Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 265 (RAJ)

Mohammed Alam v. State of Rajasthan

2017-01-23

PRASHANT KUMAR AGARWAL

body2017
JUDGMENT : Prashant Kumar Agarwal, J. 1. The accused-appellant has filed this Criminal appeal under Section 374 Cr.P.C. against the judgment and order dated 09.06.2010 passed by the Special Judge, NDPS Cases, Jaipur in Sessions Case No. 21/2007 whereby the learned trial Court convicted the appellant for offence under Section 8/20 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as "the Act") and sentenced him to undergo rigorous imprisonment for ten years and fine of Rs. one lac and in default thereof to further undergo rigorous imprisonment for one year. It is to be noted that co-accused-Shri Sujan Singh has been acquitted by the trial Court for the offence under Section 8/25 of the Act. 2. The appellant was arrested, charged and convicted in this case on the premise that on 24.6.2007, when search was made, narcotic drug (Ganja) weighing 30 kg. 500 gms. was recovered from his possession without any valid licence or permit. 3. Brief relevant facts for the disposal of this appeal are that on 24.6.2007, a secret information was received by Shri Madan Singh, SHO Police Station Brahmpuri, Jaipur through a Mukhbir to the effect that appellant will come riding a scooter bearing registration No. RJ14-19M-7865 from Sadwa carrying with him huge quantity of narcotic drug (Ganja), which information was reduced by SHO into writing as per Section 42 of the Act and intimation thereof was also given to higher police officers through telephone. As per prosecution story during "Nakabandi", appellant was seen coming on the aforesaid scooter who was stopped and on search being made in presence of two independent witnesses aforesaid narcotic drug weighing 30 Kg. 500 gms. was found in his possession in a bag which he was carrying with him on the scooter. The recovered narcotic drug was taken into possession and sealed after taking two samples from it and same were also sealed on the spot. The appellant was arrested and after doing required formalities investigation was conducted and charge-sheet for the aforesaid offence was filed against the appellant. The recovered narcotic drug was taken into possession and sealed after taking two samples from it and same were also sealed on the spot. The appellant was arrested and after doing required formalities investigation was conducted and charge-sheet for the aforesaid offence was filed against the appellant. During the course of investigation it was further found that at the time of recovery of the narcotic drug co-accused-Shri Sujan Singh was owner and in possession of the aforesaid scooter which he gave to appellant with knowledge that the same would be used for carrying/transporting the recovered narcotic drug and, therefore, supplementary charge-sheet for offence under Section 8/25 of the Act was filed against him. The appellant and co-accused were tried together and in order to prove charges against them prosecution produced oral as well as documentary evidence whereas appellant in his statement recorded under Section 313 Cr. P.C. denied the evidence produced by the prosecution, but in defence no evidence was produced. Learned trial Court after hearing the parties and evaluating and appreciating the evidence made available on record convicted the appellant as already stated, whereas co-accused was acquitted. 4. Assailing the impugned judgment and order, learned counsel for the appellant first of all submitted that from the evidence available on record and more particularly from the statement of independent witness PW2-Shri Babu Khan it is clear that provisions of Section 50 of the Act were not properly followed and option was not given to the appellant to the effect that he can be searched before a Gazetted Officer or a nearest Magistrate and in absence thereof the entire proceedings has become vitiated and appellant is liable to be acquitted on that account only. 5. On the other hand, learned Public Prosecutor in this regard contended that as no personal search was made of the appellant for the recovery of narcotic drug, provisions of Section 50 of the Act are not applicable and the same were not required to be followed. It was also contended that otherwise also from the evidence available on record it is clear that the aforesaid provisions were duly followed. 6. It was also contended that otherwise also from the evidence available on record it is clear that the aforesaid provisions were duly followed. 6. In the present case, recovery of narcotic drug has been effected from a bag which was allegedly carrying by the appellant on the aforesaid scooter and no personal search was made of the appellant for the recovery, the provisions of Section 50 of the Act are not applicable and the same were not required to be followed and, therefore, the submissions made on behalf of the appellant are liable to be rejected threshold without considering the fact whether in the present case the aforesaid provisions were properly followed or not. In the facts and circumstances of the case, appellant is not entitled to get benefit on this account. 7. It was further submitted on behalf of the appellant that as per prosecution case prior to the recovery secret information was received by the recovery officer from a Mukhbir, but even then weighing machine was not arranged before exercise was undertaken for recovery of the narcotic drug and it was brought only after appellant was stopped with scooter and a bag on it. It was submitted that it creates doubt in the prosecution case and benefit is required to be given to the appellant. 8. In the facts and circumstances of the case, aforesaid submission made on behalf of the appellant has no substance and it is to be rejected outrightly. Merely because prior to the recovery secret information was received by the recovery officer, it was not necessary for him to arrange for a weighing machine before proceeding for search and recovery of the narcotic drug as per the information received. I am of the view that unless prima facie it is found that the accused is having narcotic drug in his possession without any valid licence or permit which is required to be weighed, necessity of arranging weighing machine is not required and prosecution case cannot be doubted only on that account and, therefore, this submission made on behalf of the appellant is also rejected. 9. 9. Lastly, it was submitted by learned counsel for the appellant that as per evidence available on record the substance recovered from the appellant contained dry leaves and small branches of plant of cannabis and therefore, weight of the leaves and branches was required to be excluded from the total weight of the substance recovered but no such exercise was undertaken by the recovery officer and, therefore, it cannot definitely be said that the quantity of narcotic drug (Ganja) recovered from the possession of the appellant is commercial. It was further submitted that burden was on the prosecution to prove beyond reasonable doubt that the quantity was commercial and as the weight of leaves and branches of the cannabis plant found alongwith the flowering tops of the plant were not excluded from the total weight of the recovered substance, it must be presumed that the quantity of the actual "Ganja" was far less than commercial and as the appellant has already undergone about nine years of imprisonment out of ten years awarded by the trial Court, it would be in the interest of justice to reduce the sentence to the period of imprisonment already undergone by the appellant. 10. On the other hand, learned Public Prosecutor inviting attention of the Court towards definition of "Ganja" provided under the provisions of the Act, submitted that in the present case mixture of flowering tops as well as dry leaves and small branches of cannabis plant was found in the possession of the appellant and, therefore, weight of the entire substance recovered from the appellant is to be taken into consideration to determine the total weight of the substance and as the total weight of the recovered substance was found to be 30 Kg. 500 gms., the same is commercial in quantity. It was further submitted that as per FSL report also, the sample was found to be "Ganja". 11. In the facts and circumstances of the case and evidence made available on record this contention also of the appellant being meritless is liable to be rejected. From the evidence available on record at the most it can be said that in the substance recovered from the appellant dry leaves and small branches of cannabis plant were also found mixed with the flowering or fruiting tops of the cannabis plant. From the evidence available on record at the most it can be said that in the substance recovered from the appellant dry leaves and small branches of cannabis plant were also found mixed with the flowering or fruiting tops of the cannabis plant. Definition of "Ganja" has been provided in sub-clause (b) of clause (iii) of Section 2 of the Act and as per this provision "Ganja" is the flowering or fruiting tops of the cannabis plant excluding seeds and leaves when not accompanied by the tops by whatever name they may be known or designated. Although, according to this definition seeds and leaves of the cannabis plant are not included in "Ganja" but when seeds and leaves are mixed with the flowering or fruiting tops of the plant, then the entire substance is to be treated as Ganja although it contains seeds and leaves also. In the present case, in the substance recovered from the appellant it appears that dry leaves and small branches of the cannabis plant were mixed with the remaining part which consisted of flowering or fruiting tops of the cannabis plant, the entire substance i.e. 30 Kg and 500 gms. has to be treated as "Ganja" and the same being commercial quantity, no illegality has been committed by the trial Court for awarding minimum sentence of ten years to the appellant. As per FSL report also the sample was found to be "Ganja" which is admittedly a narcotic drug punishable under Section 8/20 of the Act. 12. No other submission of substance could be raised on behalf of the appellant to challenge the impugned judgment and order. 13. Consequently, the appeal being meritless is, hereby, dismissed.