2015 (11) TMI 1822 - HC - Indian Laws

Smuggling - Charas - offences punishable under Section 20 (b) (ii) C and Section 29 read with Section 20 (b) (ii) C of the Narcotic Drugs and Psychotropic Substances Act, 1985 - It was argued by the learned counsels for the appellants that there is an infirmity with respect to the secret information (Ex. PW-2/E) as it does not mention the vehicle number and make of second vehicle i.e. Marshall Jeep HR-13A-0170 in which appellant Chand Singh and appellant Jasbir Singh had come to take the delivery of the contraband substance. HELD THAT - In the present case, possession has been established by the prosecution beyond reasonable doubt. The recovery proceedings have been duly proved beyond shadow of doubt. Perusal of the statements of the appellants as well as the official witnesses reveals that there is a high degree of corroboration of facts leading to the recovery, seizure and arrest proceedings. As noted above, minor discrepancies in the testimonies of witnesses that do not go into the root of the case of the prosecution cannot be held to vitiate the proceedings conducted. Therefore, it was for the defence to rebut the presumption that the appellants were not in conscious possession of the contraband - However, the appellants have failed to rebut the presumption that they were not in conscious possession. Hence, it stands proved that the appellants were not only in possession, but in conscious possession of seized charas. There are force in the submission of the learned SPP that if the appellants were innocent then it is difficult to understand so as to why they would try to flee away from the spot when the NCB officials approached them. He relied on the cross examination of R.K. Yadav (PW-1), who stated that Accused persons tried to run away but they could run. The accused persons caught in their position as we found them on reaching the spot. . Perusal of the statements of appellants recorded under Section 67 of the Act reveal the same. Therefore, the statement of R.K. Yadav (PW-1) stands corroborated by the statements of appellants. Thus, this Court finds on the basis of the evidence brought on record, that the appellants were involved in transportation of a huge quantity of Charas. Thus, the conviction of the appellants by Trial Court is upheld. Since the quantity of charas recovered from the possession was 148 kilograms, the order on sentence is also upheld, as it is the minimum punishment that has been awarded to the appellants - appeal dismissed.

Summary

Issues Involved:
1. Infirmity in the secret information.
2. Compliance with Section 50 of the NDPS Act.
3. Authorization for arrest.
4. Non-inclusion of independent witnesses.
5. Representativeness of the samples.
6. Possibility of tampering with the seized contraband.
7. Voluntariness of statements under Section 67 of the NDPS Act.
8. Possession and conscious possession of the contraband.
9. Testing of the contraband at the spot.
10. Discrepancies in the testimonies of prosecution witnesses.

Detailed Analysis:

1. Infirmity in the Secret Information:
The appellants argued that the secret information did not mention the vehicle number and make of the second vehicle (Marshall Jeep HR-13A-0170). The court found that the information was conveyed telephonically and contained sufficient details about the appellants' identities and addresses. Therefore, the non-mention of the vehicle number did not vitiate the proceedings.

2. Compliance with Section 50 of the NDPS Act:
The appellants contended that they were not informed about their right to be searched before a Magistrate. The court held that the appellants were apprised of their right to be searched before a Gazetted Officer or a Magistrate, and their refusal was recorded in their handwriting. The compliance of Section 50 was established, and even if it were assumed that the notices were defective, it was immaterial as the recovery was from the vehicles, not the persons.

3. Authorization for Arrest:
The appellants argued that the search authorization did not authorize their arrest. The court differentiated between Sections 42 and 43 of the NDPS Act, concluding that Section 43, which applies to public places, was applicable. Under Section 43, the officers were competent to arrest the appellants without prior authorization.

4. Non-inclusion of Independent Witnesses:
The appellants argued that no independent witnesses from the area were associated, and Nafe Singh, the independent witness, was not examined in court. The court found that efforts were made to include independent witnesses, and the absence of Nafe Singh did not vitiate the proceedings. The testimonies of the official witnesses were found credible and corroborated each other.

5. Representativeness of the Samples:
The appellants argued that the samples were not representative as they were not taken from each packet. The court held that it was not necessary to extract samples from each slab, and the samples taken were sufficient to represent the whole contraband. The process adopted was practical and did not violate any prescribed procedure.

6. Possibility of Tampering with the Seized Contraband:
The appellants contended that the samples could have been tampered with. The court found that the seals were intact throughout the process, and the link evidence established that tampering was not possible. The statements of the official witnesses corroborated the integrity of the samples.

7. Voluntariness of Statements under Section 67 of the NDPS Act:
The appellants argued that their statements were not voluntary. The court found that the statements contained personal facts known only to the appellants, and there were no signs of coercion. The appellants did not retract their statements at the earliest opportunity, suggesting that the retractions were an afterthought.

8. Possession and Conscious Possession of the Contraband:
The court held that the possession of the contraband was established beyond reasonable doubt. The statutory presumption of conscious possession under Sections 35 and 54 of the NDPS Act was applied, and the appellants failed to rebut this presumption.

9. Testing of the Contraband at the Spot:
The appellants argued that the contraband was not tested at the spot. The court found that due to the crowd at the spot, the proceedings were conducted at the office. The official witnesses' statements corroborated the testing and weighing procedures.

10. Discrepancies in the Testimonies of Prosecution Witnesses:
The appellants pointed out inconsistencies in the testimonies regarding the location of the vehicles and the Hero Honda showroom. The court found that minor discrepancies did not affect the root of the prosecution's case. The testimonies were consistent on material aspects, and the appellants' attempt to flee corroborated their guilt.

Conclusion:
The court upheld the conviction and sentence of the appellants, finding no merit in their appeals. The appellants were found guilty of being in possession of 148 kilograms of charas, and the minimum punishment was awarded. The appeals were dismissed.