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2004 DIGILAW 1271 (PAT)

Uma Chaudhary v. State of Bihar

2004-12-21

body2004
I.P. SINGH, J.:- The sole appellant has been convicted under Section 21 of the N.D.P.S. Act and was sentenced to undergo rigorous imprisonment for ten years and also to pay a fine of Rs. one lac in default of fine to undergo rigorous imprisonment for a period of two years. 2. The prosecution case in short is that on 25.1.2000 a fardbayan of the informant Raj Narain Singh, S.I. of Police received confidential information to the effect that near the chamber of Hari Chaudhary, the father of the present appellant, some persons have gathered either for selling the heroin or consuming such drugs. Thereafter the informant got the 'Sanha' entry of such Information recorded at the Police Station and he along with S.I. of Police Lala Paswan and other Police Official proceeded for the place of occurrence, while going to the place of occurrence the informant contacted the local B.D.O. and requested him to accompany the police party so that raid be conducted at the chamber of the accused. The police party along with B.D.O. reached at the place of occurrence and after seeing the police party the persons assembled there, tried to flee away but they were chased by the police party and the police succeeded in apprehending the accused persons and after his arrest the accused disclosed his name as Uma Chaudhary. He was apprehended at a distance of 100 yards east from the chamber thereafter the Informant in presence of the two independent witnesses and the B.D.O. searched the body of the accused and 5 puriyas wrapped in polythene each puriya containing 5 Gm. and one big puriya wrapped in polythne weigheing 26 Gm. was recovered from the conscious possession of the accused thereafter a seizure list Ext-1 was prepared at the spot and the same was signed by the appellant as well as two independent witnesses and B.D.O. P.W. 4. The appellant did not produce any document to show how he possessed 51 Gm. of heroin. Thereafter the informant gave a written report (Ext-2) at the Police Station on the basis of which the present case bearing Mohania P.S. Case No. 19 of 2000 was instituted and after completion of investigation chargesheet was submitted against the appellant. Accordingly the cognizance was taken and the case was committed to the court of Sessions for trial and the trial was concluded with the result as stated above. 3. Accordingly the cognizance was taken and the case was committed to the court of Sessions for trial and the trial was concluded with the result as stated above. 3. The appellant pleaded not guilty and has stated that he has falsely been implicated in this case. 4. The prosecution examined six witnesses in support of its case, P.W. 1 is Nelsan Baria, A.S.I. of Police, P.W.2 is Raj Narain Singh member of the raiding party and informant of this case, P.W. 3 is Akhilesh Ram Chaukidar, P.W. 4 Rajesh Kumar Singh the then B.D.O. Mohania, P.W. 5 is Ram Tirath Ram he is the Chaukidar and P.W. 6 is Tejnath Mishra, I.O. of this case. 5. P.W. 2 has fully supported the case of the prosecution. According to him on 25.1.2000 i.e. the date of occurrence while he was discharging his duties at Mohania Police Station he received confidential information that some persons assembled are engaged in dealing with the heroin at the chamber of one Hari Chaudhary and he also got entered this in the station diary at the Police Station and immediately thereafter he along with other constables and Chaukidar proceeded for the place of occurrence. It has also been stated that he also took the local B.D.O. a Magistrate to accompany the raiding party and they reached at the chamber of Hari Chaudhary but after seeing the police party the accused persons assembled there tried to flee away but the members of the police party succeeded in apprehending the accused. The appellant Uma Chaudhary was apprehended and after search on the body of this accused in presence of P.W. 4, the B.D.O. Mohania and two seizure list witnesses heroin in 5 puriyas each containing 5 grams each and also one big puriya wrapped in poly thin 26 grams was recovered from the conscious possession of the appellant Uma Chaudhary accordingly, a seizure list was prepared at the spot and the same was signed by P.W.4, the B.D.O. Mohania. He has also further stated that one copy of the seizure list was also given to the appellant and he also put his signature Ext-1 over it. Thereafter, the informant gave a written report at the police station and on the basis of which the present case was instituted. P.W. 1 and 3 who were the members of the party have also supported the case of the prosecution. Thereafter, the informant gave a written report at the police station and on the basis of which the present case was instituted. P.W. 1 and 3 who were the members of the party have also supported the case of the prosecution. P.W. 6 who is the I.O. of this case has also supported the case of the prosecution. According to him he was posted at Mohania Police Station and on the basis of written report, (Ext-2) the prosecution case was instituted and was entrusted with the investigation. He has further stated that he recorded the statement of witnesses under Section 161 of the Cr.P.C. has also inspected the place of occurrence. He has also given the full description of the place of occurrence. According to him the seized article was sent to the Director Forensic Laboratory, Bihar, Patna and a report has been received to the effect that the seized sample was heroin. 5. Learned counsel for the appellant has submitted that the article so seized was not sealed before the Magistrate at the place of occurrence nor the same was kept in Malkhana in accordance with law. It has further been submitted that there is material contradiction in the statement of witnesses and Section 50 of the Act has not been applied with and the appellant before being searched, was not informed of his valuable rights to be searched before Magistrate/Gazetted Officer. It has also been submitted that the rights of accused asked before a Magistrate or a gazetted officer is a mandatory provision and it can not be said to have been complied with only because the raiding party was having a Magistrate/Gazetted Officer. In support of his case he was relied on a decision reported in P.L.J.R. 2003 Vol. 3 page 476 in which it was held that the rights of person to be searched before Magistrate/Gazetted Officer can not be taken away merely because raiding party consisting of a gazetted officer, the officer was duty bound to inform the appellant about the right to be searched in presence of another gazetted/Magistrate, which was not complied with. In this case also the provision of Section 50 has not been complied with. In this case also the provision of Section 50 has not been complied with. According to the deposition of the witnesses, it appears that when raiding party on a secret information reached at the place of occurrence, the appellant tried to fled away and after chase he was apprehended and from his full-part five purias of contraband substance wrapped in polythene and also one puria containing 26 grams was seized sample of the same was sent to the Forensic Laboratory, Patna and a report was received and it was found to be heroin. The other submissions of the learned counsel about sealing or storing of the seized article was not properly done in accordance with law. However, in the present case the appellant himself in his statement under Section 313 of the Cr.P.C. has accepted that he had 51 grams of heroin in his possession for his personal use. As such, submission of the learned counsel is of no relevance in view of the ratio decided in a case reported in (sic) Supreme Court Cases Criminal page 447 in which it was decided that the confessional statement is itself sufficient to convict the accused. 6. The defence witnesses have also been examined in this case and they have also supported that the appellant was drug addicted, as such there is no doubt that the heroin so recovered from the possession of the appellant was for his personal use only. That apart according to the amended provisions the commercial quantity is 250 grams which is five times more than what has been recovered from the possession of the appellant. The punishment for such recovery under Section 21 B of the Act is R.I. up to ten years and fine of Rs. 1 lac. In this case the learned court below has awarded maximum sentence of fen years and fine of Rs. 1 lac which is harsh. 7. I feel that since this appellant has kept the heroin for his personal use as he was drug addicted some lenient view may be taken while awarding the sentence of this appellant. 8. Considering the facts and circumstances of the case, I am of the opinion that it would be expedient in the interest of justice, if the sentence of the appellant is reduced to four years with a fine of Rs. 10,000/-, in default of fine to undergo rigorous imprisonment for six months. 8. Considering the facts and circumstances of the case, I am of the opinion that it would be expedient in the interest of justice, if the sentence of the appellant is reduced to four years with a fine of Rs. 10,000/-, in default of fine to undergo rigorous imprisonment for six months. 9. With the aforesaid modification in the conviction and sentence this appeal is dismissed.