Jawahar vs The State
2007 Latest Caselaw 645 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This appeal has been preferred against the order dated 5th November, 2000 of learned Special Judge, under Narcotic Drugs and Psychotropic Substance Act (in short "the NDPS Act"), whereby the learned Special Judge convicted the appellant of possession of 600 gm of 'smack' under Section 21 of the Act and against order dated 8th November, 2000 whereby she sentenced the appellant to undergo RI for 10 years and a fine of Rs. 1 lac, in default, to further undergo SI for three years.

2. Brief facts relevant for purpose of deciding this appeal are that Sub Inspector Atar Singh received a secret information on 26.9.1999 at about 11 am that one person named Jawahar would come on that day at Yamuna Pushta to deliver a consignment of smack. This information was recorded by him vide DD No. 8. He sent a copy of this DD, containing secret information, to Additional Commissioner of Police, Narcotic Branch and also informed the SHO. SHO directed him to conduct a raid. On this direction, he organized a raiding party and the raiding party along with informer positioned itself at Yamuna Pusta at around 11.15 am. Public persons were asked to join the raiding party, but none agreed. At about 12.15 pm, the appellant came at Yamuna Pusta and he was apprehended on the pointing out of the secret informer. He was informed about the police having information of his possessing smack. He was given an option to be searched before a Magistrate or a Gazetted Officer. A notice under Section 50 of the NDPS Act to this effect was served upon him on which he recorded his refusal to be searched before a Magistrate/Gazetted Officer. Thereafter, the appellant was searched by Sub Inspector Atar Singh and 600 gm of 'smack' was recovered from right side pocket of his pant. Out of this, 10 gm was separated as sample. The sample 'smack' and remaining smack were sealed in separate parcels with the seal of ASY. Form CFSL was filled and seal after use was given to Head Constable Virender Singh. A rukka was prepared and sent through Head Constable Ban Singh for registration of the case. FIR was registered at police station, Narcotic Branch, Kamla Market and further investigation was handed over to SI Perm Chand, who reached the spot, arrested the appellant and proceeded further with the investigation. A report under Section 57 of the Act was sent to Senior Officers by the I.O. Sample of 'smack' was sent for Chemical analysis to CFSL which gave positive result for 'smack'. After completion of investigation, challan was filed in the Court. The appellant was charged for offence under Section 21 of the Act, to which he pleaded not guilty.

3. SI Atar Singh appeared as PW-1. He proved the notice given by him to the appellant under Section 50 of the Act as Ex.PW1/A. This also contained refusal Ex.PW1/B of the appellant, appended on it, in his own hand under his signatures. He supported the prosecution case of recovery of 600 gms of smack from the appellant and drawing a sample of 10 gm. After seizure, the case property in sealed condition was produced before the SHO vide memo Ex.PW1/C along with rukka Ex.PW3/A. Form CFSL and seizure memo were also sent along with the case property to the SHO. He also proved handing over of the seal. SHO put his seal of 'SR' on both parcels and CFSL Form, and deposited the same with Malkhana. The Malkhana Moharar handed over the sample along with CFSL Form affixed with the seal of SR and ASY to PW-6 for depositing it with CFSL, Chandigarh. PW-6, Constable Harpal Singh, deposited the same vide road certificate No. 22/21, Ex.PW6/C. PW-4 Ashok Kumar Dalera, Chemical analyst, proved that the sample and CFSL Form were received with seal intact and sample gave positive test for smack.

4. The prosecution proved compliance with the necessary provisions of the Act under Sections 42, 50 and 57 and proved the recovery of 'smack' and also proved the report of analyst. After considering the entire evidence, the learned court of Special Judge came to conclusion that the prosecution proved its case beyond reasonable doubts and convicted the appellant.

5. During arguments, learned Counsel raised four points (i) The percentage of 'smack' in the sample was not ascertained so the exact quantity of narcotic drug could not be calculated in 600 gm of seized smack. The appellant, therefore, could not get benefit of the small quantity of drug recovery. (ii) There was violation of provisions of Section 42(2) of the NDPS Act by Sub Inspector Atar Singh since he did not forward the initial DD entry about secret information to his senior officers. He only gave information to SHO and prepared the raiding party at the instance of the SHO. (iii) No public witness was associated at the time of recovery and the fourth point raised was that the notice served upon the appellant under Section 50 of the NDPS Act did not satisfy the requirement of Section 50 of the NDPS Act.

6. The requirement of Section 50 is that the accused is to be informed about his right of being searched before a Magistrate or a Gazetted Officer. It is argued that merely informing the accused that he has option of being searched before a Magistrate or a Gazetted Officer does not satisfy the requirements of Section 50 of the NDPS Act. Learned Counsel for appellant relied upon K. Mohan Rao v. State of Kerala 2000 SCC (Cri.) 1228 and State of Punjab v. Balbir Singh (1994) 3 SCC 299 to plead that giving an option to the accused of being searched before a Magistrate or a Gazetted Officer was not sufficient compliance of Section 50 of the NDPS Act.

7. Non ascertaining of the quantity of percentage of smack has no effect in this case. The amendment in NDPS Act, distinguishing between small and commercial quantity, came in the year 2001. The case pertains to the year 1999. Thus, the percentage of concentration will have no effect.

8. As far as violation of Section 42(2) is concerned, during arguments itself, learned Counsel for appellant agreed that there was evidence on record to the effect that Sub Inspector Attar Singh, who recorded secret information, sent a copy of the information to his senior officer immediately. This fact is recorded in the DD entry itself and sending of a copy has also been proved by evidence in the court. The information to SHO was given in addition to sending of copy and the raiding party was prepared at the instance of the SHO, after a copy had been sent to the senior officers. Thus, there was no violation of Section 42(2) of the NDPS Act.

9. As far as non association of public witnesses at the time of recovery is concerned, I consider that this is not an infirmity sufficient to throw out the case of the prosecution. It is very hard these days to get association of public witnesses in criminal investigation. Investigation itself is a tedious process and a public witness, who is associated, has to spend hours at the spot. Normally, nobody from public is prepared to suffer any inconvenience for the sake of society. The other reason for the public witness not readily agreeing to associate with investigation is harassment of public witness that takes place in the courts. Normally a public witness should be called once to depose in the court and his testimony should be recorded and he should be discharged. But experience shows that adjournments are given even in criminal cases on all excuses and if adjournments are not given, it is considered as a breach of the right of hearing of the accused. These adjournments are specifically taken by counsels for accused persons, when witnesses are present, just to see that witnesses get harassed by calling them time and again. The excuses normally given in the courts are : the counsel having urgent personal work, left the court; death of some near relatives etc; the counsel being busy in arguing other matter in other court or cross examining other witness in some other court. This attitude of the courts of sending witness back is a major cause of harassment which discourages public from associating in the investigation of any case. Since the police is faced with this handicap, the police cannot be blamed for not associating public witness. There is no presumption that the police witnesses are not credible witnesses. The testimony of every witness, whether from public or police, has to be judged at its own merits and the court can believe or disbelieve a police witness considering the intrinsic value of his testimony. Police witnesses are equally good witnesses and equally bad witnesses as any other witness and the testimony of police witness cannot be rejected on the ground that they are official witnesses.

10. The argument of counsel for appellant that there was not sufficient compliance with provisions of Section 50 of the NDPS must fail. After Balbir Singh's case (Supra), in Joseph Fernandez v. State of Goa, the Supreme Court held that even when the searching officer informs the accused " if you wish, you may be searched in presence of a Magistrate or a Gazetted Officer", it is substantial compliance with the requirements of Section 50 of the NDPS Act. The Supreme Court did not agree with the contention that provisions of Section 50 of NDPS Act have not been complied with. In Prabha Shankar Dubey v. State of M.P. , the following information was conveyed to accused:

By way of this notice, you are informed that we have received information that you are illegally carrying opium with you, therefore, we are required to search your scooter and you for this purpose. You would like to give me search or you would like to be searched by any gazetted officer or by a Magistrate?

This was held to be a substantial compliance of Section 50 of the NDPS Act. The Supreme Court observed that there is no specific format prescribed for conveying the information required to be given under 50 of the NDPS Act and it was held:

That is necessary is that the accused (suspect) should be made aware of the existence of his right to be searched in the presence of one of the officers named in the section itself. Since no specific mode or manner is prescribed or intended, the court has to see the substance and not the form of intimation. Whether the requirements of Section 50 have been met is question which is to be decided on the facts of each case and there cannot be any sweeping generalization and/or a straitjacket formula.

11. Although considering the conflict of opinion between Balbir Singh's case(Supra) and other cases on one hand and Prabha Shankar Dubey v. State of M.P. 2004 SCC(Cri) 420 (Supra) and other cases, the matter has been referred to a larger Bench of Supreme Court in Vijaysinh Chandubha Jadeja v. State of Gujarat (2007) 1 SCC(Crl.) 370, but in view of the later decisions of the Supreme Court, I consider that there was sufficient compliance of Section 50 of the NDPS Act and until the later decisions are reversed, this Court is bound by these decisions of the Supreme Court.

12. I consider that there was no infirmity in the judgment of the trial court. The trial court rightly convicted the appellant under Section 21 of the NDPS Act and rightly sentenced the appellant to the punishment awarded. However, the trial court had awarded that if fine is not paid, the appellant shall undergo Simple Imprisonment for three years. This portion of the sentence is modified. In case fine is not paid, the appellant shall go Simple Imprisonment for six months.

13. With the above modification in sentence, the appeal stands disposed of.