IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 11 of 2009 Ravindra Singh. .……… Appellant Versus State of Uttarakhand. ………. Respondent Mr. Harsh Pal Sekhon, Advocate for the appellant. Mr. Amit Bhatt, Addl. Government Advocate for the State / respondent. Coram: Hon’ble Barin Ghosh, C.J. Hon’ble V.K. Bist, J. Dated: 6th September, 2011 BARIN GHOSH, C. J. The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “Act”) is a special Act enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. According to the Act, narcotic drugs are coca leaf, cannabis (hemp), opium, poppy straw and include all manufactured goods, whereas psychotropic substances are those which have been specified in the Schedule. In terms of the Act, “cannabis (hemp)” means charas as well as ganja and also any mixture thereof. Section 8 of the Act prohibits, amongst others, possession by any person of any narcotic drug, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act or the rules or orders made thereunder and, in case, where any such provision imposes any requirement by way of licence, permit or authorisation, also in accordance with the terms and conditions of such licence, permit or authorisation, from the date of coming into force of the Act, i.e. with effect from 14th November, 1985. In terms of Section 10 of the Act, the State Government may permit possession of cannabis, excluding charas. At the same time, Section 9 of the Act does not authorise the Central Government to permit possession of charas, although under Section 9A of the Act, it may do so in public interest. That has not been done yet. Section 20 of the Act 2 provides that whoever, in contravention of any provision of the Act, possesses cannabis of commercial quantity, shall be punished with rigorous imprisonment for a term, which shall not be less than 10 years, but which may extend to 20 years, and shall also be liable to fine, which shall not be less than one lakh rupees, but which may extend to two lakh rupees, provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. According to the Act, “commercial quantity” means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. By a notification, amongst others, 1 kg of cannabis (charas) has been declared by the Central Government as commercial quantity. 2. On 21st November, 2006, at 19:35 p.m., a First Information Report was lodged. The same was lodged on the basis of a seizure memo. It was alleged that, on 21st November, 2006 at 13:05 p.m., S.I. Girish Chandra Tamta, S.I. C.P. Singh, S.I. J.S. Gabrayal, Constable Jitender Singh, Constable Gulshan Negi, Constable Tejveer Singh, Constable Naveen Joshi left on Gypsy No. 04 C / 3072, driven by Gajendra Dhyani, in search of wanted criminals. It was stated that when the police party reached in front of Railway Station, they saw two persons coming from inside the Railway Station carrying plastic bags in their hands. Seeing the vehicle of the search party, they started running inside the Railway Station. The search party chased them and caught them near the reservation center at about 15:30 p.m. One of them was the appellant herein. On questioning, the appellant is said to have disclosed that, in the plastic bag, he was carrying charas. The appellant was made to open the bag, where 13 packets were found, each weighing about 1 kg. Those were sniffed and it appeared to be charas. Sample of 100 grams was taken and the remaining 12 kg 900 grams was kept in the polythene packets and the bag containing the same. Those were sealed and the sample of the seal was prepared. A similar recovery was made from the other person Raju @ Bablu. Two separate crime cases were instituted and SI K.R. Sharma was handed over the investigation. It was stated that before the search was made, appellant was told that the same can be made before a Magistrate or a Gazetted Officer if he wish, when the appellant allowed the police party to search him in writing bearing his 3 signature. At the time of seizure, appellant was taken in custody. Sample charas was sent to forensic laboratory, whereupon, it was reported that the sample was of charas. In the circumstances, a police report was filed, which was accepted by the court and, on the basis thereof, charge was framed. Appellant denied the charge. Hence, trial commenced. 3. At the trial, prosecution produced the consent letter, the seizure memo, arresting information memo, G.D. Departure, First Information Report, forensic science laboratory report, site map and the charge sheet. The prosecution also produced oral evidence through SI Girish Chandra Tamta, SI Jitendra Singh Gabrayal, Constable Naveen Chandra Joshi and SI K.R. Sharma. Prosecution witnesses, namely, SI Girish Chandra Tamta, SI Jitendra Singh Gabrayal and Constable Naveen Chandra Joshi stated what was alleged in the First Information Report. In his evidence, SI K.R. Sharma stated that, initially, investigation was done by SI B.D. Joshi and, on 24th November, 2006, he took over the investigation. He stated that he took the statement of the complainant and, on his pointing out, investigated the place of incident and prepared the site map. He stated that statements of witnesses were recorded and the sample of charas was sent to forensic laboratory. Forensic laboratory reported that the sample was confirmed as charas. He, accordingly, prepared and submitted the charge sheet. The accused was examined under Section 313 of the Code of Criminal Procedure, when he stated that police took his custody from a car of which he was driver and that a false case has been made against him. He also stated that the prosecution witnesses are deposing falsely against him. No witness appeared on behalf of the defence nor any documentary or otherwise evidence was produced on behalf of the defence. 4. At the trial, it was contended that there was non-compliance of Section 50 of the Act. Section 50 of the Act lays down the conditions under which search of persons is to be conducted. In the instant case, search of the appellant did not yield recovery of any narcotic drug or psychotropic substance. The same resulted in recovery of a sum of Rs. 250/-. The appellant contended that, even search of the bag, allegedly containing charas, could only be carried out after complying with the provisions of Section 50 of the Act. In 4 this connection, trial court relied upon the judgment of the Hon’ble Supreme Court rendered in the case of Madan Lal vs. State of Himanchal Pradesh, reported in 2003 S.C.C. (Criminal) 1664, where the Hon’ble Supreme Court observed that compliance of the provisions of Section 50 of the Act is required when the person is to be searched and not when a container or bag in possession of the person concerned is to be searched. The learned trial court also relied upon the judgment of the Hon’ble Supreme Court rendered in the case of State of Rajasthan vs. Daulat Ram, reported in 2005 S.C.C. (Criminal) 1594, where the Hon’ble Supreme Court held that Section 50 of the Act does not apply in relation to bag carried over the head of the person. In the circumstances, the learned court below rejected the contention that, in relation to the search of the bag in question, there was any requirement of complying with the provisions of Section 50 of the Act. Similar contention was raised before us, but for the reasons already indicated by the Hon’ble Supreme Court in the judgments referred to above, we are also of the view that there was no requirement of complying with the provisions of Section 50 of the Act while searching the bag carried by a person. 5. It was contended before the trial court that the police party left the police station at 13:05 p.m. and the incident occurred at 15:30 p.m. at the Railway Station, whereas the distance between the place of incident and the police station is only half kilometer and it takes only 10 minutes to reach there. It was contended that no explanation has been given by the police party what they were doing from 13:05 p.m. to 15:30 p.m. The learned trial court held that the police party left in search of wanted criminals as is evident from the G.D. Entry. The evidence on record do not suggest that the police party went directly to the place of incident from the police station. Similar contention was raised before us. In addition to what has been held by the trial court, we would only add that the statements made by the prosecution witnesses, in course of examination-in-chief and cross-examination, comprised of the evidence tendered by them. There was no cross-examination of any of the prosecution witnesses, who were part of the police party, as to what they were doing in between 13:05 p.m. and 15:30 p.m. There was also no suggestion that the police party went to the place of incident directly from the police station. In 5 the circumstances, the learned trial court has correctly come to the conclusion that there is nothing on record that the police party went directly to the place of incident from the police station. 6. It was contended before the trial court that while, according to Jitendra Singh Gabrayal, recovery was made from a sack; prosecution case was that recovery was made from a bag. It would be evident from the evidence of Jitendra Singh Gabrayal, as correctly noted by the learned trial court, that Jitendra Singh Gabrayal was not making any difference between a sack and a bag and, in fact, he had stated that the bag recovered from the accused was white in colour. We find no reason not to accept what has been held by the trial court in that regard. 7. It was contended that the sample was sent to the forensic science laboratory from the court of First Additional Sessions Judge, but the report of the forensic science laboratory showed that it received the sample bearing seal of Judicial Magistrate and, as such, there is no certainty that sample of seized charas was sent to forensic science laboratory. The learned trial court held that when seal of the court is not available, then the seal of other court is affixed and the same does not make examination of the sample doubtful. We would like to add that the Act nowhere requires that sample of contraband is to be drawn and the same must be analysed by a forensic science laboratory, when the contraband is available for examination by the court. Such a requirement has been mandated only when the contraband is disposed of, as is provided in Section 52A of the Act. When the contraband was available to the court, as is clear from the judgment and order under appeal, there was no legal necessity, in fact, of drawing any sample of the contraband or to send the same for analysis. It could be proved by making an assertion to that effect and, in the event, such an assertion was controverted, the court, in course of trial, even at the instance of the appellant, could draw sample and send the same for analysis to an appropriate laboratory. While an assertion to that effect was made by each of the prosecution witnesses, the same was not controverted by the defence. There was no request by the defence to draw sample and to have the same analysed. It must be kept in mind that a report contains opinion of the 6 reporter, which is not binding on the court before whom the same is tendered. The court may or may not presume the correctness thereof. That will depend on the facts and circumstances of the case. When contraband was available to the court and, despite assertion by prosecution witnesses that the same was charas, in the absence of a denial thereof by the defence, no fault can be ascribed to the trial court in relying upon the report in addition to the evidence given by the prosecution witnesses. 8. Similarly, the contention that while 100 grams of sample was drawn, 106 grams of sample was received by the forensic science laboratory; is of no consequence and, at the same time, confusion purported to have been raised as regards the date of sealing of the sample and receipt thereof by the forensic science laboratory is of no consequence. Furthermore, there was no cross- examination in regard thereto. 9. It was contended before the trial court that, although the incident took place near the reservation center of the Railway Station normally frequented by people, but no independent witness came to depose. Although, in accordance with Section 100 of the Code of Criminal Procedure, 1973, independent witnesses are required for search of a closed place, but there is no such requirement in relation to seizure of any property, as is provided in Section 102 of the said Code. In the instant case, the search was not made in a closed place. Furthermore, Sections 42 and 43 of the Act does not impose any such requirement and, particularly, when seizure is made in public place. At the same time, law declared by the Hon’ble Supreme Court in Abdul Majid Abdul Haq Ansari vs. State of Gujarat, reported in 2004 S.C.C. (Criminal) 1068, makes it abundantly clear that it is up to the court to believe the police witnesses or not to believe them. The defence could not bring on record any substance, in course of cross-examination, which could create any reasonable doubt as to the testimony of the police witnesses. The learned trial court rightly posed the question, why charas would be shown to have been recovered from an innocent person. There was not even a suggestion that the appellant had any enmity with any of the prosecution witnesses or with 7 anyone, who could influence the prosecution witnesses to put the blame of recovery of 13 kgs. of charas upon the appellant. 10. Before us, the learned counsel for the appellant cited the judgment of a Division Bench of this Court rendered in the case of Mr. Harman Chrust vs. State, reported in 2005 (1) U.D. 727, only for the proposition that, in relation to recovery and the seizure, Clause 1.9 of the Standing Instruction No. 1/88 dated 15th March, 1988, issued by the Narcotics Control Bureau, New Delhi, was not complied with. The said clause deals with taking of sample. As aforesaid, the mandatory provisions of the Act, dealing with sample, are applicable in relation to those substances, which have been destroyed, as is provided in Section 52A of the Act and not when the substance is available for examination by the court at the trial. The learned counsel also cited a judgment of a learned Single Judge of this Court in the case of Sanjay Chaudhary vs. The State, reported in 2010 (1) U.D. 344. The same also dealt with obligation pertaining to sample, which too, as aforesaid, is a requirement when, in terms of Section 52A of the Act, the substance has been destroyed. Similar such judgments of learned Single Judges of this Court were cited, which specifically dealt with the provisions contained in Section 52A of the Act. 11. It was lastly contended that the appellant was found, in his possession, a sum of Rs. 250/- only. The same would suggest the status of the appellant in relation to the crime alleged. It was contended that thorough investigation was not made and, accordingly, the main kingpins were not nabbed. It was submitted, at the best, appellant was a courier and, accordingly, the punishment awarded is too harsh. It was contended that, having regard to the age of the appellant and considering the fact that he is the sole earning member of the family having a wife and little children, the learned Judge ought not to have awarded punishment as has been awarded and, accordingly, this Court must interfere. The fact remains that even a courier, in possession of charas, is liable to be punished in the manner prescribed in Section 20 of the Act. The learned trial court, in view of the mandate contained in Section 20 of the Act, could not award a sentence below 10 years of rigorous imprisonment, nor 8 could impose a fine less than Rs. 1 lakh, inasmuch as, the quantity of charas, found in possession of the appellant, was in excess of commercial quantity. Whereas the commercial quantity is 1 kg of charas; 13 kgs of charas was recovered from the appellant. In the circumstances, the learned trial court could award sentence of 20 years of rigorous imprisonment and also fine up to Rs. 2 lakhs. The learned trial court has already shown enough mercy by awarding rigorous imprisonment of 13 years and a fine of Rs. 1 lakh. The fine awarded was the minimum fine awardable. We, accordingly, find no reason to interfere. 12. The appeal fails and the same is dismissed. (V.K. Bist, J.) (Barin Ghosh, C. J.) G