2020 (3) TMI 516 - HC - Indian Laws

Smuggling - Psychotropic Substance - poppy straw - it has been mainly contended by learned counsel for the appellants that no public witness has been joined at the time of recovery; the mandatory provisions of Section 42 of the Act have not been complied with; there are discrepancies and infirmities in the case of prosecution and the appellants have been falsely implicated on account of party faction. HELD THAT - In the case in hand, the recovery has been effected by Inspector Nand Lal (PW4) in the presence of ASI Jaswant Singh (PW3). Both the witnesses to the recovery have deposed in a fairly satisfactory manner on all the material aspect of the case. They have given a satisfactory count with regard to the sequence of events leading to the recovery of incriminating articles from the possession of the appellants. No ill will, animosity or bias is made out against the appellants by the police officials and no reason is made out for their false implication. The deposition of the witnesses inspire confidence and are fairly reliable to base the conviction of the appellants. The deposition of the witnesses sufficiently proves and establishes the material fact of recovery of the incriminating articles from the conscious joint possession of all the three appellants beyond the shadow of reasonable doubt. Once the material fact of recovery of incriminating articles from the conscious possession of the appellants is proved and established by satisfactory and reliable evidence, the inconsequential infirmities and unimportant flaws in the case of prosecution tend to pale into insignificance - The learned trial Court has recorded the findings of conviction on the basis of satisfactory and reliable evidence establishing the guilt of the appellants beyond the shadow of reasonable doubt and the same does not call for any interference by this Court. Appeal dismissed.

Summary

Issues Involved:
1. Compliance with Section 42 of the Narcotic Drugs and Psychotropic Substances Act (NDPS Act).
2. Reliability of official witnesses and absence of independent witnesses.
3. Alleged discrepancies and infirmities in the prosecution's case.
4. Defence claims of false implication due to political rivalry.

Issue-wise Detailed Analysis:

1. Compliance with Section 42 of the NDPS Act:
The appellants contended that the mandatory provisions of Section 42 of the Act were not complied with, as the information was neither reduced into writing nor sent to a senior officer. The court clarified that the recovery was made from a public place (a jeep on a public path), thus invoking Section 43 instead of Section 42. Section 43 pertains to seizures in public places or in transit and does not require the same procedural formalities as Section 42. The court referenced the case of *State of Haryana vs. Jarnail Singh and others*, which distinguished between the requirements of Sections 42 and 43, emphasizing that Section 43 applies to public places, including conveyances.

2. Reliability of Official Witnesses and Absence of Independent Witnesses:
The appellants argued that no public witness was joined at the time of recovery, questioning the reliability of the official witnesses. The court held that the deposition of official witnesses cannot be distrusted merely due to their official status. It acknowledged the general reluctance of the public to participate in such investigations and emphasized that the absence of independent witnesses does not invalidate the prosecution's case. The court stressed the need to scrutinize the evidence with care and caution in such circumstances.

3. Alleged Discrepancies and Infirmities in the Prosecution's Case:
The appellants highlighted discrepancies, such as the handling of the seal used during the recovery. The court found these discrepancies inconsequential, noting that the case property was promptly deposited with the MHC and the sample parcels were delivered to the FSL before the seal was reused in other cases. The court recognized that minor discrepancies are expected over time and do not necessarily undermine the prosecution's case.

4. Defence Claims of False Implication Due to Political Rivalry:
The appellants claimed they were falsely implicated due to political rivalry, supported by defence witnesses. However, the court noted that this defence was not raised during the cross-examination of the prosecution's key witness, Inspector Nand Lal. The court found the defence witnesses' testimonies unconvincing and highlighted their failure to lodge complaints about the alleged false implication. The court concluded that the defence version appeared to be an afterthought.

Conclusion:
The court upheld the conviction and sentence, finding the prosecution's evidence satisfactory and reliable. It dismissed the appeal, emphasizing that the recovery of incriminating articles from the appellants' conscious possession was proven beyond a reasonable doubt. The appellants' arguments regarding procedural lapses and false implication were not substantiated sufficiently to merit overturning the conviction. The court ordered the re-arrest of the appellants to serve their sentences.