1. Possession of charas — Conviction under Section 20, Narcotic Drugs and Psychotropic Substances Act, 1985. (Para 1 )
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1999 Supreme(SC) 1423
2000(1) Supreme 161
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
G.T. Nanavati & S.N. Phukan, JJ.
Ashok Kumar -Appellant
versus
State of Haryana -Respondent
Criminal Appeal No. 1338 of 1998
Decided on 2-12-1999
Counsel for the Parties :
For the Appellant : R.P. Gupta, Ms. Rashmi Jain, Advocates.
For the Respondent : Mahabir Singh, Neeraj Kr. Jain, Gautam Avasti, V. Sudeer, Advocates.
Important Points
The court ruled that a search conducted in the presence of a Magistrate is valid despite the absence of independent witnesses. Conviction under the NDPS Act is sustainable if the Investigating Officer's testimony is reliable and the chemical analyzer's report confirms the nature of the seized substance.
Subject
Criminal Law - Narcotics and Psychotropic Substances
Act Referred
Headnote
Narcotic Drugs and Psychotropic Substances Act, 1985-Section 20-Conviction for possession of charas-Possession of charas by accused established by evidence of Executive Magistrate in whose presence accused was searched and other who were present at time of search-Defence that Executive Magistrate could not identify accused in Court-Not fatal-Other witnesses identified accused and their evidence found to be reliable-Contention that there was no reliable evidence to prove samples seized from accused were same as examined by chemical analyser - Not tenable-Chemical analyser s report clearly established that articles examined by him were articles connected with case-Chemical report stood unchallenged-Conviction did not warrant interference. (Paras 4 to 10)
Legal Category Hierarchy
Table of Contents
2. Absence of independent witnesses — FIR timing discrepancies — Non-identification of seized articles — Non-compliance with Section 55, NDPS Act — Faint seals on samples. (Para 4 , 5 , 6 , 7 , 8 , 9 , 10 )
3. Search in presence of Magistrate suffices — FIR timing discrepancies not fatal — IO's identification reliable — Compliance with Section 55 established — Chemical analyzer's report proves identity. (Para 4 , 5 , 6 , 7 , 8 , 9 )
4. Search conducted in the presence of a Magistrate satisfies the requirement for independent witnesses; unchallenged chemical analysis reports establish the identity of seized substances. (Para 4 , 9 )
5. Appeal dismissed. (Para 11 )
6. Does the absence of independent witnesses invalidate a search if a Magistrate was present?
No. A search conducted in the presence of a Magistrate is sufficient, and the Magistrate's testimony is considered reliable even if the appellant is identified by other witnesses in court. (Para 4 )
7. Does a discrepancy between the time of search and the time of FIR registration necessarily invalidate the prosecution's case?
No. Such discrepancies are not fatal if evidence shows the Ruqqa was sent for registration while the accused and seized articles were transported to the station separately. (Para 5 )
8. How is compliance with Section 55 of the NDPS Act established regarding seized articles?
Compliance is established when seized articles are produced before the Officer in charge of the Police Station, sealed, and kept in safe custody in the Malkhana until analysis. (Para 8 )
9. Can faint seals on seized samples be used to doubt the identity of the substance if the chemical analyzer's report is unchallenged?
No. If the chemical analyzer's report clearly establishes the nature of the articles and the report is not challenged, faint seals do not invalidate the evidence. (Para 9 )
JUDGMENT
Nanavati, J.-The appellant has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 as, on 24.9.1995, he was found in possession of charas weighing 5 kgs. and 500 grams.
2. In order to establish its case the prosecution had examined PW-1, Shri Dharam Pal Pannu, Tehsildar-cum-Executive Magistrate in whose presence the appellant was searched, PW-2, Daya Nand, the Chowkidar who was present at the time of the search, PW-3 ASI Raj Kumar who had received the Ruqqa at 3.35 p.m. and registered an offence against the appellant, PW-4 ASI Maha Singh the Investigating Officer and PW-5, S.I. Satbir Singh, who had received the sealed parcels of seized materials over which he had put his own seal and then returned them for safe custody. The prosecution also filed affidavit and documents to prove identity of the articles seized and sent for chemical analysis and nature of the substance seized.
3. The trial Court believed the prosecution witnesses and also the documentary evidence and held that the appellant did possess charas as alleged by the prosecution.The High Court agreed with the findings of the trial Court and confirmed the conviction.
4. What is contended by the learned counsel for the appellant is that no independent witness was kept present while the appellant was searched. But that circumstance cannot create any doubt as the appellant was searched in presence of a Magistrate. The Magistrate was examined as a witness and in his cross-examination nothing was brought out on the basis of which it can be said that what he had deposed was not correct. Only submission by the learned counsel with the respect to his evidence was that he had not identified the appellant in the Court. He was not able to state that the person present in the dock was the same Ashok Kumar but ASI Maha Singh had identified the appellant. His evidence has been found to be reliable and we find no good reason to differ from that finding.
5. It was also submitted that when PW-1 had left the place at about 3.30 p.m. the work of preparing the samples was not over and yet the FIR the time of registration mentioned is 3.35 p.m. and that would mean that really the search and seizure had not taken place at the time and in the manner stated by the witnesses and everything was done at the Police Station. We find no substance in this submission.Though the Investigating Officer has stated that he had sent constable Raj Kumar with Ruqqa to the Police Station for registration of the offence after the search and seizure was over, it appears that Raj Kumar was sent earlier as the other evidence on record discloses that the appellant and the seized articles were sent to the Police Station a little later.
6. It was next contended that identity of the cloth bag stated to have been recovered from the appellant, was not established as PW-1 had not identified it in the Court. PW-4, the Investigating Officer had identified it and no good reason has been given to doubt the evidence of this witness on that point.
7. It was also contended that nothing happened at the place where the search and seizure are stated, to have taken place and that everything was done at the Police Station. In his statement under Section 313 Cr.P.C. the appellant had not stated so. The appellant was the resident of Badia, a place in the State of Bihar. According to the evidence of PW-4 while the appellant was alighting from the Bus he was found carrying a bag and on suspicion he was searched. There was no reason for PW-4 to falsely involve the appellant.
8. It was also submitted that there was non-compliance with the requirement of Section 55 of the NDPS Act, but the learned counsel was not able to point out which part of Section 55 was not complied with. The prosecution evidence clearly discloses that the seized articles were produced before the Officer incharge of the Police Station, that he had put his seal over those articles and thereafter they were sent for safe cust
