‘@T§RT,$F UnruiT‘‘ EILA§?ER Cyimiami Aggeai i§e. 34 6f ZfEG§ Nazeer Ahméd Qiat‘i of Macihya P13616311 Jui‘lgment past for W Sd/4 irendra Msra Juge KG? TEEKIAREE Pi? EL -" Dh ih d 6‘3? €E§E§ATTE$§ARE AT EELA$?U’R EEEE €i§iiRT -F'? ‘LLAE‘IT‘? !Kg Nazem" Ahmsci, Sio Bashir Ahnmd agec‘i abeut 28 VéarS‘ occu§at 11 vegstabl‘: S€il€13 Rio Camp ‘2, 116m Tarn Shop, Police 11 f‘hhnmani, D1511 nnro‘ {CG} ya P11 (18$ 1 im‘ough DiStric’: ““‘a Shn' Ravish Vama, Advacate far fim appe‘iiani. Shri Sagdeap Ygdav, Dv‘ Govt. A “cam for the State. J‘U‘ E f5? ivi E i‘lg-§-2Q0’7_1 f This crimmal a‘ppaal iS dimmed against the judgnmnt of er of sentence datec‘t ’25— 1-‘2006 in NDPS Special fzuuo whereby karma} Spacia‘i Judgo (NEWS Acfj, Burg héS convictofi the F‘E Act) ami senmnoec‘i to 1/52 yoarS ami {1116 of Rs. 18,960] —, in defauh' of paymont of fine to undergo aoc‘iit'ionai RE. for 6 months. z. Case of tho prosocution, i11 brief, to “tat tho Sub mopooto $3 conviction 511161 0rd Caoo No. 5 2G(b){ii){B) of Narcotic DrugS aim Poycho‘u‘opic Subsiemceo Act, (for short horsinaftor refen‘oti to as ND Imdorgo R1 for ‘3 information that 1 ho. has Storeri caillia‘oio Tho 3€Crot information WaS recordot‘i mfomlation about tho Smmrintontlont of Foiice Vida EX P—1‘2,. however Supormtondont of :horeforo, momorau appe‘fiani uiidor Section 8(6) mad with Sootion l§95 i» Nag {P73 6) was on patroih'ng duty when ho rocoivod sooroi' he appehani’ traties in cannabis from hie house and with a 'purpoSo to SE11 tho Same in Eli’s 1102::36. by him viéo Ex P— i7 alld samo WaS forwartiot‘i to tho City smco City Poiioo Woo not avaiiabio iii the poiioe station, 16mm of Ex. P-i wao 'proparod for affooting soarch Without search WaiTaiit 331d theroafter the poiico proceeded for Lho houoe. of the appeflant aim the acouseti was apprioeci about infoimoxion reooiv eonseht for search vide EX, writing that he ha Officer km Nag. search vitie EX. P3 arid recovem? memo of Ex 114‘ The seizeci contrabarid was identifieo‘ vit‘ie the. eti by the inveotigating Gfficer anti oought his: P42 whereupon the. appeilémt gave in s no objection to be oearehee‘i by the hiveStigatmg Thereafter the taming party gave their persooai after that the house of the aocueeti w/ae piastie hag from a room vicie searehec‘i anti oanhahie was found in a Crimiual Anneai Bio: 84 of 209$ n 1 d ih 1&611m1cati9u mane 0f EX P4. Weighmem of thg contrabmm wag mum in. rim 116mby Shop emfi mtal quantitv was found as 5.450 kg. W€tighm€ni memo iS Ex P-G. Thr‘se sampkg 0f 50 gm Each ware seizEQ iron; iha Sciizai comraband aild after preparillg sampie memo 01 L): i-’~’/, rim Same were dti‘iy $eaiar3. in présance of the. accuSEd and SsEm‘s mamo 01 L} H—9 wag gaparaisi‘y‘ préipami‘i. Timrsafter FLR. of bx F48 wag regimerad am? the {ieiaiiaii rapm‘i waS fonvarc‘iéx‘i to th€ Srsmor DQHCEt Gifmem’ T116 conn‘abalid was hanakc‘i ova to Maikhana and ma wizad samplw were Sent for Gimmica} Examination through Supermiendam m“, POh‘ce ‘to Foransic Sci€11C€ Laboramrv’ Raipm: AI‘LEI invesiigation, ChSIg€ sh€€t waS fikd bgfore. €116 Special Couri. &‘:‘ L5, ‘Dmlng trial ‘7 vii11€SSeg Wara examinfgéi. T116 ammliail‘t denia‘i €116 aliegation 811d stata‘i. that E16 was Tak€11 from hiS hom€ ajld falsg 95%.6 nas ‘bEéa prgpzu‘ed against him. Ha aiSo éxamméd d€f€nce wmwsses Rajji Ahmtac‘i {3.W‘1), Dwariiria Mashram (D‘W'. '2) in hi$ CiEi€1lC€. . 4L Leafnai mai Court raiying upon tbs Siatement 0f Sub insp€ctor Km N ag (HW. 6) W110 113$ i11ve5stigated The offemce aJJt fikd Cilarg€ Shaat and further raking upsn the. statemalt of Motir'am 581111, Poh'ce ConStabiE. (REV. 4}, K116311511, Haad Constab‘ié (REV. 5} Ema ‘1‘0hmn‘am Sahu, Head Constable (PW. ‘7}, convicted and Santencmi The appa‘fiant as mantioned abeve. a. Laanled counsei for i116 appeiiani Submits {max £116 iilaapmidant “Timessas Ranaprata'i) (PW. 1), Nagenc‘ua Yadav {P.W. 2) aim 3.361111 Maised (PW. 3} who am witoassss of documemS from E2: ‘1—'—1 To tug P—l l prepareri during invesrigation have not supporroc‘i tho promcut'ion casa and they havo categoricahv stated {hat Thor were man-m to Sign in {he papers; in the pohce owiiOh b‘y‘ tho polio? alld 110 111veamga‘uon was dorm in ‘ihoir presonca am‘i no contrabahii was solzeci before ihem from the accueeti. Even Then, the Special Cour: has convicteti The accuaed 3016.137 on the bask; of uncorroborater‘z seatement of the investiga ’1g Ofhcer PW. 6 KK. Nag. He further 811bmit$ that’ the house from Where the contrabanci is aileged to be seized wae not in exciueive posoeszsiou of the appehant as ofher Iamiiy members of the appeilahi aiso reside there and thus there is no evmence that the seizeri contrahallri was in exciusive possession of me appe‘iiant. The iearnad triai Court has aim no? cmmiderad the. S'iatamem of defence witnasS€S Examilmd 13‘ the a‘ppeilal1t. Rdianm 13 maced 011 Aniany Sam’i @iiiegv J;— StatSe of f‘giaharagztrai. f3. On T116 oth'rzr haHd, laeunECi counSEi for thé Staté ha$ suppofteci Tim mpugimii judgmgilt. Rehimg upon i116 ju€igm€11t of ‘the Supi‘EHm Cour: in "LEE matter of RF, @athima —v— §£ate af‘ Keraiag, it has haen argued ma? 111 a case 11116161‘ NDVPS‘ Am, mm‘aiy becauSé‘ Panel} wmlaw and 11m. support {116 prosecution caSE by iiSEif wouid not maria Hm proweution caSB any less accepiablo if ofhorwioa Court was Samsneri that Soizure was; genuinoly made. Fum‘mr raking upon ‘Lhe magmom 1'11 tho mai'ter of Smte of Hi”. —v— Eiawém Kumaré it is g f argued mat compiiance of Sootion 50 of tho NDPE. Act is applicabio 11.711316 ooarch is to be affectei‘i of £41117 pm‘Son 21161 {ho $211116 1S not i appncable Whom the conn‘a‘bémd 1E; soizec? from a houso. E11 tho motémt Elam, 11113 invostigating Offlcor after recoiving $€<3f€t mmrmauon has rocorz‘iod tho same 211161 after 111iima1h1g tho suporior omcers and recording masons for not obiaimng soarch warrant has; affecrad tho soaroh of tho 1101186 of the accusod after compiotmg a11 tho majniatolfy raquiifmenta 111K361" tho N‘DPS Act, Tho vorsion of tho lnvostigating Gfftcor is duty eatabh'shac‘t from tho documents ofelp‘ai‘eci timing ilweetigation and dui‘y’ pl‘ovot‘l timing trial. The other 'poiice pereonuei who palticipatec‘t in the navoet‘igation have also supported the 13rosacution ease. '/. i have heard learned connsei for the parties. i have. perused the recom as also the impugned jutigment. b The Supreme Court in the matters of F113. ?athima(s11pra) has hek‘t that Where the Court is satisfied that the seizure of the contraband was genuinely matte on the basis of statement of nlvesnganng off10er, 1'11 such circumstances, the case of the prosecutzon cannot be msbeh'eved only“ on the grounc‘i that Panch Witnesses did not support the. prosecution case and they turned hostne, Snniialiy where the. seizure of the contraband is affected not on the basis of personai search of the accused but the same is (2005‘) 4 SCC 350 " :Ecovm‘éd from {116 house, in that casm malldaiory‘ prcvision of Sectimi 50 of ?he Am giving opiion to Tim accusai to b6 soarchocl in prosellw of am; magigtrato or any gazs‘aac‘t offlcor i3 not tho requiremant of 19W ag 11615! 1'11 $ta€e of E? {oupm}. 9, WC p10,)0sa to sor‘mmm Um avmonw availabm on re o n1 mt prosant cam 3'11 tho light of ibo iaw iaic‘i down m mo aiorooam ca'eo. 10 indepenoom Wimesases Raoapraiap {P.W. 1), Naganfira Yac'iav (RW; '2‘) emf; Abc‘lul Majood (PW. 3} have 330i Supporteo the caSo of tho prooau‘iion Evan $11 thoir crowoxaminaiion, tho prosocution hao not omo ab1€ io enoit mo‘tnmg v\ inch 5L1pports the caoo oi tho ##m‘osecution though they have admitted the Signatures over the documengs from Ex, P—l i0 Ey P—ii which ware proparai‘i by Tho imifstigating aoency. RW. 4 Po1ice ConSiab‘is Mou'ram Sahu is s 165E; o: inc iact mat houcc 0i ILX P—Lz aomesuSeii to Lm Suporintm {1611? oi k’olioo 5Em by r1 U Lain was rocolvoa by mm. Though {no {Eocument of EX. 1112 {loos not montion as; to whom {mo mfolmatbn wag seen by “(no CIYV Supérii tendeni oi Po“? r’ W o Khomiai Hedci Lonatablc has pioveo mat U16 conuaoal‘xcl seuea dmuw mvobnvadon was {Leposued m Malimana aim recolpt o; Lgg E- il. PW. 6 KK. Nag is invostigam’ng offlcer. He has detailed the steps that were taken at the time of investigation by him. in short he has Stated that after receiving Secret information he forwarded the same to the City $uoe1iiitentient oi" Police thereafter considering the urgency he proceeded for affecting search and seizure. without obtaining; Search warrant after preparing the memo of EX F—l aiie‘t thereafter after giviiig notice to the appeiiaiit tmtier Section SO of the NERS. Act and after giviiig personal Search of raic‘ting party, the house of the accuser? was searched and contrahanii contained in a piaetio hag was seized The search recovery memo of EX. P4 tvaa prepared and thereafter contraband was seized vide seizure memo of Ex 'P—Q. From perueai of the statement of this witness, it is evit’tent that before affecting search of the house of the appe‘ftant, procedure prescn‘bet‘t under the NUPS Act was duty foliowed and the same was recorded. No suggestion has been put to this Witness from the tiefence sitie that the house iii question does not belong to the r/ appguant or ihai apart from ihe appeiiallt, his mher family m€mbel~s also $51516. in the mam from Wham thg con’irabalnl Was S€izs€L PW. 7 'i‘onamai, H‘sad Constable had aiso gong Wifn thE investigating Offlcer m patmiimg duty aid 11g accompanied him i0 the house of the a‘ppEiiémt anii 11‘: ha$ aiso Staieé That b€f0r€ affacziug ssizure, “£11m; Had gival Th€ir pasonai SEarCh 31161 011137 théreaftar, 1:116 houS€ of 1116 accused was. searchei‘l anc‘i the cannaband waS eeizeel um‘ier a cot iron} a plaSric bag. 12. The (iefence witneeg N0. i Raiii Ahmed has also stated thaf at me time 0f incident, he had‘gone to the houee of The apoeilaht ahd was taKmg tea wail him when ihe police personnei fyom Cahti, came. he‘his house ahd calied him to poh'ce Simian, however subsequent‘iy the accusec‘r was imphcated‘ in the offence. Thus from ihe sta‘rement oi ivmence of" defence witness, it is dear-that the house in quesh‘on was Deiongmg To ‘L’heaccused. The defence Wi'ihess No. 2 Dwarika Meshram has Stated Tha$ in the house of Ihe accused, his mother; brow er, sister, Wife ahu ehik‘ireu in ah $ to £3 pemons reside with him aha on the sate of ihcidem Wheh the accusec‘l was iaiking Wirh ah adv-scam, the. poh'ce C011stable took him to pohce statiou amE accused 1s not. involveci in trachng of cannabis, 13. Thus from the evie‘iehce of RW. 6 KK. Nag, RW, ‘7 Tohahial as aiso statemeht of iiefence Witnesses, the fact that the house from Where the contraband was seizeé is the house of the appellant is established. Seizure memo of EX P—9 which is Emlv signeé hv the appeuaht anti which has been proved by the hwestigatinq Officer aiso mentions that 5.454 kg cahnahis was seized irom the hotise of the appeh’aht. Therefore, the argument. of iearhefi counsel for the a’ppeliaht that the erosecution has faiiec‘i to prove exciusive possesswn cannot be acceptec‘i. The indepenc‘ient witnesses have aemitteo their signatures 1'11 the document Ex P—i to EA P-li orepareti cmrmg tried, though they have denied that any seizure was matte 111 their presence from the accuseoi and they have turhec‘i nostiie. Statement of PW. 6 at: N ag who has detaiiet‘l the procedure adopted by him duling investigation and which is aiso estabhshed by the documehts annexed 1'11 the charge sheet and proved by this Witness, hispires confidence of this Court that the contrabahd was genumeiy seized from the house of the appeiiant. Theiefore, ~ convictimi of ths aime‘i‘iarxt cam 1m based 011 the soliieuy iasu‘monjv 0i i116 hiws‘tigamlg Offmer PAN. 6 KK. Kag, as held in the. juc‘igmeni oi FE“. Faithima (sum . 14, h is not 1'11 C‘iisa‘puié mat the appeiiant i3 the firs? Gimmier 311d ‘11P. W213 }1€V€r mvo‘iKmd in m1? case of idan‘iical 1131mm in mm paSt. 5.450 kg of cmillabis was sdzed {mm his possassiml wincn 13 mom than $mau qualititv of 1 Kg and was than the commerciai qua11tity 01 2f} Kg Themfm‘e, taking mic) consic‘ia‘a‘tion {he qugmtify of um contrabamd gazed from file. appoiiagf ami E1130 oonsii‘iormg mo ia"i that he. is tho fwSt offondel‘, 111$ Couri is of file C011S1Ci€r€d Opnuon tr? €11€i$ of hsiico wouid ho son/Ed if in piact‘ of sentonce 0i 5 1/2 ‘Wéaro, ‘he appsiiant i=3 oontoncoa‘i to undergo RJ. :01” 2 yoaro. 15. Accordmghr, tho appoai is part1? ailowod. Tho convic‘uon oi mo a§peiiant um‘her Soction8 {c} read Wi§h Soc‘ion 20(1))(iiHE—é} of N.L}.F.?:i. Aci i$ mainta‘fmod, howover his jail santonce is mooiiflec‘i and 111 place o7" 8 /2 years RI. with {111% of iQ,C}GGf—., ho is sexltéimsfi to unciergo R1, for ‘LWG years with fmC of R's. i0,f}€)0f -, in dofault of paymont oi 131m, to fui’thor unoioygo NJ. 101‘ Six months. ‘ / f r , Sd/4 r I ’ Dhirendra Mishra .i ” Judge ‘ )