2018 (1) TMI 62 - HC - Indian Laws

Smuggling - Charas - Charge under Sections 20 (b) (2) (c) (ii) of N.D.P.S. Act - Held that - A careful perusal of the statements of all the aforesaid prosecution witnesses disclose that they have complied the mandatory provisions provided under the N.D.P.S. Act. It is true that in this case all the prosecution witnesses are police officials but there is no reason to disbelieve their statements. They all are independent witnesses and the appellants have not shown any reason in their statements u/s 313 Cr.P.C. as to why the police officials have falsely implicated them in this case. Only due to the reason that the prosecution witnesses are police officials, their entire evidence cannot be discarded, specially when no material discrepancy is seen in their statements. The amount of Charas recovered from the possession of the appellants is multiple times more than its commercial quantity, which is 1 Kg., whereas the appellants were found carrying 12 Kg of Charas with them. Therefore, the amount of contraband being of such huge quantity and Charas being a very expensive contraband, it cannot be planted by the police. The facts of the present case clearly show that the appellants were in conscious possession of Charas as they were caught red-handed by the police with Charas kept in the bag, which they were carrying. Appeal dismissed.

Issues Involved:
1. Compliance with Section 50 of the NDPS Act.
2. Reliability of police witnesses.
3. Proper sampling and sealing of contraband.
4. Compliance with Sections 42 and 57 of the NDPS Act.
5. Evidence regarding the seized motorcycle and mobile phone.
6. Reliability of the Malkhana register.
7. Reliability of witness statements.
8. Consideration of injury reports.
9. Criminal history of appellants.
10. Credibility of defense witness.
11. Conscious possession of contraband by appellant Sanjay Pandey.

Issue-wise Detailed Analysis:

1. Compliance with Section 50 of the NDPS Act:
The appellants argued that they were not informed of their right to be searched before a Gazetted Officer. However, the court noted that the recovery was made from a bag carried by the appellants, not from their person, making Section 50 inapplicable. The court cited *Jarnail Singh v. State of Punjab* to support this view.

2. Reliability of Police Witnesses:
The appellants contended that all prosecution witnesses were police personnel and thus interested witnesses. The court, referencing *Baldev Singh v. State of Haryana* and *Tahir v. State (Delhi)*, held that police testimony could be reliable if it inspires confidence and is corroborated by other evidence. The court found no material discrepancies in the statements of the police witnesses.

3. Proper Sampling and Sealing of Contraband:
The appellants argued that the contraband was not properly sampled or sealed. The court noted that while samples were not drawn from all 338 pieces, the procedures followed were consistent with the law. The court found the sampling and sealing process adequate and dismissed this ground.

4. Compliance with Sections 42 and 57 of the NDPS Act:
The appellants claimed non-compliance with Sections 42 and 57. The court, citing *Dalbagh Singh v. State of Punjab* and *Bahadur Singh v. State of Haryana*, held that substantial compliance was sufficient and that any non-compliance did not prejudice the appellants' case. The court found that the police had informed higher officers via mobile phone, fulfilling the requirements.

5. Evidence Regarding the Seized Motorcycle and Mobile Phone:
The appellants argued that there was no evidence regarding the fate of the seized motorcycle and mobile phone. The court did not find this argument substantial enough to affect the overall case, as the primary focus was on the recovery of charas.

6. Reliability of the Malkhana Register:
The appellants claimed the Malkhana register was manipulated. The court found the entries in the register to be reliable, as they were duly proved by the prosecution witnesses.

7. Reliability of Witness Statements:
The appellants pointed out contradictions and omissions in witness statements. The court, after careful scrutiny, found the statements consistent and credible, dismissing this ground.

8. Consideration of Injury Reports:
The appellants argued that injury reports showed they were assaulted. The court noted that injuries were simple and did not affect the credibility of the recovery process or the prosecution's case.

9. Criminal History of Appellants:
The court acknowledged that the appellants had no prior criminal history but found this irrelevant to the current charges, given the strong evidence of their involvement in smuggling charas.

10. Credibility of Defense Witness:
The defense witness (DW-1) was not cross-examined by the prosecution. The court found his testimony unreliable due to his close relationship with the appellants and the strong prosecution evidence.

11. Conscious Possession of Contraband by Appellant Sanjay Pandey:
The appellant Sanjay Pandey argued he was unaware of the contraband carried by the pillion rider. The court found this argument unconvincing, noting that his attempt to flee upon seeing the police indicated knowledge of the contraband. The court held that Sanjay Pandey was in conscious possession of the charas.

Conclusion:
The court dismissed the appeals, upholding the conviction and sentences. The appellants were found guilty of smuggling charas, with all procedural and evidentiary requirements deemed satisfactorily met by the prosecution.

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