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Non-Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 182 OF 2013

Jagat Singh         Appellant(s)

VERSUS

State of Uttarakhand             Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) This  appeal  is  filed  against  the  final  judgment

and  order  dated  18.11.2011  of  the  High  Court  of

Uttarakhand at Nainital in Criminal Jail Appeal No. 4

of 2010 whereby the  High Court dismissed the appeal

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filed by the appellant herein upholding the order dated

15.01.2010/19.01.2010  passed  by  the  Special

Judge(N.D.P.S.Act)/Additional  Sessions  Judge/IVth

Fast Track Court, Dehradun in Special Sessions Trial

Case No.  30 of  2006 convicting the appellant  under

Section  8/20  of  Narcotic  Drugs  and  Psychotropic

Substances Act, 1985 (hereinafter referred to as “the

NDPS Act”)  and  sentenced  him to  undergo  rigorous

imprisonment for a period of ten years and a fine of

Rs. 1 lakh, in default of payment of fine, to undergo

further simple imprisonment of two years.

2) Brief facts:

On 28.05.2006, on receiving information that a

person is coming with contraband item from Tyuni to

Kalsi,  a  team  of  Special  Task  Force  consisting  of

Sub-Inspector  Ved  Prakash  Thapliyal  (PW-1),  Sub

Inspector  Davender  Singh  (PW-2),  Head  Constable

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Bhawan Singh with Constables, Nagesh Pal, Vijender

Singh, Mahender Singh and Harshvardhan along with

Driver Dhanveer Patwal proceeded in a vehicle bearing

No.  UA07-L  1777.   When  they  reached  near

Chakbhool, they saw the appellant coming with white

plastic bag suspecting that he is carrying contraband

intercepted him. On receiving the information from the

police  party,  Dinesh  Chander  Rawat,  Deputy

Superintendant of Police(PW-5), a Gazetted officer, also

reached at the spot.  After search being made, it was

found that  the appellant  was carrying 9.300 kgs.  of

Cannabis(Charas).  After taking 100 gm. out of that,

the contraband item was sealed in different pack and

remaining more than 9 kg. was sealed separately.  FIR

was  registered  against  the  appellant  at  the  Police

Station, Kalsi on 28.05.2006 at 9 p.m. as Crime No. 22

of 2006 for the offence punishable under Section 8/20

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of  the  NDPS Act.   PW-6 investigated  the  crime and

after completion of investigation, submitted the charge

sheet against the appellant.

3) After  examination  from forensic  laboratory,  the

item  was  found  as  contraband  item  Cannabis

(Charas).   The  Special  Court  (N.D.P.S.Act),  after

hearing the parties on 05.10.2006, framed charge of

offence punishable under Section 8/20 of N.D.P.S. Act.

4) Prosecution examined the  witnesses.   However,

no evidence in defence was adduced.

5) The  Trial  Court,  after  hearing  the  parties,  by

judgment/order  dated  15.01.2010/19.01.2010  in

Special  Sessions  Trial  No.  30  of  2006,  found  the

appellant   guilty  of   charge  of  offence  punishable

under Section 8/20 of N.D.P.S. Act and sentenced him

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to undergo imprisonment for a period of 10 years and

a fine of Rs. One lakh.

6) Aggrieved by the said judgment of the Trial Court,

the appellant through Superintendent of District Jail,

Dehradun, filed an appeal from jail being Criminal Jail

Appeal No. 04 of 2010 before the High Court.

7) The  High  Court,  by  impugned  judgment  dated

18.11.2011,  dismissed  the  appeal  and  affirmed  the

judgment/order passed by the Trial Court.

8) Aggrieved  by  the  said  judgment,  the  appellant

has filed this appeal by way of special leave before this

Court.

9) Heard  Mr.  Rajeev  Maheshwaranand,  learned

counsel appearing as Amicus Curiae for the appellant

and Mr. Dinesh Kumar Garg, learned counsel for the

respondent.   

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10) Mr. Rajeev Maheshwaranand, learned counsel for

the appellant (accused) while assailing the legality and

correctness  of  the  impugned  order  argued  only  one

point.  According to him, while making the search from

the appellant with a view to find out as to whether the

appellant  was  carrying  any  contraband,  the

prosecution  failed  to  ensure  compliance  of  the

mandatory  requirements  of  Section  42  read  with

Section 50 of the NDPS Act. It was his submission that

no  compliance  much  less  compliance  in  letter  and

spirit of the requirement of these Sections was made

as  explained  by  this  Court  in  several  cases  while

effecting search from the appellant and this being a

fatal  infirmity  in  the  case  of  prosecution,  the

appellant's conviction deserves to be set aside on this

ground alone.  It  is  this submission,  learned counsel

for the appellant elaborated in his arguments.

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11) In reply, learned counsel for the respondent while

supporting  the  view taken by  the  two  Courts  below

urged  that  no  case  is  made  out  to  interfere  in  the

impugned order. It was his submission that both the

Courts have rightly dealt with the issue on facts and in

law  including  the  one  argued  here  and  hence  the

impugned  order,  which  has  rightly  resulted  in

appellant’s  conviction,  does  not  call  for  any

interference.

12) Having heard the learned counsel for the parties

and on perusal of  the record of the case we find no

merit in the appeal.

13) The  High  Court  dealt  with  the  issue  in

paragraphs 6 to 9 as under,

“(6) ……….I  have  gone  through  the documentary and oral evidence on record and found  that  it  has  nowhere  come  on  the record that at the time when the accused was intercepted by police there were public men

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witnessing the incident.  As such, there was no occasion on the part of the policemen to get  the  recovery  memo  signed  from  the witnesses of public.  Otherwise, also normally the  public  is  reluctant  to  be  witnessed  in such kind of cases.

(7) Attention of this Court is drawn to the contradictions  found  in  the  statements  of prosecution witnesses.  Reference is made to the  statement  of  PW1  Sub-Inspector  Ved Prakash Thapliyal and PW-5 Dinesh Chander Singh  Rawat.   PW1  Sub-Inspector  Ved Prakash Thapliyal has stated that the weights brought by the constable were of 5 kilogram, 2  kilogram,  1  kilogram,  half  kilogram,  200 gram and 100 gram. On the other hand (PW5) Dinesh  Singh  Rawat  has  stated  that  the weights of kilogram, 100 gram and 50 gram etc.  were  brought.  In  the  opinion  of  this court  such  contradictions  are  minor  in nature and on its basis the prosecution story can  not  be  disbelieved.  It  is  pertinent  to mention here the quantity of Cannabis said to have been recovered from the accused is nine  times  more  than  the  minimum commercial  quantity,  which could not  be  a planted  one.  Another  contradiction  pointed out by learned Amicus Curiae is that in the statement  of  PW1  Ved  Prakash  Thapliyal, 18.05 hours is said to be the time of arrest, while in the recovery memo it is mentioned as 18.45 hours. The statement made by the witness  appears  to  have  been  made  on 19.11.2007,  and  the  incident  relates  to 28.05.2006,  as such after a  period of  more than  one  year,  a  minor  discrepancy  in  the time of arrest, can not be said to be material to doubt the prosecution story, it is pointed out  that  when  the  recovery  is  made  PW5

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Deputy  Superintendent  of  Police  Dinesh Singh Rawat (a Gazetted Officer) was called, and this fact itself indicates that prosecution story can not be doubted lightly particularly in view of  all  the fact that the quantity of Cannabis is 9.300 kilograms.  

(8) In  the  above  circumstances,  having considered  submissions  of  learned  counsel for the parties, and after going through the lower court record, this court does not find any  illegality  or  wrong  appreciation  of evidence made by the trial court.  

(9) Therefore,  the  conviction  and  sentence recorded  by  the  trial  court  requires  no interference.  Accordingly,  the  appeal  is dismissed.”  

14) Perusal  of  the  relevant  portion  from  the

impugned order quoted supra would go to show that

the appellant did not urge the point before the High

Court which he has urged here. Be that as it may, it

has otherwise no substance.  

15) We  find  from  the  record  of  the  case  that  the

recovery of contraband was made from the appellant

in the public place. In this view of the matter, the case

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in hand fell under Section 43 of the NDPS Act. So far

as  compliance  of  Section  50  is  concerned,  the

prosecution  proved  that  PW-5-who  was  a  gazzetted

officer,  was  called  and  then  in  his  presence  the

recovery of contraband was made from the appellant.  

16) We thus find that the compliance of Section 50

was made in letter and spirit as provided therein and,

therefore,  no  fault  can  be  found  in  ensuring  its

compliance.    

17) In the light of these two material issues, which

were  proved  by  the  prosecution  by  proper  evidence,

the two Courts below, in our opinion, rightly held that

the prosecution was able to prove their case beyond

the reasonable doubt against the appellant and hence

the appellant had to suffer conviction as awarded by

the Trial Court. We, therefore, concur with the finding

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of the two Courts which, in our view, does not call for

any interference in this appeal.

18) Learned  counsel  then  urged  that  since  the

concerned  officials  did  not  record  the  secret

information, which they claimed to have received for

making  search  from  the  appellant  and  hence

non-recording of such information is fatal to the case

of prosecution.  

19) We find no merit in the submission because the

information  received  was  recorded  as  a  fact  in  the

record. In this view of the matter, this submission is

factually incorrect and hence rejected.  

20) Learned counsel then urged some points relating

to facts.  Similarly some points were so technical that

they  do  not  need  any  mention  nor  elaboration.  We

were,  therefore,  not  impressed  by  any  of  these

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submissions.  These  submissions  are,  therefore,

rejected being devoid of any merit.

21) In the light of  foregoing discussion,  we find no

merit  in  the  appeal.  The  appeal  thus  fails  and  is

accordingly dismissed.

                                    .……...................................J.      [ABHAY MANOHAR SAPRE]

                    ………..................................J.           [ASHOK BHUSHAN]

New Delhi, June 29, 2016

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