Dismissed

Chanchal Singh v. State of Uttarakhand

Uttarakhand HC5 Oct 2021CRJA/37/2012

Case brief

AI extract

What is this about?

The High Court dismissed a jail appeal challenging conviction under Section 20 of the NDPS Act for possession of charas. The court held Section 50 notice did not apply to bag searches, accepted the FIR delay rationale, and upheld the conviction for commercial quantity.

What did the court decide?

The appeal was dismissed and the conviction and sentence imposed by the trial court were upheld.

Chanchal Singh Vs State of Uttarakhand — Narcotics (NDPS) | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA

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5^th OCTOBER, 2021

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CRIMINAL JAIL APPEAL NO. 37 of 2012

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Between:

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Chanchal Singh …Appellant

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and

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State of Uttarakhand. …Respondent

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Counsel for the Appellant : Mr. Ghanshyam Joshi, learned Amicus Curiae.

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Counsel for the Respondent: Mr. T.C. Agarwal, learned Deputy Advocate General assisted by Mr. P.S. Uniyal, learned Brief Holder for the State.

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Hon’ble Alok Kumar Verma,J.

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The instant jail appeal has been filed by the appellant-accused Chanchal Singh against the judgment and order dated 14.09.2012/15.09.2012, passed by the learned Special/Sessions Judge, Pithoragarh in Special Sessions Trial No.1 of 2012, “State vs. Chanchal Singh”, whereby the appellant has been convicted and sentenced to undergo rigorous imprisonment for a period of ten years along with a fine of Rs. one lakh for the offence punishable under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred as, “the Act, 1985”). In default of payment of fine, the appellant has

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been directed to undergo further additional imprisonment for a period of two years.

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Briefly stated the prosecution story as it emerges from re-appreciation of the evidence on record is that on 09.10.2011, the Head Constable Amichand (PW1) along with Head Constable Roshan Lal (PW2) and other police constables of Sashastra Seema Bal (SSB) were going from his Border Out Post camp, situated at Sinkholi to Chakdhari through village Dauda. When they reached one kilometer ahead from the village Dauda, two persons were seen coming from Chakdhari. One person had a bag on his back. On seeing the police party, both of them started going towards the river. The appellant was apprehended at 20.30 hrs. The other person managed to escape from the spot. The appellant disclosed his name as Chanchal Singh S/o Laxman Singh R/o Ranuwa, Police Station Askot District Pithoragarh. The Head Constable Amichand (PW1) apprised him that they intended to search him and whether he wanted to give personal search before a Magistrate or a Gazetted Officer. The appellant declined the offer. The appellant had given in writing consent, Ext. Ka1, to search in front of them. In spite of an endeavour, no public witness could be secured. During search, charas was recovered from the bag of the appellant. On weighing, the weight of the charas, kept in the bag, was found to be 4 Kg. 300 grams. The appellant was arrested. The appellant informed the police party that the name of the person, who managed to escape from the spot, was Gopal Singh S/o Trilok Singh. The recovered contraband was sealed at the place of recovery. The recovered contraband was taken into possession vide recovery memo, Ext. Ka2. An F.I.R. was lodged by Mr. Amichand (PW1). The said F.I.R., Ext. Ka6, was registered

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at 13.35 hrs on 10.10.2011. Sample of the recovered contraband was taken before the concerned Magistrate. The sample was sent to the Chemical Examiner. The contraband tested was charas as per the Forensic Science Laboratory report. After completion of the investigation, the Investigating Officer, Mangal Singh, Sub-Inspector (PW7) submitted the charge-sheet, Ext. Ka15.

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The charge under Section 20 of the Act, 1985 was framed. The appellant pleaded not guilty and claimed to be tried.

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In order to bring home the guilt of the appellant, the prosecution has examined as many as seven witnesses.

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The statements of the appellant were recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein, he denied the entire evidence and stated that he was implicated in this matter at the instance of Gopal Singh S/o Trilok Singh.

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The appellant Chanchal Singh (DW1), examined himself in his defence evidence.

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The learned trial court heard arguments, appreciated the evidence on record and held that the prosecution has proved its case against the appellant beyond all reasonable doubt.

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Heard Mr. Ghanshyam Joshi, the learned Amicus Curiae and Mr. T.C. Agarwal, the learned Deputy Advocate General along with Mr. P.S. Uniyal, the learned Brief Holder for the State.

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I have considered the contentions raised by both the side and perused the record.

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PW1 Amichand and PW2 Roshan Lal were constables of Sashastra Seema Bal (SSB), a part of the Central Armed Police Force of India, and they were posted at 11^th Battalion Sinkholi Camp, Didihat, District Pithoragarh. They deposed that on 09.10.2011, they along with other police personnel were present for a routine checking in the area of Indo-Nepal Border. At about 8.30 p.m., two persons were seen coming from Chakdhari. One person had a bag on his back. On seeing the police party, both of them started going towards the river. The appellant was apprehended. However, the other person managed to escape. The appellant disclosed his name and address. PW1 Head Constable Amichand apprised the appellant that they intended to search him and whether he wanted to give personal search before a Gazetted Officer or a Magistrate. The appellant gave his consent in writing, Ext. Ka1, for being searched before him. These two witnesses have proved the consent letter, Ext Ka1. They deposed that during the search of the appellant’s bag, 4 kg. 300 gram of charas was recovered from his bag. The appellant told them that he was taking charas to Pithoragarh to sell. The appellant had named the escaped person as Gopal Singh. These two witnesses deposed that the recovered contraband was sealed at the place of the recovery. The recovered contraband was taken into possession vide recovery memo, Ext. Ka2. The said recovery memo, Ext. Ka2, was prepared by PW1 Amichand and in the said recovery memo, witnesses, who were PW2 Head Constable, Roshan Lal, other police personnel and the appellant had signed and a copy of the said recovery memo was given to the appellant. These both the witnesses deposed that in spite of an endeavour, no public witness could be secured. They stated that the Company Headquarter was informed by wireless set. After receiving

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the said information from PW1 Amichand, the Company Commander had come by a vehicle at Border Out Post, Sinkholi. The police party along with the appellant and recovered contraband went to the Border Out Post, Sinkholi on foot, and they went to the police station from the said Border Out Post.

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PW3 Head Constable Devki Nandan was the Scriber of the first information report, Ext. Ka6. According to the F.I.R., the first information report was lodged by PW1 Amichand. The said F.I.R. was registered at 13.35 hrs. on 10.10.2011. He deposed that the recovered contraband was sealed at the police station with the seal of Sub-Inspector Shyam Kumar and the sealed contraband was kept in the Malkhana of the police station.

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PW4 Constable Kishan Nath deposed that on 19.10.2011, he went to the court of the Chief Judicial Magistrate with the sealed parcel of the recovered contraband and a sample was taken before the Court. After taking the sample, the same was submitted by him to the Forensic Science Laboratory on 22.10.2011.

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PW5 Sub-Inspector Shyam Kumar stated that on 10.10.2011, the recovered contraband was re-sealed by him. He started investigation of this case.

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PW6 S.S.I. Prakash Singh took over the investigation from PW5 Sub-Inspector Shyam Kumar. He prepared the site plan, Ext. Ka13.

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PW7 Sub-Inspector Mangal Singh deposed that a report of the F.S.L., Ext. Ka14, was received and according to this report, the tested sample was found to be ‘charas’. He had submitted the charge-sheet, Ext. Ka15.

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The contentions raised before this Court on behalf of the appellant are that the case of the prosecution must fail for non-compliance of the mandatory provisions of Section 50 of the Act, 1985; the patrolling party arrested the appellant from the public place, but, the prosecution did not produce any public witness; the F.I.R. was lodged after 13 hours and the prosecution has failed to explain the reasons for the said inordinate delay, and the appellant has been falsely implicated at the instance of Gopal Singh.

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PW1 Amichand and PW2 Roshan Lal categorically stated that PW1 Amichand apprised the appellant that they intended to search him and whether he wanted to give his personal search before a Gazetted Officer or a Magistrate. The appellant declined the offer and gave his consent in writing, Ext. Ka1, for being searched before him. Moreover, Section 50 of the Act, 1985 will apply only in cases where the person of accused is searched and not in cases where a bag held by the accused is searched leading to a recovery of contraband.

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In Makhan Singh vs. State of Haryana, 2015(4) CCSC 1790 , the Hon’ble Supreme Court has held that compliance of Section 50 of the Act, 1985 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container etc., which the accused may be carrying ought to be searched.

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So far as examination of independent witnesses in support of the prosecution case is concerned, all that would be necessary to say in this regard that examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case. There is no legal preposition

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that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force.

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In the present case, according to PW1 Amichand and PW2 Roshan Lal, in spite of an endeavour, no public witness could be secured. The fact that incident took place at about 8.30 p.m. on hilly area in the cold season, may lend credence to the prosecution version of its inability to produce independent witnesses.

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In Ravinder Kumar and another vs. State of Punjab, (2001) 7 SCC 690 , the Hon’ble Supreme Court has held that the attack on prosecution cases on the ground of delay in lodging F.I.R. has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the F.I.R. Hence, a delayed F.I.R. is not illegal. The Hon’ble Supreme Court has observed that it cannot be overlooked that even a promptly F.I.R. is not an unreserved guarantee for the genuineness of the version incorporated therein. When there is criticism on the ground that F.I.R. in a case was delayed, the court has to look at the reason why there was such a delay.

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In Sahebrao and another vs. State of Maharashtra, (2006) 9 SCC 794 , the Hon’ble Supreme Court has held that the settled principle of law is that delay in filing F.I.R. by itself cannot be a ground to doubt the prosecution case and discard it.

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In the present matter, according to PW1 Amichand and PW2 Roshan Lal, the appellant was arrested

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in the cold night on the hilly road. After the incident, the arresting party along with the appellant and the recovered contraband went to the Border Out Post, and after day light, they went to the police station. The delay stands explained qua the registration of the F.I.R. Therefore, the contention of the learned Amicus Curiae that the appellant should be acquitted on the ground of delayed F.I.R., is hereby rejected.

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The next contention of the learned Amicus Curiae is that the appellant has been implicated in this matter at the instance of one Gopal Singh, who managed to escape from the spot, but, admittedly, no suggestion to this effect was given to any of the prosecution witness, including the arresting police officials or the Investigating Officer. In the absence of any animosity between the police party and the appellant and having regard to the large quantity of contraband that was recovered (4 Kg. 300 grams.), this Court is of the view that the contraband had not been planted. No reason is found to falsely implicate the appellant.

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As per the Table prepared in terms of Section 2 (xxiii-a) and Section 2 (vii-a) of the Act, 1985, 100 gram is small quantity and greater than 1 kg. of the “charas” is commercial quantity (Entry No.23).

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Section 20 of the Act, 1985, prescribes the punishments depending upon the quantity of the contraband. If the quantity is small, the punishment extends upto six months. If the quantity is less than commercial quantity, but greater than the small quantity, the punishment may extend upto ten years of rigorous imprisonment apart from fine. When the quantity exceeds the commercial quantity, the punishment extends upto 20 years and carries a fine upto two lakh and for special

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reasons even more. It is not in dispute that possession of 4 kg. 300 grams of charas involves commercial quantity and if, that is so, in terms of Section 20 (c) of the Act, 1985, imprisonment shall not be less than ten years.

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In the light of the above discussion, this Court is in entire agreement with the conclusion arrived at by the learned trial court. Consequently, the appeal fails and the same is hereby dismissed.

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Let a certified copy of this judgment be supplied to the appellant through Superintendent of Jail, Haridwar.

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ALOK KUMAR VERMA, J.

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Dt: 5^th October, 2021 Mamta

Chanchal Singh v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

Chanchal Singh v. State of Uttarakhand

Case brief

What is this about?

What did the court decide?

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