s IN THE COURT OB* CHHATT_IS©ARH AT BILASPUR C.@. CRIMINAL ^PEAL ^7. .^ . ./2002. j££^^.'tLK APPELLANT. s Arjun fSanwate)S/o Kamesh aged 30 years [T^Ciwfct?^/ village Kologay P.S. Milaipatti ^^-.Mi ^'f{\, j-.^zM^ 'Distt. Shrikukulam Andraparadesh. j RESPONDENT. / . • .<£> <ry^ $ State of Chhattisgarh Through p»s< RajnandgaOHo fn^: CRB4INAL APPEAL UNDER SECTION 3?9-t(2) CRIMINAL PROCEDURE CODE. 1 ^..''•J;;':^^j?^»-.-%%^^;. HT6M COURT 01 A.iminal AWW^ No 793/200Z L^ Arjun Sanwak Vs. State of Chhattisgorh ^irou^h Potice Stotion Rcynand90on O R b ER •5J^<r ^ ^^ \^' i' Postfor 20.12.2005 Sd/- Sunil Kumar Sinha Judge 3c? HI6H COURT OF CHHATTIS6ARH. BILASPUR . Critninal ApDeal No.793/2002 Arjwi Sanwak Vs. State of Chh<itti^<rh through Police Station Rcynand9a>n Present: Ku. Njrupana V<ypai, counsel for the cypellant. Shri &.K. ewalre. Panel Lawyer, for the state. JUD6MENT (20.12.2005) Sunil Kumar Sinha. J, (1) TTiis ap(»alhas been directed agdnst Ihe impugned judgnient dated 02.5.2002 yossed in Special Case No.113/2001 by the S(»cid Jud9e Rc^nand9aon, whereby, the oppellant has been cawicted under section 20(b)(i) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinaft-er referred to as the NDPS Act) and hc^ been sentenced to widergo RJ. for 5 years wd to poy a fine of Rs.5000/-. In default of payraent of fir»,he has been directed to undergo RJ. for one year more. (2) The case of the prosecutlon is that on 24.8.2001, cert-cun infonnotion was received by the Investigating Officer, Ajoy Shankcr Tripathi (P.W.6) about keepin9 of ^arya by the appelltmt. After fulfillin9 the formalities, he cyprehended the appeltant necr Jaistambh, Sevtapcra, Cw^<r9aon and found that the appellant was holding a twg. After other formalities, w*ien the baQ was searched, it was found that in the said bcg he was hmin^ two packets <md in each packet 3 W\oyoms of 6arya was kept. The seizure menio (Ex*P.l2) to this effect was prepared by the investi9ating officer on 24S.2001 at about 17.20 hours and the seized article was sealed at the seizure spot. The first information report wos lodged vide Ex.P.15. It cppecrs that a report dbait -2- ..^ the examination of the seized article was also received vide Ex.P.16, dated 30.8.2001 in which the seized article, sent for examjnation^ was determined to be the ©aryaby the Senior Scientific Officer and the Asst. Chemical examiner of Chemicd Exdanination Urixratory, Raipur and thereafter the charge sheet was filed. (3) On trial, the prosecution exaniined the main witness of seizure namely R<yesh Kum<r (P.W.3). Rcyesh Kumor stated that on the date of seizuro the police informed him that one acciAsed is hwir^ possession of ©aryaand the same is to be recovered, on which he acconiponied the Police ?wtf oa^ went to Joistambh chowk, Sevtapcra, t>ongcr9aon where he saw the ap(^llant holding a ba9 ond on se<rch b€in9made, it wos fourKil that there were two packets of ©aryain the Bag which were seized and sealed by the Police. He signed the seizure memo. Alonyvith him, oro Shabbir Khan (P.W.4) was also there at the time of seizure. The Jearned trial Court, believing the testimony of P.W.3 Rqjiesh Kum<r cnd also believing the testimony of the imestjgattng officer1 Ajay Shankar Tripathi (P.W.6) arrived at a finding that 1+ie appellant was holdin9 the possession of six kilogrcttns of contrabmd, which was proved to fcw GO^Q by the cheniical examiners' report w^ convicted him u/s 20(b)(i) of •l+ie N&PS Act and accordingly sentenced him, as aforementjoned. (4) Relying on the decisions rendered in the matter of £Aw-Vs- State ef M.P.. 2005fl) M.P.H.T. 233 aml Ramo Swmw -Vs- Slalc ttfM.P.. 2005 tl) M.P.H.T. 276. learned couisel for the appdlmt ar9ued thot the appetlait is <m Ad'wasi and is resident of Kologoy, P.S. MilaJputti, Oistt. SrikakulcBn (AP\ and wcss not dble to laiderstand Hindi LangtKqe, thereforCt the entire proceedings under section 50 of the N.D.P.S. Act vitiates and in fact that would amowit to non-compliance of the mandatory (rovisions of Section 50 of the N&PS Act and the appellant sh<Nilcl be acquitted of the diar9es framed agairet him. Alternatively. she argued that the sentence awarded to the appellant is too hcrsh and appropriate sentence dwuld be imposed. _r,; -3- (5) I have heord lewned counsel for Ihe parties o* length and hwe also perused the records of the court betow. So far as the non-compliame of provisions of section 50 of the Act is concerned. Ihe scane would not be attracted in this case. If we 90 throu9h the (wovisions of section 50. it would cypear that it provides for conditions under which search of per-sons ^iall be conducted. Sub-sectionO.) of section 50 provides that when <tny officer duly authorized u/s 42 is about to sewch <my person under Ihe provisions of section 41, section 42 or section 43 he shall, if suc^ person so requires, take such person without wnecessary delay to the necrest 9<xzetted officer of any of the department mentiomd in section 42 or to the neorest Magistrate. This clearly indicates that it only applies in case of a personal search of a person. It does not extend to search of a vd^icle or a contaimr or a 609 or premises. (6) The Supreme Court in the matter of ^W<w Lal arul anotfw -Vs- State of H.P.(2003) 7 S.C.C, -^K^held that the languaee of section 50 is implicitly clear that the search has to be in relation to a person as controsted to search of premises, vehicles or articles. therefore. it is clear thot when a secirch of <rticle like a bag was to be made, it was not necesswy for 1+ie Police Officer to eomply with the provisions of section 50 and in such search and seizire, the trial would not be vitiated for non-compliance of section 50 or for want of proper and effective compliance of wction 50 of the NDPS Act. (7) Learned counsel for Ihe appellont argued thot since the oppeUwit was not knowih9 Hindi, therefore. there was no substantial c<»nplianceof section 50 <ss he could not understand as to what the investigating officer wanted to do and Jn this manner he was not properly apprised of his right conferred u/s 50 ^iving him the option to search beiry made in the p^esenw of a gazetted officer of the Magistrate. As I hwe alrecriy stated ecrlter that since Jt was not a case of personal secrch, therefore, Ihere was no requirement of t<»vto 9ive a notice u/s 50 of the NDPS Act and conviction does not vitiate on G^cwnt of the grounds roteed vide section 50 of the NDPS Act. The next point rdsed by -4-- the learmd cwinsel for the appeltent dbwt the QppeMc»itteirg not acquainted with the Hindi languoge, the scroe can also not be sustained. If we examinc the statement of accused recorded by the triol Court u/s 313 of CrP.C.. it would appear that all the questions |Hjt to the c^pellant wwe (»itin Hindi and the appetlant had not rdsed 1+iis ground that he may not be able to answer the questions as he does not mderstand HirKili. On 'Hw contrwy, 1+ie cypellant has glwn o logicd reply to atl 1+ie questions askcd by 1+ie trtal G<Hrt aml looking to the records of the trial Coirt, it cdainot be sdd thut the ^>pellant was not in a posltion to yrxlerstand Hindi and in this mamer, the entire procwdir^s includlr^ complicnica of ^ction 80 of tfie NWS Act h<s vitioted. This W9ument advanasd by lcarned counsel for the appellant cannot be sustdned on the face of examinatton of the accus^l conducted In Hindl. In the facts and circumstances of thls case, I do not find ary infirmtty in Itie Jud9ment of comiction passed by the cou^belGW and the same is hereby confjrmecl» (8) Now the question about sentcnce comcs for conskieratton. Admlttedly, 1+ie appellmt was faind in possession of six Kilo9rl<mis of @flB\ja which accordir^ to notifjcation No.S.0.1<%5^), dated 19.10.2001, Entry 85 is more than small quantity, but less than conimercial qucurt'ity wid 1+ie pimtehmcnt prescribed under section 20(b)(ii)(B) is R.I. for a term, iriiidt moy cxtend to 10 yecrs arKl with fine which may extend to Rs.l lflA<h. In thc |resent casc, the dypellcnt js in Jail since 25.8.200t and in this manner, he has already undery>ne the sentence for a period of 4 yecrs, 3 monlhs, therefore, In the circumstance, I reduce the sentenee of appellmt from 5 yecrs R.I. to 1+ie sentence already undergwie and I also redwe 1+»e amoimt of fine frwn Rs.5000/- to Rs.3,000/-. If the amount of fine will not be deposited by the appellmt, he shall have to ur^ergo a fwther period of 2 months froni todoy. (9) In the result. 1+te appeal is porl'ly dbwed to tii®extent indicated above. Sd/- Sunil Kumar Sinha Judge