Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 53 of 2002 Vishnu Prashad S/o Rukmagat Bhandari R/o Village Palla Gate, Police Station Reedi, District Gularmi, Country Nepal …………Appellant Versus State ………Respondent Ms. Pushpa Joshi, Advocate, for the appellant. A.G.A., for the State. & Criminal Appeal No. 54 of 2002 Prem Bahadur S/o Ran Bahadur R/o Village Veer Vas, Police Station Reedi, District Gularmi, Country Nepal …………Appellant Versus State ………Respondent Mr. Vinod Sharma, Advocate, for the appellant. A.G.A., for the State. Hon’ble Prafulla C. Pant, J. Hon’ble B.S. Verma, J. [Per- Hon’ble Prafulla C. Pant, J.] 2 These two appeals, preferred under Section 374 of Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), are directed against the judgment and order dated 12.02.2002, passed by Additional Sessions Judge / Ist Fast Track Court, Kashipur, District Udham Singh Nagar, in Sessions Trial No. 146 of 2000 and Sessions Trial No. 147 of 2000, whereby both the accused / appellants, namely, Vishnu Prashad and Prem Bahadur have been convicted under Section 20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as N.D.P.S. Act), and each one of the convicts has been sentenced to rigorous imprisonment for a period of 15 years and directed to pay fine of Rs.1,50,000/-, in default of payment of which the defaulter has to further undergo rigorous imprisonment for a period of five years. (2) Heard learned counsel for the parties and perused the Lower Court Record. (3) Prosecution story in brief is that on 07.08.2000, Sub Inspector Om Prakash (P.W.1), along with Head Constable Satya Pal Singh (P.W.4), Constable Rohtash Singh, Constable Omveer Singh, Constable Rajendra Singh, Constable Riyasat Ali and Constable Driver Surjeet Singh, were on duty at about 13.30 hours when they saw two persons coming on foot from the side 3 of Nepal and passing through Check Post Banbasha, Police Station Banbasha, an Police Out Post at the international border on Indian side. The Police as usual checked the persons passing through as to whether they were smuggling any item through the international border or not. They were found carrying some material in their bags. On enquiry as to what was contained in the bags, the two persons told that they are carrying household goods. On suspicion the two were directed by the Police to disclose their names. One of them disclosed his name as Vishnu Prashad (appellant in Criminal Appeal No. 53 of 2002) and another disclosed his name as Prem Bahadur (appellant in Criminal Appeal No. 54 of 2002). When their bags were checked, Police found that there was a material having smell of CHARAS (Cannabis). On this, the Police told the two intercepted persons that their search could be made before the Gazetted Officer, if they so like. On this, the two persons (present appellants) told that since they have been caught, they did not want to be searched in the presence of the Gazetted Officer. They prayed for being pardoned with folded hands. They told the Police that it could take search of their person and the material with them. On this, the Police took the bags containing material (CHARAS) from them and got it weighed. Vishnu Prashad (appellant in Criminal Appeal No. 53 of 2002) was found in possession of 4 2.200 Kg (2 Kilogram, 200 gram), and Prem Bahadur (appellant in Criminal Appeal No. 54 of 2002) was found in possession of CHARAS weighing 1.100 Kg (1 Kilogram, 100 gram). The material was got sealed by the Police, and recovery memo (Ext.A-3) was prepared at the spot. The Police also took the consent notes (Ext.A-1 and Ext.A-2) in writing from Prem Bahadur and Vishnu Prashad, in which they gave in writing that the Police may search them. After the recovered items were seized by the Police, the samples were taken from the recovered items and separately sealed, and through letters Ext.A-4 and Ext.A-5, same were got sent for chemical analysis to the Forensic Laboratory, Agra. Meanwhile, on the basis of recovery memo, First Information Report was got lodged against the two accused / appellants-Prem Bahadur and Vishnu Prashad after their arrest on the spot, which was registered as Crime No. 103 of 2000 and Crime No. 104 of 2000 at Police Station Banbasha, where a Check First Information Report (Ext.A-13) was prepared and investigation was conducted by Sub Inspector Shishu Pal Singh (P.W.3). After reports (Ext.A-14 and Ext.A-15) are received from the Forensic Laboratory, confirming that the two samples contained Cannabis (CHARAS), charge sheets (Ext.A-8 and Ext.A-9) were filed by the Investigating Officer against accused / appellants Prem Bahadur and Vishnu Prashad respectively before Sessions Judge, 5 Udham Singh Nagar for their trial in respect of offence punishable under Section 18/20 of N.D.P.S. Act 1985. The trial court registered the two charge sheets as Sessions Trial No. 146 of 2000 (against accused Prem Bahadur) and Sessions Trial No. 147 of 2000 (against accused Vishnu Prashad). After hearing the parties in aforesaid two trials, learned Additional Sessions Judge, Kashipur, to whom the cases were transferred, framed separate charge of offence punishable under Section 20 of N.D.P.S. Act, 1985, against accused / appellants Prem Bahadur and Vishnu Prashad on 15.03.2001. Both pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W.1 Sub Inspector Om Prakash, P.W.2 Head Constable Satya Pal Singh, P.W.3 Sub Inspector Shishu Pal Singh, Investigating Officer, P.W.4 Constable Satya Pal, and P.W.5 Head Constable Gopal Ram. The oral and documentary evidence was put to the two accused separately under Section 313 Cr.P.C., in reply to which they alleged the prosecution evidence was false. However, no evidence in defence was adduced by them. After hearing the parties, the trial court found both of them guilty of charge of offence punishable under Section 20 of N.D.P.S. Act, 1985, and after hearing the parties, sentenced each of the convicts to rigorous imprisonment for a period of 15 years and also directed to each one of them to pay fine of Rs.1,50,000/-. It is further directed 6 by the trial court that in default of payment of fine the defaulter convict shall undergo further rigorous imprisonment for a period of five years. Aggrieved by said common judgment and order dated 12.02.2002, passed in Sessions Trial No. 146 of 2000 and Sessions Trial No. 147 of 2000, the convicts have preferred these appeals. The appeal of Vishnu Prashad (in jail) is registered as Criminal Appeal No. 53 of 2002 and appeal of Prem Bahadur is registered as Criminal Appeal No. 54 of 2000. (4) Before further discussions, this Court thinks it just and proper to mention the relevant provisions of law applicable to this case. Sub clause (ii) of clause (b) of Section 20 of N.D.P.S. Act, provides that whoever, in contravention of any provision of the Act or Rule or condition of licence granted there-under produces, manufactures, sells, purchases, transports, imports inter-State, exports inter-States or uses cannabis (other than GANJA) shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh and which may extend to two lakh. It is also pertinent to mention here that Section 50 of the Act provides the procedure of search of persons in connection with the offence punishable under the Act. It provides that any officer who is authorized under Section 42 is 7 allowed to search a person, and he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any department mentioned in Section 42 or to the nearest Magistrate. Section 55 of the Act requires Police to take charge of the seized articles and keep it in the safe custody pending the orders of the Magistrate and further provides that the seized articles and samples taken there from at the time of seizure shall be kept in the sealed conditions. Section 57 of the Act requires that whenever any person is arrested or seizure is made under the Act the report in respect of the arrest or seizure shall be made within 48 hours. (5) Now we come to the oral evidence and documentary evidence adduced on behalf of the prosecution to prove the charge of offence punishable under Section 20 of N.D.P.S. Act, 1985, against accused / appellants Vishnu Prashad and Prem Bahadur. (6) P.W.1 Sub Inspector Om Prakash has stated that on 07.08.2000, he was in charge Inspector at Border Police Out Post Banbasha and was on checking duty with Head Constable Satya Pal, Constable Rohtash Singh, Constable Omveer Singh, Constable Rajendra Singh, Constable Riyasat Ali and Constable Driver Surjeet Singh. 8 The police saw two persons coming on the bank of Barrage over the bridge from the side of Nepal on foot. Head Constable Satya Pal Singh inspected the two and asked them as to the items in the bags, which were being carried by them. The two told that they were taking household goods in the bags. The Police Party asked the two persons to disclose their names. One of the two disclosed his name as Prem Bahadur (appellant in Criminal Appeal No. 54 of 2002) and another disclosed his name as Vishnu Prashad (appellant in Criminal Appeal No. 53 of 2002). On smelling the bags, the Police found that the items being carried in the bags of the two was Cannabis (CHARAS). On this, Police told the two (accused / appellants) that if they require they may be taken to Gazetted Officer for their search. On this the two told that since they have been caught as such their search may be taken by the police. On this, police got the consent letters written at the spot. P.W.1 Om Prakash has proved consent note (Ext.A-1) written by accused / appellant Prem Bahadur and consent note (Ext.A- 2) written by the Vishnu Prashad. The witness has further stated that after seizure of the bags, recovery memo (Ext.A-3) was prepared at the spot which was signed by the above mentioned members of the Police team and also by the accused / appellants. P.W.1 Om Prakash has further stated that before the material contained in bags was sealed it was got weighed. From the bags 9 carried by the accused / appellant Prem Bahadur the material being transported was found weighing 1.100 Kg., and the material being transported by Vishnu Prashad was found weighing 2.200 Kg. The witness has further stated that the items were sealed after taking sample of 25 grams from each of the bag. P.W.1 Om Prakash further stated that this seizure was made on 13.30 hours. He further told that report was given of the incident, by wireless set to Superintendent Of Police and Circle Officer of the area. It is also stated by P.W.1 Om Prakash that information was also sent to the villages of the accused / appellants through one Kishan Prashad Bhandari about their arrest, and seizure. Lastly, it is stated by this witness in his examination in chief that no public witness was prepared to witness the proceedings. In the cross examination made on behalf of accused / appellants nothing has come out in the testimony of P.W.1 Om Prakash, which creates doubt as to the truthfulness of the story narrated by him. (7) P.W.2 Head Constable Satya Pal Singh has corroborated the prosecution story as narrated by P.W.1 Om Prakash. For brevity this Court does not think it necessary to repeat the entire story again. (8) P.W.5 Head Constable Gopal Ram has stated that on the basis of recovery memo (Ext.A-3) 10 Crime No. 103 of 2000 and Crime No. 104 of 2000 were registered against the two accused / appellants and Check First Information Report was prepared. This witness has further proved the entry made in the General Diary at serial No. 22 in this regard (copy of which is Ext.A-14). (9) P.W.4 Constable Satya Pal has stated that the sealed items relating to Crime No. 103 of 2000 and Crime No. 104 of 2000, along with sealed samples was handed over to him on 08.08.2000 along with letters Ext.A-4 and Ext.A-5 for being taken to Forensic Laboratory, Agra. The witness has further proved that necessary entry was made in the General Diary, at serial No. 11 on 08.08.2000 (copy of which is annexure A-10). The witness further told that he took the sealed samples for chemical analysis to Agra. He has further stated that he handed over the sealed packets at Forensic Laboratory, Agra, in the same sealed condition as he received from the court of Sessions Judge. The reports of the Chemical Analyst in respect of accused / appellant Prem Bahadur and accused / appellant Vishnu Prashad are Ext.A-14 and Ext.A- 15 on the record respectively, which also disclose that the seals were found intact and tallied. In both the reports the Joint Director of Forensic Laboratory has reported that item contained in the samples was found to be CHARAS (Cannabis). 11 (10) Learned counsel for the appellants argued that Constable Satya Pal (P.W.4) took the items on 11.08.2000, while delivery was made in Agra on 18.08.2000, as such this unreasonable time taken by Constable Satya Pal creates doubt as to the fact whether the seals remained intact or not. We do not find any sufficient reason to hold that seals might have been tampered with because the Forensic Laboratory has mentioned that the seals were found intact. Apart from this, P.W.4 Satya Pal at the end of examination in chief has stated that no tampering was made with the items carried in the sealed condition. (11) Learned counsel for the appellants argued that the seal of P.W.1 Om Prakash is said to have been put on the items sealed, but the Forensic Reports show that the seals were of O.B. Singh. We have examined the evidence on record cautiously and found that the letter ‘B’ mentioned in the reports is simply a clerical mistake and it does not create any reasonable doubt as to the truthfulness of the prosecution story, as the seal stated to have been sent was that of Om Prakash. (12) Lastly on behalf of the appellants attention of this Court is drawn to the principle of law laid down in State of Rajasthan Vs. Gurmail Singh, 2005 CRI. L.J. 1746 and it is argued that where it is not proved satisfactorily that the seals were 12 intact and same were put on the samples immediately after seizure, the accused should be acquitted. We have gone through said case law. In our opinion, the facts of the said case are different and in the present case there is ample evidence that the seals put on the samples was tallied as mentioned in the reports (Ext.A-4 and Ext.A-5), and said fact also gets corroboration from the statement of P.W.4 Satya Pal. (13) Smt. Pushpa Joshi, learned counsel for the appellant Vishnu Prashad, and Sri Vinod Sharma, learned counsel for the appellant Prem Bahadur submitted that considering the quantity of the cannabis recovered from the appellants the trial court has awarded the sentence to the convicts more than the necessary. Having considered the facts and circumstances of the case and the quantity recovered from the accused / appellants, we agree with the learned counsel for the appellants that sentencing each of the convicts to rigorous imprisonment for a period of ten years and direction to pay fine of Rs.1,00,000/- would have met the ends of justice. (14) Therefore, we accordingly allow both the appeals partly modifying the sentence. Both the appeals are partly allowed. To the extent of conviction is recorded by the trial court against the accused / appellants, namely Vishnu Prashad and 13 Prem Bahadur, relating to offence punishable under Section 20 N.D.P.S. Act, 1985, their appeals are dismissed, but on the point of sentence both the appeals are allowed. The sentences awarded by the trial court to the extent of rigorous imprisonment for a period of 15 years and to pay fine of Rs.1,50,000/- are set aside. Instead each of the convicts (accused / appellants) is sentenced to rigorous imprisonment for a period of 10 years and each one is further directed to pay fine of Rs.1,00,000/- only. In default of payment of fine, the defaulter convict shall further undergo rigorous imprisonment for a period of two years. The period already spent by the appellants in jail shall be set off out of the sentence awarded by this Court. The Registry is directed to send a copy of this order to the Superintendent of the Jail where accused / appellant Vishnu Prashad is serving out the sentence. Lower Court Record be sent back to make the accused / appellant Prem Bahadur serve out the sentence awarded by this Court. (B.S. Verma, J.) (Prafulla C. Pant, J.) 18.08.2009 NS