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2015 Supreme(J&K) 246
JAMMU & KASHMIR HIGH COURT
Hasnain Massodi , Raj Kotwal, JJ.
Amit Sharma - Appellant
Versus
State and others - Resopndent
Cr. Appeal No. 47 of 2014 MP No. 127 of 2014
Decided On : 24-08-2015
For appellant (s): Mr. Basit Manzoor Keng, Adv.
For respondent(s): Mr. S. S. Nanda, Sr. AAG
The main legal point established in the judgment is the importance of compliance with procedural provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985, including the requirements for search, arrest, and seizure, and the duty of the officer-in-charge of the police station to take charge and keep in safe custody the seized material and samples. The judgment also emphasizes the impact of non-compliance with these provisions on the prosecution case.
Headnote:
Narcotic Drugs and Psychotropic Substances Act - Conviction under section 8/21 of the Act - Summary of Acts and Sections: The court discussed the provisions of sections 8, 21, 22, 40, 41, 42, 52, 55, and 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985. The court emphasized the requirements for search, arrest, and seizure, and the duty of the officer-in-charge of the police station to take charge and keep in safe custody the seized material and samples. The court also considered the compliance of these provisions and the possibility of tampering with the seized material and the sample. The judgment upheld the conviction and sentence under section 8/21(c) of the Act.
Fact of the Case:
The appellant was found in possession of 7605 capsules of 'parvon spas', a narcotic substance, and was convicted under section 8/21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985. The appellant challenged the judgment on the grounds of false implication, violation of procedural provisions of the Act, and lack of corroboration in the evidence.
Finding of the Court:
The court found that the prosecution had established the accused's possession of the narcotic substance and the violation of section 8(c) of the Act. The court upheld the conviction and sentence, with a modification to reduce the sentence from fifteen years to ten years and the fine from two lac rupees to one lac rupees.
Issues: The issues raised in the appeal included the date of recovery and arrest, violation of mandatory provisions of the NDPS Act, and the safe custody of the seized material and sample.
Ratio Decidendi: The court emphasized the importance of compliance with procedural provisions of the NDPS Act, including the requirements for search, arrest, and seizure, as well as the duty of the officer-in-charge of the police station to take charge and keep in safe custody the seized material and samples. The court also considered the possibility of tampering with the seized material and the sample and the impact of non-compliance with these provisions on the prosecution case.
Final Decision: The appeal was dismissed, and the conviction and sentence under section 8/21(c) of the Act were upheld, with a modification to reduce the sentence and fine. The court directed the registry to send a certified copy of the judgment to the trial court for follow-up action.
Per Kotwal-J
Appellant Amit Sharma is in appeal against judgment dated 08.07.2014 of the learned Sessions Judge, Kathua in file No. 68/Special, whereby the appellant has been convicted under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and order dated 09.07.2014, whereby appellant has been sentenced to undergo rigorous imprisonment for a term of fifteen years and to pay a fine of two lac rupees. It is ordered also that in default of payment of fine appellant shall undergo further rigorous imprisonment for two years.
2. Heard. We have perused the record.
3. Facts of the prosecution case, briefly, are that on 16.05.2010 the SHO Police Station, Kathua, Sandeep Mahajan, Inspector (PW-8), was on patrolling duty by his official 'Gypsy' in Shastri Nagar area accompanied by Pardeep Singh, SPO No. 1027 (PW-1) Davinder Singh, Ct. No. 31 (PW-2), Surinder Singh, Ct. No. 935 (PW-3) and Ravi Singh, SPO No. 130, (Pw-4). At about 10:00 PM they found the appellant (accused) coming from 'Hatli Morh1 towards Kathua. He was carrying a white colour plastic bag. The bag on checking was found containing 7605 pan/on spas' capsules in 39 black plastic envelops, each containing 195 capsules. The appellant disclosed his identity as Amit Sharma alias Vicky s/o Vinod Sharma alias Shinder Paul r/o. Ward No. 14, Kathua. The SHO separated ten capsules as sample for chemical analysis and sealed them under Mark-A-1. He also seized and sealed the main bulk of the capsules under Mark-A. The SHO then dispatched a docket (Exp. P-8) to the Police Station for registration of FIR through constable Ravi Singh directing also that investigation be entrusted to Ghansham, Sub Inspector. On the basis of this docket FIR No. 148/2010 under sections 8/21/22 of the Act was registered and Sub Inspector, Ghansham (PW-6) took up the investigation. The Investigating Officer (1.0.) proceeded to the place of occurrence. He prepared sketch map (Ext. P-6) of the place of occurrence and took possession of the seized material and the seizure memo prepared by the SHO. The I.O. got the sample resealed from Executive Magistrate 1st Class, Kathua (PW-5), obtained authority letter from him and dispatched the sample to FSL, Jammu for its chemical analysis. The 1.0, recorded statements of the witnesses in terms of section 161 Cr.P.C. and after compliance of all formalities found commission of offence under section 8/21/22 of the Act by the appellant.
4. The SHO Police Station, Kathua filed charge sheet in the Court of learned Sessions Judge, Kathua for trial of the accused for offence under section 8/21/22 of the Act. Learned trial court upon consideration of the record of the case and documents submitted in support of the charge sheet vide his order dated 28.09.2010 framed, charge under sections 8/21/22 of the Act against the appellant(accused). Appellant denied the charge and claimed to be tried. Prosecution entered its evidence and produced nine witnesses before the trial court, namely, Pardeep Singh, SPO(PW-1), Davinder Singh (PW-2), Surinder Singh, (PW-3), Ravi Singh (PW-4), Avtar Singh, Executive Magistrate (PW-5), Ghansham, Sub Inspector(PW-G), Amit Singh, Sub Inspector (PW-7), Sandeep Mahajan, Inspector (PW-8) and Pawan Abrol, Chemical Analyst (PW-9). The trial court recorded statements of the appellant (accused) in terms of section 342 Cr.P.C. Appellant did not lead any evidence in defence.
5. Learned trial court after appraisal of the evidence and dealing with the contentions raised by the defence arrived at a conclusion that 'the prosecution has thus established that accused was found in possession of 7605 capsules of 'parvon spas', which as per the report of the Chemical Analyst, FSL, Jammu, was narcotic substance'. Learned trial court, having regard to the total number of capsules recovered from the possession of the appellant (accused) and their constituents as per the Chemical Analyst's report, arrived at a conclusion that
