IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL JAIL APPEAL NO.9 OF 2010 Ganesh Thapa … Appellant Versus State of Uttarakhand … Opposite Party Mr. R.C. Tamta, amicus curiae for the appellant Mr. Shivanand Bhatt, Brief Holder for the State Dated: December 21, 2011 Hon’ble Servesh Kumar Gupta, J. This jail appeal has been preferred against the judgment and order dated 24.2.2010 passed by the Special Sessions Judge, Champawat, in Special S.T. No.12/2008, State Vs. Ganesh Thapa, thereby convicting the appellant/accused for the offence of Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter will be called as the Act). The learned Judge has imposed the sentence of ten years’ R.I. in addition to Rs.1.00 lacs of fine upon the convict, and in default of the payment of fine, he was further sentenced to undergo one year’s additional imprisonment. Heard learned counsel for the parties and perused the entire material available on record. In brief, the facts are that on 11.5.2008, when the Station Officer, P.S. Banbasa, District Champawat, along with his other police constables, was in patrolling duty in the bordering place of Nepal, within the territorial jurisdiction of his police station, then he noticed the presence of the accused who saw the police party. Having seen the presence of the police, he bewildered and turned back with fast paces. The accused was holding a bag, which created suspicion in the mind of police. The accused was asked to stop in the bold 2 voice, but his paces became faster, so the police personnel chased and apprehended him. He disclosed his name as Ganesh Thapa S/o Late Nar Bahadur Thapa, R/o Village Kuri, P.S. Tama Khani, District Bajang Seti, Nepal. When asked the reason of his biding to escape, then he disclosed having Charas (cannabis). The police personnel forthwith asked him whether he would like to be searched in front of some Gazetted Officer or a Magistrate, but he declined to be taken before the Magistrate, in writing, which is Ex.Ka-1, so he was searched by the Police Party and the cannabis weighting about 3½ kilogram, was recovered from his possession, and the recovery memo Ex.Ka-2 was prepared. He was brought to the police station where the FIR was lodged, and the information was extended to the superior officers, as envisaged under the Act and also to the near relative of the accused persons, as asked by him. Chik report is Ex.Ka-7. After investigation, the chargesheet Ex.Ka-10 was submitted for the offence of Section 8/18/20 of the Act against the accused. The charge was levelled upon the appellant for the offence. He abjured his guilt and claimed trial. So, the learned Special Judge summoned the prosecution witnesses, who are PW1 S.O. Vinod Kumar Yadav, PW2 Constable Dinesh Chandra Bhatt, PW3 S.I. Khyali Ram Tamta (PW1 to PW3 witnesses of fact), PW4 Constable Nanda Ballabh, PW5 Head Constable Jagdish Chandra and PW6 S.O. Naresh Chandra (I.O. of the case). Thereafter, the statement of the accused was recorded u/s 313 Cr.P.C. He stated that on the date of incident, he was in Nepal. On 8.8.2008, he came to Banbasa from where he was proceeding to Kedarnath. He was under inebriated state. He does not know as to how he was caught by the police. When he regained his consciousness, he found himself to be in caption. 3 PW1 S.O. Vinod Kumar Yadav, S.O. P.S. Banbasa has proved the incident, as has been stated in the recovery memo verbatim, and the similar testimony has been advanced to corroborate his version, by his fellow constables. Now, the question arises as to how these police personnel can be trusted by the Court without the evidence of a public witness. It has come in the evidence that the place, where the accused was nabbed, is a desolate one. So, it was not possible for the police party to procure the attendance of a public witness first and then to apprehend the accused persons. That apart, the Hon’ble Apex Court in the case of “State of Delhi Vs. Sunil & another reported in (2001) 1 ACRR Page 170”, has held that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could 4 certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions. Learned amicus curiae for the appellant has strenuously argued about the non-compliance of Section 50 of the Act on the part of the apprehending officer. Section 50 of the Act casts an obligation upon the nabbing party to take such person, without unnecessary delay, to the nearest Gazetted Officer or a Magistrate, before being searched. But, this duty is incumbent only when the person apprehended, so requires. If the accused denies exercising his right for being taken to the Gazetted Officer before search, and that too in writing, then police party cannot be blamed for committing default in compliance of Section 50 of the Act. Besides, the Hon’ble Apex Court in a plethora of judgments has observed its view as above. The Hon’ble Apex Court in the case of “Sajan Abraham Vs. State of Kerala reported in 2001 SC. Cr.R. 884”, wherein the Constitutional Bench of the Hon’ble Apex Court has held that while construing the provisions of Section 21, 42, 50 & 57 of the Act, the Court should not interpret them so literally, as to render its compliance impossible. If in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out. In that case too, when the police party was on patrolling duty, i.e. on a motion in a Jeep (as in the instant case) the communication to the superior, before proceeding to apprehend the accused, is not understandable. Had they (police) not acted immediately, the opportunity of seizure and arrest would have been lost. The Constitutional 5 Bench of the Apex Court refused to agree to the submission that oral communication is not the compliance of Section 50 of the Act and, accordingly, upheld that oral communication is valid u/s 50 of the Act. In the instant case, the communication was made by the Nabbing Party to the accused person regarding the availability of his right u/s 50 of the Act but he consented to be searched by the police party itself and that consent letter is Ex.Ka-1 bearing signature of the appellant Ganesh Thapa. In an of late judgment of the Constitutional Bench (Five Judges) of the Hon’ble Apex Court in the case of “Vijaysinh Chandubha Jadeja Vs. State of Gujarat reported in (2011) 1 SCC 609”, has held as under: - “It is imperative on the part of the empowered officer to apprise the person intended to be searched of his right under Section 50 of the NDPS Act to be searched before a gazetted officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazetted officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision.” It is also relevant to mention here that PW4 to PW6 are the formal witnesses who have proved the necessary prosecution papers on the record. Undoubtedly, some minor discrepancies, here and there, have been pointed out by the amicus curiae, but these incongruities are not of such a degree as to wipe out the entire case of the prosecution. Had there been any planting by the police party upon the accused persons, then the planting, just a little above than one kilogram, was enough to implicate the appellant for the offence to the intensity of commercial quantity. There was no need to 6 plan about 3½ kilogram of Charas which can fetch a huge mandatory value in the market. The appellant in his statement u/s 313 Cr.P.C. could not give any evidence that he was present in Nepal on the date of incident. So, his explanation u/s 313 Cr.P.C. amounts to making castles in the air. In view of the above, this Court finds that the learned Special Judge has passed a minimum possible sentence for the recovery of this commercial quantity of Charas and the prosecution has successfully proved its case against the accused person beyond any reasonable doubt. So, this appeal is meritless and liable to be dismissed. Appeal is, accordingly, dismissed. Impugned judgment and order passed by the trial court is hereby affirmed. Let a copy of this judgment along with the trial court record be sent back. (Servesh Kumar Gupta, J.) December 21, 2011 Rajeev Dang