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TMI Blog2010 (8) TMI 931X X X X Extracts X X X X X X X X Extracts X X X X ..... aring Registration No.HP-34-7700 came from Mandi side which was stopped by PW.16, Brijesh Sood and he found two persons sitting in the car, including the driver. Brijesh Sood made enquiry from the person who was driving the car and he disclosed his name as Dehal Singh (appellant in Criminal Appeal No.1215 of 2005) and the other person sitting on the front seat by the side of the driver-seat, disclosed his name as Dinesh Kumar, resident of Goa (appellant in Criminal Appeal No.1216 of 2005). Brijesh Sood gave option in writing to the accused persons, whether they want to give personal search or search of the vehicle before a Magistrate or a Gazetted Officer. Both the appellants gave their consent for being searched by him. Accordingly PW.16, Brijesh Sood searched the car and luggage lying inside the car but nothing incriminating was found either in the car or the luggage. A mechanic was called by PW.3, Churamani, who opened the shields of the windows/doors when packets of brown colour were found concealed between the shields and doors wrapped with black and red adhesive tape. On opening the packets, `Charas' in the shape of stick and chappatis was detected. Churamani was asked by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Appeal No.1216 of 2005 is represented by Mr. P.S. Mishra, learned Senior Counsel. 9. Mr. Rai submits that according to the prosecution two samples of 50 gms. each were taken and sent to the Forensic Science Laboratory for examination, but net weight of the sample received in the laboratory was 65.5606 gms. This discrepancy in weight of sample, in the submission of Mr. Rai, casts serious doubt to the credibility of the prosecution case and this is enough to reject the case of the prosecution. Credibility of the recovery proceedings, in his submission is eroded if the quantity found by the analyst is more than the quantity sealed and sent to him. He points out that taking into consideration the discrepancy in the weight of the samples at the time when it was taken and in the laboratory, this Court in the case of Noor Aga vs. State of Punjab and another, 2008(16) SCC 417, held the case of the prosecution to be not trustworthy. Our attention has been drawn to paragraph 97 of the judgment which reads as follows: "97. The fate of these samples is not disputed. Although two of them were kept in the malkhana along with the bulk, but were not produced. No explanation has been offered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The vehicle was intercepted and searched on a highway and it has come in the evidence of PW.16, Brijesh Sood that he had sent PW.3, Churamani to bring weighing scale and weight from the grocery shop of PW.5, Ram Lal. From the evidence of PW.3, Churamani and PW.5, Ram Lal, the grocery shop owner it is evident that the weighing scale and the weight came from the grocery shop. It is common knowledge that weighing scale and weight kept in the grocery-shop are not of such standard which can weigh articles with great accuracy and therefore difference of 15 gms. in weight, in the facts and circumstances of this case, is not of much significance. Sample was taken by a common weighing scale and weight found in a grocery shop, whereas the weight in the laboratory recorded with precision scale. This would be evident from the fact that the weight of the sample recorded in the laboratory was 65.5606 gms. In this background, small difference in weight loses its significance, when one finds no infirmity in other part of the prosecution story. 12. Now referring to the decision of this Court in the case of Noor Aga (supra) the difference in the weight at the time of taking samples and at the labor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized substance tampered. Those infirmities led this Court to doubt the truthfulness of the prosecution case. This is evident from paragraph 15 of the judgment which reads as follows: "15. This is not all. We find from the evidence of PW 4 that he had taken the seal from PSI Thorat and after preparing the seizure report, panchnama, etc. he carried both the packets to the police station and handed over the packets as well as the seal to Inspector Yadav. According to him on the next day, he took back the packets from the police station and sent them to PW 3 Manohar Joshi, Scientific Assistant in the Crime Branch, who forwarded the same to PW 1 for chemical analysis. In these circumstances, there is justification for the argument that since the seal as well as the packets were in the custody of the same person, there was every possibility of the seized substance being tampered with, and that is the only hypothesis on which the discrepancy in weight can be explained. The least that can be said in the facts of the case is that there is serious doubt about the truthfulness of the prosecution case." 15. Mr. Rai, then submits that though option was given to the appellant to be searched ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch of persons shall be conducted.(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 42 or Section 43, he shall, if such person as requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate. xxx xxx xxx xxx 18. From a plain reading of the aforesaid provision it is evident that it comes into play only when search of a person other than vehicle etc. is taken. Further the authorized officer is to apprise person about to be searched to be taken to the nearest Gazetted Officer or to the Magistrate, if the person about to be searched so requires. Such an option was given to the appellants and, in our opinion, it is nothing but apprising them of their right. Option to choose is given to an accused when he has right to choose. It is communication of right either to accept or reject. Therefore, in our opinion giving the appellants option to be searched satisfied the requirement of Section 50 of the Act. In the case of Dilip (supra) relied on by the appellants the question which fell for consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence is a competent witness of the defence and may give evidence on oath in disproof of the charges. There is reason not to treat the statement under Section 313 of the Code of Criminal Procedure as evidence as the accused cannot be cross-examined, with reference to those statements. However, when an accused appears as witness in defence to disproof the charge, his version can be tested by his cross-examination. Therefore, in our opinion the plea of the appellant Dinesh Kumar that he had taken lift in the car is not fit to be accepted only on the basis of the statements of the appellants under Section 313 of the Code of Criminal Procedure. 22. Both the appellants have been found travelling in the car from which Charas was recovered and, therefore, they were in possession thereof. They were knowing each other. They were not travelling in a public transport vehicle. Distinction has to be made between accused travelling by public transport vehicle and private vehicle. It needs no emphasis that to bring the offence within the mischief of Section 20 of the Act possession has to be conscious possession. Section 35 of the Act recognizes that once possession is established the Court can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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