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Wednesday, May 13, 2015

Thus, we find the accused respondents guilty under Section 20 of NDPS Act for possession of 11 Kgs. Ganja. The commercial quantity of Ganja is 20 Kgs. or more, and the accused are in possession of small quantity as per the Notification of the Central Government providing small and commercial quantities of various contrabands. In view of this, we convict the accused persons (Asha Devi and her husband Om Prakash) under Section 20 of the NDPS Act and sentence them to simple imprisonment for five years.

                        IN THE SUPREME COURT OF INDIA

                      CRIMINAL APPEAL NO. 1953 OF  2009

STATE OF HARYANA                             … Appellant
ASHA DEVI AND ANR.                     … Respondents

                               J U D G M E N T

Pinaki Chandra Ghose, J.

1.    This appeal has been  filed  by  the  State  of  Haryana  against  the
judgment and order dated 10.12.2007 of the High Court of Punjab and  Haryana
at Chandigarh in Criminal Misc. No.560-MA of 2007, whereby  the  High  Court
has declined to grant leave to the State to appeal against the acquittal  of
the respondents.

2.    The facts of this case, as per the  prosecution  story,  are  that  on
3.2.2006, when Sub Inspector Ram Phal, ASI  Rishi  Raj,  Constable  Surender
Singh, Lady Constables Babita Rani and Promila, were on  patrol  duty  in  a
police vehicle which was being  driven  by  Constable  Darshan  Singh,  near
Chimni Bai Dharamshala, NIT No.3, SI Ram Phal received a secret  information
that Om Prakash son of Moti Lal, and his wife Asha Devi, residents  of  Gali
No.1, Jhuggi Kalyanpuri, bring Ganja (intoxicated drug) from Madhya  Pradesh
and supply in Faridabad and if a raid is conducted at their house, Ganja  in
heavy quantity would  be  recovered.  On  receiving  this  information,  the
aforesaid police team raided the house of Om Prakash. On seeing  the  police
party, Om Prakash managed to escape by scaling over the wall of  the  house.
Asha Devi also tried to escape but she was  apprehended  with  the  help  of
Lady Constables. On query she disclosed her name as Asha wife of Om  Prakash
and also disclosed that the man who  had  escaped  from  the  house  was  Om
Prakash. A notice in writing under Section 50  of  the  Narcotic  Drugs  and
Psychotropic Substances Act, 1985 (“NDPS Act”, for short) was served on  her
informing her of the right to either allow the Sub Inspector to take  search
of her house or opt for the search in presence of some Gazetted  Officer  or
a Magistrate. Asha Devi consented for search of her house  in  the  presence
of some Gazetted Officer. Accordingly, Shri Maharaj Singh, the  then  Deputy
Superintendent of Police, NIT,  Faridabad,  reached  the  spot  and  in  his
presence the house of Asha Devi was searched.  Asha  Devi  unpacked  a  box,
took out a bag containing Ganja and produced it before  the  Sub  Inspector.
The bag was weighed and found to be contained 11 Kgs. of Ganja out of  which
two samples of 200 gms. each were taken and sealed  with  letters  “RP”  and
“MS” on the seal. Both the samples along with the residue and  the  specimen
seal impressions  were  taken  into  possession  by  the  police  under  the
recovery memo which was prepared by I.O. Ramphal and witnessed  by  ASI  Tej
Ram and ASI Rishiraj and attested by DSP Maharaj Singh  and  thumb  mark  of
Asha Devi. The case property along with the samples and the  witnesses  were
produced before the Station House Officer, who  after  verifying  the  facts
affixed  his  seal  thereon  and  were  deposited  in  the  Moharrer  Police
Malkhana. A case was registered against  accused  Asha  Devi  under  Section
20(61) of the NDPS Act and she was arrested. Thereafter, on 04.02.2006  case
property  and  both  samples  were  produced  before  the  learned  Judicial
Magistrate, 1st Class, Faridabad. The learned judicial Magistrate broke  the
seals on the case property as well one of the samples. The learned  Judicial
Magistrate verified the material, photographs were taken and contraband  was
weighed; thereafter the sample  was  resealed  with  the  seal  of  RP.  The
Judicial Magistrate  directed  the  Investigation  Officer  to  deposit  the
material to Judicial Malkhana. After investigation, accused  Asha  Devi  was
charged under Section 20 of the NDPS Act and accused Om Prakash was  charged
under Sections 28 & 29 of the NDPS Act. The accused pleaded not  guilty  and
hence the case was committed for trial.

3.    The Trial Court examined ten prosecution  witnesses  and  two  defence
witnesses. After going through the prosecution evidence  and  after  hearing
the learned counsel for the parties, the Trial Court  did  not  find  favour
with the prosecution version as according to it,  on  receiving  the  secret
information, Sub Inspector did not join any independent witness  during  the
investigation of the case despite the fact that they were available  at  the
spot. It further found that the seal “RP”  was  entrusted  to  ASI  Rishiraj
after sealing the case property and samples on 3.2.2006;  so,  I.O.  Ramphal
could not have possessed that seal the next day when the case  property  was
produced before  the  learned  judicial  magistrate.  However,  the  learned
judicial magistrate has testified to  the  fact  that  sample  was  resealed
after verification, photograph and weighment with  the  seal  of  “RP”.  The
learned Trial Court found it irreconcilable that seal “RP” could  have  been
available with the learned Judicial Magistrate  when  ASI  Rishiraj  is  not
there. Further, the Trial Court found non  production  of  ASI  Rishiraj  as
prosecution witness creates more suspicion. Also, ASI  Tej  Raj  (PW-2)  had
chased the accused Om Prakash when he was trying to  run  away  but  he  was
unable to apprehend him. This part of the story was  also  not  believed  by
the Trial Court for the reason that five constables  were  standing  outside
the house of Om Prakash and it was not  possible  for  Om  Prakash  to  have
scaled the wall of the house. The Trial Court  found  the  evidence  of  the
prosecution as completely inconsistent and untrustworthy and held  that  the
prosecution has failed to prove its charges against the accused  beyond  all
shadows of reasonable doubt and accordingly, acquitted the  accused  of  the
charges levelled against them.

4.    The State moved an application before the High  Court  of  Punjab  and
Haryana at  Chandigarh,  seeking  leave  to  appeal  against  the  order  of
acquittal passed by the Trial Court. The High Court vide  its  judgment  and
order dated 10.12.2007, declined to grant  leave  to  the  State  to  appeal
against the acquittal of  the  respondents  and  dismissed  the  application
filed by the State. The State of Haryana has, thus,  impugned  the  judgment
of the High Court before us.

5.    We have heard the learned counsel appearing for the State  of  Haryana
as  also  the  learned  counsel  appearing  for  the  accused   respondents.

6.    The High Court was of the  view  that  the  Trial  Court  after  going
through the prosecution evidence and hearing the  learned  counsel  for  the
parties, rightly acquitted the accused as it did not find  favour  with  the
prosecution version and so far as the search conducted in  the  presence  of
the Gazetted Officer is  concerned,  the  same  was  nothing  but  a  casual
approach adopted by the Gazetted Officer while  effecting  the  recovery  of
the contraband (Ganja) and the  Investigation  Officer  did  not  offer  any
plausible explanation. ASI Rishi Raj was present with  the  seal  which  was
used at the time of effecting the recovery, no explanation  was  offered  by
the prosecution as to how the seal continued to remain in possession of  the
ASI Rishi Raj from the date of  seizure.  The  only  presumption  which  the
Trial Court drew is that the possibility of sample being  tampered  with  is
not ruled out. The High Court was of the view that it  is  not  a  fit  case
where leave to appeal is made out in favour of the  State  of  Haryana  and,
therefore, declined the same.

7.    We find that the High Court and Trial Court both relied on three  main
points to decide the matter against the State - (i) no independent  witness;
(ii) Om Prakash could not have fled in presence  of  five  police  officers;
and (iii) the link evidence of the  possession  of  seal  “RP”  transferring
from ASI Rishiraj to I.O. Ramphal is not proved. The assessment of  evidence
and consideration of the matter as regards these three points  by  both  the
Courts, in our view, is erroneous and cannot be termed as a possible view.

8.    We find that both the DSP Maharaj Singh as well as I.O.  Ramphal  have
deposed that public persons were available when the contraband  was  seized;
however, none of the public person acceded to their request of  joining  the
investigation as an independent witness. The  Courts  below  have  found  it
unbelievable but no reason  for  same  is  rendered.  In  our  opinion,  the
consistent statement of both the DSP as well as  I.O.  rather  enhances  the
veracity of the circumstances as put forth by  them.  With  respect  to  the
finding of the Courts below that Om Prakash could not have fled  away  after
scaling the wall and the police constables would have failed to  catch  hold
of  him;  we  find  the  Courts  below  have  proceeded  on  assumption  and
conjecture. There is nothing in  the  evidence  which  could  show  that  Om
Prakash could not have run away. There are positive  statements  by  several
prosecution witnesses that he ran away on seeing the police party and  these
statements have withstood the test of cross examination  as  well.  Further,
no other evidence was led to disprove the fact of running  away  of  accused
Om Prakash. So, we are of the view that the High Court and the  Trial  Court
were not correct in arriving at the said finding.

9.    There has been a controversy with respect to possession of  seal.  The
controversy is that I.O. Ramphal had given the seal “RP” to ASI Rishiraj  on
03.02.2006 after sealing the contraband and samples  thereof.  However,  the
next day when the case property was produced  before  the  learned  Judicial
Magistrate, after verification it was resealed again with “RP”.  The  Courts
below found the case of prosecution as doubtful inasmuch as  that  when  the
seal “RP” was in possession of ASI Rishiraj, how could  it  have  been  with
I.O. Ramphal the next day. We find, the more  important  evidence  was  with
respect to the sample which was sealed with “RP”. There  is  clear  evidence
that initially the samples were taken and  sealed  with  “RP”  and  “MS”  on
03.02.2006 at the place of seizure and thereafter, on same day,  SHO  Vikram
Singh also sealed the  said  samples  with  “SS”.  There  is  uncontroverted
evidence to the fact that the  samples  were  produced  before  the  learned
Judicial Magistrate, where seal of one sample was broken and  resealed  with
“RP”. Thereafter, the sample was deposited in Judicial Malkhana  from  where
it was sent to the FSL. The FSL report notes that the seal  was  intact  and
the sample was un-tampered.

10.   All the persons who possessed the contraband sample have been  brought
on record to support that no  tampering  was  done  with  the  samples.  The
Defence failed to  bring  out  anything  in  the  cross-examination  of  the
witnesses with respect to tampering of the samples. Thus, we find  that  the
samples were properly dealt with throughout and the same  was  found  to  be
Ganja. Going further, with respect to the seal that was handed over  to  ASI
Rishiraj, the Defence failed to cross-examine the I.O.  Ramphal  as  to  how
did  he  got  possession  of  seal  back  from  ASI  Rishiraj.  Under  these
circumstances, we do not believe that the  prosecution  was  duty  bound  to
explain the movement of the seal from one person to  another  in  the  given
circumstances. Since, the movement of sample has been proved  and  found  to
be regular, the prosecution has sufficiently proved its  case  to  establish
the guilt of the accused in the present case.

11.   We have noticed the decision of this Court in Allauddin  Mian  &  Ors.
Vs. State of Bihar, (1989) 3 SCC 5.  In the said decision, this  Court  held
as under:-

“10. Even a casual glance at the provisions of  the  Penal  Code  will  show
that the punishments have  been  carefully  graded  corresponding  with  the
gravity of offences; in grave wrongs the punishments prescribed  are  strict
whereas  for  minor  offences  leniency  is  shown.  Here  again  there   is
considerable room for manoeuvre because the  choice  of  the  punishment  is
left to the discretion of the judge  with  only  the  outer  limits  stated.
There are only a few cases where a minimum  punishment  is  prescribed.  The
question then is what procedure does the judge follow  for  determining  the
punishment to be imposed in each case to fit the crime? The  choice  has  to
be made after following the procedure set out in sub-section (2) of  Section
235 of the Code. That sub-section reads as under:

If the accused  is  convicted,  the  judge  shall,  unless  he  proceeds  in
accordance with the provisions of Section  360,  hear  the  accused  on  the
question of sentence, and then pass sentence on him according to law.

The requirement of hearing the accused is intended to satisfy  the  rule  of
natural justice. It is a fundamental  requirement  of  fair  play  that  the
accused who was hitherto concentrating on the prosecution  evidence  on  the
question of guilt should,  on  being  found  guilty,  be  asked  if  he  has
anything to say or any evidence to tender on the question of sentence.  This
is all the more necessary since the courts are generally  required  to  make
the choice from a wide range of discretion in the matter of  sentencing.  To
assist the court in determining the  correct  sentence  to  be  imposed  the
legislature introduced sub-section (2) to Section 235.  The  said  provision
therefore satisfies a  dual  purpose;  it  satisfies  the  rule  of  natural
justice by according to the accused an opportunity of  being  heard  on  the
question of sentence and at the same time helps  the  court  to  choose  the
sentence to be awarded. Since the provision is intended to give the  accused
an opportunity to place before the court all the relevant material having  a
bearing on the  question  of  sentence  there  can  be  no  doubt  that  the
provision  is  salutary  and  must  be  strictly  followed.  It  is  clearly
mandatory and should not be treated  as  a  mere  formality.  Mr  Garg  was,
therefore, justified in making a grievance that  the  trial  court  actually
treated it as a mere formality as is evident from the fact that it  recorded
the finding of guilt [pic]on 31-3-1987, on the same day before  the  accused
could absorb and overcome the shock of conviction they were  asked  if  they
had anything to say on the question of sentence and  immediately  thereafter
the decision imposing the death penalty on the two accused  was  pronounced.
In a case of life or death as stated earlier,  the  presiding  officer  must
show a high decree of concern for the statutory right  of  the  accused  and
should not treat it as a mere formality to  be  crossed  before  making  the
choice of sentence. If the choice is made, as in this case,  without  giving
the accused an effective and real  opportunity  to  place  his  antecedents,
social and economic background, mitigating  and  extenuating  circumstances,
etc., before the court, the  court’s  decision  on  the  sentence  would  be
vulnerable. We need hardly mention that in many cases a sentencing  decision
has far more serious consequences on the offender  and  his  family  members
than  in  the  case  of  a  purely  administrative  decision;  a   fortiori,
therefore, the principle of fair play must apply with greater vigour in  the
case of the former than the latter. An administrative decision having  civil
consequences, if taken without giving a hearing is generally struck down  as
violative of the rule of natural justice.  Likewise  a  sentencing  decision
taken without following the requirements of sub-section (2) of  Section  235
of the Code in letter and spirit would also meet  a  similar  fate  and  may
have to be replaced by an  appropriate  order.  The  sentencing  court  must
approach the question seriously and must  endeavour  to  see  that  all  the
relevant facts and circumstances bearing on the  question  of  sentence  are
brought on record. Only after giving due weight to the  mitigating  as  well
as the aggravating circumstances placed before it,  it  must  pronounce  the
sentence. We  think  as  a  general  rule  the  trial  courts  should  after
recording the conviction adjourn the matter to a future date and  call  upon
both the prosecution as well as the defence to place the  relevant  material
bearing on the question of sentence before it and thereafter  pronounce  the
sentence to be imposed on the offender. In the present case, as pointed  out
earlier, we  are  afraid  that  the  learned  trial  Judge  did  not  attach
sufficient importance to the mandatory requirement  of  sub-section  (2)  of
Section 235 of the Code. The High Court also had before it only  the  scanty
material placed before the learned Sessions  Judge  when  it  confirmed  the
death penalty.”

12.   Thus, we find the accused respondents guilty under Section 20 of  NDPS
Act for possession of 11 Kgs. Ganja. The commercial quantity of Ganja is  20
Kgs. or more, and the accused are in possession of  small  quantity  as  per
the Notification of the Central Government providing  small  and  commercial
quantities of various contrabands. In view of this, we convict  the  accused
persons (Asha Devi and her husband Om Prakash) under Section 20 of the  NDPS
Act and sentence them to simple imprisonment for five years.

13.   Before sentencing, following the  principle  laid  down  in  Allauddin
Mian  (supra),  this  matter  was  adjourned,  giving  a   chance   to   the
respondents/accused to place  facts  before  us  and  further  directed  the
appellant to find out about  the  conduct  of  the  respondents  after  this
incident and to inform this Court.   On  the  adjourned  date,  the  learned
counsel for the appellant and learned counsel  for  the  respondents/accused
expressed that the respondents thereafter were not found  to  be  implicated
in any other matter. After hearing the learned counsel for the  parties  and
after giving due weight  to  the  mitigating  as  well  as  the  aggravating
circumstances placed before us, we think that it would be proper for  us  to
convict the accused persons with the sentence  passed  by  us,  which  would
serve the purpose.

14.   Accordingly, we set aside the judgment and order passed  by  the  High
Court as also by the Trial Court and  direct  that  the  accused/respondents
shall be taken into custody forthwith to undergo the  sentence.  The  appeal
is accordingly allowed.

(Pinaki Chandra  Ghose)

(Uday Umesh Lalit)
New Delhi;
May 12, 2015.
ITEM NO.1B               COURT NO.11               SECTION IIB
(For judgment)
               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

                     Criminal Appeal  No(s).  1953/2009

STATE OF HARYANA                                   Appellant(s)


ASHA DEVI & ANR.                                   Respondent(s)

Date : 12/05/2015      This appeal was called on for pronouncement of
            judgment today.

For Appellant(s) Mr. Rakesh K. Mudgal, AAG
                       Mr. Dinesh Mudgal, Adv.
                       For Mr. Sanjay Kumar Visen, AOR

For Respondent(s)      Mr. Ravi Kumar Tomar, AOR

      Hon'ble Mr. Justice Pinaki Chandra  Ghose  pronounced  the  reportable
judgment of the Bench comprising His Lordship and Hon'ble Mr.  Justice  Uday
Umesh Lalit.
      The appeal is allowed in terms of the signed  reportable  judgment  as
      “Accordingly, we set aside the judgment and order passed by  the  High
Court as also by the Trial Court and direct that the     accused/respondents
shall be    taken into custody    forthwith to    undergo the sentence.  The
appeal is accordingly allowed.”

      (R.NATARAJAN)                                 (SNEH LATA SHARMA)
       Court Master                                    Court Master
            (Signed reportable judgment is placed on the file)

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