HIGH COURT OF UTTARAKHAND, AT NAINITAL Criminal Appeal No.341 of 2007 Smt. Jauhara Katoon wife of Jakir Resident of Balwa Gothai Police Station-Kahariya, District Pashchami Champaran Bihar Presently residing at Sapna Takej Roorkee Police Station-Kotwali Roorkee, District-Haridwar. ……Appellant Versus State ……Respondent Mr. Pawan Kumar, Advocate for the appellant. Mr. Nandan Arya, Assistant Government Advocate for the respondent-State. JUDGMENT Hon’ble J. C. S. Rawat, J. This is a criminal appeal filed by the appellant against the judgment and order dated 30.8.2007 passed by the then Special Addl. Sessions Judge, Roorkee, District Haridwar in Special S.T. No.03/2006, (State Vs. Smt. Jauhara Khatoon) whereby the Special Addl. Sessions Judge has convicted the appellant and sentenced her to undergo RI for ten years and to pay fine of rupees one lakh under Sections 8/20 of the N.D.P.S. Act. In default of payment of fine, the appellant shall undergo imprisonment for further six months. 2. The case of the prosecution, in brief, is that on 02.10.2006, S.S.I Surendra Singh Samant alongwith S.I Suryabhushan Negi, H.C.P Surendra Pal Singh, Const. Anil Kumar, Const. Vijay Kumar, Const. Prem Prakash, Const. Yogendra Bhandari and Lady Const. Sushma was in search of an accused wanted in Case Crime No. 243/2006 for the offences relatable under Sections 363 and 364 IPC. When they reached near the Solani River, they saw two persons, one man and the other was a lady, coming from Gang Nahar side. On seeing the police patrolling party, both of them started returning back. The police suspected their conduct and, as such, apprehended them immediately. Thereafter, on being enquired by the police, they disclosed their names as Jakir permanent resident of West Champaran (Bihar) and the other lady accompanying him disclosed her name as Smt. Jauhara Katoon (herein the accused-appellant), wife of Jakir. Both the accused were carrying bags in their hands. The police party made a thorough search of their bags. The accused-appellant being a lady, was searched by lady constable Sushma in presence of S.S.I Surendra Singh Samant. When the bag of the accused-appellant was searched, two pieces of ‘Charas’ was found inside the bag weighing about 1 kg and it was recovered by S.S.I Surendra Singh Samant immediately. The other co-accused Jakir on being searched was also found carrying about 1 kg of ‘Charas’ in his bag. The contraband ‘Charas’ found in their possession was then seized and sealed. After the search and seizure, S.S.I Surendra Singh Samant PW1 alongwith the patrolling party took the appellant and the other co-accused to the police station where two separate cases were registered against the appellant and the co-accused. Thereafter the matter was investigated by the police. The entire recovered contraband was sent to the Forensic Science Laboratory, Dehradun for its chemical examination and weighment. From the report of the laboratory, it was revealed that the accused-appellant was carrying 1.008 kg ‘Charas’ in her bag whereas the other co-accused was carrying less than 1 kg ‘Charas’ in his bag. After completing the investigation, the Investigating Officer submitted the chargesheet against the accused-appellant before the Special Judge. (It is pertinent to mention here that the trial of the co-accused proceeded separately in a separate case and was convicted by the trial court). 3. The trial court framed charge against the accused appellant under Sections 8/20 N.D.P.S. Act. The accused appellant denied the charge levelled against her and claimed trial. 4. The prosecution in support of its case examined S.S.I Surendra Singh Samant PW1 and Surendra Pal Singh PW2, Const. Dharmendra Singh PW3, Permanand Ram PW4, Mani Bhusan Srivastava PW5 and Mahfuz Khan PW6. S.S.I Surendra Singh Samant PW1 and Surendra Pal Singh PW2 are the witnesses of the search, seizure and arrest of the accused. Const. Dharmendra Singh PW3 is the witness who had taken the seized contraband substance to the Forensic Science Laboratory, Dehradun for its chemical examination. Permanand Ram PW4, the Tehsildar is the witness to the fact that he reached at the spot after the search was made by the patrolling party. He has also stated that the contraband substance was sealed in his presence. Mahfuz Khan PW6 is the Malkhana Moharrir of Police Station who has stated that the said contraband substance was handed over to him by the police patrolling party. Mahfuz Khan PW6 has also further stated that the said contraband substance was kept in the ‘malkhana’ where it remained intact until it was sent to the Forensic Science Laboratory, Dehradun. Mani Bhusan Srivastava PW5 is the Investigating Officer of this case. 5. In the statement recorded u/s 313 Cr.P.C. the accused- appellant denied all the averments made in the prosecution evidence. She has further stated that she has been falsely implicated in this case and the witnesses are giving false statements against her. She has not adduced any oral or documentary evidence in support of her defence. 6. The learned trial court after appreciation of the evidence found the accused-appellant guilty under Sections 8/20 N.D.P.S. Act and convicted and sentenced the appellant as mentioned above. I have pointed out above that the other co-accused Jakir has been convicted by the trial court in a separate case, as such, I specifically enquired from the learned A.G.A for the State as to whether an appeal is filed either by the State or by the co-accused. In reply to this, the learned A.G.A stated that as per his knowledge, no appeal is filed either by the State or by the co-accused. 7. I have heard learned counsel for the parties. I have also gone through the evidence and material on record. 8. At the outset, it would be proper to indicate that the entire seized quantity of the contraband which was recovered from the spot was sent to the Forensic Science Laboratory, Dehradun for its chemical examination. It was reported by the laboratory that the contraband substance seized from the possession of the accused-appellant was actually ‘Charas’, weighing 1.008 kg in weight. There is no doubt that the contraband substance which is said to be recovered from the possession of the appellant was a ‘Charas’ and its possession is prohibited under the provisions of the Narcotics Act. 9. Now, it is to be adjudicated upon as to whether the appellant was having the said contraband in her possession or not. It is also to be examined whether the said contraband was actually recovered from her possession or not. In support of the prosecution case and to substantiate the above averments that the seized contraband was actually recovered from the possession of the accused- appellant, the prosecution examined S.S.I Surendra Singh Samant PW1 and Head Const. Surendra Pal Singh PW2. Both the witnesses have stated in their evidence that on 02.10.2006, they alongwith other police personnel were in patrolling duty in connection with the arrest of an accused wanted in Case Crime No. 243/2006 under Sections 363 and 364 IPC. During the course of patrolling, when they reached near the roadside of the Gang Nahar, they saw the appellant alongwith the co-accused coming from the opposite direction. On suspicion over the conduct of the appellant as well as the other co-accused, the police patrolling party immediately apprehended them. On preliminary enquiry, they disclosed their names as above. From the search of the accused-appellant, two pieces of ‘Charas’ weighing about 1 kg collectively were recovered from her bag which she was carrying at that time. As the appeal of the other co-accused is not before me, as such, I am not discussing the other part of the recovery made from the co-accused. Permanand PW4, the Tehsildar has stated in his evidence that upon receiving the direction from the S.D.M in connection with the seizure and arrest of the accused persons near Gang Nahar by the police party, he immediately reached at the spot and found that the contraband ‘Charas’ was recovered from the possession of the accused-appellant. He has further stated in his evidence that the police was preparing memos of recovery at that time and, the said contraband substance was sealed as well as the ‘furd’ was prepared in his presence. After undergoing the above process, S.S.I Surendra Singh Samant PW1 and Head Const. Surendra Pal Singh PW2 took the accused-appellant to the police station where a case was registered against her. 10. It was contended by the learned counsel for the appellant that the appellant was not informed of her legal right provided under Section 50 NDPS Act in connection with her personal search which should have been conducted only before a magistrate or a gazetted officer. The learned counsel for the appellant further contended that the provisions of Section 50 are mandatory; non-compliance of the provisions would render the search illegal and accused- appellant cannot be convicted on this ground alone. To support the above contention, the learned counsel for the appellant drew my attention to the evidence of Surendra Singh Samant PW1 and Surendra Pal Singh PW2 as well as to the memo of seizure and arrest. No doubt that accused- appellant was not informed of her legal right in regard to her personal search which should have been conducted only before a magistrate or a gazetted officer as per the provisions of the Section 50 of the NDPS Act. The learned A.G.A refuted the contention and contended that the police patrolling party had no prior information with regard to the accused-appellant’s arrival there, since the police patrolling party were on a separate mission. It was mere a co- incidence that the accused-appellant met the police party in the way and later on seeing the unnatural conduct of the accused persons, the police intercepted them. It is apparent from the evidence that Surendra Singh Samant PW1 got searched of the accused-appellant with the help of a lady constable Sushma in his presence, the accused-appellant never informed the police party that she was carrying the contraband ‘Charas’ in her bag and it came to light only when her bag was searched and the contraband ‘Charas’ was found in it. The interception of the accused-appellant on suspicion, was un-expected and by chance, and it is out of suspicion due to which she had been searched before informing of her legal right provided under the Narcotics Act. Therefore, it cannot be said that the search was made having the knowledge that she was possessing the charas. There was no need to inform her as to fact that she wanted to get her searched in presence of the Magistrate. Apart from this, the recovery of the contraband substance was made from the bag and not from her person of the recovery of the contraband charas from the possession of the accused-appellant were made without any expectation of the police that she was having charas, the said provision of Section 50 would not be attracted in the case. In view of the above, I do not find any force in the contention raised by the learned counsel for the appellant. 11. The learned counsel for the appellant further contended that the prosecution has not adduced other witnesses of the recovery in whose presence the contraband was recovered. It was also contended by the learned counsel for the appellant that lady constable Sushma was also not produced before the court; the independent witnesses were not taken at the time of the seizure and arrest. The learned A.G.A refuted the contention. The accused-appellant’s search and arrest was sudden as the police patrolling party was in search of another accused wanted in another case. The police party had no prior information that the accused- appellant and the other co-accused were carrying ‘Charas’. Hence, the police had no occasion to get the independent public witnesses at the spot whereas in regard to the other police witnesses is concerned, the prosecution has adduced the evidence of Surendra Singh Samant PW1 in whose presence the entire recovery was made. The prosecution adduced the evidence of Surendra Pal Singh PW2. Both are the police witnesses. They have corroborated each other on the material points. If their evidence is found credible and cogent, there is no need to adduce further evidence on the same point. It is settled principle of law that the multiplicity of witnesses is not required to substantiate a proved fact. It is the quality and not the quantity of the evidence which is required. Thus, non-production of other police witnesses is not fatal to the prosecution. I do not find any force in the contention raised by the learned counsel for the appellant. 12. The learned counsel for the appellant further contended that the prosecution has not established the identity of the recovered bags from which the charas was recovered. The learned counsel for the appellant further emphasized that both the appellant and the co-accused were having bags in their hands and the prosecution could not establish before the court that it is the same bag from which the contraband substance was recovered which is alleged to be in possession of the accused-appellant at the time of recovery. The learned A.G.A refuted the contention and contended that both Surendra Singh Samant PW1 and Surendra Pal Singh PW2 have categorically stated that the said recovery has been made from the possession of the accused appellant. It is apparent from the evidence of Surendra Singh Samant PW1 and Surendra Pal Singh PW2 that they have identified the said bag and the said contraband charas produced before the court. Now, it is a question as to how the witnesses have identified the bag. It is very much in the evidence of the prosecution as well as in documentary evidence that the appellant was having a printed flowery bag in her hand whereas the other co-accused was having a blue bag in his hand. Thus, according to the prosecution each bag has its own identity. I have further noticed that no effective cross-examination has been made to rebut this evidence of the prosecution. The learned counsel for the appellant could not demonstrate me as to how the evidence of the prosecution is demolished on the point of the identity of the bag possessed by the accused-appellant. Thus, the recovered contraband produced before the court was identified by the witnesses correctly. I do not find any force in the contention of the learned counsel for the appellant. 13. The learned counsel for the appellant further contended that the police did not weigh the seized contraband at the spot. The prosecution has stated that the contraband ‘Charas’ recovered from the possession of the appellant was more than 1 kg in weight. The perusal of the record reveals that the said contraband ‘Charas’ was immediately sealed at the spot and thereafter, it was kept in the ‘malkhana’. Later on, it was sent to the Forensic Science Laboratory, Dehradun for its chemical examination. The entire recovered contraband was sent to the laboratory, where the net weight of the substance was taken by the expert of the laboratory. As per the report of the laboratory, the net weight of the contraband ‘Charas’ recovered from the accused-appellant was 1.008 kg. The prosecution was quite fair and has come forward with a case that they were in a patrolling duty in order to arrest an accused wanted in another offence. The police party found the accused-appellant all of a sudden and apprehended her on suspicion. After the search, ‘Charas’ was recovered from her possession. Since, the police party had no prior information with regard to the accused- appellant’s arrival there having ‘Charas’ in her possession, that’s why the police patrolling party did not have the weigh machine with them. The police witnesses have categorically stated that due to the sudden recovery, they could not weigh it. The said entire recovered substance of ‘Charas’ was sent to the Forensic Science Laboratory where net weight was weighed and it was found that it was a commercial quantity. It is also pertinent to mention here that the co-accused, in whose possession 1 kg of ‘Charas’ was found, was also weighed by the laboratory and found little short of 1 kg in weight. So the co-accused was convicted accordingly by the trial court. In case of the accused-appellant, the recovered contraband charas was reported to be above 1 kg in weight, thus the case against her is proved under Section 8/20 of the Narcotics Act. 14. The evidence of the witnesses with regard to the recovered contraband, which was first lodged in the police station and thereafter, it was taken to the Forensic Science Laboratory, Dehradun, is also on record and is credible and cogent. The trial court after going through the entire evidence found it to be trustworthy and not found tainted or unreliable. The trial court also found the evidence led by the witnesses credible, cogent and consistent. I have also gone through the entire evidence of the prosecution with the help of the counsel of the parties and I am of the view that the evidence of the prosecution is consistent and there is no infirmity in the impugned judgment. I do not find any fault in the approach of the trial court in coming to the conclusion that the prosecution had established its case beyond reasonable doubt. There is also no enmity of the police officials with the accused-appellant. 15. In view of the aforesaid reasons, I hold that the prosecution has established the guilt beyond reasonable doubt against the accused-appellant. I find that the learned trial court has rightly convicted and sentenced the accused- appellant and there is no infirmity in the impugned judgment and order passed by the learned trial court. The accused- appellant is liable to be convicted and sentenced as awarded by the trial court. Hence, the appeal is liable to be dismissed and is hereby dismissed. 16. Let the Lower Court Record be remitted back for compliance. Compliance report be submitted within four months from the date of receipt of order. (J.C.S.Rawat, J.) Dated 04th April, 2008 V.K.