2015 (9) TMI 671 - HC - Customs

Conviction under Section 15 of the NDPS Act, 1985 - Held that - mere nonjoining of the independent witness itself is not a ground to discard the prosecution case. The testimonies of the official witnesses also carries the same evidentiary value as that of any other witness - defence plea of the appellant that he has been falsely implicated at the instance of Leela Singh due to party faction has no substance, so there was no motive for the false implication of the accused-appellant by SI Budh Singh, the Investigating Officer of the case. - The recovery in this case has been effected from a bag which the appellant was carrying on his head. So, it is not the case where the recovery has been effected from the personal search of the accused. Hence, the provisions of Section 50 of the Act were not applicable in this case. - No doubt, the Investigating Officer of the case has not produced the case property before the Magistrate to comply with the provisions of Section 52-A of the Act but that lapse on the part of the Investigating Officer will also not vitiate the conviction or trial as the provisions of Section 52-A of the Act are directory and not mandatory in nature. There is no material on record to establish that the accused had any criminal background or was involved in any other case under the provisions of the Act. There is also no material on record to show that he was a previous convict. The recovery effected from the appellant is non commercial quantity. He has already faced the agony of the proceedings/prosecution for the last more than 12 years. Thus, in these circumstances the appellant certainly deserves the reduction in sentence. He has been sentenced to undergo rigorous imprisonment for a period of four years and has been ordered to pay a fine of ₹ 40,000/- in default of payment of fine, he has been directed to to further undergo rigorous imprisonment for a period of one year. In my opinion, the rigorous imprisonment for two years and a fine of ₹ 20,000/- in default of payment of fine, to further undergo rigorous imprisonment for a period of four months will suffice the ends of justice - Decided partly in favour of appellant.

Issues Involved:
1. Non-association of independent witnesses.
2. Contradictions in the weight of the contraband.
3. Delay in depositing the sample with the Forensic Science Laboratory (FSL).
4. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
5. Compliance with Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985.
6. Harshness of the sentence awarded.

Issue-wise Detailed Analysis:

1. Non-association of independent witnesses:
The appellant contended that no independent witnesses were associated with the recovery, even though it occurred on a public road. The court noted that PW1 SI Budh Singh and PW2 HC Kapoor Singh testified that they requested public men to join the investigation, but they refused. The court held that the non-joining of independent witnesses does not discredit the prosecution's case as the testimonies of official witnesses carry the same evidentiary value. The defense's claim of false implication due to political rivalry was unsupported by corroborative evidence and was therefore dismissed.

2. Contradictions in the weight of the contraband:
The appellant highlighted discrepancies in the weight of the contraband as stated by different prosecution witnesses. The court found these to be typographical errors, noting that the consistent evidence from PW1 SI Budh Singh and the seizure memo indicated the weight of the residue was 19 kilograms 800 grams. The court concluded that these minor clerical errors did not undermine the prosecution's case.

3. Delay in depositing the sample with the Forensic Science Laboratory (FSL):
The appellant argued that a six-day delay in sending the sample to the FSL indicated possible tampering. The court referenced previous rulings stating that mere delay is not fatal if the seized articles were kept in proper custody. The court found no evidence of tampering, as the FSL report confirmed the seals were intact and matched the specimen seal. Thus, the delay did not prejudice the accused.

4. Compliance with Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The appellant contended non-compliance with Section 50, which mandates informing the accused of their right to be searched in the presence of a Magistrate or Gazetted Officer. The court clarified that Section 50 is not applicable when the recovery is from a bag and not from the personal search of the accused. The court cited authoritative judgments supporting this view and dismissed the appellant's contention.

5. Compliance with Section 52-A of the Narcotic Drugs and Psychotropic Substances Act, 1985:
The appellant argued that the case property was not produced before the Magistrate as required by Section 52-A. The court held that the provisions of Section 52-A are directory and not mandatory. The lapse did not vitiate the trial or conviction, supported by precedents indicating that non-compliance with Section 52-A does not invalidate the proceedings.

6. Harshness of the sentence awarded:
The appellant claimed the sentence was harsh given his lack of a criminal background and the non-commercial quantity of the recovery. The court acknowledged the appellant had faced the proceedings for over 12 years and had no prior convictions. Consequently, the court reduced the sentence from four years of rigorous imprisonment and a fine of Rs. 40,000 to two years of rigorous imprisonment and a fine of Rs. 20,000, with a default sentence of four months.

Conclusion:
The court upheld the conviction under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, but modified the sentence to two years of rigorous imprisonment and a fine of Rs. 20,000. The appeal was dismissed except for the modification in the quantum of the sentence. The appellant was ordered to surrender within 15 days or face coercive measures to ensure compliance.

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