.D.P.S. Act including Section 42 have to be read in the changed context. Information sent by wireless is sufficient. No prejudice was shown to have been caused to accused on account of non reduction of secret information into writing and non sending of the same immediately thereafter to the higher officer. Information of arrest of appellant and seizure of contraband had been fully reported to the local police station on basis whereof F.I.R. was drawn. Thus, there was substantial compliance of Section 42 and Section 57 of N.D.P.S. Act." A Constitution Bench of Hon'ble Apex Court in the case of Karnail Singh Vs. State of Haryana; (2009) 8 SCC 539 has held : "if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses....
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.... "culpable mental state" includes intention, motive knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purpose of this section, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. Explanation to sub-section (1) of Section 35 expanding the meaning of ''culpable mental state' provides that ''culpable mental state' includes intention, knowledge of a fact and believing or reason to believe a fact. Sub-section (2) of Section 35 provides that for the purpose of Section 35, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of the probability. Once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession. Burden of proof cast on the accused under Section 35 of the NDPS Act can be discharged through different modes. One of such modes is that the accused can rely on the materials available in the pr....