Allahabad High Court
Sergei Ovchinniko Siarhei Auchynnikov vs State Of U.P. on 19 July, 2019
Equivalent citations: AIRONLINE 2019 ALL 1202
Author: Krishna Pratap Singh
Bench: Krishna Pratap Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 75 Case :- CRIMINAL APPEAL No. - 5247 of 2017 Appellant :- Sergei Ovchinniko Siarhei Auchynnikov Respondent :- State Of U.P. Counsel for Appellant :- Sanjay Sharma,Hansraj Singh Bist,Narsingh Pandey Counsel for Respondent :- G.A. Hon'ble Krishna Pratap Singh,J.
This Criminal appeal has been filed against a judgement dated 24.11.2016 and order dated 26.11.2016 passed by the learned Additional Sessions Judge, Fast Track Court No. 1, Maharajganj in Special Case No. 04 of 2015 arising out of Case Crime No. 1207 of 2014, under Sections 8/20/23 of Narcotic Drugs and Psychotropic Substances Act (Hereinafter referred to as 'the NDPS Act"), police station Sonauli, district Maharajganj whereby the learned Judge convicted and sentenced the appellant to eleven years rigorous imprisonment and a fine of Rs. 100,000/- (rupees one lac) under Section 8/20(b)(ii)(C) of the NDPS Act and eleven years rigorous imprisonment and a fine of Rs. 100,000/- (rupees one lac) under Section 23(c) of NDPS Act. In default of payment of fine, the accused appellant was further directed to undergo one years additional sentence on both the count.
However, both the sentences were directed to run concurrently.
In short compass, the facts of the case are that a complaint was filed by SI Brijesh Kumar, Officer-in-charge of Out Post Sonauli at the police station Sonauli, district Maharajganj to the effect that on 20.11.2014 when he along with Constable Umesh Chandra Yadav, for checking the suspected vehicles, objects and persons, reached Indian Gate situated at "No Mens Land" within limit of Sonauli, where Constables Abhimanyu Mishra and Ram Kripal Yadav were already present on duty. On the east of the Indian Gate, SI Lal Bahadur Singh Rathor, Head Constable Vijay Kumar, Constables Mangal Singh and Dinesh Kumar Gautam of the armed forces were also checking the persons entering into the Indian Border from the side of Nepal. At about 7.00 PM, a foreign national entered in India from Nepal. On the basis of suspicion the SSB force stopped him and on search of his luggage, illegal Charas was found hidden in the bag. Thereafter SI LaL Bahadur Singh Rathor of SSB called the complainant along with his fellow constable and told them about possession of Charas by the applicant. Thereafter all the police personnel took mutual search of each other to ascertain that no body has any objectionable articles. The applicant was taken into custody. On being asked by the police personnel, he disclosed his name as Sergei Opinikova, son of Roma, resident of House No. 10-65 Street Ulista Borevicha city Baranovichi, Country Belarus. Then the complainant SI Brijesh Kumar Singh asked him in English that he is free to give his search in the presence of a Gazetted Officer or a Magistrate, to which he replied that he is having Charas, which he bought it from Nepal and hid in his bag to be sold in other countries. When the bag was opened Charas was recovered. The accused has given his consent in writing which has separately been prepared. Electronic weighing machine was brought from SSB Camp by Constable Mangal Singh of SSB. The weight of recovered Charas was found 5 Kilograms and 300 grams and estimated value of Charas was about Rs. 5,50,000/-. During the search proceedings although several persons have collected at the spot, but no body was ready to be the witness. Sample of about 100 grams was taken out from the recovered contraband, sealed and memo thereof was prepared and remaining contraband was sealed separately.
On the basis of the aforesaid complaint, a case was registered at Case Crime No. 1207 of 2014, under Sections 8/20/23 of NDPS Act, police station Kotwali, Sonauli, district Maharajganj vide chik FIR No. 94 of 2014 on 20.11.2014 at 8.50 PM.
After the registration of the case, investigation of the case was entrusted to PW-3, SI Ram Saran Yadav, who recorded the statement of FIR writer, Head Muharrir Ramanuj Yadav and thereafter he recorded the statement of the accused, Sergei Ovchinniko Siarhei Auchynnikov. On 22.12.2014, he recorded the statement of the informant, Brijesh Kumar Singh and prepared site plan on his pointing out, which he proved as Ext. Ka-4. On 20.12.2014, he received the copy of Forensic Science Laboratory, in which recovered contraband was found as Charas, which he proved as Ext. Ka-5. After completing the investigation, he submitted charge sheet against the accused-appellant on 21.12.2014, which he proved as Ext. Ka-6.
Learned Additional Sessions Judge/Fast Track Court, Maharajganj vide order dated 10.8.2015 framed the charges against the appellant under Sections 8/20/23 IPC, which were read over and explained to the accused-appellant. However, the accused pleaded not guilty of the charges and claimed to be tried.
In order to bring home guilt of the appellant, the prosecution has examined as many as five witnesses. PW-1, SI, Brijesh Kumar Singh was the complainant of the case, PW-2, Lal Bahadur Singh Rathor, Inspector SSB, PW-3 SI Ram Saran Yadav, the investigating officer of the case, PW-4, Constable Ram Kripal Yadav and PW-5, Head Muharrir Ramanuj Yadav, who prepared Chik FIR.
PW-1, SI Brijesh Kumar Singh is the complainant of the case. He reiterated the versions given in the complaint.
PW-2, Shri Lal Bahadur Singh, Inspector SSB, who is a member of the arresting party, deposed in his examination-in-chief that on 20.11.2014 at 19.00 hours one person, who was coming from Nepal, was stopped for a routine checking. When the chain of the bag of that person was got opened, Charas was found under the articles kept in the bag. PW-1, Brijesh Kumar Singh, who was at about 20 paces at the police out post, and was busy in checking, was told about the possession of Charas by the accused. On being asked, he told the raiding party that he had bought Charas from Chitwan, Nepal. On being told about his right that he can be searched before the Gazetted Officer or a Magistrate, the accused stated that "I am agree. No Objection." Then his luggage was searched and Charas was found.
PW-3, SI Ram Saran Yadav was the investigating officer of the case. He investigated the case and submitted charge sheet against the appellant. His evidence in detail has already been discussed above.
PW-4, Constable Ram Kripal Yadav, who was a member of the arresting team, deposed in his examination-in-chief that on 20.11.2014 he was posted as Constable at the police station Sonauli. On that date he was posted at police out post, Sonauli and Constable Abhimanyu was with him. At that time officer-in-charge of police out post, Sonauli came there with his fellow constable Umesh Yadav and took them with him and then they started routine checking of the suspected vehicles/persons/articles at India Gate, situated at Nepal border. At some distance, SI Lal Bahadur Singh Rathor of SSB along with 3-4 police personnel were also checking the suspected vehicles/persons. At that time one person came from the side of Nepal. When the bag of the aforesaid person was checked, Charas was found inside it. On being asked, he disclosed his name as Sergei Ovchinnikov of Belarus. He told about the contraband in his bag as Charas, which he bought from Nepal. He was told about his right under the NDPS Act, but he declined to be searched before a Gazetted Officer or a Magistrate.
PW-5, Head Muharrir, Ramanuj Yadav, deposed in his examination-in-chief that on 2011.2014, he was posted at Police Station Sonauli, district Maharajganj as Head Muharrir. On that date on the basis of recovery memo prepared by PW-1, SI Brijesh Kumar Singh he prepared chik FIR at case crime No. 1207 of 2014 under Section 8/20/23 NDPS Act, PS Sonauli, district Maharajganj After the closure of prosecution evidence, the statement of the accused-appellant was recorded under Section 313 Cr.P.C., in which he denied the charges levelled against him and claimed to be tried.
However, learned Additional Sessions Judge (Fast Track Court No. 1) Maharajganj after hearing learned counsel for the parties and after assessing and evaluating the evidence on record, convicted and sentenced the appellant as indicated herein above.
Hence, this appeal.
Heard Shri Nar Singh Pandey, learned counsel for the appellant and Shri G.P. Singh, learned Additional Government Advocate and perused the record of the case.
Learned counsel for the appellant contended that provisions of Section 50 of the NDPS Act were not complied with while making search of the accused-appellant. In support of his contention learned counsel for the appellant has relied upon the Constitution Bench judgement of Hon'ble Apex Court in State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172, Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011)1 SCC 609, and Ashok Kumar Sharma Vs. State of Rajasthan, (2013)2 SCC 67.
Learned counsel for the appellant further submits that all the witnesses are police official and no independent witness was examined, which makes the entire prosecution story doubtful. Learned counsel for the appellant also submits that weight of the recovered Charas was not proved.
On the other hand, learned Additional Government Advocate submits that the prosecution has successfully proved its case beyond the hilt and no interference is required with the impugned order of conviction and sentence.
The first limb of submission of learned counsel for the appellant is for non-compliance of Section 50 of the Narcotic Drugs and Psychotropic Substance Act, 1985.
Before adverting to the submission of learned counsel for the appellant, it would be useful to quote Section 50 of the NDPS Act.
Conditions under which search of persons shall be conducted--(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
A bare reading of Section 50 of the Act shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container of bag or premises. The language of section is implicitly clear that the search has to be in relation to a person as contrast to search of premises, vehicles or articles.
It is the case of the prosecution that although the alleged contraband was recovered from the bag, which the appellant was carrying, yet the appellant was apprised of his right to be searched in the presence of either a Magistrate or a Gazetted Officer, but despite telling him about his legal right available to them under Section 50 of the NDPS Act in relation to search, the appellant tendered his consent in writing that he may be searched by the raiding party.
In the instant case, alleged contraband was recovered from the bag, which the appellant was carrying and not from his body. In the present case the complainant PW-1, SI Brijesh Kumar, Officer-in-charge of Out Post Sonauli at the police station Sonauli, district Maharajganj deposed that on 20.11.2014 when he along with Constable Umesh Chandra Yadav, for checking the suspected vehicles, objects and persons, reached Indian Gate situated at "No Mens Land" within limit of Sonauli, where Constables Abhimanyu Mishra and Ram Kripal Yadav were already present on duty. On the east of the India Gate, SI Lal Bahadur Singh Rathor, Head Constable Vijay Kumar, Constables Mangal Singh and Dinesh Kumar Gautam of the armed forces were also checking the persons entering into the Indian Border from the side of Nepal. At about 7.00 PM, a foreign national entered in India from Nepal. On the basis of suspicion the SSB force stopped him and on search of his luggage, it was found that illegal Charas was hidden in the bag. Then the complainant SI Brijesh Kumar Singh asked him in English that he is free to give his search in the presence of a Gazetted Officer or a Magistrate, to which he replied that he is having Charas, which he bought it from Nepal and hid in his bag to be sold in other countries. When the bag was opened Charas was recovered. The accused has given his consent in writing which has separately been prepared. Evidence of PW-1, SI Brijesh Kumar was fully supported by PW-2, Inspector SSB, Lal Bahadur Singh, and PW-4, Constable Ram Kripal Yadav in their evidence.
Since, in this case recovery was made from the bag, which the appellant was carrying and not from the body of the appellant, provisions of Section 50 of the NDPS Act are not attracted and, therefore, the judgements relied upon by the learned counsel for the appellant is of no help to the appellant.
The Constitution Bench in the case of State of Punjab Vs. Baldev Singh, 1999 (6) SCC 172 (relied upon by the learned counsel for the applicants) has held thus:
"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"
In State of Himachal Pradesh Vs. Pawan Kumar, (2005) 4 SCC 350, Hon'ble Supreme Court held as under:
" A bag, briefcase or any such article or contained, etc. can under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body or a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these article within the ambit of word "person" occurring in Section 50 of the Act."
In Kalema Tumba Vs. State of Maharashtra and another, JT 1999 (8) SC 293, Hon'ble Supreme Court held that if a person is carrying a bag or some other article with him and narcotic drug or the psychotropic substance is found from it, it cannot be said that it was found from his `person'. In this case heroin was found from a bag belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a Gazetted Officer or a Magistrate.
In view of the aforesaid, Section 50 of the Act have no application on the facts and circumstances of the present case as Charas was allegedly recovered from the bag, which was being carried by the accused-appellant.
To appreciate the second limb of submissions of the learned counsel for the appellant, I have scrutinized the evidence brought on record. It is noticeable that PW-1, complainant SI Brijesh Kumar Singh stated that when accused-appellant was arrested, several persons have rushed to the spot and when they were requested to be the witness of recovery, they did not accede to his request on the ground that they did not want to invite enmity with the accused. PW-2 Inspector SSB, Shri Lal Bahadur Singh in his cross-examination deposed that both sides of the road, there were several hardware and cloth shops and shop owners and customers were requested to be the witness of recovery and arrest, but they did not agree. PW-4, Constable Ram Kripal Yadav has also supported the prosecution case and stated that at the time of incident, public witnesses were present, but they did not agree to be the witness of recovery. On a careful perusal of their testimony, I do not notice anything by which their evidence can be treated to be untrustworthy.
In State of U.P. Vs. Anil Singh, 1988 Supp SCC 686, Hon'ble Supreme Court took note of the fact that generally the public at large are reluctant to come forward to depose before the Court and, therefore, the prosecution case cannot be doubted for non-examining the independent witnesses.
In State, Government of NCT of Delhi Vs. Sunil and another, (2001) 1 SCC 652, Hon'ble Supreme Court held as under:
" We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
In Pohlu Vs. State of Haryana (2005) 10 SCC 196, Hon'ble Supreme held thus:
It is true that it is not necessary for the prosecution to multiple witnesses, if it prefers to rely upon the evidence of the eyewitnesses examined by it, which is considers sufficient to prove the case of the prosecution. However, the intrinsic worth of the testimony of the witnesses examined by the prosecution has to be assessed by the Court. If their evidence appears to be truthful, reliable and acceptable, the mere fact that some other witnesses have not been examined, will not adversely affect the case of the prosecution."
Regard being had to the aforesaid facts and the authorities, it can safely be stated that in the instant case there is no reason to hold that non-examination of the independent witness affect the prosecution case and, hence, this Court repel the submission advanced by the learned counsel for the appellant.
The last contention of learned counsel for the appellant is that weight of the recovered contraband Charas was not proved. It is to be noted that PW-1, Brijesh Kumar Singh, the complainant of the case deposed that Charas was kept in 12 packets. After the recovery of Charas, Constable Mangal Singh brought electronic scale from SSB Camp, Sonauli. Thereafter, recovered contraband was weight, which was found 5 Kilograms and 300 grams. The recovered contraband was exhibited and proved as Material Exts. 2 to 13. PW-2, Inspector SSB also deposed that Constable Mangal Singh brought electronic scale and the recovered contraband was weighed, which was found 5 Kilograms and 300 grams. PW-4, Ram Kripal Yadav also deposed that after the recovery, electronic scale was brought and recovered contraband was weighed, which was 5 kilograms and 300 grams. It is also to be noted that recovered contraband was weighed, exhibited and proved by the prosecution.
Moreover, the report of the Forensic Science Laboratory, Ram Nagar, Varanasi dated 02.12.2014 confirmed that the recovered contraband was Charas.
The menace of drugs has caused social threat to the society and has ruined the future of young person. Now, it is a high time that the persons involved in such activities should be dealt with iron hand. In the instant case, huge quantity of Charas weighing 5 kilograms and 300 grams has been recovered from the possession of the applicant for which applicant could not tender any satisfactory explanation.
In view of what has been indicated herein above, I am of the view that the prosecution has successfully proved its case beyond reasonable doubt against the appellant.
Accordingly, criminal appeal is dismissed.
The appellant is in jail. He shall remain in jail to serve out the sentence awardedto him by the learned Trial Court.
Let three certified copies of this judgement be transmitted to the court concerned for record. Learned Trial Court would send two copies of the judgement to the Superintendent of Jail concerned for conveying the result of the appeal to the accused/appellant and to apprise him of his legal remedy against this judgement. Compliance report be submitted to this Court within two months.
( Krishna Pratap Singh, J ) Order Date :- 19.7.2019 Ishrat