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2002 DIGILAW 701 (PAT)

Bimal Jha v. State Of Bihar

2002-07-04

B.N.P.SINGH

body2002
Judgment B.N.P.Singh, J. 1. The sole appellant suffered conviction under Section 23 of the Narcotic Drugs and Psychotropic Sub-stances Act for violation of the provisions of Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 read with Rule 53 of the Narcotic Drugs and Psychotropic Substances Rule, 1985 and was sentenced to suffer rigorous imprisonment for a term of ten years. 2. The factual matrix-the prosecution was launched against the appellant by an Excise Official on accusation that the appellant was apprehended while travelling in a bus bearing No. B.P.K. 752, which led to seizure of five hundred grams of Charas for which he did not hold valid authority. At trial that commenced, the State examined two witnesses including the Reporting Officer and a Constable. 3. The defence of the appellant before the Court below and also this Court had been denial of entire allegations and he ascribed false implication. Though the positive finding recorded by the chemical examiner was also upheld by the Court below, that point has not been pressed before me. The trial Court, on consideration of testimony of the witnesses who claim to have effected seizure of the contraband from possession of the appellant, recorded verdict of guilt finding appellant guilty under Section 23 of the Act and sentenced him in the manner stated above. 4. Two fold contentions were raised at Bar on behalf of the appellant ostensibly to assail the finding recorded by the Court below and it is sought to be urged that in view of mandatory requirement of Section 50 of the Act, the Officer who searched a person must inform him of his right available under sub-section (1) of Section 50 of the Act for being taken to nearest Gazetted Officer or Magistrate for making search, and on these premises, it is urged that since the evidences placed on the record do not suggest that the appellant was ever asked by the Excise Official for being searched in presence of Gazetted Officer or a Magistrate, there being violation of mandatory provision of Section 50 of the Act, the entire proceeding before the Court below had vitiated, and finding of guilt, and sentence imposed on the appellant which followed consequently, was without jurisdiction. The other contention raised on behalf of the appellant was that though search and seizure is shown to have been effected in presence of other persons, the prosecution was also guilty of examining only the Excise Officials, entirely to the exclusion of the independent witnesses and on this score too credibility of the witnesses had to be discarded and reliance is placed on a decision of the Apex Court reported in 1999 Criminal Law Journal 3672 (State of Punjab V/s. Baldev Singh and others), the other decision reported in 2000 Criminal Law Journal 3181 (C. Ali V/s. State of Kerala). Reliance was also placed on a decision of High Court of Haryana (sicapex court) reported in 2002 (2) P.L.J.R. (SC)34, (State of Haryana V/s. Vikram Singh) and a decision of this Court reported in 2000 B.L.J. 437 : 2000(2) PLJR 231 (Suresh Bhagat V/s. State of Bihar). 5. Now coming to the evidences that has been placed on behalf of the State, one would find Sukhdeo Prasad Bhagat (P.W. 1) reiterating the prosecution version about seizure of five hundred grams of Charas from a plastic bag of the appellant which he held while travelling in a bus. Almost similar narrations were made by Ramjee Thakur (P.W. 2), other Excise Official, about seizure of Charas from possession of the appellant which he had kept in a bag. Both the witnesses stated about seizure of contraband, from the possession of the appellant. The State also brought on the record the report of the Chemical Examiner who recorded positive finding about the sample sent for examination, to be Charas. The finding of the Chemical Examiner in view of there being other mitigating evidence cannot be challenged. About article in question to be contraband, the Court below has principally relied on the testimony of witnesses and positive finding of the Chemical Examiner and as stated above, recorded finding of guilt and sentenced appellant in the manner stated above. True it is that though seizure was shown to have been effected in presence of other persons also, who were not examined at trial, but there was no valid reason to discard testimony of official witnesses whose credibility ipso facto cannot be questioned. True it is that though seizure was shown to have been effected in presence of other persons also, who were not examined at trial, but there was no valid reason to discard testimony of official witnesses whose credibility ipso facto cannot be questioned. Though reliance had been placed on a decision of this Court reported in 2000 B.L.J. 437 (Suresh Bhagat V/s. The State of Bihar), I have noticed that a number of infirmities were noticed by the Court, as not only that there was no finding of chemical examiner about the seized article to be contraband but it was also noticed that the seizure list witnesses examined at trial had turned volte face to the State and in backdrop of these circumstances, the finding of guilt recorded by the Court below was set aside. Facts in the instant case are rather quite distinct, as none of the witnesses had turned volte face to the State and to crown all the Chemcial Examiner had found the sample sent for chemical examination, to be of Charas. 6. Though reliance on a catena of a decisions has been placed, the reference of which has been given above, I find that in all the cases, the Court had occasion to answer pointed questions referred to the Bench and the mandatory provision following from Section 50 of the Act, can hardly be disputed that before making search and seizure of contraband from person of an accused, he has the right to exercise his option for search before a Gazetted Officer or a Magistrate. The ratio decidendi in all those cases, however, I feel, cannot be applicable in the instant case which was on a distinct footing and now reliance can be placed on a decision of the Apex Court reported in 1999 Supreme Court Cases (Criminal) 1422 in which ratio decidendi of the Apex Court was that the requirement of informing the person to be searched under Section 50 of the Act, in presence of a Gazetted Officer or a Magistrate was applicable only in case of search of a person and not search of the baggage. It does not require repetition that the prosecution had a case that the seizure of contraband which was effected from the bag which appellant held with him, and in this backdrop the right available under Section 50 of the Act was not available to the appellant. It does not require repetition that the prosecution had a case that the seizure of contraband which was effected from the bag which appellant held with him, and in this backdrop the right available under Section 50 of the Act was not available to the appellant. Though there has been some variations in the statement about the place where the bag was kept, but rightly the Court below with sound reasonings has rejected such contention raised at bar and came to proper conclusion for recording guilt against the appellant. Having gone through the finding recorded by the Court below, I rather find that even though the provision requires the trial Court also to impose fine which may extend to one lakh rupees, undue latitude was given to the appellant in not imposing fine against him, which was not permissible in law. Though the appellant has suffered conviction under Section 23 of the Act, regard being had to the accusation attributed to him and there being no evidence that the appellant was importing the contraband to India or it was in the process of export to foreign country, conviction under Section 23 of the Act was, admittedly, bad and the accusations attributed to the appellant squarely falls within mischief of Section 21 of the Act. 7. Having given my anxious and deepest consideration to the facts and circumstances of the case and also evidences placed on the record, the appellant is found guilty under Section 21 of the Act and while the finding recorded about sentence remains unaltered, the appeal being meritless is dismissed.