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2017 (12) TMI 1509 - HC - Indian LawsSmuggling - charas - Section 8/20 of N.D.P.S. Act - compliance under Section 50 N.D.P.S. Act - 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? - Held that: - It is apparent from the above evidence on record that the alleged contraband was recovered from the accused all of a sudden by the police party and after the recovery having been made, the police came to know about the same being charas from its smell and on being told by the accused about it. There was no prior information to the police that the accused would be carrying charas, pursuant to which his arrest might have been made - the provisions of section 50 of N.D.P.S. Act would not be applicable. Whether the prosecution has been able to prove beyond reasonable doubt that the contraband material 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? - Held that: - 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. 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 prosecution, in case the prosecution had led weak evidence in regard to recovery from the accused. But that is not the case here. Non-compliance of the provisions of section 32 B of the NDPS Act - Held that: - the Court has expressed opinion that it is not mandatory while awarding punishment under sections of NDPS Act, wherein minimum punishment is provided, to award higher punishment than the minimum prescribed without taking into consideration the grounds which are mentioned in sub section (a) to (f) of section 32 B of NDPS Act - if the said section be read with greater attention, it would reveal that the words used in it are "it may deem fit", therefore word 'may' would indicate that it would be discretionary for the Court to take the grounds into consideration which are mentioned in sub-section (a) to (f) of the said section, while awarding punishment higher than the minimum prescribed. This Court has already held that the prosecution has been successful in proving the recovery of contraband substance from the accused, of which he could show no license to possess, on the basis of entire evidence, therefore, this view of the Court may not be upset only because of the above mentioned lacuna being pointed out in investigation - 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 - appeal allowed in part.
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