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section 57 of NDPS Act.

Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub- section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. – owner of the car which was involved in the offence, possession of commercial quantity, FSL report which shows that the contraband is poppy straw and is a prohibited item, we are in entire agreement with the conclusion arrived at by the trial Court and affirmed by the High Court. Further, taking note of the fact that the quantity involved is 70 kgs. of poppy straw which is more than a commercial quantity, the Special Judge rightly imposed minimum sentence and fine in terms of Section 15(c) of the NDPS Act. We are in agreement with the said conclusion.

ndps act

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

1 CRIMINAL APPEAL NOs. 1690-1691 OF 2012

(Arising out of S.L.P. (Crl.) Nos. 9415-9416 of 2011)

Sumit Tomar                                          …. Appellant(s)

Versus

The State of Punjab                                …. Respondent(s)

 

J U D G M E N T

P.Sathasivam,J.

1)    Leave granted.

2)    These appeals are  directed  against  the  judgment  and  order  dated

31.01.2011 passed by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 2079 SB of 2009 whereby the High Court dismissed the criminal appeal filed by the appellant herein and also of the order dated 17.05.2011 passed by the High Court in Crl.M. No. 26283 of 2011 regarding correction of the date in the judgment.

3)    Brief facts:

(i)    According to the prosecution, on 27.06.2004, at about  5.00  p.m.,  a

special barricading was set up by the police party at Basantpur Bus Stand, Patiala. At that time, the police party signaled to stop a silver colour Indica Car bearing No. DL-7CC-0654 which was coming from the side of Rajpura. The driver of the said car (appellant herein), accompanied with one Vikas Kumar (since deceased), who was sitting next to him, instead of stopping the car tried to run away, but the police party immediately blocked the way and managed to stop the car. On suspicion, the police checked the car and found two plastic bags containing ‘bhooki’ opium powder from the dickey of the said vehicle. The contents of both the bags were mixed and two samples of 250 gms. each were taken out. The remaining contraband weighing 69.50 kgs. was sealed in two bags and the samples were sent to the Forensic Science Laboratory (FSL) for examination.

(ii) On the same day, i.e., 27.06.2004, a First Information Report (FIR) being No. 105 of 2004 was lodged by the police against the appellant herein and Vikas Kumar under Sections 8, 15, 60, and 61 of the Narcotic Drugs & Psychotropic Substances, Act, 1985 (in short “the NDPS Act”).

(iii) On receipt of the report of the Chemical Examiner and after completion of all the formalities relating to investigation, the case was committed to the Special Court, Patiala and numbered as Sessions Case No. 118T/06.09.04/17.11.08. During the pendency of the case, Vikas Kumar died. The Special Court, Patiala, by order dated 20.08.2009, convicted the appellant herein under Section 15 of the NDPS Act and sentenced him to undergo rigorous imprisonment (RI) for 10 years alongwith a fine of Rs. One lakh, in default, to further undergo R.I. for one year.

(iv) Being aggrieved, the appellant herein filed Criminal Appeal No. 2079 SB of 2009 before the High Court of Punjab & Haryana. Learned single Judge of the High Court, by impugned order dated 31.01.2011, dismissed the said appeal. Questioning the same, the appellant has filed these appeals by way of special leave before this Court.

4) Heard Mr. V. Giri, learned senior counsel for the appellant and Ms. Noopur Singhal, learned counsel for the respondent-State.

5) Mr. V. Giri, learned senior counsel for the appellant raised the following contentions:

  1. i) one Kaur Singh, an independent witness, was allegedly joined by the prosecution but has not been examined. Though the prosecution claimed that the presence of Kaur Singh at the spot was natural, since he was not examined, the entire story of the prosecution has to be rejected;

 

  1. ii) in the absence of independent witness, conviction based on official witnesses, cannot be sustained; and

iii) inasmuch as after the alleged seizure of contraband in two separate bags, there is no need for the officers to mix both the samples which was an irregularity and goes against the prosecution case.

6) On the other hand, Ms. Noopur Singhal, learned counsel for the State submitted that the person who was present at the time of seizure was Kaur Singh and, hence, he is a natural witness and to show their bona fide, the prosecution summoned him for examination, but he failed to appear. She further submitted that mixing of poppy husk found in two bags is not an irregularity, on the other hand, according to her, the prosecution has proved its case beyond reasonable doubt and prayed for confirmation of the order of conviction and sentence.

7) We have carefully considered the rival submissions and perused all the relevant materials.

8) As regards the first two contentions raised by learned senior counsel for the appellant, it is true that Kaur Singh, according to the prosecution, is an independent witness, however, he was not examined on the side of the prosecution. It is the case of the prosecution that on 27.06.2004 while Kaur Singh was just passing through, he met the police party who had laid a special nakabandi near Basantpur Bus-stand for nabbing the anti-social elements. In such circumstance, his presence cannot be doubted, on the other hand, his presence seems to be natural and a perusal of the consent memo, the recovery memo and the arrest memo shows that he was present at the time when the recovery was effected from the accused. His signatures appended in all these memos show that he has witnessed the recovery. It is true that the prosecution could have examined him. For this, it is the stand of the prosecution that in spite of necessary steps taken by issuing summons, he did not appear for which the prosecution case cannot be thrown out.

9) In order to substantiate its claim, the prosecution examined Shri Lakhwinder Singh, Head Constable as PW-1, Shri Devinder Kumar, owner of the car as PW-2, Shri Gurdeep Singh, Assistant Sub-inspector of Police as PW-3 and Shri Mohan Singh, Head Constable as PW-6. The Special Court as well as the High Court, on going through the evidence of the above-mentioned official witnesses and the documents, namely, FIR, seizure memo, FSL report etc., accepted the case of the prosecution. Even before us, learned senior counsel for the appellant took us through the evidence of the above- mentioned prosecution witnesses and the connected materials. In a case of this nature, it is better if the prosecution examines at least one independent witness to corroborate its case. However, in the absence of any animosity between the accused and the official witnesses, there is nothing wrong in relying on their testimonies and accepting the documents placed for basing conviction. After taking into account the entire materials relied on by the prosecution, there is no animosity established on the part of the official witnesses by the accused in defence and we also do not find any infirmity in the prosecution case. It is not in dispute that the present appellant (A-2) was driving the car in question which carried the contraband. PW-2, owner of the car was also examined and proved its ownership and deposed that Sumit Tomar demanded the said car for personal use. In view of the above discussion, we hold that though it is desirable to examine independent witness, however, in the absence of any such witness, if the statements of police officers are reliable and when there is no animosity established against them by the accused, conviction based on their statement cannot be faulted with. On the other hand, the procedure adopted by the prosecution is acceptable and permissible, particularly, in respect of the offences under the NDPS Act. Accordingly, we reject both the contentions.

10) The next contention, according to the learned senior counsel for the appellant, is that the prosecution has committed an irregularity by mixing up the contraband found in the bags and taking samples thereafter. We find no substance in the said argument. The present appellant was driving the car in which two bags of contraband were loaded. He further pointed out that in view of Section 15 (c) of the NDPS Act, which prescribes minimum sentence of 10 years and which may extend to 20 years where the contravention involves commercial quantity, the mixing of two bags is a grave irregularity which affects the interest of the appellant. We are unable to accept the said contention. It is true that Section 15 of the NDPS Act speaks about punishment for contravention in relation to poppy straw. As per sub-section (a) where the contravention involves small quantity, the rigorous imprisonment may extend to six months or with fine which may extend to ten thousand rupees or with both whereas under sub- section (b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, rigorous imprisonment may extend to 10 years and with fine which may extend to one lakh rupees. Sub-section (c) provides that where the contravention involves commercial quantity, the rigorous imprisonment shall not be less than 10 years but which may extend to 20 years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees. Merely because different punishments have been prescribed depending on the quantity of contraband, we are satisfied that by mixing the said two bags, the same has not caused any prejudice to the appellant. Even after taking two samples of 250 grams each, the quantity measured comes to 69.50 kgs which is more than commercial quantity (small quantity 1000 gms/commercial quantity 50 kgs. and above). In view of the same, the contention that the police should have taken two samples each from the two bags without mixing is liable to be rejected.

11) Taking note of all the materials, the evidence of official witnesses, PW-2, owner of the car which was involved in the offence, possession of commercial quantity, FSL report which shows that the contraband is poppy straw and is a prohibited item, we are in entire agreement with the conclusion arrived at by the trial Court and affirmed by the High Court. Further, taking note of the fact that the quantity involved is 70 kgs. of poppy straw which is more than a commercial quantity, the Special Judge rightly imposed minimum sentence and fine in terms of Section 15(c) of the NDPS Act. We are in agreement with the said conclusion.

12) In the light of the above discussion, we do not find any merit in the appeals, consequently, the same are dismissed.

………….…………………………J.

(P. SATHASIVAM) ………….…………………………J.

(RANJAN GOGOI) NEW DELHI;

 

 

 

Section 57 of NDPS Act. Report of arrest and seizure.

 

Whenever any person makes any arrest or seizures 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.

 

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Gurbax Singh vs State Of Haryana on 6 February, 2001

Author: Shah

Bench: M Shah, K Balakrishnan.

CASE NO.:

Appeal (crl.) 35 of 2000

PETITIONER:

GURBAX SINGH

Vs.

RESPONDENT:

STATE OF HARYANA

DATE OF JUDGMENT: 06/02/2001

BENCH:

M.B. Shah & K.G. Balakrishnan.

JUDGMENT:

Shah, J.

L…I…T…….T…….T…….T…….T…….T…….T..J Aggrieved by the judgment and order dated 8th December, 1995 passed by the High Court of Punjab and Haryana in Criminal Appeal No. 449-SB of 1986 confirming the judgment and order passed by the Additional Sessions Judge, Karnal dated 6.5.1986 convicting the appellant for the offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the N.D.P.S. Act) and sentencing him to suffer rigorous imprisonment for 10 years and a fine of Rs.One lac, in default of payment of fine further rigorous imprisonment for 5 years, the appellant has preferred this appeal.

The accused was charged under Section 15 of the N.D.P.S. Act. For proving the same, prosecution has examined P.W.2. Ishwar Singh, SI who on 12th January 1986 at about 5.25 p.m. was present on platform No. 1 of Railway Station, Karnal for checking smuggling and other anti-social elements. At about 5.25 p.m. Kalka passenger train arrived at Karnal from the side of Panipat and halted at platform No. 1. It is his say that when he was checking a second class compartment, the appellant who was sitting in the compartment became panicky and left the train from the door towards the side of engine carrying a katta (gunny bag) on his left shoulder. On suspicion, he was nabbed in presence of witness and it was found that he was carrying poppy straw weighing 7 k.g. in a polythene bag of white colour. After separating 100 gms by way of sample, sample and the residue were separately sealed in two separate parcels in presence of witness. The seal which was affixed on parcels was handed over to the witness (PW1) Harbans Lal. He has stated that the case property was deposited with MHC on the same day. He has also stated that on the personal search of the accused, second class railway ticket was recovered. In cross-examination, it is his say that he intercepted the accused outside the compartment of platform No. 1. At that time, Harbans Lal was present at the railway station to see off his relatives. He offered himself to become witness to the recovery. He has also deposed that seal used for sealing the case property remained with Harbans Lal for ten days. It is his say that he had fixed only one seal made of brass bearing I.S. on the gunny bag and also on the sample. He admitted that seal of the police station is different from the seal of the Investigating Officer and he has not affixed the seal of police station on the case property as also on the sample at the time of delivery to M.H.C. He has also admitted that he was not maintaining any record of information sent to Circle Inspector of the Police Headquarter, G.R.P. It is his say that he had telephonically informed his superior officer about the seizure and its quantity. He has denied the suggestion that accused who was a rikshaw puller was falsely implicated in the case. He has also denied the suggestion that accused asked to be searched in presence of Magistrate or other superior officer.

Prosecution has also examined P.W. 1 Harbans Lal, a panch witness. It is his say that on the date of incident he was at the railway station to see off his sister and brother in law. At that time, he noticed the accused alighting from the train on seeing the police. Therefore, accused was nabbed by the police in his presence. The police found that the accused was carrying poppy straw placed in polythene bag which on weighment was found to be 7 k.g. The police took sample of 100 grams. The recovery memo was prepared in his presence which he had attested. In cross- examination, he has stated that before searching the contents of gunny bag, the police had not offered itself for search to the accused. It is his say that seal affixed on the case property was made of wood (as against the say of the Investigating Officer that it was a brass seal). The seal was kept with him for 10 days. He has also admitted that he had appeared as a prosecution witness in one excise case and that he was having business of sale of tea near Tonga Stand outside the railway station for the last 15 years. It is his say that he had not earlier seen the ground poppy husk and the police had informed him that the substance recovered from the accused was ground poppy husk.

Learned counsel for the appellant submitted that the Investigating Officer has not followed the procedure prescribed under Section 50 of the Act of informing the accused whether search should be carried out in presence of Gazetted Officer or Magistrate. As against this, learned counsel for the respondent submitted that in the present case, there is no question of following procedure under Section 50 because from the person of the accused, nothing was recovered, but from the gunny bag which he was holding, poppy straw was recovered. For this purpose reliance is placed on the decisions of this Court in Kalema Tumba v. State of Mahrashtra [(1999) 8 SCC 463] and State of Punjab v. Baldev Singh [(1999) 6 SCC 172].

In Kalema Tumba (supra) this Court considered the mandatory requirement of Section 50 of NDPS Act and held that only when the person of an accused is to be searched then he is required to be informed about his right to be examined in presence of a gazetted officer or a magistrate. The Court further held that in view of the decision in the case of Baldev Singh (supra) the decision rendered by this Court in State of Punjab v. Jasbir Singh [(1996) 1 SCC 288] wherein it was held that though poppy husk was recovered from the bags of the accused, he was required to be informed about his right to be searched in presence of a gazetted officer or a magistrate stood overruled. In facts of that case the Court held that Heroine was found from the bags belonging to the appellant and not from his person and therefore it was not necessary to make an offer for search in presence of a gazetted officer or a magistrate.

In the case of Baldev Singh (supra) the Constitutional Bench (in para 12) observed thus: – 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.

Further after considering various decisions the Court held (in para 57) that when an empowered officer or a duly authorised 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.

In view of the aforesaid decision of the Constitutional Bench, in our view, no further discussion is required on this aspect. However, we may mention that this right is extension of right conferred under Section 100 (3) of the Criminal Procedure Code. Sub-Section (1) of Section 100 of the Code provides that whenever any place liable to search or inspection is closed, any person residing in, or being in charge of, such place, shall, on demand of the officer or other person executing the warrant, and on production of the warrant, allow him free ingress thereto, and afford all reasonable facilities for a search therein. Sub-Section (3) provides that where any person in or about such place is reasonably suspected of concealing about his person any article for which search should be made, such person may be searched and if such person is a woman, the search shall be made by another woman with strict regard to decency. Sub-section (7) of Section 100 further provides that when any person is searched under sub-section (3) a list of all things taken possession of shall be prepared and a copy thereof shall be delivered to such person. This would also be clear if we refer to search and seizure, procedure provided under Sections 42 and 43 of the building, conveyance or place. Hence, in our view, Section 50 of the N.D.P.S. Act would be applicable only in those cases where the search of the person is carried out.

The learned counsel for the appellant next contended that from the evidence it is apparent that the I. O. has not followed the procedure prescribed under Sections 52, 55 and 57 of the N.D.P.S. Act. May be that the I.O. had no knowledge about the operation of the N.D.P.S. Act on the date of the incident as he recorded the FIR under Section 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, I.O. cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. In the present case, I.O. has admitted that the seal which was affixed on the muddamal article was handed over to the witness P.W.1 and was kept with him for 10 days. He has also admitted that the muddamal parcels were not sealed by the officer in charge of the police station as required under Section 55 of the N.D.P.S. Act. The prosecution has not led any evidence whether the Chemical Analyser received the sample with proper intact seals. It creates a doubt whether the same sample was sent to the Chemical Analyser. Further, it is apparent that the I.O. has not followed the procedure prescribed under Section 57 of the N.D.P.S. Act of making full report of all particulars of arrest and seizure to his immediate superior officer. The conduct of panch witness is unusual as he offered himself to be a witness for search and seizure despite being not asked by the I.O., particularly when he did not know that the substance was poppy husk., but came to know about it only after being informed by the police. Further, it is the say of the Panch witness that Muddamal seal used by the PSI was a wooden seal. As against this, it is the say of PW2 SI/IO that it was a brass seal. On the basis of the aforesaid evidence and faulty investigation by the prosecution, in our view, it would not be safe to convict the appellant for a serious offence of possessing poppy-husk.

In the result, the appeal is allowed and the impugned judgment and order passed by the High Court confirming the conviction of the appellant is set aside. The appellant be released forthwith, if he is not required in any other case.