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2004 DIGILAW 1465 (ALL)

Major Singh v. State of U. P.

2004-08-05

MUKTESHWAR PRASAD

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( 1 ) ACCUSED Major Singh has filed this appeal against the judgment and order dated 31-7-1995 passed by Sri S. B. Balveer, the then Additional Sessions Judge, jhansi whereby he convicted the accused under Section 20 of Narcotic Drugs and Psychotropic substances Act, 1985 (hereinafter referred to as the Act) and sentenced him to suffer rigorous imprisonment for a period of ten years and to pay a sum of Rs. one lakh as fine. In default he was ordered to undergo further ten years rigorous imprisonment. ( 2 ) BRIEFLY stated, the facts of the case giving rise to this appeal are as under;-P. W. 1 S. I, Sobaran Singh was posted at police Station Gursarain in district Jhansi in the month of September 1993. On 15-9-1993, s. I. Sobaran Singh accompanied by three constables Ram Pal Singh, Shiv Raj singh and Jitendra Awasthi left the Police station for patrolling in Gursarain Town vide entry in G. D. at serial No. 34 at 9. 30 p. m. The police force was proceeding towards mohalla Narainpur and reached the culvert built in Mohalla Narainpur. They saw one person coming from the opposite direction. When he arrived near the police personnel, he took u turn and tried to run away. On suspicion, the police force chased him and succeeded in apprehending him at a distance of 20 paces from the culvert. This arrest was made at about 12. 30 (night ). ( 3 ) AFTER interrogation, he disclosed his name as Major Singh son of Govind. After search 50 gms. of Charas wrapped in a polythene paper was recovered from the right pocket of his Kurta. On demand, the accused could not produce any licence for having charas in his possession. The recovered charas was kept, in a cloth and sealed on the spot. A sample of seal was also prepared and arresting officer prepared a seizure memo under the street light. The accused was disclosed grounds of his arrest and was formally arrested. A copy of Fard recovery was also given to him since it was odd hours of night, no public witness was available. ( 4 ) THE recovered Charas and accused were brought to the Police Station Gursarain on the same night. A case was registered against the accused at the Police Station on the same night at 2. 00 a. m. at crime No. 259. ( 4 ) THE recovered Charas and accused were brought to the Police Station Gursarain on the same night. A case was registered against the accused at the Police Station on the same night at 2. 00 a. m. at crime No. 259. ( 5 ) THE case was investigated by S. I. Chottey Lai Tiwari. He interrogated the arresting officer on 16-9-1993. He further interrogated Constable Ram Pal Singh and on his pointing out prepared site plan. He further interrogated Constable Shivraj Singh and Jitendra Awasthi on 19-9-1993. He sent the recovered Charas to Agra for chemical examination on 20-9-1993 and after receipt of report submitted charge-sheet against the accused. ( 6 ) ACCUSED Major Singh was charged under Section 20 (b) (ii) of the Act on 4-4-1997 to which he pleaded not guilty and claimed to be tried. ( 7 ) IN order to establish the charge against the accused, the prosecution examined P. W. 1 s. I. Sobaran Singh, P. W. 2 Constable Ram pal Singh who was accompanied the arresting officer on the fateful night and P. W. 3 s. I. Chottey Lal Tiwari who investigated the case. ( 8 ) ACCUSED Major Singh in his statement recorded under Section 313 Cr. P. C. totally denied all the accusations levelled against him and attributed his false implication in the case on account of groupism in the village. According to him, he was apprehended by the police in the night on Monday and was falsely roped in the case. No evidence was led in defence. ( 9 ) AFTER hearing learned counsel for the parties and scanning the evidence on record, learned Judge found the accused guilty and convicted and sentenced him, as mentioned above. Hence this appeal. ( 10 ) I have heard learned counsel for the appellant and learned A. G. A. I have perused the entire record including the evidence adduced by the prosecution. Learned counsel for the appellant has assailed the judgment under appeal mainly on the grounds that the police personnel did not give their search in presence of the accused and the Charas which was allegedly recovered from the possession of the appellant was not weighed. Learned counsel for the appellant has assailed the judgment under appeal mainly on the grounds that the police personnel did not give their search in presence of the accused and the Charas which was allegedly recovered from the possession of the appellant was not weighed. It was further submitted that the mandatory provisions of Section 50 of the Act were not followed by the arresting officer and the accused was not apprised of his right to have his search by a nearest Gazetted Officer or magistrate. Lastly, it was contended that no attempt was made by the arresting officer to bring the public witnesses on the spot to witness the arrest and recovery. Consequently, the prosecution failed to bring home the charge levelled against the appellant beyond all shadow of doubt and he deserves acquittal. ( 11 ) ON the other hand, learned A. G. A. submitted that since the arrest and recovery of Charas from the appellant was made all of a sudden and there was no information that the appellant was carrying Charas in his Kurta and as such, there was no question of compliance of the provisions of Section 50 of the Act. He further contended with vehemence that the arrest and recovery were made at 00. 30 a. m. (night) and as such, it was not possible for the arresting officer to procure the attendance of public witnesses and prosecution case cannot be thrown out on this ground. ( 12 ) 1 have considered the arguments made on behalf of the parties and after scanning and scrutinizing the entire material on record, I find that the learned Judge was fully justified in convicting the appellant for the offence punishable under Section 20 of the Act. As stated above, on the impugned night, S. I. Sobaran Singh and three Constables attached to Police Station Gursarai were patrolling in different Mohallas of gursarai town and for this purpose they left the Police Station at 9. 30 p. m. when the police force reached the culvert built in mohalla Narainpura, they saw the accused coming from opposite direction. When the accused saw the police personnel he took turn and ran away. He was, however, chased and apprehended by the police force and about 50 gms. of Charas was recovered from the right pocket of Kutra. 30 p. m. when the police force reached the culvert built in mohalla Narainpura, they saw the accused coming from opposite direction. When the accused saw the police personnel he took turn and ran away. He was, however, chased and apprehended by the police force and about 50 gms. of Charas was recovered from the right pocket of Kutra. Both P. W. 1, S. I. Sobaran Singh and P. W. 2 Constable Ram pal Singh fully supported the prosecution story on all material points and their testimony was not shaken in cross-examination despite lengthy cross-examination on behalf of the appellant. ( 13 ) THE arresting officer admitted in his cross-examination that recovered Charas was not weighed by him and he noted down the weight on the basis of his assessment. In cross-examination, S. I. Sobaran Singh testified that he obtained signature of the accused on the seizure memo. In further cross-examination, the arresting officer corrected himself and gave out that he obtained thumb impression of the appellant on the spot. He testified in unambiguous words that the arrest of the appellant was made at 12. 30 (night) and Fard recovery was prepared on the spot and a copy thereof was given to the appellant. He totally denied the suggestion of defence that the appellant was not arrested at the plaice and in the manner, as alleged by the prosecution. ( 14 ) AS noted above, the arrest and recovery were made at 00. 30 a. m. on the impugned night. It means residents of the locality must have been sleeping at that time and as such, it was not possible for the police to bring the public witnesses on the spot to witness the arrest and recovery. Both arresting officer and accompanying constable have deposed in clear words that on account of odd hours of night, the public witnesses could not be called out. I see no valid reason to disbelieve their testimony on this point and the prosecution case cannot be discarded on this score. ( 15 ) SINCE the recovery of Charas was made from the possession of the appellant all of a sudden by the police force when they were patrolling in the area and were having no information that the appellant was carrying Charas in his Kurta, the provisions of section 50 of the Act are not attracted. ( 15 ) SINCE the recovery of Charas was made from the possession of the appellant all of a sudden by the police force when they were patrolling in the area and were having no information that the appellant was carrying Charas in his Kurta, the provisions of section 50 of the Act are not attracted. Therefore, there was no question of apprising the appellant of his right to have his personal search in the presence of a Magistrate/gazetted Officer. ( 16 ) IN view of the aforesaid discussion and scrutiny of the evidence adduced on record. I find no perversity or infirmity in the findings recorded by the Court below. ( 17 ) I find that the learned trial Judge sentenced the appellant to undergo rigorous imprisonment for a term of 10 years and to pay Rs. one lac as fine, which is minimum sentence prescribed for an offence punishable under Section 20 (b) (ii) of the Act. It was contended on behalf of appellant that the Act was amended w. e. f. 2nd October, 2001 and in view of the amendment made in the Act, the appellant is entitled to a lesser sentence. ( 18 ) RELIANCE has been placed on two decisions in the case of Man Mohan alias bhuri v. State of Uttaranchal, 2003 Cri LJ 4506 and Mahesh Chandra Nagar v. State of M. P. , 2003 Cri LJ 4022. ( 19 ) THE appellant was found carrying 70 gms. of Charas. He was sentenced to undergo rigorous imprisonment for a period often years. He served the jail term for about two and half years. The Uttaranchal High court sentenced the appellant to the period already undergone by him on account of amendment in the Act, which came into force w. e. f. 2-10-2001. Similarly the Madhya pradesh High Court reduced the sentence imposed on the appellant from 10 years to 6 months under Section 20 of the Act on account of amendment in the Act. ( 20 ) I have considered the contention of the appellants counsel regarding sentence but find no force. It is correct that the Act was amended drastically from 2-10-2001 and Section 20 provided that culprit having small quantity could be sentenced to the rigorous imprisonment for a term not exceeding 6 months or with fine extending up to rs. 10,000/- or with both. It is correct that the Act was amended drastically from 2-10-2001 and Section 20 provided that culprit having small quantity could be sentenced to the rigorous imprisonment for a term not exceeding 6 months or with fine extending up to rs. 10,000/- or with both. In my considered opinion, these amendments came into force from 2-10-2001 and are applicable to all the cases pending in the trial Courts. The law clearly provides that the amendments were not made applicable to the cases pending in the appellate Courts and therefore, I am of the opinion that the sentence passed against the appellant cannot be reduced and benefit of new provisions cannot be extended to him. This opinion of mine is further fortified by the decision of the Apex Court in the case of Prabha Shanker Dubey v. State of m. P. , (2004) 14 ILD 724 : AIR 2004 SC 486 (SC ). ( 21 ) IT is, therefore, obvious that the amendments made in the Act by the Parliament w. e. f. 2-10-2001 have no application to the pending appeals and as such, benefit cannot be given to the appellant. ( 22 ) IN the result, the appeal is partly allowed. The conviction of the appellant under Section 20 of the Act and sentence imposed by the trial Court are confirmed with modification that in the event of default in payment of fine, the appellant shall undergo further rigorous imprisonment for a period of two years only. ( 23 ) THE appellant is on bail. His bail is cancelled. He shall be taken into custody to serve out the sentence as modified by this court. ( 24 ) A copy of this judgment shall be sent forthwith for necessary compliance of the order. Compliance report be submitted to this Court within eight weeks. Order accordingly. . .