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Himachal Pradesh High Court · body

2003 DIGILAW 179 (HP)

PREM KUMAR v. STATE OF H. P.

2003-07-07

M.R.VERMA, R.L.KHURANA

body2003
JUDGMENT R.L. Khurana, J.—The present appeal under Section 374 Code of Criminal Procedure, has been preferred through Jail by the appellant, Prem Kumar, hereinafter referred to as the accused, against the judgment dated 1.10.2001 of the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehr in Sessions Trial No. 4 of 2000, whereby he has been convicted for the offence under Section 20, Narcotic Drugs and Psychotropic Substances Act, 1985 (for short; the Act) and sentenced to rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. In default of payment of fine, he has been sentenced to undergo simple imprisonment for a further period of one year. 2. Briefly stated, the prosecution story may be thus stated. On 30.6.2000 at about 8.50 a.m. PW 10 Head Constable Gautam Chand of Police Station, Ani along with PW 2 Constable Atma Ram and Constable Bhup Singh was present at Nagar tri-junction in connection with routine patrolling. He noticed one person carrying a haversack proceeding towards Haripur. Such person, on seeing the police, tried to run away. He was, however, overpowered in the presence of PW 1 Jagdish Chand and one Lal Singh. Suspecting that the person, that is, the accused might be in possession of some contraband, PW 10 Head Constable Gautam Chand gave an option to the accused if he would like to be searched before a Magistrate or a Gazetted Officer. The accused, however, vide memo Ex. PW I/A consented to the search by PW 10. During the course of search, in the presence of PW 1 Jagdish Chand, Lal Singh and other police officials accompanied, PW 10 recovered Charas in the shape of tablets and billets wrapped in a "Pattu" (local blanket) from the haversack Ex. P-l being carried by the accused. Such recovered Charas, on weighment, was found to be 6.880 grams. Two samples weighing 25 grams each were separated. The two samples and the remainder Charas were separately sealed with the seal mark A. The "Pattu" Ex. P3 and haversack Ex. PI were also sealed and taken into possession vide recovery memo Ex. PW 1/C. PW 10 then recorded the report Ex. PW 2/A and sent the same to the police station on the basis of which a case came to be registered vide FIR Ex. P3 and haversack Ex. PI were also sealed and taken into possession vide recovery memo Ex. PW 1/C. PW 10 then recorded the report Ex. PW 2/A and sent the same to the police station on the basis of which a case came to be registered vide FIR Ex. PW 4/A. Since the accused was found to have committed the offence under Section 20 NDPS Act, he was arrested after apprising him the grounds for his arrest. 3. On the same day, PW 10 produced the accused along with the case property before PW 7 ASI Kanshi Ram, Police Station, Ani. PW 7 on the case property including the two packets containing the Charas having been produced before him, re-sealed the same with same with his seal mark "H" and kept the same in safe custody in the police Malkhana. One of the sample on having been sent to the Chemical Examiner was found to be that of Charas. 4. On the completion of the investigation, the accused was sent up for trial. He was charged for the offence under Section 20 NDPS Act, 1985 to which he pleaded not guilty and cLalmed trial. 5. The prosecution in support of its case examined eleven witnesses in all. The case of the accused as set out in his statement recorded under Section 313, Code of Criminal Procedure, is that of denial simpliciter and false implication. One witness namely, DW 1 Duni Chand was examined in defence to show that one haversack was found lying on a seat of the bus during the course of checking of the bus by the police party. On enquiries, none of the passengers cLalmed the ownership of the haversack. Lateron DW 1 came to know about the accused having been detained by the police. 6. The learned Sessions Judge, upon consideration of the evidence coming on record, convicted and sentenced the accused for the offence under Section 20 NDPS Act, 1985 as aforesaid. 7. While assailing the conviction and sentence imposed upon the accused by the learned Sessions Judge, the learned Counsel for the accused, at the very outset, contended that there has been non-compliance of the provisions of Sections 42 and 50 of the NDPS Act, which provisions are mandatory, and that due to non-compliance of such mandatory provisions, the accused is entitled to be acquitted. Reliance was sought to be placed by the learned Counsel in support of his contention on the decision of the Honble Supreme Court in K. Mohanan v. State of Kerala, 2000 SCC (Cri) 1228. 8. Section 42 of the NDPS Act, which deals with Powers of entry, search, seizure and arrest without warrant or authorisation lays down: "(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person taken down in writing, that any narcotic of or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset :— (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open and door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom . he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance : Provided that if such 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. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior." Section 50, NDPS Act, provides :— "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." 9. A bare reading of Sections 42 and 50 of the Act shows that compliance thereof would be necessary when the authorised officer proceeds to carry out the search either when he has reason to believe from personal knowledge or on information given by any person that any narcotic drug or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed. Sections 42 and 50 of the Act would not be attracted when the police officer without any prior information as contemplated under the provisions of the Act makes a search or arrests a person in normal course of investigation into the offence or suspected offences as provided under the provisions of the Code of Criminal Procedure and when such search is completed. If during such search or arrest there is chance recovery of any narcotic drug or psychotropic substance, then the police officer if not empowered, is to inform the empowered officer who shall thereafter proceed in accordance with the provisions of the Act. However, if he happens to be an empowered officer also, then from that stage onwards, he is to carry out the investigation in accordance with the other provisions of the Act. [See : State of Punjab v. Balbir Singh, AIR 1994 SC 1872]. 10. The provisions of Sections 42 and 50 of the Act also came up for consideration by the Apex Court in Mohinder Kumar v. State, Panaji, Goa, (1998) 8 SCC 655. In this case, the police officer accidentaly searched the house of the accused while on patrol duty and had it not been for the conduct of the accused persons in trying to run into the house on seeing the police party, he would perhaps not have had any occasion to enter the house and effect search. But when the conduct of the accused persons raised a suspicion, he went into the house and effected the search, seized the illicit material and caused the arrest. The Court opined that in the facts and circumstances of the case, when investigation officer accidently stumbled upon the offending article, the compliance of Sections 42 and 50 of the Act was not necessary. 11. In the present case PW-10 Head Constable Gautam Chand had neither reason to believe from his personal knowledge nor had any information that the accused was in possession of "Charas". He during the course of routine patrolling happened to recover the "Charas" from the haversack of the accused. It was a case of chance recovery. Therefore, Section 42 of the Act would not be attracted and its non-compliance would be immaterial. 12. There is yet another aspect of the case. The incriminating article, namely, the "Charas" was not recovered from the personal search of the accused. It was recovered from the haversack which the accused was found carrying at that time. The question is whether search of the bag of the accused would tantamount to the personal search of the accused within the meaning of Section 50 of the Act. 13. In Kalema Tumba v. State of Maharashtra and another, (1999) 8 SCC 257, the accused therein was a foreign national. The question is whether search of the bag of the accused would tantamount to the personal search of the accused within the meaning of Section 50 of the Act. 13. In Kalema Tumba v. State of Maharashtra and another, (1999) 8 SCC 257, the accused therein was a foreign national. He arrived at Bombay by a foreign airline. On information, received, the Intelligence Officer of the Narcotic Control Bureau made the accused to open his luggage, which was later found to contain 2 Kg. of heroin. The accused was tried and convicted for the offences under the Act. His conviction and sentence with slight modification was upheld by the High Court of Bombay. On further appeal before the Apex Court, one of the contention raised was non-compliance of Section 50 of the Act inasmuch as the accused was not informed of his right under the said section. 14. Repelling the contention, it was held by the Apex Court: "Ms. M. Qamaruddin, learned Counsel for the appellant submitted that the mandatory requirement of Section 50 of the NDPS Act was not complied with and therefore the evidence regarding recovery and seizure of heroin should be regarded as illegal She further submitted that the appellant could not have been convicted on the basis of that evidence. It was submitted by her that the appellant was not told before the search by the officers of the Narcotic Control Bureau that he had a right to be searched in the presence of a Gazetted Officer or a Magistrate. This contention deserves to be rejected because only when the person of an accused is to be searched then he is required to be informed about his right to be examined in the presence of a Gazetted Officer or a Magistrate. As rightly pointed out by the High Court search of baggage of a person is not the same thing as search of the person himself. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused to be searched. In State of Punjab v. Baldev Singh, (1999) 6 SCC 172, this Court has held that the requirement of informing the accused about his right under Section 50 comes into existence only when the person of the accused to be searched. The decision of this Court in State of Punjab v. Jasbir Singh, (1996) 1 SCC 288, wherein it was held that though poppy straw was recovered from the bags of the accused, yet he was required to be informed about his right to be searched in the presence of a Gazetted Officer or. a Magistrate, now stands overruled by the decision in Baldev Singh case. If a person is carrying a bag or some other article with him and a narcotic drug or a 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 the presence of a Gazetted Officer or a Magistrate." 15. Again in Sarjudas and another v. State of Gujarat, (1999) 8 SCC 508, the "Charas" was recovered from a bag which was found hanging on the scooter on which the accused was riding. It was held : "We do not find any substance in this contention as the Charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172." 16. In the present case as well since the recovery was effected from a haversack and not from the person of the accused, Section 50 of the Act would not be attracted. 17. As per the prosecution case two independent witnesses, namely S/Shri Jagdish Chand and Lal Singh were associated at the time of search when "Charas" was recovered from the haversack of the accused. While Jagdish Chand has been examined as PW 1, Shri Lal Singh, the other witness of the recovery has not been examined. 17. As per the prosecution case two independent witnesses, namely S/Shri Jagdish Chand and Lal Singh were associated at the time of search when "Charas" was recovered from the haversack of the accused. While Jagdish Chand has been examined as PW 1, Shri Lal Singh, the other witness of the recovery has not been examined. It was, therefore, contended on behalf of the accused that failure on the part of the prosecution to examine Lal Singh would raise an adverse inference against the prosecution that had he been examined, he would not have supported the case of prosecution. 18. There is no merit in the contention of the learned Counsel for the accused. It is well settled that it is the quality and not the quantity of witnesses which is required to be looked into. The prosecution may examine such witnesses as it may consider sufficient to prove the guilt of the accused. It is not bound to examine all the witnesses. PW 1 has fully supported the case of the prosecution. Therefore, non-examination of the other witnesses to the recovery would not give rise to any adverse inference. 19. The recovery of "Charas" from the haversack of the accused is also proved by the evidence of the police officials. In Akmal Ahmad v. State of Delhi, 1992 (2) Crimes 12 (SC), it has been held by the Apex Court that it is now well settled that evidence of search and seizure made by the police will not become vitiated solely for the reason that such evidence is not supported by independent witnesses. 20. The learned Counsel for the accused further contended that there are various contradictions, in the statement of witnesses of the prosecution which contradictions render the prosecution case doubtful and that the benefit of doubt must go to the accused. 21. We have gone through the evidence minutely and we do not find any material contradictions in the statements of the witnesses for the prosecution making the story of the prosecution doubtful. The contradictions, if any, are of very trivial nature and the same have no bearing on the prosecution case. Such contradictions bound to appear with the passage of time. 22. No other point was urged before us by the learned Counsel for the accused. 23. Resultantly, the present appeal being devoid of any merit, is dismissed accordingly. The contradictions, if any, are of very trivial nature and the same have no bearing on the prosecution case. Such contradictions bound to appear with the passage of time. 22. No other point was urged before us by the learned Counsel for the accused. 23. Resultantly, the present appeal being devoid of any merit, is dismissed accordingly. The case property be dealt with as per directions of the learned trial Court. 24. Let a copy of this judgment be sent to the accused for his information through Superintendent Jail. 25. Before parting, we place on record our appreciation for the valuable assistance rendered by Shri Rajiv Sharma, Senior Advocate, who was appointed counsel for the accused by providing him necessary legal aid. Appeal dismissed.