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2007 DIGILAW 575 (PAT)

Umesh Kumar And Heera Lal Soni v. State Of Bihar

2007-03-20

GHANSHYAM PRASAD

body2007
Judgment Ghanshyam Prasad, J. 1. Both the aforementioned appeals arise out of one and the same judgment of conviction and sentence dated 15.7.2004/17.7.2004 passed by Ist Additional Sessions Judge, Sasaram in Dehri P.S. Case No. 196 of 2001 whereby both the appellants have been convicted under Sec.21 of the N.D.P.S. Act and have been sentenced to undergo R.I. for ten years with fine of Rs. 1 lac each and in default to further undergo R.I. for two years. 2. Prosecution story in brief is that on 19.8.2001 in the evening, incharge of Dalmianagar O.P. S.I., Sri Tutu Ram (P.W.1) alongwith armed forces was on evening patrolling. In course of it, at about 6:30 P.M. the team reached at Choudhury Chowk and started checking of two wheelers. In the meantime, two persons came in suspicious condition. They were challenged and on doubt their persons were searched in presence of two local witnesses, namely, Baban Dubey (P.W.2) and Harendra Singh (P.W.3). The appellant Umesh Kumar was found in possession of 15 puriya of heroin like substance and appellant Heera Lal Soni was found in possession of 16 puriyas of heroin like substance. Mr. Tutu prepared two separate seizure list which are Exts.1 and 1/1. 3. Both the appellants were arrested and were brought in police station where S.I. Tutu Ram got police case registered against both the appellants on his self statement (Ext.2). Shri R.N. Jha, S.I. P.W.8 investigated the case. In course of investigation, the sample of seized substance was sent to the Director, Forensic Science Laboratory, Patna for chemical examination. The sample was found to be heroin, highly addictive intoxicant. Report is Ext.5. The I.O. after investigation submitted chargesheet against both the appellants under Sections 18/21 of the N.D.P.S. Act. 4. In course of the trial, charge only under Sec.21 of the N.D.P.S. Act was framed against both the appellants. Eight witnesses including the informant Tutu Ram as P.W.1 and I.O. R.N. Jha, P.W.8 have been examined. P.Ws.2 and 3 are seizure list witnesses and the rest are police constables who were members of the patrolling party. 5. The defence of the appellants is mere denial of the offences. According to them, they have been falsely implicated in this case. As a matter of fact, nothing was recovered from their possession. However, no defence witness has been examined in support of their defence. 6. 5. The defence of the appellants is mere denial of the offences. According to them, they have been falsely implicated in this case. As a matter of fact, nothing was recovered from their possession. However, no defence witness has been examined in support of their defence. 6. The learned Counsel for the appellants challenged the judgment in question on many counts. However, the main contention is non-compliance of mandatory provision of Sec. 50 of the N.D.P.S. Act. It is submitted that search and seizure without compliance of provision of Sec. 50 is illegal and bad in law and, therefore, no conviction can be based on such seizure and search. In support of his contention, he has relied upon two decisions of the apex court reported in 1999 Supreme Court 1573 (Abdul Bhai V/s. State of Gujarat) and 1995 Supreme Court 244 (Ali Mustafa Abdul Rahman V/s. State of Kerala). 7. Other important submission is that the learned lower court has wrongly awarded sentence of R.I. for ten years to the appellants. There is no material or evidence on the record to show that the appellants were in possession of more than small quantity or commercial quantity of heroin. On the other hand, the evidence on record would go to show that the total weight of heroin was within the limit of small quantity. The maximum sentence as provided under Section 21(a) of the Act for possession of small quantity is only six months with fine of Rs. 10,000/-. 8. In this case, the date of occurrence is 19.8.2001. In other word, before the Commencement Act 9 of 2001. Therefore, this case shall be governed by Principal Act of 1985. Sec. 50 of the Principal Act runs as follows: 50. Conditions under which search of persons shall be conducted.- (1) When any officer duly authorised under Sec. 42 is about to search any person under the provisions of Sec. 41, Sec. 42 or Sec. 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 Sec. 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). (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. The admitted fact is that the police made search of the persons of the appellants without compliance of the provision of Sec. 50 of the Act. In both the above cited decisions of the apex court, it has been un-equivocally held that provisions of Sec. 50 are mandatory and non-compliance vitiates the conviction. In both the decisions, reliance has been placed upon its earlier decision reported in 1994 Supreme Court 1872 (State of Punjab V/s. Balbir Singh). 10. However, in the instant case, Sec. 50 of the Act is not attracted. It is a case of chance recovery of heroin. The police in course of usual patrolling arrested the appellants on suspicion and on search of their persons, heroin was recovered. It. is not a case where the police on receipt of any information regarding possession of N.D.P.S. made search of the person, of the appellants. On this point, law has already been settled by the apex court in above referred decision reported in 1994 S.C.1872. In paragraph-26 of the judgment, it has been held as follows: 26. The question considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows: (1) If a police officer without any prior information as contemplated under the provisions of the NDPS Act makes a search or arrests a person in the normal course of investigation into an offence or suspected offence as provided under the provisions of Cr.P.C. and when such search is completed at that stage Sec. 50 of the NDPS Act would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psycotrophic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If during such search or arrest there is a chance (of) recovery of any narcotic drug or psycotrophic substance then the police officer, who is not empowered, should inform the empowered officer who should thereafter proceed in accordance with the provisions of the NDPS Act. If he happens to be an empowered officer also, then from that stage onwards, he should carry out the investigation in accordance with the other provisions of the NDPS Act. 11. Thus, from the above decisions, it is quite clear that in this particular case, Sec. 50 of the Act is not attracted. Therefore, conviction of the appellants on this score cannot deemed to be illegal or un-sustainable in the eye of law. 12. So far evidence on record is concerned, the prosecution has examined, eight witnesses. Some of the witnesses including witnesses of seizure have not supported the prosecution case. However, there is evidence of three witnesses which is sufficient to clinch the issue and prove recovery of heroin from possession of the appellants. They are the informant P.W.1, Tutu Ram, P.W.6, Gyanchand Sah and P.W.7, Deo Sagar Singh. P.Ws.6 and 7 were members of the patrolling party led by P.W.1, the informant. I have gone through the evidence of the aforesaid three witnesses as well as paragraphs 8, 12 and 13 of the judgment under challenge. The court below has rightly relied upon evidence of aforesaid three witnesses. Their evidence appears to be above board and free from any embelishment or contradiction. There appears to be no any valid criticism against them. 13. Exts.1 & 1/1 are two seizure list prepared by P.W.1, Tutu Ram which bear signature of two witnesses namely, Baban Dubey and Harendra Singh as also of the appellants. P.Ws.2 and 3 have admitted their signature on seizure list. However, as usual, they have denied seizure in their presence. Importance of the seizure list cannot be denied only because the seizure list witnesses turned hostile. It has to be considered alongwith other evidence, P.Ws.1, 6 and 7 have fully supported the fact of seizure. 14. Ext.5 is the report of Forensic Science Laboratory, Bihar, Patna. The report goes to show that two polythene packets containing heroin like substance were examined by Director of the Forensic Science Laboratory and found the same as heroin, highly addictive intoxicant. 15. 14. Ext.5 is the report of Forensic Science Laboratory, Bihar, Patna. The report goes to show that two polythene packets containing heroin like substance were examined by Director of the Forensic Science Laboratory and found the same as heroin, highly addictive intoxicant. 15. Thus, from the above discussions, it is quite clear that the court below has rightly held that 31 puryas of heroin were recovered from possession of the appellants for which they did not give any account. Sec. 54 of the N.D.P.S. Act raises presumption from illegal possession of such articles regarding commission of the offence under Chapter IV of the Act. Therefore, the court below has rightly convicted the appellants under Sec.21 of the N.D.P.S. Act. I find no reason to interfere in the findings of conviction recorded by the lower court. 16. The next question which is most important involved in this case is quantum of sentence. The lower court has awarded sentence of R.I. for ten years and with fine of Rs. 1 lac of each to the appellants under Sec.21 of the Principal Act, 1985 which provides minimum sentence of ten years and minimum fine of Rs. 1 lac. 17. However, it is submitted by the learned Counsel for the appellants that during pendency of the case, the provision of Sec.21 of the Principal Act was amended through Act 9 of 2001 and the quantum of sentence for such offences has been diluted. For possession of small quantity the maximum sentence as provided under Sec.21(a) is only six months with fine upto Rs. 10,000/-. It is further contended that weight of heroin recovered from the appellants has not been mentioned in the fardbeyan nor it was weighed. Therefore, benefit will go in favour of the appellants and it would be presumed that it was small quantity. 18. It is true that during pendency of the case, Sec.21 of the N.D.P.S. Act was amended through Act 9 of 2001 and thereafter, provision of three kinds of sentence have been made depending upon weight of illicit substance. Maximum punishment of six months with fine of Rs. 10,000.00 has provided for possession of small quantity of illicit substance. Different terms of imprisonment have been provided, under Sub-section (b) & (c) for illegal possession of different quantity of the substance. A chart/table specifying a small and commercial quantity has been appended to the new Act. Maximum punishment of six months with fine of Rs. 10,000.00 has provided for possession of small quantity of illicit substance. Different terms of imprisonment have been provided, under Sub-section (b) & (c) for illegal possession of different quantity of the substance. A chart/table specifying a small and commercial quantity has been appended to the new Act. Sl.No. 56 of the table is in respect of the heroin. According to it, five grams is small quantity and 250 grams is commercial quantity. 19. In this case, admittedly, no weight of recovered quantity of heroin has been mentioned. Only allegation is that 15 puryas was recovered from possession of appellant Umesh Kumar and 16 puryas was recovered from other appellant. However, report of the Forensic Science Laboratory (Ext.5) has disclosed the weight of each purya. It appears from Ext.5 that sample of recovered heroin from each appellant was sent to the analyst in two polythene packets containing five puryas each. Each puriya contained only 100 mg. of heroin powder. Thus, the total weight of 31 puriyas recovered from possession of both the appellants comes to only 3100 mgs. i.e. three grams and 100 mg. In other words, the appellants were found in possession of heroin in small quantity for which the maximum punishment provided under the amended Sec.21(a) is only upto six months with fine of Rs. 10,000/-. The appellants have already remained in jail much more than the maximum sentence provided under the amended provisions being in jail since 19.8.2001. 20. The next question is applicability of new amended provision. In Sec.21 of the Principal Act, 1985, the minimum sentence is ten years with minimum fine of Rs. 1 lac. The Amended Act, 9 of 2001 came into force on 2nd October, 2001. The date of occurrence of this case is 19.8.2001. In other words, the offence was committed before the new Act came into force. 21. Sec. 41 of the Act, 9 of 2001 provides rule for applicability of the Act in pending cases. It runs as follows: 41. The Amended Act, 9 of 2001 came into force on 2nd October, 2001. The date of occurrence of this case is 19.8.2001. In other words, the offence was committed before the new Act came into force. 21. Sec. 41 of the Act, 9 of 2001 provides rule for applicability of the Act in pending cases. It runs as follows: 41. Application of this Act to pending cases.- (1) Notwithstanding anything contained in Sub-section (2) of Sec.1, all cases pending before the courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such offence: Provided that nothing in this section shall apply to cases pending in appeal. (2) For the removal of doubts, it is hereby declared that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force. 22. The word "shall be liable for punishment which is lesser than the punishment for which he is otherwise liable at the date of commission of such offence". Occurring in the section is very significant. It clearly goes to show that even in pending cases the accused shall be liable for punishment which is lesser in either of the Act. 23. In view of the above, it is quite clear that in the present case also which was pending on the date of commencement of the Act, 9 of 2001 the accused appellant shall be liable for punishment according to the provision of new amended Sec.21 in which lesser punishment has been provided. Keeping in view of the quantity of the recovered heroin which is less than the small quantity, it is quite clear that the sentence awarded to the appellants is illegal and arbitrary. Accordingly, the sentences awarded to the appellants is hereby modified to the extent of R.I. for six months each with fine of Rs. 10,000.00 each and in default to undergo R.I. for two months each. 24. Accordingly, the sentences awarded to the appellants is hereby modified to the extent of R.I. for six months each with fine of Rs. 10,000.00 each and in default to undergo R.I. for two months each. 24. In the result, both the appeals are dismissed with above modification in the sentence. As discussed above, both the appellants have already remained in jail custody for much much more than the maximum punishment provided under the Act. In this view, the appellants are directed to be released forthwith if not wanted in any other case.