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2007 DIGILAW 1729 (PNJ)

Sanjiv Kumar @ Sanju v. State Of Punjab

2007-09-21

RANJIT SINGH

body2007
Judgment Ranjit Singh, J. 1. Recovery of 15 Kgs. of Charas from two appellants in the present appeal while they were proceeding on a scooter, led to their conviction and award of sentence of 10 years RI coupled with fine of Rs.one lac under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act"). 2. On 31.1.2000, a scooter driven by appellant, Mohammad Qyoum with appellant Sanjiv Kumar on a pillion seat was signaled to stop by Inspector Varinder Singh, who was holding a Naka near Village Kharl. Sanjiv Kumar was seen carrying a plastic bag in his lap. Suspecting it to be a contraband, option was given to the appellants if they wish to be searched by him or before some Gazetted Officer. The appellants opted for being searched by the Gazetted Officer, whereupon DSP Jaswant Singh Cheema reached the spot, on being so messaged by Inspector Varinder Singh. He also sought option from the appellants for being searched by him. Both the appellants reposed confidence in him and accordingly were searched, which led to recovery of 15 Kgs. of charas from the plastic bag, which was carried by appellant Sanjiv Kumar. 250 Grams of sample was drawn out of the same. The sample as well as the contraband were converted into parcels and the same were sealed with the seal bearing impressions `VS and `JS and were taken into possession. Ruqa incorporating the factum of recovery was prepared and sent to Police Station, leading to registration of a formal FIR, Ex.PA. Case property was deposited with the MHC, its seal being intact. On receipt of report from Chemical Examiner and on completion of other investigations, the appellants were charged under Sections 20 of the Act, leading to their conviction and award of sentence as already noticed. 3. The case of the prosecution is supported by 7 prosecution witnesses. The appellants, when questioned about the evidence and circumstances appearing on record against them, disowned the recovery and pleaded their false implication. They also examined one witness in their defence. 4. Mr. Pheruman has taken shelter behind technicalities to impugn the conviction and award of sentence to the appellants. The case of the prosecution is supported by 7 prosecution witnesses. The appellants, when questioned about the evidence and circumstances appearing on record against them, disowned the recovery and pleaded their false implication. They also examined one witness in their defence. 4. Mr. Pheruman has taken shelter behind technicalities to impugn the conviction and award of sentence to the appellants. He may be justified in saying that the provisions of the Act being stringent would ask for strict adherence and any violation of any of the mandatory provision would lead to invalidation of conviction and sentence. He would first say that the driver of the scooter could not be held to be in conscious possession of the contraband whereas the conviction of pillion rider appellant, Sanjiv Kumar, can not be up-held because of violation of mandatory provisions of Section 50 of the Act. In this regard, he would say that both the appellants were not given valid option for being searched before the Magistrate or Gazetted Officer and, thus, they were not apprised of their legal right in this regard, vitiating their conviction and sentence awarded to them. He would further say that no consent memo was prepared. He has also made a grouse that F.S.L. Form was not filled at the spot in terms of the instructions in this regard, which would again go to dent the prosecution case, requiring the appellants to be absolved of the offence for which they have been convicted. In addition, Mr. Pheruman has urged that the samples in this case were not taken in the presence of a Magistrate as required under Section 52-A (c) of the Act and accordingly the conviction of the appellants can not be sustained. In support of this limb of his submission, he has placed reliance on Division Bench judgment of Calcutta High Court reported as Munnanai v. State, 1998 (1) All India Criminal Law Reporter 194. Mr. Pheruman would also refer to number of other judgments in support of his other submissions raised on behalf of the appellants. 5. In support of this limb of his submission, he has placed reliance on Division Bench judgment of Calcutta High Court reported as Munnanai v. State, 1998 (1) All India Criminal Law Reporter 194. Mr. Pheruman would also refer to number of other judgments in support of his other submissions raised on behalf of the appellants. 5. On the other hand, learned counsel appearing for the State would urge that the prosecution has clearly disputed the recovery as well as contraband being in conscious possession of both the appellants and hence, the submissions now been raised on behalf of the appellants are not made out from the facts on record or on the basis of law, which, by now, is almost settled. 6. Let us proceed to see, in case any of the submissions made by the appellants can rescue them of their liability under Section 20 of the Act or not ? 7. Since the appellants were intercepted by Inspector Varinder Singh (PW4), he is obviously the star prosecution witness. He has given a clear evidence in regard to his presence near the turning of village Kharl where he had held a Naka. His deposition would also show that he saw one scooter Bajaj Chetak coming from the side of Village Paniar. He found two persons sitting on the scooter, which was signaled to stop. Appellant Sanjiv Kumar was sitting as a pillion seat on the scooter, which was driven by appellant Mohammad Qyoum. He found a plastic bag lying in the lap of appellant, Sanjiv Kumar. PW4 then deposed about the offer he gave to the appellants for being searched in the presence of some Gazetted Officer and about calling of Jaswant Singh Cheema, DSP, through wireless, when they opted to be searched before a Gazetted Officer. It is under these circumstances, according to PW4, 15 Kgs. of charas was recovered from the plastic bag carried by Sanjiv Kumar, which he was holding in his hand. He further deposed about drawing of samples and sealing thereof etc. This happened on 31.1.2000. On the next day i.e. 1.2.2000, both the appellants were produced before Judicial Magistrate Ist Class, Gurdaspur, alongwith the case property. While under cross-examination, this witness conceded that no consent memo was prepared. However, he categorically deposed that DSP had reached the spot. He further deposed about drawing of samples and sealing thereof etc. This happened on 31.1.2000. On the next day i.e. 1.2.2000, both the appellants were produced before Judicial Magistrate Ist Class, Gurdaspur, alongwith the case property. While under cross-examination, this witness conceded that no consent memo was prepared. However, he categorically deposed that DSP had reached the spot. He admitted that no independent witness was joined but stated at the same time that efforts were made but none agreed. He was otherwise also tested during his cross-examination and appears to have with-stood the same with sufficient assurance. His evidence receives corroboration from the version of ASI Talwinder Kumar (PW5), who was present with PW4 at the time of Naka. He has deposed almost on identical lines as was the version of PW4. DSP Jaswant Singh Cheema (PW6) is the next witness, in whose presence the search was conducted, leading to recovery. He was the Gazetted Officer in whom the appellants had reposed faith. He had reached the scene on being summoned, when the appellants opted to be searched in the presence of a Gazetted Officer. This witness had lend full support to the evidence given by PW4 and PW5. The Court had clearly confronted appellant, Sanjiv Kumar, with the evidence that came on record about his having held a plastic bag in his lap. It was further put to appellant, Sanjiv Kumar, that 15 Kgs. of charas was recovered from the plastic bag, which he was holding in his hand. Similarly the aspect of bag lying in the lap of appellant, Sanjiv Kumar and recovery of 15 Kgs. of charas therefrom was specifically put to appellant, Mohammad Qyoum, who was intercepted while driving the scooter. There is, thus, not much dispute in facts and that is perhaps the reason, Mr.Pheruman, while defending the appellants, took shelter behind the technicalities. 8. Mr. Pheruman would first refer to the case of Kalayath Nassar v. State of Kerala, 2000(1) All India Criminal Law Reporter 133 to say that where appellant is not informed that he has a right of being searched in the presence of a Gazetted Officer or a Magistrate, the search in such case is vitiated and the conviction is required to be set-aside. In this regard, Mr. Pheruman would also rely upon the case of Saiyad Mohd. Saiyad Umar Saiyed & Ors. In this regard, Mr. Pheruman would also rely upon the case of Saiyad Mohd. Saiyad Umar Saiyed & Ors. v. The State of Gujarat, 1995(2) RCR(Criminal) 388 : JT 1995(3) SC 489. The Honble Supreme Court in this case held that it is imperative on the part of the officer to inform the person to be searched of his right in the presence of a Gazetted Officer or a Magistrate. The counsel also refers to the case of Nayagam v. State by Inspector of Police, 2002(2) RCR(Criminal) 738 and K. Mohanan v. State of Kerala, 2000 SCC(Crl.) 1228. It is held in these cases that mere asking the accused whether he/she was required to be searched in the presence of a Gazetted Officer or a Magistrate cannot be treated as communication to the accused and that he/she has a right under law to be searched before Magistrate or Gazetted Officer as contemplated under Section 50 of the Act. On the face of it, this submission may sound attractive but would not be of any avail to the appellants. This consideration of giving an option of being searched in the presence of a Magistrate or a Gazetted Officer would arise in those cases where Section 50 of the Act is applicable. It has now been held that Section 50 of the Act is applicable where search of a person is to be done and not in cases where the recovery is from a bag etc. carried on a conveyance or in hands. In this regard reference can be made to the case of State of H.P. v. Pawan Kumar, 2005(2) RCR(Criminal) 622 : 2005(2) Apex Criminal 1 : (2005)4 Supreme Court Cases 350. In this case, two Judges of the Honble Supreme Court differed in their view in regard to applicability of Section 50 of the Act in such like situation and ultimately the matter was referred to another Judge, who, while referring to different decisions, came to hold inter-alia that word "person" having regard to the scheme of the Act and the context in which it has been used in the section, it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. The Court further went on to hold that the word "person" would mean a human being with appropriate coverings, clothings and footwear. It is further held as under:- "A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." 9. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act." 9. It may not be out of place to mention here that while so holding, the Honble Supreme Court referred to number of judgments like Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) RCR(Criminal) 611 : 2000 SCC(Cri.) 496, Madan Lal v. State of H.P., 2003(4) RCR(Criminal) 100 : 2004(1) Apex Criminal 426 : (2003)7 SCC 465, Gurbax Singh v. State of Haryana, 2001(1) RCR(Criminal) 702 : (2001)3 SCC 28, State of Punjab v. Makhan Chand, 2004(3) RCR(Criminal) 1 : 2004(3) Apex Criminal 168 : (2004)3 SCC 453, Kanhaiya Lal v. State of M.P., (2000)10 SCC 380, Birakishore Kar v. State of Orissa, (2000)9 SCC 541, Krishna Kanwar v. State of Rajasthan, (2004)2 SCC 608, Sarjudas v. State of Gujarat, 1999(4) RCR(Criminal) 614 : (1999)8 SCC 508 and Saikou Jabbi v. State of Maharashtra, 2004(1) RCR(Criminal) 96 : 2004(2) Apex Criminal 43 : (2004)2 SCC 186 while interpreting the word "person" in the context of Section 50 of the Act. 10. In the present case, the evidence clearly shows that the recovery was from a bag, which was seen lying in the lap of one of the appellants and later, he was seen carrying the same in his hand. In Pawan Kumars case (supra), it has categorically been held that Section 50 of the Act would not apply in such circumstances. When confronted with this position, Mr. Pheruman pleaded that this judgment, on this aspect, has been referred to the Larger Bench. So long as this judgment is not over-ruled, it is required to be followed as law. Accordingly, this limb of the submission of the appellants is rejected. 11. It is next contended that no consent memo was prepared, which would again dent the prosecution story. It is seen that all the witnesses have unanimously deposed that the appellants were given the option of being searched in the presence of a Gazetted Officer. It is conceded that no written consent memo was prepared. 11. It is next contended that no consent memo was prepared, which would again dent the prosecution story. It is seen that all the witnesses have unanimously deposed that the appellants were given the option of being searched in the presence of a Gazetted Officer. It is conceded that no written consent memo was prepared. There is no provision pointed out before me, which would require the preparation of written consent memo in regard to the option having been given to the accused persons. In Sanjan Abraham v. State of Kerala, 2001(3) RCR(Crl.) 808 (SC), the Honble Supreme Court clearly held that oral communication is enough. It is observed that a communication may be oral only with regard to the right as provided under Section 50 of the Act. In any case, the requirement of preparing a memo would arise only if Section 50 of the Act was applicable. It is already noted above that this provision would not be applicable, considering the facts and circumstances of the present case. 12. Next contention is that there was a delay of about 14 to 15 days in sending the sample to FSL, which is fatal and would dent the prosecution case. In support of his submission, the counsel has referred to the cases of Khuba Ram alias Khuba v. State of Haryana, 1995(3) RCR(Criminal) 316 (P&H) and Buta Singh v. State of Punjab, 2006(1) RCR(Criminal) 835 (P&H). In these cases, unexplained delay of 8 to 15 days was held to be fatal besides being in violation of the standing instruction No. 1 of 1988 dated 15.3.1988. It is seen that in the case of Khuba Ram (supra), the prosecution could not offer any explanation for inordinate delay of 15 days in sending the samples to the laboratory for analysis. Under these circumstances, it was noticed that this would cause dent to the prosecution story. Similarly in the case of Buta Singh (supra), it was noticed that the prosecution has failed to explain a fatal delay of 8 days and despatch of samples to the F.S.L. for chemical examination, by leading no evidence on this point. It is also noticeable that this fact has not been held sufficient to vitiate or dent the prosecution case but in such cases, the combined effect of different infirmities including the delay in sending samples led to effect the prosecution story. It is also noticeable that this fact has not been held sufficient to vitiate or dent the prosecution case but in such cases, the combined effect of different infirmities including the delay in sending samples led to effect the prosecution story. That situation may not arise in the present case. Firstly, there are no other serious infirmities or violation of any statutory or mandatory provisions noticed in this case. The prosecution, however, in this case led evidence on record to explain the reasons for this delay. Head Constable Jasbir Singh (PW7), who was posted as MHC, deposed before the Court that the sample alongwith scooter was deposited with him on 31.1.2000. He took out the sample on 14.2.2000 and handed over the same to Constable Manjit Singh, directing him to get the docket from SSP Office and then deposit the same in the office of Chemical Examiner at Jalandhar. On 15.2.2000, the receipt of the deposit was handed over to the said witness. PW7 categorically stated before the Court that "none tempered with the parcels so long it remained in my custody or I allowed any one to temper with the same." In this background, this fact alone, in my view, would not effect the prosecution case to the advantage of the appellants. The delay in sending the samples has an explanation as given by the witness PW-7. 13. The submission made on the basis of Section 52-A(c) of the Act, which relates to disposal of seized narcotic drugs and psychotropic substances seems to be totally mis-conceived. In this case, the Division Bench of Calcutta High Court, by making reference to the contents of Section 52-A, appears to have held that samples to be sent for analysis are to be taken out in the presence of a Magistrate and these are required to be duly certified by him. With due respect to the Division Bench, it appears that the purpose of Section 52-A of the Act seems to have been missed. This provision deals with the disposal of a seized narcotic drugs and psychotropic substances. In this context, it is provided that Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution or constrains of proper storage space etc. This provision deals with the disposal of a seized narcotic drugs and psychotropic substances. In this context, it is provided that Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution or constrains of proper storage space etc. by notification, make provision for disposal of the same by such officer and in such manner as the Government may, from time to time, determine after following the procedure hereinafter specified. It is in this context that sub-section (2) of Section 52-A makes a provision for officer Incharge to prepare an inventory of such narcotic drugs and psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed including the details of country or origin and other particulars. Having done so, he can make an application to any Magistrate for the following purposes :- "(a) Certifying the correctness of the inventory so prepared; (b). Taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; (c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. 14. The clear purpose of the Section is noticeable from the above contents. This section is meant to apply where the investigating agency wishes to dispose of the contraband or a psychotropic substance so seized, which is vulnerable to theft, substitution or lack of proper storage etc. In that eventuality, the Investigating Officer can make an inventory of the same and move an application before the Magistrate, who would then certify as is the purpose of sub-section (2) of Section 52-A of the Act. It is in this context that Section 52-A (c) makes a provision for allowing the officer Incharge to draw representative sample of such drugs or substances in the presence of a Magistrate who would certify the correctness of the list of samples so drawn. Having done so, obviously the quantity, which otherwise may require to be produced before the Court, can be disposed of and this evidence as certified is permitted to be produced in evidence in terms of this provision. Having done so, obviously the quantity, which otherwise may require to be produced before the Court, can be disposed of and this evidence as certified is permitted to be produced in evidence in terms of this provision. The doubt, if any, in this regard can clearly be settled by referring to sub-clause (4) of Section 52-A, which reads as under :- "(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, every court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence." Thus, the provisions of Section 52-A would not relate to drawing of samples at the initial stage in the presence of a Magistrate as construed by the Division Bench of the Calcutta High Court. This procedure is meant to be adopted when the investigating agency wants to dispose of the quantity of contraband recovered by getting it certified from the Magistrate in the manner as provided under Section 52-A. This then becomes an evidence instead of requiring complete property or a contraband for being produced before the Court. In this context, representative samples can be drawn under the provisions of Section 52-A (2)(c) of the Act. As such, I am unable to subscribe to the proposition of law, as laid down by the Calcutta High Court in the case of Munnanai (supra). This limb of the submission raised by Mr. Pheruman appears mis-conceived and is accordingly rejected. In the result, there is no merit in the appeal and the same is dismissed as such.