Kalyan vs State Of Uttarakhand
2024 Latest Caselaw 825 UK

Uttarakhand High Court

Kalyan vs State Of Uttarakhand on 1 May, 2024

Author: Pankaj Purohit

Bench: Pankaj Purohit

         HIGH COURT OF UTTARAKHAND AT
                   NAINITAL
              Criminal Jail Appeal No.17 of 2017


Kalyan                                              ........Appellant

                               Versus

State of Uttarakhand                                .....Respondent

Presence:-
      Ms. Deepa Arya, learned Amicus Curiae for the appellant.
      Mr. K.S. Bora, learned D.A.G. along with Mr. S.C. Dumka, learned
      A.G.A. and Mr. J.P. Kandpal, learned B.H. for the State.

Hon'ble Pankaj Purohit, J. (Oral)

In this appeal preferred by the appellant-Kalyan from Jail, a challenge has been laid to the judgment and order dated 23.11.2016, passed by learned Special Sessions Judge, Pithoragarh in Special Sessions Trial No.3 of 2015, State of Uttarakhand vs. Kalyan, whereby the said court, at the end of trial, has convicted the appellant for the offence punishable under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act, 1985") and sentenced him to undergo R.I. for 10 years' with fine of Rs.1,00,000/- and in case of default of making the payment of fine, the accused was directed to undergo six months' additional R.I.

2. The facts in nutshell are that on 11.12.2014, PW1-S.O. Narayan Singh along with other police persons was on patrolling duty at India Nepal Border. On that day at about 05:00 p.m. one person was seen holding a bag on his back coming towards India from Nepal. When the said person was stopped for the purpose of checking, he at once took back and tried to flee, but the police authority

on having suspicion, with the help of force surrounded that person and nabbed him at S.S.B. Check Post, Jhulaghat. On being inquired the reason, that person informed that he was having a bit of Charas with him and for this reason he was trying to flee. A Gazetted Officer was called who reached on the spot at 05:20 p.m. Before the Gazetted Officer, the bag held by the accused was searched from which Charas was recovered which, on being weighed, found to be 02 Kg 300 gms. The accused did not produce any valid licence for holding this quantity of contraband article. The accused was accordingly arrested and the FIR was lodged. Recovery memo was accordingly prepared. Site plan was prepared. After investigation, charge-sheet was submitted. The charges were framed against the accused under Section 8/20 of the Act, 1985 by learned Special Sessions Judge and read over to the appellant, which he denied and pleaded not guilty and sought for trial.

3. As many as seven witnesses were examined on behalf of the prosecution. The statement of accused under Section 313 Cr.P.C. was recorded. The trial court, at the end of trial, has convicted and sentenced the accused appellant, as mentioned in para 1 of this judgment. Hence, this appeal.

4. In this matter, PW1-Narayan Singh, the then S.H.O. Jhulaghat has reiterated the contents of the FIR. According to him, on 11.12.2014 at about 05.00 p.m. one person was found coming from Nepal India Border. When he was checked, he was having 02 Kg 300 gms. of Charas in the bag hold by him. The search was carried out before the Gazetted Officer.

5. PW2-Om Prakash, Sub-Area Organizer, S.S.B. Office Jhulaghat is the Gazetted Officer in this matter before whom the contraband from the accused was recovered and weighed. The accused-appellant given his consent before this witness that he was ready if his search is carried out.

6. PW3-Head Constable Prakash Singh, PW4- Head Constable Subhash Chaudhary and PW5-Constable Bilash Chandra Bhatt are also the police witnesses. They have duly supported the evidence given by PW1 and has also supported the entire prosecution case.

7. PW6-Vimal Kumar Mishra is the Investigating Officer of the case, whereas PW7-Contable Prakash Ram is a formal witness.

8. It is admitted in this matter that on 11.12.2014 at about 05:00 p.m. accused was nabbed while coming from Nepal towards India. When the bag kept by accused on his back was opened before the Gazetted Officer, the contraband "Charas" was found therein which on being weighed was found to be 02 Kg 300 gms. The contraband and specimen of seal was accordingly sent for forensic examination. The report given by the FSL is also positive about the contraband article being the Charas.

9. From the evidence available on record, it appears that there is sufficient compliance of Section 50 and Section 52 (A) of the Act, 1985. No contradiction could be pointed out by the defence counsel in the statements given by PW1, PW2 and PW3. It is also not the case of the prosecution that the police persons did have any enmity with the appellant-accused so as to falsely implicate him in the crime. The trial court relying upon

the various authorities of Hon'ble Supreme Court and also by this Court, has convicted and sentenced the accused as mentioned in paragraph no.1 of this judgment.

10. Learned Amicus Curiae appearing on behalf of the appellant could not point out that any material contradiction in the evidence laid by the prosecution witnesses. The prosecution witnesses, though were subjected to lengthy cross-examination at the end of defence counsel, but nothing substantial could come out so as to caste any dent in the prosecution story.

11. In my considered opinion, there is no iota of evidence so as to interfere with the well reasoned judgment passed by the trial court. The appeal fails and the same is accordingly dismissed. The appellant is already in jail. He shall serve out the sentence and also deposit the fine as directed by the trial court.

12. Needless to say that the period already undergone by the appellant shall be set-off from the sentence imposed by the trial court.

13. Let a copy of this judgment and order along with TCR be transmitted to the court concerned for compliance.

(Pankaj Purohit, J.) 01.05.2024 AK