Dev Ram alias Chintu vs State of Uttrakhand

Irshad Hussain, J.—The Appellant was tried in the court of I Ind Additional Sessions Judge, Nainital in Special Trial No. 131 of 1996 on the allegations that on 26.2.1996 at 6.00 p.m. at the crossing near mosque in the town of the Tanakpur, he was carrying with him 750 grams of charas and thereby he committed an offence punishable u/s 8(c)/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for the short N.D.P.S. Act).

Briefly stated the prosecution case is that on 26.2.1996 Sub-Inspector J. K. Gangwar (P.W. 3) along with constables Mangalsain (P.W. 1) and Tej Singh (P.W. 2) left the police station Tanakpur on patrol duty at about 4.20 p.m. When the police party reached the crossing near mosque a man coming from the side of the crossing was seen. On seeing the police party, he tried to escape. This aroused suspicion in the mind of the sub-inspector and other members of the police party. They intercepted that man near the crossing at 6.00 p.m. and inquired about his identity. On inquiry he told his name as Dev Ram alias Chintu and also told that he had charas in his possession. The sub-inspector then informed him that he has a legal right to be searched before a Gazetted Officer or a Magistrate but the culprit did not volunteer to avail the said right and told the police to take his search. On search being made about 750 grams of charas was recovered from his possession. It was kept in a polythene bag, which the said culprit was then carrying with him. He failed to show licence to possess the charas. No public witness could be procured at that time due to a chance recovery. The recovered contraband was sealed in a packet on the spot and a memo of sample seal was prepared. The memo of arrest and recovery (Ex. Ka-1) was also prepared on the spot. The signatures of the said culprit were obtained on the recovery memo and he was then brought to the police station with the recovered contraband and a case was registered against him. The recovered contraband was sent for chemical analysis and per report (Ex. Ka-6), the article was found to be charas weighing about 550 grams. The investigation of the case was taken up by S.I. Anil Kumar Tyagi (P.W. 4) who on completion of the investigation submitted charge-sheet (Ex. Ka-7) on 25.3.1996 against the Appellant.

The Appellant pleaded not guilty and claimed to be tried.

In order to prove its case the prosecution had examined constable Mangal Sain (P.W. 1), constable Tej Singh (P.W. 2) and S.I. J. K. Gangwar (P.W. 3) as witnesses of the fact and S.I. Anil Kumar Tyagi (P.W. 4), the Investigating Officer of the case.

The learned trial court believed the evidence of all the three witnesses of the fact in support of the prosecution allegations about interception of the Appellant at the place of occurrence, giving of information of legal right available to the Appellant to be searched before a Gazetted Officer or a Magistrate and recovery of charas from his possession. The plea raised by the Appellant that he was falsely implicated by the police after he was picked up from the railway station Tanakpur, was disbelieved. No infirmity in the investigation of the case by P.W. 4 which may have prejudiced the case of the Appellant was noticed and the learned trial court relying on the evidence of the prosecution convicted the Appellant u/s 8(c)/20 of the N. D. P. S. Act and sentenced him to rigorous imprisonment for ten years and to pay a fine of rupees one lac.

Heard Km. Geeta Parihar, Advocate (amicus curiae) for the Appellant and the learned A.G.A.

It was submitted by the learned Counsel for the Appellant that no public witness of the occurrence was made available by the police party to support their version of the occurrence although the occurrence is alleged to have taken place during day time and at a prominent place within the town of Tanakpur and that this aspect of the matter raises grave suspicion in the claim of the prosecution as well as in the veracity of the evidence of all the three witnesses. According to P.W. 1, P.W. 2 and P.W. 3, the occurrence took place when they were on patrol duty and the Appellant was intercepted when suspicion was aroused on the Appellant''s attempt to escape on seeing the police party and thus the same being a case of chance arrest and recovery there was no opportunity to procure any public witness at that time. There is nothing in the cross-examination of these witnesses which may in any way suggest that they have deliberately avoided presence of any public witness, at the time of interception of the Appellant and recovery of contraband. Considering this, the submission of the learned Counsel for the Appellant fails to make any dent in the prosecution version and its evidence.

It was next contended that there has not been compliance of mandatory provision of Section 50 of N. D. P. S. Act inasmuch as the oral evidence of the prosecution in regard to the factum of offer of search of the Appellant before a Gazetted Officer or a Magistrate is not supported by any documentary evidence and on this account the prosecution of the Appellant stands vitiated. In support of the contention, the learned Counsel for the Appellant placed reliance on the decision of Supreme Court in the case of State of Haryana v. Vikram Singh 2002 (4) SCC 730 and another decision of Apex Court in the case of Ran Singh v. State of Haryana 1997 SCC (Cr) 830. The Supreme Court in both the cases laid stress on the strict adherence to the principle and compliance of the provision of Section 50 of N. D. P. S. Act and also to produce evidence to show that the accused was made aware of his legal right to be searched before a Gazetted Officer or a Magistrate and that in the absence of any cogent evidence in this regard, the factor of search and the seizure could not be said to be in accordance with law thereby extending benefit to the accused. In the instant case all the three witnesses have stated in one voice that before search being made the Appellant was made aware of his said right and when he declined to the officer the search was made by the police party. Ex. Ka 1, is the memo of arrest and recovery of the contraband prepared on the spot itself and it also incorporates the compliance of the above mandatory requirement. In fact, this is a cogent documentary evidence which corroborates the evidence of the above witnesses in regard to the compliance of the above mandatory provision in letter and spirit. Consequently, the submission of the learned Counsel for the Appellant on this account also carries no force.

The learned Counsel for the Appellant also pressed into service another decision of the Apex Court in the case of State of Punjab v. Yashbir Singh and Ors. 1996 SCC (Cr) 1, to bring home the point of view that to prove the compliance of the above provision the police officer should have obtained in writing consent of the Appellant for his search by the police party despite offer to be searched before a Gazetted Officer or a Magistrate and since no writing was obtained by the police party it need to be held that the claim made by the prosecution witnesses is false. The submission does not carry conviction. Firstly, the facts of the reported cases were at variance and secondly in view of the decision of Constitution Bench of the Supreme Court in the case of State of Punjab Vs. Baldev Singh, , it has been held that, "it is however, not necessary to give information to the person to be searched about his right in writing and it is sufficient if such information is communicated to the concerned person orally and as far as possible in the presence of some independent and respectable persons witnessing the arrest and search. The prosecution must, however, at the trial, establish that the empowered officer had conveyed the information to the concerned person of his right of being searched in the presence of the Magistrate or a Gazetted Officer, at the time of intended search".

In short, the evidence of the prosecution in this case is proved to the hilt that the mandatory provisions of Section 50 of N. D. P. S. Act stand complied with in relation to the right of the Appellant, regarding the search.

Referring to the provisions of Sections 55 and 57 of N. D. P. S. Act, the learned Counsel for the Appellant submitted that as a safeguard against false implication of the Appellant the officer in charge of the police station should have put his seal on to the packet of the contraband allegedly recovered from the Appellant when the same was brought to the police station to be kept in the malkhana and further that full report about the arrest or seizure and relevant particulars need to be given by the arresting officer to his immediate superior officer and since the evidence in regard to the compliance of these provisions is not forthcoming in the case, the same have a bearing on the veracity of the evidence of the prosecution regarding the arrest of the Appellant and the seizure of the article. In support of the argument, the learned Counsel for the Appellant placed reliance on the decision of the Supreme Court in the case of Gurubux Singh v. State of Haryana 2002 SCC (Cr) 426. The Apex Court held that the provisions of Sections 55 and 57 of N. D. P. S. Act are directory and their violation thereof would not ipso facto violate the trial on conviction. This apart, so far as the provision of Section 55 of N. D. P. S. Act is concerned, the requirement is that the officer-in-charge of a police station shall take charge and keep in safe custody, pending orders of the Magistrate, all articles seized under this Act and which may be delivered to him and to fix his seal to such article or to take samples of and from them and also samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. In the instant case, the arresting officer S. I. J. K Gangwar (P.W. 3) was himself officer in charge of P. S. Tanakpur and he had after recovery of the contraband from the Appellant sealed the article on the spot and affixed his seal and also prepared the memo of sample sealed then and there. The article as recovered was sealed as such and no sample was taken either at the spot or thereafter and the same was sent for chemical analysis. The evidence of P.W. 3 as well as the Investigating Officer S. I. Anil Kumar Tyagi P.W. 4 is to the effect that the seized article in sealed state was brought to the police station with the Appellant and after registration of the case the sealed packet was kept in the malkhana of the police station and considering this, there was thus absolutely no necessity for the seized article to be delivered at the police station to the officer in charge and affixation of his seal on the same again before keeping it in the malkhana. This way even there was compliance of Section 55 of the Act in the matter of taking charge of the seized article and to keep the same in safe custody i.e. malkhana of the police station after the registration of the case. It would not be out of place to mention here that in the G.D. entry of the registration of the case. Ex. Ka 3, there is also reference to the said procedure of keeping the sealed packet in the police malkhana with an identity chit of the crime after registration of the case.

So far as the compliance of the provision of Section 57 of the N. D. P. S. is concerned, the arresting officer S.I. J. K. Gangwar P.W. 3 reiterated that the information of the arrest and seizure as well as particulars of the case was given by him on wireless to the immediate superior officer on 26.2.1996 itself. There is nothing on record, which may raise any doubt in the credibility of the witness in regard to his evidence about the said compliance also.

According to the prosecution version the article seized from the Appellant was weighing about 750 grams whereas the weight of the article was found to be only 550 grams by the chemical examiner vide its report Ex. Ka 6. It was argued that the discrepancy in the weight suggests that there was some tampering with the seal of the article and consequently, it could not have been safely held by the learned trial court that the charas seized was the same which was sent to the public analyst. No doubt, the weight of the article at the time of seizure has been alleged to be about 750 grams but it is of significance that the article seized was not weighed at the time of seizure for want of facility of weighing scale. It is in the evidence of the witnesses that the weight of the article was mentioned by guess work and whereas the public analyst had mentioned the weight of the article in the report after proper weighment. The learned Sessions Judge has adverted to this aspect of the matter in the judgment and rightly attached no undue importance to the difference of weight of the article as mentioned above.

It has come in the evidence of P.W. 3 as well as the Investigating Officer P.W. 4 that the article seized and duly sealed at the spot was as such safely kept in the malkhana of the police station and the same was sent for chemical examination. There is nothing to indicate that the sealed packet of the article seized was removed from the malkhana in between the said duration and the public analyst had reported in the report Ex. Ka 6 that the packet was found duly sealed and the seal of the same tallied with the sample seal received with the packet in due course through the special messenger. As proved by P.W. 4 the sealed packet of the article seized was sent through constable Bhim Singh vide memo, Ex. Ka-5, and there is endorsement on the memo that one polythene bag was received on 20.4.1996 in the chemical lab. The possibility of tampering with the seal is thus, in the circumstances of the case ruled out and in the facts of the case, the learned trial court has rightly taken the view that it is proved beyond doubt that the contraband (charas) seized was the same contraband (charas) which was sent to the public analyst. The report that the contraband was charas was based on scientific examination by the public analyst and in view of the evidence on record, it has rightly been held that the charge against the Appellant stands proved and he was rightly convicted u/s 8(c)/20 of the N. D. P. S. Act. As I do not find any substance in any of the contentions raised on behalf of the Appellant, his conviction as mentioned above is upheld.

As regards the sentence is concerned, by virtue of the amendment of the relevant provisions of N. D. P. S. Act, the provision regarding quantum of sentence stands modified. As per the notification under the relevant provision of the Act small and commercial quantities of the contraband have been separately categorized and provision for different sentences and also for the quantity of the contraband falling in between the two said categories has been provided. The Appellant was found in possession of 550 grams of charas which falls in between two categories namely, small quantity and commercial quantity and the punishment provided for possessing this much of the quantity of the charas is given u/s 20B of the N. D. P. S. Act. According to this the Appellant may be punished with rigorous imprisonment for a term which may be less than 10 years and to fine which may be less than one lac rupees. Pointing out of the facts and circumstances of the case and also the antecedents of the Appellant, who has no previous conviction to his credit, the learned Counsel for the Appellant submitted that the ends of justice may be satisfied even if the Appellant is sentenced to undergo R.I. for the period already undergone and a lesser amount of fine then imposed by the learned trial court. The Appellant was arrested on 26.2.1996 and since then he is in Jail and considering the said period, the submission of the learned Counsel for the Appellant cannot be said to be without substance and force. In the face of the facts of the case the sentence for imprisonment for the period already undergone and a fine of rupees ten thousand would be sufficient to meet the ends of justice.

The appeal is thus partly allowed. The period of sentence and fine imposed is modified and the Appellant is sentenced to the period already undergone and to pay a fine of rupees ten thousand u/s 8(c)/20 of N. D. P. S. Act. In default of payment of fine, the Appellant shall undergo rigorous imprisonment for six months.