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2010 Supreme(J&K) 413
HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
Hasnain Massodi, J.
Uttam Singh -Appellant
Versus
State & Ors. -Resopndent
Cr. Appeal No. 14-2006
Decided On : 23-07-2010
D.N. Pangotra, Gagan Basotra, Aslam Goni.
The prosecution must prove the quantity of contraband recovered to determine if it constitutes small, intermediate, or commercial quantity, and the sentence should be based on this determination.
Headnote:
Narcotics Drugs and Psychotropic Substance Act - Smuggling - Section 8(C) read with Section 21(C) - 8, 21
Fact of the Case:
The appellants were found guilty of smuggling narcotics and sentenced to ten years rigorous imprisonment and a fine. The appellants denied the charge and argued that there were discrepancies in the prosecution evidence and a violation of Section 50 N.D.P.S Act. They also questioned the identification of the appellants by witnesses and the failure to produce the contraband in court.
Finding of the Court:
The trial court found the prosecution had successfully proven the case against the appellants beyond reasonable doubt. The court dismissed the discrepancies in the evidence and upheld the guilt of the appellants.
Issues: Discrepancies in prosecution evidence, identification of appellants, failure to produce contraband in court
Ratio Decidendi: The court held that minor discrepancies did not undermine the prosecution's case. The inability of witnesses to identify the appellants did not negate the evidence of other witnesses. The failure to produce the contraband in court was not sufficient to dismiss the case when recovery from the accused was convincingly proved.
Final Decision: The conviction of the appellants was upheld, but the sentence was reduced to the period already undergone and a fine of Rs. 20,000 each. The appellants were to undergo further rigorous imprisonment for six months in default of payment of the fine.
2. The background facts are as under:-
Police Station, Gandhi Nagar, Jammu on 27th of March 2003 received an information from a reliable source that the appellants and absconding accused traveling in Maruti Car under registration number JK02K- 7659 were in the process of smuggling Brown Sugar and Heroine out of State from Jammu to Pathankote. The report led to registration of case FIR No.96 of 2003 under Sections 8/22/29 N.D.P.Act, 1985 by Police Station, Gandhi Nagar, Jammu. The copy of FIR was forwarded through Constable Mushtaq Ahmed No. 2045-J to PSI, Wasim Raja, In-charge Naka at Gole Market, Gandhi Nagar, Jammu. On receipt of the copy of the report, PSI Wasim Raja, along with the Naka party, rushed to Shiv Chowk, Shastri Nagar, Jammu from where the appellants were expected to move in the said vehicle. Mr. Sameer Geelani, PSI, In-charge Police Post, Digiana also arrived on the spot along with weighing balance and weights. Mr. Rakesh Sharma, Executive Magistrate was also called to the spot. The appellants at about 20.45 hours came in the reported Maruti Car from Gandhi Nagar, Jammu and were intercepted by the Naka party. The appellants were asked to get down from the vehicle and informed that the Naka party intended to search them. The appellants were given an option to be searched in presence of the Executive Magistrate or in presence of any other Gazetted officer. The appellants consented to their personal search in presence of the Executive Magistrate. Immediately, after the appellants conveyed their consent, Executive Magistrate was requested to conduct personal search of Constable Sunil Dutt, so that the chances of Constable Sunil Dutt having any contraband in his possession were excluded. Constable Sunil Dutt, thereafter conducted personal search of the appellants one by one and on such search, following contraband was allegedly recovered from their possession:
i) 1 Kg "Heroine" like substance was recovered from the possession of each of the appellants Uttam Singh, Ravinder Singh (absconding accused) and Jaswinder Singh;
ii) 1/2 Kg of "Brown Sugar" was recovered from the appellants Tarsem Singh and Opinder Singh.
The samples were taken from each of the five seized packet of suspected contraband on spot, in presence of the Executive Magistrate. The samples as well as rest of the recovered/seized substance were sealed, recovery/seizure memos prepared and other paper work done. The appellants and the absconding accused were arrested. The investigation was taken over by Inspector Shamsher Singh Samyal, SHO, Police Station, Gandhi Nagar, Jammu. The Investigating Officer recorded statements of witnesses, forwarded the samples to Forensic Science Laboratory (F.S.L) for analysis, obtained the report from the laboratory and on the strength of the material collected during the investigation, found the appellants and the absconding accused to have committed offences punishable under Sections 8/22/29 N.D.P.S Act, 1985, concluded investigation as proved against the appellants and the absconding accused and accordingly presented the charge sheet against the appellants and absconding accused in the Court of Sessions Judge, Jammu where from it was transferred to 2nd Additional Sessions Judge, Jammu for its disposal under law.
3. The appellants and absconding accused were formally charged of the offences punishable under Section 8(c)/21(c) of N.D.P.S Act, 1985 on 22nd of August’ 2003. The appell
