Dharam Singh S/O Sh. Jagdish ... vs The State
2002 Latest Caselaw 1214 Del

JUDGMENT

V.S. Aggarwal, J.

1. This is an appeal filed by Dharam Singh (hereinafter described as the appellant) directed against the judgment and order of sentence passed by the Special Judge, Delhi dated 9th November, 2001 and 20th November, 2001 respectively. The learned trial court had held the appellant guilty of the offence punishable under Section 21 of the Narcotic Drug and Psychotropic Substances Act, 1985 (for short the Act) and by the subsequent order of sentence awarded him rigorous imprisonment of 10 years and a fine of Rs. 1 lakh.

2. The facts of the prosecution case in brief are that on 22nd June, 1998 Sub Inspector Prem Chandra had received a secret information that one person named Dharam Singh who is a drug peddler would come between 4.30 PM and 5.00 PM via Vishnu Garden, Kyala Delhi. He would carry smack. This information was recorded in daily diary No. 15 and copy of which was sent to senior station. The officer in charge, police station informed the Assistant Commissioner of Police and directions were received to conduct the raid immediately.

3. A raiding party was organized comprising of Sub Inspector Prem Chandra, Inspector P. Chaubey, ASI Setbir Singh, head constable Bharat Singh and others. At about 3.30 PM they left the police station with the secret informer in a government vehicle. Departure entry was made by sub Inspector Prem Chandra. They reached Khyala Road, Vishnu Garden, Delhi. The vehicle was parked at a distance.

4. The investigating officer Sub Inspector Prem Chandra asked five/six persons who were passing nearby and shopkeepers to join the raiding party but they refused to join the same. Thereupon the official staff was briefed. They held the picket and at about 4.40 PM at the pointing of the secret informer the appellant was apprehended while coming from S Block. Vishnu Garden. Contents of the secret information was disclosed to the appellant. He was served with the notice under Section 50 of the Act that he has a right and he was given an option that if he likes his person can be searched before a magistrate or a gazetted officer. The appellant refused to exercise the option. His refusal was recorded.

5. Thereafter from the right side pocket of the pant of the appellant a polythene packet was recovered. It had another two packets which contained light brown colour smack. Contents were weighed and found to be 20 gms. 5 gms was taken as the sample. The representative sample and the rest of the smack were converted into sealed parcels and sealed with the seal of PCK. Rukka was sent to the police station on basis of which formal first information was recorded. The seizure memo and the sealed articles were produced before Inspector Mahesh Sharma who affixed the seal of MCS on all those packets. The appellant had been arrested. Report under Section 57 of the Act was further sent. The recovered article had been deposited in malkhana and representative sample was subsequent sent to the Central Forensic Scientific Laboratory. On receipt of the report that it was smack the report under Section 173 Code of Criminal Procedure was filed.

6. The learned trial court had framed a charge with respect to the offence punishable under Section 21 of the Act to which the appellant pleaded not guilty and claimed a trial. The prosecution in support of its case had examined 10 witnesses before the evidence was closed by virtue of the statement of the public prosecutor. When examined under Section 313 Code of Criminal Procedure the appellant denied recovery of smack from his person. He stated that he was lying in his house on 22nd June, 1998 when a person came with the police. The appellant was arrested and falsely implicated.

7. Learned trial court on appraisal of the evidence concluded that it has been proved that smack was recovered weighing 20 gms from the person of the appellant and with these basic findings the above said judgment and order of sentence had been passed.

8. In order to establish that the appellant was found in possession of the smack the prosecution has examined Prem Chandra, PW-4. He had deposed in terms of the prosecution case as has been recited above. After disclosing about sending of the daily diary entry to the senior officers he stated that picket had been held and at 4.40 PM at the instance of the secret informer the appellant was apprehended. The appellant was informed about the secret information and notice under Section 50 of the Act was served. The appellant had refused and his refusal too was recorded followed by search of the appellant whereupon 20 gms of smack was recovered from the appellant. The witness had not been cross-examined. In addition to that Inspector Prem Chaubey, PW-6 too has supported the prosecution version but he also was not cross-examined followed by constable Manoj Kumar, PW-7 and Sub Inspector Satbir Singh, PW-10.

9. When a witness is not examined in that event unless the court finds other cogent reasons ordinarily there would be little ground to discredit the testimony. Of course the court can always scrutinise the evidence and come to a conclusion irrespective of the fact whether evidence is cross examined or not. But in the present case in hand the evidence of the prosecution witnesses is consistent. There is no ground to discredit or disbelieve them. When evidence by itself is trustworthy and consistent it must follow that the prosecution had successfully proved that 20 gms of smack was recovered from the appellant.

10. A feeble attempt was made to urge that provision of Section 50 of the Act had not been complied with.

11. There is no over-emphasizing that the provisions of Section 50 of the Act are mandatory in nature. But in the present case notice Ex. PW 4/C was served on the appellant giving him the right that if he likes his person can be sent searched before a gazetted officer or a magistrate. The appellant had refused vide PW 4/T. In other words, the right enshrined under Section 50 of the Act was conveyed but not exercised. There is nothing else on the record to indicate that any prejudice as such had been caused. The argument therefore must be repelled.

12. In that event the learned counsel for the appellant argued that in any case sentence awarded by the learned trial court is excessive. According to the learned counsel the trial court had ignored the amendment effected in Section 21 of the Act. Section 21 of the Act, had been amended with effect from 2nd October, 2001. Under Section 21(b) if the contravention involves quantity less than commercial quantity but more than small quantity, the punishment could extend up to 10 years and with fine which could extend up to Rs. 1 lakh. The expression "commercial quantity" too was inserted in Section 2 of the Act and reads as under:-

"(viia) "Commercial quantity", in relation to narcotic drugs and psychotropic substances, means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette"

In pursuance of the said provision a Government of India notification has been issued and in case of smack if the weight of the contraband is 20 gms it would be less than the commercial quantity. Therefore, Section 20(b) of the Act would come into play.

13. By virtue of the amendment of the Narcotic Drugs and Psychotropic substances Act of the year 2001 Section 41 had been enacted which is being reproduced below for the sake of facility:

"41. Application of this Act to pending cases. -(1) Notwithstanding anything contained in Sub-section (2) of Section 1, all cases pending before the Courts or under investigation at the commencement of this Act shall be disposed of in accordance with the provisions of the principal Act as amended by this Act and accordingly, any person found guilty of any offence punishable under the principal Act, as it stood immediately before such commencement, shall be liable for a punishment which is lesser than the punishment for which he is otherwise liable at the date of the commission of such of offence:

Provided that nothing in this section shall apply to cases pending in appeal.

(2) For the removal of doubts, it is hereby declared that no Act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act has not come into force."

Under the relevant provision reproduced above, the amended provisions including the amendment to Section 21 would govern even all the pending cases. It came into force on 19th October, 2001. In other words, the amendment had come into force before the present judgment and the order of sentence in question had been pronounced. Therefore the matter was to be governed by the amended Section 21 of the Act.

14. Taking note of this fact it was contended that as already referred to above the sentence should be suitably reduced.

15. In face of the aforesaid and the fact that 20 gms as such had been recovered the interest of justice shall be fully met if the sentence is reduced to four years rigorous imprisonment and a fine of Rs. 20,000/-. In default of payment of fine the appellant would undergo further simple imprisonment for one year. subject to the said modification in the sentence the appeal fails and is dismissed.