Bans Bahadur vs State of U.P.

Ajai Kumar Singh, J.—This appeal has been preferred against the judgment and order dated 9.4.1997 passed by Sri S. K. Ratoori, the then First Addl. Sessions Judge, Siddharth Nagar in Criminal Case No. 19 of 1996. State v. Bans Bahadur, u/s 20(b)(ii) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') convicting and sentencing the Appellant-accused to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lac and in default of payment of fine to undergo a further imprisonment for 2 years.

Briefly stated the prosecution case is that on 15.3.1996, when Om Prakash, Station Officer, P. S. Debarua, district Siddharth Nagar alongwith other police officials was returning back from patrol duty and reached near Pachperwa crossing at about 3.50 a.m., a person was seen standing with a bag in his hand near a Hotel under suspicious condition. When that person was challenged by the first informant S. O. Om Prakash, he started running but was apprehended by the police party by using appropriate force. On enquiry, that person disclosed his name as Bans Bahadur and also stated that he had charas with him and because of this reason, he was running. On personal search, one kg. of charas was recovered from the bag he was having in his hand. Sample of the contraband article was taken from the seized contraband and then the sample and the remaining contraband article were sealed separately. Memo of recovery (Ex. Ka-2) was prepared at the spot and a copy of the same was given to the accused. Thereafter, the seized property and the accused were taken to the police station, where chik F.I.R. (Ex. Ka-2) was prepared on the basis of the recovery memo. Entries were also made in the G.D., the copy of which (Ex. Ka-3) has been proved by the prosecution. Investigating Officer prepared the site plan map (Ex. Ka-4). The sample of the seized contraband was sent for the chemical examination to the Scientific Laboratory and the test report disclosed the recovered contraband to be charas. After the close of the investigation, charge-sheet (Ex. Ka-5) has been submitted against the accused. Charge u/s 20(b)(ii) the Act was framed against the accused, who denied the charges and claimed to be tried.

To prove his case, prosecution examined Station Officer Om Prakash Srivastava, P.W. 1, Head Constable Rajendra Prasad, P.W. 2 and Arun Kumar Singh, P.W. 3.

In his statement u/s 313, Cr. P.C., the accused denied the entire prosecution story and has stated that he has been falsely implicated.

After considering the oral and documentary evidence on record, the learned trial court found the Appellant-accused guilty of the offence u/s 20(b)(ii) of the Act and convicted and sentenced him as mentioned above. Feeling aggrieved, the present appeal has been preferred by the accused.

I have heard learned Counsel for the Appellant and learned A.G.A. and have gone through the record.

The first argument put forward on behalf of the Appellant is that there has been violation of provisions of Section 50 of the Act inasmuch the Appellant-accused was not made aware of his right to give his personal search before a Gazetted Officer or a Magistrate, though the accused, before his search, had disclosed to the police party that he was having charas with him and for that reason he was running after seeing the police party. Hence, the entire proceeding is vitiated. To the contrary, learned A.G.A. argued that in the present case, the contraband article (charas) has been recovered from the bag, which the Appellant-accused was having in his hand at the time of seizure. Hence, it is not a case of personal search and the provisions of Section 50 of the Act are not attracted. In support of his contention, he placed reliance upon the decisions in the case of State of Haryana v. Ranbir alias Rana (55)2006 ACC 522: 2006 (2) ACR 1983 (SC); State of Punjab v. Baldev Singh (39)1999 ACC 349 (SC): 1999 (2) ACR 1694 (SC) and Shri Satyawan Pagi and Another Vs. Union of India (UOI) and Another,

In State of Haryana v. Ranbir alias Rana (supra), the Hon''ble Supreme Court has held as under :

The question as regards applicability of Section 50 of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different Benches as also difference of opinion between two Judges of this Court in State of Himachal Pradesh v. Pawan Kumar (50) 2004 ACC 900: 2004 (3) ACR 2779 (SC), the question was referred to a larger Bench. A three-Judge Bench of this Court in State of Himachal Pradesh etc. v. Pawan Kumar (52)2005 ACC 710: 2005 (2) ACR 1291 (SC), relying on or on the basis of a large number of decisions and in particular the decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh (39)1999 ACC 349 (SC): 1999 (2) ACR 1694 (SC), clearly held that Section 50 of the Act, would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying.

In the present case, the contraband article has been recovered from the bag in the hand of the Appellant-accused. Hence, in view of the principle of law laid down in State of Haryana v. Ranbir alias Rana (supra), I am of the opinion that the provisions of Section 50 of the Act will not be attracted. The contention of the learned Counsel for the Appellant that there has been violation of provisions of Section 50 of the Act has no force and is not liable to be accepted.

The next argument put forward on behalf of the Appellant-accused is that there is no public witness of the recovery which makes the entire prosecution case doubtful. I do not find any force in this argument of the learned Counsel for the Appellant. It is clear from the recovery memo that the arrest is of 3.50 a.m. Hence, there is no likelihood of presence of any public witness near the place of recovery. Witness of recovery P.W. 1 has also narrated that at the time of recovery, none was present and there was complete silence at the place of recovery. Thus, under these circumstances, I find that only police witnesses (members of police party) could be available as witnesses of recovery. There is nothing on record to show that the police witnesses were biased with the Appellant in any way. In my opinion the testimony of the police witnesses cannot be doubted only on the ground that the witnesses are the police officers/officials. I find that merely on the ground that there is no public witness of the occurrence, genuineness of the recovery proceedings cannot be doubted.

No other argument has been put forward on behalf of the Appellant-accused.

From the above, I find that the prosecution case is fully established by the documentary and oral evidences adduced during trial. No material contradictions have been pointed out in the statements of the prosecution witnesses. The provisions of Section 50 of the Act are not attracted. There is no material on record to show that the Appellant-accused has been falsely implicated as has been stated in his statement u/s 313, Cr. P.C.

Thus, I am of the opinion that the prosecution has successfully proved its case beyond reasonable doubt and the judgment and order of the court below does not suffer from any infirmity. The conviction of the Appellant is upheld.

As regards the question of sentence, since the Appellant has already been awarded a minimum sentence, i.e., 10 years rigorous imprisonment and a fine of Rs. one lac for the offence, as provided u/s 20(b)(ii) of the original N.D.P.S. Act (i.e., prior to its amendment in the year 2001), hence it does not require any change. But as regards the additional sentence of two years imprisonment in default of payment of fine of Rs. 1 lac, in my opinion, it is disproportionate and ends of justice would meet if the same is reduced to one year only.

In the result, the appeal is partly allowed. While upholding the conviction of the Appellant u/s 20(b)(ii) of the Act and upholding the sentence of rigorous imprisonment of 10 years and a fine of Rs. one lac, the sentence awarded by the trial court in default of payment of fine is modified to the extent that additional sentence of two years imprisonment in default of payment of fine of Rs. 1 lac is reduced from two years to one year only.

Let the lower court record be sent back to District Judge, Siddharth Nagar without delay alongwith a copy of this judgment for compliance and for making entry in the relevant record. Compliance report be submitted within two months.