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2016 (7) TMI 114 - SUPREME COURT

2016 (7) TMI 114 - SUPREME COURT - TMI - Prosecution proceedings under the NDPS act - Held that:- We find from the record of the case that the recovery of contraband was made from the appellant in the public place. In this view of the matter, the case in hand fell under Section 43 of the NDPS Act. So far as compliance of Section 50 is concerned, the prosecution proved that PW-5-who was a gazzetted officer, was called and then in his presence the recovery of contraband was made from the appellant .....

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Uttarakhand at Nainital in Criminal Jail Appeal No. 4 of 2010 whereby the High Court dismissed the appeal filed by the appellant herein upholding the order dated 15.01.2010/19.01.2010 passed by the Special Judge(N.D.P.S.Act)/Additional Sessions Judge/IVth Fast Track Court, Dehradun in Special Sessions Trial Case No. 30 of 2006 convicting the appellant under Section 8/20 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act ) and sentenced him to undergo .....

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Harshvardhan along with Driver Dhanveer Patwal proceeded in a vehicle bearing No. UA07-L 1777. When they reached near Chakbhool, they saw the appellant coming with white plastic bag suspecting that he is carrying contraband intercepted him. On receiving the information from the police party, Dinesh Chander Rawat, Deputy Superintendant of Police(PW-5), a Gazetted officer, also reached at the spot. After search being made, it was found that the appellant was carrying 9.300 kgs. of Cannabis(Charas .....

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nd as contraband item Cannabis (Charas). The Special Court (N.D.P.S.Act), after hearing the parties on 05.10.2006, framed charge of offence punishable under Section 8/20 of N.D.P.S. Act. 4) Prosecution examined the witnesses. However, no evidence in defence was adduced. 5) The Trial Court, after hearing the parties, by judgment/order dated 15.01.2010/19.01.2010 in Special Sessions Trial No. 30 of 2006, found the appellant guilty of charge of offence punishable under Section 8/20 of N.D.P.S. Act .....

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d this appeal by way of special leave before this Court. 9) Heard Mr. Rajeev Maheshwaranand, learned counsel appearing as Amicus Curiae for the appellant and Mr. Dinesh Kumar Garg, learned counsel for the respondent. 10) Mr. Rajeev Maheshwaranand, learned counsel for the appellant (accused) while assailing the legality and correctness of the impugned order argued only one point. According to him, while making the search from the appellant with a view to find out as to whether the appellant was c .....

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ne. It is this submission, learned counsel for the appellant elaborated in his arguments. 11) In reply, learned counsel for the respondent while supporting the view taken by the two Courts below urged that no case is made out to interfere in the impugned order. It was his submission that both the Courts have rightly dealt with the issue on facts and in law including the one argued here and hence the impugned order, which has rightly resulted in appellant s conviction, does not call for any inter .....

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the policemen to get the recovery memo signed from the witnesses of public. Otherwise, also normally the public is reluctant to be witnessed in such kind of cases. (7) Attention of this Court is drawn to the contradictions found in the statements of prosecution witnesses. Reference is made to the statement of PW1 Sub-Inspector Ved Prakash Thapliyal and PW-5 Dinesh Chander Singh Rawat. PW1 Sub-Inspector Ved Prakash Thapliyal has stated that the weights brought by the constable were of 5 kilogram .....

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planted one. Another contradiction pointed out by learned Amicus Curiae is that in the statement of PW1 Ved Prakash Thapliyal, 18.05 hours is said to be the time of arrest, while in the recovery memo it is mentioned as 18.45 hours. The statement made by the witness appears to have been made on 19.11.2007, and the incident relates to 28.05.2006, as such after a period of more than one year, a minor discrepancy in the time of arrest, can not be said to be material to doubt the prosecution story, i .....

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ppreciation of evidence made by the trial court. (9) Therefore, the conviction and sentence recorded by the trial court requires no interference. Accordingly, the appeal is dismissed. 14) Perusal of the relevant portion from the impugned order quoted supra would go to show that the appellant did not urge the point before the High Court which he has urged here. Be that as it may, it has otherwise no substance. 15) We find from the record of the case that the recovery of contraband was made from t .....

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