TMI Blog2015 (9) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... seal. - Thus, from the evidence adduced by the prosecution, the recovery of heroine weighing 1400 grams with purity of 80.1 percent was proved beyond any reasonable doubt. The arrest of the appellant, who is a Nigerian national, in a case under NDPS Act was duly informed to the concerned Embassy through proper channel. It has also been proved by the prosecution that visa of the appellant had already expired much prior to his arrest in this case. Thus the conclusion arrived at by learned Special Judge (NDPS) convicting the appellant under Section 21(c) of NDPS Act and under Section 14 of Foreigners Act is based on sound reasoning and proper appreciation of the testimony of prosecution witnesses. The impugned order cannot be termed as perverse or suffering from any illegality as all the necessary requirements have been duly complied with by the police in this case and the recovery of contraband i.e. heroine weighing 1400 grams which is the commercial quantity (purity level 80.1 percent) stands duly proved. - Decided against the petitioner. - CRL.A. 734/2009 - - - Dated:- 28-9-2012 - PRATIBHA RANI, J. Mr. S.K.Pandey, Adv. : FOR THE APPELANT Mr.Navin Sharma : FOR THE RESPO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mouth of which was tied with rubber band, was recovered and it contained brown colour powder. A very small quantity was taken out and checked with the help of narcotic kit and it was found to be heroine. The total quantity was found to be 1400 grams out of which two samples of 5 grams each were taken and thereafter the samples and the remnants were separately sealed with the seal of HK and seized. FSL form was also filled on which seal of HK was affixed. Seal after use was handed over to HC Rajbir. Thereafter rukka was prepared and Ct.Ved Pal was handed over the rukka as well as three sealed parcels, copy of the seizure memo, FSL form with directions to produce the rukka before Duty Officer and other articles before SHO. 6. On registration of the FIR by the Duty Officer, further investigation was assigned to ASI Padam Singh. The SHO affixed his own seal on the parcels. The second IO reached the spot alongwith Ct. Ved Pal alongwith copy of FIR where site plan was prepared. During investigation, the Nigerian Embassy was informed and search was made for Stanley, associate of the appellant and LOC was also issued for him. 7. Efforts were made to verify about the passport and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... compliance of the mandatory requirement of Section 50 of NDPS Act. Learned counsel for the appellant has drawn the attention of this Court to the notice under Section 50 of NDPS Act wherein FIR number has been mentioned though at the time of service of notice, FIR was not registered. It has been urged on behalf of the appellant that site plan does not indicate the source of light under which the writing work was done and even otherwise, the quantum of writing work is such that it could not have been done under the street light. Not only that, Ct. Ved Pal who is also a member of the raiding party, had taken the samples to FSL on 24.04.2009 and the seal has been returned by him to the SHO on 25.04.2009. Thus, when the samples were taken by him to FSL, the seal was with him which does not rule out the possibility of tampering with the case property. 12. Mr.S.K.Pandey, Advocate for the appellant has also referred to the discrepancies in the weight of the samples as drawn by the IO and the weight as measured in FSL. He contended that as per PW SI Hari Kishan, he had drawn two samples of 5 grams each but when the samples were weighed in FSL, sample 'A' weighed 6.5 grams and s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded that minor discrepancies in the testimony of witnesses are bound to occur with the passage of time which can be ignored by the Court and the conviction and the sentence of the appellant may be maintained. 15. I have considered the rival contentions and carefully gone through the evidence adduced by the prosecution as well statement of the appellant recorded under section 313 CrPC. In the report Vijaysinh Chandubha Jadeja vs. State of Gujarat (Supra) relied upon by learned counsel for the appellant in respect of compliance of Section 50 of NDPS Act, it was held : It is imperative on the part of the empowered officer to apprise the person intended to be searched, of his right under Section 50 of the NDPS Act to be searched before a gazette officer or a Magistrate. It is not necessary that the information required to be given under Section 50 should be in a prescribed form or in writing, but it is mandatory that the suspect is made aware of the existence of his right to be searched before a gazette officer or a Magistrate, if so required by him and this mandatory provision requires strict compliance. Thereafter, the suspect may or may not choose to exercise the right provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the Act, 13. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh MANU/SC/0981/1999 : 1999CriLJ3672 and para 12 of the reports is being reproduced below : 12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be carrying.‟ 18. Even if it is assumed by the sake of arguments that prosecution was supposed to comply with Section 50 of NDPS Act, the notice Ex. PW4/A under Section 50 of NDPS Act shows that the accused has been duly informed about his legal right to get his search conducted before a Gazetted Officer or Magistrate and in the reply which is in his own handwriting and duly signed by him, he has refused to get his search conducted in the presence of a Gazetted Officer or Magistrate. It has been deposed by material prosecution witnesses i.e. PW-5 Ct.Ved Pal, PW-6 Ct.Satish Kumar and PW-8 SI Hari Kishan, who were members of raiding party that the accused was served with a notice Ex.PW4/A informing him that if he so desires, he can be searched in presence of a Gazetted Officer or Magistrate, the accused on the reverse of the notice in his own handwriting has recorded his reply as extracted hereunder : As I am carrying heroine in my bag and I have already being apprehended by you, so I don‟t want to take the search of the members of police party. You may take my search.‟ 19. The Constitution Bench of the Apex Court in the case State of Pubjab vs. Baldev Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the weight of the samples was about 50 grams . About 50 grams necessarily means not exactly 50 grams . The weight could be a little less or more. The deposition of PW3 shows that the samples were sealed with CBI seal bearing impression JS/4 . PW3 has further deposed that samples, on being sealed, were sent to malkhana. PW5 i.e. ASI Ram Kumar deposed that he was in charge of the malkhana. He deposed that he had received the samples in a sealed condition and they remained with him in the sealed condition. He has deposed that one of the samples was given by him to ASI B.K. Sharma to be taken to the Chemical Analyser along with a forwarding letter. ASI B.K. Sharma was examined as PW4. He deposed that he received the sample in a sealed condition and that he delivered the sample to the Chemical Analyser. He deposed that while the sample was in his possession it was not tampered with. The Chemical Analyser was examined as PW2. He deposed that he received the sample with the seal intact along with the forwarding letter. The forwarding letter had been marked as PW3/F. The forwarding letter does not contain any weight. It was only when the Chemical Analyser weighed the sample that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am meaning thereby that it was just after midnight on the night intervening 17/18.04.2009 that the arrest memo was prepared. The FIR is dated 17.04.2009 and arrest is just after midnight by which time, the date changed to 18.04.2009 resulting into overwriting on realizing that after midnight, the date has changed. The cutting is duly initialed by the arresting officer ASI Padam Singh and arrest memo also bears the signature of the arrestee i.e. of the appellant in English. Under the signature of arresting officer, the date is correctly mentioned as 18.04.2009 without any cutting. So, this overwriting in itself cannot be termed so serious so as to entitle the appellant to seek acquittal. 29. Perusal of the evidence adduced by the prosecution proves that the secret information was received on 17.04.2009 at 8.25 pm and recorded vide DD No.35-A Ex.PW3/A which was immediately communicated to the SHO who was present in the police station. Another DD No.37-A Ex.PW3/B was recorded at 8.40 pm whereby the SHO after recording his satisfaction and communicating the information to Mr.Paramaditya, IPS, ACP, Tilak Nagar and on getting information, directed to constitute a raiding party for ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the passport of the appellant was with his friend. It has been suggested to PW-8 ASI Hari Kishan, the second IO that he was having valid passport which was in possession of his friend but immediately thereafter another suggestion has been given that accused was having a valid passport which was forcibly taken by the police and deliberately not placed on record. The name or address of the friend has not been disclosed by the appellant either during investigation or while cross examining the prosecution witnesses. Even in his statement under Section 313 CrPC, he has not disclosed the particulars of his friend who might be having his passport or visa. It is only on the inquiries being made by PW-12 ASI Padam Singh, the second IO through proper channel that the information was received about his unauthorized stay in India and expiry of his visa on 13.03.2008. 33. Learned counsel for the appellant urged that it is a case where the recovery has been effected from near a residential area and despite that no public person has been joined. It has been further submitted that despite the availability of the public witnesses, the police officials who were members of the raiding party have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said witness has not been produced in the Court, in my opinion, the conviction of the appellant cannot be set aside merely on that ground. It is in the statement of the witnesses that many public independent witnesses were asked to join the raiding party, however, they refused. What the police should have done in these circumstances? No doubt if public witnesses decline to cooperate without any reasonable cause, they would be deemed to have committed an offence under Section 187 of IPC. However, we must also keep in view the ground realities in the sense that public witnesses, normally, do not want them to be associated in cases where they are asked to appear in Courts.' 35. Thus, from the evidence adduced by the prosecution, the recovery of heroine weighing 1400 grams with purity of 80.1 percent was proved beyond any reasonable doubt. The arrest of the appellant, who is a Nigerian national, in a case under NDPS Act was duly informed to the concerned Embassy through proper channel. It has also been proved by the prosecution that visa of the appellant had already expired much prior to his arrest in this case. Thus the conclusion arrived at by learned Special Judge (NDPS) c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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