TMI Blog2017 (12) TMI 1509X X X X Extracts X X X X X X X X Extracts X X X X ..... e in possession of the contraband Charas. He has simply denied the recovery of such substance and has taken the plea that he has been falsely implicated by police, in statement under section 313 of the Criminal Procedure Code. Why the police has falsely implicated him and what was enmity of police with him, has not been brought on record by examining any witness. It would not be out of place to mention that the quantity recovered from the accused is huge, which is difficult to be planted looking to its value in the International market. The statement of police witnesses recorded by the prosecution in this case cannot be disbelieved only because they were police witnesses, in absence of any public witness being available. These witnesses did arrest the accused with alleged contraband substance in the normal course of duty harboring no enmity towards him, hence it cannot be held that they might have given false statement against the accused only to ensure that the charge sheet submitted by police stands vindicated. Compliance of section 57 of NDPS Act - Held that: - The compliance of section 57 could only have adverse impact on the probative value of the evidence of the prosecu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9.2017, the in-charge of Police Station, Dhebarua, Ram Dhyan (P.W.1) along with constable Anghad Singh was going to Kasba Bathni on patrolling duty and to check suspects for stopping the smuggling in an official jeep with its driver Ram Bhujarat Chaudhary. Right then near Pachpedwa tri-junction, S.I. Brajesh Kumar Yadav (P.W.3) along with constable Asgar Ali and constable Faiz Khan were also taken along after having been told the purpose and the entire police party reached Kallan Dehewa. The jeep was left in that village with driver and thereafter this police party proceeded towards north of Kallan Dehewa where there was no man's land border. The entire police party started waiting in a temple which was adjacent to no man's land. Soon they found that one person at 15:00 hours was coming from the side of Nepal with a plastic bag in his hand and had crossed the no man's land. The person, after having seen police party, all of a sudden started running back towards no man's land at a faster pace. Looking to his suspicious conduct, he was directed to stop and was ultimately arrested 15 steps away towards north of the temple in the no man's land. He was then enquired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial No. 43 on 6.9.2007, which is Exhibit Ka-12. Thereafter, investigation of this case was handed over to S.I. Ram Chandra Bharti (P.W.4) who prepared the site plan (Exhibit Ka 9) at the instance of the first informant. The sample of the recovered contraband substance was brought to the court and its docket (Exhibit Ka 5) was prepared which was sent to the F.S.L. through constable Anand Kumar Prajapati (P.W.2) which was got received by him in F.S.L. on 11.9.2007. The report of F.S.L. (Exhibit Ka 11) was made available to the Investigating Officer in which the sample was found to contain 'Charas' and on the basis of the evidence collected by I.O., he submitted charge-sheet (Exhibit Ka 10) against the accused under Section 8/20 of the N.D.P.S. Act. 5. The accused was provided copies of the incriminating evidence and thereafter charge was framed against him under Section 20 (b) (ii) (c) of N.D.P.S. Act 1985 to which he pleaded not guilty and claimed to be tried. 6. The prosecution examined S.I. Ramdhyan as P.W. 1, constable Anand Kumar Prajapati as P.W.2, S.I. Brajesh Kumar Yadav as P.W. 3, S.I. Ram Chandra Bharti as P.W.4 and Head Constable Rosh Nath Ojha as P.W.5. Out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while the remaining part may be discarded as being untrue. As regards the compliance under Section 50 N.D.P.S. Act, it is stated that provisions of Section 50 of N.D.P.S. Act would not be applicable here because the search was made of the bag which was being carried by the accused in hand and that his personal search was not made, therefore, in the light of the law laid down by Supreme Court in State of Haryana Vs. Ranbir @ Rana (2006) 5 Supreme Court Court 167 and in State of Rajasthan Vs. Babu Ram 2007(6) Supreme Court Cases 55 in respect of Section 50 of N.D.P.S. Act, the provisions of the said Section would not be applicable. 10. The compliance of Section 57 of N.D.P.S. Was found adhered to by the learned court below because it was found that a copy of the first information report was made available to the Circle Officer within 48 hours and P.W.1 had given clear statement that he had informed the higher authorities of the police through R.T. Set about this occurrence which was also supported by the statement of P.W.3. Lastly the court below held that it was well proved by the prosecution that the recovered contraband material was weighed on the spot and its sample, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contraband recovered from the accused and has awarded punishment on the basis of total quantity of recovered contraband instead of percentage of Charas found in the said total quantity. In this regard, he has further relied upon the same ruling i.e. Criminal Appeal No. 1037 of 2003 (Mukhtar Islam Vs. State of U.P.) in which the Court had found that the punishment was not awarded on the basis of quantity of heroin calculated on the basis of percentage of the 'Heroin' found in the total recovered contraband substance rather it was awarded on the basis of total recovered contraband substance. In addition to the above ruling, learned counsel has also relied upon the law laid down by Hon'ble Supreme Court in Harjit Singh Vs. State of Punjab, 2011 Law Suit (SC) 277. 16. It is argued that neither any public witness has been examined nor any effort was made to take any public witness at the time of alleged recovery. 17. It is argued that the compliance of Section 50 N.D.P.S. Act was not made which makes recovery of the alleged contraband doubtful. 18. It is further argued that no compliance has been made of Section 52 (A) N.D.P.S. Act because the empowered officer w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the accused on the spot and sample taken, therefore, were kept in Malkhana in safe condition and thereafter from there it was taken to court and from court, the sample of the contraband substance was again sealed and the same was sent to F.S.L. for being examined/tested. Nothing on record has emerged showing that the said substance was not sent in sealed condition to F.S.L. or the same was tampered with. 25. It is also stated that the prosecution has successfully proved the accused to have been found in possession of contraband substance (Charas) without any license, hence, the burden had been shifted on the accused under Sections 35 and 54 of the N.D.P.S. Act to prove as to how the said contraband substance came in his possession in the case at hand. The accused has not discharged the said burden and hence he has been rightly convicted. From the side of learned A.G.A., number of rulings have been cited which would be referred at appropriate places. 26. First of all, the point of non compliance of Section 50 of N.D.P.S. Act is being taken up. According to the learned Amicus Curiae, in this case the police party has not made compliance of provisions of Section 50 in lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, entitled to be acquitted. 27. Citing the above paragraph, it has been argued that in the present case also, Section 50 of the N.D.P.S. Act would be applicable because in the above mentioned case, there was sudden recovery / chance recovery of the contraband substance from the accused yet it was found by the Apex Court that the provisions of Section 50 of NDPS Act were required to be adhered to and for want of that the accused was acquitted in that case. In the present case of chance recovery, the provisions of Section 50 of NDPS Act ought to have been followed by the raiding party. 28. In rebuttal from the side of learned A.G.A., reliance has been placed upon State of H.P. Vs. Sunil Kumar (2014) 4 SCC 780. In this case, the question before the Supreme Court was that whether the accidental or chance recovery of Narcotics Drugs during a personal or body search would attract the provisions of Section 50 of the N.D.P.S. Act. This question was replied by the Supreme Court in para 18 to 21 of the judgment which are as follows: 18. It is true that Sunil Kumar behaved in a suspicious manner which resulted in his personal search being conducted after he disembarked from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it shall prevail over law of earlier period and according to this decision, correct position of law is that if any sudden recovery of contraband substance is made during ordinary search proceedings, the provisions of Section 50 N.D.P.S. Act would not be applicable, however, once the recovery of contraband substance has been made, from that point onwards subsequent provisions of Section 50 of N.D.P.S. Act shall be observed by the empowered/ authorized officer. 30. Now it has to be seen in view of above position of law that whether the provisions of Section 50 of N.D.P.S. Act would be applicable in the present case or not for which evidence on record has to be seen. 31. In the recovery memo (Exhibit ka-1), it is recorded that the police patrolling party had come across the accused at 3 p.m. on 6.9.2007 when it was busy in checking of suspected persons and for taking necessary steps to stop smuggling of Manure. When accused having seen the police party, all of a sudden, started moving in the reverse direction then the police got suspicious about him and pursuant to that he was arrested. After that his personal search was made and the alleged contraband (charas) was recovered fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al which was recovered from the accused and subsequently seized was the same, out of which the sample was taken and sent to the F.S.L. for determining whether the same was charas or not. 38. Learned Amicus Curiae's version is that the prosecution has failed to prove that the seal which was used at the time of recovery of the contraband from the accused on the spot and which was also used at the time of sealing the sample taken out of it on the spot, was not disclosed by the prosecution and the seal which is found affixed on the sample of the contraband sent to the F.S.L. is found to be of district judge U.P. S.D.R. It is also stated that there is a story built up by the prosecution to prove its version by saying that the seal which was used on the sample of the contraband substance which was taken on the spot, was subsequently opened before sessions judge and the sample of the contraband substance was again sealed by the seal of the court, thereafter, the docket was prepared to be sent to the F.S.L. for the examination of the said substance. There was no legal provision for placing the sample of contraband substance before court for permission to be sent to the F.S.L. This ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Exhibit-4 and the bag was exhibited as Exhibit-5. It was also stated that on the said bag impression of the accused's thumb was available. In cross-examination, no question had been put to him with regard to the fact as to where the sample of the contraband substance, which was collected on the spot, was kept and whose seal was affixed there-on, nor has it been asked as to whether the fresh sample was taken before court on 3.1.2008 or the sample which was sent to the F.S.L. was the same which had been taken by police on the same day when the accused was arrested on the spot. 40. The other eye witness P.W. 3 in this regard stated in examination-in-chief that from all the three plates of Charas, about 100 grams Charas was taken out as sample and was separately kept in a polythene and thereafter wrapped in a cloth and the remaining 3 plates of Charas were kept in a packet and were sealed separately and the sample of the seal was prepared. No question has been put to this witness in cross-examination concerning the fact of sealing the contraband substance and its sample on the spot or whether the sample of contraband was taken in court. 41. P.W.2 , Constable Anand Kumar has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty of crime number 501 of 2007 which includes Charas, sample Charas and sample seal, all in sealed condition, photo copy of the original of which has been attested by him and has been filed as Exhibit Ka-12. In cross-examination this witness has stated that this entry was made in front of him by Head Muharrir, Rai Dayal and he only had kept these articles in Malkhana. No cross-examination has been made from this witness with regard to the sample seal as to whose seal was put on the Charas and sample Charas. 43. In the light of above evidence, the learned Amicus Curiae has put forth the argument that it is not established by prosecution that the sample of contraband substance (Charas) recovered from the accused and sealed on the spot was the same which was sent to the FSL because the sample contraband was found by F.S.L. sealed with seal of District Judge U.P. SDR . It is not brought on record that the seal of District Judge U.P. SDR was affixed on the sample of contraband taken on the spot out of the recovered contraband Charas. It is further argued that the statement of PW 2 quoted above shows that on 10/9/2007 the recovered material, its sample and sample seal were tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the sample seal was found in broken condition/tampered at any stage. It was duty of the learned counsel for the defence to seek clarification in cross-examination as to whose seal was initially put on the recovered contraband and its sample and also when the Court's seal was affixed on the sample of contraband, the defence counsel ought to have clarified by putting questions in this regard in cross-examination if there was any doubt about the same, which has not been done by the defence. In this regard the learned District Judge has rightly relied upon Gian Chand and Others Vs State of Haryana (2013) 14 SCC 420, in which the Supreme Court has laid down as follows in paragraph 14 and 15: - 14. The effect of not cross-examining a witness on a particular fact/circumstance has been dealt with and explained by this Court in Laxmibai v. Bhagwanthuva, AIR 2013 SC 1204 observing as under: (SCC p. 114, Para 40) 40. Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e night and the contraband material was found. Therefore, the question arises whether they can be held to have conscious possession of the contraband substances. 17. This Court dealt with this issue in Madan Lal v. State of H.P. AIR 2003 SC 3642, observing that: (SCC p. 472, Para 20) 20. Section 20(b) makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences [and penalties] for possession of such articles. Undoubtedly, in order to bring home the charge of illicit possession, there must be conscious possession. The expression ''possession' has been held to be a polymorphous term having different meanings in contextually different backgrounds. Therefore, its definition cannot be put in a straitjacket formula. ''23. The word ''conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. 24. ... possession in a given case need not be [actual] physical possession and may be constructive [i.e.] having power and control over the article in case in question, while the person to whom physical possession is given holds it sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of his special knowledge regarding such facts, failed to offer any explanation which might drive the Court to draw a different inference. 38. ... Section 106 of the Evidence Act is designed to meet certain exceptional cases in which it would be impossible for the prosecution to establish certain facts which are particularly within the knowledge of the accused. (SCC p. 393, para 38) (emphasis supplied) 46. In the present case, it was duty of the accused to disclose as to how he came in possession of the contraband Charas. He has simply denied the recovery of such substance and has taken the plea that he has been falsely implicated by police, in statement under section 313 of the Criminal Procedure Code. Why the police has falsely implicated him and what was enmity of police with him, has not been brought on record by examining any witness. It would not be out of place to mention that the quantity recovered from the accused is huge, which is difficult to be planted looking to its value in the International market. 47. The next argument made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er judgments came to the conclusion that where all witnesses are from the police department, their depositions must be subject to strict scrutiny. However, the evidence of police officials cannot be discarded merely on the ground that they belong to the police force, and are either interested in the investigating or the prosecuting agency. However, as far as possible the corroboration of their evidence on material particulars should be sought. The Court held as under: Thus, a witness is normally considered to be independent, unless he springs from sources which are likely to be tainted and this usually means that the said witness has cause, to bear such enmity against the accused, so as to implicate him falsely. In view of the above, there can be no prohibition to the effect that a policeman cannot be a witness, or that his deposition cannot be relied upon. (See also: Paras Ram v. State of Haryana, AIR 1993 SC 1212; Balbir Singh v. State, (1996) 11 SCC 139; Akmal Ahmad v. State of Delhi, AIR 1999 SC 1315; M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence, (2003) 8 SCC 449; and Ravindran v. Superintendent of Customs, AIR 2007 SC 2040). 33. In S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ischarge its duties. 35. The principle of law laid down hereinabove is fully applicable to the facts of the present case. Therefore, mere non-joining of an independent witness where the evidence of the prosecution witnesses may be found to be cogent, convincing, creditworthy and reliable, cannot cast doubt on the version forwarded by the prosecution if there seems to be no reason on record to falsely implicate the appellants. 36. In the instant case at the time of incident some villagers had gathered there. The Investigating Officer in his cross-examination has made it clear that in spite of his best persuasion, none of them were willing to become a witness. Therefore, he could not examine any independent witness. 37. Section 114 of the 1872 Act gives rise to the presumption that every official act done by the police was regularly performed and such presumption requires rebuttal. The legal maxim omnia praesumuntur rite it dowee probetur in contrarium solenniter esse acta i.e., all the acts are presumed to have been done rightly and regularly, applies. When acts are of official nature and went through the process of scrutiny by official persons, a presumption arises ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leged recovery, has not been produced by the prosecution. If the compliance of the provisions of Section 57 of the Act was made, a copy of this report should have been filed. It would have been a better proof of the fact that the recovery officer made this recovery of the seized articles after arrest of the accused. As such, in the aforesaid view of the matter and also since there is no proof of compliance to the requirements of section 57 of the Act on record, the prosecution has to suffer for it. 50. Further reliance has been placed upon Mahesh Nai vs State of U.P. 2006 (1) ACR 60 to point out as to what is the law on the point of non-compliance of section 55 and 57 of the NDPS Act. In Para 13, 14 and 15 of this judgment following is held: - 13. ...... Section 55 of the Act provides as below: Police to take charge of articles seized and delivered.-- An officer in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncluded that the Investigating Officer at the site, had after the arrest of the accused persons and or seizure of the contraband forwarded the information with regard thereto to his higher officer, namely, Deputy Superintendent of Police without any delay and that the related FIR with the necessary endorsements therein had reached the Ilaka Magistrate on the same date i.e. 28.08.2007 at 9 p.m. There is no evidence forthcoming or referred to by the learned counsel for the petitioner to either contradict or decimate this finding based on records. In this view of the matter as well, the assertion of non-compliance of Section 57 of the Act does not commend for acceptance. In our view, having regard to the facts available, the requirements of Section 57 of the Act had been duly complied with as well. 15. The decision in Mohinder Kumar (supra) not only is distinguishable on facts, as the search therein was of the petitioner's premises, the investigation was afflicted as well by several other omissions on the part of the authority conducting the same. Though in this rendering, it was observed that in State of Punjab vs. Balbir Singh- 1994 (31) ACC 351 (SC), the provisions of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to elicit that no such information was sent to the higher authorities although it is true that no written report is filed by the prosecution on record which was sent to the higher authorities. Giving benefit of not making the full compliance of section 57 N.D.P.S. Act by the prosecution to the accused, in the light of the law laid down in the Dilbagh Singh's case (supra), would not be proper because its compliance is not mandatory. The accused would have to show what prejudice was caused to him by such non-compliance. In the case at hand it is already held that the prosecution has proved recovery of the contraband substance (Charas) from the accused on the basis of evidence on record. The compliance of section 57 could only have adverse impact on the probative value of the evidence of the prosecution, in case the prosecution had led weak evidence in regard to recovery from the accused. But that is not the case here. Therefore, the argument of the learned Amicus Curiae in this regard could not be held of much significance. 53. The next point raised by the learned Amicus Curiae is with regard to non-compliance of the provisions of section 32 B of the NDPS Act and also that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 8/21 of Act proceeded to sentence him to 15 years rigorous imprisonment and a fine of ₹ 8,00,000/- and in default of payment of fine to undergone further imprisonment of two years, total 17 years imprisonment which is in excess of the minimum sentence prescribed under the Act for the offence under Section 8/21 Act i.e. 10 years and fine which may extend upto ₹ 2,00,000/-. There is nothing in the impugned judgment which may reflect consideration of any of the factors enumerated in Section 32B of the Act by the trial court while sentencing the appellant to a term of imprisonment in excess of the minimum sentence prescribed under the Act for the offence under Section 8/21 of the Act. There is also no evidence on record showing that any of the factors enumerated under Section 32A of the Act exist in the present case. The only factor which apparently appears to have weighed with the trial court while awarding sentence in excess of the minimum sentence prescribed in the present case was the quantity of the heroin recovered from the appellant and the price it could have fetched in the national and international market which in my opinion, cannot justify the imposi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8/21 of the Act i.e. 10 years and fine of ₹ 1,00,000/-. In default of payment of fine the appellant shall undergo further imprisonment of eleven months. The period of two years and one month of imprisonment undergone by the appellant during the trial shall be included in the total period of imprisonment which the appellant is required to undergo under the altered sentence. 55. Further the learned Amicus Curiae has also relied upon Harjit Singh Vs. State of Punjab, (2011) 4 SCC 441, in which illegal possession of 7.5 Kgs. opium was found to have been recovered which was of commercial quantity, in the form of co-regulated juice of opium poppy. The conviction was made under section 18 of the Act which was upheld by the High Court. It was held that the case was squarely covered under clause (a) of section 2 (xv) of NDPS Act and clause (b) thereof was not attracted for simple reason that Substance recovered was opium in the form of coagulated juice of the opium poppy and not a mixture of opium with any other neutral substance; there was no preparation to produce any new substance from said/ coagulated juice. For purpose of imposition of punishment, if quantity of morphine in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine of ₹ 1 lac to the accused appellant under Section 8/20(b)(ii)(c) of the NDPS Act on the ground that huge quantity of the said contraband (Ganja) has been recovered from the possession of the accused appellant. There is nothing on record to show that the accused appellant had committed any act which may lie under any of the clauses of Section 32-B of the NDPS Act hereinbefore mentioned. But that does not mean that the Court cannot award the sentence more than the minimum sentence in the absence of any of the above conditions mentioned in clauses (a) to (f) because these conditions are in addition to the factors as the Court may deem fit in awarding higher punishment to the accused. In the case at hand, there is nothing on record to show that the accused appellant had previous criminal history or he is a previous convict and that the appellant is now advanced in years and is aged about 56 years as mentioned in the supplementary affidavit filed on behalf of the accused appellant. Undisputedly the accused appellant had licence of the retailer shop of Bhang. Thus, regard being had to all the facts and circumstances of the case I think that reduction of sentence of 12 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned amicus curiae that in the case at hand the punishment awarded needs to be curtailed keeping in view that the lower Court did not take into consideration the above factors. The Court should not be oblivious of the fact that post-amendment of the Act in the year 2001 the criteria for awarding punishment has been proportional to the amount of recovery. Therefore in case the Court considers awarding higher punishment keeping in view the higher quantity of contraband substance, it should not be treated to be arbitrary. Although it is a different matter that this Court would like to consider reducing substantive punishment on other grounds, if found suitable. 60. It may be mentioned here that a large number of rulings have been relied upon by the learned Amicus Curiae on various points, all of which have not been referred here but it would be pertinent to mention here that each of these rulings has separate set of facts in which the judgements have been pronounced on them following certain principles. Those principles may not be applicable in the present case due to there being different set of facts. In this regard the learned AGA has placed reliance upon Gian Chand' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction of Sri Verma that investigation was entrusted to Sri Geetam Singh. It is difficult to believe that a subordinate officer like Sri Geetam Singh would do justice to this case. Being subordinate to Sri Verma, he was not in a position to come to an independent finding. Therefore, such an investigation can be termed as tainted and no reliance can be placed upon it. Investigation regarding the acts of senior officer should not be done by junior officer. 63. He has also placed reliance upon another judgment of this Court i.e. Ram Jatan Ors. Vs State, 1995 Cr L.J. 3904, in which it is held that there was a glaring mistake in the prosecution's case because the investigation was entrusted to a subordinate officer. Attention has been drawn to paragraph 12 of this judgment which is as follows:- 12. Now coming to the other limb of arguments that investigation was entrusted to a subordinate officer, Sri Gopi Chand, Sub Inspector. It has been laid down by Hon'ble Judge of this Court in the case of Raghubir and others V. State of U.P. (Supra) that if the investigation of the case has been entrusted to a subordinate officer by the station officer of the said police sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above. 66. In view of the above it is clear that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of the case of prosecution when it is otherwise proved. The only requirement is use of extra caution in the evaluation of evidence. A defective investigation cannot be fatal to prosecution when ocular testimony is found credible and cogent. This view has also been reiterated in several other cases. In view of the above position of law, it has to be seen as to whether due to the lacuna in conducting the investigation because of the same having been assigned to an officer junior to the first informant or arresting witness, as contended by the learned Amicus Curiae, any benefit would go to the accused in this case. 67. In the case at hand, PW 1 who had made arrest of the accused and had seized contraband substance from him, is in-charge of Police Station Dhebarua while the investigating officer PW 4, Ram Chandra Bharti had made inves ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very of the contraband substance is not so high that it was mandatory for the lower court to award punishment more than minimum prescribed. It would meet the ends of justice if the punishment is reduced to 10 years R.I. and fine of ₹ 1,000,00/- in the present case. 71. In the discretion of this Court, it is found reasonable that interest of justice would be met if the accused is awarded 10 years R.I. and fine of ₹ 1,000,00/- and in default of payment of fine, he may be directed to undergo 3 months further simple imprisonment. 72. This Appeal is, accordingly, allowed partly. The conviction of the accused appellant is upheld but his punishment is reduced to 10 years R.I., fine of ₹ 1,00,000/- and in default of payment of fine, he shall further undergo S.I. of three months. It is further mentioned here that, in case, the accused has already served out the above period, he shall be released from jail in this case forthwith, if not detained in any other offence. 73. The case property shall be destroyed after period of Appeal is over or in case the law provides otherwise. 74. Let lower court record be returned forthwith along with a copy of the judgment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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