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IN THE HIGH COURT OF RAJASTHAN BENCH AT JAIPUR
DINESH CHANDRA SOMANI, J.
MOHAN RAM - Appellant
Versus
STATE OF RAJASTHAN - Respondent
S.B. Criminal Appeal No. 205 of 2009, 153 of 2010
Decided On : 27-02-2017
NDPS ACT - SEARCH AND SEIZURE - SECTION 50 - COMPLIANCE - QUANTITY OF CONTRABAND - JOINT POSSESSION - INDEPENDENT WITNESSES - RELIABILITY - CONVICTION UPHELD: 1. Compliance with Section 50 of the NDPS Act is mandatory, but consent by the accused for search by the SHO himself satisfies the requirement. 2. Quantity of contraband recovered from multiple sacks in joint possession of accused can be aggregated to determine commercial quantity. 3. Calling independent witnesses from nearby areas is not essential if the witnesses called are reliable and impartial. 4. Conviction upheld where the trial court correctly applied the law and the evidence supported the findings.
Fact of the Case:
Two accused were caught with three sacks containing "doda chura" (poppy straw) weighing a total of 52 Kg 800 gms. They were convicted under Section 8/15 (c) of the NDPS Act. On appeal, they challenged the compliance with Section 50 of the NDPS Act, the aggregation of quantity from multiple sacks, and the reliability of independent witnesses.
Finding of the Court:
1. The accused gave their consent in writing for search by the SHO himself, which satisfies the requirement of Section 50 of the NDPS Act. 2. The quantity of contraband recovered from the three sacks in joint possession of the accused can be aggregated to determine the commercial quantity. 3. The independent witnesses called were reliable and impartial, and their testimony supports the prosecution's case.
Issues: 1. Whether the search and seizure was conducted in compliance with Section 50 of the NDPS Act. 2. Whether the quantity of contraband recovered from multiple sacks in joint possession of the accused can be aggregated to determine commercial quantity. 3. Whether the independent witnesses called were reliable and impartial.
Ratio Decidendi: 1. Section 50 of the NDPS Act requires that the accused be informed of their right to be searched in the presence of a Gazetted Officer or Magistrate, but consent by the accused for search by the SHO himself satisfies this requirement. 2. The quantity of contraband recovered from multiple sacks in joint possession of the accused can be aggregated to determine commercial quantity, especially when the accused did not claim exclusive possession of any particular sack. 3. Independent witnesses are reliable and impartial if there is no evidence of enmity or interest with the accused or the police.
Final Decision: The appeals were dismissed, and the conviction and sentence imposed by the trial court were upheld.
DINESH CHANDRA SOMANI, J.
1. The instant SB Criminal Appeals under section 374 (2) of Code of Criminal Procedure, 1973 have been preferred by the accused/appellants against the judgment dated 14/01/2009 passed by learned Special Judge (NDPS Cases), Jhalawar in Sessions Case No. 16/2006 State v. Mohan Ram & Anr., whereby, the learned trial Court has convicted the accused/appellant Mohan Ram and Ramesh Chand for offence under Section 8/15 (c) of NDPS Act and sentenced each of them with 10 years' rigorous imprisonment and a fine of Rs. 1,00,000/-, and in default of payment of fine, to further undergo one year's rigorous imprisonment.
2. Brief facts of the case, are that on 29/09/2005, SHO, Police Station Aklera, District Jhalawar Shri Khemraj (PW-4) along with police party, was on patrolling on the Harnawada Road near brick kilns, where he saw two persons loaded with one sack each on their back and one sack was lying on the earth. When asked about contents of the sacks, they threw the sacks and tried to escape, then the police party caught them. When asked about their names and addresses, one of them introduced himself as Mohan Ram son of Surta Ram Jat and another one introduced him as Ramesh son of Shivram Lodha. On suspicion of being contraband in the sacks, constable Parmanand (PW-6) amongst the police party, was sent to call independent witness, who came back with Ghanshyam (PW-3) and Ram Bharosh @ Bhuria, who consented to be independent witnesses. The accused/appellants were served with notice under section 50 of the NDPS Act, that they have a right of being searched in presence of any Gazetted Officer or Magistrate, but the appellants gave their consent in writing for search by the SHO himself. Thereafter, mouth of the sacks were opened and seen, smelt & tasted, then "doda chura" (poppy straw) of Narcotic Drug Opium was found. When asked about license for the possession of the contraband, both the appellants denied having any license. Weighing machine was brought by Constable Kailash Chand. All the three sacks were weighted. Weight of sack containing "doda chura" (poppy straw) with the appellant Mohan was found to be 24Kg 500gms and weight of sack with Ramesh was 19Kg and 400gms and the weight of sack lying on the earth was 8Kg 900gms. Samples of 500gms from each of the sacks were taken. Samples were sealed and marked on the spot. Sacks of remaining "doda chura" (poppy straw) were also sealed on the spot and marked. Recovery memo and memo of sample seals were prepared on the spot. The accused persons were arrested. On return at Police Station, FIR No. 251/2005 under Section 8/15 of NDPS Act was registered and the investigation was handed over to Circle Officer, Aklera and the sacks containing the contraband, were resealed in Police Station.
3. After completion of investigation, police filed charge-sheet against the accused/appellants before the learned trial Court for offence under Section 8/15 of NDPS Act.
4. Learned trial Court framed charge under Section 8/15 of the NDPS Act, 1985. Charge was read over and explained to the accused/appellants separately, who pleaded not guilty and sought to be tried.
5. In order to support its case, prosecution examined 8 witnesses and exhibited 24 documents. Thereafter, learned trial Court put oral evidence and documentary evidence produced by the prosecution to the appellants. In reply to the prosecution evidence, the appellants denied the prosecution evidence and stated that no any contraband was recovered from them and they have been falsely implicated. Appellant Mohan Ram also stated that he was standing in the mob at the place of occurrence and he is innocent. Appellant Ramesh Chand also stated that he was working on his field and the police forcefully brought him at the police station and falsely implicated in the case.
6. After completion of trial, learned trial Court convicted accused/appellants for the offence under Section 8/15 (c) of the NDPS Act and sentenced them as indi
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