2018 (10) TMI 1709 - HC - Indian Laws

Smuggling - recovery of contraband doda powder or not - whether the prosecution has been able to establish the charge beyond reasonable doubt against the accused? HELD THAT - When asked about possession of the contraband, the accused admitted the same, then option was given to him if he wishes to be searched in the presence of the Magistrate or a Gazetted Officer, which he declined and reposed trust in the police party itself, then search was made. On search being made seven polythene packets were recovered from inside the white sack. On weighing the seven recovered packets, the aggregate weight of the contraband/substance was found to be 10 kg in all - Here, it can be observed that the search cannot be confined to the search of the person as is the case herein in hand because it was the sack recovered from the hand of the accused which the accused was holding at the time of his apprehension by the policestrictly speaking this aspect removes doubt regarding factum of search of person. o far as, fact of safe conveyance of the sample to the Forensic Science Laboratory is concerned, that very aspect, has been satisfactorily proved by Constable Shamsher Ahmad PW2. He has categorically stated that he obtained the sample from the police station and took the same to the Forensic Science Laboratory, Agra and entry of the same was noted in the General Diary of date 14.01.2007 at Serial No.16 at 8 20 hours. Similarly, the entry of return journey was also noted in the concerned General Diary at Serial No.29 of date 17.01.2007 at 2 50 p.m. He has categorically stated that the substance was taken in safe and sealed condition to the Forensic Science Laboratory and no tampering was made and it was so handed over at the Forensic Science Laboratory. Therefore, on the point of sampling of the contraband substance and safe conveyance, the testimony inspires confidence and there is nothing, which may create any doubt regarding noncompliance of mandatory provisions of the N.D.P.S. Act so as to render the same doubtful. The imposition of sentence for 15 years is justified and the same legal aspect has been rightly taken into account by the trial court while imposing sentence on the appellant - it cannot be said that the enhanced sentence is violative of the provisions of the N.D.P.S. Act. Appeal dismissed.

Summary

Issues Involved:
1. Validity and sustainability of the judgment and order of conviction and sentence.
2. Compliance with mandatory provisions of search under Section 50 of the NDPS Act.
3. Adequacy of evidence supporting the recovery of contraband.
4. Legality of the enhanced sentence imposed on the accused.

Issue-wise Detailed Analysis:

1. Validity and Sustainability of the Judgment and Order of Conviction and Sentence:
The appellant challenged the judgment and order dated 06.10.2007, passed by the Additional Sessions Judge, convicting him under the NDPS Act and sentencing him to 15 years of rigorous imprisonment along with a fine of ?1,50,000, with a default stipulation of an additional three years of rigorous imprisonment. The court upheld the conviction and sentence, finding no merit in the appeal. The trial court's decision was based on the testimonies of the prosecution witnesses, the recovery memo, and the Forensic Science Laboratory report, which confirmed the substance as 'doda powder'.

2. Compliance with Mandatory Provisions of Search under Section 50 of the NDPS Act:
The appellant contended that the recovery was vitiated due to non-compliance with Section 50 of the NDPS Act. The court observed that the search was not confined to the person but included the sack recovered from the accused's hand. The police offered the accused the option to be searched in the presence of a Magistrate or a Gazetted Officer, which he declined. The court found that the search was conducted appropriately, and the non-mention of inter se search in the recovery memo was not fatal, as the witnesses testified to the inter se search.

3. Adequacy of Evidence Supporting the Recovery of Contraband:
The prosecution presented witnesses, including the informant and the constable who accompanied him, to support the recovery of the contraband. The court found their testimonies credible and consistent with the recovery memo and the FIR. The investigating officer confirmed that the sampling was done by the Circle Officer, and the sample was sent to the Forensic Science Laboratory in a sealed condition. The court concluded that the prosecution had proven the charge beyond a reasonable doubt, supported by the Forensic Science Laboratory report confirming the substance as 'doda powder'.

4. Legality of the Enhanced Sentence Imposed on the Accused:
The appellant argued that the sentence was excessive, as the recovered contraband was less than the commercial quantity, warranting a maximum punishment of 10 years. However, the court noted that the appellant was a habitual offender with previous convictions under the NDPS Act. According to Section 31 of the NDPS Act, the sentence for a repeat offender could be extended to half of the maximum prescribed sentence. The court justified the 15-year sentence, considering the appellant's repeated offenses and the legal provisions for enhanced punishment for habitual offenders.

Conclusion:
The appeal was dismissed, and the conviction and sentence were upheld. The court found that the prosecution had established the charge beyond a reasonable doubt, and the enhanced sentence was justified under the provisions of the NDPS Act. The appellant was ordered to serve the remaining part of his sentence.