Chatur Singh Gole vs State of Uttarakhand

Hon''ble Prafulla C. Pant, J.—This appeal, received through Superintendent District Jail, Dehradun, moved by the accused/appellant Chatur Singh Gole is directed against the Judgment and order dated 02.07.2010 passed by Special Sessions Judge/Sessions Judge, Champawat in Special Session trial no. 21 of 2009, whereby said court has convicted the accused Chatur Singh Gole u/s 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, and sentenced him to rigorous imprisonment for a period of ten years and directed to pay fine of Rs. 1,00,000/-. It has been further directed by the trial court that in default of payment of fine the convict shall undergo rigorous imprisonment for a further period of one year. Heard learned Amicus Curiae for the appellant and Learned brief holder for the State and peruse the lower court record.

Prosecution story in brief is that on 19.08.2009 at about noon, PW I Amit Kumar, Inspector, Customs along with PW 2 Raj Kumar Inspector, Customs and some other staff was on checking duty. Some 10-12 persons were seen coming from the side of Nepal, out of them one attempted hurriedly pass through the Customs barrier. Suspecting that he might be taking some contraband, the customs staff asked him to stop and one of the Sepoy ran and caught hold of the person trying to escape. On being apprehended, the person disclosed his name as Chatur Singh Gole S/o Shri Harkh Bahadur Gole, R/o Village Pakhura, District Makwanpur, Nepal. On taking search of the beg nothing objectionable was found. However, when his person was search the customs staff got suspicious. They told Chatur Singh Gole if he wishes his search could be made in the presence of some Magistrate or Shri S.A. Khan, a Gazetted Officer of customs department. Accused Chatur Singh Gole, opted to be search in the presence of Departmental, Gazetted Officer, Shri S.A. Khan. Two independent witnesses namely PW 3 Mohd. Farukh and another person Surat Singh were also called. When the accused Chatur Singh Gole was made undressed, under the T-shirt it was found that the accused had put on a markine cloth Jacket of two leaves and one cutting the pockets made of two leaves of Markine cloth, five kilograms Cannabis (CHARAS) was recovered. According to the customs staff the value of the Cannabis was Rs. 1,50,000/-. They prepared the recovery memo and got filed criminal case against the accused Chatur Singh Gole. It appears that on the complaint, PW 5 Piyush Kumar, Inspector Customs, investigated the case and cognizance of the offence was taken by the trial court.

The trial court after giving necessary copies to the accused as required u/s 207 of Cr.P.C., on 20.11.2009, framed charge of offence punishable u/s 8/20 of Narcotic Drugs and Psychotropic Substance Act, 1985 against the accused Chatur Singh Gole, who pleaded not guilty and claimed to be tried.

Thereafter, the prosecution got examined PW1 Amit Kumar, Inspector of Customs departments. PW 3 Mohd. Farukh, (public witness of the recovery), PW4 S.A. Khan, Superintendent Customs in whose presence search was made, and PW5 Piyush Kumar, Inspector Customs. The oral and documentary evidence was put to the accused u/s 313 Cr.P.C., in reply to which, he alleged that he is innocent. However, no evidence in defence was adduced. The trial court after hearing the parties found that prosecution has successfully proved charge of offence punishable u/s 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, and convicted him accordingly. After hearing on sentence, the convict was sentenced to rigorous imprisonment for a period of 10 years and directed to pay a fine of Rs. 1,00,000/-. Aggrieved by said Judgment and order dated 2.07.2010 passed by the Special Judge/Session Judge, Champawat in Special Sessions Trial No. 21 of 2009, this appeal is preferred by the convict.

PW 1 Amit Kumar, Inspector customs has stated that on 19.08.2009 at about 12.30 P.M., he was on checking duty along with other customs officers and the Staff at customs barrier, Banbasa. The witness has further stated that while checking the persons coming from and going to Nepal, accused Chatur Singh Gole was caught and recovery of five kilograms of Cannabis (CHARAS) was made in the presence of Shri S.A. Khan, PW 4 Superintendent of customs. The witness has further stated that the recovery was made in the presence of two public witnesses including Mohd. Farukh (PW3). PW 1 Amit Kumar has further told that the contraband recovered from the possession of accused Chatur Singh Gole was sealed in the sealed cover.

PW2 Rajkumar, who is another Inspector of Customs Department has corroborated the prosecution story as narrated by PW 1 Amit Kumar. Not only PW2, Rajkumar, Inspector, and PW3 Mohd. Farukh, a witnesses of public who runs a barber shop in Canal Colony, Banbasa, have also corroborated the prosecution story and the recovery of Cannabis made from the accused Chatur Singh Gole. All these three witnesses were subjected to lengthy cross examination, but nothing has come out which creates doubt their testimony.

PW4 S.A. Khan, Superintendent customs has also corroborated the statement that in his presence the search of Chatur Singh Gole was made by the customs staff the contraband memo was recovered.

Learned Amicus Curiae appearing for the convict/appellant submitted that the appellant has been falsely implicated. It is further pleaded that he is innocent. On the other hand, on behalf of the State, it is argued that five kilograms of Cannabis is much more than the minimum commercial quantity i.e. one kilogram, as such the same cannot be planted. It is further submitted on behalf of the State that there are public witnesses of the recovery and the search has been made in the presence of the Gazetted Officer.

In the above circumstance, it appears that the prosecution has fully complied with the conditions mentioning in Section 50 of Narcotic Drugs and Psychotropic Substances Act, 1985. Since the recovery of Cannabis from the appellant gets corroborated from the statements of public witnesses and also from the statements of the gazetted officer, the trial court has rightly found that charge stands proved against accused Chatur Singh Gole. The sentence awarded by the trial court is proportionate to the guilt found proved on the record. Therefore, this appeal is liable to be dismissed. Accordingly the same is dismissed. The Registry is directed to send copy of this judgment to the Superintendent of Jail concerned, where the appellant is serving out the sentence.

Lower court record is sent back.