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2003 DIGILAW 133 (HP)

SANJAY GUPTA v. STATE OF H. P.

2003-06-02

K.C.SOOD

body2003
JUDGMENT Kuldip Chand Sood, J.—This jail appeal by the appellant Sanjay Gupta, hereinafter referred to "the accused", arises out of the judgment of conviction, recorded by the learned Additional Sessions Judge, Mandi, dated 22.6.2002, for an offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, ("the Act" for short). 2. The prosecution case was: On 7.3.2001, SI/SHO, Police Station Aut, along with other police officials, was on routine patrol on the Chandigarh-Kullu, National Highway, when at about 6.30 p.m. a Bus with registration No. HP-12-4138 came from Manali side. This bus was bound for Delhi. The bus was signalled to be stopped by SI Om Parkash (PW-6). Two of the police constables, namely, Shankar Dass and Durga Dass entered the bus from the rear door. The accused, with a Chader wrapped around him, alighted from the front door. He was found carrying a polythene bag. Accused tried to run away. On suspicion, the police officials outside the bus, apprehended the accused. Sub-Inspector Om Parkash suspected that the accused was carrying some contraband. The accused was informed about his right to be searched in the presence of a Gazetted Officer or Magistrate. At his option, by Memorandum, Ex. PW-6/A, the accused opted, in writing, to be searched by the police. On search of the polythene bag, carried by the accused, Charas, in the shape of long sticks, was recovered. Weighing scale was sent for. The Charas so recovered weighed 750 gms. The Investigating Officer, SI Om Parkash, took two samples of 25 grams each, from the Charas and sealed the remaining Charas. A Panchnama was prepared. SI Om Parkash prepared a Rukka Ex. PW-2/B which was sent to the Police Station, Aut for registration of a formal report, which was so recorded in terms of Ex. PW-2/A for an offence punishable under Section 20 of the Act. A special report (Ex. PW-5/A) was sent to the Superintendent of Police, Mandi. On the next day, that is, 8.3.2001 the sample was sent to the Chemical Examiner, Kandaghat, for analysis, who opined the sample to be Charas. 3. Learned trial Judge, on appreciation of the evidence, convicted the accused under Section 20 of the Act, and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 30,000. 3. Learned trial Judge, on appreciation of the evidence, convicted the accused under Section 20 of the Act, and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 30,000. In case of default in the payment of fine, the accused is to suffer simple imprisonment for one year. 4. Aggrieved the accused-appellant filed this appeal from Jail. As the accused-appellant was un-represented, Mr. Dushyant Dadwal, Advocate, was appointed as legal aid counsel for the accused-appellant. 5. I have heard Mr. Dadwal, learned Counsel for the accused-appellant and Mr. Ashok Chaudhary, learned Additional Advocate General, for the State. I have also been taken through the records by Mr. Dadwal, learned Counsel in detail. 6. Mr. Dadwal, learned Counsel raised several contentions: (a) Section 50 of the Act was not complied with; (b) independent witnesses were not associated with the search; (c) provisions of Sections 42 and 57 of the Act were violated by the Investigating Officer. 7. Mr. Dadwal, learned Counsel also pointed out certain discrepancies in the evidence of the witnesses to show that the prosecution has failed to establish the case against the accused beyond reasonable doubt. 8. In the present case, there is no scope of dispute that recovery was made from the bag carried by the accused and not from his personal search. Therefore, provisions of Section 50 of the Act were not applicable. There is preponderance of evidence that the Charas was recovered from a bag which the accused was carrying. It is the evidence of PW1 Narinder Kumar, that the accused tried to fled away from the front door when the bus was signalled to be stopped by the Sub-Inspector Om Parkash. The accused, however, was apprehended immediately on his alighting from the bus. He was found carrying a polythene bag and it was from this bag Charas, weighing 750 grams, was recovered. He is amply supported by Sub-Inspector Om Parkash (PW 6), on all material aspects. It is the evidence of Sub Inspector Om Parkash that he alongwith other police officials was on routine patrol and when they signalled the bus, in which the accused was travelling to stop, the bus stopped and accused alighted from the bus stealthily. Accused had wrapped himself with a Chader. He was found carrying a blue colour polythene bag, from which 750 grams of Charas was recovered. Accused had wrapped himself with a Chader. He was found carrying a blue colour polythene bag, from which 750 grams of Charas was recovered. It is his evidence that the Charas was taken into possession by a seizure memo Ex. PW-l/C. 9. Mr. Dadwal, learned Counsel submits that there are contradictions in the evidence of these two witnesses. According to him, SI Om Parkash states that all the documents were prepared on the spot whereas Narinder Kumar (PW-1) states that no document was prepared on the spot. This is not what the evidence is. It is the evidence of Narinder Kumar (PW-1) that the seizure memo (Ext. PW-l/C) was prepared, after the Charas was taken into possession and he also signed the same. He thereafter went to collect weighing scale from Aut bazar and when he returned the bus had left. The accused and the police officials remained present on the spot. He then gives a graphic description that how the Charas was packed and sealed on the spot and both these parcels were signed by him. He does say that statement of the driver and conductor was not recorded in his presence. It is not the case of the prosecution that the statement of the driver and conductor was recorded on the spot, in the presence of Narinder Kumar (PW-1). Infact, SI Om Parkash appearing as PW-6 is categorical that statements were recorded on the next day. Dalip Singh, conductor of the bus, appearing for the defence stated that his statement was not recorded at all by the police. According to him, he was in Delhi on 8.3.2001 when his alleged statement was recorded. In my view this is not such a discrepancy which dents the prosecution case. Even the statement of conductor was not recorded under Section 161 of the Code of Criminal Procedure, it will not prejudice the accused. The credibility of these two witnesses about the factum of recovery of Charas remains intact. 10. So far non-compliance of Section 42 of the Act is concerned, the recovery was not made on any prior information. The recovery was made during a routine patrol check. The provisions of Section 42 of the Act, in the circumstances, are not attracted. The credibility of these two witnesses about the factum of recovery of Charas remains intact. 10. So far non-compliance of Section 42 of the Act is concerned, the recovery was not made on any prior information. The recovery was made during a routine patrol check. The provisions of Section 42 of the Act, in the circumstances, are not attracted. It is true that the accused was not informed about the grounds of his arrest but arrest of the accused for that reason on recovery of contraband cannot be said to be illegal nor it can be fatal to the prosecution case. Section 57 of the Act has fully been complied with by the Investigating Officer inasmuch he sent the information about the seizure of the Charas from the accused and his arrest within 48 hours as stipulated under Section 57 of the Act to the Superintendent of Police, Mandi, which is apparent from the letter of SI Om Parkash, addressed to the Superintendent of Police, Mandi, dated 8.3.2001. According to Pal Singh, (PW-5), Reader to Deputy Superintendent of Police, Mandi, an information in the shape of Special Report, was received by the Superintendent of Police, Mandi, on 8.3.2001 at about 10.15 a.m, which was handed over to him for keeping the same in safe custody. 11. Mr. Dadwal, learned Counsel for the accused raised an argument that LHC Kishore Chand, through whom information Ex. PW-5/A was sent to the Superintendent of Police, Mandi, had stated that report, regarding sending of the Special Report, was entered in the daily diary of the police station at 11 a.m. whereas endorsement of the Superintendent of Police, Mandi, on Ex. PW-5/A shows that it was received by him at 10 a.m. I am not impressed. Merely because wrong time was given in the rojnamcha/ daily diary or on the special report by the Superintendent of Police would not affect the prosecution adversely. The fact remains that the special report was sent by the Investigating Officer (PW-6) to the Superintendent of Police, Mandi, within 48 hours of the seizure of the contraband, as contemplated under Section 57 of the Act. 12. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, the Apex Court held that Section 50 of the Act would only be attracted in the case of a search of a person as distinguished from search of any premises or bag etc. 12. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, the Apex Court held that Section 50 of the Act would only be attracted in the case of a search of a person as distinguished from search of any premises or bag etc. Otherwise also, if the search is taken without any prior information, as contemplated under Section 42 of the Act, and on completion of that search, a contraband, under the Act, is recovered then requirements of Section 50 of the Act are not attracted. 13. Mr. Dadwal, learned Counsel further submits that the conviction cannot be based on the testimony of the police witnesses, particularly when independent witnesses were available and could have been associated by the Investigating Officer in this case. 14. The argument is misplaced. In this particular case, the bus was bound for Delhi and the passengers were restive by detention of the bus. It is in this background that the bus was permitted to go to its destination immediately. No other witness was available on the spot. 15. In State of Kerala v. MM. Mathew and another, AIR 1978 Supreme Court 1571, a contention was raised that evidence of the officers constituting Inspecting party is highly interested because they wanted the accused to be convicted. The Apex Court held that such a presumption runs counter to the well recognized principle that prima facie public servants must be presumed to act honestly and conscientiously and their evidence has to be assessed on its intrinsic worth and cannot be discarded merely on the ground that being public servants they are interested in the success of their case. 16. In Samaalana Abdulla v. State of Gujarat, 1996 (1) SCC 427, independent witnesses from the illaqua were not associated. Their Lordships observed: ".....It cannot therefore be said that the investigation was not fair and, therefore, independent corporation was necessary. As nothing was found from the house of Rayna Sahab, no complaint was lodged against him. PI Dwivedi had no reason to falsely involve the appellant if really no map was called from his house. Again their evidence cannot be rejected only on the ground that they are police witnesses and were members of raiding party. Their evidence receives corroboration from the Panchnama (Ex. P24)." (Emphasis supplied) 17. PI Dwivedi had no reason to falsely involve the appellant if really no map was called from his house. Again their evidence cannot be rejected only on the ground that they are police witnesses and were members of raiding party. Their evidence receives corroboration from the Panchnama (Ex. P24)." (Emphasis supplied) 17. In the present case I have critically reappraised the entire evidence of the witnesses to the search leading to the recovery of Charas and find that the evidence has not been shaken or discredited in the cross-examination. The substratum of the prosecution, in spite of lengthy cross-examination of these witnesses, remain intact. 18. In Akmal Ahmad v. State of Delhi, (1993) 3 SCC 337, their Lordships observed : ".....It is true that the evidence of PW8 Sub-Inspector of Police is not supported by any witness other than police personnel. It is now well settled that the evidence of search or seizure made by the police will not become vitiated solely for the reason that the evidence is not supported by any independent witness." 19. The evidence of constable Narinder Kumar (PW-l) and Sub-Inspector Om Parkash (PW6) proves beyond reasonable doubt that offending Charas, weighing 750 grams, was recovered from the possession of the accused from a polythene bag, which he was carrying. 20. In the end Mr. Dadwal, learned Counsel submits that according to his instructions, fee accused-appellant was married in the year 2001. He has already undergone about 2/1/2 years of imprisonment and therefore the sentence may be reduced to already undergone. 21. Taking into consideration the entirety of the circumstances the fact that quantity of Charas recovered from the accused is less then the commercial quantity, the further fact that the accused is not a previous convict, absence of the evidence that this Charas was meant for further sale by the accused and the fact that the accused-appellant has a wife and two children dependent on him for their subsistence, it will be fair and reasonable to reduce the sentence to rigorous imprisonment for three years and fine of Rs. 20,000. 22. In result, the appeal is partly allowed. Conviction of the accused-appellant, under Section 20 of the Act, is maintained. Sentence imposed is modified and reduced to rigorous imprisonment for three years and fine of Rs. 20,000. 20,000. 22. In result, the appeal is partly allowed. Conviction of the accused-appellant, under Section 20 of the Act, is maintained. Sentence imposed is modified and reduced to rigorous imprisonment for three years and fine of Rs. 20,000. In case of default in the payment of fine, he shall undergo imprisonment for a further period of one year. Appeal partly allowed.