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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