THE HIGH COURT OF SIKKIM: GANGTOK
(Criminal Appellate Jurisdiction)
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S.B: THE HON'BLE MR. JUSTICE BHASKAR RAJ PRADHAN, JUDGE
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CRL. A. No. 25 of 2018
1. Rabin Baraily
aged about 19 years,
S/o Harka Bahadur Baraily,
R/o 6th Mile Malbasey,
Gyalshing, West Sikkim.
2. Puran Bhujel
aged about 25 years,
S/o Dhan Bahadur Bhujel,
R/o Lower Pelling,
Gyalshing, West Sikkim.
..... Appellants
Versus
State of Sikkim ..... Respondent
Appeal under section 374(2) of the
Code of Criminal Procedure, 1973.
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Appearance:
Ms Gita Bista, Advocate for the Appellants.
Mr. Yadev Sharma, Additional Public Prosecutor for the State
respondent.
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Date of hearing : 05.08.2021
Date of judgment: 21.08.2021
JUDGMENT
Bhaskar Raj Pradhan, J.
1. This appeal under section 374(2) of the Code of
Criminal Procedure, 1973 (Cr.P.C.) is directed against the
judgment and order on sentence dated 30.06.2018 passed by the
learned Special Judge (SADA 2006), West Sikkim at Gyalshing in 2 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
Sessions Trial (SADA) Case No. 03 of 2018 (State of Sikkim vs
Rabin Baraily and another).
2. The learned Special Judge found the appellants guilty
under sections 9(1)(b) and 9(b) of the Sikkim Anti Drugs Act,
2006 (SADA, 2006). The learned Special Judge sentenced the
appellants to rigorous imprisonment of seven years and to pay a
fine of Rs.50,000/- under section 9(1)(b) of SADA, 2006. In
default, the appellants were to undergo simple imprisonment for
six months. The appellants were also sentenced to pay a fine of
Rs.5000/- under section 9(b) of SADA, 2006. In default, the
appellants were to undergo simple imprisonment for one month.
The period of imprisonment already undergone by the appellants
were set off. The learned Special Judge also directed that during
their term of imprisonment, the appellants were to undergo
compulsory detoxification and rehabilitation available in the
State Prison at Rongyek, if necessary.
3. Heard Ms Gita Bista, learned counsel for the
appellants and Mr. Yadev Sharma, learned Additional Public
Prosecutor for the State of Sikkim.
4. The learned counsel for the appellants raised her first
challenge about the seizures in the present case. It was her
contention that there was no evidence that the seized Puma bag
was found in the possession of the appellant no.1. The learned 3 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
counsel submitted that the Sub-Divisional Magistrate, Tushar
Nikhare (PW-1) (SDM) accompanied the police for the search in
the house of the appellant no.2 and therefore, was not
independent of the police. The learned counsel also submitted
that the prosecution has not been able to prove the collection of
urine samples of the appellants. The learned counsel relied upon
the judgment of this court in Sushil Sharma vs State of Sikkim1.
5. The learned Additional Public Prosecutor on the other
hand submitted that the evidence laid before the court would
conclusively establish that the seizures were in fact made and
the urine samples properly collected from the appellants which
on forensic examination gave positive indication for controlled
substances.
6. The FIR was lodged by Police Inspector Mahindra
Pradhan (PW-10) on 28.01.2018 stating that on that day, he
along with a police team, namely, Sub Inspector (SI) Upashna
Sharma, Constable Gyan Bahadur Rai and others were
conducting vehicle checking at Tikjuk near Police Station when
he received credible source information that appellant no.1 was
coming towards Gyalshing in a taxi bearing registration no. SK
02 T/0576 from Pelling and that he was suspected to be in
possession of contraband substances in his black carry bag. The
1 SLR (2018) Sik 1499 4 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
FIR further reported that as soon as he received the information,
the vehicle arrived, and the appellant no.1 was intercepted along
with the vehicle in the presence of two witnesses, viz. Sonam
Bhutia (PW-7) and Bishnu Chettri (PW-3). The SDM was called
over mobile phone and upon his arrival the appellant no.1 was
given an option to have himself, and his bag searched under
section 24 of SADA, 2006. Appellant no.1 agreed to be searched
in the presence of the SDM. As such, the police team conducted
search on his body and his bag in the presence of the SDM and
the two independent witnesses. Five files (24 x 5 = 120 capsules),
1 loose file containing 6 number of Spasmo Proxyvon capsules
were found in the black bag. Two numbers of loose Spasmo
Proxyvon capsules were also recovered and seized from the right
pocket of his jeans trousers along with one stick cigarette
(Sahara) and one brown leather wallet containing Rs.120/-. It
was reported that during this process of search and seizure,
Bikash Kr. Singh, Assistant Commandant 36th Bn, SSB,
Gyalshing (PW-6), was also present as he was called by him to
assist and witness the search and seizure. The recovered items
were photographed, seized, packed, and sealed in the presence of
the witnesses and the SDM. From the seized items, one file (24 x
1 = 24 capsules), one loose file containing six numbers and two
loose capsules of Spasmo Proxyvon were separately packed,
sealed and labelled in the presence of the SDM and two
witnesses, to send it to RFSL for forensic analysis. After the 5 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
investigation by Sub Inspector (SI) Naresh Chettri (PW-9), the
report under section 173 of the Cr.P.C. was filed alleging the
commission of offences under section 9/14 of SADA, 2006 read
with section 13(c) of the Drugs and Cosmetics Act, 1940.
7. On 04.04.2018, charges were framed against the
appellants under section 9(1)(b) of SADA, 2006 as amended vide
Notification No. 21/LD/17 dated 19.09.2017 and section 9(b) of
SADA, 2006. The appellants pleaded not guilty, and the case
proceeded for trial. The prosecution examined ten witnesses
including the Investigating Officer Naresh Chettri (PW-9). Tushar
Nikhare (PW-1) is the SDM involved in the search and seizure of
the controlled substances from both the appellants. Sonam
Zangmoo Bhutia (PW-2) is the Junior Scientific Officer in the
Chemistry Division of RFSL, Saramsa, who examined the seized
substances as well as the urine samples of the appellants.
Bishnu Chettri (PW-3) and Sonam Bhutia (PW-7) are the seizure
witnesses to the seizure made in front of the Tikjuk Police Station
on 28.01.2018 vide seizure memo (Exhibit-2). Mani Kumar Rai
(PW-4) - the landlord of appellant no.2 and P. Tshering Bhutia
(PW-8), were the seizure witnesses from the room of the appellant
no.2. Dr. Pratik Rasaily (PW-5) examined both the appellants and
prepared their medical reports, Exhibit-9 and Exhibit-10. The
appellants were, thereafter, examined under section 313 Cr.P.C. 6
Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
Both feigned ignorance and said that the allegations were not
true.
8. Mahindra Pradhan (PW-10) was the one who
conducted the vehicle search and intercepted the appellant no.1
on 28.01.2018 at Tikjuk near the Police Station. He deposed that
the appellant no.1 was given option to have his person and his
bag searched under the provisions of section 24 of SADA, 2006.
Appellant no.1 agreed to be searched in the presence of the SDM
and two independent witnesses. According to him, in the notice
under section 24(1) of SADA 2006 (Exhibit-1), the appellant no. 1
acknowledged "Mero body search SDM Gayzing ko pargenc (sic
'presence') ma garnu sakcha" [Exhibit-1(e)]. Mahindra Pradhan
(PW-10) identified the handwriting and signature of the appellant
no.1. Mahindra Pradhan (PW-10) was cross-examined by the
defence. There was not even a denial of the endorsement made
by the appellant no.1 in the notice (Exhibit-1).
9. Bishnu Chettri (PW-3) stated that during the checking
the seized items were recovered from the black Puma bag of the
appellant no.1. He also stated that two loose capsules were
recovered from the right jeans pocket of the appellant no.1.
During cross-examination, Bishnu Chettri admitted that when he
reached the place of occurrence the search was already on. The
appellant no.1 was sitting inside the vehicle. The Driver of the
vehicle was not searched and checked by the police. He did not 7 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
hear the police asking the appellant no.1 anything before
conducting the search although he was present there. He also
admitted that when he reached the place of occurrence the
alleged bag was already in the possession of the police.
10. Sonam Bhutia (PW-7) stated that the contraband
drugs were recovered from the appellant no.1. He also stated that
some contraband drugs in the black bag were seized by the
police. During cross-examination, he admitted that Bishnu
Chettri (PW-3) was conducting search of the bag.
11. The facts reveal that the appellant no.1 was
intercepted in a vehicle and searched in the presence of the SDM
after he was given an option by Mahindra Pradhan (PW-10)
under section 24 of the SADA, 2006. Although Mahindra
Pradhan (PW-10) deposed this fact, no question was asked to
him by the defence which would indicate that the search was not
conducted legally. He made a categorical statement that the
appellant no.1 had given his option to have himself and his bag
searched in the presence of the SDM. Neither in the cross-
examination of Mahindra Pradhan (PW-10) nor in the cross-
examination of the two seizure witnesses did the defence raise
the plea that the black Puma bag did not belong to the appellant
no.1. Even during his examination under section 313 Cr.P.C., he
did not take such a plea. The statement of Bishnu Chettri (PW-3)
during his cross-examination that the accused was inside the 8 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
vehicle and the bag was already in the possession of the police
would not be of much consequence in view of the categorical
deposition of Mahindra Pradhan (PW-10).
12. Chapter V of the SADA, 2006 deals with the
procedure to be followed during investigation. Section 21 deals
with power of entry, search, seizure and arrest without warrant
or authorisation by any empowered officer if he has reason to
believe from personal knowledge or information given by any
person and taken down in writing that any controlled substance
in respect of which the offence punishable under the Act has
been committed or any document or other article which
furnished evidence after commission of such offence is kept or
concealed in any building, conveyance or enclosed space and
sealed it in the manner provided. Section 22 of SADA, 2006 deals
with the power of seizure and arrest in any public place. Section
23 of SADA, 2006 empowers any officer authorized under section
21 if he has reason to suspect that any conveyance is used for
the transport of controlled substances to conduct a search of the
conveyance. Section 24 mandates that when the officer is about
to search any person under the provision of section 22, he shall,
if possible, take such person to the nearest gazetted officer of any
of the departments mentioned in section 21 or to the nearest
Magistrate.
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Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
13. Section 100 of the Cr.P.C. would apply only if the
conditions mentioned in section 24(2) of SADA, 2006 is fulfilled,
which means that only when the person cannot be searched in
the presence of a gazetted officer or a Magistrate as it is not
possible to take the person to be searched to them without the
possibility of the suspect parting with possession of the
controlled substance he could proceed to search the person as
provided under section 100 of the Cr.P.C. As the appellant no.1
was searched in the presence of a Magistrate, section 24(2) would
not apply. In the circumstances, the evidence of Mahindra
Pradhan (PW-10) and seizure witness Sonam Bhutia (PW-7),
would be sufficient to establish beyond reasonable doubt that the
seizure was effected in the manner contemplated. Resultantly,
this court does not find anything illegal in the seizures. It is quite
evident that the black Puma bag was, in fact, seized from the
possession of appellant no.1 and that the controlled substances
were found inside the black Puma bag as recorded in the said
seizure memo (Exhibit-2).
14. The established facts reveal that the search and
seizure operation in the house of appellant no.2 was done
immediately after the interception of appellant no.1 in the vehicle
on 28.01.2018 and lodging of the FIR. The SDM was requested
by Mahindra Pradhan (PW-10) on mobile phone to come to the
place where the appellant no.1 and the concerned vehicle was 10 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
intercepted. It was after the appellant no.1, during interrogation,
disclosed to the Investigating Officer that he had purchased the
controlled substances from appellant no.2 that his house was
searched after obtaining warrant from the learned Judicial
Magistrate. The SDM accompanied the police to the house of the
appellant no.2 where search was to be conducted. The SDM
deposed that the appellant no.2 was given option by the police as
to whether he intended to be searched before the Magistrate or a
Gazetted Officer to which he conveyed his desire to be searched
in the presence of the SDM. Pursuant thereto, the search was
conducted, and the controlled substances seized. The Body
Search Memo dated 28.01.2018 (Exhibit-3) and Search
Memorandum dated 28.01.2018 (Exhibit-4) have been proved by
the Investigating Officer; P. Tshering Bhutia (PW-8) and Mani
Kumar Rai (PW-4) as well as the SDM. It is, therefore, quite
evident that the SDM had accompanied the police to the house of
the appellant no.2 only because he had already been requested
earlier to fulfil the requirements of section 24 by Mahindra
Pradhan (PW-10). In any case, although an opportunity to cross-
examine the SDM was availed by the appellant there is no cross-
examination on the alleged illegality of the SDM accompanying
the police during the search and seizure in the house of the
appellant no.2. What matters is the carrying out of search of the
person suspected in the presence of the nearest Gazetted Officer
or the nearest Magistrate to ensure that the search is conducted 11 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
fairly and to overrule the possibility of false accusations. That
having been done, it cannot be now held that the mere fact that
the SDM accompanied the police to the house of the appellant
no.2 would make the search illegal. The facts in Sushil Sharma
(supra) were different.
15. A feeble attempt was also made to question the
forensic evidence of the forensic report prepared by Sonam
Zangmoo Bhutia (PW-2) by the learned counsel for the
appellants. Sonam Zangmoo Bhutia (PW-2) examined the
exhibits furnished by RFSL Saramsa and prepared the report
(Exhibit-6). The report (Exhibit-6) enumerates the description of
the exhibits received and the result of the examination. It also
records that the exhibits were examined by chemical analysis
using Colour Test, Spectrophotometric and Chromatographic
techniques. She deposed that the results were obtained based on
those examinations. There were eight specimens, out of which,
specimens at serial no. 4 and 8 tested positive for Tramadol
which is a controlled substance and the rest of it tested positive
for Tramodol Hydrochloride which is also a controlled substance.
Sonam Zangmoo Bhutia (PW-2) deposed that she was a Junior
Scientific Officer at the Chemistry Division of RFSL, Saramsa,
Ranipool. She deposed about having received the exhibits in two
sealed cloth cover packets. She also deposed that she examined
these exhibits using Colour Test, Spectrophotometric and 12 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
Chromatographic techniques and the results obtained. The
cross-examination neither questioned her expertise nor the
incorrectness of the tests conducted by her. The prosecution has,
therefore, sufficiently proved that the seized items tested positive
for controlled substances.
16. Exhibits 9 and 10, both dated 29.01.2018, are the
letters forwarding the appellants for medical examination with a
request to the medical officer to collect their urine samples. Dr.
Pratik Rasaily (PW-5), the medical officer who examined both the
appellants on 28.01.2018, opined that the appellants were under
the influence of psychotropic substances. The appellants pupils
were dilated and sluggishly reacted to light. The appellant No.1
was conscious but restless. The appellant No.2 was conscious
but drowsy. Dr. Pratik Rasaily (PW-5), thereafter, prepared the
medical reports (Exhibit-9 and Exhibit-10). These reports record
the collection of urine samples. He also deposed that he collected
their urine samples and handed it over to the police. During
cross examination, he admitted that the sluggish and dilated
pupils could be caused by consumption of alcohol as well. He
admitted that there was no witness when he handed over the
urine sample to the police. Naresh Chettri, the Investigating
officer, also corroborated that the appellants' urine samples were
collected and sent for forensic analysis. The handing/taking
memo (Exhibit-13) dated 28.01.2018 and the intimation dated 13 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
29.01.2018 to the Learned Chief Judicial Magistrate by Mahindra
Pradhan (Exhibit-17) also records the collection of the urine
samples from the appellants. The forensic report (Exhibit-6)
records the receipt of exhibits including the urine samples in
glass vials in sealed boxes by a special messenger on 01.02.2018.
Sonam Zangmoo Bhutia (PW-2) confirmed receiving the urine
samples for forensic examination and its examination by her. The
urine samples also tested positive for tramadol which is a
controlled substance. Consequently, there is no reason to doubt
that the urine samples had in fact been collected and sent for
forensic examination.
17. The alleged offence was committed on 28.01.2018.
The last amendment to SADA, 2006 was vide Notification No.
20/LD/18 dated 24.10.2018 by which section 9(1)(b) was further
amended. Therefore, section 9 as it stood on 28.01.2018 as
amended by the Sikkim Anti-Drugs (Amendment) Act, 2017
would be applicable in the facts of the present case. Section 9 as
it stood at the time of the commission of the offence reads thus.
"9. (1) Whoever, in contravention of any provision of this Act or any rule or order made thereunder, manufactures, possesses, sells, purchases, transports, imports inter- State, exports inter-State or uses,-
(a) ...............................................................
(b) where the contravention involves large quantity, with rigorous imprisonment for a term which shall not be less than seven years but may extend to ten years and shall also be liable to pay fine which shall not be less than fifty thousand rupees but may extend to one lakh rupees;
14
Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
(c) ................................................................
(2) ............................................................................... (3) ............................................................................... (4) ............................................................................... (5) ................................................................................"
18. The learned Special Judge has convicted the
appellant under section 9(b) of SADA 2006 which did not exist at
the time of the offence. Original section 9 as enacted in the year
2006 did contain section 9(b). The Sikkim Anti-Drugs
(Amendment) Act, 2017 notified on 19.09.2017, however, vide
section 7 thereof, substituted section 9 as it existed thereby also
removing section 9(b). Section 9, which therefore existed prior,
was now replaced with section 9 which contain sub-sections (1)
to sub-section (5). Resultantly, the conviction of the appellant
under section 9(b) is set aside. The offence punishable under
section 9(1)(b) involves the contravention of any provision of the
Act or any rule or order for manufacture, possession, sale,
purchase, transport, imports inter-State, exports inter-State or
use of large quantity of controlled substances. Under section 2(i),
"large quantity" in relation to controlled substances means any
quantity as specified in the Schedule to the Act. The schedule
provides that anything between 101 to 1500 pieces of controlled
substances would be large quantity. According to the evidence,
the seizure of controlled substances from the possession of each
of the appellants were more than 101 in number and less than 15 Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
1500. Resultantly, the conviction of the appellants under section
9(1)(b) are upheld.
19. Section 9(1)(b) provides rigorous imprisonment for a
term which shall not be less than seven years but may extend to
ten years and shall also be liable to pay fine which shall not be
less than fifty thousand rupees but may extend to one lakh
rupees. The learned Special Judge has convicted the appellants
to the minimum sentence and fine prescribed. Accordingly, the
sentence of the appellants under section 9(1)(b) are also upheld.
20. The appeal is partly allowed to the above extent. The
other directions issued by the learned Special Judge are
maintained.
21. The appellants were enlarged on bail vide order of this
Court dated 28.11.2018. In view of their convictions as above,
they shall surrender before the Court of the learned Special
Judge (SADA 2006), West Sikkim at Gyalshing on 23.08.2021 to
undergo the sentences. The learned Special Judge shall take
appropriate steps should the appellants fail to surrender as
directed hereinabove.
22. No order as to costs.
16
Crl. A. No. 25 of 2018 Rabin Baraily & Another vs. State of Sikkim
23. Copy of the judgment be sent to the Court of the
Learned Special Judge for information and compliance.
( Bhaskar Raj Pradhan )
Judge
Approved for reporting: Yes/No
Internet : Yes/No
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