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2004 (4) Crimes 305
Himachal Pradesh high Court
Kuldip Chand Sood, J.
Nagender —Appellant
versus
The State of Himachal Pradesh — Respondent
Cri. Appeal No. 92 of 2003
Decided on 8-1-2004
Counsel for the parties:
For the Appellant :Mr. Anup Chitkara, Advocate.
For the Respondent:Mr. Ashok Chaudhary, Addl. Advocate General.
Important Points
1. Where contraband was recovered when accused was travelling in three wheeler scooter and was carrying bag, search and seizure would attract Section 43 NDPS Act and provisions of Section 42 will not apply.
2. Benefit of Amendment Act, 2001 of NDPS Act would be available to cases pending in appeal.
Judgment
Headnote:(i) Narcotic Drugs and Psychotropic Substances Act, 1985 — Sections 18, 20, 42 and 43 — Recovery of 800 grams of charas and 50 gram of opium from possession of accused — Conviction — Appeal — Contention that trial was vitiated for non-compliance of provisions of Section 42 — Prior secret information was received before accused was apprehended — Search and seizure was made when accused was travelling in three wheeler scooter and had a bag in his lap which contained contraband — Section 43 of the Act was attracted when contraband was recovered while in transit — Seizure and arrest made u/s. 43 of the Act would not attract provisions of Section 42 of the Act — Conviction could not be disturbed. (Paras 14 to 21)
(ii) Narcotic Drugs and Psychotropic Substances Act, 1985 (as amended by Amendment Act, 2001) — Sections 18 and 20—Recovery of 800 grams of charas and 50 grams of opium — Sentence — Benefit of amended provisions would be available in case pending in appeal — Quantity of both contraband was less than commercial — Sentence in facts and circumstances reduced to imprisonment for two years and fine Rs. 20,000/- both for offence u/ss. 18 and 20 of the Act. (Paras 23 and 24)
Result : Appeal allowed partly.
Kuldip Chand Sood, J.— This Jail appeal arises out of the judgment of
the learned Sessions Judge, Kullu dated April 22, 2002 whereby the respondent, hereinafter referred to as “the accused” was convicted for offences punishable under Sections 18 and 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (Act for short) and sentenced to suffer:
(a) Rigorous imprisonment for five years and a fine of rupees two lacs. In case of default in the payment of fine, to suffer further imprisonment for six months for the offence under Section 18 of the Act and
(b) Rigorous imprisonment for five years and fine of rupees 2 lacs and in case of default in the payment of fine, further imprisonment for six months;
Both the sentences were directed to run concurrently.
Prosecution case:
2. On September 27, 2001, Assistant Sub Inspector Kanwar Singh, Incharge, Police Post Bhuntar, had laid ‘nakka’ at Dalasni bridge. At about 5.30 a.m, he received secret information that a person travelling in a three-wheeler with registration No. HP-05/1626 coming from Tharas side was carrying charas. This information was reduced in writing (Exhibit PW1/A) by Assistant Sub Inspector Kanwar Singh and sent to the Office of the Superintendent of Police, Kullu, through constable Chand Parkash (PW2). A three-wheeler (HP-05-1626) was intercepted at Nakka at about 5.50 a.m. This vehicle was being driven by Jeet Ram (PW6). Accused was sitting on the back seat with a bag on his lap. Assistant Sub Inspector conveyed to the accused his intention to search the bag, he was carrying and asked him if he wanted to be searched in the presence of a gazetted Officer or Magistrate. Accused opted and consented in writing for his search by the Police by a memorandum Exhibit PW6/B. A.S.I. Kanwar Singh (PW8) gave his search to the accused by a memo-randum Exhibit PW6/A. Thereafter, he searched the bag carried by the accused. From the bag, wrapped in a muffler, two polythene packets were recovered. One of the packets contained charas and the other opium. The charas weighed to be 800 gms. And the opium 50 grams. The samples were drawn separately from charas as well as opium and the remaining contents were sealed in two different packets. Proceedings were drawn by a memo Exhibit PW6/C. Information, by ruka Exhibit PW8/A, was sent to the Police Station Kullu for registration of the case on the basis of which a formal F.I.R. Exhibit PW4/A was recorded by Sub Inspector Kaur Singh (PW4). A special report was prepared and handed over by Kanwar Singh Sub Inspector to the Deputy Superintendent of police. Samples so drawn were sent to the Chemical Examiner who found the samples to be that of charas and opium.
3. Learned Sessions Judge by the impugned judgment found that the recovery of charas as well as opium as claimed by the prosecution was in fact made from the bag carried by the accused in the three-wheeler and accordingly convicted and sentenced the accused, as notice above.
Dis-satisfied, the appellant is in appeal.
4. As counsel, appointed by the accused, withdrew from the case on the instructions of the accused and accused represented that he was in no position to engage another counsel, Mr. Anup Chitkara, Advocate was appointed as counsel for the accused.
5. Heard Mr. Anup Chitkara, learned counsel for the accused and Mr. Ashok Chaudhary, learned Additional Advocate General.
6. The entire evidence was re-appraised with the assistance of learned counsel for the accused and the learned Additional Advocate General.
7. So far the question of recovery of the contraband from the bag carried
by accused is concerned, it is not disputed.
8. It is the evidence of both A.S.I. Kanwar Singh (PW8) and L.H.C. Tara Chand (PW7) that at about 5.50 a.m., three-wheeler No. HP 05-1626 was stopped at Naka. The Driver of the three-wheeler disclosed his identity as Jeet Ram. Accused was found sitting with a bag on his lap on the rear seat and gave his name as Naginder Pal. Accused was the
