TMI Blog2020 (9) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... mples which were seized and sealed were sent to the FSL. From the record, it establishes that the recovery from Rizwan Khan was marked as B1 and B2 and the treasury record also that the narcotic substances recovered from Rizwan Khan were shown as B1 and B2 . There seems to be some clerical error in numbering of sample in memorandum of Superintendent of Police and the same was mentioned as A1 . However, it has been established and proved that the samples which were seized and sealed from Rizwan were sent to the FSL. Both the courts below have rightly convicted the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act - there are no reason to interfere with the conviction of the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act. Appeal dismissed. - CRIMINAL APPEAL NO. 580 OF 2020 (ARISING OUT OF S.L.P.(CRIMINAL) NO.4422/2019) - - - Dated:- 10-9-2020 - JUSTICE ASHOK BHUSHAN , JUSTICE R. SUBHASH REDDY And JUSTICE M. R. SHAH For the Appellant : Mr. Raj Kishor Choudhary, AORMr. Shakeel Ahmed, Adv.Ms. Sheeba Fakhruddin Adil, Adv.Mr. Anupam Bhati, Adv.Ms. Malvika Raghwan, Adv.Mr. Nakul Chaudhary, Adv For the Respondent : Mr. S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was arrested along with the other accused from whom also the contraband narcotic substance was found. At this stage, it is required to be noted that ASI J.K. Sen (PW4) received the information and it was recorded by him in Dehati Nalsi and FIR in the police station. However, subsequently, all further investigation was carried out by Police Inspector Ashish Shukla PW5, who investigated the matter after registration of the FIR and recorded statement of witnesses. The information of the complete investigation was given to Special Judge, NDPS and also the Municipal Police Officer. The packets of the narcotic substance made were sent to the laboratory for testing through constable. The substance seized was found to be Ganja. On completion of the investigation against the accused under the NDPS Act, appellant and one another Pukhraj were chargesheeted for the offence under Section 20(b)(ii)(B) of the NDPS Act and another coaccused Rakesh Kumar was charged for the offence under Section 20(b)(ii)(C) of the NDPS Act. All the accused pleaded not guilty and therefore they came to be tried for the aforesaid offences. In the present case, we are concerned with original accused no.1 Riz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said appeal preferred by accused no.1 and has confirmed the judgment and order of conviction and sentence passed by the learned Special Judge. Hence, the present appeal. 6. Learned counsel appearing for the appellant original accused no.1 has made the following submissions: i) that mandatory provisions of Section 42 of the NDPS Act has not been complied with; ii) that both the learned Special Court and the High Court have committed a grave error in convicting the appellant on the sole testimony of the police officers; iii) that panchnama witnesses have not supported the version of the prosecution and the person who weighed the quantity of Ganja is also not supported the case of the prosecution; iv) that out of the eight witnesses examined, the independent witnesses have not supported the prosecution story and were declared hostile; v) that alleged seizure of contraband from the appellant/accused from his motor cycle is also doubtful as its number on the different documents is not same; that in Ex. P/10 its number is mentioned as 8499 while in Ex. P/16 and P/37 its number is mentioned as 4489; that samples seized from the appellant/accused were mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 20(b)(ii)(B) of the NDPS Act; 7.1 It is further submitted that in the present case the prosecution has established and proved beyond doubt, compliance of the procedure prescribed under the NDPS Act, more particularly, Sections 42, 50 and 55 of the NDPS Act. It is submitted that the compliance of the aforesaid provisions has been established and proved by the prosecution by examining the witnesses, PW3, PW4, PW5, PW7 and PW8; 7.2 It is further submitted that though in the present case the independent witnesses (Panchnama witnesses) have turned hostile, that does not adversely affect the case of the prosecution. It is submitted that the prosecution has been successful in proving the case against the accused by examining the reliable witnesses, i.e., PW3, PW4, PW5, PW7 and PW8. It is submitted that merely because the independent witnesses who have signed the seizure documents turned hostile, the evidence of other witnesses, may be police officials, cannot be discarded. It is submitted that only on the independent witnesses turning hostile, the entire case of the prosecution cannot be disregarded; 7.3 It is further submitted that in the present case the prosecution witnesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to prove the ownership of the motor cycle (vehicle) and/or failed to recover the motor cycle subsequently, does not vitiate the prosecution case as the accused persons were found on the spot with the contraband articles in the vehicle. It is submitted that therefore the commission of an offence under the NDPS Act is proved against them. It is submitted that it is not a case where ownership of the vehicle is to be determined but commission of an offence under the NDPS Act was to be ascertained; 7.8 Making the above submissions and relying upon the aforesaid decisions of this Court, it is prayed to dismiss the present appeal. 8. We have heard the learned counsel for the respective parties at length. 8.1 We have scanned and reappreciated the entire evidence on record. We have also considered the findings recorded by the learned Special Court, confirmed by the High Court. 8.2 Having gone through the entire evidence on record and the findings recorded by the courts below, we are of the opinion that in the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW3, PW4, PW5, PW7 and PW8. It is true that all t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn by this Court on the evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials. 9. Now so far as the submission on behalf of the accused with respect to noncompliance of the procedure prescribed under Section 42 of the NDPS Act is concerned, on considering the deposition of PW8 (Ishwar Prasad Verma), compliance of the procedure prescribed under Section 42 of the NDPS Act has been established and proved. 9.1 Similarly, compliance under Section 55 of the NDPS Act has also been established and proved by the prosecution by examining PW3 and PW7. 9.2 It has been established and proved that the samples which were seized and sealed were sent to the FSL. From the record, it establishes that the recovery from Rizwan Khan was marked as B1 and B2 and the treasury record also that the narcotic substances recovered from Rizwan Khan were shown as B1 and B2 . There seems to be some clerical error in numbering of samp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to take a lenient view and to impose the lesser punishment than the sentence imposed by the learned Special Court, confirmed by the High Court, is concerned, considering the object and purpose of the enactment of the NDPS Act and the fact that the sentence provided under the Act for the offence in question is rigorous imprisonment for a term which may extend to 10 years and with fine which may extend to one lakh rupees and the Court has imposed sentence of five years rigorous imprisonment only, the prayer to take a lenient view is rejected as the learned Special Court itself has taken a lenient view. 13. In view of the above and for the reasons stated above, we are of the firm view that both the courts below have rightly convicted the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act. We are in complete agreement with the findings recorded by the learned Special Court and confirmed by the High Court and the conviction recorded by both the courts below. We see no reason to interfere with the conviction of the accused for the offence under Section 20(b)(ii)(B) of the NDPS Act. In the circumstances, the present appeal fails and the same deserves to be dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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