TMI Blog2001 (8) TMI 1442X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 22 of the N.D.P.S. Act. The trial Court directed that both the sentences shall run concurrently. So far as accused No. 2 is concerned, the trial Court sentenced him to undergo 10 years rigorous imprisonment and to pay a fine of Rs. 1 lakh (in default of payment of fine, to undergo simple imprisonment for five years) for the offence punishable under Section 20(b)(ii) of the N.D.P.S. Act. 2. The facts of the case, in a nutshell, are as follows :- 2.1 Vide Exh. 40, Vikramsinh Jadeja, Police Sub-Inspector, Task Force, Jamnagar (P.W. 10), lodged a First Information Report, inter alia, indicating that, at about 13-13 hours on 6-11-1994, when he along with his staff members was in office, Constable Sarayusinh Chauhan (P.W. 1) received an information from his informant that in the building known as Mujahid Manzil, on Abdul Rahim Street, near Landhawad Slope, Abdul Kader Jusub Sandhi @ Kadar Kati (original accused No. 1) and his associate Jafarbin Kasam Arab (original accused No. 2) are dealing in contraband substances which are punishable under the N.D.P.S. Act. The Police Constable also received an information that certain quantity of charas and ganja are lying in the house m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rams was seized and from the other pocket a sum of Rs. 1105/- was found, which was nothing but the sale proceeds. Ganja and charas were effectively sealed by applying sea! of Police Inspector, Jamnagar. In the cloth bag as well as on the mouth of the cloth bag, slips bearing signatures of the Panchas were also affixed and were sealed. Thereafter, the police commenced investigation and filed charge-sheet in the Court of learned Chief Judicial Magistrate, Jamnagar, who committed the accused to the Court of Sessions. The charge (Exh. 4) was framed on 22-6-1995 giving details, to which the accused pleaded not guilty and contended that they are innocent. The trial Court, on appreciation of evidence - oral as well as documentary, considering the statements recorded under Section 313 of the Code of Criminal Procedure, and after hearing the submissions made by the learned Advocates, held the accused guilty for the offences as aforesaid. It is against this order of conviction that the present appeal is filed. 3. At the outset, Mr. Budhbhatti submitted that, so far as accused No. 2 is concerned, he was tried for contravention which relates to ganja. He submitted that reading Clause (i) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers of the Magistrate under Section 29; (b) shall not, where imprisonment has been awarded as part of the substantive sentence, exceed one-fourth of the term of imprisonment which the Magistrate is competent to inflict as punishment for the offence otherwise than as imprisonment in default of payment of fine. (2) The imprisonment awarded under this Section may be in addition to a substantive sentence of imprisonment for the maximum term awardable by the Magistrate under Section 29. 4.3 Of course, it refers to exercise of powers by the Magistrate and not the Court of Sessions, etc. In absence of specific provision for awarding sentence in default of payment of fine in N.D.P.S. Act, one is required to look to the general provision in the Code of Criminal Procedure or similar provision in other Acts to find out the intention of the Legislature in general. If there was clear provision for awarding a particular term of imprisonment in default of payment of fine, the Court would require to impose the term of imprisonment as specified. In absence of such provision, substantive sentence in default of payment of fine cannot exceed one-fourth of the term of imprisonment whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fine, he shall undergo rigorous imprisonment for a period of 15 months). 9. Mr. Budhbhatti, learned Advocate for the appellants, submitted that, in the instant case, there is discrepancy in the evidence. Insofar as the seals applied to the samples forwarded to the laboratory are concerned, he further submitted that in view of the discrepancy, benefit of doubt must be given to the accused. For this purpose, he placed reliance on a decision of a Division Bench of this Court in the case of State of Gitjamt v. Mohmad Yunus @ Munim in Criminal Appeal No. 821 of 1988, decided on 19-4-2001. 10. Mr. Budhbhatti further submitted that, insofar as search of accused No. 1 is concerned, there is non-compliance of Section 50 of the N.D.P.S. Act. He further submitted that, no question was put to him whether he would like to be searched in presence of a Gazetted Officer or a Magistrate. He submitted that, in view of this breach, accused No. 1 should be acquitted. 11. Mr. Budhbhatti further submitted that, there is non-compliance of Section 57 of the N.D.P.S. Act. He submitted that provisions contained in Section 57 being mandatory, it was the duty of the officer to inform about the arres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al applied was of Panchkoshi 'B' Division. He drew our attention to evidence of P.W. 1-Sarayusinh, who was working with the Task Force, He stated in his evidence in Paragraph 4 that the muddamal containers were sealed by means of affixing the seal in the name of P.S.I., Task Force. It is required to be noted that this constable was working with the Task Force, at the relevant time. 15. Panchnama (Exh. 20), if perused, it becomes clear that the seal that was applied was of Police Inspector, Jamnagar City. That is the first documentary evidence which has come in existence before any action is taken after the raid. Over and above, from the F.I.R. Exh. 40, lodged by Vikramsinh Jadeja (P.W. 10), it is also clear that the seal that was applied was of Police Inspector, Jamnagar City. There is evidence of Vikramsinh Jadeja (P.W. 10), P.I.-Charan (P.W. 11) and other officers. Over and above this, there is independent evidence which cannot be doubted, i.e. the report of Forensic Science Laboratory (Exh. 57). Reading the same, it appears that the seal applied on the containers was that of Police Inspector, Jamnagar City. Thus, considering the evidence of Police Officers, Panchnama ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ackets were being prepared for the purpose of sale. The sale proceeds also have been recovered. From the contemporaneous record, it is clear that both were found preparing small containers of contraband article. When the officer has asked both of them, it is clear that there is sufficient compliance with Section 50. It is required to be noted that, at the same place, in the same room, at the same time the raid has been carried out. Therefore, in the facts of this case, it is difficult to say that there is no compliance of Section 50, and therefore, we find no merits in this contention. 17. Mr. Budhbhatti submitted that in view of Section 52-A of the N.D.P.S. Act, it was absolutely necessary for the police to forward the substance to the Magistrate, as contemplated under Sub-section (2) of Section 52-A of the N.D.P.S. Act. Section 52-A reads as under :- 52-A. Disposal of seized narcotic drugs and psycholropic substances : (1) The, Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage spice or any other relevant considerations, by notification pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtain properly :- (1) Any police officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which create suspicion of the commission of any offence. (2) Such police officer, if subordinate to the officer-in-charge of a police station, shall forthwith report the seizure to that officer. (3) Every police officer acting under Sub-section (1) shall forthwith report the seizure to the Magistrate having jurisdiction and where the property seized is such that it cannot be conveniently transported to the Court, he may give custody thereof to any person on his executing a bond undertaking to produce the property before the Court as and when required and to give effect to the further orders of the Court as to the disposal of the same. It is required to be noted that Section 102 of the Code of Criminal Procedure will come into picture only if the police officer has seized the property which is alleged or suspected to have stolen or is found under circumstance which creates suspicion of the commission of any offence. If the property is seized only under these circumstances, then the provision of Sub-section (3) of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered as primary evidence. In the instant case, when the charas and ganja seized have been produced before me Court and in absence of disposal of seized narcotic drugs or psychotropic substances, there is no question of invoking Section 52-A of the N.D.P.S. Act. In our view, the submission has no merit. 17.2 In view of disposal of narcotic drugs or psychotropic substances in accordance with Section 52-A, for want of seized material before the trial Court, the prosecution will not suffer. For the circumstances narrated in Sub-section (1) of Section 52-A, if the Government is satisfied, may permit the disposal of narcotic drugs or psychotropic substances in the manner prescribed in Sub-sections (2) and (3) of Section 52-A of the N.D.P.S. Act. It is not necessary that in all cases such contrabands should be disposed of. We find no merits in the submission that as contrabands were not forwarded to Magistrate, the accused should be acquitted. In our opinion, there was no need to follow the provisions contained in Sub-section (2) of Section 52-A of the N.D.P.S. Act in absence of any order issued by the Government for disposal under Section 52-A(1) of the N.D.P.S. Act. 17.3 The case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that, in Paragraph 8 of the evidence of P.I.-Charan (P.W. 11), he stated that before the raid, he had informed the D.S.P. and the Dy. S. P. on telephone and he had noted down in the Police Station Diary and there is no evidence in writing with him to show that before making entry No. 20, he telephoned to the D.S.P. and the Dy. S, P. It may be noted that the Police Inspector himself need not make the entry. However, entry No. 20 is made by the Police Inspector-Charan and he has also stated that he is arranging for making a report. In view of this clear entry, it leaves no doubt that necessary precautions have been taken. 19. Thus, from what is stated hereinabove,' it is clear that there is no substance in the contentions raised by Mr. Budhbhatti. We make it clear that Mr. Budhbhatti has made submissions as aforesaid and we have dealt with each of the submissions. We also think it proper to refer to, at this stage, the decision of the Apex Court in the case of Slate of Punjab v. Balbir Singh, 1994 (3) SCC 299. In that case, Their Lordships have held that However, a mere non-compliance or failure to strictly comply by itself will not vitiate the prosecution In Paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X
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