(902)APEALNo.2942012(J) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.294 OF 2012 WITH CRIMINAL APPLICATION NO.1016 OF 2017 IN CRIMINAL APPEAL NO.294 OF 2012 WITH CRIMINAL APPLICATION NO.12 OF 2018 IN CRIMINAL APPEAL NO.294 OF 2012 Nandkishore @ Bhimkumar Bhajuman Singh, Age 25 yrs, Occu.: Agriculturist, Resident of Dardori, Post Dangari, Tal-Kudra, Dist- Kaimoor, Bhaguva, Bihar State. (Presently lodged in Kolhapur Central Prison, Kalamba) Appellant/Applicant V/s. The [ENTITY] Respondent Mr.[ENTITY], Advocate for the Appellant/Applicant. Mr.[ENTITY], APP for the Respondent/State. CORAM : [ENTITY] J. DATED : 5th JANUARY 2018. ORAL JUDGMENT :
1 By this appeal, the appellant/accused is challenging the Judgment and Order dated 30/12/2011 passed by the learned (902)APEALNo.2942012(J) Additional Sessions Judge, Jaysingpur, District Kolhapur in [CASE NUMBER] thereby convicting the appellant/accused of the offence punishable under Section 20(b)
(ii) of the [ACT] (hereinafter referred to as '[ACT]' for the sake of brevity) and sentenced to suffer rigorous imprisonment for a term of 10 years apart from directing him to pay fine of Rs.75,000/- and in default to suffer further rigorous imprisonment for three years.
2 The facts of the prosecution case are thus :
(a) On 16/01/2010, P.W.No.6 [ENTITY] API Jaysingpur Police Station had received information that an accused in [CASE NUMBER] registered with Police Station, Gaonbhag, Ichalkaranji for the offence punishable under [SECTION] of the [ACT] is likely to pass from Ankli Toll Naka of village Udgaon. Hence, P.W.No.6 [ENTITY] API had decided to take up nakabandi of the road meaning thereby to block the road for apprehending the said accused. He along with his colleague police officials left at about 8.20 p.m. of 16/01/2010 and reached Ankli Toll Naka and started nakabandi. After some time, they noticed one person coming from Sangli side carrying a hoar sack on his shoulder. The police party suspected him and asked him to stop.
However, that person started running away from the police party. He was chased and apprehended by the police party and was brought near the police vehicle, which was parked near the toll (902)APEALNo.2942012(J) naka. Upon being asked, the said person told his name as [ENTITY]. He also disclosed to police that he is resident of village Daldori of Bihar State. It is case of the prosecution that said person i.e. applicant also disclosed to the police upon being inquired that he is carrying ganja in the bag, which he was carrying. Police then availed services of two persons passing from the said road as panch witnesses. Those were P.W.No.2 [ENTITY] and [ENTITY]. Police party gives personal search to the panch witnesses and personal search of panchas was also taken by police. Thereafter, personal search of appellant/accused was conducted in presence of panch witnesses. An amount of Rs.5,700/- came to be recovered from his person. Then search of the bag, which was carried by the appellant/accused was conducted. It was found to be containing ganja. By making telephonic call to the Police Station, [ENTITY] was directed to send necessary sealing materials as well as weighing scale to the spot. On direction of [ENTITY], P.W.No.3 [ENTITY], H.C. contacted P.W.No.4 [ENTITY]. P.W.No.3 [ENTITY] and P.W.No.4 [ENTITY] then went to the spot carrying with them the electronic weighing scale, sealing wax and other necessary articles. [ENTITY] found in the bag carried by the appellant/accused was weighed on the weighing scale by P.W.No.4 [ENTITY], which was found to be weighing 2 kgs. 100 gms. Two samples each weighing [SECTION] gms. were drawn (902)APEALNo.2942012(J) from the said contraband. Those samples were sealed. Remaining ganja was also kept in the brown envelope and that envelope was also sealed. Necessary panchanama was prepared. Police party then returned to the police station along with appellant/accused as well as seized muddemal. At Police Station, Jaysingpur, P.W.No.1 [ENTITY] ASI lodged a report which has resulted in registration of [CASE NUMBER] against the appellant/accused. After completion of routine investigation, such as recording of statements of witnesses, sending the seized muddemal for chemical analysis, the appellant/accused came to be charge-sheeted.
(b) Upon hearing the parties the learned Sessions Judge, Jaysingpur was pleased to frame charge for the offence punishable under [SECTION] of the [ACT]. The charge so framed was explained to the appellant/accused. He abjured guilt and claimed trial.
(c) In order to bring home the guilt to appellant/accused, prosecution had examined as many as six witnesses and had also relied on documentary evidence. First Informant [ENTITY] ASI is examined as P.W.No.1 and report lodged by him is at Exhibit 48. Panch witness [ENTITY] is examined as P.W.No.2 and seizure panchanama is at Exhibit 54. [ENTITY] is examined as P.W.No.3. [ENTITY] goldsmith, who weighed (902)APEALNo.2942012(J) the contraband is examined as P.W.No.4. Carrier constable [ENTITY] is examined as P.W.No.5. [ENTITY] API Jaysingpur Police Station is examined as P.W.No.6. The defence of the appellant/accused as gathered from the line of cross- examination of prosecution witnesses as well as his statement under [SECTION] of the [ACT] is that of total denial.
(d) After hearing the parties, the learned Sessions Judge by the impugned Judgment and Order was pleased to convict the appellant/accused for the offence punishable under Section 20 (b)
(ii) of the [ACT] and the appellant/accused is convicted accordingly as indicated in opening paragraph of this Judgment.
3 I heard the learned Advocate appearing for the appellant/accused. He argued that when, according to the prosecution case, the appellant/accused had informed the police party that he is carrying ganja in the bag, it was incumbent on the part of the police to call the Gazetted Officer or the Magistrate or to take the appellant/accused to the Gazetted Officer or Magistrate for conducting his personal search. The learned Advocate appearing for the appellant/accused attempted to capitalize the typing mistake found in recording the deposition of P.W.No.6 [ENTITY] API to the effect that ganja was found in the pocket of the appellant/accused. But at this stage itself, it needs to be (902)APEALNo.2942012(J) made clear that the Marathi deposition, which prevails over the English deposition, candidly shows that the ganja was not found in the personal search of the appellant/accused, but in the bag carried by him. The learned Advocate appearing for the appellant/accused argued that there is discrepancy in the timings coming on record from the evidence of P.W.No.1 [ENTITY] as well as P.W.No.6 [ENTITY] API. He argued that P.W.No.1 [ENTITY] API has deposed that he was directed by P.W.No.6 [ENTITY] API to go for nakabandi, but immediately P.W.No.1 [ENTITY] has deposed that even P.W.No.6 [ENTITY] API was accompanying them. The timings coming on record are varying from 8.20 p.m. to 8.55 p.m and, therefore, the case of the prosecution becomes suspect. The learned Advocate further argued that even evidence of P.W.No.3 [ENTITY] shows that work of carrying out panchanama took time of two hours and here also there is discrepancy in respect of timing. The learned Advocate further argued that for want of compliance of [SECTION] of the [ACT], the impugned Judgment and Order convicting the appellant/accused can not be sustained.
4 The learned Additional Public Prosecutor argued that the case in hand is that of a chance recovery. The learned APP further argued that contraband was not recovered from the personal search and as such provisions of [SECTION] of the (902)APEALNo.2942012(J) [ACT] is not applicable to the case in hand. The learned APP, therefore, supported the impugned Judgment and Order of conviction.
5 I have carefully considered the rival submissions and also perused the Record and Proceedings including depositions of witnesses and documentary evidence adduced by the parties.
6 Offence punishable under [SECTION] of the [ACT] was held to be proved against the appellant/accused and the learned Sessions Judge had held that the appellant/accused was found to be in possession of ganja weighing 2 Kg. 100 Gms that is lesser than commercial quantity but greater than the small quantity. Let us, therefore, at the outset, examine whether the appellant/accused was found to be in conscious possession of ganja weighing 2 Kg. 100 Gms. on 16/01/2010 at about 8.55 p. m. near Ankli toll naka of Udgaon. The prosecution had heavily relied on evidence of P.W.No.1 [ENTITY], P.W.No.2 [ENTITY] witness and P.W.No.6 [ENTITY] API in order to establish possession of contraband by the appellant/accused. Let us, therefore, scrutinize evidence of these three witnesses in order to ascertain whether they are witness of truth or whether their evidence needs to be discarded being infirm and lacunic.
(902)APEALNo.2942012(J) 7 P.W.No.1 [ENTITY] at the relevant time was working as ASI with Jaysingpur Police Station. He is the First Informant in the instant case. It is in his evidence that on 16/01/2010 at about 8.00 p.m. P.W.No.6 [ENTITY] API had directed him to proceed for nakabandi at toll naka. Therefore, by police Jeep he along with the police officials including [ENTITY] went for nakabandi. This witness further deposed that at toll booth, road block was set up. A person carrying hoar sack over shoulder was found to be coming from direction of Sangli and, therefore, police personnel tried to stop him. P.W.No.1 [ENTITY] further testified that the said person then started running and by chasing him police party apprehended him. The said person then told his name. He further told that he is carrying ganja in the bag carried by him. P.W.No.1 [ENTITY] then further deposed that thereafter two panchas were summoned and personal search of panchas and police party was taken. Subsequently, personal search of the appellant/accused, who was apprehended by the police party on the spot was conducted and an amount of 5,700/- came to be recovered from his person. As stated by P.W.No.1 [ENTITY] then search of bag carried by the appellant/accused was conducted and ganja was found in it. Then [ENTITY] (P.W.No.6) telephoned [ENTITY] HC, who at the relevant time was at Jaysingpur Police Station. He was directed to send weighing scale, sealing wax and other sealing articles. P.W.No.1 [ENTITY] further deposed that then (902)APEALNo.2942012(J) P.W.No.3 [ENTITY] came with the necessary material. P.W.No.1 [ENTITY] further deposed that P.W.No.4 [ENTITY] also came and ganja was weighed on electronic scale. It was found to be weighing 2 kg. and 100 gms. Then two samples each weighing [SECTION] grams were also taken out from that ganja and were separately sealed in presence of panchas by sealing wax. The remaining contraband was also packed and sealed and seizure panchanama was effected. This is what is the crux of the chief-examination of P.W.No.1 [ENTITY].
8 Now, let us see what is elicited from his cross- examination by the defence. It is brought on record from cross- examination of P.W.No.1 [ENTITY] that he did not leave the police station for nakabandi at 8.00 p.m. but left the Police Station on 8.20 p.m. In roll call taken at 8.15 p.m. of 16/01/2010, he was present at the Police Station. The duty chart of 15/01/2010 shows that he was on reserve duty on 16/01/2010. This witness further admitted that entries in the log book of the vehicle are taken after 10 to 15 days. It is further brought on record that the appellant/accused was apprehended by four to five constables and was brought towards vehicle. It is further brought on record from the cross-examination of this witness that the appellant/accused informed that he is carrying ganja in his bag and thereafter P.W.No.6 [ENTITY] immediately telephoned Police Station and asked Head Constable [ENTITY] to send sealing (902)APEALNo.2942012(J) wax and sealing articles along with weighing scale. The defence has further brought on record from cross-examination of P.W.No.1 [ENTITY] that two panchas took personal search of police. It is also elicited from the mouth of P.W.No.1 [ENTITY] that P.W.No.3 [ENTITY] and P.W.No.4 [ENTITY] reached the spot at about 8.55 p.m. and P.W.No.4 [ENTITY] weighed ganja and, he was asked to separate the sample from seized ganja. All this material brought on record from cross- examination of P.W.No.1 [ENTITY] ASI in no way make his evidence suspect but cement his evidence. Presence of the appellant/accused on the spot, apprehending on the spot by four to five constables, summoning panch witnesses, summoning weighing scale and sealing material, calling P.W.No.3 [ENTITY] and P.W.No.4 [ENTITY] with sealing material and weighing scale is brought on record from cross-examination by the learned defence counsel. This material fully supports version of P.W.No.1 [ENTITY] ASI narrated in chief- examination by him and, therefore, there is no scope to infer that P.W.No.1 [ENTITY] ASI is not a witness of truth. Minor discrepancy in respect of timing of leaving the Police Station in no way cast cloud of doubts on version of P.W.No.1 [ENTITY]. In fact, there is no variation in respect of timing in his evidence. What he has stated is direction to him to go for nakabandi given at 8.00 p.m. and leaving the police station at 8.20 p.m. This does not amount contradiction in his version.
(902)APEALNo.2942012(J) 9 To crown this all, the defence has brought on record from cross-examination of P.W.No.1 [ENTITY] even compliance of [SECTION] of the [ACT] though the same was not at all mandatory. In paragraph 5 of cross-examination of P.W.No.1 [ENTITY], the defence has brought on record that P.W.No.6 [ENTITY] API has informed the appellant/accused that his personal search is required to be taken in presence of Gazetted Officer and the appellant/accused was further informed that he has right to get him searched in presence of the Gazetted Officer. The defence has brought on record that this information was given to the appellant/accused in Hindi which was a language known to the appellant/accused. The defence has further brought on record that the appellant/accused had refused to get himself searched in presence of the Gazetted Officer and the appellant/accused had given his no objection for personal search by police party. Thus, this material elicited from cross- examination of P.W.No.1 [ENTITY] no way furthers the defence of the appellant/accused.
10 Principles of appreciation of evidence of witnesses is succinctly explained by the Honourable Apex Court in the matter of [PRECEDENT]. It is held therein that ordinarily a witness cannot be expected to recall accurately the sequence of events (902)APEALNo.2942012(J) which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance.
11 To sum up, evidence of P.W.No.1 [ENTITY] which is tested on the touchstone of cross-examination and as discussed in foregoing paragraphs does not allow me to infer that the same is unreliable or untrustworthy. On the contrary, the same is corroborated by promptly lodged FIR (Exhibit 48) by the said witness.
12 P.W.No.2 [ENTITY] is an independent witness, who is neither concerned with the police nor with the appellant/accused. He along with his associates [ENTITY] were passing from Sangli to Jaysingpur on 16/01/2010 when police party called them and requested them to act as panch witness on apprehending the appellant/accused. Evidence of P.W.No.2 [ENTITY] shows that they had taken personal search of the entire member of the police party and then personal search of the appellant/accused was taken. An amount of Rs.5,700/- came to be recovered from his person. Thereafter, as testified by P.W.No.1 [ENTITY], bag carried by appellant/accused was searched and it was found to be containing ganja. Police then (902)APEALNo.2942012(J) called necessary articles such as weighing scale, as well as sealing material. P.W.No.2 [ENTITY] deposed that after arrival of the necessary material ganja found in the bag was weighed and found to be weighed 2 kg. 100 gms., two samples each weighing [SECTION] gms were separated from that ganja and were sealed in his presence. The remaining ganja was also kept in the packet and the same was also sealed. In the witness box, this witness has identified his signatures on the sealed packets.
13 In cross-examination of P.W.No.2 [ENTITY], the defence has elicited that P.W.No.6 [ENTITY] API had asked the appellant/accused as to whether he wants to be searched in presence of the superior officer. It is also brought on record from evidence of this witness that he left Sangli at 8.30 p.m., however, there is no further cross-examination on this aspect by the defence. Evidence of P.W.No.2 [ENTITY] shows that after weighment and drawing samples, seizure panchanama was prepared by police on the spot and the said panchanama (Exh.54) is bearing his signature.
14 Over all scrutiny of evidence of P.W.No.2 [ENTITY] does not show any discrepancy in his evidence for discarding the same. His evidence is duly corroborated by contemporaneous seizure panchanama. His signatures were found to be present on the packets which were prepared after weighment of the (902)APEALNo.2942012(J) contraband. There is no iota of evidence to infer that P.W.No.2 [ENTITY] is a got up witness. Hence, I see no reason to disbelieve the version of this witness.
15 The third witness in whose presence the contraband was seized is P.W.No.6 [ENTITY] API, who lead the police team in nakabandi. His evidence shows that on 16/01/2010, he received information that an accused in [CASE NUMBER] for offence punishable under [SECTION] of the [ACT] registered with Gaonbhag Police Station, Ichalkaranji is to pass from Ankli toll naka of Udgaon village and, therefore, he arranged nakabandi. This witness deposed that he along with his staff reached the spot at 8.25 hours of 16/01/2010 and at about 8.55 p.m. they saw a person walking towards them from direction of Sangli. When that person was asked to stop, he attempted to flee and, therefore, by chasing him he was apprehended. P.W.No.6 [ENTITY] API further deposed that he made inquiry from the said person i.e. the appellant/accused, who disclosed his name as well as address. The appellate further informed that he is carrying ganja in his bag. Therefore, two panch witnesses were summoned by stopping them on the spot itself. P.W.No.6 [ENTITY] further deposed that panch witness took personal search of the police party and thereafter personal search of the appellant/accused was conducted and cash of Rs.5,700/- came to be recovered. The bag which was carried by him was found containing ganja and, therefore, he (902)APEALNo.2942012(J) telephoned Police Station and directed the concerned staff to send sealing material as well as weighing scale. That is how the sealing material and weighing scale was brought on the spot by P.W.No.3 [ENTITY] and P.W.No.4 [ENTITY]. Evidence of P.W.No.6 [ENTITY] shows that ganja was weighed by P.W.No.4 [ENTITY] and was found to be weighing 2 kg. 100 gms. Two samples each weighing [SECTION] gms. were separated and sealed. The remaining ganja was also packed and sealed. This witness has also deposed about preparation of seizure panchanama (Exhibit 54).
16 Cross-examination of P.W.No.6 [ENTITY] API is however infested with insignificant stuff. Most of the part of the cross-examination of P.W.No.6 [ENTITY] is devoted to non- compliance of [SECTION] of the [ACT] as well as discrepancy in the muddemal register. It was sought to be discredited by suggesting to him that the muddemal was not handed over to the muddemal clerk of the Police Station.
17 Let us, therefore, examine whether such discrepancy sought to be brought on record from cross-examination of P.W.No.6 [ENTITY] discredit him. Exhibit 80 is the station diary of Jaysingpur Police Station. It shows that by taking entry No.26 at 20.20 hours, police party left the Police Station for apprehending accused in [CASE NUMBER] registered with (902)APEALNo.2942012(J) Gaonbhag Police Station, Ichalkaranji. Entry No.27 taken at 9.05 p.m. of 16/01/2010 is to the effect that that the police was informed that the appellant/accused was apprehended and as he is stated that he is carrying ganja, police station was informed to send sealing material, weighing scale etc. Station diary No.28 recorded at 9.25 p.m. is to the effect that then P.W.No.3 [ENTITY] PHC had left the Police Station with seal, sealing material with instruction to take weighing scale from the village. This evidence of P.W.No.6 [ENTITY] is duly corroborated by contemporaneous entries in the station diary.
18 Exhibit 54 is the seizure panchanama. Cross- examination of P.W.No.6 [ENTITY] is clearly reflecting the fact that the seized muddemal was handed over to muddemal clerk of the Police Station vide endorsement (Exhibit 70) on the seizure panchanama. This endorsement reflects that the entry of the muddemal is taken in Part 6 of the Muddemal Register i.e. Muddemal No.1 of 2010. It is seen that cross-examination of P.W.No.6 [ENTITY] in respect of the muddemal register is totally without substance because perusal of muddemal register from the record shows that it is divided in six parts - part No.6 contains [CASE NUMBER] in respect of the muddemal in the present case. Earlier blank pages of the muddemal register appearing to be in respect of muddemal pertaining to other types of cases. Perusal of this Entry No.1 in part 6 of the muddemal (902)APEALNo.2942012(J) registrar found with the record shows that subsequently, the muddemal was handed over to the carrier constable P.W.No.5 [ENTITY] vide Entry (Exhibit 65). This entry is got proved by the defence by cross-examining P.W.No.5 [ENTITY] - carrier constable.
19 It is thus established from trustworthy and cogent evidence of P.W.No.1 [ENTITY], P.W.No.3 [ENTITY] and P.W.No.6 [ENTITY] API that in between 8.25 p.m. to 8.55 p.m. of 16/01/2010, the appellant/accused was found to be in possession of contraband weighing 2 kg. 100 gms. at Ankli toll naka of Udgaon village. Evidence of P.W.No.1 [ENTITY], P.W.No.2 [ENTITY] and P.W.No.6 [ENTITY] give further corroboration to evidence of P.W.No.3 [ENTITY] and P.W.No.4 [ENTITY] goldsmith. Evidence of P.W.No.3 [ENTITY] shows that [ENTITY], on receipt of telephonic message from P.W.No.6 [ENTITY] had directed him to go the spot with sealing material as well as weighing scale and, therefore, he proceeded to the spot by taking with him P.W.No.4 [ENTITY] - goldsmith who was owning a electronic weighing scale. Evidence of P.W.No.3 [ENTITY] shows that he had carried necessary sealing material. Evidence of P.W.No.4 [ENTITY] also shows that on request of P.W.No.3 [ENTITY] at about 9.15 p.m. of 16/01/2010, he took weighing scale from his (902)APEALNo.2942012(J) shop and accompanied him to the spot. P.W.No.4 [ENTITY] testified that he weighed ganja at Udgaon toll naka and found it to be weighing 2 kg. 100 gms. This witness deposed about drawing samples from the seized muddemal.
20 P.W.No.5 [ENTITY] is the carrier constable. His evidence shows that he took the muddemal in the instant case and carried it to the Forensic Laboratory at Pune. His signature for token of acceptance of muddemal is found in muddemal register vide Entry No.65. Evidence of this witness shows that muddemal was delivered in sealed condition to the Forensic Laboratory. Exhibit 68 is the report of the chemical analysis of the seized muddemal. This report shows that the ganja which was indicated in the Muddemal at Exh.1 sent for chemical analysis by Jaysingpur Police.
21 All this evidence adduced by the prosecution unerringly points out that the appellant/accused was found to be in possession of ganja weighing 2 kg. 100 gms. in the intervening hours of 16/01/2010 at Ankli toll naka of Udgaon village.
22 Evidence on record shows that police party had no reason to believe or it was not having prior information that during the course of nakabandi they would come across a person carrying narcotic drugs. The recovery was a chance recovery. In (902)APEALNo.2942012(J) the matter of State of Himachal Pradesh v. [ENTITY] reported in (2014) 4 Supreme Court Cases 780, it is held thus :
"20 We are not in agreement with the view of the High Court that since the police officers had a positive suspicion that [ENTITY] was carrying some contraband, therefore, it could be said or assumed that they had reason to believe or prior information that he was carrying charas or some other narcotic substance and so, before his personal or body search was conducted, the provisions of [SECTION] of the Act ought to have been complied with. The recovery of charas on the body or personal search of [ENTITY] was clearly a chance recovery and, in view of [PRECEDENT], it was not necessary for the police officers to comply with the provisions of [SECTION] of the Act."
23 In the matter of [PRECEDENT], it is held thus :
"On its plain reading, [SECTION] 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] of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS (902)APEALNo.2942012(J) Act is also recovered, the requirements of [SECTION] of the Act are not attracted."
It is thus clear that in case of chance recovery requirements of [SECTION] of the [ACT] are not attracted.
24 The learned Advocate for the appellant/accused placed reliance on Judgment in the matter of [ENTITY] v State, Panji, Goa reported in (1998) 8 Supreme Court Cases 655 and State of Rajasthan v [ENTITY] reported in (2005) 3 Supreme Court Cases 59. The matter of [ENTITY] (supra) was in respect of compliance of [SECTION] and [SECTION] of the [ACT]. It was in respect of personal search of the accused. The matter of [ENTITY] (supra) was in respect of absence of link evidence. Such is not the case in hand. Hence, both these Judgments are not applicable to the facts of the case in hand.
25 Moreover, the case in hand is not a case of personal search. Contraband was not found on person of the appellant/accused. [SECTION] of the [ACT] is applicable only where search of the person is involved and said provision is not only attracted where no search of person is involved. Search and recovery from a bag, briefcase or container etc does not come within the ambit of [SECTION] of the [ACT]. Valuable reference can be added to this proposition from the Judgment of the Honourable Apex Court in [PRECEDENT], Jarnail Singh v. State of Punjab (902)APEALNo.2942012(J) reported in [PRECEDENT], [PRECEDENT] and [PRECEDENT].
26 Even otherwise, the defence itself has brought on record from cross-examination of P.W.No.1 [ENTITY] ASI and P.W.No.2 [ENTITY] that there was communication of right to the appellant/accused to get himself searched in presence of Gazetted Officer though this was not a mandatory requirement in the facts of the instant case. Hence, there is no question of non- compliance of provision of [SECTION] of the [ACT] in the case in hand.
27 In the result, no lacuna can be found in conviction of the appellant/accused in respect of the alleged offences. The quantum of sentence imposed on him is also in pursuant to the provisions of the [ACT] and the same cannot be held to be disproportionate to the facts of the case in hand.
28 In the result, the appeal is devoid of substance and the same is dismissed.
29 In view of disposal of this appeal, Criminal Applications bearing [CASE NUMBER] also stand disposed of.
([ENTITY] J.)