Judgement This criminal appeal under Section 374(2) of the Code of Criminal Procedure (In short 'Cr.P.C.') directed against the judgment and order dated 15.01.2009 passed by learned Additional Sessions Judge, Ambedkar Nagar in S.T. No.(NDPS) 13 of 2008 relating to Police Station Jahangirganj, District Ambedkar Nagar whereby the sole appellant has been convicted under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (In short 'NDPS Act') and sentenced to undergo rigorous imprisonment of four years and fine of Rs.10,000/- and in case of default of payment of fine, the appellant shall further undergo additional imprisonment for six months.
The brief facts for deciding this appeal are that the police party headed by Sri Rana Pratap Singh, the then Station Officer Police Station Jahangirganj, was on petrol duty along with Constable Ram Singhansan Singh, Vivekanand Mishra and Vishwa Nath Singh in the intervening night of 23/24.04.1998 to see his area and to arrest the suspected criminals. When the police party reached Annapur Petrol pump at about 00:25 AM, Constable Mohan Prasad and Constable Kedarnath Yadav met. The police party along with the aforesaid constables proceeded towards the outskirt of village Mirajpur where they got information through informer of police that one Khalifa Nepali resident of village Vashiya Ganga Sagar brought Ganja and going to sell it at village Dhol Bajwa. After believing the information given by the informer, the police party deployed near village Vashiya Ganga Sagar. In a short while, a person come with a bundle carrying on his head. When he come near to the police party. he was intercepted by the police . He tried to run away from the spot but police party surrounded him and arrested at about 1:45 AM on 24.04.1998. On interrogation, he disclosed his name as Nizamuddin @ Khalifa and when the police party asked about the bundle kept on his head, he informed that it is Nepali Ganja and he is going to Dhol Bajwa to sell it. The police party checked the bundle and found that in a gunny bag 15 kgs Ganja was kept in plastic bag. The police party asked license for possessing such quantity of Ganja. He failed to show any license. The accused was then informed the ground of his arrest and some part of recovered Ganja was taken as a sample and separately sealed. A recovery memo was prepared on the spot which was also signed by the accused. On the basis of this recovery memo (Exh. A-1), a first information report has been lodged at Case Crime No.59 of 1998, under Section 8/20 of NDPS Act against the appellant on 24.04.1998 at about 3:35 a.m. After registering the case in the general diary, the matter was investigated by S.I. Abdul Hasim. After obtaining the report of Forensic Science Laboratory, Lucknow affirming the contraband as Ganja, the police submitted charge-sheet before the learned Magistrate. The learned Magistrate took cognizance and framed charges. The appellant denied charges and claimed trial. The prosecution examined as many as six witnesses i.e. S.O, Rana Pratap Singh, (PW 1), Constable, Vivekanand (PW 2), Constable, Vishwa Nath Singh (P.W. 3), Constable Ram Singhasan Singh (P.W. 4), Constable clerk, Umesh Chandra Pandey (P.W.5) and Investigating Officer S.I. Abdul Hasim (P.W.6).
The accused was then examined under Section 313, Cr.P.C. He claimed his false implication and stated that false recovery has been made with the connivance of the persons of the village on account of village enmity . However, he did not adduce any evidence in defence.
The learned trial court after considering the arguments and evidence adduced by the parties found that the prosecution case is reliable and has been proved from the evidence adduced by the prosecution, convicted the appellant as above.
I have heard learned counsel for the appellant and Sri Izahar Husain, learned A.G.A. for the State and perused the record of appeal and also of the lower court.
Learned counsel for the appellant and learned A.G.A. for the State also filed their written submissions along with case laws.
Learned counsel for the appellant challenged the conviction of the appellant on three counts;
(i) that; there is willful non compliance of Section 50 of the NDPS Act and, therefore, the conviction recorded after violating the mandatory provisions of Section 50 of NDPS Act, the conviction cannot be allowed to sustain. In support of his contention, learned counsel for the appellant relied upon the judgment of the Apex Court in the cases of Dilip & another Vs. State of M.P.; (2007) 1 SCC 450 and Suresh and others Vs. State of Madhya Pradesh; (2013) 1 SCC 550.
(ii) that; no independent witness has been produced by the prosecution. Hence, the evidence of the police personnel cannot be relied upon though there was ample opportunity to the police personnel to take independent witness.
(iii) that; there are a major contradictions in the statement of the witnesses of the prosecution.
On the contrary, learned A.G.A. submitted that in this case Section 50 could not be attracted because it is not a case of personal search. In support of his contention, learned A.G.A. relied upon the following judgments:
(a) State of H.P. Vs. Pawan Kumar; (2005) 4 SCC 350,
(b) State of Haryana Vs. Suresh; (2007) 15 SCC 186,
(c) Narayanaswamy Ravishankar Vs. Assistant Director, Directorate of Revenue Intelligence; [2003 (1) JIC 74 (SC)].
Learned A.G.A. further submitted that the contradictions in the statements of the prosecution witnesses are not material or of substantial in nature. They are minor and the same does not affect the prosecution story as all the witnesses have fully supported the prosecution version. The incident took place in the mid night, therefore, no witness was available on the spot.
Compliance of Section 50 of NDPS Act As per the prosecution version, the alleged Ganja was recovered from a bundle having gunny bag on the head of the appellant at the time of arrest. He disclosed to the police personnel about the contents contained therein. The search was made by the police personnel of the gunny bag and not of the person of the appellant. It shows that the alleged contraband was not recovered from the personal search of the appellant. Therefore, it cannot be said that contraband was recovered on the personal search of the appellant. The Apex Court in paragraphs 11, 12, 13 and 14 of Pawn Kumar's case (Supra) observed as under:
"11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.
12. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the words "search of person". One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free.
13.The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab Vs. Baldev Singh' 1999 (6) SCC 172 and para 12 of the reports is being reproduced below :
"12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."
(1) That when an empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing.
(2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused.
(3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section50 of the Act.
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(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.""
14. The abovequoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying."
Similar view has also been propounded by the Apex Court not only in cases of State of Haryana Vs. Suresh (Supra) and Narayanaswamy Ravishankar (Supra) cited by learned A.G.A. but also in the case of Suresh and others Vs. State of Madhya Pradesh (Supra) cited by learned counsel for the appellant. It is no doubt true that when a contraband was recovered from the personal search of a person, the compliance of Section 50 of NDPS Act would be mandatory and non compliance thereof, not only vitiate the recovery but also the conviction. In this case, the situation is otherwise and, therefore, it cannot be said that Section 50 of NDPS Act attracts in this case.
It has been submitted by learned counsel for the appellant that P.W. 1 in his oral statement tried to prove the compliance of mandatory provisions of Section 50 of NDPS Act but the same has not been contained in the recovery memo. So, the statement of P.W. 1 that he informed the accused about his right for being search by Gazetted Officer or by Magistrate is not established.
If the recovery memo is silence about compliance of Section 50 and the statement of PW1 is taken to be true even then it makes no difference in this case as the contraband article is not recovered from the personal search of the appellant. In view of above, the appellant cannot get any advantage of Section 50 of NDPS Act.
Non production of Independent Witness It has been pointed out that the police party take services of a private vehicle to reach to the police station along with accused after incident as stated by P.W. 2 but the driver of that vehicle had not been arrayed as witness.
P.W.2 during cross examination stated that this fact was informed by the SO. No such cross-examination in this regard has been made with S.O. (P.W1). The cross examination made with PW 1 was with regard to existence of shops near the place of occurrence. The SO deposed that there are few shops near the place of occurrence but they were closed when the recovery was made and accused was arrested. This statement appears to be believable.
For the sake of argument, if it is taken to be correct, the services of private vehicle has been taken after the recovery for carrying the accused appellant to police station and if the driver of that vehicle has not been arrayed as witness to the prosecution then in the opinion of this Court, it would be fatal for prosecution for the reason that he did not witnessed the incident.
The Hon'ble Supreme Court in Girja Prasad V. State of M.P.; (2007) 7 SCC 625, while particularly referring the evidence of police officers held that it is not the rule that police witnesses should be relied upon and their evidences be accepted only when it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of police officer as any other person. The Apex Court in Aher Raja Khima Vs. State of Saurastra; (AIR 1956 SC 217) more than half a century ago propounded the aforesaid principle that t would not be a judicial approach to start with distrust and suspect police personnel without good grounds. This principle has also been referred to in some of these cases Tahir Vs. State (Delhi); (1996) 3 SCC 338, State Government of NCT Delhi Vs. Sunil and others; (2001) 1 SCC 652, P.P. Beeran Vs. State of Kerala; (2001) 9 SCC 571 (Sole Police officer as witness believed) and Govindraju @ Govinda V.State; (2012) 4 SCC 722.
In the light of aforesaid principle, the evidence of the police personnel to be tested.
The incident was occurred in the mid night and the recovery was made at about 1:45 AM. This is the time when independent witness would not be available in normal cases. It is not the case that the independent witnesses were present on the spot. The police personnel received information about the appellant few minutes before the recovery. In view of above, the evidence of police personnel cannot be thrown out on the sole ground that the same has not been supported by any other evidence of independent witness.
Contradiction in the statement of prosecution witnesses It is important to note here that no cross-examination of P.Ws. 3, 4, 5 and 6 has been conducted in spite of sufficient opportunity given to the accused. The only effective cross-examination has been made with PW 1 and PW 2.
The contradictions pointed out in the evidence of these two witnesses that the contraband was measured by balance as stated by PW 1 during cross-examination, but PW 2 stated that the contraband was not measured by balance only approximate weight has been mentioned in the recovery memo. This is the sole contradiction which has been pointed out in the evidence.
In the opinion of the Court it is not a material contradiction specially when the evidence of witness recorded after laps of considerable period.
It has also been argued by learned counsel for the appellant that the alleged contraband is below the commercial quantity and maximum punishment of commercial quantity is up to 10 years with fine of rupee one lac. The applicant belongs to a poor family. He has no criminal history. He remained in jail during trail as well as he also languishing in jail on account of alleged misuse of liberty of bail so he may be given the benefit of period which he has already undergone.
Record of the trial court reveals that the appellant was not on bail during trial. How much period, he has undergone is not clear from the record. It has not been argued that the accused has already undergone the sentence awarded against him.
Considering the findings recorded by the trial court and the quantity recovered from the possession of the applicant, I am of the view that the sentences awarded is not too much. The commercial quantity of Ganja is 20 kgs and small quantity is less than one kilogram but in this case, the alleged recovered Ganja is approximately 15 kgs, which is more than small quantity. Therefore, I do not find any illegality in the sentenced awarded and the same cannot be said to be excessive.
No other point was argued nor pressed on behalf of appellant.
Hence, the appeal sans merit and is liable to be dismissed.
Consequently appeal is dismissed.
The Office is directed to send the lower court record forthwith along a copy of this order.
The Senior Registrar of this Court shall ensure the compliance of this order.
Dated:15.12.2014 akverma