Moot Problem

Umakant and another v. State of Harinagar

This is an appeal against the conviction order passed by the Special Court Kanol in a
case registered vide FIR No. 120/2016 sentencing accused for offences u/s 20 read
with S. 31of the Narcotic Drugs and Psychotropic Substances Act, 1985.

Prosecution case before the Special Court:

1) On 18th August 2016 Umakant, was driving his Maruti Gypsy having registration number
HN34-0420 from Malal to Namoor. He was accompanied by Saju Ram, travelling in the same
vehicle. About 8:30 pm, the said vehicle was signaled to stop at a Police Naka near Bhagaul on
Bhagaul-Muhshehar Road by the police party on duty. Police team deployed at Naka duty was
comprised of SI Naresh Kumar, HC Dile Ram, Constable Prem Singh and Constable Ram Lal of Police
Station, Bhagaul.

2) Constable Ram Lal asked Umakant about the journey and asked him to come out of the
vehicle and open its rear door for search. Umakant opposed and said to Ram Lal that he may be
allowed to proceed as he is in hurry to attend an urgent work at home (Namoor). Ram Lal reported
the matter to SI Naresh Kumar, who himself proceeded towards vehicle along with Head Constable
Dile Ram. SI Naresh Kumar told Umakant that vehicle was needed to be searched and Umakant had
to open the rear door of the vehicle. Umakant came out of the vehicle along with Saju Ram and
opened the rear door of the vehicle. Search of the vehicle was conducted by HC Dile Ram in the
presence of SI Naresh Kumar.

3) A blue backpack/bag was lying in the dikki of the vehicle. SI Naresh Kumar asked Umakant
about the bag and the items in the bag. Umakant told to SI Naresh Kumar that bag contained
nothing else but only clothes. SI Naresh Kumar asked him to open the bag but Umakant requested
that he is in hurry so he should be allowed to go otherwise he will be late in reaching the
destination for an urgent work. The police party became suspicious about the contents of the bag
due to the reluctance of Umakant in opening the bag. SI called on phone one Mr. Sunder Singh a
resident of nearby village Hathithan and requested him to come on the spot. Meanwhile, one Mr.
Jaswant, who was on his way to Muhshehar in his Maruti Suzuki Alto Car bearing Registration No.
HN34-1828 was stopped at Naka by the Police party. Mr. Jaswant was ordered by SI Naresh Kumar
to get down of the vehicle. In between Mr. Sunder Singh reached on the spot. Both Sunder Singh and
Jaswant were asked by Sub Inspector Naresh Kumar to witness the search of bag found in the
vehicle of Umakant.

4) During the search of the bag one polythene packet was found containing substance like
charas of about two Kg (2Kg.). While the police party was busy in opening the bag, Umakant slipped
away from the spot and could not be found by the police party. However, Saju Ram was detained by
SI Naresh Kumar. A recovery memo of one packet of the contraband substance was prepared which
was signed by Sunder Singh and Jaswant as independent witnesses. When Saju Ram was asked by
the police about the recovered substance, he told that he was accompanying Umakant from Malal
but he does not have knowledge about the narcotic found in the vehicle under seize.

5) Thereafter, SI Naresh Kumar ordered head constable Dile Ram for personal search of Saju
Ram. Personal search of Saju Ram was done after asking him that "Do you agree to be searched here
otherwise you will be taken to the Gazetted Officer or the Magistrate?" Saju Ram submitted himself
for search to HC Dile Ram saying that he has done nothing. During search, apart from the personal
belongings, charas like substance of about 100 grams, covered in a piece of polythene was found
from the pocket of pant/trouser of Saju Ram. Thereafter a search memo was prepared and signed
by independent witnesses Sunder Singh and Jaswant and also by SI Naresh Kumar and HC Dile Ram
with respect to recovery of the contraband from the person of Saju Ram.

6) The recovered material and Maruti Gypsy vehicle HN34-0420 were taken to Police Station
Bhagaul, along with Saju Ram in custody. Registration documents were taken out of the vehicle and
inspected by the police party to find out the owner of the vehicle. After the inspection of the
documents, it was found that Maruti Gypsy HN34-0420 is owned by Mrs. Sarla resident of VPO
Namoor, District Kanol, Harinagar.

7) The quantity of the Narcotic substance (Charas) recovered from the bag placed in the
Maruti Gypsy HN34-0420(one Packet) and also the wrapper recovered on personal search of Saju
Ram were weighed separately, which weighed 1802 gms and 112 gms respectively. The matter was
reported to Inspector Joginder Singh, Officer In-charge, Police Station Bhagaul.

8) FIR was recorded at Police Station Bhagaul u/s. 20 and 29 of the Narcotic Drugs and
Psychotropic Act, 1985 vide FIR No. 120/2016 against Umakant, Saju Ram and Sarla, on 19th August
2016 at 10:00 am. The case was handed over for investigation to Sub Inspector Sanjiv Sharma of
Police Station Bhagaul by Inspector Joginder Singh, Officer In-charge, Bhagaul Police station.
Accused Umakant was arrested from his house at VPO Namoor, District Kanol, Hiranagar in the
evening of 19th August 2016. Two sealed samples from each packet were sent to Forensic Science
Lab Julanga on 26th August 2016. During the investigation the following facts were recorded by
Investigation officer (IO):

(i) Umakant along with his family members including his wife Lovely, elder son Rakesh aged
10 years and younger son Roshan aged 8 years were on pilgrimage to Char Dham Yatra, Kabir
Dham from 4th August 2016 to 17th August 2016 in Maruti Gypsy HN34-0420. Umakant and his
family members came back to Namoor on the evening of 17th August 2016. The Maruti Gypsy was
owned by Mrs. Sarla mother of Umakant.

(ii) Umakant did not have any established business, profession or job to earn his livelihood. He
had no settled way of life even then he was leading a lavish and comfortable life, residing in a
duplex at VPO Namoor, District Kanol, Harinagar.

(iii) Umakant went to Malal to visit the house of Saju Ram in the afternoon of 18th August 2016
in Maruti Gypsy vehicle No. HN34-0420.

(iv) While returning from Malal to Namoor, Saju Ram accompanied Umakant. Saju Ram had
agreed to sell off the consignment of charas brought from Namoor by Umakant. Umakant delivered
a sample of the charas to Saju Ram during the return journey to Namoor from Malal on 18th August
2016.

( v) One packet of Charas weighing total 1802 grams was recovered from the vehicle Maruti
Gypsy Registration no. HN34-0420 owned by Sarla and in the possession of Umakant during search
at Police Naka on Bhagaul-Muhshehar Road, on 18th August 2016. 112 grams of charas was
recovered during personal search of Saju Ram. The FSL report of the samples of the contraband
seized confirmed it to be charas.

(vi) Police report revealed that Saju Ram have very good acquaintances with local hotel owners.
The Police Report also revealed that Saju Ram had earlier been convicted for selling charas in 2002.
He was sentenced to rigorous imprisonment for 5 years and a fine of Rs. 50000/- under Section 20
of the NDPS Act, 1985.

(vii) The police filed Challan u/s 173 Cr. P.C. on 15th January 2017 against Umakant, Saju Ram
and Sarla accused for the offences u/s 20 and 29 of the NDPS Act, 1985.
9) Umakant accused no. 1, and Saju Ram accused no. 2, remained in custody during
investigation. However, Mrs. Sarla, accused no. 3, was on bail. On submission of Police Report u/s
173 Cr. P.C., copies of the documents were given to the accused. The trial court framed charges
against all accused u/s 20 and 29 of the NDPS Act, 1985. All the accused did not plead guilty and
contested trial.

10) During trial, the Prosecution examined Sunder Singh as PW-1 proving recovery memo Ex.
PW-1/A, PW-2 Jaswant who turned hostile, Sub Inspector Naresh Kumar as PW-3, Head Constable
Dile Ram as PW-4, MHC Prakash Chand as PW-5 who tendered in evidence the daily diary reports
Ex. PW-5/1-4 of Naka, deposit of case property, sending the same to FSL and return thereof
confirming substance in the samples as charas respectively, Sanjiv Sharma, IO as PW-6 who
tendered in evidence the statement of Jaswant recorded under section 161 truly as per his version
as PW-6/A and reports of FSL as Ex. PW-6/B & C, the ownership proof (Copy of RC) of vehicle HN-
34-0420 as owned by Mrs. Sarla, accused no. 3, was presented as Ex. PW-6/D. SHO Joginder Singh,
PS Bhagaul was examined as PW-7 regarding preparation of Police-challan. Prosecution also
submitted the copy of the judgment of the Court regarding conviction of Saju Ram u/s 20 of the
NDPS Act, in 2002, but it was not marked. Opportunity to cross examine all the witnesses was given
to the defence. The statements of the accused persons were recorded u/s 313 of the Code of
Criminal Procedure, 1973. In reply to the questions by the court, all the accused denied the
prosecution version. The court also put the questions to accused no. 2 Saju Ram about his previous
conviction, which he denied.

Defence case before the trial court:

11) That all the accused were falsely implicated by the police. It was denied that there was any
search or seizure by police at Naka duty on 18th August 2016.

12) It was pleaded that accused no. 1 Umakant had a dispute regarding boundary wall (land
dispute) of his house in VPO Namoor, District Kanol, Harinagar with one Maheswar Singh. Umakant
went on trip to Kabir Dham with his family, during school vacations of his children, from 4th August
2016 to 17th August 2016, Taking benefit of the absence of Umakant, Maheswar Singh encroached
upon part of the land of the house owned by Umakant, by constructing a wall. Uday Singh who was
examined as DW-2, a neighbour of Umakant, deposed before the court about said encroachment.

13) Umakant went to Bhagaul Police Station on 18th August 2016 at about 10:00 am to lodge
complaint against Maheswar Singh for the said encroachment of his land. Umakant met Inspector
Joginder Singh, Station House Officer of Bhagaul Police Station to lodge his complaint against
Maheswar Singh. Inspector Joginder Singh marked his complaint to Sub-Inspector Naresh Kumar
for necessary action. Copy of the complaint was submitted to the court.

14) When Umakant contacted Sub Inspector Naresh Kumar at 11 am on 18th August 2016, Sub-
Inspector Naresh Kumar told Umakant that he was busy in some other matter and Umakant could
see him in the evening, and at that time he would be at Naka Duty on Bhagaul -Muhshehar Road.

15) Thereafter Umakant went to the house of Saju Ram, his brother-in-law, at Malal. Umakant
asked Saju Ram to accompany him to Bhagaul as he got dispute with Maheswar Singh and he
needed his help. On their return journey from Malal to Bhagaul at about 8:00 pm on 18th August
2016, Umakant and Saju Ram halted at Police Naka on Bhagaul-Muhshehar Road, to see Sub-
Inspector Naresh Kumar regarding Umakant's complaint against Maheswar Singh.

16) Defence pleaded that the Sub-Inspector Naresh Kumar was out to favour Maheswar Singh
as he was an influential person with political links. Both Umakant and Saju Ram were taken to
Bhagaul Police Station along with their vehicle and were put in the lock up. Thereafter accused in
the present case were falsely implicated for the offences under NDPS Act.

17 DW-1 Jaswant deposed before the trial court that he had not witnessed any search or
seizure at police Naka on Bhagaul -Muhshehar Road on 18th August 2016. But police got his
signatures on some papers, on 19th August 2016 by calling him at Bhagaul Police Station. He did not
know what was written on those papers.

18) Defence also pleaded before the trial court that Sunder Singh was a gambler and a pawn of
the police. He remained witness in many cases at the behest of Police, as and when required by
Police. It was also contended that Mr. Sunder Singh is found sitting with the police personals.

19) The trial court after considering all the material on record convicted Umakant accused no. 1
and Saju Ram accused no. 2 u/s 20 of NDPS Act. Umakant was sentenced with rigorous
imprisonment of 15 years and a fine of Rs. One lakh (100000/-) and in default of payment of fine a
further rigorous imprisonment of six months under section 20 of NDPS Act, 1985. Accused no. 2
Saju Ram was sentenced to rigorous imprisonment of 15 years and a fine of Rs. One Lakh Fifty
Thousand (150000/-) u/s 20 read with Section 31 of the NDPS Act, 1985. In default of payment of
fine Saju Ram was to undergo a further term of rigorous imprisonment for one year. Accused no. 3
Sarla was acquitted.
 An appeal is preferred by both Umakant and Saju Ram appellants before the Hon'ble
Harinagar High Court. In the grounds of appeal the appellants pleaded that the trial court has failed
to rightly appreciate the facts of the case where the prosecution has utterly failed to prove the
offences against them. The appellants further pleaded that they had been falsely implicated in the
case. The procedure alleged to be adopted in search and seizure does not stand the scrutiny of law,
and it also does not satisfy the safeguards provided under S. 50 of the NDPS Act, 1985. It is also
alleged that the trial court has taken the factum of previous conviction of Appellant Saju Ram
without framing charges for that and proper evidence on record.

Argue the case on behalf of Appellants and Respondent.

Argue the Appeal on the basis of following issues:

1. Whether the present appeal is maintainable or not?