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2010 Supreme(UK) 65
2010 (2) N.C.C. 57
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Dharam Veer
Criminal Appeal No. 1414 of 2001
SANJAY CHAUDHARY – Appellant
Versus
THE STATE – Respondent
Decided on : 25.02.2010
For the Appellant : Mr. M.S. Pal, Sr. Adv., assisted by Mr. T.P.S. Takuli, Adv.
For the Respondent: Mr. M.A. Khan, Brief Holder
Headnote:(A) Narcotic Drugs and Psychotropic Substances Act, 1985, Secs. 8 and 20 — Appreciation of evidence — Alleged article recovered from the accused — Same was sealed and was lateron sent for chemical examination — As per report of contraband article received in the laboratory for chemical analysis — But there was no evidence to show as to who and when deposited the sealed packet in Malkhana, nor there was any evidence to show that the sealed packet of the recovered article was kept intact in the Malkhana — Prosecution could not prove it beyond reasonable doubt that the article sent for the chemical examination was the same article, which was recovered from the possession of the appellant/accused. (Paras 13 to 18, 22)
(B) Narcotic Drugs and Psychotropic Substances Act, 1985, Secs. 8, 20, 57 — Report of arrest and seizure — Though the compliance of Sec. 57 of the Act is not mandatory — And violation thereof would not ipso facto vitiate the trial or conviction — Investigating Officer cannot totally ignore the said provisions — Such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. (Paras 19 to 21)
Lokid vkS"kf/k ,oa euksRrstd inkFkZ vf/kfu;e] 1985] /kkjk 8 vkSj 20 & lk{; dk vf/kewY;kadu & vfHk;qDr ls dfFkr oLrq cjken gqbZ Fkh & mls lhy djds jklk;fud ijh{k.k ds okLrs Hkstk x;k Fkk & fjiksVZ ds vk/kkj ij iz;ksx'kkyk esa jklk;fud ijh{k.k gsrq u'khyk inkFkZ izkIr gqvk Fkk ijUrq bl ckr dk dksbZ Hkh lk{; miyC/k ugha Fkk fd fdlds }kjk vkSj dc eky[kkus esa lhYM iSdsV tek djk;k x;k Fkk vkSj uk gh bl ckr dk dksbZ lk{; miyC/k Fkk fd cjken inkFkZ dk lhYM iSdsV eky[kkus esa lqjf{kr j[kk x;k Fkk & vfHk;kstu }kjk mfpr lansg ls ijs ;g fl) ugha fd;k tk ldk fd jklk;fud tkap gsrq Hkstk x;k inkFkZ ogh Fkk tks fd vihykFkhZ@vfHk;qDr ls cjken fd;k x;k FkkA ¼izLrj 13 ls 18] 22½
¼c½ Lokid vkS"kf/k ,oa euksRrstd inkFkZ vf/kfu;e] 1985] /kkjk 8] 20] 57 & fxj¶rkjh vkSj eky tCrh dh fjiksVZ & ;|fi /kkjk 57 dk ifjikyu fd;k tkuk vkns'kkRed ugha gS vkSj mlds mYya?ku ls dsl dh lquokbZ vFkok nks"kflf) Lor% gh fu"Qy ugha gks tk,xh rks Hkh foospuk vf/kdkjh iw.kZr;k mDr izkfo/kkuksa dks vuns[kk ugha dj ldrk & bl izdkj dh foQyrk vfHk;qDr dh fxj¶rkjh vkSj eky ds tCr djus ls lEcfU/kr lk{; ds ewY;kadu dks izHkkfor djsxhA ¼izLrj 19 ls 21½
This appeal, preferred by the appellant under Section 374(2) of The Code of Criminal Procedure, 1973 (hereinafter to be referred as ‘Cr.P.C.’), is directed against the judgment and order dated 14.05.1996 passed by the II Additional Sessions Judge, Nainital in Special Sessions Trial No. 272 of 1993, State v. Sanjay Chaudhary, whereby the learned II Addl. Sessions Judge has convicted the appellant/accused under Section 8/20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the Act’) and sentenced him to undergo rigorous imprisonment for a period of 10 years.
2. Heard learned counsel for the parties and perused the entire material available on record.
3. In brief, the prosecution case is that on 13.2.1993, P.W.4 S.O. Harish Chandra Singh along with P.W.2 Constable Khem Singh arrested the appellant-accused near the Dharamshala on Haldwani Road, Tallital, District Nainital. It was also stated that the appellant-accused was asked to be searched before a Gazetted Officer but he told the police personnel that he had faith on them and they might search him. On his search, about 100 grams Charas in a polythene was said to be recovered from the possession of appellant-accused from the pocket of his jacket. The recovered Charas was sealed on the spot and specimen of seal was also prepared. Fard of recovery Ex.Ka-3 was also prepared on the spot. Along with the recovered article, the appellant-accused was taken to the Police Station where Chik FIR was prepared on the basis of recovery memo on 13.2.1993 at 3.30 A.M. by Head Constable Ramesh Chand (PW1), that Chik FIR is Ex.Ka-1. Entry was also made by him in the G.D., carbon copy thereof is Ex.Ka-2. Initial investigation of this case was entrusted to S.I. Kripal Singh Negi and on his transfer, the investigation was entrusted to PW3 S.I. Rajeev Kumar, who during the course of investigation inspected the place of occurrence and prepared the site plan of the place of occurrence, which is Ex.Ka-6. The recovered Charas was also sent for the chemical examination and the report given by Joint Director, Scientific Laboratory, Agra dated 15.3.1993 is Ex.Ka-5. During investigation, the I.O. recorded the statements of witnesses and on completion of investigation, he filed the charge sheet against the appellant-accused in the court, i.e. Ex.Ka-4.
4. On 26.06.1995, learned II Addl. Sessions Judge, Nainital framed the charge for the offence punishable under Section 8/20 of the Act against the appellant/accused. The charge was read over and explained to the appellant/accused, who pleaded not guilty and claimed to be tried.
5. To prove its case, the prosecution has examined PW1 H.C. Ramesh Chand, who prepared Chik FIR and made entry in the G.D., P.W.2 Constable Khem Singh, P.W.3 S.I. Rajeev Kumar, IO of the case and P.W.4 S.O. Harish Chand Singh.
6. Thereafter, the statement of the appellant/accused was recorded u/s 313 Cr.P.C. The oral and documentary evidence was put to him in question form, who has denied the allegations made against him. However, in defence, the appellant/accused did not produce any oral or documentary evidence.
7. After appreciating the evidence and after hearing learned Counsel for the parties, learned II Addl. Sessions Judge, Nainital vide his judgment and order dated 14.05.1996 convicted and sentenced the appellant/accused as discussed above. Against the aforesaid judgment and order, the appellant/accused has preferred the present appeal.
8. To prove its case, the prosecution has examined PW1 H.C. Ramesh Chand who has proved the Chik FIR prepared by him, i.e. Ex.Ka-1. He also proved the entry made by him in the G.D. in the same process, carbon copy of which is Ex.Ka-2.
9. P.W.4 S.O. Harish Chandra Singh stated that on 13.2.1993 he was posted as S.O. in P.S. Tallital. On that day he moved from the police station at 00:22 hours along with Constable Khem Singh. While returning towards Dharamshala near Haldwani Road, while doing the patrolling duty, a pers
