Dismissed

Sitaram v. Union of India

Allahabad HC8 Dec 2020CRLA/340/2016

Case brief

AI extract

What is this about?

In two criminal appeals against conviction and sentence for possession of 9870 gms of Charas, the High Court rejected pleas regarding non-examination of independent witnesses, alleged plant of evidence, violation of Section 50 N.D.P.S. Act, and defects in sample sealing, holding the prosecution evidence reliable and the trial court's judgment without infirmity.

What did the court decide?

Both appeals were dismissed, affirming the conviction and sentence under the N.D.P.S. Act.

Sitaram Vs Union of India — Narcotics (NDPS) | Allahabad HC (2020)

¶1

¶2

Reserved

¶3

Case :- CRIMINAL APPEAL No. - 340 of 2016 Appellant :- Sitaram Respondent :- Union of India Counsel for Appellant :- Anand Srivastava,Bhuwan Raj,Karunesh Pratap Singh,Praveen Kumar Srivastava Counsel for Respondent :- Krishna Agrawal

¶4

And

¶5

Case :- CRIMINAL APPEAL No. - 229 of 2016 Appellant :- Baldev Kumar And Another Respondent :- Union of India Counsel for Appellant :- Rajiv Lochan Shukla,Karunesh Pratap Singh Counsel for Respondent :- Krishna Agrawal,Krishna Agrawal

¶6

Hon'ble Mrs. Sunita Agarwal,J.

¶7

Heard Sri Praveen Kumar Srivastava and Sri Karunesh Pratap Singh learned counsels for the appellants, Sri Gaurav Mahajan and Sri Ramesh Chandra Shukla learned counsels for the respondent.

¶8

The prosecution version as unfolded during trial is as under:-

¶9

On 29.12.2012, Sri Prakash Tiwari (PW-1), who was posted as Inspector, while on duty in Indo-Nepal Border at the Barrier received information that a Maruti Swift car Registration No. “HP34 C 5004” was about to cross the Barhni Barrier from the side of Nepal, carrying some illegal goods. This information was transmitted in writing to the Senior Officer, Superintendent Sri S.K. Tiwari, as “Exhibit Ka-15”. On the said intimation, direction was given to PW-1 to keep a close watch on Maruti Swift car. The Superintendent Sri S.K. Tiwari and other Officers/Superintendents available in the nearby office also reached at the barrier. Two local persons namely Ali Ahmad and Azeez were requested to become public witness during the course of search of Maruti Swift car to which they acceded to.

¶10

At about 9:00 P.M., a Maruti Swift car No. “HP34 C 5004” coming from the side of Krishna Nagar, Nepal reached the barrier of Land Customs Station at Barhni. Three persons were traveling in the same. When inquired, the driver of the car disclosed his name as Baldev Thakur,

¶11

¶12

the accused Sita Ram was sitting on the front seat whereas accused Bhavani Prasad was on the rear seat of the car. They were intimated that search was to be carried out in view of the intimation received by the officers. They initially denied carrying any illegal good but later, they accepted that they were carrying 'Charas' in the vehicle. They were informed of their rights under Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the N.D.P.S. Act”) to be searched in the presence of a Magistrate or a Gazetted officer. The accused persons, however, gave consent for search to be conducted by the officers present on the spot. They, however, requested that they be taken to a secure place as lot of crowd was collected near the barrier. The officers brought them to the office of the department near the barrier of Land Customs Station Barhni, where search was conducted.

¶13

On the search of Maruti car, 9 small packets and 9 big packets were recovered from inside the dashboard of the car whereas one big packet was seized from below the rear seat. The seized 19 packets were recovered in plastic bags which were taped. The total weight of the seized 'Charas' was 9870 gms. Seizure memo, “Exhibit Ka-2” was prepared. Samples of each packet was taken and a uniform mixture of approximately 200 gms. was prepared which was then separated in 8 packets of 25 gms. each. The samples were sent for chemical examination with the test memo no. 82/2012-13 and test memo no. 81/2012-13 (“Exhibit Ka-11” and “Exhibit Ka-13”; respectively). Letters sent to the chemical examiner dated 29.12.2012 are on record as “Exhibit Ka-10” and “Exhibit Ka-12”; respectively. The intimation of arrest of the accused on 29.12.2012 at about 22:00 hours had been sent to the Assistant Commissioner, Custom (P) Division, Gorakhpur, as “Exhibit Ka-14”. The chemical examiner submitted a report dated 19.02.2013, wherein it was confirmed that on the microscopic, chemical and chromatographic examination, the samples under reference answered positive test for

¶14

¶15

“Charas”.

¶16

The accused persons pleaded not guilty. Their defence was that they had been falsely implicated.

¶17

The trial court has held the testimony of the Investigating Officer to be reliable and unbreakable supported by PW-2 S.K. Tiwari, PW-3 Sushil Kumar Srivastava, PW-4 Dharm Singh, PW-5 Ajay Mahantha, the officers of Land Customs Station, Barhni. It was held that there was full compliance of the statutory provisions contained in Sections 42, 50 and 52A of the N.D.P.S. Act. The appellants herein have been convicted and sentenced to 10 years rigorous imprisonment and one lakh fine each. In case of non-deposit of fine, each appellant has to undergo additional rigorous imprisonment of two years. The punishments awarded to the appellants under Section 20(b)(ii)(C) and Section 23(c) of the N.D.P.S. Act are to run concurrently.

¶18

Learned counsel for the appellants vehemently submits that no independent witness of recovery had been examined. Only the officer who prepared recovery memo namely Sri Prakash Tiwari (PW-1) entered in the witness-box to substantiate the recovery. Moreover, the recovery of incriminating material was not made on the spot rather it was a planted recovery and has been shown to be made in the office. All officers present on the spot did not sign the recovery memo.

¶19

Reliance is placed on the decisions of the Apex Court in Ritesh Chakarvati vs. State of M.P.¹ , Union of India vs. Bal Mukund² and of this Court in Kishan Chand vs. State of U.P.³ , Vijay Pandey vs. State of U.P.⁴ to substantiate the said submission.

¶20

Learned A.G.A., however, placing the material on record to submit that interference in the decision of the trial court is unwarranted as the prosecution has proved the offence beyond reasonable doubt.

¶21

Considering the same, this Court finds that the recovery memos

¶22

1 2007 (1) JIC 1 SC

¶23

2 2009 (12) SCC 161

¶24

3 2019 (107) ACC 688

¶25

4 2019 (109) ACC 647

¶26

¶27

have been prepared in the presence of public witnesses (Panch witnesses). Moreover, the recovery made from the accused was put to them while recording their statements under Section 313 Cr.P.C. Neither any averment was made regarding bias or prejudice of any of the custom official with that of the accused nor there is any allegation of enmity of the officials. The plea that recovery was planted by PW-1, therefore, does not stand to reason. The non-examination of public witness in the course of trial cannot frustrate the case of the prosecution.

¶28

The next plea is with regard to non-compliance of the mandatory provisions of Section 50 of the N.D.P.S. Act which has no force, inasmuch as, the recovery of contraband article (Charas) was made from the Maruti car and not from the person of the accused. Personal search was though conducted to ascertain whether any illegal article was being carried by the accused. Due procedure was followed, inasmuch as, the accused were informed of their rights to get search in the presence of the Magistrate or Gazetted officer. The accused persons gave in writing opting to be searched by the officers who caught them.

¶29

As far as the compliance of Section 50 of the N.D.P.S. Act, this Court may note the decision of the Apex Court in Prabha Shankar Dubey vs. State of M.P.⁵ wherein it was held that the purpose of informing the accused (under Section 50 of the N.D.P.S. Act) is to ensure that there is transparency in the procedure. This provision is aimed at ruling out allegations of false implication. There is no specific manner in which the information/intimation is required to be given. The provisions of Section 50 of the N.D.P.S. Act make it imperative and obligatory and cast a duty on the investigating officer to ensure that the search of the person (suspect) concerned is conducted in the manner prescribed by intimating to the person concerned about the existence of his right that if he so requires, he shall be searched before a Gazetted Officer or a Magistrate. In case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate would cause serious prejudice to the 5 (2004) 2 SCC 56

¶30

¶31

accused and render the recovery of the illicit articles suspect and vitiate the conviction and sentence of the accused. In the said situation, the search could be conducted in the presence of the Gazetted Officer or the Magistrate to the exclusion of the officer making the offer for the search if accused so chose. It was held that the option given to the accused (suspect) is not limited and affords the person to be searched a safeguard. There is, however, no specific form prescribed or intended for conveying the information required to be given under Section 50. What is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in presence of one of the officers named in the Section itself. Since no specific mode or manner is prescribed or intended, the Court has to see the substance and not the form of intimation. Whether the requirement of Section 50 has been met is a question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or strait-jacket formula.

¶32

The object of Section 50 is to ensure that at a later stage the accused (suspect) does not take a plea that the articles were planted on him or that those were not recovered from him. Fair play and transparency in the process of search has been given the primacy. However, Section 50 does not involve any self-incrimination. It is only a procedure required to protect the rights of an accused (suspect) being made aware of the existence of his right to be searched if so required by him before any of the specified officers.

¶33

It can, thus, be seen that wherein there is sufficient compliance of requirement of Section 50 of the Act, by intimation to the accused of his right to be searched in the presence of the Magistrate or a Gazetted Officer, if he fails to exercise his right, the trial would not vitiate. In the instant case, it was not pleaded by the accused persons that they were unaware of their rights or that they were mislead on that account in any manner. The plea of violation of Section 50 of the N.D.P.S. Act, in general and vague manner, therefore, cannot be taken into consideration to

¶34

¶35

interfere.

¶36

Reliance placed on the decisions of the Apex Court in Dilip vs. State of M.P.⁶ and Parmanand vs. State of Rajasthan⁷ is of no benefit to the appellants.

¶37

It is further contended that proper sample was not taken and there was delay in sending the sample to the laboratory, linked evidence/seal of sample was not produced before the Court. There was difference in weight of the samples received at the laboratory. The contention is that the said defects would vitiate the trial as implication of the appellants becomes doubtful. Reliance is placed on the decisions of this Court in Raju Gurang vs. Union of India⁸ , Chinku vs. State of U.P.⁹ , Tilisara Rai Magar vs. State of U.P.¹⁰ , Megh Raj vs. State of U.P.¹¹ , Awadh Ram vs. State of U.P.¹² and of Apex Court in Union of India vs. Bal Mukund¹³ , State of U.P. vs. Hans Raj¹⁴ , Mohan Lal vs. State of Punjab¹⁵ , Rajesh Jagdamba Avasthi vs. State of Goa¹⁶ .

¶38

From the record, this Court finds that the sample was taken properly from each of the 19 packets recovered. The recovery memo contains an averment that the sample was taken from each packet and a homogeneous matter of approx 200 gms. was prepared which was further distributed and sealed in eight packets of 25 gms. each. The remaining contraband article (Charas) of 9670 gms. was kept in the original packet and sealed in a carton. The sealed carton was exhibited and produced in the Court. The sample kept in the proper custody by the prosecution was also produced as recovered article. The recovery memo of Maruti Swift car was prepared by PW-1 in accordance with the legal procedure. The

¶39

6 2007 (1) JIC 683 SC

¶40

7 (2014) 2 SCC (Cr.) 345

¶41

8 2007 (2) JIC 32 Allahabad

¶42

9 2016 (93) ACC 19 Allahabad

¶43

10 2018 (2) JIC 484 Allahabad

¶44

11 2009 (3) JIC 764 Allahabad

¶45

12 2018 (2) JIC 275

¶46

13 (2009) 12 SCC 161

¶47

14 2019 (107) ACC 629 SC

¶48

15 2019 Cr. LJ 420

¶49

16 (2006) 1 SCC (Cr.) 150

¶50

¶51

chemical examination of the samples sent to the laboratory was done and it was found to be 'Charas'. The Godown Incharge was produced as PW-4 who had proved that the samples were received by him in the sealed state and same were produced in the Court.

¶52

The facsimile seal on the test memo was compared with the seal on the packets of the sample and they were found to be the same. During the course of examination of PW-1, the carton carrying 19 sealed packets was produced in the Court, which itself was in the sealed state. The seal on the carton and the packets inside it were found intact. Mere fact that the sample seal was not produced in the Court would not be of any benefit to the accused. Minor difference in the weight of sample (sent to the laboratory) is irrelevant. The trial court has rightly recorded that 9.870 kg. matter recovered on 29.12.2012 from the Maruti Swift car, from the possession of the accused was contraband article namely 'Charas'. The statement of the prosecution witnesses regarding recovery is consistent and no suggestion otherwise has been given by the defence during the course of cross-examination. The oral and documentary evidences proved that the accused/appellants were aware of the contraband article (Charas) kept in the Maruti Swift car. The recovered quantity was commercial quantity.

¶53

As far as non-compliance of the provisions of Sections 42, 52A, 55 and 57, there is a detail discussion in the judgment of the trial court which does not suffer from any infirmity.

¶54

No infirmity is found in the conclusion drawn by the trial court for conviction of the accused/appellants under Section 20(b)(ii)(C) and Section 23(c) of the N.D.P.S. Act. The sentence awarded is minimum. The judgment of the trial court dated 23.11.2015 passed by the Additional Sessions Judge, Court No. 2, District-Siddhartha Nagar need no interference.

¶55

Both the appeals are found devoid of merits and hence dismissed . All the appellants are in jail.

¶56

¶57

The office is directed to transmit back the lower court record along with a certified copy of this judgment for information and necessary compliance.

¶58

Necessary steps shall be taken by the court below to notify this judgment to all concerned.

¶59

The compliance report be furnished to this Court through the Registrar General, High Court, Allahabad.

¶60

Order Date :- 08.12.2020 (Sunita Agarwal,J.) Brijesh