2017 (12) TMI 1509 - HC - Indian Laws

Smuggling - charas - Section 8/20 of N.D.P.S. Act - compliance under Section 50 N.D.P.S. Act - whether the provisions of Section 50 of N.D.P.S. Act would be applicable in the present case or not for which evidence on record has to be seen? - Held that - It is apparent from the above evidence on record that the alleged contraband was recovered from the accused all of a sudden by the police party and after the recovery having been made, the police came to know about the same being charas from its smell and on being told by the accused about it. There was no prior information to the police that the accused would be carrying charas, pursuant to which his arrest might have been made - the provisions of section 50 of N.D.P.S. Act would not be applicable. Whether the prosecution has been able to prove beyond reasonable doubt that the contraband material which was recovered from the accused and subsequently seized was the same, out of which the sample was taken and sent to the F.S.L. for determining whether the same was charas or not? - Held that - it was duty of the accused to disclose as to how he came in possession of the contraband Charas. He has simply denied the recovery of such substance and has taken the plea that he has been falsely implicated by police, in statement under section 313 of the Criminal Procedure Code. Why the police has falsely implicated him and what was enmity of police with him, has not been brought on record by examining any witness. It would not be out of place to mention that the quantity recovered from the accused is huge, which is difficult to be planted looking to its value in the International market. The statement of police witnesses recorded by the prosecution in this case cannot be disbelieved only because they were police witnesses, in absence of any public witness being available. These witnesses did arrest the accused with alleged contraband substance in the normal course of duty harboring no enmity towards him, hence it cannot be held that they might have given false statement against the accused only to ensure that the charge sheet submitted by police stands vindicated. Compliance of section 57 of NDPS Act - Held that - The compliance of section 57 could only have adverse impact on the probative value of the evidence of the prosecution, in case the prosecution had led weak evidence in regard to recovery from the accused. But that is not the case here. Non-compliance of the provisions of section 32 B of the NDPS Act - Held that - the Court has expressed opinion that it is not mandatory while awarding punishment under sections of NDPS Act, wherein minimum punishment is provided, to award higher punishment than the minimum prescribed without taking into consideration the grounds which are mentioned in sub section (a) to (f) of section 32 B of NDPS Act - if the said section be read with greater attention, it would reveal that the words used in it are it may deem fit , therefore word may would indicate that it would be discretionary for the Court to take the grounds into consideration which are mentioned in sub-section (a) to (f) of the said section, while awarding punishment higher than the minimum prescribed. This Court has already held that the prosecution has been successful in proving the recovery of contraband substance from the accused, of which he could show no license to possess, on the basis of entire evidence, therefore, this view of the Court may not be upset only because of the above mentioned lacuna being pointed out in investigation - The conviction of the accused appellant is upheld but his punishment is reduced to 10 years R.I., fine of ₹ 1,00,000/- and in default of payment of fine, he shall further undergo S.I. of three months - appeal allowed in part.

Summary

Issues Involved:
1. Compliance with Section 50 of the N.D.P.S. Act.
2. Proof of the contraband substance's integrity.
3. Absence of independent witnesses.
4. Compliance with Sections 55 and 57 of the N.D.P.S. Act.
5. Investigation by a subordinate officer.
6. Sentencing and compliance with Section 32B of the N.D.P.S. Act.

Analysis of Judgment:

1. Compliance with Section 50 of the N.D.P.S. Act:
The court addressed whether Section 50's requirements were met during the search and seizure. The defense argued non-compliance, citing Mohinder Kumar Vs. State of Goa, which mandates adherence to Section 50 even in chance recoveries. However, the court found the Supreme Court's ruling in State of H.P. Vs. Sunil Kumar more applicable, which stated that Section 50 does not apply to chance recoveries during routine searches. The court concluded that the police had no prior information about the accused carrying contraband, making Section 50 inapplicable in this case.

2. Proof of the Contraband Substance's Integrity:
The defense questioned the integrity of the contraband sample, arguing discrepancies in the seals used. The court examined evidence, including testimonies and documentation, confirming that the sample was properly sealed and handled. The court referred to Gian Chand and Others Vs. State of Haryana, emphasizing the need for cross-examination to challenge the prosecution's claims. The court found the prosecution's evidence credible, establishing the integrity of the contraband sample.

3. Absence of Independent Witnesses:
The defense argued that the lack of independent witnesses undermined the prosecution's case. The court acknowledged discrepancies in witness statements but upheld the principle that police witnesses' testimony can be credible in the absence of public witnesses, as long as there is no evidence of bias or malice. The court cited Gian Chand's case, which supports relying on police testimony when independent witnesses are unavailable.

4. Compliance with Sections 55 and 57 of the N.D.P.S. Act:
The defense highlighted non-compliance with Sections 55 and 57, which mandate proper handling and reporting of seized contraband. The court noted that while strict compliance is not mandatory, substantial compliance is required. The court found that the prosecution had substantially complied with these provisions, as evidenced by timely reporting and proper handling of the contraband.

5. Investigation by a Subordinate Officer:
The defense argued that the investigation was flawed because it was conducted by an officer subordinate to the one who made the arrest. The court referred to State of Karnataka Vs. K. Yarappa Reddy and State of West Bengal Vs. Mir Mohammad Omar, which state that defects in investigation do not necessarily invalidate the prosecution's case if the evidence is otherwise credible. The court found no evidence of bias or coercion in the investigation.

6. Sentencing and Compliance with Section 32B of the N.D.P.S. Act:
The defense argued that the trial court imposed a higher-than-minimum sentence without considering factors listed in Section 32B. The court clarified that while Section 32B provides factors for consideration, it is discretionary. The court reduced the sentence from 12 years and a fine of ?1,20,000 to 10 years and a fine of ?1,00,000, considering the accused's lack of prior criminal history and socio-economic background.

Conclusion:
The court upheld the conviction but reduced the sentence, emphasizing the importance of substantial compliance with procedural requirements and the credibility of evidence. The judgment balanced legal principles with the specifics of the case, ensuring a fair outcome.