1 Criminal Appeal (SJ) No.182 OF 2009 - - - - Against the judgment of conviction dated 9.1.2009 and order of sentence dated 17.1.2009 passed by Additional Sessions Judge-IX, Patna, in Special Case No. 33 of 2006 under Sections 20(b)(ii)(c) and 25 of the N.D.P.S.Act. - - - - DHARMVEER PRASAD @ DHARMBIR PRASAD son of Bishwanath Praad Chaurasia, resident of Ward No. 15, Koevai Tola, P.O. + Police Station Raxaul, District East Champaran … … Appellant Versus 1. THE STATE OF BIHAR 2. The Union of India through the Department of Directorate of Revenue Intelligence, Regional Unit Arvindayan, Ist Floor( above PNB), Raja Bazar,Bailey Road, Patna … … Respondents For the appellant : Shri Kamlesh Kumar,Adv. For the Union of India: Shri Kumar Priya Ranjan(CGC) - - - - P R E S E N T THE HON'BLE MR. JUSTICE DHARNIDHAR JHA - - - - Dharnidhar Jha,J.- The solitary appellant, namely, Dharmveer Prasad alias Dharmbir Prasad was charged under Sections 20(b)(ii)(c) and 25 of the Narcotic Drugs and Psychotropic Substances Act( „the Act‟ for short) by the learned 9th Additional Sessions Judge, Patna, in Special Case No.33 of 2006. By the judgment dated 9.1.2009 the appellant was found guilty of committing the two offences. The appellant was heard under Section 235 of the Code of Criminal Procedure on 17.1.2009 and was directed to suffer rigorous imprisonment for ten years as also to pay a fine of rupees one lac due to being convicted under Section 20(b)(ii)(c) of 2 the Act. In case of default in making payment of fine, the appellant was directed to undergo rigorous imprisonment for further period of one year. Similar sentences were also inflicted upon the appellant on his conviction under Section 25 of the Act. The sentences were directed to run concurrently. The appellant appeals against the above orders of conviction and sentence passed upon him. 2. The prosecution was launched through the complaint petition filed by the Directorate of Revenue Intelligence, Regional Unit, Patna, alleging that upon a specific information regarding the consignment of Ganja being smuggled into India from Nepal by a Tata Sumo vehicle, bearing registration no. UP-21A-9121, an ambush was laid near Kaurihar Chowk in the early morning of 3.7.2006. On seeing the vehicle coming at 6.30 A.M., the Officers who were deputed on ambush signaled the vehicle to stop but the driver attempted to speed it away dangerously. The vehicle was chased by the complainant and his companion Officers and, ultimately, it was intercepted. The driver attempted to run away by jumping from the vehicle but he was also chased and caught and on enquiry revealed his name. On being questioned on ignoring the signal to stop, 3 the appellant is said to have stated that he thought the Officers of the Directorate of Revenue Intelligence as ante-social elements and, as such, wanted to avoid them. There was a speaker attached to the vehicle and that was directed to be removed which led into a sub-cavity created at the rooftop of the vehicle and on further probe, the cavity was found storing 43 bundles of Ganja. The recovered Ganja on being weighed was found weighing 180 K.Gs. Thereafter, the confirmatory test was carried out so as to satisfying as to whether it was a narcotic substance and the result being positive the same was seized along with the vehicle. The appellant was arrested. 3. The details of address of the appellant as also the correctness of the description of the vehicle as regards its registration number and ownership were verified. An Officer was sent to the house of the appellant and it was reported that the address of the appellant was correct as per his father and it was further reported that nothing incriminating was recovered from the house of the appellant. However, on probing the genuineness of the registration of the vehicle, the Regional Transport Officer, Muradabad, submitted a report through the Deputy Commissioner, Central Excise Division, Muradabad 4 that the registration number UP-21A-9121 was not allotted to any Tata Sumo vehicle, rather it had been allotted to a vehicle which was Narmada Scooter, thus, confirming that the vehicle was carrying a fake registration number which was claimed to be purchased by the appellant from a man in Nepal. The report of the Deputy Commissioner, Revenue Intelligence regarding the fabricated registration number was marked Ext.6 in the case. 4. An application for deputation of a Magistrate for certifying the storage of the seized material was made before the Special Judge, Patna on 5.7.2006 and an order was passed on 7.10.2006 and, accordingly, Shri Bharat Tiwary, Judicial Magistrate, Ist Class, Patna, was deputed to go to the godown of the D.R.I., Patna. Shri Tiwari visited the godown and after verification certified the correctness of the inventory prepared and also verified the correctness of the samples drawn. The compliance reports under the signature of Shri Bharat Tiwary, Judicial Magistrate dated 24.11.2006 and 27.11.2006 have been marked Exts. 7 and 8, respectively. 5. It appears further that samples were drawn in two packets- one for production of the seized article before the court as material 5 exhibit and the other for being dispatched to the Forensic Science Laboratory for chemical analysis. The document(Ext.2) which is Panchnama and runs into four handwritten pages indicates that a particular seal was put on the sealed envelope containing the sampled article for being dispatched to the Govt. Opium & Alkaloid Works, Ghazipur(U.P.) which submitted its report (Ext.5) dated 29.7.2006 reporting that the seized article was Ganja within the meaning of the term as defined by the Act. 6. As may appear from the evidence as also from the contents of the complaint petition, after the appellant being arrested and the packets of Ganja found at the rooftop of the vehicle, the appellant requested the complainant and others to carry out other formalities under law at a safer place and, accordingly, the accused and other persons were brought to Patna Regional Office of the Directorate of Revenue Intelligence where the seizure report Exrt.3 was prepared. The confessional statement Ext.4 of the appellant was also recorded and that was written by Manoj Kumar who was also one of the witnesses to the seizure and who has not been examined along with other seizure witness, namely, Harihar Mahto. After 6 receipt of the report from the Chemical Analyst the complaint petition was filed. 7. The defence of the appellant was that he had falsely been implicated by the Officers of the D.R.I., Patna, as may appear from his statement under Section 313 Cr. P.C. 8. The prosecution examined six witnesses during the course of trial. As just pointed out, two seizure witnesses, one of whom was also the author of the confessional statement of the appellant, Ext.4, were not examined. Out of the six witnesses, P.W.1 was the Inspector of the Central Bureau of Narcotics and was posted on the relevant date in the Regional office of the D.R.I., Patna and he has supported the above facts, as just stated, and has also brought on record the relevant records, i.e., seizure memo and arrest memo as also the letter which was received from the Regional Transport Officer, Muradabad regarding verification of the registration number and ownership of the vehicle Ext. 6/1 besides the two certificates and sampling report submitted by Shri Bharat Tiwary, Judicial Magistrate, Ist Class, Patna. The evidence of P.W.1 has been corroborated by other witnesses on all material aspects of the case. In fact, of the matter. In fact, learned counsel appearing on 7 behalf of the appellant could not, in spite of his best efforts, point out any inconsistency which could be materially affecting the material facts of the prosecution case as regards arrest of the appellant, search of the vehicle and recovery of 180 K.Gs. of Ganja from the cavity which was created at the rooftop of the vehicle. 9. The only contention which was raised before this Court was that the two independent witnesses, like, Manoj Kumar and Harihar Mahto who were witnesses to seizure, one of whom, namely, Manoj Kumar was also the author of Ext.4 the written statement of the appellant, was not turning up or in other words, was not produced before the court below and it was submitted that this Court should draw an adverse inference that they would have not supported the story as contained in the complaint petition if produced for evidence before the trial court. 10. It is true that witnesses, i.e., Manoj Kumar and Harihar Mahto have not been examined but that non-examination is not going to affect the proof of the charge inasmuch as there might be many reasons for the two witnesses not turning up for their evidence. One of the reasons which appears to me is that in spite of the persons associating themselves to some part of the 8 investigation of a criminal case we seldom find someone inclined to come to the witness box so as to supporting the charge for various reasons one of the reasons being lengthy cross-examination and unpleasant questions which are thrown at the witnesses so as to humiliating them. In cases of the present class, the other reason which appears is that the trade of drug peddling having assumed international proportions, is being manned by the persons of high class criminal attitude who never hesitate in doing away with the life of persons who are inclined to give evidence and who may very well do acts which could jeopard the very life and limb of the witnesses. Those could be the reasons among those which could have influenced Manoj Kumar and Harihar Mahto to stay good from the witness box. 11. The witnesses examined on behalf of the prosecution, like, P.Ws. 1,2,4 and 5 have all equivocally supported the story of the prosecution that Tata Sumo vehicle bearing UP-21A-9121 was signaled to stop but it avoided the signal and was attempted to be driven away by the appellant and, ultimately, the vehicle was intercepted on chase from which the appellant attempted to run away, but was caught and, ultimately, the vehicle was found carrying Ganja in the cavity on its rooftop 9 from which 180 K.G. was recovered in 43 packets. The evidence of P.W.1 and P.W. 2 besides P.W. 3 Anil Kero indicates that a Magistrate was deputed by the orders of the Special Judge, Patna and, accordingly, the seized Ganja and its storage was certified and samples were drawn for being sent to the Chemical Analyst for analysis. The relevant records which were submitted along with the complaint petition also indicate that the appellant was arrested as per the arrest memo which is required to be prepared under Section 57 of the Act and the seizure memo was also prepared. The search memo of the person of the appellant was also prepared but that is not of much relevance though it was contended by learned counsel for the appellant that there was violation of the provision of Section 50 of the Act. 12. If one considers the provision of Sections 42,43 and 50 of the Act, then only one could appreciate as to under what condition the compliance of Section 50 of the Act is mandatory. As regards the recovery of any narcotic material from any building, vessel, vehicle, etc, the relevant provision is Section 42 of the Act and when it relates to the search and recovery from a person then it attracts Section 43 of the Act. But, in all the cases, necessary requirement is 10 that there could be a prior information about the commission of the offence by a person being in possession of narcotic material. When it comes to complying with the provision of Section 50 of the Act, in the light of Section 43 of the Act, then it is mandatory that the person who has to be searched is informed about his right of being searched either before a Gazetted Officer or before a Magistrate. Requirement of complying with Section 50 of the Act has recently been highlighted by the Supreme Court in Vijay Singh Chandubhai Jadeja Vs. State of Gujarat reported in 2011(1) P.L.J.R. 100(S.C.) as also in State of Punjab Vs. Baldeo Singh reported in (1999)6 SCC 172. It has been held that there is an obligation upon the officer authorized to search a person to inform that person about his right of being searched either before a Gazetted Officer or a Magistrate. In my considered view, when the mandate is there then it creates a right in a person to be searched to exercise his option of being searched either before a Magistrate or before a Gazetted Officer but when the Officer who is making search and seizure is himself a Gazetted Officer in that case also the mandate of taking the person to be searched either before a Magistrate or a gazetted Officer has to be 11 complied with. As appears from the facts of the case, there was a prior information that the vehicle, like Tata Sumo, was “carrying narcotic material” and was likely to enter into India from Nepal. Thus, the search was not related to the search of a person and, as such, the provision of Section 50 was not required to be complied with. 13. The samples were drawn and the seal which was put on the container of the sampled article appears found tallying with that which was appearing on the container of the sampled article as appears from the report of Government Opium and Alkaloid Woks, Ghazipur(U.P.) Ext.5. The report reads that the sample was received and that was duly sealed and on analysis of the same it was found to be Ganja. The date of occurrence in the present case was 4.7.2006 and the article was sealed on 5.7.2006 and the report was prepared on 29.7.2006. As such, I do not find any abnormal delay in dispatching the substance and analyzing it creating any suspicion in the prosecution case. 14. On perusal of the evidence brought on record, what I find is that the learned trial Judge was considering the evidence properly and was judging it for reaching just conclusion in convicting the appellant of the offence. Yet another circumstance in recording the culpability 12 of the appellant could be had from the fact that the Tata Sumo was bearing registration No. UP-21A- 9121 but on verification the same was reported to be allotted to a Scooter, as may appear from Ext. 6/1 and the evidence of P.Ws.1 and 2. Further circumstance is that on being signaled to stop the appellant attempted to speed away with the vehicle so as to avoiding search of the vehicle by the Officer of the Directorate of Revenue Intelligence. The offence of drug peddling has assumed international proportions and the drug peddler adopt all nefarious means so as to eliminating persons involved in controlling such offence. It is too well known to be pointed out that they hire mercenaries for protection and for clearing any resistance which might be put up in their way during the transportation or the carriage of narcotic material. For that purpose they must use a vehicle which could not be easily traceable to any transport authority. Further, the evidence of P.W.1 indicates that the appellant claimed the vehicle to be of his own on account of being purchased from a man from Nepal whose whereabouts could not be verified on account of the seller of the vehicle being resident of Nepal. 15. In the light of the evidence and circumstances appearing therefrom as discussed by 13 me, I find that the learned trial Judge was definitely justified in reaching the conclusion on proof of the guilt of the appellant and was perfectly justified in passing the sentence upon him. 16. In the result, the appeal appears of no merit and the same is dismissed. ( Dharnidhar Jha, J.) Patna High Court The 10th May, 2011 Kanth/A.F.R.