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2004(3) Crimes 25
Patna High Court
B.N.P. Singh, J.
Kamendra Sao @ Ramashish Ram—Appellant
versus
State of Bihar —Respondent
Criminal Appeal (SJ) No. 594 of 2002
Decided on 17-2-2004
For the Appellant :Sheojee Mishra, Om Prakash Pandey and Anil Kumar Pandey, Advocates.
For the State : Din Bandhu Singh, APP.
Important Point
Where contraband under NDPS Act was recovered not from person of accused but from a bag which he was carrying, non-compliance with requirement of Section 50 of the Act would not vitiate his conviction.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985 — Section 50, 52, 57 — Appellant sitting on flank of railway station with a cartoon and on suspicion was apprehended by police team and cartoon was found containing 28 kg of ganja — Conviction — Question of application of Section 50 NDPS Act — Alleged seizure was not effected from person of appellant — It was not imperative for officer to apprise appellant of his right and to exercise his option for his search to be made by Gazetted Officer or Magistrate — There was no violation of provisions of Section 50 of the Act — Non-strict compliance of provisions of Sections 52 & 57 by itself can not render the act done by officer null and void & utmost it might affect probative value of evidence regarding arrest and search — Alleged discrepancy in evidence about source from which paper was procured for preparation of seizure memo was hardly of any value — No interference was warranted in conviction and sentence of 10 years imprisonment. (Paras 8, 12 & 13)
Result: Appeal dismissed.
JUDGMENT
B.N.P. Singh, J.— For allegedly possessing 24 Kgs. of ganja a narcotic substance without licence, appellant was convicted by the Special Court constituted under the Narcotic Drugs and Psychotropic Substances Act, 1985 (For short “NDPS Act”) having been found guilty for the offence punishable under Section 20(b)(ii)(c) of the Act and was sentenced to undergo rigorous imprisonment for a term of ten years and also to pay a fine of Rs. one lakh and in default to pay fine, to further undergo rigorous imprisonment for a term of two years.
2. Factual matrix during patrolling, R.P.F. personnels, Buxar, noticed on 17th April, 2001, a person sitting on eastern flank of railway station at Tudiganj with suspected posture, with a cartoon. The police officials became sus-picious and they examined the person, the appellant, who disclosed his identity as Kamendra Sah alias Ramashish Ram, and when the cartoon was checked, they found 4 packets containing 28 Kgs. of illicit ganja for which the appellant failed to make satisfactory explanation for its unauthorised possession. The illicit article was eventually seized for which a seizure memo was prepared. As Pushkar Nath Singh Sanjay, Sub-Inspector, Railway Protection Force did not qualify for carrying out investigation of the cases registered under the Act, Excise Officials were informed to whom custody of the appellant and also the illicit article was made over by him. As usual investigation followed when statements of witnesses were recorded by the Investigating Officer, who was Custom Official duly authorised under the Act for such investigation and sent the illicit article for chemical examination. Recitals made in Exhibit 6, which is a report of Chemical examiner would unmistakably suggest the sample sent by the Investigating Officer to be ganja, a narcotic substance, considering properties constituting the sample. He had compared the seals and found the same to be similar.
3. Appellant had pleaded not guilty to the charges pursuant to which trial commenced, in course of which, State examined five witnesses including Reporting Officer, witnesses of panch-nama and also Investigating Officer and Officer of the Excise Department. Defence of the appellant both before the Court below and this Court had been that of innocence and he ascribed his false implication for no good reasons.
4. Since manifold contentions were raised on behalf of the appellants to dig a hole in the castle of the prosecution, lest these contentions are not lost sight of, I consider it appropriate to discuss with brevity the resume of narratives made by of the witnesses. Reiterating his earlier version, Pushkar Nath Singh Sanjay, Sub-Inspector attached to R.P.F., Buxar (PW 1) stated about apprehension of the appellant with illicit 28 Kgs. of ganja on the eastern flank of Tudiganj Railway Station during routine patrolling, in company of other police officials. The officers of the Excise Department, who were authorised persons to investigate the case, were duly informed, to whom custody of both the appellant and the illicit article was made over by the witness. Almost similar narrations with sustained consistencies were made also by Subodh Kumar Ojha (PW 2), Ram Awatar Yadav (PW 3) and Himachal Rai (PW 4), who stated to have accompanied Pushkar Nath Singh Sanjay during alleged search and seizure of offending article from possession of the appellant. There has been evidence of also Chandradeo Kumar (PW 5), Sub-Inspector in the Department of Excise, about investigating case during which statement of witnesses were recorded by him and the sample was sent to chemical examiner for examination of its proper-ties. Rest Quantity of the illicit article was retained in sealed cover which was also produced at trial, though some part of the cartoon was noticed damaged, possibly by rats. This is all the evidence.
5. Placingreliance on various decisions of the Court including that of the Apex Court in case of
