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UTTARAKHAND HIGH COURT
Barin Ghosh, CJ and Alok Singh, J.
Prema Shah —Appellant
versus
State of Uttarakhand —Respondent
Criminal Application No.70 of 2008
Decided on 19.3.2013
Counsels for the Parties:
For the Appellant : L. K.Tiwari and Hari Mohan Bhatia, Amicus Curiae
For the Respondent:A.S. Gill, GA, assisted by V.P. Bahuguna, Advocate.
IMPORTANT POINT
If commercial quantity of any narcotic drug or psychotropic substance is seized, keeping in mind vulnerability to theft, misuse, substitution and constraints of proper storage space, it is desirable that the officer-in-charge of the Police Station or the officer empowered under Section 53, to whom such seized contraband was forwarded under Section 52, should immediately approach the learned Magistrate for certifying the correctness of the inventory, taking the photographs and for taking all the samples in the presence of the Magistrate under his certificate so that false implication of the innocent people may be avoided.
Headnote:Narcotic Drugs and Psychotropic Substances Act, 1985—Sections 20(b)(ii) (c), 46(4),55—Appeal against conviction—Recovery of 20 quarters of country made liquor and about 6 kgs of charas, contained in four different bags, from possession of appellant, a lady—Appellant was allegedly arrested at 8.15.p.m.of29.4.2007 in the market without there being any prior application and permission from the Magistrate, while admittedly a Magistrate was residing within a kilometer—FIR was lodged at about 11.10 p.m. i.e. almost after three hours from the time of her arrest —No explanation with regard to delay in registering FIR—Contraband, for the first time, was produced before the officer-in-charge of the police station in the morning of 30.4.2007—Arrest, seizure and entire prosecution case being highly doubtful—Whether conviction of appellant as recorded by the trial Court was sustainable—(No)? (Paras 8, 9, 11 to 14)
(ii) Narcotic Drugs and Psychotropic SubstancesAct,1985—Section 52—Criminal Procedure Code, 1973—Section 451—Disposal of persons arrested and articles seized—In State of Uttarakhand, Narcotic Drugs or Psychotropic Substances, as recovered in commercial quantities, are not being destroyed at the earliest and they are being kept either in the police malkhana or in courts malkhana—Concerned Magistrate should take immediate action for seeing that powers under Section 451 CrPC are properly and promptly exercised and articles are not kept for long time at the police station, in any case, for not more than 15 days to one month—Every person arrested and articles seized under Sections 41(2),42,43 or 44 shall be forwarded, without unnecessary delay, either to the officer-in-charge of the nearest police station or the officer empowered under Section 53 of the Act. (Paras 17, 20 & 21)
(iii) Narcotic Drugs and Psychotropic Substances Act, 1985—Section 52A—Disposal of seized narcotic drugs and psychotropic substances —Non-compliance of provision in State of Uttarakhand—Narcotic Drugs and Psychotropic Substances, as mentioned in the Central Government Notification dated 29.5.1989, require immediate disposal thereof, as prescribed under Section 52A of the Act. (Paras 25, 26 & 27)
JUDGMENT
Alok Singh, J.— Appellant is assailing the judgment and order dated 27th February, 2008 passed by Sessions Judge, Bageshwar, in Sessions Trial No.I5 of 2007, whereby the learned Sessions Judge has found the appellant guilty for commission of an offence punishable under Section 20(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act”) as well as for commission of an offence punishable under Section 60 of the Excise Act, and has sentenced her to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs. 2,00,000, failing which, to further undergo additional simple imprisonment for six months, for the offence punishable under Section 20(b)(ii)(C) of the Act; and has sentenced the appellant to pay fine of Rs. 10,000 failing which, to undergo two months’ simple imprisonment for the offence punishable under Section 60 of the Excise Act.
2. Brief facts inter alia are that SS Diwan Singh Bisht (PWl), alongwith Constable Subhash Chandra (PW2) and other police personnel, left the Police Station on 29th April, 2007 at about 6:05 p.m. for patrolling purpose. The moment patrolling party reached near Jhulapul Tiraha, they saw the appellant coming from the other side carrying one bag on her head. Police party signaled her to stop, however, she turned towards the narrow lane and started walking fast. However, she was stopped and was asked that, as the police personnel have suspicion on her, they want to check the bag being carried by her and, therefore, if she wants, she may be checked in the presence of City Magistrate or any other gazetted officer. To this, she replied that she has no objection in being searched by the police personnel. Therefore, PW1 called lady constables from the Police Station by phone. Sunita Rani (PW6), a female constable, and another female constable, namely, Geeta Rawat, reached on the spot and the search was conducted. The bag, being carried by the appellant, was opened, wherefrom, 20 quarters of country-made liquor and about 6 kilograms of charas, contained in four different bags, were recovered. All the recovered items were kept in a sealed cover, after taking samples of 50-50 grams from each of the four bags containing the charas and, thereafter, appellant was taken to the Police Station and a chick First Information Report (Ex.Ka12) was registered. The contraband, so recovered, was kept in the Maal Khana after having obtained the counter-seal of the Station House Officer. Having investigated the matter, a charge-sheet was submitted against the appellant for an offence punishable under Section 8/20 of the NDPS Act and Section 60 of the Excise Act.
3. From the side of the prosecution, seven prosecution witnesses were examined and forensic examination report was submitted to say that the samples, taken from the contraband, were found to be charas. Having considered the entire material made available on the record, the learned Sessions Judge has passed the judgment and order under appeal.
4. We have heard Mr. L. K. Tiwari, learned counsel appearing for the appellant, as well as Mr. A. S. Gill, learned Senior Government Advocate assisted by Mr. V.P. Bahuguna, Brief Holder for the State, and have carefully perused the record as well as various provisions of the Act.
5. Having had perused the statements of PW1, PW2 and PW6, following facts have emerged, which are as under:
(i) Appellant was apprehended at about 8:15 p.m. of 29th April, 2007 in the Bageshwar market near Jhulapul. From the bag, being carried by her on her head, 20 quarters of country-made liquor as well as four bags containing 6 kilograms of charas were allegedly recovered.
(ii) While the chick report was registered in the Police Station on 29th April, 2007 at 11.10 p.m.., it has also come on record, as per the statements of PWI and PW2, that the Police Station is hardly 1 km away from the place, where the appellant was apprehended.
(iii) From Paper No.11 of the paper-
