Rajasthan High Court - Jaipur
Umesh Kumar vs State on 7 September, 2009
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT UMESH KUMAR OJHA vs. STATE OF RAJ. SB Criminal Jail Appeal No. 674 of 2005 under Section 374 Cr.P.C. against the judgment dated April 13, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Gangapur City in Special Case No. 02 of 2004 convicting and sentencing the accused appellant under section under section 8/20 (2)(c) of NDPS Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer Two Years RI. REPORTABLE Date of Order : September 7, 2009 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA Miss Rajesh Kandwal, for the appellant. Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT :
The appellant Umesh Kumar Ojha filed this Jail appeal against the judgment dated April 13, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Gangapur City in Special Case No. 02 of 2004 convicting and sentencing the accused appellant under section under section 8/20 (2)(c) of NDPS Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer Two Years RI.
2. Brief facts of the case are that on March 1, 2004 at 1.45 p.m. Constable Yashpal Singh No.810 stated that when he was on watch and ward duty in Janta Express Train along with other Constables Phalsingh, Ramanlal, and Shyamsingh went to Bayana. When they were returning back in Train No. 5063 Avadh Express, on reaching Gangapurcity in General Coach one suspect having red blanket in hand was seen he was having contraband with him. Information under section 42 NDPS Act was prepared for informing to higher officers. On this information Dy S.P. Kota gave directions for proceeding as per the NDPS Act and informed that SHO Sawai Madhopur is reaching at the spot. Dulheram, Incharge PS Gangapurcity along with investigating box with Constable Yashpal Singh reached at Platform No.2 Railway Station Gangapurcity. At 6.15 p.m. from Avadh Express Ganesh Lal SHO GRP Sawai Madhopur reached at the platform, having constable with him. Information under section 42 of the NDPS Act was sent to SP Ajmer. Ganesh Lal, SHO gave Tehrir to Yashpal for bringing two independent witnesses. On which Yashpal brought Akram and Ajij witnesses. SHO obtained consent of Ajij and Akram for giving evidence in NDPS Case. Thereafter the SHO informed the accused about his legal rights that he has a right to be searched by a Judicial Magistrate or Gazetted Officer. The accused gave his consent to be searched by SHO himself. At the spot Dulheram searched Sub Inspector and nothing objectionable was with him, thereafter Ganesh Lal searched accused. Accused was having red blanket in his hand and on opening it, found two brown colour packets. Out of two packets, one packet was opened and weighed, it was One Kilogram and Fifty grams and another bag was found to be Five hundred fifty gms. On checking the material by the SHO, it was found to be Charas. From both these packets samples of 30 gms. were taken and sealed in two bags and Namuna seal was affixed and marked as A l A 2 and B 1 and B 2. Seals put on the packets were also sealed. On further searching accused one railway ticket from Kapatanganj to Baroda and one notice under Section 50 NDSPS Act and Rs. 160 were found with him. Thereafter the accused was taken to the Police Station and FIR was registered. The sealed samples were sent to the FSL and after completion of investigation, the police filed challan before the trial court. The trial court after hearing the accused framed charge under section 8/20 of the NDPS Act against him. The accused denied the charge and claimed to be tried. In support of its case the prosecution examined 10 witnesses. The accused appellant was examined under section 313 Cr.P.C. and he did not produce any evidence in defence. After hearing both the parties, the trial court vide judgment and order dated April 13, 2005 convicted and sentenced the accused appellant as indicated above.
3. Miss Rajesh Kandwal, learned counsel appearing for the accused appellant placed reliance on Prema alias Prem Singh vs. State of Rajasthan (2007 Cr.L.J. 4638) wherein this Court reduced the sentence of accused from 10 years RI to sentence already undergone by the accused, which was 7 years in that case. Fine of Rs. 1,00,000 was reduced to Rs. 10,000/-. In that case 35 Kgs. Of Poppy Straw was recovered from the vehicle of accused. The learned counsel argued only for reducing the sentence of the accused appellant and does not press for arguments on merit.
4. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the accused appellant. The trial court rightly convicted and sentenced the accused appellant. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced.
5. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of Sections 42, and 50 of the NDPS Act.
6. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief.
The proviso to sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought beforesuch a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect thecredibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. The Apex Court in Balbir Singhs case (1998 ) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ?
Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 propounded following conclusions :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;
(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial;
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. The above conclusions are not a summary of our judgment and have to be read and considered in the light of the entire discussion contained in the earlier part.
7. On the basis of the above conclusions of their Lordships of the Supreme Court, it is necessary to have a look at the evidence adduced and documents exhibited before the trial court by the prosecution.
PW.1 Netram, on March 3, 2004 was posted as Constable No.714 GRP Police Station Gangapur City. From GRP Gangapurcity two seized packets were given to him for handing over to FSL. Both packets were marked A 1 and B 1 along with other papers. Firstly he went to the office of SP GRP and got forwarding letter and thereafter reached FSL Jaipur. At FSL he deposited the packets and papers and got receipt. He stated that when packets were received by him and deposited with the FSL, were in sealed condition. In Rojnamcha Aam he entered his Ravangi and after coming back he noted his Aamad in Rojnamcha. Ex.P.1 is Ravanagi in Rojnamcha and Ex. P.2 is Aamad in Rojnamcha after returning back. Copies of Ex.P1 and Ex. P2 are Ex.P.1 and Ex. P.2 A, on which he put his signatures A to B. Receipt of FSL is marked as Ex. P.3.
PW.2 Radhey Shyam Yadav, was posted as constable in SP office at Ajmer. On March 4, 2004 he received information under section 57 NDPS Act from Police Station GRP, Gangapur City. He entered the same in Aamad and original information was receipted by him at No. 1860 dated 4.3.2004.
PW.3 Nihal Singh posted as Constable on 1.3.2004 at GRP Police Station Gangapur City. At that time Duleram and Jagdish Prasad constable were also available at Police Station. At 1.45 p.m. constable Yashpal Singh reached at the Police Station and informed that in Avadh Express one suspect was found and they had apprehension that he is having Narcotic drug and got down the suspect from Avadh Express and two constables are on watch and ward duty at the Plat form. Upon this Dulheram gave information to the higher officiers. Rapat was also marked in the Rojnamcha Ex. P.4 where he put his signature A to B. PW.4 Shivram stated that on 1.3.2004 he was posted as Constable at GRP Police Station. On that day envelop containing information under Section 42 of the NDPS Act was taken away by him to SP office. He handed over the said envelop to SP Sb. He got receipt of it on Rod (written note) Ex. P.5 where SP put his signature A to B. Ravanagi from Police Station was entered in the Rojnamcha Aam, which is Ex. P. 6, where he put his signature A to B. On returning back his Aamad was also recorded in Rojnamcha Ex. P.7 where also he put his signature. Copies of Ravanagi and Aaamd are Ex. P.6 A and Ex. P.7A.
PW.5 Ganesh Lal, SHO GRP, Sawai Madhopur stated that on 1.3.2004, DY. S.P. GRP Kota directed him on telephone that Superintendent of Police received information from Gangapur City Platform that one suspect having narcotic drug is detained. As per this direction he along with Chandan Singh reached at Gangapur City Railway Platform where Avadh Express was to reach at 6.15. At platform No.2 Head Constable Incharge Thana GRP Gangapur City Dulhe Ram with investigating kit and Constables Yashpal, Shyam Singh, Raman Lal, Phal Singh met them with one suspect, to whom asking about his whereabout he disclosed his name Umesh Kumar Joshi. Head Constable Dulheram handedover the information supplied by Yash pal Constable, witness endorsed his comments and put his signature. Constable Yash Pal Singh was given Tahrir to bring two independent witnesses, who brought two witnesses Akram and Ajij, to whom the witness asked them to become witnesses in narcotic drug case. For this Fard was prepared, which is Ex. P.8 where at place A to B is his signature and C to D and E to F are the signatures of witnesses and G to H and I to J were the signature of constables with him. Information given by Dulheram regarding suspect having narcotic drug under Section 42 of NDPS Act is Ex. P.4 where he put his endorsement C to D and E to F is his signature. After obtaining consent of the witnesses, accused Umesh Kumar was informed about his legal rights, for which Fard Ex. P.9 was prepared where A to B is his signature and C to D and E to F, G to H and I to J and K to L are the signatures of witnesses. Copy of this was given to accused. The accused was informed about his legal rights that he has a right to be searched by a Judicial Magistrate or Gazetted Officer, over which he gave his consent to be searched by Sub Inspector Ganesh Lal. Consent letter is Ex. P.10 where A to B is his signature and C to D, is signature of accused, E to F, G to H and I to J are the signatures of witnesses. Thereafter Fard seal was prepared, which is Ex. P.11, where he put his signature A to B, C to D and E to F are the signatures of witnesses and at place X seal Namuna was affixed. Thereafter the witness put himself to be searched over which no objectionable article was found with him. Fard of search was prepared which is Ex. P.12 where C to D is his signature and A to B is signature of Dulheram and E to F and G to H are the signatures of witnesses. Thereafter the accused was searched and with him two packets were found containing Charas. Dulheram weighed one packet and found weight l Kg. and 50 gms. Umesh Kumar was asked about the licence for keeping narcotic drug, to which he denied. From the packets two sampels of 30 gms were taken out and marked as A 1 and A 2.
The witness further stated that weight of another packet was also taken and it was found 550 Gms. from which two samples 30 gms. were taken for examination by FSL. The articles were marked as B 1 and B 2. All the articles and the recovered material were sealed for which seizure memo Ex. P.13 was prepared, over which he put his signature A to B, C to D is signature of accused, E to F and G to H and I to J are the signatures of witnesses and at place X namuna seal was affixed. The Namuna seal was also sealed in one brown packet for which seizure memo Ex. P.14 was prepared, over which he put his signature A to B, C to D is signature of accused, E to F, G to H are the signatures of witnesses. The accused was arrested vide Ex. P.15. Ex. P.16 is Railway ticket recovered from the accused which is from Kaptanganj to Baroda. On Ex. P.16 he put his endorsement and signature at place A to B, C to D is signature of accused, and E to F and G to H are signatures of witnesses. During search one notice under section 50 NDPS Act was also recovered. Ex.P.17 to Ex. P.23 are the copies of the chits and seals put on the seized material and samples taken from the material. After recovery of narcotic drug from the accused and after doing all formalities the accused with recovered material taken to the Police Station. Written report about it was prepared, which is Ex. P.24. FIR Ex. P.25 was registered where he has put his signature A to B. Yashpal was given notice for bringing witnesses is Ex. P.26. On 1.3.2004 Ravangi from Sawai Madhopur was made for which entries were made in the Rojnamcha at S. No.22.
PW.6 Dulheram stated that he was posted as Head Constable, at GRP, Gangapurcity on March 1, 2004. At 1.45 p.m. Constable Yashpal Singh No.810 stated that when they were on watch and ward duty in Janta Express Train along with Constables Phalsingh, Ramanlal, and Shyamsingh went to Bayana. When they were returning back in Train No. 5063, on reaching Gangapurcity in Avadh Express General Coach one suspect having red blanket in hand was seen he was having contraband with him. Information under section 42 NDPS Act was prepared and given to higher officers. On receiving information Dy S.P. Kota gave directions for proceeding as per the NDPS Act and informed that SHO Sawai Madhopur is reaching at the spot. On this, the witness with Constable Yashpal Singh along with investigating box reached at Platform No.2. At 6.15 p.m. from Avadh Express Ganesh Lal SHO GRP Sawai Madhopur reached at the platform, having constable with him. He shown the original Rojnamcha Ex. P.27 brought with him and stated A to B is his signature and C to D is signature of Yashpal. Copy of it was marked as Ex.P.27 A. Receipt from SP of information under section 42 of the NDPS Act is Ex. P.5. Fard information is Ex. P.4, over which he has put his signature G to H. Information under section 42 of NDPS Act to ADJ is Ex. P.29. Carbon copy of information under section 42 NDPS Act is Ex. P.29 where he put his signature A to B. Ganesh Lal, SHO gave Tehrir to Yashpal for bringing two independent witnesses. On which Yashpal brought Akram and Ajij witnesses. SHO obtained consent of Ajij and Akram for giving evidence in NDPS Case. Fard consent is Ex. P.8, over which he put his signature I to J. Thereafter the SHO informed the accused about his legal rights that he has a right to be searched by a Judicial Magistrate or Gazetted Officer vide Ex.P.9 over which he put his signature G to H. The accused gave his consent to be searched by SHO. Consent letter is Ex. P.10 where I to J is his signature. At the spot he searched Sub Inspector and nothing objectionable was with him, for which Ex.P.12 was prepared where he put his signature A to B. Thereafter Ganesh Lal searched accused, who is present in court. In his hand one red blanket was found and on opening it two brown colour packets were found in which one packet was opened. The material in the plastic bags was weighed which was One Kilogram and Fifty grams and another bag was containing material Five hundred fifty gms. On checking the material by the SHO, it was found to be Charas. From both these packets samples of 30 gms. each were taken and sealed in four bags and Namuna seal was affixed and marked as A l, A 2 and B 1 and B 2. Seals put on the packets were also sealed. Fard jabti of seal is Ex. P.14. On further searching accused one railway ticket from Kapatanganj to Baroda and one notice under Section 50 NDSPS Act and Rs. 160 were found with him. Thereafter the accused was taken to the Police Station and FIR was registered.
The witness stated that on that day he was also Malkhana Incharge. He deposited the sealed material in Malkhana and entries in the Register were made. Register is Ex.P.30, where A to B is signature of SHO for verification. He handed over the packets to constable Netram on 3.3.2004 where he put entries in the Register Ex. P.30 where E to F is signature of Netram and G to H is his signature. Thereafter on 6.3.2004 after depositing the sealed material in the FSL receipt was noted at entry No.1730, endorsement of it is I to J. E to F is signature of Netram and he put his signature at place G to H. Copy of Register is Ex. P.30 A. FSL report is Ex. P.31.
PW.7 Ajij son of Gafoor, independent witness (motbir) as per the prosecution case was declared hostile. He admitted his signatures on Ex. P.8 from C to D, Ex. P.9 E to F, Ex. P.10 E to F, Ex. P.11 C to D, Ex. P.12 G to H, Ex. P.13 E to F, Ex. P.14 E to F, Ex. P.15 G to H and Fard Namuna seal on Ex. P.17 to Ex. P.23 where also he admitted his signatures E to F. PW.8 Akram son of Kajod Shah, independent witness (motbir) as per the prosecution case was declared hostile. He admitted his signatures on Ex. P.8 from E to F, Ex. P.9 I to J, Ex. P.10 G to H, Ex. P.11 E to F, Ex. P.12 E to F, Ex. P.13 G to H, Ex. P.14 G to H, Ex. P.15 E to F and also on Fard Namuna seals on Ex. P.17 to Ex. P.23 where also he admitted his signatures G to H. PW.9 Yashpal Singh was Constable No.810 GRP Gangapurcity. He supported the prosecution case and stated that on 1.3.2004 he was one of the constable who had seen the suspect while on watch and ward duty. He informed at the GRP Police Station Gangapurcity about the suspect at the Railway Platform. He thereafter accompanied Dulheram at Platform No.2. Ganesh Lal gave him Tehrir for bringing two independent witnesses. He brought Ajij and Akram. Both these witnesses gave their consent for becoming witnesses in the NDPS case. Fard consent is Ex. P.26, over which C to D is endorsement put by him and E to F is his signature. Consent given by the witnesses is Ex. P.8. Ganeshlal thereafter gave notice to accused under section 50 NDPS Act. Thereafter Dulheram first searched SHO and thereafter SHO searched the accused and recovered the material Charas from the accused. The accused was arrested and Ex. P.15 was prepared over which he put his signature I to J. Namuna seal put on the sealed material Ex. P.17 to Ex. P.23, over which he put his signature O to P. PW.10 Mahesh Kumar, stated that on 2.3.2004 he was SHO GRP Gangapur City. In the night at 12.00 Ganeshlal Sub Insdpector, SHO GRP Sawai Madhopur, came at the Police Station with one accused Umesh Kumar and lodged the FIR. Report is Ex. P.24, where Police Karyawahi is C to D and at place E to F he put his signature. Chalked out FIR is Ex. P. 25 where he put his signature C to D. After registering case, on memos case number was noted in red ink. On recovered sealed material, seal of SHO GRP Gangapurcity was affixed. Ex. P.17 to Ex. P.23 are the chit and namuna seal affixed at Y place. The Railway ticket recovered from the accused is Ex. P.16. During investigation he prepared Naksa Moka Ex. P.34 where he put his signature A to B. Samples A 1 and B 1 were sent for examination to FSL vide forwarding letter, carbon copy of which is Ex. P.35 where he put his signature A to B. Along with the letter Namuna seal Ex. P.36 was also sent, which bears his signature at place A to B. Forwarding letter of SP Ajmer is Ex. P.37. Receipt received from FSL is Ex. P.3. Information under section 57 is contained in Ex. P.38, where he put his signature A to B. The Rod (written note) by which the message was sent is Ex. P.39 where also he put his signature A to B. Statement of Ajij Ex. P.32 was recorded by him where A to B was recorded by him as stated by the witness. Ex. P.33 statement of witness Akram was recorded by him and A to B portion was written as stated by witness. After investigation challan was filed by him.
In the statement under section 313 Cr.P.C. accused stated that he is innocent.
The documents produced by the prosecution may also be looked into.
Ex.P.1A is copy of Rapat Rojnamcha No.114 10.45 p.m. dated 3.5.2004 wherein entries were made regarding Constable Netram for giving information under section 57 NDPS Act to SRP Police Ajmer. Ex.P.2 A is copy of Rapat Rohjnamcha No.216 at 11.15 dated 6.3.2004 regarding Aamad of Constable Netram after handing over information under section 57 NDPS Act, where he put his signature A to B. Ex. P.3 is receipt received from the FSL after depositing the seized samples by constable Netram dated 5.3.2004. Ex.P.4 is information given by Constable Yashpal Singh under section 42 NDPS Act GRP Gangapur City dated 1.3.2004 at 1.45 P.M. Ex. P.5 information given by SHO GRP Gangapur City to SRP Ajmer dated 1.3.2004. where A to B is receipt of information in the office of SP GRP Ajmer dated 2.3.2004. Ex.P.6 A copy of Rapat Rojnamcha No.20 300 p.m. for sending information under section 42 NDPS Act through Constable Shivram No.226. Ex. P.7 A is copy of Rapat Rojnamcha No. 70 11 p.m. Aamad of Constable Shivram No.226 Ex.P.8 is consent of Motbirans obtained by SHO GRP, where A to B is signature put by SHO. C to D is signature of Ajij. E to F is signature of Akram. Ex.P.9 is copy information given to accused about his right to be searched by a Gazetted Officer or nearest Judicial Magistrate, where C to D is signature of accused Umesh and A to B is signature put by SHO. At E to F signature put by Ajij and I to J signature put by Akram. Ex.P.10 is copy of consent of Umesh Kumar accused giving his consent to be searched by Ganesh Lal, Sub Inspector, where C to D signature put by Umesh and A to B signature of SHO GRP. Ex.P.11 is description of Namuna seal to be affixed on seizure memos. Ex.P.12 is Jama Talasi of Ganesh Lal Sub Inspector before search of accused. Ex.P.13 is the seizure memo of Narcotic Drugs recovered from accused Umesh Kumar Ojha. Ex.P.14 is Fard Japti Seal after seizure of Narcotic Drug. Ex.P.15 is the arrest memo of accused Umesh Kumar. Ex. P.16 is Railway Ticket recovered from accused. Ex.P.18 to Ex. Ex.P.23 are the Namuna seal with carbon copy of slips affixed on the seized material. Ex.P.24 is copy of request by Ganesh Lal SI, to SHO GRP Railway Police Gangapur City for registering case. Ex.P.25 is copy of FIR. Ex.P.26 is copy of notice for bringing two independent witnesses given to Yashal Constable by the SHO, where C to D is report by Yashpal for bringing Ajij and Akram independent witnesses. Ex.P.27 A Rapat Rojnamcha No. 18 dated 1.3.2004 at 1.45 p.m. By Constable Yashpal Singh. Ex.P. 28 is copy of information under section 42 of the NDPS Act by SHO to Superintendent of Police Railway Ajmer dated 1.3.2004. Ex. P.29 copy of information u/s 42 NDPS Act retained in the Police Station. Ex.P.30 copy of Rapat Rojnamcha No.208 . Ex.P.31 is the report of the FSL, where the FSL reported that on microscopic and chemical examination, the sample contained in each of the packets marked A and B 1 was found to be of CHARAS. Ex.P.32 copy of statement of witness Ajij. Ex.P.33 copy of statement of witness Akram. Ex. P.34 Crime details. Ex.P.35 copy of forwarding letter sent to SP GRP, Ajmer for sending samples to FSL. Ex.P.36 Namuna seal GRP Rail Station Gangapur City. Ex. P.37 forwarding letter from SP office to FSL. Ex.P.38 copy of information sent to SP GRP Ajmer under section 57 NDPS Act. Ex. P.39 copy of Rojnamcha Rapat of Constable for information under section 57 NDPS Act.
8. I have critically examined the judgment of the trial court. The trial court based its judgment (i) compliance of the mandatory provisions of sections 42, 50 and 57 of the NDPS Act and (ii) the evidence of police personnel has been accepted on the ground that the independent witnesses accepted their signatures on the search memos but declared hostile. The material seized from the accused was proved and compliance of section 50 was made. Before proceeding as per the information, the SHO in the first instance sent report to the higher Officers. Report under section 57 of the NDPS Act was sent to the higher authorities. Thus compliance of sections 42, 50 and 57 of the NDPS Act have been made by the police. I am in agreement with the findings arrived at by the trial court.
The Apex Court in Sukhpal vs. State of Haryana (1995) 1 SCC 10, in para No.4 held as under :
4.After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties it appears to us that in the instant case, the prosecution has examined the witnesses to establish that the accused had been apprehended with a rifle of 315 bore and 109 live cartridges of such rifle. It is an admitted position that the accused had no licence or permit to possess the said rifle and cartridges at the relevant time. It is also an admitted position that the TADA Act was applicable in the area where the accused was apprehended. Accordingly, all the three ingredients as indicated in the said Constitution Bench decision, have been fulfilled in the instant case. Normally, the presence of PW 5 and PW 6 in the police chowki was not expected at that hour but PW 5 and PW 6 have given a reasonable explanation as to why they had come to the police chowki on that day and why they had waited there. We do not find any valid reason to discard the evidences adduced in the case by PW 5 and PW 6. Apart from that, the police personnel have also deposed and such depositions stand fully corroborated by the evidences of PW 5 and PW 6 and by the recovery of the rifle and cartridges. It may be indicated here that as a rule of prudence, corroboration preferably by a reliable witness is desirable. But in all cases, such corroboration cannot be insisted as a matter of course because it may not be possible in all cases to get corroboration from an independent witness. In our view, the learned counsel for the State is justified in her contention that in the instant case, firing capability of the said rifle has been found by an expert, namely, an armourer who has a special training in the subject. It is not absolutely necessary to make a test- firing for the purpose of ascertaining whether or not a rifle is capable of firing. We are, therefore, not inclined to hold that the firing capability of the said rifle has not been established in the instant case. It also appears to us that the accused was charged under Section 5 of the TADA Act but he has not given any explanation as to why and for what purpose he had possessed the said rifle and the said cartridges. Even when opportunity under Section 313 CrPC was given to the accused, no statement has been made as to why the said arms and ammunition had been kept by him at the time of his apprehension. In our view, in the facts and circumstances of the case, the accused had sufficient opportunity to explain the purpose of possession of the said arms and ammunition and to rebut the statutory presumption under Section 5 of the TADA Act but he has failed and neglected to give any explanation or evidence which may be even remotely construed as an evidence by way of rebuttal.
In the above case the Apex Court held that as a rule of prudence it is desirable that the evidence of police personnel should be corroborated preferably by a reliable witness. But in all cases, such corroboration cannot be insisted as a matter of course because it may not be possible in all cases to get corroboration from an independent witness.
The Apex Court in Brijpal vs. State (Delhi Administration) (1996) 2 SCC 676 in para 4 held as under :
4. We have looked into the depositions given in this case and the judgment given by the learned Designated Judge. It appears that the prosecution case has been established by cogent evidences given by the witnesses which are not inconsistent or contradictory. In our view, learned Designated Court has rightly held that since only the police personnel had been examined in this case, their depositions are not liable to be discarded, particularly when it is the specific case of the prosecution that they tried to procure independent witnesses from the public, but they failed in their attempt to get which independent witnesses. In the instant case, it has been established from the evidence that the pistol and cartridges were seized from the person of the appellant and after getting them properly sealed they were deposited in the Police Mal Khana, in sealed condition. The Incharge of the Mal Khana has deposed that such weapons remained intact and in sealed condition until the same were sent for being tested by the expert. So far as the question of examining of the said pistol by the expert is concerned, it appears from the depositions of the said expert that he had obtained certificate of technical competency and armour technical course from Bhopal and he had also long experience of inspection, examination and testing of the fire arms and ammunition. In our view, the said police personnel should be held to be expert in arms. The decision relied upon by Mr. Singh in Abdula Pochamma Vs. State of A.P. (1989 Supp. (2) SCC 152) in this connection is clearly distinguishable in the facts of this case. In the case of Abdula it was alleged by the prosecution that a grenade was recovered from the accused but whether the substance recovered was a grenade or not had not been examined by a proper expert and the court gave benefit of doubt by not placing implicity reliance on the testimony of an ASI that the object was a grenade. In the instant case, we have already indicated that the armorer as a matter of fact, had also fired one of the cartridges from the seized pistol which was recovered from the possession of the accused .
In Brijpal vs. State (Delhi Administration), the Apex Court held that since only the police personnel had been examined in this case, their depositions are not liable to be discarded, particularly when it is the specific case of the prosecution that they tried to procure independent witnesses from the public, but they failed in their attempt to get such independent witnesses. In the instant case the prosecution brought two independent witnesses and in their presence contraband was recovered and both the witnesses were produced in the court but they were declared hostile but they accepted their signatures on the respective memos. The trial court in these circumstances accepted their evidence in respect of the memos coupled with the statements of the police personnel.
PW.1 Netram proved documents Ex.P.1 and Ex.P.2, copies of it Ex. P.1 A and Ex.P.2 A and Ex. P.3. PW.2 Radhey Shyam proved that he handed the information under section 57 of the NDPS Act to S.P. on 4.3.2004. PW.3 Nihal Singh proved Ex.P.4 Fard information. PW.4 Shivram proved Ex. P.5, Ex.P.6 and Ex. P.7 (copy of it isEx. P.7A). PW.5 Ganesh Lal proved Ex. P.4, Ex. P.9, Ex. P.10, Ex. P.11, Ex. P.12, Ex. P.13, Ex. P.14, Ex.P.15, Ex. P.16, Ex. P. 17 to 23, Ex. P.24, Ex.P.25 and Ex. P.26. PW.6 Dulheram proved Ex. P.27, (copy of it Ex. P.27 A placed on record), Ex.P.4, Ex. P.5, Ex. P.8, Ex. P.9, Ex. P.10, Ex.P.12, Ex. P.14, Ex. P.28, Ex. P.29 and Ex. P.30A and Ex. P.31. PW.7 Ajij was declared hostile but he admitted his signatures on Ex. P.8, Ex. P.9, Ex. P.10, Ex. P.11, Ex. Ex.P.12, Ex. P.13, Ex.P.14, Ex. 15, and Ex. P.17 to Ex. P.23. PW.8 Akram was declared hostile but he admitted his signatures on Ex.P.8, Ex. P.9, Ex. P.10, Ex. 11, Ex. P.12, Ex. P.13, Ex. P.14, Ex. P.15, and Ex. P.17 to Ex. P.23. PW.9 Yashpal Singh admitted his signatures on Ex. P.8, Ex. P.26, Ex. P.15 and Ex. P.17 to Ex. P.23 and articles Al, A 2, B 1 and B.2. PW.10 Mahesh Kumar proved Ex. P.24, Ex. P.25, Ex. P.17 to Ex. P.23, Ex. P.34, Ex. P.35, Ex.P.36, Ex. P.38, Ex. P.39 and also stated that statement of witness Ajij Ex. P.32 was recorded by him as stated by him. In respect of Ex. P.33 he stated that he also recorded statement of Akram as stated by him.
The findings arrived at by the trial court thus cannot be said to be perverse. The prosecution has been able to prove the case beyond reasonable doubt against the accused appellant. The compliance of provisions of Sections 42, 50 and 57 of the NDSPS Act has also been made fully as is evident from the evidence produced by the prosecution. For compliance of Section 50 of the NDPS Act, the SHO gave in writing about legal rights of the accused appellant to be searched before the Gazetted Officer or a Judicial Magistrate, but the accused appellant stated to be tried by the SHO himself. Ex.P.9 in this respect is extracted below:
"???? ?????
??????? ???????? ?? ????? ???? ???? ????? ??? ????? ????? ??? ????? ????? ??? ???? 29 ??? ?????? ??????? ??.??.?????? ????? ???? ??????? (??.??.) ?? ???????? ?? ????? ?? ?? ??? ???? ????? ?? (??????? ?? ????????) ?? ?? ???? ?? ????? ???? ???? ???? ?? ???? ????????? ??????? ???? ??????? ??????? ?? ????? ???? ?????? ????? ????
??: ???? ????? ??????? ???????? ?? ????? ??????? ?? ???? ?????? ?? ???? ????? ??? ?? ??? ??? ??? ????? ???? ???? ????????? ????? "
Though the learned counsel for the appellant has not raised any argument about the evidence of police personnel, but since it is an appeal in order to see the correctness of the judgment delivered by the trial court, the evidence of the police personnel have also been looked into in the light of the Apex Court judgments. As per the decision of the Apex Court in the cases of Brijpal (supra) and Sukhpal (supra), the findings arrived at by the trial court are just and proper.
In the cited case Poppy Husk was recovered from the accused and he already remained in jail for 7 years and looking to the facts and circumstaces of that, this court reduced the sentence of 10 years to 7 years. But looking to the facts and circumstances of this case, the accused is not entitled for any leniency as huge quantity of charas was recovered from him.
The trial court rightly convicted and sentenced the accused appellant. The judgment of conviction and sentence of the trial court is confirmed.
9. For the foregoing reasons the appeal being devoid of merit stands rejected. The appellant who is in jail shall serve out the remaining sentence as ordered by the trial court.
(Mahesh Chandra Sharma) J.
OPPareek/