1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 04 of 2010 Jagat Singh S/o Andu R/o Atal Tehsil Tyuni District Dehradun …....... Appellant(In jail) Versus State of Uttarakhand ……….Respondent Shri T.P.S. Takuli, Advocate, ( Amicus Curiae), present for the appellant Shri S.S.Adhikari, A.G.A., present for the State. Hon’ble Prafulla C. Pant, J. This appeal, received through Superintendent District Jail Dehradun, is directed against the judgment and order dated 2 15.01.2010/19.01.2010, passed by Special Judge, (N.D.P.S. Act )/Additional Sessions Judge/ IVth Fast Track Court Dehradun, in Special Sessions Trial No. 30 of 2006, whereby said court has convicted the accused/appellant Jagat Singh under section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985, (for short N.D.P.S. Act), and sentenced him to rigorous imprisonment for a period of ten years and directed to pay fine of ` one lac. The trial court has further directed that in default of payment of fine the convict shall undergo simple imprisonment for a period of two years. (2) Heard learned Amicus Curiae for the appellant and learned A.G.A., for the State. (3) Prosecution story, in brief, is that on 28.05.2006, on receiving information that some person is coming with contraband item from Tyuni to Kalsi, a team of Special Task Force consisting of Sub Inspector Ved Prakash Thapliyal (PW1), Sub Inspector Davender Singh (PW2), Head Constable Bhawan Singh with 3 Constable Nagesh Pal, Constables Vijender Singh, Mahender Singh and Harshvardhan alongwith the driver Dhanveer Patwal proceeded in a vehicle bearing registration no. UA07 L- 1777 after making necessary entry in the General Diary. When the team reached near Chakbhool, a person was seen coming with plastic bag. Suspecting that he is carrying contraband, (as suggested by the informer) he was intercepted. PW5 Dinesh Chander Singh Rawat Deputy Superintendent of Police (a Gazetted Officer) was also reached at the spot on receiving information from the aforesaid police party. After compliance of section 50 of N.D.P.S Act, was made and search of person intercepted was made, and it was found that he was carrying 9.300 kilograms of Cannabis (CHARAS). After taking 100 grams out of the contraband item was sealed in different pack and remaining more than 9 kilogram was sealed separately. A recovery memo was prepared at the spot. A First Information Report was got registered by Sub Inspector Ved Prakash Thapliyal (PW1) at police station Kalsi on 28.05.2006, at 9.00 p.m which 4 was registered as crime no. 22 of 2006 against accused/appellant Jagat Singh relating to offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances, Act, 1985. PW6 Inspector Bhan Singh investigated the crime, and after completion of investigation submitted the charge sheet against the accused for his trial in respect of offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances, Act, 1985. (4) After result of examination from forensic laboratory was received that the contraband item was found to be Cannabis (CHARAS). The special court (N.D.P.S. Act ) after hearing the parties on 05.10.2006 framed charge of offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances, Act, 1985. The accused Jagat Singh pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Sub Inspector Ved Prakash Thapliyal, PW2 Davender Singh Rawat, PW3 Constable Ikbal Singh, PW4 Constable Ravinder Singh, PW5 Dinesh Chander Singh Rawat 5 Deputy Superintendent of Police, and PW6 Inspector Bhan Singh (Investigating Officer). Oral and documentary evidence was put to the accused, under section 313 Cr.P.C., in reply to which he alleged that the allegation against him is false. However, no evidence in defence was adduced. The trial court after hearing the parties, found the accused Jagat Singh guilty of charge of offence punishable under section 8/20 of Narcotic Drugs and Psychotropic Substances, Act. After hearing on sentence, the trial court sentenced the convict Jagat Singh to imprisonment for a period of ten years and also directed to pay fine of ` oone lac. Aggrieved by said judgment and order dated 15.01.2010/19.01.2010, passed by Special Judge, (N.D.P.S)/Additional Sessions Judge/IVth Fast Track Court Dehradun, in Sessions Trial No. 30 of 2006, this appeal was got sent by the convict through the Superintendent of District Jail, Dehradun. (5) Since the appellant was not represented through any counsel, Shri T.P.S. Takuli, Advocate 6 was appointed as Amicus Curiae to assist the court. (6) Learned Amicus Curiae submitted before this court that there is no public witness of the recovery, as such, the evidence adduced by the prosecution witnesses, who are police men, should not be relied. I have gone through the documentary and oral evidence on record and found that it has nowhere come on the record that at the time when the accused was intercepted by police there were public men witnessing the incident. As such, there was no occasion on the part of the policemen to get the recovery memo signed from the witnesses of public. Otherwise, also normally the public is reluctant to be witness in such kind of cases. (7) Attention of this court is drawn to the contradictions found in the statements of prosecution witnesses. Reference is made to the statement of PW1 Sub Inspector Ved Prakash Thapliyal and PW5 Dinesh Chander Singh Rawat. PW1 Sub Inspector Ved prakash 7 Thapliyal has stated that the weights brought by the constable were of 5 kilogram, 2 kilogram, 1 kilogram, half kilogram, 200 gram and 100 gram. On the other hand (PW5) Dinesh Singh Rawat has stated that the weights of kilogram, 100 gram and 50 gram etc. were brought. In the opinion of this court such contradictions are minor in nature and on its basis the prosecution story can not be disbelieved. It is pertinent to mention here the quantity of Cannabis said to have been recovered from the accused is nine times more than the minimum commercial quantity, which could not be a planted one. Another contradiction pointed out by learned Amicus Curiae is that in the statement of PW1 Ved Prakash Thapliyal, 18.05 hours is said to be the time of arrest, while in the recovery memo it is mentioned as 18.45 hours. The statement made by the witness appears to have been made on 19.11.2007, and the incident relates to 28.05.2006, as such after a period of more than one year, a minor discrepancy in the time of arrest, can not be said to be material to doubt the prosecution story, it is pointed out that when the recovery is made PW5 8 Deputy Superintendent of Police Dinesh Singh Rawat ( a Gazetted Officer) was called, and this fact itself indicates that prosecution story can not be doubted lightly particularly in view of all the fact that the quantity of Cannabis is 9.300 kilograms. (8) In the above circumstances, having considered submissions of learned counsel for the parties, and after going through the lower court record, this court does not find any illegality or wrong appreciation of evidence made by the trial court. (9) Therefore, the conviction and sentence recorded by the trial court requires no interference. Accordingly, the appeal is dismissed. Registry is directed to inform the appellant through Superintendent of Jail concerned about the fate of the appeal. Lower court record be sent back. (Prafulla C. Pant, J.) 18.11.2011 Nahid