Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 338 of 2008 Kuldeep @ Soni … Appellant Versus State …Respondent With Criminal Appeal No. 45 of 2007 Vijendra … Appellant Versus State …Respondent And Criminal Appeal No. 134 of 2007 Ummed Singh … Appellant Versus State …Respondent In CRLA No. 338/2008 & CRLA No. 134/2007: Mrs. Pushpa Joshi, Advocate for the appellants In CRLA No.45/2007: Mr. Lalit Sharma, Advocate with Mr. Rajesh Sharma, Advocate for the appellant Mr. S.S. Adhikari, A.G.A. for the State/respondent Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. Delivered by Hon’ble B.C. Kandpal, J. Since all the three appeals arise out of the same judgment and order and similar question of fact and law is involved, they are being decided by this common judgment. 2- These appeals, preferred under Section 374(2) Cr.P.C., are directed against the judgment and order dated 16.01.2007 passed by Special Judge N.D.P.S./Additional District & Sessions Judge, 2 Dehradun, in S.S.T. Nos. 10/2005 (State vs. Vijendra), 11/2005 (State vs. Kuldeep @ Soni), 12/2005 (State vs. Ummed Singh), whereby accused/appellants Vijendra, Kuldeep and Ummed Singh have been convicted for an offence punishable under Section 8/20 N.D.P.S. Act (for short ‘the Act’) and have been sentenced to undergo rigorous imprisonment for 15 years each and a fine of Rs.1,50,000/- each and in default of payment of fine to further undergo rigorous imprisonment for 3 years each. 3- Prosecution story in brief is that on 24.1.2005 PW-1 Ved Prakash Thapliyal, along with PW-3 Babu Lal and other members of the police force, was on patrolling duty. At 9.00 p.m. when they were returning to the police station, they saw a Maruti Car bearing no. C.H.I.-194 going ahead of police jeep near Durga Mata Temple at Koti Road. The driver was asked to stop his car and when he stopped the car the three persons sitting in the car started running away towards Durga Mata Temple. On this, the police party chased and caught them. The person sitting behind the driver disclosed his name as Vijendra and on being asked about the reason for running away from the spot; he told that he was not having papers of the car. On being taken search of his person on suspicion, the police party found a sticked substance from a pink-coloured polythene bag inside his jacket. On being interrogated about the said article, accused Vijendra told the police party that the same is Charas and its weight is 2 Kg. The person sitting near the driver disclosed his name as Ummed Singh and on being taken search of his person the police party found a 3 black-sticked substance from a white-coloured polythene bag inside his sweater. On being interrogated about the aforesaid article, accused Ummed Singh told the police party that the same is Charas weighing 2 Kg. The third person disclosed his name as Kuldeep @ Somi and when he was searched, a sticked substance was recovered from green-coloured polythene bag inside his sweater and on being interrogated about the said article, accused Kuldeep told the police party that the same is Charas and its weight is 1½ Kg. The recovered contraband was weighed by weights and scales and its weight was found to be 2 Kg., 2 Kg. and 1½ Kg each recovered from the possession of Vijendra, Ummed Singh and Kuldeep respectively. The recovered contraband was taken into possession and accused were sent to the custody. Out of the recovered Charas, 50 gms of Charas from each polythene bags was kept and it was sealed. Recovery memo (Ext.Ka.1) and arrest memo (Ext.Ka.2) were prepared at the spot itself and copies of the same were handed over to the accused after taking their signatures at the end of recovery memo. On the basis of recovery memo Chick F.I.R. (Ext.Ka.4) was prepared and case was registered and entry to this effect was made in the General Diary, corbon copy of which is Ext.Ka.18. The information was sent to accused persons at their houses from police station through information memos (Ext.Ka.3, Ka.6 and Ka.7). The recovered contraband was sent and deposited in the Malkhana of police station, the copy of Malkhana register is Ext.Ka.15 and Ka.16. The investigating officer prepared the site plan (Ext.Ka.5) and sent the recovered contraband to Chemical Examiner vide 4 letters Ext.Ka.19, Ka.20, Ka.21 and the Chemical Examiner submitted his report Ext.Ka.9, Ka.10 and Ka.12. The investigating officer after completion of the investigation submitted charge sheet (Ext.Ka.23, Ka.24,Ka.26) against the accused persons. 4- The learned Sessions Judge framed charge under Section 8/20 N.D.P.S. Act against the accused persons, to which they pleaded not guilty and claimed to be tried. 5- The prosecution, in support of its case, has produced PW-1 S.I. Ved Prakash Thapliyal, PW-2 Dr. S.C. Sharma, PW-3 Babu Lal, PW-4 Santosh Kumar, PW-5 Narain Ram and PW-6 Dinesh Kumar. 6- The statement of the accused under Section 313 Cr.P.C. was recorded. Accused Vijendra in his statement denied the prosecution case, while accused Kuldeep in his statement alleged that he had gone to hills on trip and he was not having papers of vehicle. He has also alleged that he was having only cloths to wear. Accused Ummed Singh in his statement has alleged that he was convicted in a case for imprisonment of three years and there had been a quarrel with the complainant and he has alleged that the cause of quarrel was taking of liquor by them. 7- The learned Additional Sessions Judge/Special Judge N.D.P.S. Act, Dehradun, vide impugned judgment and order dated 16.1.2007 found the accused persons guilty of offence under Section 8/20 N.D.P.S. Act and accordingly convicted and sentenced them to undergo rigorous imprisonment 5 for 15 years each and to pay a fine of Rs.1,50,000/- each and in default of payment of fine to further undergo rigorous imprisonment for 3 years each. 8- Feeling aggrieved by the aforesaid judgment and order, accused Kuldeep has preferred Criminal Appeal No.338/2008, accused Vijendra has preferred Criminal No. 45/2007, while accused Ummed Singh has preferred Criminal Appeal No.134/2007, which have been placed before us for disposal. 9- Heard Mrs. Pushpa Joshi, learned counsel for the appellants-Kuldeep & Ummed Singh, Mr. Lalit Sharma, with Mr. Rajesh Sharma, learned counsel for the appellant-Vijendra, Mr. S.S. Adhikari, learned A.G.A. for the respondent/State and perused the record. 10- PW-1 Ved Prakash Thapliyal S.I. stated on oath before the trial court that on 24.1.2005, he along with along with PW-3 Babu Lal and other members of the police force, was on patrolling duty and at 9.00 p.m. when they were returning to the police station, they saw a Maruti Car bearing no. C.H.I.-194 going ahead of police jeep near Durga Mata Temple at Koti Road. The driver of the car was asked to stop the car and when he stopped the car the three persons sitting in the car started running away towards Durga Mata Temple. On this, the police party became suspicious about their activities and chased them. The police party caught the accused persons and enquired about their names. This witness has further stated that the persons disclosed their names as Vijendra Singh, Ummed 6 Singh and Kuldeep @ Soni. This witness has further stated that on being asked about the reason of their running away, he was told that they were not having papers of the vehicle. On getting suspicious about their activities, the police party took the search of the accused persons and found that accused persons namely Vijendra, Ummed Singh and Kuldeep were in possession of 2 kg of charas, 2 kg of charas and 1½ kg of charas respectively. This witness also stated that the articles were seized and recovery memo (Ext.Ka.1) was prepared at the spot. This eyewitness also proved Chick F.I.R. (Ext.Ka.4) and information memos (Ext.Ka.3, Ka.6 and Ka.7). 11- PW-2 Dr. H.C. Sharma, Assistant Director, Forensic Science Laboratory, Agra, chemically examined items recovered from the possession of the accused persons and found that these items were Charas. This witness has proved his reports (Ext.Ka.9, Ext.Ka.10, Ext.Ka.12), which relate to accused Vijendra, Kuldeep and Ummed Singh respectively. 12- PW-3 Constable Babu Lal, who had also accompanied PW-1 Ved Prakash Thapliyal at the spot, has corroborated the prosecution case in the same manner, as stated by PW-1. 13- PW-4 Constable Santosh Kumar has stated on oath that he deposited the recovered items in Malkhana and made necessary entry to this effect in Malkhana register. This witness has proved photo copies of pages of Malkhana register (Ext.Ka.14, Ka.15, Ka.16). This witness has also stated that he made necessary entry after registering the crime at 7 Serial No. 2 in the General Diary and he proved the same vide Ext.Ka.18. 14- PW-5 Narain Ram, who conducted the investigation, has stated that he got sent the recovered items through constable Dinesh Kumar to Forensic Science Laboratory on 29.1.2005. This witness has proved site plan (Ext.Ka.22) and after obtaining Chemical Examiner’s report, submitted charge sheets (Ext.Ka.23, Ka.24 and Ka.25) against the accused persons. 15- PW-6 Constable Dinesh Kumar has stated on oath that he carried the sample of recovered items to the Forensic Science Laboratory. This witness has also stated that he got handed over the said articles in a sealed condition without any tampering with it by him on the way. 16- All the aforesaid oral and documentary evidence, read with the report of the Chemical Examiner, proves the charge of offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act framed against the accused persons Vijendra, Ummed Singh and Kuldeep. 17- Learned counsel for the appellants has submitted that compliance of Sections 41, 42 and 50 of the N.D.P.S. Act has not been observed in the case. 18- So far as compliance of Section 41 of the Act is concerned, the searching police party had no such information that the accused persons were in 8 possession of psychotropic substance, therefore, it was not expected from the raiding police party that they would observe the compliance of Section 41 of the Act. Likewise, compliance of Section 42 of the Act was not possible, as the recovery was made suddenly and it comes within the category of chance recovery, therefore, there was no occasion to obtain any search order of the superior officer. 19- As regards compliance of Section 50 of the Act, learned counsel for the appellants has submitted that recovery from accused Vijendra might be chance recovery, but in respect of other accused persons Kuldeep and Ummed Singh compliance of Section 50 of the Act should have been made by the searching officer. 20- The submission raised by the learned counsel for the appellants also does not bear any force. When the search of accused Vijendra was made, the police party was not informed that other two accused Kuldeep and Ummed Singh were having any psychotropic substance and recovery of Charas from the possession of these two accused also a chance recovery. Therefore, option of having search of the accused before a Gazetted Officer or a Magistrate could not have been given in the aforesaid facts and circumstances of the case and non-compliance of mandatory provision of the aforesaid Act does not affect the veracity of the case. 21- Learned counsel for the appellants has further submitted that compliance of Section 50(5) of the Act has also not been done in this case. We do not find any force in the submission, as recovery in this 9 case was a chance recovery and illegal Charas in the commercial quantity was found kept in between arms and body of the accused persons in polythene pouches and not from the pockets or the clothes worn by them and the police did not make search of pockets of the jackets and the pants worn by the accused, hence the other belongings of the accused persons kept in their pockets could not be recovered. Therefore, non-compliance of Section 50(5) of the Act does not affect the genuineness of the case. 22- It is also contended on behalf of the appellants that no independent witnesses were taken by the police party and as such, the prosecution story should not have been believed by the trial court. We do not find any substance in this submission also. Had there been no explanation for not taking the public witnesses, we would have agreed with the submission of the learned counsel for the appellants. But, in the present case, there is explanation given by PW-1 Ved Prakash Thapliyal that it was night time and nobody was there at the spot which was the lonely place, therefore no independent witness could be produced as witness of the seizure. The recovery of the contraband from the possession of the accused persons has been fully established from the testimony of the witnesses examined by the prosecution and there is no reason to disbelieve their testimony. 23- For the reasons as stated above, we do not find any sufficient reason to interfere with the conviction and sentence, recorded by the trial court against accused/appellants Vijendra, Kuldeep and Ummed 10 Singh under Section 8/20 N.D.P.S. Act. The appeals lack merit and are liable to be dismissed. 24- Accordingly, appeals are dismissed. The impugned judgment and order dated 16.1.2003 is hereby confirmed. 25- Let a copy of this judgment be placed in the files of CRLA No. 45/2007 and CRLA No.134/2007. (Nirmal Yadav, J.) (B.C. Kandpal, J.) May 06, 2010 SP