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2002 DIGILAW 926 (PNJ)

Amarjeet Kaur v. State Of Haryana

2002-09-16

ADARSH KUMAR GOEL

body2002
Judgment Adarsh Kumar Goel, J. 1. Appellant Amarjit Kaur has challenged her conviction and sentence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the Act) for being allegedly found in possession of three and half bags containing 140 kgs. of poppy husk. The appellant has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. One lac, in default to undergo further rigorous imprisonment for two years. Maruti Van bearing No. DID 6214 was ordered to be confiscated to the State in due course after service of notice to the accused claiming to be owner of the said vehicle. 2. The case of prosecution is that while ASI Ramesh Kumar was present at `T point on Tosham Road in connection with patrol duty along with constable Mahender Singh, constable Rameshwar Dass and driver Shamsher Singh, a Maruti van No. DID 6214 was seen coming to stop but it did not stop. On the signal of ASI Ramesh Kumar, the van was intercepted by another Zypsy van driven by Shamsher Singh. The driver disclosed his name as Paramjit Singh and the lady accompanying him disclosed her name as Amarjit Kaur wife of Paramjit Singh. Both the accused were served with notice under Section 50 of the Act, Ex. PF to the effect that van was suspected to be carrying some intoxicating substance and they had the option to have search conducted in presence of a gazetted officer or the Magistrate. Vide their reply Ex.PF/1, the accused stated that they wanted search in the presence of a gazetted officer. By a VT message, Deputy Superintendent of Police was called to the spot. Search was conducted in presence of the DSP. Three and a half bags containing poppy husk were recovered from the van. Out of the recovered bags, 100 gms. of poppy husk was separated as sample from each bag and the remaining poppy husk was found to be 139 kgs. and 600 gms. All the bags and the sample parcels were sealed with sea `RK. The van along with documents was taken into possession vide memo Ex.PE. Seal after use was handed over to PW Ramesh Kumar. DSP Vijay Singh also put his seal `VS on the samples as well as on the remaining bags. Rough site plan Ex.PG was prepared. All the bags and the sample parcels were sealed with sea `RK. The van along with documents was taken into possession vide memo Ex.PE. Seal after use was handed over to PW Ramesh Kumar. DSP Vijay Singh also put his seal `VS on the samples as well as on the remaining bags. Rough site plan Ex.PG was prepared. Ruqa Ex.PA was sent to the police station on the basis of which formal FIR Ex.PA/1 was recorded. The accused, case property and the witnesses were produced before the Station House Officer for verification alongwith report Ex.PD. The SHO verified the facts from the accused and the witnesses and directed the investigating officer to deposit the case property with the MHC. The samples were sent for chemical analysis and on receipt of report Ex.PK the accused were challaned. 3. In support of its case, prosecution examined ASI Ramesh Kumar PW-5, the investigating officer of the case; DSP Vijay Singh PW-4 in whose possession search was conducted and contraband was recovered from the accused; apart from MHC Ram Avtar PW-1 who recorded formal FIR Ex.PA/1; constable Phool Chand PW-2 who proved his affidavit EX.PC; SI Ram Avtar PW-3 who was the SHO of the police station and before whom the case property and the accused along with witnesses were produced by the ASI. PW Ramesh Kumar was given up being won over the accused. 4. When examined under Section 313 Cr.P.C., the accused denied allegations of the prosecution and pleaded false implication. 5. After considering the evidence on the record, the accused were convicted and sentenced. 6. The only contention raised by counsel for appellant is that Section 52-A of the Act has been violated and the same was mandatory. The said section, inter alia, requires that an application has to be made to the Magistrate for allowing to draw representative samples in presence of the Magistrate, and certifying the correctness of list of samples so taken. Counsel for appellant relied on a Division Bench judgment of Calcutta High Court in Tej Bahadur Singh and another v. Narcotic Control Bureau and another, 2001(1) All India Criminal Law Reporter 304. 7. Counsel for the State supported the conviction and sentence and submitted that Section 52-A of the Act only relates to disposal procedure of seized narcotic drugs and psychotropic substances and did not affect in any manner the validity of trial. 8. 7. Counsel for the State supported the conviction and sentence and submitted that Section 52-A of the Act only relates to disposal procedure of seized narcotic drugs and psychotropic substances and did not affect in any manner the validity of trial. 8. I have considered the rival submissions and perused the judgment of Division Bench of Calcutta High Court in Tej Bahadur Singhs case (supra). In my view Section 52-A relates only to procedure for disposal of the contrabands. In the present case, the charge is under Section 15 of the Act for the appellant being in possession of contraband. Once the said contravention is established, the accused is liable to the punished. Procedure for search and seizure is relevant for proving the offence of possession of the contraband. No doubt, if search is illegal in violation of Section 50 of the Act, it has been held that contraband cannot be taken into consideration. Other provisions of the Act have been held to be directory and vitiate the prosecution only on showing of prejudice to the accused. Sections 52 to 57 of the Act have been held to be directory. Section 52-A comes into picture only after seizure, and under Section 55, the officer incharge has to keep in safe custody all the articles seized subject to certain conditions, such as sample is allowed to be taken, and keeping of articles in safe custody is subject to the order of the Magistrate as to the disposal of seized articles. Non-compliance with the procedure laid down under Section 52-A for disposal does not in any manner affect the validity of the trial unless prejudice is shown. The case property was produced before the court and is Exhibit P-1 to P-4, and the same was properly identified. Merely because the same was not disposed of at the pre-trial stage by following the procedure does not affect the veracity of the case of the prosecution and does not vitiate the trial. In fact, the object of disposal of the case property at the pre-trial stage is to ensure that the case property is not misused, and also to relieve the prosecution of the responsibility of safe custody. In fact, the object of disposal of the case property at the pre-trial stage is to ensure that the case property is not misused, and also to relieve the prosecution of the responsibility of safe custody. Once safe custody and identity of the case property is proved and the case property is produced for inspection of the court, non-compliance of Section 52-A does not vitiate the trial and, therefore, I am not inclined to subscribe to the view taken in the judgment of Calcutta High Court in Tej Bahadurs case (supra). 9. Though no other point has been argued by counsel for the appellant. I have perused the record of the case. Evidence of ASI Ramesh Kumar PW-5 which is corroborated by evidence of DSP Vijay Singh PW-4, proves the recovery of contraband from the appellant. No reason has been shown for which their evidence should be rejected. Link evidence has also been led. SI/SHO Ram Avtar PW-3 has proved the production of contraband before him after the seizure. I, therefore, do not find any ground to interfere with the conviction. The sentence awarded to the appellant is the minimum under the Act except the sentence in default of payment of fine. In my view, sentence in default of payment of fine is liable to be reduced to six months. Order accordingly. 10. Subject to modification as indicated above, the appeal is dismissed. Appeal dismissed.