THE STATE OF UTTAR PRADESH Vs HANSRAJ @ HANSU
Bench: HON'BLE MRS. JUSTICE R. BANUMATHI, HON'BLE MS. JUSTICE INDIRA BANERJEE
Judgment by: HON'BLE MRS. JUSTICE R. BANUMATHI
Case number: Crl.A. No.-000997-000997 / 2009
Diary number: 17140 / 2006
Advocates: GARVESH KABRA Vs
NIDHI
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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.997 OF 2009
THE STATE OF UTTAR PRADESH ...APPELLANT(S)
VERSUS
HANSRAJ @ HANSU .….RESPONDENT(S)
J U D G M E N T
R. BANUMATHI,J.
1. This appeal arises out of the judgment dated
13.12.2005 in Criminal Appeal No. 3651 of 2002 passed by the
High Court of Judicature at Allahabad in and by which the High
Court has set aside the conviction of the respondent-accused
for the offence under Section 20(b)(ii) of N.D.P.S. Act and
also the conviction under Section 60 of Excise Act and also
sentence of imprisonment imposed upon the respondent-accused.
2. On 17.07.1998 wee hours at about 1.25 a.m. when PW-1 (Ram
Chandra Misra) and PW-2 (P.C. Sharma) were on patrolling duty,
they had received an information that the respondent-accused
along with another person were about to transport country-
made liquor for sale. When PW-1 and PW-2 apprehended the
respondent-accused and his companion, the respondent-accused
was found to be in possession of 2700 pouches of country made
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liquor kept in 18 plastic bags and he was also found to be in
possession of 300 grams of charas in his pocket. After the
formal search and after completion of the investigation,
charge-sheet was filed against the respondent-accused under
Section 20 of the N.D.P.S. Act and under Section 60 of the
Excise Act.
3. Upon consideration of evidence, the Trial Court convicted
the respondent-accused for the offence under Section 20(b)(ii)
of N.D.P.S Act and sentenced him to undergo R.I. for 10 years
along with fine of Rs. 1,00,000/- (Rupees one lakh) for
default. The respondent-accused was also convicted for the
offence under Section 60 of the Excise Act and was sentenced
to undergo R.I. for one year. In appeal, the High Court has
set aside the verdict of conviction and also sentence of
imprisonment imposed upon the respondent-accused as aforesaid
in para 1.
4. We have heard Mr. Garvesh Kabra, learned counsel for the
appellant-State as well as Ms. Nidhi, learned counsel
appearing for the respondent-accused and perused the impugned
judgment and the materials on record.
5. The High Court acquitted the respondent-accused primarily
on the ground that there was delay in sending the sample to
the laboratory and that there was no evidence to show how and
in what condition the recovered contraband and the samples
were kept in the meanwhile. The recovery of the charas was on
17.07.1998 and the sample packets were received in the
laboratory only on 22.08.1998. Learned counsel appearing for
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the State has drawn our attention to the evidence of PW-1,
Sub-inspector (Ram Chandra Misra) and PW-2 (P.C. Sharma) who
in their evidence stated that the substance which was
recovered and sealed were deposited in the Police Station
Godown and later produced before the Court. Though the
witnesses have stated that the substance was deposited in the
Police Station Godown and later produced before the Court as
pointed out by the High Court that there is no evidence to
show that as to how and at what time and date the samples were
taken by the carriers for analysis. It has also come on
evidence that constables viz. Asharam and Karam Chand have
taken the sample of charas and liquor packets respectively to
the laboratory, were also not examined by the prosecution.
6. The High Court has also pointed out that it was
incumbent on the part of the prosecution to lead the evidence
to show as to how and in what conditions the articles were
preserved at the Police Station and how safely they were taken
from there to the respective chemical examiners by its
carriers. Learned counsel for the State has submitted that the
investigating officer in this particular case has passed away
and, therefore, the prosecution was handicapped in adducing
the necessary evidence. Notwithstanding the death of the
Investigating Officer, nothing prevented the prosecution from
examining any other witness who was associated with the
investigation and adducing necessary evidence to prove as to
how and in what conditions the articles were preserved at the
Police Station/Police Station Godown.
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7. Upon appreciation of evidence, the High Court has
taken a view that guilt of the accused has not been
established and the same cannot be said to be unreasonable one
or suffering from perversity warranting our interference in
the order of acquittal.
8. In the result, the appeal is, accordingly,
dismissed.
….......................J. [ R. BANUMATHI]
…......................J. [INDIRA BANERJEE]
NEW DELHI 12TH SEPTEMBER, 2018