2015 (2) TMI 1143 - HC - Customs

Seeking modification of sentence order - Convicted under Section 20 of the Narcotic Drugs and Pshychotropic Substances Act - Recovery of ganja - Non-joining of independent witnesses and Gazetted Officer - Held that - the joining of independent witness is not the rule of law but rule of caution. In case the evidence of official witnesses is trustworthy, in that case conviction can be maintained on the testimony of official witnesses alone. The non-joining of Gazetted Officer does not create any dent in the prosecution story. The delay of two days in sending the sample for chemical analysis is not fatal. Even according to the instructions, the sample can be sent within 72 hours. Mere fact that CFSL Form was not prepared at the spot is not a ground for acquittal. No reasoning has been given by the appellant as to why false case has been registered against him. In this case recovery was effected on 02.09.2011 but the witnesses were examined on 01.05.2012 and 30.11.2012 respectively. So due to lapse of memory, the above said discrepancies have occurred. The said discrepancy is not such which goes to the root of the case. Therefore, the conviction recorded by the trial court does not call for any interference and the same stands affirmed. However, in view of Section 427 Cr.P.C, the sentence can be made to run concurrently in appropriate cases. Since the appellant is not facing trial in any other case except the above mentioned two cases, the sentence of present caseunder Section 20 of NDPS Act as well as sentence in respect of another case under Section 22 NDPS Act, are ordered to run concurrently. - Decided against the appellant

Summary

Issues:
Appeal against conviction and sentence under Section 20 of the NDPS Act - Lack of independent witnesses in investigation - Non-joining of Gazetted Officer in investigation - Delay in sending sample for analysis - Absence of CFSL Form at the spot - Discrepancy in witness statements regarding contraband weighing scale - Request for concurrent running of sentences.

Analysis:
The appeal challenged a judgment convicting and sentencing the appellant under Section 20 of the NDPS Act based on evidence presented during the trial. The prosecution's case relied on official witnesses' testimonies, including ASI Baljinder Singh, HC Jiwan Singh, ASI Baldev Singh, SI Bhagwan Singh, and ASI Harwinder Singh. The accused denied the incriminating evidence during his statement under Section 313 Cr.P.C. The trial court, after evaluating the evidence, found the accused guilty and imposed a sentence of rigorous imprisonment and a fine.

The appellant raised several contentions, including the absence of independent witnesses and a Gazetted Officer during the investigation, delay in sending the sample for analysis, and the lack of a CFSL Form at the spot. However, the court held that the non-joining of independent witnesses is not fatal if official witnesses' testimony is credible. The delay in sending the sample within 72 hours, as per instructions, does not invalidate the prosecution's case. The absence of a CFSL Form at the spot was not sufficient for acquittal, especially without evidence of tampering.

Another argument focused on a discrepancy in witness statements regarding the contraband weighing scale. The court reasoned that the lapse of time between the recovery and witness examination could explain such discrepancies, which were not crucial to the case's foundation. Additionally, the appellant requested concurrent running of sentences, which was opposed by the State counsel. The court noted that the appellant was only facing trial in two cases, ordering the sentences to run concurrently under Section 427 Cr.P.C.

In conclusion, the court affirmed the conviction and sentence, dismissing the appeal. The judgment highlighted the importance of credible official witnesses, permissible delays in procedures, and the discretion to order concurrent sentences in appropriate cases. The order was to be forwarded to the trial court for implementation.