IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Jail Appeal No. 02 of 2009 Narayan Dutt. ………. Appellant. Versus State of Uttarakhand. ………. Respondent. Present : Mr. Geeta Parihar, Amicus Curiae for the appellant. Mr. M.A. Khan, Brief Holder for the State. Hon’ble Servesh Kumar Gupta, J. 1. This appeal has been directed against the judgment and order dated 15.11.2008 rendered by Special Sessions Judge, Pithoragarh whereby the appellant Narayan Dutt was found guilty under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as the Act). After recording the finding of guilt against the accused Narayan Dutt, learned Sessions Judge has convicted him and sentenced him to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/-. In default of payment, he has been further directed to undergo additional two years simple imprisonment. 2. Accused Narayan Dutt hails from District Darchula, Nepal and on 21.03.2007 was apprehended while transporting charas 5 kg 380 gms. from Nepal to India. The police party including Sub Inspector Ram Dutt Joshi along with his companion constables were patrolling to maintain law and order in the territorial jurisdiction of their police station Dharchula District Pithoragarh (just a border of Nepal), they noticed accused Narayan Dutt. Noticing the presence of police, he turned back and walked with fast paces. The suspicion arose in the mind of the police personnel so he was nabbed at the spot. When the accused disclosed the possession of 5 Kg 380 2 grams of charas within his bag, then in order to follow the requisite Rules, he was taken to Sub Divisional Magistrate, (Gazetted Officer) of Dharchula, where he was searched and this much quantity of charas was recovered from him. FIR was lodged and after compliance of various provisions under the Act, investigation was made and chargesheet was submitted for the offence under section 20/22 of the Act. The trial was conducted by Special Judge and after recording, as much as six prosecution witnesses, his conviction was recorded as above. The convict is in caption since 22.03.2007 i.e. next date of his apprehension. He has preferred this appeal through Jail Superintendent, Dehradun. 3. Ms. Geeta Parihar, Advocate, was appointed as Amicus Curiae, on behalf of the appellant. 4. The Court has heard the arguments of learned Amicus Curiae, on behalf of the appellant and learned Brief Holder, on behalf of the State. 5. It has been argued by the learned Amicus Curiae that PW4 Santosh Singh, who was entrusted the task of carrying the sample of recovered incriminating article from the accused, left Pithoragarh on 22.03.2007 for Dehradun but he submitted the sample in concerned laboratory on 26.03.2007 so there is a possibility of tempering in the sample during this period. This argument is not tenable because Pithoragarh is the remotest district of this province and it take at least two days time to reach Dehradun from Pithoragarh. He reached Dehradun in the evening of 23.03.2007. In his statement, he (PW4 Santosh Singh) has clarified that 24th and 25th March 2007 were holidays, so he could submit the sample in the concerned laboratory on 26.03.2007. This clarification itself is sufficient 3 and does not create any doubt so that to discern tampering in the sample. 6. Learned counsel on behalf of the appellant has further argued that various provisions of the Act as envisaged under Section 21, 42, 50, 57 of the Act have not been complied with by the prosecution. This argument is also not acceptable for the reason that full Bench of the Hon’ble Apex Court including the Chief Justice of India in the case of Sajan Abraham Vs. State of Kerala reported in 2001 S C Cr. R. 884 has held that the Court while construing the provisions of Sections 21, 42, 50, 57 should not interpret them so literally so as to render their compliance impossible if in a case, the following of mandate strictly, results in delay in trapping the accused lead the accused to escape then the prosecution case should not be thrown out. When police party was on patrol duty i.e. on motion in a jeep the communication to the superior, before proceeding to apprehend the accused is not understandable. Had they (police) not done so (to proceed for the arrest) immediately the opportunity of seizure and arrest would have been lost. Therefore, the Hon’ble Apex Court was unable to agree to the submission that communication orally is not a compliance under Section 50 of the Act and upheld that oral communication is valid under section 50 of the Act. 7. In the instant case, the accused apprehended at desolate place, then it was not possible for the police party to have communication with the superior officers before apprehending the accused. It has been proved by the prosecution witness / Sub Inspector that the place was so desolate, surrounded by such dense forest that even their radio transmission set was not working. All the same, he was taken by the police party, in front of Sub Divisional Magistrate, 4 Dharchula, who was the nearest and most responsible Gazetted Officer of the area and searched was conducted in his presence. On search, this commercial quantity, much more than the minimum commercial quantity, i.e. 5 Kg 380 gms. of charas was recovered from possession of the accused. Had there been an occasion for the police to implicate the accused falsely, then purpose could be served even by planting 1 kg of charas. Charas is a very costly commodity. It is highly improbable to plant this much of quantity of (5 kilo 380 gms.) of charas upon the accused. 8. The Hon’ble Apex Court further in a case State of Punjab Vs. Balbir Singh reported in (1994) 3 SCC 299 has held that the provisions of Section 52 and 57 of the Act, which deal with steps to be taken by the officers, after making arrest or seizure under section 41 to 44 by themselves are not mandatory. In case of Parshottam Lal Vs. State reported in 2001 Cr.L.J. 3378 the High Court of Jammu & Kashmir has held that when narcotic drugs recovered from the possession of the accused then onus shifts to the accused to prove that he did not knowingly possessed the said drugs. If the accused did not discharge his onus then he is liable to be convicted. 9. Further, the full Bench of Hon’ble Apex Court including the Chief Justice of India, in the case of Narayan Swami Ravi Shankar Vs. Assistant Director, Directorate of Revenue Intelligence reported in 2003 Cr.L.J. 27 has held that when no search or seizure was conducted on the person of the accused and incriminating article was recovered from the bag which he was holding then compliance of provisions of Section 50 of the Act are not attracted. Further in an identical case Bharat Bhai Bhagwanjibhai Vs. State of Gujrat reported in 2003 Cr.L.J. 65 SC, the Hon’ble Apex Court was of the view that 5 where recovery of charas from the possession of the accused, on being searched and seizure of the same made, on suspicion by reason of that accused started running noticing the patrolling party then there is sufficient reason to infer the police party did not have any prior information regarding the commission of the offence under the Act. Therefore, provisions of section 50 are not applicable. 10. All the prosecution witnesses have proved nabbing of the accused at the spot and recovery of this heavy quantity of charas from his possession, for which he could not offer any explanation, therefore, this Court finds that the appeal is devoid of merit and learned Sessions Judge, Pithoragarh has sentenced him to the minimum possible term of imprisonment provided under the Act. The Appeal is dismissed. (Servesh Kumar Gupta, J.) 16.09.2011 SKS