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2015 (8) TMI 1226 - HC - CustomsPunishment for contravention in relation to cannabis plant and cannabis Appeal against Conviction After hearing parties, trial Court vide impugned judgment, convicted appellant for commission of offence punishable under Sections 20 of NDPS Act and sentenced him to undergo rigorous imprisonment and to pay fine Appellant assailed said order of conviction on grounds of non-compliance of NDPS Act Held that - As PW-5 and PW-7, being material witness of recovery, are not alleged to have any animus or hostility against appellant prior to incident, therefore, no motive can be ascribed to them to testify falsely in present case Accused cannot be acquitted merely because no independent witness was produced Compliance or noncompliance of Section 50 is relevant only in case of personal search of person Said Section does not extend to search vehicle or container or bag, as held by Supreme Court in Ajmer Singh s case 2010 (2) TMI 1051 - SUPREME COURT PW-3, PW-4 and PW- 7 in their deposition deposed that, so long as, case property remained in their possession, neither they nor anyone else tampered, therewith Trial Court rightly observed that since appellant is native of Himachal Pradesh, police could not involve him falsely in case in hand by bringing him from his State Considering that appellant has been in jail from date of his arrest and has already spent 9 years in jail, sentence reduced to 10 years instead of 12 years Order of conviction modified Decided against appellant.
Issues Involved:
1. Compliance with Section 50 of the NDPS Act. 2. Non-joining of independent witnesses. 3. Contradictions in prosecution witnesses' statements. 4. Compliance with Section 55 of the NDPS Act. 5. Adequacy of link evidence. 6. Appropriateness of the sentence imposed. Detailed Analysis: 1. Compliance with Section 50 of the NDPS Act: The appellant contended that the trial court erred in convicting and sentencing him due to non-compliance with Section 50 of the NDPS Act. However, the court clarified that Section 50 is relevant only in the case of personal search of a person and does not extend to the search of a vehicle, container, or bag. The court cited the Supreme Court judgments in Ajmer Singh v. State of Haryana and State of Punjab v. Baldev Singh, which established that Section 50 does not apply to searches of bags or containers. Therefore, the court concluded that there was no non-compliance with Section 50 in this case, as the charas was recovered from a bag carried by the appellant. 2. Non-joining of Independent Witnesses: The appellant argued that the absence of independent witnesses at the place of recovery raised doubts about the prosecution's case. The court acknowledged that independent evidence is desirable but held that the absence of such witnesses does not automatically lead to acquittal. The court referenced Ajmer Singh v. State of Haryana, where it was held that conviction can be upheld even without independent witnesses if the testimonies of the police officers are reliable. The court found the testimonies of PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) to be credible and without animus against the appellant, thus rejecting this contention. 3. Contradictions in Prosecution Witnesses' Statements: The appellant claimed that the prosecution witnesses' statements were contradictory and unreliable. The court examined the testimonies of PW-5 and PW-7, who consistently deposed about the recovery of 2 kgs of charas from the appellant. The court noted that the cross-examination of these witnesses did not reveal any significant contradictions or discrepancies that could undermine their credibility. The court emphasized that minor discrepancies are natural due to the fallibility of human memory and do not necessarily discredit the witnesses' overall reliability. 4. Compliance with Section 55 of the NDPS Act: The court addressed the compliance with Section 55 of the NDPS Act, which requires the case property to be produced before the officer in charge of the police station. The court found that PW-6 (SI Ram Kishan) confirmed the production of the case property by PW-7 (ASI Jai Kishan) and that the case property was sealed and deposited as required. The court held that there was no non-compliance with Section 55 and that any error in this regard did not prejudice the appellant, referencing Surinder v. State of Haryana. 5. Adequacy of Link Evidence: The court evaluated the link evidence, which traces the handling of the case property from recovery to forensic analysis. The testimonies of PW-3 (Constable Om Parkash), PW-4 (Constable Naresh Kumar), and PW-7 (ASI Jai Kishan) confirmed that the case property remained untampered while in their possession. The forensic report (Ex.PX) confirmed that the sample contained charas. The court concluded that the link evidence was complete and unbroken, establishing the integrity of the case property. 6. Appropriateness of the Sentence Imposed: The appellant requested leniency in sentencing, considering his age, antecedents, and the quantity of contraband. The court noted that the appellant had already spent nine years in jail. While upholding the conviction, the court reduced the sentence from 12 years to the minimum prescribed 10 years under Section 20 (b) (ii) (C) of the NDPS Act. The fine was also reduced from Rs. 1,50,000 to Rs. 1,00,000, with a default imprisonment of six months. Conclusion: The court upheld the conviction for the offence under Section 20 (b) (ii) (C) of the NDPS Act, finding no illegality or impropriety in the trial court's judgment. However, the sentence was modified to 10 years of rigorous imprisonment and a fine of Rs. 1,00,000, with a default sentence of six months. The appeal was dismissed, with the period already undergone by the appellant to be set off from the substantive sentence.
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