Jurgen Ludwig Schmitt vs State of H.P.

Lokeshwar Singh Panta, J.—This appeal is directed against the judgment and order dated 8.3.2000 of Special Judge, Kullu in Sessions Trial No. 18 of 1999 convicting the Appellant-accused u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ''the Act'') and sentencing him to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00000in default to undergo simple imprisonment for two years. In order to appreciate the controversy, we are herewith giving the essential facts.

As per the prosecution story, on 15.1.1999 at about 9.30 a.m. PW 10 ASI. Sh. Kanwar Singh along with PW-9 Constable Om Chand and other police officials was on routine patrol duty in Manikaran Bazar. PW-10 received a secret information that one foreign national having beard and wearing white clothes and putting imprinted shawl of ''Hare Rama Hare Krishna'' was coming from Sangna bridge to Manikaran side who had ''charas'' in his possession. PW-10 sent information in writing Ext. PW-6/ A u/s 42(2) of the Act to his superior officer and himself in the company of other police officials proceeded towards bus stand, Manikaran where he associated two independent witnesses, namely PVV-1 Diwan Singh and PW-2 Ram Prasad in the raiding party. At about 10 a.m. a foreign national reached at bus stand Manikaran carrying one bag in his hand and second bag on his back who on inquiry was the accused a Chilena National. The police party asked him to produce his passport which on verification was found valid. PW-10 then told the accused that he had the suspicion that he (the accused) was in possession of ''Charas'' in his bag. Consent memo Ext. PW-1/A was prepared by PW-10 apprising the accused whether he opted to be searched in the presence of Magistrate or the gazetted officer. The accused agreed to give his search to PW-10 in the presence, of P Ws 1 and 2 independent witnesses. Before the bag of the accused was searched, PW-10 ASI. Kanwar Singh gave his personal search vide memo Ext. PW-10/A to the Police Officials. On search of the bag of the accused besides his personal luggage, one plastic envelop was recovered by the police containing ''Charas'' in the presence of P Ws 1 and 2. On regiment the weight of the ''Charas'' was found 500 grams out of which two samples of 25 grams each were taken which were sealed with seal impression ''K'' in packets and the remaining ''Charas'' was also sealed in separate packets. The seal impression ''K'' after its use was handed over to PW-1. The accused was also informed about the grounds of arrest vide memo Ext. PW-l/C. Thereafter Rukka Ext. PW-7/A was sent to Police Station Kullu by hand of PW-9 at about 11.30 a.m. On the basis of Rukka formal First Information Report Ext. PW-7/B was registered by PW-7 Nihal Chand Inspector/S.H.O., Police Station, Kullu at 2. p.m. The accused was arrested by PW-10 at the spot. After registration of the case PW-7 Station House Officer immediately reached at the spot. He took into possession three sealed parcel produced by PW-10 which were re-sealed by him with seal impression ''H''. N.C.B. form was also prepared by PW-10 on which specimen seal of impression ''H'' was appended by PW-7. PW-7 prepared site plan mark Ext. PV7/C at the spot and also recorded the statements of the witnesses u/s 161 Code of Criminal Procedure On return to Police Station, PW-7 deposited the case property to PW5 Moharer Head Constable Lal Chand in the Police Station together with N.C.B. form on 16.01.1998. PW-7 personally handed over the special report Ext. PW6/B prepared u/s 57 of the Act to the Deputy Superintendent of Police Kullu. On 18.1.1998 one sealed parcel of the ''Charas'' was sent by PW-5 in hand of PW4 Constable Dharam Chand to Forensic Science Laboratory, Kandaghat together with N.C.B. form in triplicate and sample of seal.

On analysis of the contraband, the Chemical Examiner of Forensic Science Laboratory, Kandaghat (Himachal Pradesh) found the contents of the contraband ''charas'' and submitted his report Ext. PW-7/D. On receipt of the report PW-7 submitted charge-sheet against the accused for the commission of the offence u/s 20 of the Act. The accused pleaded not guilty to the charge and claimed to be tried.

In the trial, the prosecution examined as many as nine witnesses.. The defence of the accused in his statement recorded u/s 313 Code of Criminal Procedure was complete denial. He pleaded that the prosecution witnesses have made false statements against him. He claimed himself innocent. The trial Court on appraisal and scrutiny of the entire evidence came to the conclusion that the prosecution has established'' beyond reasonable doubt that the accused has committed an offence punishable u/s 20 of the Act, hence convicted and sentenced the accused as aforesaid.

Feeling aggrieved against the judgment and order of the learned trial Court, the accused has challenged his conviction and sentence in this appeal.

Mr. R.L. Sood, learned Counsel vehemently contended that the investigation of this case is tainted and unworthy of reliance for the reasons that:

(a) seizure memo Ext. PW-l/B of the Charas as well as information regarding grounds of arrest of the accused mark Ext. PW-l/C, were prepared by the Investigating Officer after lodging of the First Information Report Ext. PW-7/B by PW-7 at Police Station, Kullu as the number of the FIR was contained on both these documents which could not have been mentioned if the investigation of the case was held by PW-10 ASI Kanwar Singh at the spot before sending Rukka Ext. PW-7/A to the Station House Officer for registration of the case; was arrested by PW-10 on the spot. The evidence of PW-10 has been corroborated by PW-9 Constable Om Chand. Both P Ws 1 and 2 independent witnesses have clearly stated in the Exami nation-in-chief that they were present at the spot when the accused was apprehended by PW-10 and ''Charas'' was seized from his possession in their presence. It is the evidence of PW-1 that on 15.1.1999 at about 9.10 a.m. when he was going to attend his duty as Clerk engaged in Manikaran taxi union, there were 3- 4 policemen besides PW-2 present at bus stand Manikaran. PW- 10 demanded pass port from the accused which was produced by him. Consent memo Ext. PW-1/A about search of the accused was prepared by PW-10 and at that time the accused was car rying two bags i.e. one bag at his back and other bag he was holding in his hand. On search of one bag, some clothes and one polythene envelop were found therein on opening the polythene envelop ''Charas'' was found therein. On weighing 500 grams of ''Charas'' was found from the bag of the accused. PW10 prepared parcels of the seized ''Charas'' and they were sealed with seal impression ''K'' which was handed over to PW-1 after use. The grounds of arrest were also disclosed to the accused vide memo Ext. PW-l/C. ''Charas'' Ext. Pl recovered from the accused was the same. He was however, declared hostile, yet he has admitted in the cross-examination of the learned Public Prosecutor that accused after going through the contents of consent memo Ext. PW-1 /A gave his consent in writing and also appended his signature thereon in his presence. He has emphatically denied the suggestion of the accused that consent memo Ext. PW-1 /A was prepared at Police Station, Kullu. He has clearly and plainly asserted that Memo Ext. PW-l/B regarding recovery and taking into possession of 500 grams of ''Charas'' from the possession of the accused bears his signature and it was prepared at the spot by PW-10 before arrival of PW-7 Nihal Chand Station House Officer. Information regarding the ground of arrest mark Ext. PW-l/C was also prepared by PW-10 at the spot before arrival of Station House Officer which also bears his signature. 7. PW-2 at the relevant time was serving as agent of Traveling Agency, Manikaran. In his presence on 15.1.1999 at about 10/10.30 a.m. Police demanded passport from the accused at Bus stand Manikaran. He has deposed that consent Memo Ext. PW-1 /A was prepared by the Police in his presence and in the presence of PW-1. On search of the bag of the accused one polythene envelop containing 500 grams of ''Charas'' was recovered. Samples of the seized ''Charas'' and remaining quantity of ''Charas'' were sealed with seal impression ''K'' and seal after use was handed over to PW-1 at the spot. The ground of arrest was also disclosed to the accused vide Memo Ext. PW-l/C. On documents Exts. PW-1/A, PW-l/B and PW-l/C he appended his signatures. Though this witness was declared hostile by the prosecution yet we find from his examination-in-chief that he has categorically admitted his presence on the spot and participated as an independent

(b) that from the manner and tenor of the investigation, it seems that the accused was already arrested before Rukka was despatched by PW-10 to the Police Station for lodging FIR;

(c) that the accused does not understand English language being Chilena National and whatever was scribed by PW-10 in consent memo Ext. PW-l/A and on information regarding grounds of arrest Ext. PW-l/C in English language could not be understood by him and, therefore, no reliance can be placed on both these documents to connect the accused with the commission of the offence. To appreciate the contention of the learned Counsel to find out whether the investigation was in fact tainted or faulty, we propose to scrutinize the evidence adduced on record and relied upon by the learned trial Court. The statement of PW-10 ASI Kanwar Singh shows that on 15.1.1999 when he was on patrol duty along with PW-9 Constable Om Chand and other police officials in Manikaran bazar, he received secret information that one foreign National coming from Sangna side had ''Charas'' in his possession. He immediately sent information mark Ext. N PW-6/A to the head quarter u/s 42(2) of the Act which was handed over to the Deputy Superintendent of Police, Kullu by PW-3 Constable Irder Singh as per his version. PW-10 along with PW-9 reached at bus stand Manikaran where two independent witnesses, namely, PW-1 Diwan Singh and PW-2 Ram Prasad were associated by him. At about 10 a.m. the accused reached , at bus stand Manikaran where his passport was checked by PW-10. The accused was asked by PW-10 in the presence of P Ws 1, 2 and 9 that the police suspected him carrying ''Charas'' on his person and whether he wanted to give his search in the presence of gazetted officer or Magistrate. The accused gave his written v. consent of personal search to PW-10 vide consent memo Ext. PW-'' 1/A. Before the search of the accused P-10 gave his personal search vide memo Ext. PW-10/A in the presence of P Ws 1 and 2 which bears their signature and signature of the accused. On search of the bag of the accused some personal items were found there in besides one polythene envelop containing ''Charas''. On regiment of the ''Charas'' it was found 500 grams out of which two samples of 25 grams each were taken which were sealed with seal impression ''K'' in the presence of P Ws 1, 2 and 9 and the remaining quantity of ''Charas'' was also sealed separately. Recovery memo Ext. 1/ B was prepared at the spot and the seal impression ''K'' which was used in sealing the parcels was handed over to PW-1. the by accused was also informed about the grounds of arrest vide memo Ext. PW-l/C. Thereafter Rukka Ext. PW-7/A was sent to Police Station through PW9 for registration of formal FIR against the accused. On receipt of Rukka, PW7 Shri Nihal Chand Station House Officer registered FIR Ext. PW7/B at Police Station, Kullu and thereafter he immediately reached at the spot and conducted further investigation of the case. In the meantime the accused witness in the proceeding conducted by PW-10 on the spot. A suggestion put on behalf of the accused in the cross-examination that consent Memo Ext. PW-l/A was prepared by the Police at Police Station, Kullu has been specifically denied by him. It is also denied that the accused had not appended his signature on the consent memo. In the teeth of the overwhelming evidence of P Ws 1, 2, 9 and 10, discussed hereinabove, it is clearly proved that the consent memo Ext. PW-l/A; memo Ext. PW-l/B regarding recovery and taking into possession of 500 grams ''Charas'' from the possession of the accused and information regarding the grounds of arrest mark Ext. PW-l/C were prepared by PW-10 on the spot which were duly signed by both the independent witnesses as well as by the accused. It is true that documents Exts. PW-l/B and PW-l/C both do contain the number of the FIR, but the accused has not whispered a single word in his statement recorded u/s 313 Code of Criminal Procedure that these documents were not prepared by the Investigation Officer at the spot but they were prepared later on in the Police Station. No suggestion is put either to PW7 Nihal Chand Station House Officer or PW-10 ASI Kanwar Singh by the accused in their cross-examination that these documents were prepared by them in the Police Station after recording the First Information Report and the number of the FIR was incorporated on those documents in the Police Station. It is clearly proved by P Ws 1, 2, 7, 9 and 10 that these documents were prepared by PW-10 at spot before the registration of the First Information Report and arrival of PW-7 at the spot. It may be possible that after the registration of the First Information Report at Police Station, Kullu the number of the FIR might have been recorded on those documents when PW-7 reached at the spot. The recording of the number of the FIR on those documents will not by itself make the investigation tainted or doubtful once the testimony of the witnesses that those documents were prepared before recording of the First Information Report is found reliable and credible and is accepted. The ratio of the decision of the learned Single Judge of Delhi High Court in Mohd. Hashim Vs. State, relied upon by the learned Counsel on behalf of the accused will be of no help and assistance to him in the facts and circumstances of this case. In Gabriel v. State of H.P. 1989 (1) Sim: L.C. 78, a Division Bench of this Court on the facts of that case has held that seizure memo, according to the prosecution was prepared at the spot could underno circumstances contain the number of the FIR recorded in Police Station; no independent witness was associated by the Investigating Officer at the time of the search and seizure of the contraband from the accused nor the mandatory provisions of Sections 50, 52(1) and 57 of the Act were complied with by the Investigating Officer and on the basis of material infirmity and illegality the accused in that Y case was acquitted by a Division Bench. As has been stated hereinabovein the present case, the evidence of P Ws 1, 2, 7, 9 and 10 is cogent and convincing to prove that all the documents were prepared prior to the registration of the First Information Report and if Exts. PW-l/B and PW-l/C do contain the number of the FIR, the trial of the accused cannot vitiate on this ground. The accused had written the following words on consent memo Ext. PW-l/A in his own hand duly signed by him:

I am agree to give my search to you." In document Ext. PW-l/C the accused had written in his own hand the following words:

I tried and can''t understand until today explained not to be self (sic) sign until today explained and being lawyer.

From the examination of the hand written words and signature appended on the material documents by the accused in English, it cannot be said that the accused does not know nor he could understand the English language. The accused has been put questions in English language u/s 313 Code of Criminal Procedure and after understanding them replied in English and thereafter put his signature in English. From the record of the learned Sessions Judge, we find that the accused had filed two hand written applications in English duly signed by him dated 27.9.1999 and 12.11.1999 respectively before the learned Sessions Judge for exchange of money and making an international phone call to his family in every second week. Similarly, some other typed written applications were also signed by him in English and the power of attorney of the learned Counsel appearing on his behalf before the trial Court was also signed by him in English. In this view of the matter, we are not persuaded to except the contention of the learned Counsel that the investigation of the case was tainted or faulty for the above said reasons.

Mr. R.L. Sood next contended that the seized drug was not connected with the accused as the prosecution has not proved that it was the same drug which was sealed at the spot by PW-10 with seal impression "K" which was sent to the Chemical Examiner for analysis since seal mark "K" was not produced by PW-1 in the Court. It is the clear statements of P Ws 1, 2 and 10 that the packets of sample and remaining ''Charas'' were sealed by PW-10 on the spot with seal impression "K" which was handed over to PW-1 after its use. When PW-7 reached at the spot, he re-sealed the parcel with seal impression "H" and thereafter deposited them in Malkhana in the custody of PW-5 Constable Lai Chand who on 18.1.1999 sent one sealed parcel through PW-4 constable Dharam Chand to Forensic Science Laboratory, Kandaghat along with N.C.B. form for chemical analysis.P Ws 4 and 5 have categorically stated that the sealed parcels remained intact so long, they were kept in their custody. In report Ext. PW-7/D of the Chemical Examiner against entry at serial No. 6 it finds stated that one sample parcel of ''Charas'' of 25 grams sealed with six impression of seal "K" and re-sealed with six impression of seal "H" were received from the police department, Police Post, Manikaran in respect of FIR No. 52/99 dated 15.1.1999 u/s 20 of the NDPS Act. Description impression of two seals "K" and "H" were also given against serial Nos. 7(a) and (b). PW-7 Station House Officer, Nihal Chand has stated that he appended his seal impression "H" for re-sealing of the parcels and on N.C.B. form at point ''A'' of report Ext. PW-7/D on re-appraisal and scanning-of the evidence of P Ws 2, 4, 5, 7 and 10 it is proved beyond any shadow of doubt that sample parcels and other parcels were sealed by PW-10 at the spot with seal impression ''K'' and resealed by PW-7 with seal impression ''H''. All the parcels were kept in safe custody and both seals remain intact till the parcels were handed over to the Chemical Examiner by PW-4 constable Dharam Chand and the report of the Chemical Examiner corroborates the oral testimony of P Ws 4 and 5. It is not in dispute that seal mark "K" handed over to PW-1 after its use by PW-10 on the spot was not produced by PW-1 before the trial Court but his version was that the seal mark ''K'' had been misplaced by him. In the face of clear and positive evidence on record, we do not find any substance in the contention of the learned Counsel for the accused that the accused was not connected with the seized ''Charas'' nor it can be held that non-production of the seal by PW-1 in the Court will vitiate the trial.

Mr. R.L. Sood, learned Counsel next contended that the inves tigation was not fair as it was conducted by PW-10 ASI. Kanwar Singh who was in the capacity of the complainant and, therefore, the accused deserves to be acquitted on this sole ground. In support of this submission reliance has been placed on Gyan Chand Vs. The State of Rajasthan, ; Megha Singh Vs. State of Haryana, and Gurmit Singh Vs. State of Punjab, We have considered the ratio of the decisions recorded in those judgments. In Gyan Chand v. State of Rajasthan (supra), the learned Single Judge of Rajasthan High Court has held that Circle Inspector who seized unauthorized opium from the accused made further investigation personally and his status was that of a complainant and therefore, he was not a proper authority to investigate the case as such investigation was violative of principles of criminal jurisprudence. In Megha Singh Vs. State of Haryana, their Lordships have held as under: (AIR page 2340 para 4)

After considering the facts and circumstances of the case, it appears to us that there is discrepancy in the depositions of the P Ws 2 and 3 and in the absence of any independent corroboration such discrepancy does not inspire confidence about the reliability of the prosecution case. We have also noted Anr. disturbing feature in this case. PW 3, Chand, head Constable arrested the accused and on search being conducted by him a pistol and the cartridges were recovered from the accused. It was on his complaint a formal First Information Report was lodged and he case was initiated. He being complainant should not have proceeded with the investigation of the case. But it appears to us that the was not only the complainant in the case but he carried on with the investigation and examined witnesses u/s 161 Code of Criminal Procedure Such practice, to say the least, should not be resorted to so that there may not be any occasion to suspect fair and impartial investigation.

In the present case PW-10 ASI Kanwar Singh on a prior secret information reduced the said information in writing and dispatched a copy Ext. PW-7/A of the information to his immediate superior officer under Sub-section (2) of Section 42 of the Act. He recorded the consent memo of the accused to search his bag in the presence of the witnesses; seized ''Charas'' from his one bag; communicated the grounds of arrest to the accused and then sent Rukka to the Police Station for registration of the formal First Information Report against the accused. After registration of the FIR at Police Station Kullu, PW-7 Nihal Chand, Station House Officer immediately reached at the spot and started further investigation. He recorded the statements of the witnesses u/s 161 Code of Criminal Procedure on the spot; prepared site plan Ext. PW-7/C and re-sealed the sample parcels and other parcels with seal impression "H". He has also appended specimen seal on N.C.B. forms at point "A" appearing on the report of the Chemical Examiner mark Ext. PW-7/D. u/s 42(1) the empowered officer if he has a prior information given by any person, that should be necessarily taken down in writing, the empowered officer is authorized to seize such drug and arrest the accused. There is no evidence on record to prove that PW-10 was not authorized to carry out the search. The invalidity of the search or seizure would not vitiate the trial unless such invalid search and/or seizure has resulted in causing prejudice to the accused. Nothing has been pointed out to us during the course of hearing to show that some prejudice has been caused to the accused due to invalid search/seizure, preparation of the documents on record and arrest of the accused by PW-10. The major part of the investigation was required to be conducted immediately after the accused was apprehended at bus stand Manikaran before the registration of the formal First Information Report at Police Station, Kullu which is about 46 K.M. away from the place of occurrence as is evident from perusal of FIR Ext. PW-7/B. In this background ASI. PW-10 could not postpone the investigation after apprehending the accused and recovering the contraband from searching his bag. It was for him to send Rukka for registration of FIR and thereafter arrest the accused after informing him of the grounds of arrest and hand over the other seized articles to the Incharge of the concerned Police Station and thereafter sent the report to his immediate superior officer as required under Sub-section (1) of Section 52 and Sections 55 and 57 of the Act. Thereforein the facts and circumstances of this case, the ratio of the judgment of the Supreme Court in Megha Singh Vs. State of Haryana, is not- applicable. No doubt in the normal course if FIR is registered on the information received from a police official, he should not investigate the case in the interest of fair play and impartial investigation but solely on the ground that part of the investigation has been conducted by PW-10 ASI Kanwar Singh at whose complaint FIR was registered without showing prejudice caused to the accused, the trial cannot be held vitiated. It will be examined in the context of facts and circumstances of each case whether after lodging the FIR it was feasible to PW-10 to hand over further investigation to PW7 which he had handed over immediately on arrival of PW-7 on the spot. Again we do not find any substance in this submission of the learned Counsel. The decision of Punjab and Haryana High Court in 1998 Cri. LJ 4696, turn out on the peculiar facts and circumstances of that case. The learned Counsel - for the accused also argued that out of two bags allegedly carried by the accused on his person, PW-10 had chosen to carry the search of one bag only from which the alleged contraband was recovered and, therefore the investigation on this count was also partial and unfair. We do not find any merit in this contention. The mere fact that the second bag being carried by the accused in his hand was not searched by PW-10, will not amount to hold the investigation faulted or irregular.

Lastly, the learned Counsel for the accused contended that before the mandatory provisions of Section 50 of the Act were complied with by PW-10 ASI Kanwar Singh, the accused had already been searched by him when consent memo Ext. PW-l/A was prepared and, therefore for noncompliance of Section 50 of the Act, the trial is vitiated. We are not inclined to accept this submission of the learned Counsel. The statements of P Ws 1, 2, 9 and 10 clearly show that at about 10 am. when the accused came from Sangna side to bus stand Manikaran, PW-10 demanded passport from him for verification of its validity. The accused immediately obliged PW-10 by handing over his passport and thereafter he was apprised about the suspicion entertained by PW-10 about his involvement in carrying contraband in his bag. When the consent memo Ext. PW-l/A was prepared the number of the passport was incorporated therein. PW-10 informed the accused about his right as provided u/s 50 of the Act which is proved not only by oral evidence of P Ws 1, 2, 9 and 10 but also by recitals made in consent memo Ext. PW-l/A; memo Ext. PW-l/B regarding recovery and taking into possession 500 grams ''Charas'' and information regarding the grounds of arrest mark Ext. PW-l/C prepared by PW-10 on the spot. Thusin our considered view, we do not find in the facts of this case, as also reasoning recorded by the learned trial Court that there has been any violation of Section 50 of the Act. In view of the aforesaid findings, we do not find any infirmity in the impugned order of the trial Court.

No other point was urged before us.

In the resultfor the above said reasons and discussions, there is no merit in this appeal and the same is accordingly dismissed.