Uttarakhand High Court
Man Mohan Alias Bhuri vs State Of Uttaranchal on 15 May, 2002
Equivalent citations: 2003CRILJ4506
Author: Irshad Hussain
Bench: Irshad Hussain
JUDGMENT Irshad Hussain, J.
1. The appellant was tried in the Court of Special/Sessions Judge, Pauri Garhwal for an offence punishable under Sections 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) on the allegation that he was found in possession of 80 grams of Charas without licence at about 7.00 p.m. on 14-11-1999 near Siddh Bali Mandir within the local limits of Police Station Kotdwar district Pauri Garhwal.
2. In order to prove its case, prosecution relied upon the evidence of five witnesses, out of which Sub-Inspector Nain Singh Ramola (P.W. 1), the complainant of the case proved the factum of the search of the person of the appellant and the recovery of 80 grams of Charas. He also proved that the recovery and arrest was effected vide Memo. (Ext. Ka. 1). At the time of the arrest and recovery Constable Sompal Singh (P.W. 2) was also present and he corroborated the evidence of P.W. 1. They both have also Identified the seized contraband (Material Exts. III to V) which was in the form of two globules and one stick. The investigation was conducted by Sub-Inspector Rajender Singh (P.W. 3) who visited the scene of the occurrence and recorded the statements of the witnesses before submission of charge-sheet (Ext. Ka.6) against the appellant. The seized contraband was produced by him in sealed state before the Court when it was sent to Chemical Examiner vide letter (Ext. Ka.5). The F.I.R. of the case was registered at the police station and the check F.I.R. was prepared by Head Constable Rajendra Prasad (P.W. 4). The entry of the registration of the case was also made in the general diary vide report (Ext. Ka.3). The contraband seized from the appellant was sent through Constable Mahesh Chandra (P.W. 5) to the Chemical Lab for analysis on 14-11-1999 and this witness gave out that the contraband was duly received and was delivered in that very State at the Lab and that none was permitted to tamper with the seals of the contraband. The report of chemical analyst was exhibited as, Ext. Ka.7.
3. The trial Court believed the evidence of both the witnesses of the arrest and seizure of contraband from the appellant and opined that 70 grams of Charas for which the appellant had no authority to keep with him, was recovered and that since there was neither contravention of the provisions of Section 50 nor of Section 57 of the Act, the charge levelled against the appellant-accused stands proved beyond doubt and accordingly convicted and sentenced him to undergo rigorous imprisonment for ten years and fine of Rs. One lac under Sections 8/20 of the Act.
4. Heard the learned Amicus Curiae and the learned A.G.A.
5. The learned Amicus Curiae assailed the conclusions of the learned trial and submitted that mandatory provision of Section 50 of the Act has not been complied with because the appellant had been searched first of all and thereafter he was informed of his right to be searched before a Gazetted Officer or a Magistrate. To support the contention, attention was drawn to the evidence of P.W. 1 and P.W. 2 as well as the memo of arrest and seizure (Ext. Ka.2). No doubt, the appellant-accused was informed of his right that if he wanted, he could be searched before the Gazetted Officer or the Magistrate after his search had already been made, but it happened so because there was no prior information with the police party that appellant-accused would be carrying contraband Charas at the place of the occurrence. The interception of the appellant-accused on suspicion was unexpected and per chance and if out of suspicion he had been searched before informing of his right, it cannot be expected that the mandatory provision of Section 50 of the Act has not been complied in this case. Learned trial Court has also taken similar view and in the peculiar circumstances of the case, I am also not inclined to find favour with the submission of the learned Amicus Curiae that the non-compliance of the provision of Section 50 of the Act vitiates the conviction of the appellant-accused.
6. It was also submitted by the learned Amicus Curiae that the requirement of Section 50 of the Act was not complied with inasmuch as full report of the particular of arrest and seizure was not sent to the superior officer within 48 hours of the arrest. P.W. 1 has not been cross-examined on this point and the learned trial Court was thus, of the view that there is no material on record which would indicate non-compliance of the said provision of the Act. I find no material on record to differ with the opinion expressed by the learned trial Court. Moreover, the provision of Section 57 of the Act is not mandatory and under similar facts and circumstances the submission on behalf of the appellant-accused was found untenable by the Hon'ble Supreme Court, in the case of Rangiram v. State of Haryana, (2000) 40 All Cri C 1004 : (2001 Cri LJ 4945). In short the submission so made by the learned Amicus Curiae has no force and trial and conviction of the appellant cannot be said to be bad in law.
7. It was further submitted on behalf of the appellant that no public witness of the arrest and seizure was taken and this aspect of the matter also creates grave doubt in the prosecution version and the evidence of the witnesses. This submission also carry no conviction because both the witnesses of the fact P.W. 1 and P.W. 2 categorically stated that despite efforts, no public witness could be procured at that time and there is nothing in their evidence as may, in any way, assail their reliability. The evidence of both these witnesses proved beyond doubt, the fact of recovery of contraband from the possession of the appellant at the time of his arrest at 7.00 p.m. on 14-11-1999.
8. According to the prosecution witnesses and the memo (Ext. Ka.2), the weight of recovered Charas was 80 grams whereas the weight of the said contraband was found to be only 70 grams by the Chemical Examiner. The weight of the contraband recovered from the appellant was mentioned By approximation in the memo of recovery and arrest without actual weighment and if the weight of the same was found less, it would not affect the credibility of the prosecution version and reliability of the evidence produced in the case. On this score also, the case of the prosecution cannot be viewed with suspicion.
9. For the above reasons and discussion I come to the definite conclusion that the charge against the appellant-accused was rightly found to have been proved beyond doubt by the learned Special/Sessions Judge and there are no cogent grounds to interfere with the judgment of conviction of the appellant under Section 8/20 of the Act.
10. So far as the quantum of punishment is concerned, amendment in the provisions of the Act have been effected by Act No. 9 of 2001 and now the quantum of punishment has been reduced in cases of recovery of contraband in small quantity, the benefit of which has to be extended to the appellant-accused. In exercise of the powers conferred by Clauses (vii-a) and (xxiii-a) of Section 2 of the N.D.P.S. Act, 1985 and in supersession of earlier notification, the present Table mention small and commercial quantity of various substances and on the basis of the quantity mentioned in the Table, the quantum of the punishment, as submitted by the learned Amicus Curiae need to be reduced. At Sl. No. 23, the 'small quantity' and 'commercial quantity' of Charas have been mentioned in Column Nos. 5 and 6 of the Table. Small quantity of this contraband is mentioned as 100 grams, whereas the commercial quantity mentioned is 1 Kg. From the possession of the appellant 70 grams of Charas was recovered and in view of the above entry, the case of the appellant relate to small quantity of Charas for which the punishment now provided is rigorous imprisonment for a term which may extend to six months or with fine which may extend to ten thousands rupees or with both under Sub-clause (A) of Section 20 of the Act. The appellant in the peculiar circumstances of the case deserves to be given benefit of the said amended provision and there is, thus, need to modify the sentence awarded against him by the learned Special/Sessions Judge.
11. Appellant-accused was arrested on 14-11-1999 and since then he is in custody, meaning thereby that he is in jail for the last about 21/2 years. In view of this, the sentence for the period already undergone will be sufficient to meet the ends of justice and the judgment and order of the learned Special/Sessions Judge need to be modified accordingly.
12. Appeal is partly allowed. Conviction of the appellant Manmohan Singh alias Bhuri under Section 8/20 of the Act is affirmed. However, the sentence of R. I. for 10 years and fine of Rs. one lac is set aside and the appellant is sentenced to the period of detention already undergone. He shall be released forthwith if not wanted in connection with any other case.
13. Learned Amicus Curiae shall get Rs. 1500.00 as fee.