advocatemmmohan

My photo

ADVOCATEMMMOHAN -  Practicing both IN CIVIL, CRIMINAL AND FAMILY LAWS,Etc.,

WELCOME TO LEGAL WORLD

WELCOME TO MY LEGAL WORLD - FOR KNOWLEDGE IN LAW & FOR LEGAL OPINIONS - SHARE THIS

Wednesday, November 30, 2016

the recovery of the contraband i.e. Poppy Husk from the conscious possession of the accused persons. That the samples were properly sampled, sealed and forwarded to the Forensic Science Laboratory through Malkhana also stands established. The certificate of the Chemical Examiner, FSL to the effect that the seal of the samples was found intact and that the same tallied with the specimen seals also rules out the possibility of any tampering therewith. The fact that the contraband was recovered from the car while the same was being driven by one of the accused persons in the company of the other also authenticate the charge of their conscious possession thereof. The haul of six bags of Poppy Husk is substantial so much so that it negates even the remote possibility of the same being planted by the police. Furthermore no evidence with regard to bias or malice against the Investigating Agency has been adduced. (19) In the wake of the above, we are of the unhesitant opinion in the face of the evidence on record, that the prosecution has been able to prove the charge against the accused persons beyond all reasonable doubt. The Courts below have appreciated the materials on record in the correct legal and factual perspectives and the findings recorded do not merit any interference. The appeal is thus dismissed.


                                                                  REPORTABLE

                             IN THE SUPREME COURT OF INDIA
                            CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO.  1096 OF 2016
              (ARISING OUT OF S.L.P (CRIMINAL) NO.6093 OF 2015)


DILBAGH SINGH                               .…APPELLANT


                                   VERSUS

STATE OF PUNJAB                                    ....RESPONDENT

                               J U D G M E N T


AMITAVA ROY, J.

(1)   Heard Ms. Aparna Jha, learned counsel for the  appellant  and  Mr.  V.
Madhukar, learned counsel for the respondent.

(2)   The appellant, faced with  concurrent  determinations  culminating  in
his conviction along with another, under Section 15 of  the  Narcotic  Drugs
and Psychotropic Substances Act, 1985 (for short “the Act”) is  before  this
Court seeking redress.  Whereas the Trial Court, upon the  entering  finding
of guilt had sentenced the accused persons with  rigorous  imprisonment  for
10 years and six months  each  and  fine  of  Rs.1  lac  each  with  default
sentence of rigorous imprisonment for one year, the  High  Court  in  appeal
has confirmed the verdict in toto by the decision impugned herein.

(3)   The prosecution case unfolds with the interception  of  the  appellant
and the co-accused Ranjit Singh by the  patrol  party  on  28.08.2007  while
they were travelling in a car bearing registration  No.MH-04BS-1651  at  the
check point at Khanauri Patran. One Baaj Singh, apart from the police  party
was then present. The appellant and his companion,  on  being  interrogated,
disclosed their names. Their car on search revealed six  bags  stuffed  with
Poppy Husk.

(4)   The Investigation Officer, A.S.I. Satnam Singh introduced himself  and
apprised the appellant and the co-accused of their right to be  searched  in
the presence of a Gazetted Officer or a Magistrate if they  so  desired  but
they declined and instead reposed confidence in him. After  recording  their
consent in writing the car was searched in presence of the other members  of
the patrol party as well as Baaj Singh and  in  course  thereof  three  bags
each  from  the  rear  seat  and  the  dicky,  containing  Poppy  Husk  were
recovered. Samples were taken and sealed with  specimen  impression  of  the
Investigating Officer.  On  weighment  of  the  remaining  Poppy  Husk,  the
contraband weighed 34 kg. 800 gms in  each  bag  minus  the  samples  taken.
Personal search of the appellant and  the  co-accused  yielded  currency  of
Rs.225/- and Rs.150/- respectively which were also seized.  The  information
of the exercise was forwarded to the police station on which  a  formal  FIR
was lodged.

(5)   The sealed  samples  as  well  as  the  contraband  as  a  whole  were
deposited in the malkhana  and  were  also  produced  before  the  concerned
Magistrate on the next date along with the accused persons.  The  sample  on
chemical examination by the Forensic Science Laboratory disclosed  the  same
to be of Poppy Husk. Eventually, on completion of the investigation  challan
was submitted and the appellant and the co-accused were made to  face  trial
under Sections 15 and 25 of the Act, as they pleaded “not guilty”.

(6)   In support of the  charge,  the  prosecution  examined  PW-1/Constable
Ravinder Singh, PW-2/S.I. Jaswinder Singh, PW-3/M.H.C. Shamsher  Singh,  PW-
4/A.S.I. Satnam Singh, PW-5/H.C. Darbara Singh and PW-6 Parminderpal  Singh,
who had participated in the entire drill.

(7)   All the incriminating  circumstances  were  laid  before  the  accused
persons in course of their examination under Section 313  Cr.P.C.  and  they
denied the correctness thereof and complained of false implication.

(8)   The Trial Court on a consideration  of  the  evidence  on  record  and
after analysing the rival contentions held  the  charge  to  be  proved  and
convicted and sentenced both the accused persons  as  above.  The  appellant
unsuccessfully challenged  the  conviction  and  sentence  before  the  High
Court.

(9)   The learned counsel  for  the  appellant  has  asserted  that  as  the
Investigating  Agency  had  contravened  the  mandatory   prescriptions   of
Sections 50 and 57 of the Act, the conviction recorded by the  Courts  below
is patently illegal and non est in law. According to her,  though  allegedly
Poppy Husk was recovered from the car in which the  appellant  and  the  co-
accused were travelling at the relevant point  of  time,  adherence  to  the
mandate of Section 50 of the Act was indispensable. Similarly, as no  report
of the operation  undertaken  by  the  Investigating  Agency  involving  the
alleged seizure of the contraband had been reported to the superior  officer
concerned, the exercise was in gross defiance of the edict of Section 57  of
the Act rendering the same null  and  void.  The  learned  counsel  for  the
appellant, to reinforce  the  above  pleas  has  pressed  into  service  the
decision of this Court in Mohinder Kumar vs. State, Panaji, Goa –  (1998)  8
SCC 655. No other argument has been advanced.

(10)  As against this, the learned counsel for the respondent  has  insisted
that the investigation had been conducted in meticulous  compliance  of  the
dicta of the law qua Sections 50 and 57 of the Act in particular.  Not  only
the accused persons were duly apprised of their right of search in  presence
of a Gazetted Officer or a Magistrate before the search of their  car,  they
were afforded all opportunities  to  offer  their  defence  in  the  process
undertaken. According to the learned counsel,  the fact of the  interception
of the  accused  persons  and  the  recovery  of  the  contraband  had  been
communicated to the concerned police station and  to  the  Ilaka  Magistrate
through the higher officer i.e., Deputy  Superintendent  of  Police  without
any delay whatsoever.  The sample with the stock of Poppy Husk was  properly
sealed and deposited with the malkhana  immediately  as  per  the  procedure
prescribed as well, he urged. The learned  counsel  further  submitted  that
though in a way, compliance of Section 50 of the Act was inessential in  the
facts  of  the  case,  as  the  vehicle  was  searched  which  yielded   the
contraband, the Investigating Officer by way of abundant caution did  adhere
thereto as well. As the information with regard to the entire gamut  of  the
investigation  had  been  forwarded  to  the  higher  officer  i.e.   Deputy
Superintendent of Police and to the concerned Magistrate without any  delay,
the demur based on Sections 50 and 57 of the Act  is  wholly  misplaced,  he
urged.

(11)  The evidence on record as well as the rival assertions have been  duly
evaluated.

(12)  As the essence  of  the  impeachment  is  the  non-compliance  of  the
enjoinment of Sections 50 and 57 of the  Act,  for  ready  reference,  these
provisions are extracted herein below:

“50. Conditions under which search of persons shall be conducted - (1)  When
any officer duly authorised under Section 42 is about to search  any  person
under the provisions of Section 41, Section 42 or Section 43, he  shall,  if
such person so requires, take such person without unnecessary delay  to  the
nearest Gazetted Officer of any of the departments mentioned in  Section  42
or to the nearest Magistrate.





(2) If such requisition is made, the officer may detain the person until  he
can bring him before the Gazetted Officer or the Magistrate referred  to  in
sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any  such  person  is
brought shall, if  he  sees  no  reasonable  ground  for  search,  forthwith
discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason  to  believe
that it is not possible to take the person to be  searched  to  the  nearest
Gazetted Officer or Magistrate without the possibility of the person  to  be
searched parting with  possession  of  any  narcotic  drug  or  psychotropic
substance, or controlled substance or article or document, he  may,  instead
of taking such  person  to  the  nearest  Gazetted  Officer  or  Magistrate,
proceed to search the person as provided under section 100 of  the  Code  of
Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section  (5),  the  officer  shall
record the reasons for  such  belief  which  necessitated  such  search  and
within seventy-two hours send a  copy  thereof  to  his  immediate  official
superior.



57.   Report of arrest and seizure - Whenever any person  makes  any  arrest
or seizure under this Act, he shall, within  forty-eight  hours  next  after
such  arrest or seizure, make a full report of



all the particulars of such arrest or  seizure  to  his  immediate  official
superior.




(13)  Whereas the conditions under which,  the  search  as  contemplated  in
Section 50 are limited only to the contingency  of  search  of  any  person,
Section 57 prescribes that whenever any person makes any arrest  or  seizure
under the Act, he would within 48 hours next after such arrest  or  seizure,
make a full report of all the particulars of such arrest or seizure  to  his
immediate official superior. As  it  is  no  longer  res  integra  that  the
application of Section 50 of the Act is comprehended and called for only  in
the case of search of a person as distinguished from search of any  premises
etc. having been authoritatively propounded by the  two  Constitution  Bench
rulings of this Court in State of Punjab vs. Baldev Singh  –  (1999)  6  SCC
172 and Vijaysinh Chandubha Jadeja vs. State of Gujarat – (2011) 1 SCC  609,
further dilation in this regard, in the attendant  facts  and  circumstances
of the case, is considered inessential. This is more so  as  the  contraband
in the case in hand had been recovered from inside  the  car  in  which  the
petitioner and the co-accused were travelling at the relevant point of  time
and not in course of the search of their person.  Noticeably,  it  had  also
not been the plea of the defence ever that the alleged seizure according  to
the accused persons had been from their  person.  In  the  contextual  facts
therefore, Section 50 has  no  application  to  espouse  the  cause  of  the
defence.

(14)  Qua the imputation of non-adherence of the requisites  of  Section  57
of the Act, suffice it to note that both the Courts below, on an  analytical
appreciation of the evidence on record have concurrently concluded that  the
Investigating Officer at the site, had  after  the  arrest  of  the  accused
persons and or seizure of the  contraband  forwarded  the  information  with
regard thereto to his  higher  officer,  namely,  Deputy  Superintendent  of
Police without any delay  and  that  the  related  FIR  with  the  necessary
endorsements therein had reached the Ilaka Magistrate on the same date  i.e.
28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by  the
learned counsel for the petitioner to either  contradict  or  decimate  this
finding based on records. In this view of the matter as well, the  assertion
of non-compliance of Section 57 of the Act does not commend for  acceptance.
In our view, having regard to  the  facts  available,  the  requirements  of
Section 57 of the Act had been duly complied with as well.

(15)  The decision in Mohinder Kumar (supra) not only is distinguishable  on
facts,  as  the  search  therein  was  of  the  petitioner's  premises,  the
investigation was afflicted as well by several other omissions on  the  part
of the authority conducting the same.  Though  in  this  rendering,  it  was
observed that  in State of Punjab vs. Balbir Singh – (1994) 3 SCC 299    the
provisions of Sections 52 and 57 of the Act had  been held to  be  mandatory
in character, it is pertinent to note that this Court in Sajan  Abraham  vs.
State of Kerala – (2001) 6 SCC 692 had exposited that  Section  57  was  not
mandatory in nature so much so that if a substantial compliance  thereof  is
made, it would not vitiate the case of  the  prosecution.  Incidentally  the
decision rendered in Balbir Singh (supra) was rendered by  a  Coram  of  two
Hon’ble Judges whereas the one in Sajan  Abraham  (supra)  was  by  a  three
Judge Bench.

(16)  In Balbir Singh (supra), a Bench of two Hon'ble Judges of  this  Court
had enunciated, adverting to Sections 52  and  57  of  the  Act  that  these
provisions  contain certain procedural instructions  for  strict  compliance
by the officers, but clarified that if there  was  none,  such  omission  by
itself would not render the acts done by them  null  and  void  and  at  the
most, it may affect the probative value  of the  evidence  regarding  arrest
or search and in some cases, it may invalidate such arrest or  search.  That
the non-compliance had caused prejudice  to  the  accused  persons  and  had
resulted in failure of  justice   was  necessary  to  be  demonstrated,  was
emphasised.  It was ruled that these provisions, which deal with  the  steps
to be taken by the officers after making arrest or seizure under Section  41
and 44 are by themselves not mandatory and if there  was  non-compliance  or
any delay was involved with regard thereto, then it has to be  examined,  to
ascertain  as to whether  any prejudice had been caused to the  accused  and
further whether, such failure would have  a bearing on the  appreciation  of
evidence regarding  arrest or seizure as well as on the merits of the  case.


(17)  Be that as it may, having regard to the evidence  available  attesting
the compliance of the requisites of Section 57 of the  Act  in  the  instant
case, we need not be detained by this issue in praesenti.

(18)  Aside the above, an appraisal of  the  testimony  of  the  prosecution
witnesses and in particular of PW-4 ASI/Satnam  Singh  and  PW-5  HC/Darbara
Singh, the  seizure  witnesses,  fully  substantiate  the  recovery  of  the
contraband i.e. Poppy Husk from the  conscious  possession  of  the  accused
persons.  That the samples were properly sampled, sealed  and  forwarded  to
the Forensic Science Laboratory through Malkhana  also  stands  established.
The certificate of the Chemical Examiner, FSL to the effect  that  the  seal
of the samples was found intact and that the same tallied with the  specimen
seals also rules out the possibility of any tampering  therewith.  The  fact
that the contraband was recovered from the car  while  the  same  was  being
driven by one of the accused persons  in  the  company  of  the  other  also
authenticate the charge of their conscious possession thereof.  The haul  of
six bags of Poppy Husk is substantial so much so that it  negates  even  the
remote possibility of the same being planted by the police.  Furthermore  no
evidence with regard to bias or malice against the Investigating Agency  has
been adduced.

(19)  In the wake of the above, we are of  the  unhesitant  opinion  in  the
face of the evidence on record, that the prosecution has been able to  prove
the charge against the accused persons  beyond  all  reasonable  doubt.  The
Courts below have appreciated the materials on record in the  correct  legal
and factual  perspectives  and  the  findings  recorded  do  not  merit  any
interference. The appeal is  thus  dismissed.  The  Trial  Court  is  hereby
directed to take immediate follow up the steps so  as  to  ensure  that  the
sentence awarded is served out by the accused persons.



.............................................J.
                            (DIPAK MISRA)



 ............................................J.
                            (AMITAVA ROY)
NEW DELHI;
NOVEMBER  28, 2016.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.