The aforesaid both appeals have been preferred by the appellants - Mina Magar (Pun) and Indra Bahadur Pun against the judgment and order of conviction and sentence dated 30.5.2017 passed by Additional Sessions Judge/F.T.C.-I, Siddharth Nagar, in Special Criminal Case No.10 of 2013 (State Vs. Indra Bahadur Pun), arising out of Case Crime No.229 of 2013 and Special Criminal Case No.11 of 2013 [State Vs. Mina Magar (Pun) ] under Section 20(B)(ii)(c) of N.D.P.S. Act, Police Station-Dhebrua, District Siddharthnagar, whereby appellants-Indra Bahadur Pun and Mina Magar (Pun) were sentenced to ten years' rigorous imprisonment coupled with fine rupees one lakh each with default stipulation to suffer additional two years imprisonment.
Since both the appeals arise out of one and the same judgment, therefore, the same are being decided by a common judgment.
Heard Sri Mansoor Ahmad, learned amicus curiae for the appellant Mina Magar (Pun), Smt. Rashmi Srivastava, learned amicus curiae for the appellant Indra Bahadur Pun, Sri Om Narain Tripathi assisted by Subhash Chandra-learned A.G.A.s' for the State and perused the record.
Factual position of this case is that on 13.02.2013 at about 12:10 p.m. at Gate No.2 adjoining to the Indo-Nepal border within Police Station Dhebrua, District Siddharthnagar, after a tip off the information through an informer that one man and a lady are expected to arrive from Nepal side to India possessing illicit contraband Charas, S.I. Sanjay Singh, Incharge Police outpost Badhni, Police Station Dhebrua, District Siddharthnagar along with his companion Neeraj Kumar Pandey and Chandrakesh Rai were standing on tri-crossing of Malkhana, at that point of time, when S.I. Sanjay Singh along with police personnel proceeded to the spot near Indo-Nepal border at Gate No.2 then met with the patrolling party headed S.I. Triloki Nath and Constable Rajendra Singh, Constable Darshan Singh Negi, Constable Manoj Kumar, Constable Omveer Singh, Constable Durgesh Kumar, Constable Baljeet Digiya and two lady Constables Reeta Rani and Anupma Yadav. They were apprised of tip off information, therefore, all formed one group and proceeded towards Gate No.2 and started checking persons and their goods. After sometime, one man and a lady coming on their feet were sighted at Gate No.2, who were proceeding towards Badhni bus stand. They were apprehended by the police party after the informer pointed towards them and separated himself from the police party.
On being asked, they spelt their name as Indra Bahadur Pun and Mina Magar (Pun), both residents of Police Station and District Dang, State of Nepal. Both the apprehended man and lady told that they are possessing Charas. They were asked by the police party whether they would like to be searched before a Magistrate or a Gazette Officer whereupon they declined the offer and reposed faith in the police party and agreed to be searched by them.
Consequent thereupon, the consenting letter was prepared on the spot and the search of the appellant Indra Bahadur Pun was made by male police personnel, whereas, the search of Mina Magar (Pun) was done by Constable Anupma Yadav. The search was carried out after the police personnel inter-se made search of each other and nothing objectionable found from their possession. 14 polythene packets were recovered from possession of the appellant Indra Bahadur Pun and 12 polythene packets were recovered from possession of the appellant Mina Magar (Pun). They were asked to show the authority for keeping contraband Charas with them whereupon they could not show any authority to keep the same. They begged pardon whereupon they were taken into custody after informing about their act to be violative of the provisions of N.D.P.S. Act. The substance 5 gram from each packets recovered from both the appellants was separately taken out and kept separately and rest of the recovered substance from both the appellants was sealed on the spot. The electronic weighing equipment was arranged and the entire substance was weighed whereupon the contraband recovered from possession of the appellant Indra Bahadur Pun weighed 5.320 kg., whereas, the contraband recovered from possession of the appellant Mina Magar (Pun) weighed 6.90kg. A memo was prepared on the spot and the same was readover to the appellants and the police personnel. The public was also present on the spot but no one was interested in becoming witness to fact of arrest and recovery, therefore, memo was signed by the police personnel and the both the appellants and a copy of the same was given separately to each of the appellant and the appellants were taken along with the recovered substance to the Police Station Dhebrua where the first information report was lodged by Sanjay Singh, the informant on 13.02.2013 at 12:10 p.m. at Case Crime Nos.229 and 230 of 2013 under Sections 8/20 N.D.P.S. Act, Police Station Dhebrua, District Siddharthnagar.
The relevant entries were made in the concerned general diary and the case was registered against the appellants. The case was investigated into by the Investigating Officer wherein the statement of the prosecution witnesses were recorded by the Investigating Officer. The samples collected on the spot and kept in the Malkhana were sent for examination to the Forensic Science Laboratory. The site plan of the place of arrest and recovery was also prepared during investigation, which is Ext. Ka-6. The Investigating Officer after completing the investigation filed charge sheet separately against the appellants under Sections 8/20 N.D.P.S. Act, Police Station Dhebrua, District Siddharthnagar.
Consequently thereupon, both the appellants were heard on the point of charge which was made under Section 20(b)(ii)(C) N.D.P.S. Act. Charges were denied by the appellants and they opted for trial.
The prosecution in all examined as many as seven witnesses; namely Chandrakesh Rai PW-1 is witness of fact. Dayaram Yadav PW-2 made relevant entries in the concerned Check FIR and general diary and has proved the same as Ext. Ka-4 and Ext. Ka-5, respectively. Triloki Nath PW-3 is also witness of fact of arrest and recovery. Sanjay Singh PW-4 is the informant. Ramashish Singh Yadav PW-5 is the Investigating Officer, he has conducted the investigation and filed charge sheet against the appellants. Indrabhol Yadav PW-6 has taken sample to the Forensic Science Laboratory after obtaining the order from the Sessions Judge, Siddharthnagar. Vavanjeet Gautam PW-7 has proved Malkhana register and safe keeping of the samples noted in the Malkhana register and has also proved relevant entry Ext. Ka-11.
Thereafter, evidence for the prosecution was closed and statement of the accused was recorded u/s 313 Cr.P.C., wherein, nothing specific was stated except fact that they have been falsely implicated in this case and claimed innocence.
No evidence, whatsoever, was led in defence.
The learned Additional Sessions Judge/FTC-I, Siddharthnagar, after appraisal of facts and merit of the case and the evidence on record, returned aforesaid finding of conviction under Sections 20 (b)(ii)(C) N.D.P.S. Act and sentenced the appellants to undergo ten years rigorous imprisonment coupled with fine Rs.1,00,000/- each, in default of payment of aforesaid fine, they will have to undergo additional two years rigorous imprisonment which paved way to this appeal.
It has been urged by learned amicus curiae for the appellants that in this case, bare perusal of recovery and arresting memo and testimony on record would lead to draw convenient inference that the mandatory provisions of Section-50 the N.D.P.S. Act have not been complied with in letter and spirit thus giving vent to certain inherent and apparent shortcomings eventually rendering the conviction and the sentence imposed upon the appellants erroneous and illegal, as non-compliance of Section-50 would vitiate the entire trial. The contention proceeded and the Court was impressed upon fact that the language contained in the arresting memo-Exhibit Ka-3 appears to be threatening one, as such there is absolutely denial of fair search being carried out in the presence of a Magistrate or a Gazetted Officer, thus the entire search is in violation of provisions contained under Section-50 of the N.D.P.S. Act.
Further added that the investigation of the case is faulty and helpful to the police personnel involved in the alleged recovery. It is apparent on record and particularly, in the evidence of the prosecution witnesses that the fact of arrest and seizure was not informed to the higher authorities and no such mention is contained in the recovery memo. Further claimed that the sentence imposed upon the appellant is disproportionate and too harsh. The entire quantity of contraband recovered was mixed with other introductory substance, which cannot be treated to be actual contraband. That way to rate the quantity of recovered contraband to be commercial quantity of 'Charas' is absolutely arbitrary inference, not supported by the chemical examination done by the Forensic Science Laboratory, Lucknow.
Further claimed that the sentence imposed should be proportionate to the quantity of actual contraband recovered from the possession of the appellants and it should not be awarded for the whole substance which is mixed with other extraneous substance. There is nothing on record to certify about the actual quantity of contraband allegedly recovered from each of the appellants.
In support of their claim, both the learned amicus curiae have relied upon on the decision in the case of Mohinder Singh Vs. State of Punjab 2017 Law Suit (SC) 589, Vijaysingh Chandubha Jadeja Vs. State of Gujarat 2010 LawSuit (SC) 768 and E Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau 2008 LawSuit (SC) 243.
Sri Om Narain Tripathi, learned A.G.A. submitted in reply to aforesaid contention that there is absolute compliance of the mandatory provisions contained under Section-50 of N.D.P.S. Act. The recovery memo itself indicates that the accused at the time when they were apprehended, were informed by the police party of their right to be searched before a Magistrate or a Gazetted Officer and the consenting letters were also prepared on the spot and the police party consisted of one S.S.B. Team involved in the process of arrest and search. The quantity of contraband recovered from both the appellants, if measured from any angle or corner would exceed the quantity prescribed as commercial quantity of 'Charas'. From the sample collected, 57.5 grams of substance was describe as 'charas'. Similarly, 69 grams substance was described 'charas' and this was the entire quantity of the two samples collected on the spot from the recovered contraband. Therefore, the conviction and the sentence awarded cannot be said to be harsh or disproportionate under facts and circumstances of the case. All the relevant facts as were required to be proved have been duly proved by the prosecution witnesses.
Also considered the rival submissions in the light of the submission so raised and the claim made by way of aforesaid appeals.
The relevant point that arises for adjudication of both the above noted appeals relate to fact whether the prosecution has been able to prove its charge beyond reasonable doubt against both the appellants?
Bare perusal of the recovery memo-Exhibit Ka-3- which is the very foundation of this case-is reflective of fact as to how the things shaped and developed in the commission of the offence under the provisions of the N.D.P.S. Act. The incident of recovery of contraband 'Charas' allegedly took place on 13.2.2013 when S.I. Sanjay Singh, Incharge Police Outpost Badhni, along with Cobra Mobile Team comprising Constable Neeraj Kumar Pandey, Constable Chandrakesh Rai received a tip-off information on the tricrossing of 'maalgodam' through an informer that one man and one woman, who belonged to Nepal are coming over to India possessing contraband 'Charas'. If no time is wasted, they can be caught. Acting on this information, S.I. Sanjay Singh along with two constables proceeded to the spot and on way met with S.S.B. patrolling party headed by S.I. Triloki Nath along with Constable Rajendra Singh, Constable Darshan Singh Negi, Constable Manoj Kumar, Constable Om Veer Singh, Constable Durgesh Kumar, Constable Baljeet Digiya and lady constables Reeta Rani and Anupma Yadav.
All the aforesaid police personnel forming a police party arrived at Gate No.2 and started checking the persons coming from Nepal side. After a short-while, one man and one woman were sighted coming on their feet from Nepal side through Gate No.2 and were proceeding towards Bus Stand Badhni, when the informer pointed out towards them as the persons possessing contraband 'Charas'. The aforesaid police team apprehended both the appellants-who tried to escape from the scene. On enquiry being made, they spelt their name as Indra Bahadur Pun s/o Ramlal Pun Magar, resident of Damar Gaon Govisa, Ward No.7, Police Station and District-Dang, Nepal. The lady who was apprehended by the aforesaid lady constables spelt her name Mina Magar (Pun) daughter of Rash Bahadur Magar, resident of Damar Gaon Kursi Kali, Ward No.10, Police Station and District-Dang, Nepal. Both the persons were asked for their search and they were offered option by the police party whether they would like to be searched before a Magistrate or a Gazetted Officer, whereupon, they reposed faith in the police party itself for being searched. Prior to it, they also told the police party that they are possessing 'Charas'. Thereafter, the police party interse carried out search of each other before carrying out the search and the consenting letters of both the appellants were also prepared on the spot. On search of the appellant Indra Bahadur Pun was found carrying 14 packets of contraband recovered from his waist and thigh and the lady constable Anupma Yadav carried out search of the appellant Mina Magar (Pun), whereupon, 12 packets of contraband 'charas' was recovered from her possession. All the recovered material was kept in polythene packets.
Both the appellants were asked about the authority to keep the same but they could not show any authority. Therefore, their act was found to be in violation of Section-8/20 of N.D.P.S. Act. Both the appellants were arrested at 12.10 p.m. and the recovered material was sealed on the spot and the appellants were taken into custody by the police party and sampling from all the 14 packets recovered from the possession of the appellant Indra Bahadur Pun was prepared on the spot, similarly the sample from 12 packets-recovered from possession of the appellant Mina Magar (Pun) - was also prepared on the spot. Electronic weighing equipment was arranged on the spot, all the recovered contraband substance was kept in separate packets and 2 packets of sample separately taken out from the recovered substance/charas were weighed and sealed on the spot. The recovery memo was prepared on the spot. The total weight found was 5.320 kgs and 6.90 kgs, respectively from each of the appellants. It was read over in presence of all the police personnel and the appellants and after obtaining thumb impression of both the appellants, a copy whereof was given to each of the appellants and the information regarding the same was given in accordance with the directions of Apex Court and The Human Rights Commission. A number of persons had gathered on the spot during the process of recovery, but no one was ready to stand witness to the fact of recovery.
On the basis of recovery memo, a case was lodged at Case Crime Nos.229 of 2013 and 230 of 2013, on 13.02.2013 at 2:55 p.m. against both the appellants Indra Bahadur Pun and Mina Magar (Pun), under Sections-8/20 N.D.P.S. Act and case was registered against the appellants by making relevant entry in the concerned General Diary of the above date and time.
In the backdrop of aforesaid accusation, the testimony has come forth by the prosecution witnesses particularly PW-1 - Chandrakesh Rai who has described the entire process as to how the information was given by the informer when he along with Constable Neeraj Kumar Pandey was present at the tricrossing of 'maalgodam' that a man and a woman from Nepal side are about to cross border of India. When all the three police personnel proceeded towards the spot, they met with S.S.B. Team comprising several persons headed by S.I. Triloki Nath.
He has categorically stated that after apprehending both the appellants, they were asked about their names whereupon they spelt their name on the spot and told that they are possessing 'charas'. His testimony goes on to add that they were offered option to be searched either before a Magistrate or a Gazetted Officer, whereupon they reposed faith in the police party itself for being searched, thereafter, search was duly carried out on the spot, after preparing the consenting letters Exhibit Ka-1 and Exhibit Ka-2, respectively.
Upon the search being made, 14 packets of contraband 'charas' was recovered from the possession of Indra Bahadur Pun and 12 packets of contraband were recovered from the possession of Mina Magar (Pun). Both the appellants could not show any authority to keep the contraband Charas. Approximately, 5 grams of substance/Charas was taken out from each packet recovered from both the appellants and sampling whereof was separately done. The recovered contraband 'Charas' was sealed on the spot in separate packets. It has been testified that though the public was present on the spot but no one was ready to become a witness to the fact of recovery. It has also been testified that the information of arrest and seizure was given to the higher authorities of the district through R.T. Set from the police station.
Similar is the testimony of other witness of fact. Triloki Nath, who headed the S.S.B. Team in company with S.I. Sanjay Singh and effected recovery of contraband substance on 13.2.2013, has been strenuously cross examined, wherein, he has stated consistently about the various factual aspects and quantity of the contraband recovered from the possession of the appellants. He has testified in his examination in chief that 14 packets of contraband 'Charas' was recovered from the possession of Indra Bahadur Pun, which on weighing totalled 5kg. 320gms. Similarly, contraband was recovered in 12 packets from the possession of accused Meena Magar (Pun), when weighed it aggregated to 6kg. 90gms. There is nothing in his testimony, particularly in cross-examination which may indicate of any improvement or deliberation.
In his cross-examination, PW-3 has elaborated that the search was carried out only after the consenting letters were prepared on the spot and interse search of each other by the police personnel had been done and ensured prior to the carrying out search of both the appellants.
Similar is the testimony of the informant Sanjay Singh PW-4. He has substantiated the testimony of PW-1 and PW-3 and no deviation substantial in nature is discernible. His testimony establishes factum of recovery and seizure of contraband 'charas' from the possession of both the accused on 13.2.2013 at 12:10 p.m. Insofar as contention pertaining to non compliance of provisions of Section-50 of the N.D.P.S. Act are concerned, it is very much gathered from perusal of the recovery memo-Exhibit Ka-3 that the mandatory provisions were very much gone into, which search was carried out in respect of both the accused. After the appellants were apprehended by the police party, they were given option whether they would like to be searched before a Magistrate or a Gazetted Officer. Thereafter, upon declining the said offer, the consenting letters were prepared by the police party very much on the spot as Exhibit Ka-1 and Exhibit Ka-2. Interse search was also made by the police party of itself prior to search and recovery and contraband was seized from the possession of the appellants.
In this view of the matter, the mandatory compliance of Section-50 has been substantially carried out. Even testimony of the prosecution witnesses, particularly PW-1 Chandrakesh Rai, PW-3 Triloki Nath and PW-4 Sanjay Singh, is overwhelming on the point that the mandatory compliance was done as required under Section-50 of N.D.P.S. Act and the information of arrest was given on R.T. Set the very same day to the higher police authorities. That way, contention raised by the appellants to the above extent that information to higher authorities was not given, does not carry any force.
In so far as, contention raised regarding the actual quantity of the contraband recovered from possession of the appellants is concerned, that way, thrust has been made on the decision of Hon'ble Apex Court in the case of E Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau 2008 LawSuit (SC) 243. In this case, it was held that whatever percentage of contraband/substance is found should be the actual consideration for the court while convicting the accused and awarding sentence on him.
That way, it is noticeable that the Forensic Science Laboratory Report dated 10.4.2013 Exhibit Ka-8 is indicative of fact that the quantity of 'charas' found in both the samples contained 57.5 grams and 69 grams of 'charas'. 5 grams of substance from each packet recovered from the appellants Indra Bahadur Pun and Mina Magar (Pun), respectively was collected and sampling was done by PW-4-the informant-Sanjay Singh. Obviously, both the samples contained 'charas' upto that magnitude (57.5 gms. and 69 gms.) which conforms to fact that the quantity of 'charas' recovered from each of the accused exceeded quantity 1 kg. The commercial quantity of 'charas' is fixed at 1 kilogram. Then the recovered quantity from both the appellants will obviously exceed 1 kilogram of 'charas' because 5.320 kilograms 'charas' was recovered from the possession of Indra Bahadur Pun, whereas, 6.90 kilograms of contraband 'charas' was recovered from the possession of Mina Magar (Pun).
Insofar as the contention concerning offer to be searched before a Magistrate or a Gazetted Officer is concerned specific contention has been raised that it was by way of threatening. But it is not borne out either by evidence or attendant circumstances of the case. Therefore, the argument does not come to the rescue of the appellants. There is nothing on record which may give indication that the offer of search being made was not a request but a threatening gesture on the part of the police party.
Further, the 'maalkhana' register was duly proved by Vavanjeet Gautam PW-7, who has proved the relevant 'maalkhana' register and its entry on Serial No.20 pertaining to Case Crime No. 229 of 2013 and Serial No.22 pertaining to Case Crime No.230 of 2013 and this page of the 'maalkhana' register has been proved as Exhibit Ka-11.
This aspect is further strengthened by the testimony of Indrabhol Yadav PW-6, who took these samples to the Forensic Science Laboratory, has proved safe conveyance and custody of the aforesaid samples at aforesaid serial numbers to the effect that the same were kept intact and handed over at Vidhi Vigyan Proyagshala, Lucknow at Lot Nos. 2007 and 2004 on 12.3.2013 and 13.3.2013, respectively. He has also proved fact that samples were taken after obtaining order from the concerned Session Judge. The cross examination of this witness and the other prosecution witnesses does not elicit anything abnormal or adverse, which may cast any doubt on their testimony. Testimony of all the prosecution witnesses is consistent and conforming to each other. Contradictions are trivial in nature.
Contention has been raised that both the appellants were carriers and they cannot be treated to be the persons directly involved in smuggling and sale of contraband substance, therefore, this aspect should be duly considered and sentence imposed on the appellants should be reduced in the proportion of their offence.
This contention does not extend protection cover of carrier to the accused because the Investigating Officer has merely expressed his opinion about some overhearing that the accused were carriers of the contraband substance, however, in the absence of some other person for whom or on whose instance the accused were carrying contraband 'Charas' has not been brought forth on record. Therefore, mere statement of the Investigating Officer PW-5 that, too, appears to be an isolated statement and cannot be acted upon in the absence of corroborative support from facts, circumstances and evidence to that extent on record.
Insofar the aforesaid citations relied upon by the learned amicus curiae for the appellants are concerned, the same are not applicable to the facts and circumstances of the present case and are of no help to the appellants.
Aforesaid citation concerning Vijaysingh Chandubha Jadeja Vs. State of Gujarat 2010 LawSuit (SC) 768 relates to compliance to mandate of provisions contained under Section 50 of the N.D.P.S. Act. Here in this case at hand it has been established that substantive compliance of Section 50 N.D.P.S. Act has been made.
In the case of E Micheal Raj vs. Intelligence Officer, Narcotic Control Bureau 2008 LawSuit (SC) 243 that rationale laid down relates to actual percentage of contraband recovered from the entire substance. This point is not involved in this case at hand, for the reason that almost entire recovered substance was found 'charas'.
The aforesaid citation concerning Mohinder Singh Vs. State of Punjab 2017 Law Suit (SC) 589 pertains to conviction order passed by the Hon'ble Apex Court after High Court of Punjab & Haryana acquitted the accused, who was found inside the truck owned by him. Facts are totally different in this case at hand and don't help the appellants.
After scrutinizing the entire evidence on record and after considering the submission raised by both the sides in the above two appeals, it can be conveniently observed that the learned Trial Judge has considered fairly every aspect of this case and has recorded just finding of conviction against the appellants and has sentenced them to 10 years rigorous imprisonment coupled with fine Rs.1 lakh and in default of payment of fine, the concerned convict would have to suffer additional two years imprisonment. Therefore, the sentence awarded to the extent of 10 years rigorous imprisonment is on the face justifiable. The order of conviction need no interference by this Court.
Consequently, the judgment and order of conviction and sentence dated 30.5.2017 passed by Additional Sessions Judge/F.T.C.-I, Siddharth Nagar, in Special Criminal Case No.10 of 2013 (State Vs. Indra Bahadur Pun), arising out of Case Crime No.229 of 2013 and Special Criminal Case No.11 of 2013 [State Vs. Mina Magar (Pun) ] under Section 20(B)(ii)(c) of N.D.P.S. Act, Police Station-Dhebrua, District Siddharthnagar is hereby affirmed.
Consequently, both the appeals lack merit and the same are dismissed.
The appellants are in jail. They shall serve out their remaining sentence imposed on them by the trial court.
Order date:- 18.09.2018 S Rawat