1 IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 1313 of 2001 (Old No. 1730 of 1992) 1. Padam Singh S/o Dhan Bahadur R/o Tilachaod, P.S. Mahendra Nagar, Distt. Kanchanpur, Nepal. 2. Dil Bahadur S/o Pomal Bahadur R/o Dau Naur, P.S. Cainpur, District Bajang, Nepal. 3. Kishan Singh S/o Narayan Singh R/o Jamuva Goth, P.S. Tanakpur, Distt. Nainital. ...…………. Appellants Versus The State ...…………. Respondent Mr. Sanjeev Kumar Sah, Amicus Curiae for the appellants. Mr. H.C. Pujari, Addl. Govt. Advocate for the respondent-State. Coram : Hon’ble Prafulla C. Pant, J. Hon’ble Dharam Veer, J. Per Hon. Prafulla C. Pant, J. This appeal, preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as Cr.P.C.), is directed against the judgment and order dated 28.08.1992, passed by learned IV Additional Sessions Judge, Nainital, in Special Sessions trial No. 03 of 1991, whereby accused / appellants namely Padam Singh, Dil Bahadur and Kishan Singh were convicted under Section 8 read with Section 20 of the Narcotics Drug and 2 Psychotropic Substances Act, 1985 (hereinafter referred as NDPS Act) and each one of the convicts has been sentenced to undergo rigorous imprisonment for a period of 15 years and also to pay fine of Rs. 1,50,000/-. The trial court further directed that in default of non-payment of fine, the defaulter convict shall further undergo imprisonment for a period of three years. 2) Heard Mr. Sanjeev Kumar Sah, learned Amicus Curiae for the appellants and Mr. H.C. Pujari, learned Addl. Government Advocate for the State and perused the lower court record. 3) Prosecution story, in brief, is that Mehar Singh (P.W. 5) Dy. S.P. of Central Bureau of Investigation (for brevity hereinafter referred as CBI) received confidential information relating to smuggling of charas from Nepal to India through Banbasa-Tanakpur. On receiving the instructions from senior officers, a team of CBI officials which included N.S. Virk, K. Babu and other staff members along with Bhupendra Singh, Dilbagh Singh, Phool Kunwar, Surjan Singh, Shyam Phool and Jagdish Chandra reached Khatima on 24.04.1991. They arranged two local witnesses namely Hadis Ali and B.B. Bourai (P.W. 3) and proceeded towards Tanakpur, and contacted the informer, at about 11:00 P.M. On 25.04.1991, at 06:00 A.M., near the Military Camp of Sailani Got, within the limits of police station Tanakpur, they accompanied with aforesaid witnesses, saw four persons coming with gunny bags on their heads. The team surrounded them and disclosed their identity and demanded the checking. After 3 making statutory compliance of Section 50 of NDPS Act, the gunny bags of the accused persons were searched in the presence of the witnesses. Each of the gunny bags possessed by accused / appellants Padam Singh, Dil Bahadur and third accused Amar Kumar Singh weighed 18 Kgs. of charas, while the one being carried by the fourth accused Kishan Singh, who threw the bag on the spot, weighed 26 Kgs. of charas. The charas in all the four gunny bags were in the packets of one Kilogram each. Accused Kishan Singh was chased and apprehended at a distance from the spot. The formalities of search and seizure were completed and necessary memorandums were made and got signed by the officials of the CBI, witnesses, and the accused. A case No. 02 of 1991 was registered at New Delhi on the report of Mehar Singh, Dy. S.P. of CBI (P.W. 5). At the time of making recovery, samples were taken out of the packets in the four gunny bags. The same were sent for chemical examination and the samples were found containing the charas. After completion of investigation, the CBI submitted charge sheet against all the four accused for their trial in respect of offences punishable under Section 20 and Section 29 of the NDPS Act. However, accused Amar Kumar Singh, who was released on bail / parole during trial, abused the liberty and did not appear for trial. Thereafter, his case was separated. The Special Sessions Trial No. 03 of 1991 continued against rest of the three (present appellants). 4) After giving necessary copies to the accused, the trial court after hearing the parties, framed charge of offence punishable under Section 8 read with Section 23 of the 4 NDPS Act against each of the three accused / appellants, and an alternative charge was framed in respect of offence punishable under Section 8 read with Section 20 of the aforesaid Act against each one of them. Also, separate charge of offence punishable under Section 29 of the NDPS Act was framed against them. The accused / appellants pleaded not guilty and claimed to be tried. On this, prosecution got examined P.W. 1 Constable Phool Kunwar; P.W. 2 Bal Krishan, Asstt. Sub Inspector of CBI; P.W. 3 B.B. Bourai, Inspector, Central Excise and Customs, Rampur; P.W. 4 K.K. Arora, Sr. Scientific Officer of Central Forensic Science Laboratory and P.W. 5 Mehar Singh, Dy. S.P. of CBI (the Investigating Officer). 5) The evidence adduced by the prosecution was put to the accused / appellants by the trial court under Section 313 of Cr.P.C., in reply to which they alleged the same to be false. However, no evidence in defence was adduced on behalf of the accused / appellants. The trial court, after hearing the parties, found all the three accused guilty of the offence punishable under Section 8 read with Section 20 of the NDPS Act. However, no charge is said to have been found proved in respect of offence punishable under Section 29 of the Act, of which they were acquitted. In respect of charge relating to offence punishable under Section 8 read with Section 20 of NDPS Act the accused / appellants were heard on sentence, whereafter each one of the three accused / appellants has been sentenced to rigorous imprisonment for a period of 15 years and also directed to pay fine of Rs. 1,50,000/-. In default of payment of fine, the defaulter convict is directed to undergo 5 imprisonment for a further period of three years. Aggrieved by said judgment and order dated 28.08.1992, passed by IV Additional Sessions Judge, Nainital, in Special Trial No. 03 of 1991, this appeal was filed by the convicts before the Allahabad High Court on 09.09.1992, where it was admitted on 14.09.1992. The appeal is received by transfer to this Court under Section 35 of the U.P. Re-organization Act, 2000, for its disposal. 6) Before further discussion, we think it just and proper to mention here that the chemical examiner’s report (Ext. A –14) shows that the samples which were sent by the CBI for chemical examination in the form of Ext. A –1, Ext. B – 1, Ext. C –1 and Ext. D –1, on analysis / examination were found containing charas. Needless to say that the alleged recovery from the accused / appellants is in the large quantity, which can be nothing but commercial. 7) The prosecution witnesses have proved the personal search memos (Ext. A –6, Ext. A –7 and Ext. A –8) before taking search of the accused. P.W. 3 B.B. Bourai, Inspector Central Excise and Customs, Rampur, who witnessed the recovery of charas from the accused on 25.04.1991, at 06:00 A.M., has supported the prosecution story by saying that he along with CBI officials, at about 09:30 P.M., proceeded from Khatima towards Tanakpur, and reached Tanakpur at about 11:00 P.M. In the morning, at 06:00 A.M., he say he saw four persons carrying four gunny bags. On interception they admitted transporting charas. According to the witness, before that, the four were surrounded and their gunny bags were checked. Out of the 6 four, one made an attempt to escape, but he was also chased and caught. P.W. 3 B.B. Bourai further states that the accused were told by Mehar Singh (P.W. 5) that he was a Gazetted Officer, but still if the accused wanted their search could be made before some Magistrate. But, they did not opt for the second option. The recovery of bags of charas were made from the four accused. Each of the three bags contained 18 Kgs. of charas, while the fourth bag contains 26 Kgs. of charas. The witness has further corroborated that the sample was taken from the packets kept in the bags and marked A –1 A –2, B –1 B –2, C –1 C –2 and D –1 D –2. The witness has further proved the search memo prepared at the spot. The witness further told that the seizure memo (Ext. A –1) was not only signed by the CBI officials and the witnesses, but by the accused also. The witness has further told the court that the seized goods were sealed after seizure memo was prepared. 8) Ext. A –4 shows that the entry was made in the seized property register on 26.04.1991 at Delhi. P.W. 1 Constable CBI, Phool Kunwar has stated that on 25.04.1991, he took the complaint (Ext. A –5) (copy of search memo) given by Mehar Singh, to New Delhi. P.W. 2, Asstt. Sub Inspector CBI, Bal Krishan has stated that on receiving case property of four gunny bags marked A, B, C and D received in sealed condition an entry was made in the register of the case property (copy Ext. A –4). This witness also proved letter dated 29.04.1991 sent by Superintendent of Police CBI, New Delhi to the Director, Central Forensic Science Laboratory for chemical examination of the samples, a copy of which is Ext. A –3. 7 P.W. 4 K.K. Arora, Senior Scientific Officer has proved the fact that on receiving the samples (Ext. A –1, Ext. B –1, Ext. C –1 and Ext. D –1) chemical analysis and examination was done and report Ext. A –14 was prepared. The witness has further stated that in all the four samples charas was found. 9) P.W. 5 Mehar Singh, Dy. S.P. CBI has narrated and supported the entire prosecution story and given all details of raid, search, recovery and arrest of the accused, as mentioned above. The witness has further stated that the accused were informed that he (P.W. 5 Mehar Singh) was a Gazetted office, but if the accused wanted they could get the search made before the Magistrate. 10) Having re-examined the evidence on record and after hearing Mr. Sanjeev Kumar Sah, learned Amicus Curiae appearing on behalf of the accused / appellants and Mr. H.C. Pujari, Addl. Government Advocate for the State, we find that the prosecution story is fully proved by P.W. 3 B.B. Bourai and P.W. 5 Mehar Singh with all minute details, including the compliance of statutory mandatory provisions relating to search, seizure and arrest. The two witnesses had no enmity with the accused. Once the recovery of charas is proved from the accused / appellants, under the NDPS Act, the burden lies on the accused to show the same was lawful which they have not discharged. It is pertinent to mention here that the search was made at an open space and there was no need for search warrant being obtained before the search is made. The link evidence after the recovery of the charas that it was kept in 8 the sealed cover is also proved by the prosecution witnesses. P.W. 3 B.B. Bourai has proved that the charas was kept in sealed covers. P.W. 4 K.K. Arora has proved that seals were found intact when the samples were opened for examination. 11) Learned Amicus Curiae on behalf of the accused / appellants drew attention of this Court to Section 42 of the Narcotics Drug and Psychotropic substances Act, 1985, and argued that the P.W. 3 B.B. Bourai is not an independent witness. Assuming for a moment that B.B. Bourai being Inspector of Central Excise and Customs is not an independent witness, still his statement cannot be doubted as the large quantity of charas recovered from the accused / appellants cannot be said to have been planted on them. Though, in the present case complainant, who is the Deputy Superintendent of police himself investigated the crime, but same has not caused any prejudice to the accused. 12) For the reasons as discussed above, we do not find any error in the impugned judgment and order, which requires interference by this Court. Therefore, the appeal is liable to be dismissed. The same is dismissed. The Registry is directed to send the lower court record back to the trial court to make the accused / appellants (convicts) serve out the sentence awarded against them, if the same is not already served out. (Dharam Veer, J.) (Prafulla C. Pant, J.) Dt. June 24, 2008. H. Negi