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Saturday, July 2, 2016

Minor Contradictions - not weights = the weights brought by the constable were of 5 kilogram, 2 kilogram, 1 kilogram, half kilogram, 200 gram and 100 gram. On the other hand (PW5) Dinesh Singh Rawat has stated that the weights of kilogram, 100 gram and 50 gram etc. were brought. In the opinion of this court such contradictions are minor in nature and on its basis the prosecution story can not be disbelieved.;a minor discrepancy in the time of arrest, can not be said to be material to doubt the prosecution story ; the recovery of contraband was made from the appellant in the public place under sec.43 of NDPS Act = We find from the record of the case that the recovery of contraband was made from the appellant in the public place. In this view of the matter, the case in hand fell under Section 43 of the NDPS Act. So far as compliance of Section 50 is concerned, the prosecution proved that PW-5-who was a gazzetted officer, was called and then in his presence the recovery of contraband was made from the appellant. In the light of these two material issues, which were proved by the prosecution by proper evidence, the two Courts below, in our opinion, rightly held that the prosecution was able to prove their case beyond the reasonable doubt against the appellant and hence the appellant had to suffer conviction as awarded by the Trial Court. We, therefore, concur with the finding of the two Courts which, in our view, does not call for any interference in this appeal.



                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 182 OF 2013



Jagat Singh                                  Appellant(s)



VERSUS



State of Uttarakhand                     Respondent(s)



                               J U D G M E N T



Abhay Manohar Sapre, J.

1)    This appeal is filed  against  the  final  judgment  and  order  dated
18.11.2011 of the High Court of Uttarakhand at  Nainital  in  Criminal  Jail
Appeal No. 4 of 2010 whereby the  High Court dismissed the appeal  filed  by
the appellant herein upholding the order dated 15.01.2010/19.01.2010  passed
by the Special Judge(N.D.P.S.Act)/Additional Sessions Judge/IVth Fast  Track
Court, Dehradun in Special Sessions Trial Case No.  30  of  2006  convicting
the  appellant  under  Section  8/20  of  Narcotic  Drugs  and  Psychotropic
Substances Act, 1985  (hereinafter  referred  to  as  “the  NDPS  Act”)  and
sentenced him to undergo rigorous imprisonment for a  period  of  ten  years
and a fine of Rs. 1 lakh, in default of payment of fine, to undergo  further
simple imprisonment of two years.

2)    Brief facts:

      On 28.05.2006, on receiving information that a person is  coming  with
contraband  item  from  Tyuni  to  Kalsi,  a  team  of  Special  Task  Force
consisting of Sub-Inspector Ved  Prakash  Thapliyal  (PW-1),  Sub  Inspector
Davender Singh (PW-2), Head Constable Bhawan Singh with  Constables,  Nagesh
Pal, Vijender Singh, Mahender  Singh  and  Harshvardhan  along  with  Driver
Dhanveer Patwal proceeded in a vehicle bearing No. UA07-L 1777.   When  they
reached near Chakbhool, they saw the appellant  coming  with  white  plastic
bag suspecting that he is carrying contraband intercepted him. On  receiving
the  information  from  the  police  party,  Dinesh  Chander  Rawat,  Deputy
Superintendant of Police(PW-5), a Gazetted  officer,  also  reached  at  the
spot.  After search  being  made,  it  was  found  that  the  appellant  was
carrying 9.300 kgs. of Cannabis(Charas).  After taking 100 gm. out of  that,
the contraband item was sealed in different pack and remaining more  than  9
kg. was sealed separately.  FIR was registered against the appellant at  the
Police Station, Kalsi on 28.05.2006 at 9 p.m. as Crime No. 22  of  2006  for
the  offence  punishable  under  Section  8/20  of  the  NDPS   Act.    PW-6
investigated the crime and after completion of investigation, submitted  the
charge sheet against the appellant.

3)    After examination from forensic laboratory,  the  item  was  found  as
contraband item Cannabis (Charas).  The Special Court  (N.D.P.S.Act),  after
hearing the parties on  05.10.2006,  framed  charge  of  offence  punishable
under Section 8/20 of N.D.P.S. Act.

4)    Prosecution examined the witnesses.  However, no evidence  in  defence
was adduced.

5)    The Trial Court, after hearing the parties,  by  judgment/order  dated
15.01.2010/19.01.2010 in Special Sessions Trial No. 30 of  2006,  found  the
appellant  guilty of  charge of offence punishable  under  Section  8/20  of
N.D.P.S. Act and sentenced him to undergo imprisonment for a  period  of  10
years and a fine of Rs. One lakh.

6)    Aggrieved by the said judgment  of  the  Trial  Court,  the  appellant
through Superintendent of District Jail,  Dehradun,  filed  an  appeal  from
jail being Criminal Jail Appeal No. 04 of 2010 before the High Court.

7)    The High Court, by impugned judgment dated 18.11.2011,  dismissed  the
appeal and affirmed the judgment/order passed by the Trial Court.

8)    Aggrieved by the said judgment, the appellant has  filed  this  appeal
by way of special leave before this Court.

9)    Heard Mr. Rajeev Maheshwaranand, learned counsel appearing  as  Amicus
Curiae for the appellant and Mr. Dinesh Kumar Garg, learned counsel for  the
respondent.

10)    Mr.  Rajeev  Maheshwaranand,  learned  counsel  for   the   appellant
(accused) while assailing the  legality  and  correctness  of  the  impugned
order argued only one point.  According to  him,  while  making  the  search
from the appellant with a view to find out as to whether the  appellant  was
carrying any contraband, the prosecution failed to ensure compliance of  the
mandatory requirements of Section 42 read with Section 50 of the  NDPS  Act.
It was his submission that no compliance much less compliance in letter  and
spirit of the requirement of these Sections was made as  explained  by  this
Court in several cases while effecting search from the  appellant  and  this
being a  fatal  infirmity  in  the  case  of  prosecution,  the  appellant's
conviction deserves to be set  aside  on  this  ground  alone.  It  is  this
submission, learned counsel for the appellant elaborated in his arguments.

11)   In reply, learned counsel for  the  respondent  while  supporting  the
view taken by the two Courts below  urged  that  no  case  is  made  out  to
interfere in the impugned order. It was his submission that both the  Courts
have rightly dealt with the issue on facts and  in  law  including  the  one
argued here and hence the impugned order,  which  has  rightly  resulted  in
appellant’s conviction, does not call for any interference.

12)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case we find no merit in the appeal.

13)   The High Court dealt with the issue in paragraphs 6 to 9 as under,

“(6)  ……….I have gone through the documentary and oral  evidence  on  record
and found that it has nowhere come on the record that at the time  when  the
accused was intercepted by police  there  were  public  men  witnessing  the
incident.  As such, there was no occasion on the part of  the  policemen  to
get the recovery memo signed from the witnesses of public.  Otherwise,  also
normally the public is reluctant to be witnessed in such kind of cases.

(7)   Attention of this Court is drawn to the contradictions  found  in  the
statements of prosecution witnesses.  Reference is made to the statement  of
PW1 Sub-Inspector Ved  Prakash  Thapliyal  and  PW-5  Dinesh  Chander  Singh
Rawat.  PW1 Sub-Inspector Ved Prakash Thapliyal has stated that the  weights
brought by the constable were of 5 kilogram, 2 kilogram,  1  kilogram,  half
kilogram, 200 gram and 100 gram. On the other hand (PW5) Dinesh Singh  Rawat
has stated that the weights of kilogram, 100 gram  and  50  gram  etc.  were
brought. In the opinion of this  court  such  contradictions  are  minor  in
nature and on its basis the prosecution story can not be disbelieved. It  is
pertinent to mention here  the  quantity  of  Cannabis  said  to  have  been
recovered from the accused is nine times more than  the  minimum  commercial
quantity, which could not be a planted one.  Another  contradiction  pointed
out by learned Amicus Curiae is that in the statement  of  PW1  Ved  Prakash
Thapliyal, 18.05 hours is said to be  the  time  of  arrest,  while  in  the
recovery memo it is mentioned as 18.45 hours.  The  statement  made  by  the
witness appears to have been made on 19.11.2007, and  the  incident  relates
to 28.05.2006, as such after a  period  of  more  than  one  year,  a  minor
discrepancy in the time of arrest, can not be said to be material  to  doubt
the prosecution story, it is pointed out that when the recovery is made  PW5
Deputy Superintendent of Police Dinesh Singh Rawat (a Gazetted Officer)  was
called, and this fact itself indicates that prosecution  story  can  not  be
doubted lightly particularly in view of all the fact that  the  quantity  of
Cannabis is 9.300 kilograms.

In  the  above  circumstances,  having  considered  submissions  of  learned
counsel for the parties, and after going through  the  lower  court  record,
this court does not find any illegality or wrong  appreciation  of  evidence
made by the trial court.

Therefore, the conviction and sentence recorded by the trial court  requires
no interference. Accordingly, the appeal is dismissed.”



14)   Perusal of the relevant portion from the impugned order  quoted  supra
would go to show that the appellant did not urge the point before  the  High
Court which he has urged here. Be that  as  it  may,  it  has  otherwise  no
substance.

15)   We find from the record of the case that the  recovery  of  contraband
was made from the appellant in  the  public  place.  In  this  view  of  the
matter, the case in hand fell under Section 43 of the NDPS Act.  So  far  as
compliance of Section 50 is concerned, the prosecution proved that  PW-5-who
was a gazzetted officer, was called and then in his  presence  the  recovery
of contraband was made from the appellant.

16)   We thus find that the compliance of Section 50 was made in letter  and
spirit as provided  therein  and,  therefore,  no  fault  can  be  found  in
ensuring its compliance.

17)   In the light of these two material issues, which were  proved  by  the
prosecution by proper evidence,  the  two  Courts  below,  in  our  opinion,
rightly held that the prosecution was able to prove their  case  beyond  the
reasonable doubt against the  appellant  and  hence  the  appellant  had  to
suffer conviction as awarded by the Trial Court. We, therefore, concur  with
the finding of the two Courts which, in our view,  does  not  call  for  any
interference in this appeal.

18)   Learned counsel then urged that since the concerned officials did  not
record the secret information, which  they  claimed  to  have  received  for
making  search  from  the  appellant  and  hence   non-recording   of   such
information is fatal to the case of prosecution.

19)   We find no merit in the submission because  the  information  received
was recorded as a fact in the record. In  this  view  of  the  matter,  this
submission is factually incorrect and hence rejected.

20)   Learned counsel then urged some points relating to  facts.   Similarly
some points were so  technical  that  they  do  not  need  any  mention  nor
elaboration. We were, therefore, not impressed by any of these  submissions.
These submissions are, therefore, rejected being devoid of any merit.

21)   In the light of foregoing discussion, we find no merit in the  appeal.
The appeal thus fails and is accordingly dismissed.




.……...................................J.                              [ABHAY
MANOHAR SAPRE]



                                     ………..................................J.
        [ASHOK BHUSHAN]

      New Delhi,
      June 29, 2016
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