The judgment titled Jeet Ram vs. Narcotics Control Bureau, Chandigarh in Case No.: Criminal Appeal No. 688 of 2013 in exercise of its criminal appellate jurisdiction delivered as recently as on September 15, 2020, a three Judge Bench of the Apex Court has laid down in no uncertain terms that Section 50 of the NDPS Act is applicable only in the case of personal search.
This the Supreme Court has reiterated while affirming the conviction of an accused who was a temple priest.
Judgment authored by Justice R Subhash Reddy for himself, Justice Ashok Bhushan and Justice MR Shah observed that, “This appeal is filed by the sole accused, in Sessions Trial No. 7-5/2002 of 2001 on the file of Sessions Judge, Shimla, aggrieved by the judgment of conviction dated 11.12.2012 and further order of sentencing the appellant, dated 31.12.2012, passed by the High Court of Himachal Pradesh, Shimla in criminal Appeal No. 493 of 2003.”
Apex Court in para 2 stated that, “The appellant-accused was tried for a charge punishable under Section 20 of Narcotics Drugs and Psychotropic Substances Act, 1985 (for short, ‘NDPS Act’). The Sessions Judge, Shimla by judgment dated 30.06.2003 acquitted the accused by recording a finding that the case of prosecution was not free from doubt and there were many infirmities in the case of the prosecution to hold that the accused was found to be in possession of charas, as alleged by the prosecution.”
To put it succinctly, it is then stated in para 3 that, “The case as put forth by the prosecution, briefly stated, is as under:
On 18.06.2001 the Intelligence Officer in the Narcotics Control Bureau (NCB), Chandigarh, by name – R.P. Singh (PW-4) was proceeding to Theog from Shimla. He was travelling along with PW-3 – O.P. Bhatt and other officials. In the transit they stopped at the dhaba to have meals which was near the Nangala Devi temple. When they ordered meals and tea and were waiting for the food to be served, the Intelligence Officer could smell the odour of charas. In the meanwhile, the Zonal Director of NCB, Chandigarh, by name – Rakesh Goyal, who was examined as PW-1 also reached the said dhaba. Then they have questioned the appellant-accused about the smell of charas and on such questioning he became nervous. As such there was increase of suspicion of the NCB officials. On asking the owner of the dhaba, he disclosed his name to be Jeet Ram and on further questioning he tried to run away. Then he was apprehended and taken to the counter of the dhaba. Just below the counter of the dhaba a gunny bag was found. When asked, appellant has replied – there is nothing in it. Then notice under Section 50 of the NDPS Act was given to the accused and appellant has consented to search the same by the NCB officials. Thereafter the bag was searched and the officers have found 13 Kg of charas. The charas was divided into two portions of 6 ½ Kg each and two packets were made which were marked as ‘X’ and ‘Y’ respectively. From each of these packets, two samples of 25 grams were drawn. The samples drawn from the packet – Mark ‘X’ – were marked as ‘X1’ and ‘X2’ and the samples drawn from packet – Mark ‘Y’ – were marked as ‘Y1’ and ‘Y2’. Thereafter all the four samples were sealed in a polythene bag by heat sealing process and were put in paper envelopes and seal with paper seals, signed by NCB officials as well as the appellant-accused Jeet Ram. On each sample seal no. 6 of NCB was affixed on all the four corners and the bulk charas in packets ‘X’ and ‘Y’ was sealed in paper parcels with six seals each. The seals were handed over to PW-1 and all the samples and the parcels were signed by NCB officials and accused. Further, in the statement recorded as contemplated under Section 67 of the NDPS Act, the appellant has admitted that for various reasons he was indulged in the trade of charas to increase his income. Thereafter a Panchnama was drawn which was signed by the appellant and he was arrested on 19.06.2001. The two samples of ‘X1’ and ‘Y1’ along with a letter were sent through PW-2 Hayat Singh to Chemical Analyst for analysis, who has vide his report opined that both the samples were of charas. On the said basis, the appellant-accused was charged and challaned for the offence under Section 20 of the NDPS Act.”
Bench has further stated in para 4 that, “When the charge is denied by the appellant-accused, he was tried for the aforesaid offence before the Sessions Judge, Shimla. To prove the guilt of the appellant, the prosecution has examined four witnesses in all, in support of its case. On behalf of the accused oral evidence was let in to show that the dhaba in question was not being run by him and he was employed as a priest in the nearby temple. After considering the oral and documentary evidence on record, the trial court by judgment dated 30.06.2003 acquitted the appellant-accused mainly on the grounds that – the prosecution case was not supported by any independent witness; the prosecution has failed to show that the seized charas was recovered from the dhaba of the appellant-accused and further there is no evidence to show that the appellant-accused was found in possession of the charas, as pleaded by the prosecution; there was non compliance of Section 50 of the NDPS Act; as the samples was handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying the same to the Central Laboratory at Delhi and these seals remained with the Director, as such the chances of tampering could not be ruled out and also on the ground that the case of the prosecution was unnatural and improbable.”
Bench has further stated that, “For the aforesaid reasons, we are of the clear view that the view taken by the trial court was not at all possible, having regard to the evidence on record and findings which are erroneously recorded contrary to evidence on record were rightly set aside by the High Court. As submitted by the learned Additional Solicitor General appearing for the prosecution, it is always open to the appellate court to reappreciate the evidence, on which the order of acquittal is founded, and appellate courts are vested with the powers to review and come to their own conclusion. The judgments in the case of Sanwat Singh; Damodarprasad Chandrikaprasad and Vinod Kumar also support the case of the respondent. For the aforesaid reasons, we reject the submission made by the learned counsel for the appellant. Even with regard to the plea of the appellant that the evidence on record on behalf of the prosecution is not sufficient enough to hold that the appellant-accused was in conscious possession of the seized material, also cannot be accepted. It is clear from the evidence on record that the appellant was on the counter of the dhaba which was constructed on the land owned by his wife near the temple and the charas was found in the counter of the dhaba in a gunny bag. The facts of the case show that accused not only had direct physical control over charas, he had the knowledge of its presence and character. In the statement recorded under Section 313 of Code of Criminal Procedure, though the appellant has referred to Brij Lal and Mantu in support of a version, contrary to that presented by prosecution but he has not chosen to examine either Brij Lal or Mantu. No defence witness has deposed to the chain of events, as has been stated by the appellant in the statement under Section 313 , Cr.PC. It is also fairly well settled that where accused offers false answers in examination under Section 313 Cr.PC, same also can be used against him. Further onus was on the appellant to explain the possession and in absence of the same being discharged, presumption under Section 54 of the NDPS Act also will kick in.”
Be it noted, it is then observed in para 12 that, “For the aforesaid reasons, we are of the view that the judgment of the High Court does not suffer from any infirmity so as to interfere with the judgment of conviction.”
Finally, while adding a rider, it is then held in the last para 13 that, “At the same time we find force in the submission of the learned counsel for the appellant in sentencing the appellant for 15 years rigorous imprisonment with a fine of Rs. 2,00,000/-. Having regard to peculiar facts and circumstances of the case and in view of the fact that the incident occurred in the year 2001 and as the appellant claimed to be a priest in the temple, who is now aged about 65 years, we deem it appropriate that it is a fit case to modify the sentence imposed on the appellant. Accordingly, the sentence awarded on the appellant is reduced to a period of 10 (ten) years, while maintaining the conviction and the penalty as imposed by the High Court. The order of sentence dated 31.12.2012 passed by the High Court stands modified. The appeal is partly allowed to the extent indicated above.”
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