Sohan Singh vs State of U.P.

Ajai Kumar Singh, J.—This appeal has been preferred against the judgment and order dated 4.3.1995, passed by Sri Parduman Kumar, Ist Additional Sessions Judge, Bijnor, in Special Session Trial No. 72 of 1993, State v. Sohan Singh, arising out of Case Crime No. 123/1992, u/s 15, Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "Act") Police Station Rehad, district Bijnor, convicting the Appellant u/s 15 of the Act and sentencing her to undergo rigorous imprisonment for 10 years and to pay a fine of Rs. 1,00,000 and in default of payment of fine to undergo simple imprisonment for further period of two years.

Briefly stated the prosecution case is that on 30.10.1992, S.O. Shri Bhagwan Sharma alongwith Constable Malkhan Singh, Constable Satendra Singh and Driver Ashfaq had gone to village Madhowalla in connection with an enquiry vide G. D. No. 17 of 14.39 hours of that date. Constables Ram Kumar Sharma and Rama Shanker Yadav were summoned through R.T. set. After making enquiry when the police party started from village Madhowalla, information was received through informer at about 5 p.m. that one person is coming from the side of village Kalluwala having a bag filled with Opium Doda and that he will go to village Dharmapur. Believing upon this information an attempt was made to procure in public witnesses but none could be available for the fear of emity with the accused. Members of the police party took search of each other in order to ensure that none of them possessed any contraband article. Leaving the Jeep with informer members of police party hided themselves in the bushes of Bund Narayanwala and started waiting for that person. Shortly thereafter one person (Sikh) was seen coming from the side of village Narayanwala, who was having a bag. After pointing out towards that person the informer slipped away. The said person was apprehended by the police party at 5.20 p.m. On being enquired that person disclosed his name as Sohan Singh son of Buxi Singh. He was informed by the police party that there was information that he was carrying powder of Doda Opium. On being asked as to whether he would like to give his personal search before a Gazetted Officer or a Magistrate, the accused-Appellant told that he has faith on the police party and that they may take the search themselves. On his personal search about 6 Kg. powder of Opium Doda was found in different plastic bag, kept inside the black rexine bag, which he was carrying in his hand. On being asked to show the licence, the accused-Appellant denied possession of any licence. After disclosing the reason for arrest the accused-Appellant was arrested. The recovered contraband was kept in the same bag, which the accused was carrying and the same was sealed after putting it in a piece of white cloth and the sample of seal was also prepared. The memo of recovery was prepared on the spot, which was read over to the witnesses and their signatures were obtained. Copy of the recovery memo as given to the accused. The place of occurrence being a lonely place no public witness could be procured. The recovered contraband and the apprehended accused were taken to the police station and on the basis of the recovery memo Check F.I.R. was prepared and entries were made in the G.D. of the police station. The recovered contraband was sent to Scientific Laboratory, Agra for analysis through constable Hamid Khan but the said constable returned back because the Chemical Examiner refused to accept the same and directed that only sample of the recovered article be sent for analysis. Thereafter the recovered contraband was taken to the Court of C.J.M., Bijnor on 30.11.1992 and the sample of the same was taken. The sample and the remaining contraband were sealed separately and the sample was again sent to the Chemical Examiner. According to the report dated 12.8.1992 of the Chemical Examiner, the contraband was found to be crushed Doda Posht. Investigating Officer inspected the spot and prepared the site plan and after the close of investigation submitted charge-sheet u/s 15 of the Act against the accused-Appellant. The accused-Appellant denied the charge and pleaded not guilty and claimed to be tried.

To prove its case, the prosecution examined as many as 5 witnesses. S.I. Malkhan Singh P.W. 1 is the eye-witness of the occurrence who proved the recovery of contraband from the accused-Appellant. S.I. Man Singh, P.W. 2 is the Investigating Officer who has proved the site plan (Ex. Ka-2), copy of the G.D. and the charge-sheet. S.I. Bhagwan Sharma is also an eye-witness and witness of recovery, who has totally supported the prosecution version and the statement of P.W. 1 Pradeep Kumar, P.W. 4 is a formal witness who has proved the Chick F.I.R. Ex. Ka-7 and the copy of G.D. of registration of case Ex. Ka-8. Constable Hamid Khan, P.W. 5 has stated that he took the contraband to the Court of C.J.M. for permission to take it to the Scientific Laboratory for examination and when the said contraband was returned from the Laboratory he again deposited the same in the police ''malkhana'' at the police station. He further stated that he again came to the Court of C.J.M. alongwith S.I. Man Singh and took sample of the contraband before the C.J.M. and again the sample and the remaining contraband was sealed. The sample was sent for chemical examination and the remaining contraband was deposited in the police ''malkhana''. He has further stated that on 2.12.1992, he took the sample to the Scientific Laboratory, Agra for chemical examination.

In his statement u/s 313, Cr. P.C. the accused-Appellant denied the entire prosecution version and stated that he has been falsely implicated in this case. In his defence he examined Shrimati Harjeet Kaur wife of the accused as D.W. 1, who has stated that her husband was falsely implicated in the case as he had boundary dispute with Ajit Singh, who was tout of police. D.W. 2 Har Charan Singh also corroborated D.W. Shrimati Harjeet Kaur and stated that before Sohan Singh was challaned, he was kept in illegal confinement for about 10 to 12 days at the police out post Kalluwalla.

After considering the entire evidence on record and after hearing the accused the learned trial court found the accused-Appellant guilty of the offence u/s 15 of the Act and convicted and sentenced him as mentioned above. Feeling aggrieved, the present appeal has been preferred by the accused-Appellant.

I have heard Vikas Sharma, advocate appointed amicus curiae to do pairvi on behalf of the accused-Appellant in this case and the learned A.G.A. and have also gone through the entire record carefully.

The first argument put forward on behalf of the Appellants-accused is that there has been no compliance of the provisions of Section 50 of the Act inasmuch as the accused-Appellant was not made aware of his right to give his personal search before a Gazetted Officer or a Magistrate and hence the recovery proceedings are vitiated. To the contrary learned A.G.A. argued that it is a case of sudden arrest and that in the present case the contraband article has been recovered from a bag which the accused-Appellant was carrying in his right hand at the time of seizure and hence it is not a case of personal search and the provisions of Section 50 of the Act are not applicable to the present case. Learned A.G.A. in this regard has placed reliance upon the decisions (1) State of Haryana v. Ranbir alias Rana (55)2006 ACC 522: 2006 (2) ACR 1983 (SC) ; (2) State of Punjab v. Baldev Singh (39)1999 ACC 349 (SC): 1999 (2) ACR 1694 (SC) and (3) Shri Satyawan Pagi and Another Vs. Union of India (UOI) and Another,

In State of Haryana v. Ranbir alias Rana (supra) the Hon''ble Supreme Court has held as under :

The question as regards applicability of Section 50 of the Act need not detain us for long. We may notice that in view of conflict in the opinions of different Benches as also difference of opinion between two Judges of this Court. In State of Himachal Pradesh v. Pawan Kumar (50) 2004 ACC 900: 2004 (3) ACR 2779 (SC), the question was referred to a larger Bench. A three Judge Bench of this Court in State of Himachal Pradesh v. Pawan Kumar, (52)2005 ACC 710: 2005 (2) ACR 1291 (SC), relying on or on the basis of a large number of decisions and in particular the decisions of the Constitution Bench of this Court in State of Punjab v. Baldev Singh (39)1999 ACC 349 (SC): 1999 (2) ACR 1694 (SC), clearly held that Section 50 of the Act would be applicable only in a case of personal search of the accused and not when it is made in respect of some baggage like a bag, article or container etc. which the accused at the relevant time was carrying.

I find that the present case is an example of sudden arrest and also in the present case the contraband article has been recovered from the bag which the accused-Appellant was carrying at the time of her arrest, hence in view of the principles of law laid down in State of Haryana v. Ranbir alias Rana (supra) and Azadar Hussain (supra), I am of the opinion that the provisions of Section 50 of the Act are not attracted.

The next argument advanced on behalf of the accused-Appellant is that there are no public witnesses of recovery and hence the genuineness of the recovery proceedings becomes doubtful. I do not find any force in this argument of the learned Counsel for the Appellant. It is clear from the recovery memo that an attempt was made by the police party to procure public witnesses but none could be available for the fear of enmity with the accused. Both the witnesses of fact have also stated that an attempt to procure public witnesses was made. Learned trial court relying upon the decision in Appa Bhaia v. State of Gujarat 1988 (1) Crime 606: 1988 ACR 353 (SC), observed that prosecution case cannot be thrown out only on the ground that no independent witness has been examined. Learned trial court also observed that failure to comply with provisions of Sections 100 and 165, Cr. P.C. would by itself be no ground for acquittal of accused if the testimony of prosecution witnesses is intact and reliable. I find that the testimony of witnesses of recovery namely of P.W. 1 and P.W. 3 is trustworthy and reliable. There is nothing in their cross-examination which could throw doubt on their testimony. Under these circumstances I find that only police witnesses (members of the police party) could be available as witnesses of recovery. There is nothing on record to show that the police witnesses were biased with the Appellant in any way. In my opinion, the testimony of the police witnesses cannot be doubted only on the ground that the witnesses are police officers or officials. I find that merely on the ground that there is no public witness of the occurrence, genuineness of the recovery proceedings cannot be doubted.

It was next argued on behalf of the Appellant that there has been violation of the provisions of Sections 52 and 55 of the Act which vitiates the entire recovery proceedings. To the contrary relying on the decision of the Apex Court in State of Punjab v. Balbir 1994 (1) EFR 516: 1994 ACR 170 (SC), learned A.G.A. contended that these provisions are not mandatory and if there is no strict compliance of the same it will not render the acts of the officers null and void and will not invalidate the arrest of the accused and the recovery proceedings if no prejudice is caused to the accused resulting in failure of justice. The trial court reached to the finding that from the oral and documentary evidence the prosecution case of alleged recovery of contraband from the accused is established beyond reasonable doubt. I find that from the testimony of both the witnesses of fact, i.e., P.W. 1 and P.W. 3 it is established that the alleged contraband was recovered from the possession of the accused. The statements of P.W. 1 and P.W. 3 suffers from no infirmity and are fully trustworthy. There are no material contradictions in their statements. There is nothing on record to show that any prejudice has been caused to the accused. The report of analyst clearly establishes that the recovered contraband is Doda opium powder. Hence in these circumstances I find that there is no violation of the provisions of Sections 52 and 55 of the Act and the findings of the learned trial court to this effect need no interference.

It has been further argued on behalf of the Appellant that though contraband was recovered from the possession of the accused on 30.12.1992 but it was received in the office of Chemical Examiner on 4.12.1992 and there is no justification for the same which shows that there was scope for interpolation and that the sample examined is not of the same contraband which was recovered from the accused. I do not find force in this argument put forward on behalf of the accused-Appellant. Constable Pradeep Kumar P.W. 4 has deposed that when accused was brought to the police station, sealed bundle of recovered Doda opium powder and sample of seal was also deposited, which was kept in the ''malkhana'' of the police station and no body had an opportunity to see the same or tamper with the same. Witness Man Singh P.W. 2 and Constable Hamid Khan P.W. 5 have stated that sealed bundle of contraband was sent to Chemical Examiner on 17.11.1992 but the same was returned by him saying that only sample of the same has to be sent for analysis. It is also proved from the oral testimony that sealed bundle of contraband was taken before C.J.M., Bijnor, where sample was taken out and this sample and the remaining contraband was again sealed with seal of C.J.M., Bijnor. Thereafter that sealed sample was sent to Chemical Examiner. Report of the Chemical Examiner shows that the said sample was received by the Chemical Examiner with seal of C.J.M., Bijnor. Constable Hamid Khan P.W. 5 has also stated that so long as the property remained with him, no body had an opportunity to see the same. On the basis of this evidence learned trial court concluded that there is sufficient reliable evidence on record to prove that the sample examined was the same contraband which was recovered from the possession of the accused and that the same was kept in safe custody till it was sent to Chemical Examiner for analysis.

No other argument has been put forward on behalf of the accused-Appellant.

From the above I find that the prosecution case is fully established by documentary as well as oral evidence adduced during the trial and no material contradictions have been pointed out in the statements of the prosecution witnesses. The provisions of Section 50 of the Act are not attracted. There is no material on record to show that the Appellant-accused has been falsely implicated, as has been stated in the statement u/s 313, Cr. P.C. Thus, I am of the opinion that the prosecution has successfully proved its case beyond reasonable doubt and the judgment and order of the court below does not suffer with any infirmity. The conviction of the Appellant is upheld.

As regards the question of sentence, since the Appellant has already been awarded a minimum sentence, i.e., 10 years rigorous imprisonment for 10 years and a fine of rupees one lac for the offence, as provided u/s 15 of the original N.D.P.S. Act (i.e., prior to its amendment in the year 2001), hence it does not require any change. But as regards the additional sentence of 2 years simple imprisonment in default of payment of fine of rupees one lac, in my opinion, it is disproportionate and ends of justice would meet if the same is reduced to one year only.

In the result, the appeal is partly allowed. While upholding the conviction of the Appellant u/s 15 of the Act and upholding the sentence of rigorous imprisonment of 10 years and a fine of rupees one lac, the sentence awarded by the trial court in default of payment of fine is modified to the extent that additional sentence of two years S.I. in default of payment of fine of rupees one lac is reduced from two years to one year only.

Shri Vikas Sharma, appointed as amicus curiae in this case will get Rs. 3,000 as his fees.

Let the lower court record be sent back to District Judge, Bijnor, without delay with a copy of this judgment for necessary compliance and entry in the relevant record. Compliance report to be submitted within two months.