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2004 DIGILAW 499 (PNJ)

Bhim Sain v. State of Haryana

2004-04-28

JASBIR SINGH

body2004
JUDGMENT Jasbir Singh, J. (Oral) - Vide judgment and order dated 23.11.1998 and 24.11.1998 respectively, appellant was found guilty for commission of offences under Sections 17 and 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short the Act) and was sentenced to undergo RI for ten years and to pay a fine of Rs. 1 lac for offence punishable under Section 17 of the Act. in default of payment of fine, he was to further undergo RI for 2 years. He was also sentenced to undergo RI for one year for commission of an offence punishable under Section 27 of the Act. 2. It was case of the prosecution that on 17.9.1996, SI Ram Chander alongwith other police officials was present at Hardware Chowk, Faridabad. Amar Nath, Sub-Divisional Magistrate joined him there. When the investigating officer was talking to SDM, accused was seen coming from Chowk Nos. 1 and 2 of N.I.T. Faridabad. On seeing the police party standing there, he turned back and started walking briskly. On suspicion, he was apprehended. He was told that he was suspected to have in possession some narcotics and was asked to give his option regarding search in the presence of Magistrate or some higher officer. On this, appellant/accused gave his consent by stating that he had full faith in SDM and search be conducted in his presence. 3. Accordingly, search was conducted and he was found in possession of 8 grams 750 milligrams of smack wrapped in polythene paper and also 1 gram 900 milligrams of charas. Sample was drawn as per procedure laid down and sent for chemical examination. On receipt of chemical examination report and on completion of investigation, final report was submitted in court for trial. Appellant was charge-sheeted to which he pleaded not guilty and claimed trial. 4. Prosecution then led evidence to prove his guilt. On completion of prosecution evidence, his statement was recorded under Section 313 Criminal Procedure Code, wherein he denied all the allegations appearing against him in prosecution evidence and pleaded innocence. However, he led no evidence in defence. Trial Court on appraisal of evidence, found him guilty, convicted and sentenced him, as found mentioned in para 1 of this order. 5. Mr. However, he led no evidence in defence. Trial Court on appraisal of evidence, found him guilty, convicted and sentenced him, as found mentioned in para 1 of this order. 5. Mr. T.P.S. Mann, Advocate appearing for the appellant has assailed the judgment of the trial Court on the ground that there was non-compliance with the provisions of Section 50 of the Act, as such, conviction was not justified. By referring to intimation report (rukka), he tried to argue that in this document it has only been mentioned that option regarding search was given to the appellant/accused for search before an officer, as such, it does not conform to the procedure laid down under Section 50 of the Act and the appellant/accused deserves acquittal on this score alone. He further stated that in view of the notification issued on 19.10.2000, alleged quantity of contraband recovered from the appellant falls within the definition of non- commercial quantity, as such, he deserves lessor punishment. By referring to some discrepancies in the statements of witnesses, he prayed that judgment under challenge be set aside and the appellant be acquitted of the charges framed against him. 5A. Arguments raised by counsel for the appellant have vehemently been opposed by Shri Dhankhar, appearing for the State of Haryana. By referring to the documents on record, especially document Ex.PB i.e. offer memo and Ex.PC, consent memo, he argued that there was sufficient compliance with the provisions of Section 50 of the Act. He further, by referring to the judgment of the Supreme Court in Basheer @ N.P. Basheer v. State of Kerala, 2004(1) RCR(Criminal) 1008 (SC), contended that since the offence was committed prior to the issuance of notification dated 19.10.2000, alleged quantity of contraband recovered at the time when there was no distinction between the commercial and non-commercial quantity, case of the appellant/accused will be dealt with under the provisions of un-amended act and as such, no benefit can be given to him. He prayed that conviction was perfectly justified and prayed that appeal be dismissed. Counsel for the parties heard. 6. It is apparent form the records that on 17.9.1996, appellant/accused was apprehended. Contention of the counsel for the appellant that there was non- compliance with the provisions of Section 50 of the Act is negated, after perusing document Ex.PB on record. He prayed that conviction was perfectly justified and prayed that appeal be dismissed. Counsel for the parties heard. 6. It is apparent form the records that on 17.9.1996, appellant/accused was apprehended. Contention of the counsel for the appellant that there was non- compliance with the provisions of Section 50 of the Act is negated, after perusing document Ex.PB on record. In this document, it had clearly been mentioned that offer was given to the appellant/accused to conduct his search before a Magistrate or some higher officer. On offer being made, appellant/accused gave his consent vide document Ex.PC, by stating that he had full faith in SDM, who was available at the spot and his search be conducted in his presence. Simply because, factum of offer to conduct search before Magistrate or gazetted officer did not find mention in intimation letter, Ex.PE (rukka), it does not make any difference, as such, arguments raised by counsel for the appellant have no substance. Record shows that offence was committed on 17.9.1996 i.e. much prior to the amending Act 9 of 2001 came into existence and also prior to the notification issued on 19.10.2000. 7. Under similar circumstances, their Lordships of the Supreme Court in Basheers case (supra), while interpreting the provisions and applicability of amending Act 9 of 2001, in para 7, had opined as under :- "By this Section, Parliament has declared its intention to apply the amended provisions of the Act to : (a) All cases pending before the court on 2nd October, 2001; (b) All cases under investigation as on that date; and provides that these categories of cases shall be disposed of in accordance with the provisions of the 1985 Act as amended by the Act of 2001. In other words, the benefit of the rationalised sentencing structure would be applicable to these categories. The proviso, however, makes an exception and excludes the application of the rationalised sentencing structure to cases pending in appeal." 8. In the above mentioned judgment their Lordships of the Supreme Court had also held that provisions of amending act will not be applicable to the pending appeals. To the same effect is the ratio of judgment of their Lordships of Supreme Court in P.P. Fatima v. State of Kerala, 2004(1) RCR(Criminal) 81 (SC). In view of the ratio of judgments of Supreme Court in abovementioned cases, arguments raised by Shri Mann, are not justified. To the same effect is the ratio of judgment of their Lordships of Supreme Court in P.P. Fatima v. State of Kerala, 2004(1) RCR(Criminal) 81 (SC). In view of the ratio of judgments of Supreme Court in abovementioned cases, arguments raised by Shri Mann, are not justified. In view of the reasoning given above, this appeal fails and is dismissed. Appeal dismissed.