TMI Blog2018 (1) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... e accused on the said consent memo, doubt could have been raised as to whether the accused had given any such consent - there is no doubt that there was sufficient compliance made of Section 50 of NDPS Act by apprising the accused of his above right. Since the possession of contraband substance (Alprazolam) has been found established, the burden shifts on the accused in view of provision under Section 35 and 54 of the NDPS Act as to how he came in possession of such a huge quantity of contraband substance. He has not adduced any evidence in defense so as to discharge burden shifted upon him. Therefore, there seems to be no infirmity in the judgment delivered by the court below holding the accused guilty. Appeal dismissed - decided against appellant. - Jail Appeal No. 29 of 2016 - - - Dated:- 30-11-2017 - Hon'ble Dinesh Kumar Singh-I, J. For the Appellant : From Jail, Rakesh Kumar Singh For the Respondent : A.G.A. ORDER 1. This appeal has been filed from Jail by the accused-appellant Baijil Saliben against the judgment and order dated 2.11.2015 passed by the Additional District and Sessions Judge, Court No. 7, P.S. GRP, District- Deoria, in Criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent to bring a weighing machine from nearby township and the recovered contraband substance was weighed separately. The quantity of the Alprazolam powder recovered from Baijil Saliben was found to be 120 grams, for possessing which he could not show any license and tendered apologies for the said act. He was told that he had committed an offense under Section 8/21/22 of NDPS Act and was taken into custody (His arrest memo is Exhibit Ka-3).The recovered contraband substance was separately sealed and sample of seal was prepared. A large number of people had gathered on the spot but none of them was ready to be a witness of the recovery. Recovery memo (Exhibit Ka-2) was prepared on the spot by constable Sahdeo Dubey (PW-2). The recovery memo was read out to the accused and thereafter his signature was obtained thereon and a copy of the same was provided to him. An information to higher authority was sent on the same day which is Exhibit Ka-4. On the basis of recovery memo, Case Crime No. 85 of 2013 under Section 8/21/22 of the NDPS Act was lodged at P.S. G.R.P. Bhatini, District Deoria against accused Baijil Saliben. On 18.7.2013 at 10.30 A.M. Chick FIR was prepared which is Exhibit K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Shri Rakesh Kumar Singh, learned amicus curiae has raised following points in appeal before this Court:- (a) The recovery memo Exhibit Ka-2 is a photo copy which has not been proved in accordance with established procedure of law by comparing it with the original after placing the original before court at the time of recording statement of PW-1. (b) There is difference in weight of the Alprazolam powder which was sent to FSL because as per the recovery memo 120 grams Alprazolam powder was recovered from the accused, while it was found to be only 118.10 grams in FSL. (c) Consent obtained from the accused-appellant in writing as to whether he wanted to be searched in front of a Magistrate or a Gazetted Officer to which he is alleged to have stated that he was ready to be searched by the police party itself, is alleged to have reduced into writing by Sahdeo Dubey (PW-2) but it has not been signatured by PW-2, as his signature is not found on the said consent letter (Exhibit Ka-1). (d) It is prosecution's case that when he was arrested, he was not beaten but an injury was found on his buttock caused by blunt object, explanation of which has not been given. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Punjab) decided by Hon'ble Supreme Court on 18.9.2002 in which it was held that not even a question was asked from the accused that they were persons in possession of poppy husk placed in the vehicle, under Section 313 Cr.P.C. and it was held that object of examination under Section 313 Cr.P.C. was to afford an opportunity to the accused to explain the circumstances appearing in evidence against him. It's non-compliance would cause prejudice to the accused. (k) Learned Amicus Curiae has also relied upon State of U.P. Vs. Rajendra @ Manni, 2017(2) JIC 808 Allahabad, in paragraph 3 to 5 following is held:- Upon hearing learned A.G.A., perusal of record as well as the impugned judgment, I find that in order to prove its case the prosecution has produced witnesses to prove the documentary evidence on record which has been categorically analysed by the trial court in detail. It is apparent from the record that as per prosecution case 50 gms. of the material recovered was sent for chemical analysis in the Forensic Laboratory which was received at Forensic Laboratory and found to be 30.5 gms. in a plastic pack. The prosecution has failed to explain the material diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the original and has been exhibited as Exhibit Ka-2 which is being attested by him. Therefore, in the light of above statement of PW-1, it is apparent that the original recovery memo which was in file of co-accused, was presented before court and after comparing with the original, the photo-copy of the recovery memo was got proved and was marked as Exhibit Ka-2. Hence, the objection in this regard by the learned Amicus Curiae does not have any force. 10. The next point raised by Shri Rakesh Kumar Singh, learned Amicus Curiae is that, the quantity of Alprazolam powder which was sent to the FSL was 120 grams while when it was received at FSL it was found to be 118.10 grams, hence, it could not be said that it was the same contraband substance which was allegedly recovered from the accused, there being difference in weight. In this regard, the reliance was also placed by him upon Rajendra @ Manni's case (Supra). 11. The facts of the present case are totally different from the facts of the above case, which has been relied upon by Shri Rakesh Kumar Singh, learned Amicus Curiae because in that case there was huge difference found in the quantity which was sent to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raiding party. Had there been no signature of the accused on the said consent memo, doubt could have been raised as to whether the accused had given any such consent. However, it could be pertinent to mention here that there is settled law on this point that it is not necessary for the prosecution to apprise the accused in writing about his right of search before a Magistrate or a Gazetted Officer, for the same can also be apprised him orally and can be proved by adducing evidence in that regard. 13. It would be pertinent to refer to the law laid down in this regard in State of Punjab Vs. Baldev Singh, 1999 SCC 172 the paragraph 25 of which is as follows:- 25. To be searched before a Gazetted Officer or a Magistrate, if the suspect so requires, is an extremely valuable right which the legislature has given to the person concerned having regard to the grave consequences that may entail the possession of illicit articles under the NDPS Act. It appears to have been incorporated in the Act keeping in view the severity of the punishment. The rationale behind the provision is even otherwise manifest. The search before a Gazetted Officer or a Magistrate would impart much more auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er mode and could also be self-inflicted. No cross-examination has been made by defense on this point. So this injury is not being found of any consequence so as to give benefit to the accused in any manner. 16. The next point raised by Shri Rakesh Kumar Singh, learned Amicus Curiae, is that the accused was not put evidence under section 313 Cr.P.C. that he had given consent by putting his signature on Exhibit Ka-1 (consent memo) and this has certainly caused prejudice to the accused. In this regard, reliance has been placed on Avtar Singh's case (Supra) by Shri Rakesh Kumar Singh, learned Amicus Curiae. In this regard it would be pertinent to mention here that on perusal of the questions put to the accused under Section 313 Cr.P.C., it was evident that it was put to him that there was evidence on record against him to the effect that 120 grams Alprazolam powder was found to have been recovered from him as per prosecution's evidence and that the recovery memo (Exhibit Ka-2) was also pointed out to have been prepared pursuant to the said recovery. He was also given opportunity to give evidence in defense. It is true that the specific question in regard to the accused havi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discrepancy is highlighted by the learned Amicus Curiae and it is stated that this is a concocted story because there is a discrepancy in statement of above two witnesses, because PW-1 says that these items were taken from the local vendors available on the station while the PW-2 has stated that they were procured from nearby Kasba, hence the benefit of these discrepancies must be given to the accused. In my opinion, this discrepancy is not very significant so as to dis-believe the prosecution's version that recovery of 120 grams of Alprazolam powder was made from the accused keeping in view that the statements of witnesses are recorded after a long time of the actual happening of the occurrence and there could be possibility of this kind of discrepancies occurring in statements when they are recorded at a distant point of time. They are ignorable in view of this Court. 19. The next point raised by learned Amicus Curiae is that PW-2 was not on the spot; he has been made witness subsequently to strengthen the case of the prosecution. In this regard the statements of PW-2 on page no. 29 is pointed out in which he has stated that no beating was made of the accused nor any inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nse that no verification was obtained of these dates as to when the report of FSL was received by the investigating officer. If there was any doubt about these dates, the same could have been verified in cross-examination of this witness but the same has not been done. Perusal of the FSL's report (exhibit Ka-9) shows that it was found there bearing seal (Monogram SI UPP) on the bundle of cloth which contained 118.10 grams of contraband substance wrapped in newspaper, kept inside a polythene bag (Thaila). The said contraband substance was received on 29.7.2013 in FSL and this report has been signed by Scientific Officer of the FSL on 22.8.2013 which bears the date 13.9.2013 which appears to be the date when it was sent back to the investigating agency. In cross-examination, the statement given by PW-4 clearly says that he made entry in G.D. on 12.9.2013 of FSL's report which was copied and in cross-examination the said contraband was found to be Alprazolam. There is discrepancy of date undoubtedly but that appears to be a mistake committed by Investigating Officer in mentioning the said date. The same may be a clerical error as well. No where in the said report has it been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stable Jaishankar Rai. The examination report was received by him on 13/9/2013. From the above statements it appears that the recovered contraband was kept in Malkhana for about 10 days and thereafter it was sent for chemical examination to Forensic Science Lab. During the presentation of this material before the trial Court, PW-1 identified that the cloth which contained this material bore two seals one, which he himself had affixed and the other that of FSL. It clearly establishes that despite the fact that the said recovered material was sent for being tested by Forensic Science Lab 10 days after the recovery, it was not tampered as nothing has come on record that the seal was found broken at the time when the statement of PW-1 was being recorded. The only infirmity which has come to light is that in the Forensic Science Lab report (Exhibit Ka-9) it has been mentioned that 118.10 grams suspected contraband powder, rolled in a Newspaper cutting, sealed in a cloth was found by them and after being tested it was found to be Alprazolam. It would be in the fitness of things to say that chemical examination report would not be required to be proved formally in view of provision contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of Alprazolam Powder which was found to be actually 118.10 grams by FSL, regarding this the court has already expressed its opinion that this is a negligible difference which is explainable by the fact that such difference is always possible if the same material is weighed by two different weighing machines. Hence, on this ground no infirmity appears to be there in the case of prosecution. 24. As regards the prosecution not making effort to take public witness at the time of recovery of alleged contraband substance from the accused, the reliance may be placed on Tasawwar Ansari Vs. Union of India (1999) 35 ACC 675 in Paragraph 32 of which this Court has held as below:- 32 . In these days, totally unconcerned people do not dare to appear against criminals as they have a lot of financial as well as political patronage available to them. Such smugglers are invariably armed and then can take revenge against such public persons without hesitation. That is why, finally, the public witnesses avoid to support the prosecution case. If at all they agree at the time of raid, search etc., they try to resile from the same in trial Court as is evident from the statement of Shri K.D. S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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