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TMI Blog2018 (1) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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. - Criminal Appeal No. 5641-1286 of 2011 - - - Dated:- 20-12-2017 - Hon'ble Mrs. Vijay Lakshmi, J. For the Appellant : Kunwar Umesh Nigam, Narendra Deo Rai, Praveen Kumar Srivastava, S.C. Singh, Snehil Srivastava For the Respondent : Govt. Advocate ORDER As both these appeals have been filed against the same impugned judgment dated 04.02.2011 passed by the Additional Sessions Judge F.T.C.-I in S.S.T. No. 39 of 2009 (State Versus Laxmi Kant and others) Sidharth Nagar, both are being disposed of by this common judgment. Aggrieved by their conviction under Section 20 of N.D.P.S. Act and sentence of 10 years Rigorous Imprisonment with fine of ₹ 1,20,000/- imposed on each of them, the appellants are before this Court by way of aforesaid appeals. Heard Sri Ravindra Kumar Srivastava, Advocate on behalf of the appellants and learned A.G.A. representing the State. Perused the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the same bag which was also sealed by the police and sample of the seal was prepared. Information was sent to the Superior Officers by mobile phone. At the time of the arrest of appellants, public witnesses had gathered on the spot but when they were asked to be a witness, they silently left the place. The motorcycle was taken into custody. The recovery memo (Ext. K-a) was prepared, copies whereof were given to the appellants. On the basis of aforesaid recovery memo, Case Crime No. 1492 of 2009 was registered against both the appellants at P.S. Sidharth Nagar and check report was prepared, which shows that the time of occurrence is 12.00 P.M. on 14.09.2009, the report has been lodged at 14.30 minutes on the same day and the distance between the place of occurrence and the police station is 06 kms. Charge under Sections 20 (b) (2) (c) (ii) of N.D.P.S. Act was framed against the both the appellants, who denied from the same and claimed their trial. The Prosecution in order to prove its case, produced six witnesses in all. PW-1 is S.I. Dinesh Yadav, who is the first informant, PW-2 is the Head constable, Chandra Bhan Paswan, who was one of the members of the police te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as aforesaid. The legality and correctness of the impugned judgment have been challenged by the learned counsel for the appellants mainly on the following grounds:- 1. There is no compliance of the Section 50 of N.D.P.S. Act, as the appellants were not informed that they have a right to be searched before the Gazetted Officer, where as it was mandatory for the police party searching the appellants, to have informed them about their right. 2. All the prosecution witnesses are police personnels, who are highly interested witnesses, and there is no independent witnesses of the alleged recovery which has been planted by the police. 3. The Contraband allegedly recovered from the possession of the appellants was neither properly sampled nor properly sealed. In this regard, learned counsel for the appellants has drawn the attention of this Court to Order No. 1/39 issued by the Government of India, Ministry of Finance, New Delhi and has argued that samples should have been homogeneous, which means that it must have been ensured that equal quantity is taken from each packet/container of that lot and be mixed together to make it homogeneous. Learned Counsel for the appellants ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Panji, Goa 1993 SCC (Crl) 803 and Noor Aga Vs. State of Punjab 2010 (71) ACC 575. Per contra, the learned A.G.A. has vehemently contended the appeal on the ground that all the provisions relating to search and seizure have been duly complied with by the police. As the recovery of charas has been made from the bag of appellant Mangru, Section 50 of the N.D.P.S. Act has no application in this case. Learned A.G.A. has argued that recovery has been made from a public place, therefore, Section 52 of the N.D.P.S. Act. is also not applicable and the present case comes under Section 53 of N.D.P.S. Act and not under Section 52 of N.D.P.S. Act. Learned A.G.A. has further contended that learned Trial Court, after a proper and reasonable appreciation of entire evidence led by the parties and after discussing in detail each and every factual and legal aspect of the matter has found the appellants guilty and has punished them accordingly, therefore, there is no reason to interfere with the impugned judgment and both the appeals are liable to be dismissed. Considered the rival submissions of the learned counsel for the parties. For the purposes of coming to a right conclusion in this ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e spot, however, when they were asked to be witness, they silently left the place. The photograph of the recovered charas was taken by the Mobile Camera of the informant. As the appellants had failed to show any valid papers of the motorcycle, they were travelling at that time, the motorcycle was also seized. The signature of the appellants and of the police witnesses were taken on the recovery memo and the information was given to the Higher officers by mobile phone and R.T. Set. P.W.1 has duly proved the recovery memo which was marked as (Ext. K-1), he has also proved the written consent given by the appellants which was marked as (Ext.K-2), and the arrest memo was marked as (Ext. K-3). During the course of examination of the witnesses, recovered charas was produced in the trial Court in a sealed container and P.W.1 identified his signature and the date 14.09.2009 marked on it. When the sealed packet was opened before the Court, 334 pieces of charas (some in cylindrical shape and some in spherical shape) were found in it. P.W.2 Head Con. Chandra Bhan Paswan has stated that he was on duty with S.O.G. Team, Sidharth Nagar on 14.09.2009. He was going to Burdpur alongwith in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ept intact in a sealed container. During his cross-examination, PW-4 has stated that he cannot recollect the weight of charas recovered in this case. He has also stated that sample of charas, opened before the Sessions Judge, Siddharth Nagar, was not weighed at that time. He has stated that he travels by bus but the ticket of bus by which he had travelled to Lucknow, has not been filed in this case because he had earlier filed it to claim his travelling allowance. PW-5 is constable Ram Nakshatra Gautam, who has produced Malakhana register in the Court and has proved its relevant entries by identifying his hand writing. P.W.6 is Constable Nagendra Singh has stated that on 14.09.2009 he was posted at P.S. Siddharth Nagar. He had made relevant entries in the general diary of the police regarding registration of the case. He has duly proved it by identifying his hand writing and his signature. 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 disbeliev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l No. 1096 of 2016, Dalbagh Singh Vs. State of Punjab, while relying on its earlier judgment rendered in Sajan Abraham Vs. State of Kerala (2001)6 SCC 692 by a Bench of three Hon'ble Judges, has held that section 57 of the NDPS Act is not mandatory in nature but only directory, and unless it is demonstrated that non-compliance of it has caused prejudice to the accused persons and has resulted in failure of justice, these rules, which deal with the steps to be taken by the officers after making arrest or seizure, will not invalidate such arrest or seizure. The Hon'ble Apex Court in its one more recent judgment delivered on 7.9.2016 in Criminal Appeal Nos. 1020-1021 of 2009, Girish Raghunath Mehta Vs. Inspector of Customs and others, has held that where the recovery is from a public place, strict compliance by the Investigating Agency should not be required in an emergency situation so as to avoid misuse by drug peddlers. Moreover, PW2 has stated that higher police officers were informed about the recovery by mobile phone. In Bahadur Singh Vs. State of Haryana; 2010 (4) SCC 445, the Hon'ble Apex Court has held that substantial compliance of Sections 42 and 57 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rch of the accused. In case, the recovery of the narcotic is made from a container being carried by the individual, the provisions of Section 50 would not be attracted........ .........Section 50 is applicable only where search of a person is involved and said section is not applicable nor attracted where no search of a person is involved. Thus search and recovery from a bag, brief case, container, etc. does not come within the ambit of Section 50 of the Act....... 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. In Baldev Singh's case (supra) the Apex Court has observed as under:- Once the physical possession of the contraband by the accused has been proved, Section 35 of the NDPS Act comes into play and the burden shifts on the appellant-accused to prove that he was not in conscious possession of the contraband. Section 35 of the NDPS Act reads as under:- 35. Presumption of culpable mental state.--(1) In any prosecution for an offence under this Act which requires a culpable mental state of the accused, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of DW1 has not been relied upon by the learned trial court in view of the fact that the prosecution had successfully proved its case beyond reasonable doubt against the accused persons. According to the statement of DW1 himself, the appellant Laxmi Kant had left his place in the morning of next day i.e. 14.9.2009. The applicant has been arrested on 14.9.2009 at 12.00 noon. Therefore it cannot be said that he was not present at the place of occurrence at that time. Moreover, DW1 is a close relative of the appellants, whereas all the prosecution witnesses are independent witnesses. In so far the complicity of appellant Sanjay Pandey (in Criminal Appeal No. 1286 of 2011) is concerned, although he has taken the plea that he had no concern with the alleged Charas and nothing objectionable was recovered from his possession and he was only driving the motorcycle, however, this court does not find any substance in his submissions for the reason that he has been arrested while driving the same motorcycle on which Laxmi Kant Gupta @ Mangru Gupta (the appellant in Criminal Appeal No. 5641 of 2011) was travelling as a pillion rider from whose possession 12 Kg of Charas was recovered. Both ..... X X X X Extracts X X X X X X X X Extracts X X X X
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