HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No. 19 of 2003 Smt. Anita ……Appellant Versus State of Uttarakhand …… Respondent Mrs. Nishat Intzar, Amicus Curiae for the appellant. Mr. Prabhakar Joshi, Brief Holder for the State / respondent. JUDGMENT Hon’ble J.C.S. Rawat, J. This appeal has been preferred against the judgment and order dated 05/12/2002 passed by Special Judge/ N.D.P.S. Act, Dehradun in Sessions Trial No. 29 of 2000, State Vs. Smt. Anita whereby the appellant has been convicted & sentenced u/s 8/20 Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as Act, 1985) & sentenced to undergo rigorous imprisonment for ten years and a fine of 1,00,000/-. In default of payment of fine, the appellant shall further undergo rigorous imprisonment for one year. 2. Brief facts for the disposal of this jail appeal are that S.O. Chandra Pal Singh was on law and order duty in his circle with police personnels. When they were going towards the Yamuna Bridge, he received an information from the in that a man and a woman having charas are coming to their opposite side on the Yamuna River road and they are going towards Vikas Nagar after crossing the Yamuna river. On receiving this information, he called former Gram Pradhan Bachan Singh to accompany him as a witness for the said search and seizure. He also enquired from the ladies who were going on the road or were available near the place to be the witness, but none of the lady came forward to accompany them and become a witness. Then, S.O Chandra Pal Singh called a lady constable Manju Chaudhary from a fare of Barwala. When the lady constable Manju Chaudhary reached to S.O. Chandra Pal Singh all of them took their search and thereafter proceeded towards the place where the informer had informed them about the arrival of the co- accused and the appellant. The entire police raiding party concealed themselves behind the bushes near the field of Bhaktumali. In the meantime, they saw two persons coming on the road, out of which, one was lady. The informer informed the raiding party that they are the persons who are having charas in their possession. When the appellant and the other co-accused persons reached near the bushes, they apprehended them and they were informed about their right to be searched by the Gazetted Officer or by the Magistrate. The accused-appellant and the co-accused stated that they would give their search to the police party. Thereupon, S.O. Chandra Pal Singh conducted the search of co-accused, who stated his name as Harak Bahadur, and charas was recovered from his possession. The lady constable Manju Chaudhary, in presence of S.O. Chandra Pal Singh, made search of the appellant and 1.500 gram charas was recovered from her possession which was kept by her in a bag and the bag was tied by the appellant with her body. The police party prepared the search memo at the place of occurrence and the accused appellant were apprehended at the spot. Thereafter, the appellant and the co-accused were taken to the police station where the report was lodged and the seized articles were deposited in the police station. The matter was investigated by the police and two separate chargesheets were submitted under Section 8/20 of the Act, 1985 against the appellant as well as the co-accused. 3. After submission of chargesheet, the accused was committed to the court of Sessions for trial and the trial court framed charge u/s 8/20 of Act, 1985 against the accused/appellant. The accused denied the charge levelled against her and claimed his trial. 4. It is also pertinent to mention here that during the pendency of the trial, Harak Bahadur had died as such trial against him stands abated. 5. The prosecution in support of its case examined Chandra Pal Singh PW1. He is S.O. Police Station, Kalsi. Bachan Singh PW2 is the former Gram Pradhan and an independent witness. Manju Chaudhary PW3 is the lady Constable who made search in presence of Chandra Pal Singh PW1 of the appellant. These witnesses have stated the entire story how the accused were arrested and what was recovered from their possession. They have categorically stated that 1.500 gram of Charas was recovered from the possession of the appellant. The prosecution also adduced the evidence of constable Virendra Singh PW4 who has written the report and GD by which the case was registered against the accused. He has also proved the Malkhana register. He has stated that the seized articles were received by him and it was kept in the Malkhana. The seals and the said mal was intact during his custody. The prosecution also adduced the evidence of Ali Mohammad PW5 who is said to be a person who brought the weight machine to weigh the charas at the place of incident but he was declared hostile later on. Constable Promod Kumar PW7 took the sample of the seized article from the Chief Judicial Magistrate to the public analyst at Agra for chemical examination. Virendra Singh PW6 is the Investigating Officer of this case. 6. The accused-appellant was examined u/s 313 Cr.P.C. and he has pleaded not guilty to the offence. The appellant has stated that she was going from a temple and no recovery was made from her possession. The police have obtained her thumb impression on the papers forcibly and she has been falsely implicated in this case. She did not adduce any evidence in support of her defence. 7. The learned Special Judge/Sessions Judge, after appreciation of the evidence and hearing the parties convicted the appellant and sentenced her as indicated above. 8. I have heard the learned counsel for the parties and perused the record. 9. All the three witnesses namely, S.O. Chandra Pal Singh PW1, Bachan Singh PW2 and Constable Manju Chaudhary PW3 have categorically stated in their statements that the police party after receiving the information, called former Gram Pradhan Bachan Singh PW2 and Constable Manju Chaudhary PW3 on the information of the informant that the appellant alongwith a co-accused is going to Vikas Nagar from the Yamuna River road. After making search of each other, they reached near the place where these persons were expected to come. The raiding party concealed themselves behind the bushes. In the meanwhile, the appellant and the co-accused came there and they were apprehended by the raiding party. They were informed about their right to be searched by the Magistrate or the Gazetted Officer. The appellant and the co-accused stated to S.O. Chandra Pal Singh PW1 that they may take their search. The appellant and the co-accused did not want to be searched in presence of the Gazetted Officer or the Magistrate on being apprehended. The search of the co- accused was made by the S.O. Chandra Pal Singh PW1 whereas search of the appellant was made by Constable Manju Chaudhary PW3 in presence of the witnesses. During the search of the appellant, 1.500 gram charas was recovered from her possession. Thereafter, the furd was prepared and they were taken to the police station where the accused and the recovered articles were deposited at the police station. After going through the entire evidence, the learned trial court has found the evidence of the witnesses to be credible and cogent. Learned counsel for the Amicus Curiae attempted to say that the evidence of the witnesses is not credible and cogent due to contradictions pointed out by the counsel. The learned Trial Court did not find favour to the said plea and observed that the evidence was recorded after 2 years so minor variations are bound to creep in the testimony of the truthful witnesses. Contradictions, which I have noticed during the perusal of the evidence, I do not find any material variations in the testimony of the eyewitnesses. These witnesses have been cross-examined at length but the defence could not elicit anything to discredit the testimony of the witnesses. The testimony of police witnesses is further corroborated by an independent witness namely Bachan Singh PW2 who happens to be the former Gram Pradhan of the village. The defence could not show me any enmity to Bachan Singh PW2 or police witnesses to the appellant, as such, witnesses had no animosity to falsely implicate the appellant. 10. Mrs. Nishat Intzar, the learned Amicus Curiae contended that no independent lady witness was taken while making search of the appellant during the recovery of charas from her possession. It is a the case of the prosecution right from the recovery to the trial that the police made every effort to collect the lady witnesses from the nearby places but failed to do so. The police raiding party could only get Bachan Singh PW2, former Gram Pradhan as an independent witness. This fact has been incorporated in the recovery memo which was prepared at the spot. Thereafter, S.O. Chandra Pal Singh PW1 and Bachan Singh PW2 have also stated in their evidence about this fact. This fact remained credible and cogent during the cross-examination. If the police could not get the lady witnesses then it was the bounden duty of the police who had received the information that the appellant was carrying the charas to immediately conduct the raid even without the lady witnesses. I do not find any force in the submission of the learned Amicus Curiae. 11. Learned Amicus Curiae further contended that when the appellant was taken to the police station, no fard recovery memo was found in her possession at that time. It was further contended that in absence of fard recovery memo, the recovery becomes doubtful. The learned Brief Holder refuted the contention. It is pertinent to mention here that the appellant has stated in her statement recorded u/s 313 Cr.P.C. that her signature or thumb impression were obtained on the papers forcibly at the police station. It is not necessary that the said fard would be recovered from her possession at the police station while lodging her in the lockup. There was an intervening time in which the said document can be torn off and can be thrown by the appellant herself. If the evidence is credible and cogent only this fact would not disbelieve the reliable and credible evidence of the witnesses. 12. It was further contended that at the time of the recovery, no independent witness was taken. While advancing this argument, the learned Amicus Curiae have forgotten that Bachan Singh PW2, former Gram Pradhan was taken with the police party as an independent witness. This argument is misconceived. 13. The learned Amicus Curiae further contended that the identity of the seized goods has not been established by the prosecution. The learned Brief Holder appearing for the State refuted the contention. It is in the evidence of S.O. Chandra Pal Singh PW1 that he prepared the recovery memo at the place of the incident and out of 1.500 gram charas, 100 gram charas was taken separately from the bulk and it was sealed in a separate bundle for being sent it to the Chemical Examiner for its chemical examination. He has further stated that the said articles were in his possession and he handed over it to malkhana Moharrir Constable Virendra Singh PW4 at the police station where Const. Virendra Singh PW4 has deposited the same in his malkhana. He produced the malkhana register and he has further stated that the mal which was given in his possession was kept in his custody intact. Thus, the mal was produced before the Magistrate and the Magistrate has sent it to the chemical examiner. It is further established from the evidence of Promod Kumar PW7 that he delivered the sample of the seized articles which was taken from appellant to Chemical Examiner and delivered it to Chemical Examiner. It was emphasized that the said mal was taken by him on 16.03.2000 and it was produced before the Magistrate on 23.03.2000. The said mal was received by the Chemical Examiner on 31.03.2000. There was inordinate delay in taking the said article. It is established by the prosecution that the said seized articles were sent through C.J.M. by his seal and it was received with the same seal at the Chemical Examiner. It cannot be held that there was any manipulation in the said articles by the police constable. 14. In view of the aforesaid reasons, I hold that the prosecution has established the guilt beyond reasonable doubt against the accused/appellant. I find that the learned trial court has rightly convicted and sentenced the accused/appellant and there is no infirmity in the impugned judgment and order passed by the learned trial court. The accused-appellant is liable to be convicted and sentenced as awarded by the trial court. Hence, the appeal is liable to be dismissed and is hereby dismissed. 15. Let the lower court record be sent back to the court concerned for compliance. (J.C.S.Rawat, J.) Dated 26th March, 2008 Shiv/V.K.