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2007 DIGILAW 718 (PAT)

Satya Prakash Ram v. State Of Bihar

2007-04-10

GHANSHYAM PRASAD

body2007
Judgment GHANSHYAM PRASAD, J. 1. This appeal has been preferred against the judgement of conviction and order of sentence dated 25.7.2005 passed by the Sessions Judge Cum Special Judge, Buxar in N.D.P.S. Act case no. 5 if 2003. The sole appellant has been convicted under Sec. 21(b) read with Sec. 32B of the Narcotic Drugs and Psychotropic Substance Act, 1985 (In short N.D.P.S.Act) and sentenced to undergo rigorous imprisonment for nine years with fine of Rs. 60,000/- and in default to further undergo rigorous imprisonment for one year. 2. The prosecution story in short is that on 28.1.2003 at 2.00 P.M. Sub-Inspector, Manoranjan Bharti (P.W. 4) of Rajpur police station received a secret information regarding hiding of some miscreants at the residence of Jai Paswan of Village Dadura. He entered the information as Sanha no. 780 dated 28.1.2003. Thereafter he along with armed party left for that village. While they were passing through Tiara market they saw gathering of 15-20 persons in front of a clinic. Seeing the police party they all dispersed. The Sub-Inspector, who is the informant of the case, entered into the clinic and saw a person sitting on a chair. On interrogation he introduced himself as Dr. Satya Prakash Ram (appellant) a Dentist. When the informant tried to inquire about the gathering he attempted to go out on plea of urinating. However, he was prevented. The person of the appellant was searched in presence of local witnesses, namely, Sahabuddin (P.W. 5) and Akhilesh Kumar (P.W. 6). After completion of legal formalities the Sub-Inspector recovered a small packet containing brownish powder (Heroin) for which the appellant had no account. The appellant admitted of dealing in business of illicit substance. The weight of Heroin was found to be about 10 grams. The seizure list was also prepared by the informant upon which the signatures of the witnesses were also taken. The sample of the alleged Heroin was sealed in packets. The appellant also put his signature on the sealed packets and one of it was sent to the chemical analyst for examination. 3. The investigation was conducted by Kanhaiya Thakur A.S.I. (P.W. 2) on the basis of Fardbeyan lodged by Manoranjan 3harti (P.W. 4). Ultimately the charge-sheet was submitted against the appellant under Section 21(b)/32B of N.D.P.S. Act. 4. The appellant also put his signature on the sealed packets and one of it was sent to the chemical analyst for examination. 3. The investigation was conducted by Kanhaiya Thakur A.S.I. (P.W. 2) on the basis of Fardbeyan lodged by Manoranjan 3harti (P.W. 4). Ultimately the charge-sheet was submitted against the appellant under Section 21(b)/32B of N.D.P.S. Act. 4. In course of the trial the prosecution examined altogether six witnesses including the informant as P.W. 4, Investigating Officer as P.W. 2 and the seizure list witnesses as P.Ws. 5 and 6. 5. The defence is total denial of the occurrence and false implication. However, no witness has been examined in support of defence. 6. In course of argument learned counsel for the appellant challenged the judgement in question both in law as well as on facts. It is submitted that provision of Section 50 of N.D.P.S. Act was not complied, which is mandatory. A vague statement has been made regarding its compliance. No independent witness has been examined in support of the prosecution story. All independent witnesses have turned hostile. Only interested witnesses have supported the prosecution case. Further submission of learned counsel for the appellant is that the sentence awarded by the court below is disproportionate to the quality of Heroin alleged to be recovered from the possession of the appellant. 7. So far the compliance of provision of Sec. 50 of N.D.P.S. Act is concerned, there are both oral as well as documentary evidence. The informant (P.W. 4) who conducted the search of the person of the appellant in his examination-in-chief at page 3 has stated that he had asked the appellant as to whether he desired to be searched in presence of any Gazetted officer to which he refused. The option of being searched in presence of officer was also given in writing through Ext. 4. The appellant in his own hand writing and pen over Ext.4 also gave written consent to be serached without presence of any Magistrate. This fact has also been supported by other witness, Sukhdeo Prasad (P.W. 3). In cross examination the defence has not challenged the hand writing and signature of the appellant. The only suggestion is that the same was obtained by force. 8. Thus from the above material it is quite clear that there was no violation of mandatory requirement of provision of Section 50 of N.D.P.S. Act. In cross examination the defence has not challenged the hand writing and signature of the appellant. The only suggestion is that the same was obtained by force. 8. Thus from the above material it is quite clear that there was no violation of mandatory requirement of provision of Section 50 of N.D.P.S. Act. The person of the appellant was searched after complying the provision of Section of 50 of N.D.P.S. Act. Accordingly, I do not find any merit in the above contention of the learned counsel for the appellant. 9. Ext.3 is the seizure list prepared by the informant (P.W. 4). It bears the signature and endorsement of the local witnesses, namely, Akhilesh Kumar Singh (P.W. 6) and Md. Sahabuddin (P.W. 5). Exts. 2/2 and 2/3 are their signatures and endorsement. The seizure list also bears the signature of the appellant, which is Ext. 2/1. It goes to show that the copy of the seizure list was given to the appellant. Both seizure list witnesses have been examined as P.Ws. 5 and 6. Both of them have admitted their hand writing and signatures upon the seizure list but have turned hostile. However, their endorsement on seizure list would clearly go to show that 10 grams of Heroin was recovered from the possession of the appellant in their presence. 10. P.W. 4 is the informant and P.W. 3 is another witness, who was member of raiding party. Both have fully supported the fact of seizure and recovery of 10 grams Heroin from the possession of the appellant. They have been cross-examined by the defence at length. However, I donot find any material to discard their evidence. 11. Ext.7 is the report of chemical analyst. According to the report sample sent for analysis was Heroin, highly addictive intoxicating narcotic drug. P.W. 4 in his evidence has given description how the sample was packed and sealed in two tin dibiyas in presence of local witnesses. One of the sealed dibiyas is material Ext.l. Both local witnesses have admitted their signatures on label of dibiya as Exts. 6 and 6/1. 12. Sec. 54 of N.D.P.S. Act lays down the law regarding presumption of crime by mere possession of illicit articles unless and until the contrary is proved. In this case the appellant has not given any account for possession of heroin. 6 and 6/1. 12. Sec. 54 of N.D.P.S. Act lays down the law regarding presumption of crime by mere possession of illicit articles unless and until the contrary is proved. In this case the appellant has not given any account for possession of heroin. There is also nothing in defence version to show any satisfactory account for the same. The defence is of general nature with regard to false implication. 13. Thus, on the above discussion it is quite clear that prosecution has been able to prove the fact of recovery of heroin from the possession of the appellant. The learned lower court has rightly convicted the appellant under Sec. 21(b) of the N.D.P.S. Act. I find no reason to interfere with the judgement of conviction recorded by the court below. 14. The learned lower court with the help of Sec. 32B of the N.D.P.S. Act has awarded sentence of nine years rigorous imprisonment with a fine of Rs. 60,000/- and in default to further undergo rigorous imprisonment for one year. However, Sec. 32B of the N.D.P.S. Act is not applicable in this case. Section 32B of the N.D.P.S. Act is meant for awarding higher sentence taking into account the certain factors enumerated in the Section only in a case where minimum term of imprisonment or amount of fine is prescribed. In Section 21(b) of the N.D.P.S. Act there is no such provision. No minimum sentence or fine has been prescribed for the offence. Only upper limit has been prescribed. 15. In this case the appellant was found in possession of only 10 grams of Heroin which is much below than the commercial quantity and just above the small quantity. The commercial quantity prescribed under the N.D.P.S. Act is 250 grams and small quantity is 5 grams. Thus, taking into consideration the entire facts and circumstances of the case, this Court is of the opinion that the quantum of sentence awarded by the lower court is disproportionate to the nature of crime. In my opinion the sentence of rigorous imprisonment for four years with fine of Rs. 50,000/- and in default of payment of fine to further undergo rigorous imprisonment of nine months is sufficient to meet the ends of justice. 16. Accordingly, the sentence awarded to the appellant by the lower court is hereby modified to the above extent. 17. In my opinion the sentence of rigorous imprisonment for four years with fine of Rs. 50,000/- and in default of payment of fine to further undergo rigorous imprisonment of nine months is sufficient to meet the ends of justice. 16. Accordingly, the sentence awarded to the appellant by the lower court is hereby modified to the above extent. 17. In the result this appeal is dismissed with above modification in sentence.