Rameshwar Yadav vs State Of Himachal Pradesh

Tarlok Singh Chauhan, J

The appellant has been convicted and sentenced by the learned Court below and aggrieved thereby has filed the instant appeal.

The case of the prosecution, in brief, is that on 23.06.2014, PW-8 ASI Swarup Ram along with PW-2 H.C. Sat Parkash, PW-3 Constable Dharam Dass left Police Post, Katcha Tank for patrolling after entering rapat Ext. PW-7/A. At about 7.00 p.m., when the policy party was present at Bus Stand, Nahan, a bus bearing registration No. HP-18B-2584 came from Saharanpur and stopped near Petrol Pump at Bus Stand. Thereafter, all the passengers, except one, alighted from the said bus. The passenger, who did not alight from the bus was having a bag between his legs.

On suspicion, the policy party entered into the bus and enquired about the name and address of that passenger, in the presence of driver Pradeep Kumar and conductor Ravi Kant, who disclosed his name and address. Thereafter, the bag of the passenger was checked by the police in the presence of the witnesses and it was found containing nine strips or say 135 Tablets of Netravet- 10 and 70 vials of Rexcof syrup. The accused could not produce any permit/licence for carrying these medicines. The recovered drugs were repacked in the same bag and then put in cloth parcel and sealed with seal impression ‘A’.

The recovered drugs were taken into possession vide memo Ext. PW-1/A. A sample seal was also drawn separately on the cloth piece Ext. PW-8/A. The Investigating Officer (PW-8) also filled in NCB forms Ext. PW-8/B in triplicate and impression of seal ‘A’ was also taken on it. Thereafter, the Investigating Officer prepared ruqa Ext.PW-3/A and sent the same to the police station through PW-3 Constable Dharam Dass, on the basis of which, PW-9 Inspector Vivek Sharma registered an FIR Ext. PW-3/B and also made his endorsement Ext. PW-3/C on ruqa. The Investigating Officer also prepared the spot map Ext. PW-8/C and recorded the statements of the witnesses.

The accused was arrested and thereafter his personal search was conducted as per memo Ext.PW-2/A. The Investigating Officer then took the accused and the case property to the Police Station, Nahan and produced the same before SI Vivek Sharma, who re-sealed the case property with seal ‘T’ and issued re-sealing certificate Ext. PW-9/B and the case property along with NCB form, sample of seal were deposited with PW-4 MHC Sandeep Negi. The Investigating Officer also prepared special report Ext. PW-6/A and sent the same to Additional Superintendent of Police, Sirmaur through PW-3 Constable Dharam Dass. The case property was sent to SFSL, Junga for analysis and obtained report Ext. PW-8/E. After completion of the investigation, the challan was prepared and presented in the Court.

After taking cognizance, the learned Court below summoned the accused and after putting in appearance by the accused, the copies of challan and other documents were supplied to him. Upon hearing the learned Public Prosecutor for the State and the learned counsel for the accused, charge under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, (For short ND&PS, Act) was framed against the accused person to which he pleaded not guilty and claimed trial.

The prosecution in order to prove its case has examined as many as 9 witnesses. Thereafter, the accused was examined under Section 313 Cr.P.C. in which the accused denied the prosecution case in toto. However, the accused stated that he had gone to receive his father-in-law and maternal uncle Jeet Ram and Babu Ram and one person asked him to enter into the bus for his help. He further stated that when he went inside the bus to help that man, in the meantime, the police entered the bus and the person, who asked to help him, ran away from the bus stand and a false case has been registered against him. The accused examined one DW in his defence.

The learned Special Judge, after recording the statements of the witnesses and evaluating the same, has convicted and sentenced the appellant to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, he was further directed to undergo simple imprisonment for one year.

We have heard the learned counsel for the parties and have gone through the material placed on record.

Learned counsel for the appellant has raised the following arguments:

“(i) Personal Search was conducted along with bag search.

(ii) Personal search not conducted in front of independent witnesses.

(iii) Section 50, NDPS Act not complied with.

Appellant not given option/informed of his right to be searched before Gazetted Officer/Magistrate.

(iv) Case property kept in custody of formal witness (HC Sandeep Negi).

(v) Driver & Conductor in connivance with one Gagan (Neighbour of Conductor with past history) framed the appellant.

(vi) Alleged quantity is less than commercial quantity (Section 21(c), NDPS Act not attracted).”

On the other hand, learned Deputy Advocate General would argue that the findings rendered by the learned Court below are based on correct appreciation of the evidence and, therefore, warrant no interference.

We will now deal with the point-wise arguments addressed by the learned counsel for the appellant.

(i) Personal Search was conducted along with bag search.

(ii) Personal search not conducted in front of independent witnesses.

(iii) Section 50, NDPS Act not complied with.

Appellant not given option/informed of his right to be searched before Gazetted Officer/ Magistrate.

Since, all these points are intrinsically inter-connected and inter-linked, therefore, they were taken up together for consideration and are being answered by way of common reasoning.

It is vehemently argued by Shri Ganesh Barowalia, learned counsel for the appellant that since the personal search of the appellant was conducted, therefore, it was incumbent upon the prosecution to have complied with the provisions of Section 50 of the ND&PS Act and has relied upon the following judgments:

(i). State of H.P. vs. Pawan Kumar, (2005) 4 SCC 350.

(ii) Vijaysinh Chandubha Jadeja vs. State of Gujarat, (2011) 1 SCC 609.

(iii) Myla Venkateswarlu vs. State of Andhra Pradesh,(2012) 5 SCC 226.

(iv) State of Rajasthan vs. Parmanand and another, (2014) 5 SCC 345.

There can be no quarrel with the proposition that in case the search is on the person of the accused, then the provisions of the ND&PS Act, more particularly, Section 50 thereof has to be complied with in its letter and spirit as the same is mandatory.

However, in this case, it would be noticed that search as is being referred to by the appellant is after his arrest which in common parlance and in the language of the prosecution is known as ‘Jama Talashi’ and is done solely for the purpose of preparing an inventory of personal items that are normally returned at the time of release. This in no way relates to the personal search of the appellant prior to his arrest. This is evidently clear from the fact that the learned counsel for the appellant would rest his case on memo Ext. PW-2/A. However, as observed, it needs to be noticed that this memo has been prepared after arrest of the appellant and was a ‘Jama Talashi’ because earlier to that, bag of the appellant had been checked by the police in the presence of the witnesses and it was found to be containing the contraband for which the appellant could not produce any permit or licence for carrying such contraband. The recovered drug was taken into possession vide memo Ext. PW-1/A and the same was recovered from the bag and not from the person of the appellant. All these contentions have infact been noted by the learned Special Judge and it is only after that the appellant has been convicted.

(iv) Case property kept in custody of formal witness (HC Sandeep Negi).

Learned counsel for the appellant is at great pains to argue that since the case property was kept in the custody of a formal witness, therefore, the possibility of its being tampered with could not be ruled out. However, we find this submission to be not tenable for the simple reason that as per the prosecution case and even as per the contention of the appellant, the case property was deposited with PW-4 HC Sandeep Negi, but then it needs to be noticed that the said Sandeep Negi is Incharge of the ‘Malkhana’. It has specifically come in his statement that he was the ‘Malkhana’ Incharge and the case property had been deposited as per abstract Ext. PW-4/A and thereafter vide R.C. No. 116/14, the case property had been sent for chemical analysis to SFSL, Junga. He further deposed that the case property had remained safe in his custody. Therefore, this witness is not an ordinary witness, but infact, the Incharge of the ‘Malkhana’.

(v) Driver & Conductor in connivance with one Gagan (Neighbour of Conductor with past history) framed the appellant.

Learned counsel for the appellant would then argue that the appellant had been falsely implicated in the instant case as the driver along with conductor in connivance with one Gagan, the neighbour of the conductor, had framed the appellant. However, we find no merit in such contention. No doubt, a suggestion was given to PW-1 Ravi Kant (Conductor) and the same has also not been denied by him that one of his neighbour was in jail in connection with NDPS Act, however, he feigned ignorance regarding his name being Gagan, who had been brought in the Court on that day. He further denied that said Gagan on the same day was travelling in the bus as a passenger. Likewise, when PW-2 was cross-examined regarding the presence of Gagan, he clearly stated that he was not in a position to tell whether one Gagan, neighbour of PW-1, Ravi Kant, was also travelling in the same bus on that day.

(vi) Alleged quantity is less than commercial quantity (Section 21(c), NDPS Act not attracted)

It is then argued by learned counsel for the appellant that even if it is assumed that some contraband was recovered from the appellant, even then, the sentence as imposed by the Court below deserves to be modified by appropriately awarding a lesser sentence as the recovered contraband did not fall within the “commercial quantity”.

It is not in dispute that commercial quantity of codeine as per the notification specifying the small quantity and commercial quantity of codeine at Sr. No. 28 is 1 Kg and that of Nitrazepam at Sr.No. 221 is 500 gm. As per FSL report Ext. PW-8/E, the total volume of syrup of codeine was 7000 ml., whereas, the weight of 135 tablets of Nitrazepam was 554 grams. This clearly goes to indicate that the contraband recovered from the appellant was of “commercial quantity” and, therefore, the learned Special Judge while convicting the appellant has rightly sentenced him to undergo 10 years’ rigorous imprisonment and to pay a fine of Rs.1,00,000/-.

The learned counsel for the appellant would further argue that it is the quantity of the contraband alone and not the whole quantity that was required to be taken into consideration for the purpose of seeing that it was a “commercial quantity”. However, we find no merit in such contention, firstly, for the reason that this issue has already been considered by one of us (Justice Tarlok Singh Chauhan) in detail in Praduman Justa vs. State of Himachal Pradesh 2016 Criminal Law Journal 3639 and held against the proposition as canvassed and now thereafter this issue stands decided by the Hon’ble Supreme Court in a decision rendered by a larger Bench of Hon’ble three Judge in Hira Singh and another vs. Union of India and another (2020) 20 SCC 272 wherein a contention was raised that in determining the quantity involved in a mixture of two or more drugs, it is the substance with a lesser or lower threshold which will have to be worked out for determining a small or commercial quantity. It was never the intention of the legislature to exclude the quantity of neutral substance and to consider only the actual content by weight of offending drug which would then be relevant for the purpose of determining psychotropic substance. However, it was held otherwise that the provisions of the ND&PS Act are required to be interpreted keeping in mind the object and purpose of ND&PS Act, impact on the society as a whole and the Act is required to be interpreted literally and not liberally which may ultimately frustrate the object, purpose and preamble of the Act. It is further held that Section 21 of the ND&PS Act is not stand-alone provision and must be construed along with other provisions in the statute including the Notification issued therein.

As a last ditch effort, learned counsel for the appellant Shri Ganesh Barowalia, Advocate, would vehemently argue that since the appellant is in custody for the last more than 6 years and 3 months and his conduct and behaviour has been satisfactory, therefore, the sentence should be considerably reduced.

However, we find no merit in this contention, more particularly, after bearing in mind the objects and reasons of the Principal Act as also the Amended Act, 2001. The Court cannot ignore the menace of drug that is so rampant in this part of the Country and required to be curbed with heavy hand. It has to be borne in mind that the ND&PS Act has been specifically framed to curb the menace of drug trafficking. Its provisions provide for minimum punishment and in certain cases enhanced punishment also. The provisions of this Act were a departure from the ordinary law since the ordinary law was found to be inadequate and not sufficiently effective to deal with the special class of offences relating to the Narcotic Drugs and Psychotropic Substances. The legislature, therefore, made special provisions which can in certain respects be said to be harsh, created a special forum for the speedy disposal of such cases, provided for raising a presumption of guilt, placed extra restrictions in regard to the release of the offender on bail and made suitable changes in the procedure with a view to achieving its objects.

In view of the aforesaid discussion, we find no merit in this appeal and the same is accordingly dismissed, so also the pending application, if any.