2017 (12) TMI 632 - HC - Indian Laws

Offence punishable under Section 18 of NDPS Act - factum of recovery of 4 kgs of opium from each of the two accused - Held that - No force in the contention raised on behalf of the appellant regarding non-compliance of Section 50 of NDPS Act. PW-1 SI Avtar Singh and PW-2 HC Rajbir Singh stated consistently regarding the factum of recovery of 4kgs of opium from each of the two accused. PW-3 DSP Amarjit Singh Bajwa in whose presence the accused had been searched also stated identically about recovery proceedings. All the three witnesses were cross-examined at length on behalf of the accused but the witnesses remained firm on their statements. Nothing could be elicited during their cross-examination, which can be said to be helpful to the accused. As the aforesaid three PWs having stated consistently regarding recovery of 4 kgs of opium from each of the two accused, the factum of possession of contraband by the accused stands fully established. The report of the Chemical Examiner (Ex.PP) shows that upon chemical examination, the samples were found to be of opium . The chemical examiner in his report (Ex.PP) has further recorded specifically that the seals on the samples were intact and tallied with the specimen seals. The report of the chemical examiner cannot be doubted on any count. The plea of the accused as per his 313 Cr.P.C. statement to the effect that he had been falsely implicated is not supported by any evidence. The factum of recovery of 4 kgs of opium from each of the two accused is fully proved. The said quantity would fall within the category of commercial quantity. No infirmity in the impugned judgment and the same is upheld. There is no room even for reduction in the sentence, keeping in view the quantity of contraband recovered.

Issues Involved:
1. Conviction under Section 18 of the NDPS Act.
2. Non-examination of an independent witness.
3. Alleged interpolation in documents.
4. Delay in sending samples for chemical analysis.
5. Violation of Section 50 of the NDPS Act.

Issue-wise Detailed Analysis:

1. Conviction under Section 18 of the NDPS Act:
The appellants challenged the judgment dated 16.2.2010, convicting them under Section 18 of the NDPS Act for possessing opium. They were sentenced to 12 years of rigorous imprisonment and fined `1,50,000/- each. The prosecution established charges through testimonies of police officials and other witnesses, leading to the conviction by the Special Court (NDPS), Jalandhar.

2. Non-examination of an independent witness:
The appellants argued that the prosecution's case was doubtful due to the non-examination of an independent witness, Baldev Singh, who was associated at the time of recovery. The court noted that the presence of DSP and other police officials during the recovery was sufficient, and there was no mandate that recovery must be effected in the presence of an independent witness. The Supreme Court in Kashmiri Lal Vs. State of Haryana held that police officers' testimony could be relied upon if found trustworthy. The court found no reason to distrust the police officials' statements.

3. Alleged interpolation in documents:
The appellants pointed out possible interpolation in the dates on various documents. However, the court found no such interpolation in the consent memos and recovery memo, which are primary documents prepared at the first instance. The court concluded that any discrepancy in other documents could be a genuine mistake and did not affect the overall credibility of the prosecution's case.

4. Delay in sending samples for chemical analysis:
The appellants contended that a 4-day delay in sending the samples for chemical analysis, coupled with some seals being damaged, cast doubt on the integrity of the samples. The court noted that the Chemical Examiner's report confirmed that the seals were intact and tallied with the sample seals. The Supreme Court in Hardip Singh Vs. State of Punjab held that a delay in sending samples does not cause prejudice if the seals remain intact. The court found no merit in the appellants' contention.

5. Violation of Section 50 of the NDPS Act:
The appellants argued that their right under Section 50 of the NDPS Act was violated as they were not given the option to be searched before a gazetted officer other than the DSP present at the spot. The court examined the compliance with Section 50 and found that the DSP had informed the accused of their right to be searched before a Magistrate or himself, a gazetted officer. The Constitution Bench in State of Punjab vs. Baldev Singh and Vijaysinh Chandubha Jadeja v. State of Gujarat emphasized the mandatory nature of Section 50 compliance. The court concluded that the accused were made aware of their rights, and the offer extended was proper, meeting the legal requirements.

Conclusion:
The court found that the prosecution had established the charges against the accused beyond reasonable doubt. The testimonies of the police officials were consistent and reliable. The alleged interpolation in documents and the delay in sending samples did not affect the case's integrity. The compliance with Section 50 of the NDPS Act was found to be proper. The appeal was dismissed, and the conviction and sentence were upheld.

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