Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 181/2005 Sanjay Chaudhary … Appellant. Versus State of Uttaranchal … Respondent. Ms. Manju Kotaliya, Advocate for the appellant. Mr. S.S. Adhikari, learned A.G.A. for the State. Coram: Hon’ble B.C. Kandpal, J. Hon’ble Nirmal Yadav, J. [Per: Hon’ble B.C. Kandpal, J.] This criminal appeal has been preferred against the judgment and order dated 15-09-2005, passed by Additional Sessions Judge/III F.T.C., Nainital, in Special Sessions Trial No. 04 of 2005, State Vs. Sanjay Chaudhary, whereby the accused/appellant was convicted for an offence punishable U/S 20 of N.D.P.S. Act and was sentenced to undergo R.I. for 15 years and a fine of Rs. 1,50,000/- and in default of payment of fine to further undergo R.I. for 1 ½ years. 2- The prosecution case, in short, is that on 4.12.2004, police party consisting of S.O. J.C. Pathak, S.I. Mohd. Ali, Constable Brijendra Sharma and Constable Talib Hussain, were on patrolling duty at Mahadev cave near Krishnapur and when they were returning to the Police Station, they saw a person coming near Jail from the Temple of God Shankar. He was holding a polythene bag and seeing the police personnel, he started running in 2 the opposite direction. On suspicion he was caught by the police party at 8.05 A.M. 30-35 meters away from the Temple of God Shankar. The person told his name Sanjay Chaudhary and when he was asked about the goods kept in the Plastic Mayur Bag held by him in his hand, he told that medicine was there in the bag. On detecting, foul smell of intoxicating substance, like Charas, from the polythene bag, the police personnel asked the accused that he is free to give his search before some Gazetted Officer or a Magistrate. At this he was ready to be searched before a Gazetted Officer or a Magistrate. Thereafter the accused was brought to the Police Hospital for his search before the Doctor but the Doctor was not there, hence he was carried to the Police Line where he was produced before the C.O. Sri J.C. Upadhyaya for his search. The accused took out the charas after opening a green colour tarpaulin kept inside the bag. From his possession, a mobile, a purse containing Rs. 1060/, Sonata wrist-watch, two rings, a bunch of keys and a handkerchief were also recovered. The recovery memo, Ext. Ka.2 was prepared at the spot and a copy of the same was handed over to the accused. The accused was informed of his crime and was taken into police custody vide arrest memo Ext. Ka.1. The recovered charas was weighed in a balance and its weight was one kilo and one hundred grams. Out of it, one hundred grams of charas was kept in a tarpaulin and it was sealed in a white colour cloth. On the basis of recovery memo chick F.I.R. Ext. Ka.5 was prepared at P.S. Tallital, Nainital and a case crime No. 1352 of 2004 U/Ss 8/20/22 of N.D.P.S. Act was registered against the accused Sanjay Chaudhary, vide G.D. No. 18, 3 carbon copy of which is Ext. Ka.6. The recovered charas was sent to Chemical Examiner vide letter Ext. Ka.7 and the Chemical Examiner has submitted his report Ext.Ka.8. The Chemical Examiner has opined that the recovered substance sent for chemical analysis was Charas. 3- S.I. Rajesh Kumar also prepared site-plan of the place of arrest of the accused, Ext. Ka.9 and after completing the investigation, charge sheet Ext. Ka.10 was submitted by the I.O. against the accused. 4- The learned Sessions Judge, framed a charge U/S 20 of the N.D.P.S. Act against the accused, to which, he pleaded not guilty and claimed his trial. 5- The prosecution, in support of its case, has produced P.W.1, Constable Brijendra Sharma, P.W.2, in charge Inspector, Jagdish Chandra Pathak, P.W.3, Dy. S.P. J.C. Upadhyaya, and P.W.4, Sub Inspector Rajesh Kumar. 6- The accused in his statement U/S 313 Cr.P.C. denied the recovery of charas from his possession and alleged that the police has roped him in a false case due to enmity. However, he did not adduce any evidence in his support. 7- The learned Additional Sessions Judge/III F.T.C., Nainital, vide impugned judgment and order dated 15-9-2005 found the accused guilty of offence U/S 20 of the N.D.P.S. Act and accordingly convicted and sentenced him to undergo R.I. for 15 4 years and to pay a fine of Rs. 1,50,000/- and in default of payment of fine to further undergo R.I. for 1 ½ years. 8- Feeling aggrieved by the aforesaid judgment and order, the accused Sanjay Chaudhary has preferred this appeal. 9- We have heard Ms. Manju Kotaliya, Advocate for the appellant and Sri S.S. Adhikari, learned A.G.A. and perused the record. 10- Learned counsel for the appellant has raised the submission that the witnesses examined in the case are police personnel and no public witness of recovery has been picked up by the police. She also argued that mandatory provisions of the NDPS Act have not been followed by the police while making search of the accused and there are material contradictions in the statements of the witnesses pertaining to the alleged recovery of the charas, therefore, the accused/appellant is entitled for an acquittal. 11- Learned A.G.A. made rival contention that mandatory provisions of NDPS Act have been complied with by the police in the case and the impugned judgment is perfectly justified. 12- The prosecution case is that on 4.12.2004, at about 8.05 A.M. accused/appellant Sanjay Chaudhary was seen by the police party in suspicious situation, as he on seeing them turned back and started running away, hence he was chased and caught at some distance. The accused 5 was having a polythene bag in his hand and on smelling the bag, foul smell of charas was detected, hence the police asked him whether he wanted his search before a Gazetted Officer or a Magistrate. The accused opted for his search before a Gazetted Officer, hence, the police brought him in the Police Hospital, for his search before the doctor but the doctor was not found there, therefore, he was carried to Police Line and there his search was made before C.O. Sri J.C. Upadhyaya (P.W.3). Recovery memo, Ext. Ka.2, bears the signatures of accused Sanjay Chaudhary pertaining to supplying a copy of the same to him. There is also endorsement in the recovery memo that it was read over to the accused and a copy was supplied to him. Therefore, the compliance of Section 50 of N.D.P.S. Act has been observed by the police in the instant case. 13- Ext. Ka.3, is the copy of radiogram dated 4.12.2004 sent by S.O. Tallital to S.S.P., D.M., S.P. City, C.O. City Nainital informing that accused Sanjay Chaudhary has been arrested with one kilo one hundred grams of Charas and case crime No. 1352/2004 U/Ss 8/20/22 NDPS Act has been registered against him. It is thus quite clear that the information of the crime was given to the higher authorities within 48 hours and compliance of Section 57 NDPS Act has been observed. 14- It is further case of the prosecution that out of the contraband seized from the accused, 100 grams was sealed in a separate cloth in order to send the same for examination by Chemical Examiner. The said sealed packet of the contraband 6 was sent to the Chemical Examiner on 7.12.2004, through the letter of C.J.M. Nainital Ext.Ka.7. The Chemical Examiner gave his report Ext. Ka.8. According to the report of Chemical Examiner the contraband sent to him was found to be Charas. Thus, it is proved that the accused/appellant was found in possession of one kilo and hundred grams of illegal charas. 15- To substantiate the recovery of charas from the accused/appellant, the prosecution has examined P.W.1, Constable Brijendra Sharma, P.W.2, Jagdish Chandra Pathak, in charge Inspector P.S. Khatima, P.W.3, Sri J.C. Upadhyaya, Dy. S.P. Police before whom the search was made and P.W.4, S.I. Rajesh Kumar, who has investigated the case and submitted charge sheet against the accused/appellant. All these witnesses have fully supported the prosecution case. There are no material contradictions in the statements of these witnesses pertaining to recovery of the illegal charas. 16- P.W.1, Constable Brijendra Sharama was also a member of police party. He has stated that on 4.12.2004 he along with S.O. Tallital Sri J.C. Pathak, A.S.I. Mohd. Ali, and Constable, Talib Hussain, had gone to the cave of Mahadev Temple and on return when they reached near the Temple of God Shankar below Jail, they saw a person coming with a polythene bag in his hand and on seeing them that person turned back and started running away from there. Suspecting foul-play, he was chased and caught at 8.05 A.M. 30-35 meters away from the Temple of Shankar Bhagwan. He 7 further deposed that the accused disclosed his name and when he was inquired about the bag held by him, he told that medicines are there in the bag and when the bag was opened smell of charas was coming from it. At this the Station Officer suspecting that there was charas in the polythene bag, asked the accused that he might be searched before a Gazetted Officer or Magistrate. As the accused wanted his search before a Gazetted Officer, hence he was brought to Police Hospital, but the Doctor was not there, hence he was carried to Police Line before the C.O. Sri J.C. Upadhyay and search was made of the polythene bag. On search charas was found in the said polythene bag and the accused confessed his guilt. Thereafter he was taken into police custody. The witness further deposed that the recovered contraband was weighed and its weight was 1 kilo 100 grams, out of which 100 grams was sealed in a white colour cloth as sample for chemical examination. He further stated that from the possession of accused a mobile phone, Rs. 1060/- kept in a purse, Sonata wrist watch, two rings, keys and a handkerchief were also recovered. This witness further deposed that the accused also informed them that he has been convicted for 10 years in a case of NDPS Act and he is on bail from the High Court. He further stated that the recovery memo was prepared in the police line before the Circle Officer and it was read over to the accused and a copy was also supplied to him. This witness also proved arrest memo Ext. Ka.1 and recovery memo Ext. Ka.2. He has further deposed that after completing the formalities the recovered contraband was kept in the Malkhana and the information of the crime was also given to higher 8 authorities and a case under NDPS Act was registered against the accused. 17- P.W.2, in charge Inspector Jagdish Chandra Pathak, has fully corroborated the recovery of charas from the possession of accused. This witness has prepared the recovery memo and he has proved it before the trial court as Ext. Ka.2. He also deposed that he also prepared arrest memo Ext. Ka.1. This witness also proved the sample seal, Ext. Ka.4, prepared at the spot. In his cross examination this witness has deposed that there is a way in between the place of arrest and the police line. They had tried to pick up some public witness in the way but no one was ready to become a witness of the recovery. 18- P.W.4, S.I. Rajesh Kumar, was posted as Station Officer Tallital at the time of the occurrence. This witness has investigated the case. He has stated about the recovery of charas and arrest of the accused. This witness also fully corroborated the testimony of other police witnesses. This witness has deposed that on 7.12.2004 the sample of charas was sent to Chemical Examiner through Constable Ramesh Joshi and he has handed over the sample to the Chemical Examiner on 8.12.2004. This witness has proved the letter dated 7.12.2004 sent by C.J.M. to the Chemical Examiner as Ext. Ka.7. 19- P.W.3, Sri J.C. Upadhyay, has deposed that on 4.12.2004, at about 9.30 A.M. accused Sanjay Chaudhary was brought before him for making the search of polythene bag held by the 9 accused in his hand. This witness has deposed that charas was recovered from the polythene bag of the accused, and he was taken into custody after informing his crime. This witness further deposed that the recovered charas was weighed in a balance of the kitchen of Police Line and it was 1 kilo 100 grams. Out of this, 100 grams was taken as sample for chemical examination and it was sealed in a white colour cloth and recovery memo was prepared by S.O. J.C. Pathak. This witness also deposed about the recovery of other articles from the possession of the accused. He further deposed that the recovery memo was read over to the accused and a copy of the same was also supplied to the accused. Thus from the evidence of this witness P.W.3, Sri J.C. Upadhyay it is quite clear that the recovery of charas was made from the polythene bag held by the accused in his presence and the recovery memo was also prepared before him. The sample of charas was also sealed before him. This witness P.W.3, J.C. Upadhyay is a high rank police officer and there is no reason as to why this witness would state a false story. The testimony of this witness is fully reliable. 20- Thus from the scrutiny of evidence of prosecution witnesses, it is quite clear that the prosecution has been successful in establishing the recovery of illegal charas from the possession of the accused/appellant. All the witnesses are consistent to each other on every count. There are no material contradictions in their testimony pertaining to arrest and recovery of charas. The sample of charas was examined by the Chemical Examiner and submitted his report Ext. Ka.8. According to the 10 Chemical Examiner’s report the contraband sent for examination was found to be charas. It is also established by the prosecution that the police has tried to pick up a public person, but no one came forward to witness the recovery of contraband from the possession of the accused. Thus, non-procuring a public person to witness the recovery of charas from the accused, does not affect the veracity of the prosecution case. 21- Learned counsel for the accused/appellant also submitted that no satisfactory evidence has been produced by the prosecution pertaining to the fact that the seized article was kept intact in the Malkhana and no sample of seal was sent along with sample to Laboratory for purpose of comparing with seal appearing on sample bundle, hence it cannot be said with certainty that the same sample seized from the possession of the accused was examined by the Chemical Examiner. 22- We do not find any force in the above submission of learned counsel for the accused/appellant, firstly on the ground that the charas was seized from the accused on 4-12-2004 and it was handed over to the laboratory through constable Ramesh Joshi on 8.12.2004 by the order of C.J.M. Nainital. The C.J.M. has sent letter dated 7.12.2004 and description of contraband etc has been given in the aforesaid letter. It has specially been written that the sealed packet of 100 grams charas is being sent along with the sample seal. The Chemical Examiner has also made endorsement in his report Ext. Ka.8 that the sample bundle was in 11 a sealed condition and it was received by him on 8.12.2004 along with the sample seal. Secondly, P.W.2, J.C. Pathak has deposed that after completing all formalities the seized contraband was kept in Malkhana. P.W.4, S.I. Rajesh Kumar also deposed in his cross examination that he had obtained the sample of the contraband from Malakhana for sending the same to the Laboratory. No specific suggestion was put to the prosecution witnesses by the defence that the seized contraband was not kept in the Malkhana. Thus, looking to the deposition of the witnesses and the fact that the contraband was handed over to the Laboratory without any delay through special messenger along with sample seal with the letter of C.J.M., it cannot be said that the sample seized from the accused could not reach to the Laboratory for chemical examination. We are fully convinced that the sample of charas seized from the possession of the accused was sent to the Laboratory for examination and the same was found to be charas by the Chemical Examiner. Therefore, the accused/appellant has been rightly held guilty of the offence U/S 20 of the N.D.P.S. Act by the learned trial court. 23- For the reasons recorded above, we do not find any force in this appeal and the same is liable to be dismissed. 24- Accordingly, the appeal is dismissed. The impugned judgment and order passed by learned trial court, convicting and sentencing the accused/appellant U/S 20 N.D.P.S. Act, is upheld. 12 25- The accused/appellant is already in jail in order to serve out the sentence passed against him. (Nirmal Yadav, J.) ( B.C. Kandpal, J.) May 05, 2010. ISB