Satbir Sharma vs State of Himachal Pradesh

Surinder Singh, J.—The challenge by the appellant hereinafter to be referred as ''the accused'' in this appeal is to the judgment of conviction passed by the learned trial Court in Sessions trial No. 37 of 2010, decided on 19.5.2011, for the offence punishable u/s 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985, in short ''the Act'' for allegedly keeping in his possession 304 Whether reporters of the Local papers are allowed to see the judgment? grams of Chars in the recovered stuff of 1 K.Gs, whereby he has been sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs. 25,000/- and in default of payment of fine to further undergo simple imprisonment for a period of one month. The period of detention of the accused during trial and investigation was ordered to be set-off u/s 428 of the Code of Criminal Procedure. In short, prosecution story as emerges from the evidence on record can be stated thus. On 30.1.2010, PW6 ASI Yashwant Singh was heading a police patrol party consisting of PW1 HC Shesh Raj, HHC Hem Raj and PW2 HHC Shobha Ram. They came across the accused around 7.30 a.m., who, on seeing the police party had tried to escape. On getting suspicion, the police party apprehended him and asked his identity. Since it was a secluded place and no person on the spot came across for sometime, as such, PW1 HC Shesh Raj and HHC Hem Raj were associated as witnesses and in their presence, the option orally as well as in writing Ext.PW1/A was given to the accused by PW6 aforesaid informing him that it was his right to be searched before a Gazetted Officer or a Magistrate, but the accused opted to be searched by the police party present there. To this effect, an endorsement was made by him to the Memo aforesaid. PW6 ASI Yashwant Singh rendered himself to be searched by the accused, but no incriminating material was found, thereafter he conducted the personal search of the accused and discovered that the accused had tied a pink coloured belt around his waist. He took the photographs Ext.PW6/A1 and A2, the negatives whereof are Exts.PW6/A3 and A-4 respectively. The belt was removed and on checking, it was found contained one kilogram stuff. The entire stuff recovered was put back in the same belt and made a parcel, thereafter sealed with seal impression ''A'' at six places. The NCB form Ext.PW3/C was also filled in triplicate. Sample of seal was taken separately one of such impression is Ext.PW1/C. Seal after its use was handed over to PW1 HC Shesh Raj.

(ii) The case property was taken into possession vide memo Ext.PW1/D and the signatures of witnesses PW1 Shesh Raj and HHC Hem Raj were taken thereon alongwith signatures of the accused.

(iii) Ruqa Ext.PW6/B was sent through PW2 HHC Shobha Ram for the registration of the case to the Police Station concerned on the basis of which FIR Ext.PW7/A was registered and site plan of recovery Ext.PW6/C was also prepared.

(iv) Accused was arrested and grounds of arrest were informed to him in writing vide memo Ext.PW1/E.

(v) On reaching the Police Station, PW6 ASI Yashwant Singh handed over the sealed parcel of the case property to PW7 Inspector/ SHO Prem Dass, who resealed the same with seal impression ''H'', the facsimile of the seal was taken on NCB forms and also on a separate piece of cloth Ext.PW7/B and thereafter it was handed over to PW3 MHC Chaman Lal for its deposit in the Malkhana alongwith sample of seals and NCB forms and its entry was made in the Malkhana register, the abstract whereof is Ext.PW3/A.

(vi) The report about arrest and seizure was sent to the official superiors within the statutory period.

(vii) On 31.1.2010, said parcel was sent to the FSL Junga vide RC Ext.PW3/B through PW8 HC Tek Chand for its deposit and analysis alongwith copy of FIR, NCB forms and sample of seals etc., which were deposited by him. On its deposit, he obtained receipt and handed over back to MHC aforesaid. On its analysis, the Assistant Chemical Examiner of NDPS Division of the State Forensic Science Laboratory, vide report Ext.PW7/C reported that the stuff received was examined and it was opined to be an extract of the Cannabis and sample of Charas inter-alia contained 30.41 % weight-in-weight of resin of Cannabis.

The accused was accordingly charge-sheeted for the offence aforesaid to which he pleaded not guilty and claimed trial.

To prove its case, prosecution examined its witnesses and the accused was also examined u/s 313 of the Code of Criminal Procedure. He denied the recovery as alleged and took up the stand that he was travelling in the local bus at Banjar. The police had recovered an unclaimed bag from the bus, he being outsider belonging to the Haryana State; therefore, the case was planted against him. When called upon to enter into his defence, no evidence in defence was led.

Learned trial Court disbelieved the defence taken by the accused, but however found the substance in the prosecution case and in the opinion of the learned trial Judge, the offence charged stood proved against the accused, as such he was convicted and sentenced as aforesaid, hence the present appeal.

Ms. Charu Gupta, learned counsel for the accused vehemently argued that there has been noncompliance of Section 50 of the Act and further that the seal used for sealing at the spot was not produced and even the independent witnesses were not associated at the time of search and further that there are material contradictions in the statement of the witnesses, which rendered the prosecution case doubtful.

Contra Shri P.M. Negi, learned Deputy Advocate General submitted that the provisions of Section 50 of the Act stand fully complied with and proved by the witnesses on record. Further it is argued that the production of the seal is a sine-quo-non to prove the case of the prosecution. According to him case property was resealed on the same day by the Inspector/ SHO immediately on its production, the facsimile of which was also taken on the NCB forms which fully tallied with the parcel sent for examination as per the report of the analysis, therefore, the question with respect to its tampering is completely ruled out. Further that the witnesses, who had handed over the parcel in question had categorically stated that the case property was not tampered with. He further submitted that the link evidence in the instant case is complete. Non-association of the independent witnesses is not sine-quo-non against the factual background and further that it was a secluded place and the witnesses were not available. Further that the statements of the official witnesses are worth inspiring confidence, rightly believed and acted upon by the learned trial Court.

I have given my thoughtful consideration to the rival contentions of the parties and have carefully, closely, cautiously and meticulously re-appraised the evidence on record.

Keeping in view the fact that the accused faced trial on the basis of the recovery of contraband found in his possession on his personal search, the compliance of Section 50 of the Act is mandatory. To prove this compliance, PW6 ASI Yashwant Singh categorically stated that he gave an option in writing Ext.PW1/A in the presence of HC Shesh Raj and HHC Hem Raj. PW1 HC Shesh Raj specifically stated that the accused was apprised by PW6 aforesaid in writing Ext.PW1/A, regarding his right and option for the search before the gazetted officer or the Magistrate, when he suspected the possession of some contraband/ narcotic. A perusal of memo Ext.PW1/A makes it abundantly clear that the option was given to the accused in terms of Section 50 of the Act by clearly apprising of his right. In Vijaysinh Chandubha Jadeja Vs. State of Gujarat, the Constitution Bench of the Supreme Court had considered the question whether Section 50 of the Act casts a duty on the empowered officer to ''inform'' the suspect of his right to be searched in the presence of the gazetted officer nor a Magistrate, if he so desires or whether a mere enquiry by the said officer as to whether the suspect would like to be searched in the presence of a Magistrate or a gazetted officer can be said to be due compliance with the mandate of said section. On reference, the apex Court answered the question that it is not necessary that such an option should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before the gazetted officer or the Magistrate, if so required by him, thereafter he may or may not chose to exercise the right provided to him. Therefore, on the perusal of the statements of the prosecution witnesses aforesaid, in my considered opinion, the accused was apprised of his right in conformity with the provision aforesaid, he knowing fully well exercised his right, as such compliance of Section 50 of the Act stands proved on record, therefore, the contention of infraction of this section as contended by the learned counsel for the accused is rejected.

Further, non-inclusion of the independent witnesses is not fatal to the case of the prosecution when the recovery is from an open place and that too the secluded one. Otherwise also, PW6 ASI Yashwant Singh categorically supported the above fact and also stated that the police party waited for some time, but no person came across them, as such, PW1 HC Shesh Raj and HHC Hem Raj both were associated as witnesses and after giving option to the accused, the recovery was effected in the manner stated above, from the accused, which fact is corroborated by PW1 HC Shesh Raj. Therefore, non-inclusion of the independent witnesses in the factual background is not necessary, however it is to be seen whether the official witnesses examined to prove the case against the accused are confidence inspiring?

PW6 ASI Yashwant Singh categorically stated about the recovery of the contraband from the accused. In cross-examination, he stated that he had given personal search of himself to the accused before the recovery was effected from the accused, however, no serious efforts were made to include the independent witnesses despite waiting for them for about half an hour. He denied the defence raised that an unclaimed bag was found in the bus. The accused being non-Himachali, the case was foisted upon him. PW1 HC Shesh Raj also corroborated the prosecution story, who had witnessed the proceeding right from the search till it seizure and also taking the photographs of the accused on the spot and afforded corroboration to the Investigating Officer and denied the Defence so raised. Nothing has been put to the prosecution witnesses as to what malice police entertained against the accused. Merely because he was non-Himachali a case was foisted upon him does not appear to be genuine in absence of any motive. Even after the arrest of the accused, he was produced before the senior Police Officer and also for remand before the Judicial Magistrate, he did not make a whisper about his false implication. PW2 HHC Shobha Ram a member of the police party further affords corroboration to the prosecution case. Though he could not tell which of the document was prepared by which of the Officers, yet he stated that the recovered stuff from the accused was made into one parcel, which was stitched on the spot with a needle and thread and thereafter the seal impressions of letter ''A'' were affixed thereon.

PW1 HC Shesh Raj stated that on the spot, seal was handed over to him, which he had lost, but identified the parcel Ext.P1during the trial of the accused, which was having six seals on examination of FSL and as also the impression of Seals ''A'' and ''H''. As per the Court observation, these seals were found intact on opening the belt/ pouch and recovered stuff Ext.P3 identified the same stuff which was recovered from the accused. He also stated that photographs of the accused were taken to show the manner in which the aforesaid stuff was found having been tied by belt Ext.P2 which was later on taken in possession. The accused did not put any suggestion in cross-examination nor explained in the statement u/s 313 of the Code of Criminal Procedure that the stuff was got tied with the help of belt Ext.P2 around his waist and then the photographs were taken by the police. Thus, the defence so raised deserves to be rejected out right as it failed to probablise its version.

Further it is noticed that on the same day, the recovered stuff was produced by the Investigating Officer before PW7 Inspector/SHO Prem Dass around 1.15 p.m., which was resealed by him and he himself deposited the said parcel with MHC Chaman Lal and as per report on receipt of the said parcel on 1.2.2010 sent through HHC Tek Chand, as per certificate of the analysis Ext.PW7/C makes the description of the parcel tallies with the seals found on the NCB forms and specimen seal. Parcel so sent was examined in the Laboratory and resin of the Cannabis plant was found to the above extent, which corresponds to the definition of Charas under the Act and after its analysis, the parcel was resealed by the seal of the Laboratory and specimen thereof was affixed on the report, which was found intact when it was produced during the trial and exhibited and got identified in the statement of the prosecution witnesses. Thus, the link evidence in the instant case is completely proved. Therefore the production of the seal by PW1 HC Shesh Raj during the trial is not sine-quo-non, rather had it been produced it could have reinforced the prosecution case. Further the prosecution witnesses have categorically denied having tampered with the parcel from the time till examined in the Laboratory, therefore, no benefit for non-production of seal can be given to the accused.

On reappraisal of the evidence on record the statements of the prosecution witnesses are found to be reliable, consistent and the contradictions, pointed out in the prosecution witnesses are of a very minor nature with respect to the writing of the documents. Slight variation in the statements with respect to putting Naqa, stitching of the parcel, time taken in preparing the documents with respect to the option and seizure memo, non-mentioning of the word accused while rendering himself to be searched by the Investigating Officer in the memo Ext.PW1/B are of a very minor nature which do not shake the very foundation of the prosecution case and can be conveniently ignored. Therefore, for the aforesaid reasons, I do not find any fault in the judgment of conviction and sentence passed by the learned trial Court. The appeal filed by the accused sans merits and is accordingly dismissed. Send down the records.