COURT’S ORDER WHETHER THE CASE IS OR NOT APPROVED FOR REPORTING {Chapter VIII, Rule 32(2)(b)} Description of the Case. CRIMINAL JAIL APPEAL NO. 2048 OF 2001 (Old Appeal No. 1692/89) Siya Ram S/o Shibbu R/o Mathrol Khat, P.S. Chakarata, District Dehradun ………..…Appellant Versus The State …………………Respondent Sri Pramod Belwal, learned counsel for the appellant Sri Harish Pujari, learned Additional G.A. for the State. A.F.R. (Approved for Reporting) Not approved for Reporting Dated: March 3, 2008 (Dharam Veer, J.) RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND, AT NAINITAL CRIMINAL JAIL APPEAL No. 2048 OF 2001 (Old Appeal No. 1692/89) Siya Ram S/o Shibbu R/o Mathrol Khat, P.S. Chakrata, District Dehradun ……………… Appellant Versus The State ………..…..Respondent Dated : March 03, 2008 Sri Pramod Belwal, learned counsel for the appellant Sri Harish Pujari, learned Additional G.A. for the State HON. DHARAM VEER, J. This criminal appeal, preferred u/s 374(2) of Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed against the judgment and order dated 07.11.1988 passed by Sessions Judge, Dehradun in Sessions Trial No.47 of 1988, State vs. Siya Ram, whereby the learned Sessions Judge has convicted the appellant under Section 18 r/w Section 8 of the Narcotics Drugs & Psychotropic Substances Act, 1985 (hereinafter to be referred as Act) and sentenced him to ten years R.I. with fine of Rs. 1,00,000/- and in default of payment of fine, two years further R.I. 2. In brief, the prosecution case is that on 6.12.1987, S.O. R.R. Singh along with S.I. Inder Muni Verma, Head Constable Mahanand on the information of an informer came in the Sarai Lane after making the entry in G.D. No.22. From the way, the S.O. tried to obtain the public witnesses, but none was ready to give evidence. When the S.O. along with police force reached near the Hotel Sardar at Sarai Lane, then the informer (Mukbir) pointed out the person who was dealing in the sale of opium and thereafter the informer went from there. Thereafter, the S.O., with the help of its force, and in the presence of Nand Lal, an employee in the hotel, succeeded in apprehending the aforesaid person at 4:15 P.M. near a counter outside the hotel. The arrested person disclosed his name Siya Ram i.e. the present appellant. Personal search was taken whereupon about one kilogram of opium wrapped in polythene was recovered from a bag which was handing on the right hand of the appellant. When the licence was asked from him, then the appellant could not show any licence for possessing the opium. About 100 grams of opium was taken out of the recovered opium as a sample and the same was kept in a separate sealed bundle and the remaining opium was kept in the bag and the same was also sealed on the spot. The Fard of recovery i.e. Ex.Ka.1 was prepared by H.C. Mahanand under the direction of S.O. R.R. Singh which was signed by S.O. R.R. Singh, S.I. Inder Mani Verma, H.C. Mahanand. The public witness Nand Lal also pt his thumb impression over the same. The copy of the recovery memo was also given to the appellant and his thumb impression was obtained in token of receipt of the same. On the basis of this recovery Fard Ex.K.a.1, a Chick F.I.R. Ex.Ka.4 was prepared on 6.12.1987 at 4.50 P.M. by Constable Clerk Sudesh Kumar. The entry was also made in the G.D., the carbon copy of G.D. is Ex.Ka-5. The entry of departure was also made in G.D. No.22 at 15:45 hours on 6.12.1988, copy of that G.D. is Ex.Ka-2. The specimen of seal was also prepared on the spot by S.O. R.R. Singh, i.e. Ex.Ka-3. The investigation of the case was entrusted to P.W.6 S.I. Virpal Singh. During the course of investigation, the I.O. inspected the place of occurrence and prepared the site plan, i.e. Ex.Ka.8. Ex.Ka-9 is the letter sent by CJM, Dehradun addressed to Scientific Examiner, Agra by which the case property was sent for chemical examination. The I.O. during the course of investigation, recorded the statements of the witnesses and after completing the investigation, he submitted the charge sheet against the appellant u/s 8/18 of the Act, that charge sheet is Ex.Ka-10. 3. On 5.5.1988, the Sessions Judge, Dehradun framed the charge against the appellant Siya Ram under Section 8 and under Section 18 of the Act. The charge was read over and explained to the appellant who pleaded not guilty and claimed to be tried. 4. To prove its case, the prosecution examined P.W.1 S.I. Inder Mani Verma, P.W.2 S.I. Ram Rais, P.W.3 Constable Sudesh Kumar, P.W.4 Nand Lal, a public witness, P.W.5 Constable Sheeshpal Singh and P.W.6 S.I. Virpal Singh, I.O. of the case. 5. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form but he denied the allegations made against him and also denied the recovery made from him and stated that he had been falsely implicated due to enmity. 6. After appreciating the evidence on record and after hearing learned counsel for the parties, the learned Sessions Judge vide his judgment and order dated 07.11.1988 convicted the appellant under Section 18 r/w Section 8 of the Act and sentenced him to ten years R.I. with fine of Rs.1,00,000/- and in default of payment of fine, two years further R.I. was awarded to him. Against the said judgment and order dated 7.11.1988, the appellant has preferred the present appeal. 7. I have heard Sri Pramod Belwal, learned counsel for the appellant and Sri Harish Pujari, learned Addl. G.A. for the State and perused the entire material available on record. 8. To prove its case, the prosecution has examined P.W.1 S.I. Indra Muni Verma who has stated that on 6.12.1987 he was posted as Inspector in P.S. Vikasnagar. On that day, he along with S.O. R.R. Singh and H.C. Mahanand had arrested the appellant Siya Ram near a counter of the hotel of Nand Lal at Sarai Lane, Vikasnagar. The police party moved at 3:45 P.M. for the purpose of raid towards the hotel of Nand Lal at Sarai Lane. He also stated that on the information of informant, they came to know that one person was sitting in a hotel and was dealing in sale of opium. When the party reached near the Sardar Hotel at 4:15 P.M., then the informer pointed out the person who was dealing in sale of opium. Upon this information, they apprehended the person near the counter outside the hotel of Nand Lal. The arrested person disclosed his name Siya Ram. Personal search was taken whereupon about one kilogram of opium wrapped in polythene was recovered from a bag which was hanging on the right hand of the appellant. Out of this recovery, 100 grams of opium was taken out as a sample and the same was kept in separate bundle and the remaining opium was kept in the bag and was sealed on the spot, that bundle was marked as Ex.1. The Fard of recovery was also prepared on the spot by H.C. Mahanand before him under the directions of Station Officer, i.e. Ex.Ka-1. He has also stated that at that time, neither the appellant was having any licence for possessing the opium nor he had produced the same on being demanded. A copy of the said Fard was also given to the appellant and his thumb impression was also obtained on Ex.Ka-1 as a token of receipt. He further stated that the owner of the hotel was Nand Lal and was also present at the time of arrest and recovery and his thumb impression was also obtained on Ex.Ka-1. Thereafter, the appellant and the recovered goods were deposited in the police station and up till the said goods were remained in the custody, nobody was allowed to see or touch the same. He further stated that the Fard Ex.Ka-1 was also filed in the police station at that time. 9. P.W.2 is S.I. Ram Rais who has stated that on 6.12.1987, he was posted as S.O. Vikasnagar. On that day at 3:45 P.M., on the information of informant that one person is dealing in opium in the hotel of Teja Ram, he along with S.I. Inder Muni Verma and H.C. Mahanand immediately left from the police station after taking the informant with them. The departure was noted down in the G.D. Report No.22 by H.C. Mahanand and he also identified the writing and signatures of H.C. Mahanand and he also filed the true copy of that G.D., i.e. Ex.Ka-2. He also stated that they proceed on foot and moved towards the Sardar Hotel Via Sarai lane. He also stated that he tried to obtain the witnesses but none was available. When they reached inside the Sarai lane near the Sardar hotel, the informer pointed out the person who was dealing in the sale of opium. Upon this information, the party raided the hotel and in the presence of Nand Lal, an employee in the hotel, the party succeeded in apprehending the aforesaid person at 4:15 P.M. The arrested person disclosed his name Siya Ram (present appellant). Personal search was taken whereupon about one kilogram of opium wrapped in polythene was recovered from the bag which was handing on the right hand of the appellant. The appellant was not having any licence for possessing the said opium. Out of this recovery, 100 grams of opium was taken out as a sample and the same was kept in separate bundle and the remaining opium was kept in the bag and the specimen of seal was also prepared separately, that bundle was marked as Ex.1. He had prepared the specimen of seal on the spot i.e. Ex.Ka-3 and he also proved the same. The appellant was made aware on the spot that he had committed the offence punishable u/s 8/20 of the Act. The Fard of recovery was also prepared on the spot by H.C. Mahanand under his directions, i.e. Ex.Ka-1. On this Fard, he and other witnesses had signed and Nand Lal put his thumb impression on that Fard. A copy of the said Fard was also given to the appellant and his thumb impression was also obtained on Ex.Ka-1 as a token of receipt. Thereafter, the appellant along with the sealed bundles was brought to the police station and the appellant was admitted in the jail and the recovered goods were kept in two separate bundles and the same was deposited in the Malkhana of the police station. The Fard Ex.Ka-1 was also filed in the police station on the basis of which Chik FIR was prepared by Constable Clerk Suresh Kumar, i.e. Ex.Ka-4. The entry of registration of case was also made in the G.D. No.24 at 16:50 hours by Constable Clerk Suresh Kumar. He also proved the true copy of the said G.D. and he had also signed on it, the copy of that G.D. is Ex.Ka-5. 10. P.W.3 is Constable Sudesh Kumar who has stated that on 6.12.1987, he was posted as Constable Clerk in P.S. Vikasnagar. On that day at 4:50 P.M., S.O. R.R. Singh had admitted the appellant Siya Ram along with recovery of Fard i.e. Ex.Ka-1 in the police station. The two sealed bundles of opium along with specimen of seal were also admitted in the police station. He has also stated that on the basis of Fard Ex.Ka-1, he had prepared the Chik FIR, i.e. Ex.Ka-4 which he had prepared in his own handwriting. He also made the entry of registration of case in G.D. No.24, the copy of G.D. is Ex.Ka.5. The investigation of this case was entrusted to S.I. Veer Pal Singh. He further stated that the appellant Siya Ram was sent to the court of Magistrate on 7.12.1987 at 9:35 A.M. with Constable Anand Swarup and R.C. Rajendra Singh and the entry was also made in G.D. No.16, i.e. Ex.Ka-6. The two bundles of the recovered articles were also sent along with the appellant to the court which were deposited by the Constables on the same day evening at 9:15 P.M. in the Maalkhana of police station and the entry was also made in G.D. No.34, i.e. Ex.Ka-7. He further stated that up till when the recovered goods remained in the Maalkhana, the same was remained sealed and nobody was allowed to see or touch it. 11. P.W.4 is Nand Lal who has stated that on 6.12.1987 at about 4:15 P.M., he was present in the hotel of Teja Singh where he was employed. Teja Singh was not present, as he had gone out. He has also stated one person had come and demanded tea, but he refused as tea was not available in the hotel and in the meanwhile, two S.I. and one Head Constable had come. He also stated that the said person was having a bag in his hand and on search of said bag about one kilogram of opium was recovered. He also stated that the Fard was prepared in his presence and he had put his thumb impression over the same, that Fard is Ex.Ka-1. The bundles of recovered article and the appellant were then taken by the police to the police stiaton and he also put his thumb impression over the said bundles. This witness was cross- examined at length by the defence counsel but nothing has come out from his evidence which may create any doubt in his evidence. The evidence of this witness is reliable, believable and trustworthy. 12. P.W.5 is Constable Shashi Pal Singh who has stated that in January, 1988 he was posted as Constable in P.S. Vikasnagar. On 7.1.1988, he had taken the case property of this case with specimen of seal from the Maalkhana of the police station to the court of ACJM, Dehradun but due to non- completion of papers, he admitted the same back in the Maalkhana of P.S. Vikasnagar on the same day evening. He further stated that up till when the recovered goods remained in his possession, the same was remained sealed and nobody was allowed to see or touch it. On 8.1.1988, he again came to the court from the police station along with the case property in a sealed condition and from there, he carried the case property to the Scientific Laboratory, Agra. On 11.1.1988, he produced the same in the sealed condition. He further stated that up till when the recovered goods remained with him, the same was remained sealed and nobody was allowed to see or touch it. ,, 13. P.W.6 is S.I. Vir Pal Singh who has stated that on 6.12.1987, he was posted as S.I. in P.S. Vikas Nagar. At the time when the case was registered, he was not present in the police station and on his return, he started the investigation of the same at about 7:30 P.M. On the same day, he copied the report and the G.D. entry in the case diary and then recorded the statements of H.C. Mahanand and Constable Sudesh Kumar. He also interrogated the appellant Siya Ram who was under the police custody. On 7.12.1987, he went to the place of arrest along with H.C. Mahanand and inspected the site and prepared the site plan, i.e. Ex.Ka-8. He further stated that at that time, Nand Lal P.W.4 was also present and his statement was also recorded by him. Thereafter, he came back to the police station and recorded the statements of S.O. R.R. Singh and S.I. Inder Mani Verma. He further stated that thereafter he went on emergency duty for one month to Police Line, Dehradun and therefore, the case property was sent for chemical examination by S.I. Attar Singh. On 24.1.1988, he received a latter for receiving of the case property at Agra and on that letter, there was an endorsement dated 24.1.1998 by S.S.I. Atar Singh and he also proved the same and also identified the handwriting and signatures of SSI Attar Singh, that letter is Ex.Ka-9. On 29.2.1988 after completing the investigation, he submitted the charge sheet against the appellant, i.e. Ex.Ka-10. On 10.7.1988, he received the report from the scientific laboratory after which he prepared the concerned paper. On 7.1.1988, Constable Shashi Pal Singh carried the case property of the case from the Maalkhana of the police station to the court of ACJM. The entry of departure was noted in G.D. Report No. 17 at 8:35 A.M. by constable Sudesh Kumar and he also proved that G.D., i.e. Ex.Ka-11. Constable Sheesh Pal reported in the police station back on the same day at 5:25 P.M. and entry was also made in G.D. No.28 by Dayawati and he also proved that G.D., i.e. Ex.Ka- 12. On 8.1.1988, the entry of departure of Constable Shashi Pal Singh along with case property was made in G.D. No.32 at 15:10 hours by Constable Sudesh Kumar and he also proved that G.D., i.e. Ex.Ka-13. 14. Thereafter, the statement of the appellant was recorded u/s 313 of Cr.P.C. The oral and documentary evidence was put to him in question form but he denied the allegations made against him and also denied the recovery made from him and stated that he had been falsely implicated due to enmity. 15. Sri Pramod Belwal, learned counsel for the appellant has submitted that the recovery of about one kilogram of opium from the possession of the appellant has not been proved. The argument advanced by learned counsel for the appellant is not sustainable in the eye of law. From a discussion of the evidence as discussed above, P.W.1 S.I. Inder Mani Verma has stated that on the information of informant, the police party came to know that one person was sitting in a hotel and was dealing in sale of opium. Upon this information, they apprehended the person near the counter outside the hotel of Nand Lal at 4:15 P.M. The arrested person disclosed his name Siya Ram. Personal search was taken whereupon about one kilogram of opium wrapped in polythene was recovered from the bag which was handing on the right hand of the appellant. The evidence of this witness is also corroborated by the evidence of P.W.2 S.O. R.R. Singh who has stated that on the pointing out of the informer, the police party pounced upon the appellant and apprehended him outside the counter of the hotel. On personal search, about one kilogram of opium was recovered from his possession. The evidence of P.W.1 S.I. Indra Mani Verma and P.W.2 S.O. R.R. Singh is further corroborated by the evidence of P.W.4 Nand Lal who is an independent witness and he was also present at that time in the hotel. P.W.4 Nand Lal is an independent witness and there is no reason to disbelieve his testimony. The evidence of this witness is reliable and trustworthy. From the evidence as discussed above and from the evidence of these witnesses i.e. P.W.1 S.I. Indra Mani Verma, P.W.2 S.O. R.R. Singh and P.W.4 R.R. Singh, it is proved by the prosecution beyond reasonable doubt that about one kilogram of opium was recovered from the possession of the present appellant. 16. Furthermore, on 8.1.1988, the case property was sent for chemical examination to the Scientific Laboratory, Agra and the entry of departure was also made in the G.D. No.32 at 15:10 hours by Constable Sudesh Kumar, that G.D. is Ex.Ka-13. The case property till when remained in the police custody, that was remained sealed and nobody was allowed to see or touch it. The case property was received by the Chemical Analyst at Agra on 11.1.1988. On 6.6.1988, the Assistant Director, Scientific Laboratory, Agra gave its report and it was stated that the said recovered item was opium. In view of the said report of Assistant Director, it is proved that the recovered item which was recovered from the possession of the appellant was the opium. 17. Learned counsel for the appellant further submitted that the compliance of Section 50 of the Act has not been made because the search was not made before the Magistrate or the Gazetted Officer. Contrary to this, learned Addl. G.A. has cited a judgment rendered by Hon’ble Apex Court in the case of Ravindran alias John v. Supdt. Of Customs reported in (2007) 6 SCC 410. He relied on paras 8 and 9 which have been quoted below:- 8. It was then submitted on behalf of the appellant that the provisions of Section 50 of the Act which are mandatory in nature were also not complied with. Reliance was placed on the decision of this Court reported in Namdi Francis Nwazor v. Union of India. Learned Additional Solicitor General appearing on behalf of the Union of India submitted that the aforesaid judgment of this Court has been explained in a subsequent judgment of this Court in State of H.P. v. Pawan Kumar in which it has been held that the observations relied upon a Namdi Francis Nwazor were obiter on this point. In the later judgment it has been held as under: (SCC p.360, para 11) “11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be reated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word ‘person’ occurring in Section 50 of the Act.” “9. In the instant case, it is not in dispute that the appellant was carrying a plastic bag in which the drug in question duly packed had been kept. Section 50 is, therefore, not attracted to the facts of this case. 18. In view of the aforesaid judgment, learned Addl. G.A. for the State has submitted that as the opium had been recovered from the bag which was hanging on the right hand of the appellant, as such the provisions of Section 50 of the Act are not applicable in the present case and, therefore, the argument advanced by learned counsel for the appellant that the compliance of Section 50 of the Act has not been made, is not at all helpful to the appellant. 19. For the reasons recorded above and in view of the aforesaid dictum of Hon’ble Apex Court, the appeal preferred by the appellant Siya Ram is devoid of merit and is hereby dismissed. The conviction and sentence as awarded by the trial court is hereby confirmed. 20. Let a copy of this order be sent to the trial court concerned for compliance of the order forthwith. (Dharam Veer, J.) Rajeev Dang