RAVINDRA SINGH Vs. STATE OF UTTARAKHAND

JUDGEMENT

(1.) The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "Act") is a special Act enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances. According to the Act, narcotic drugs are coca leaf, cannabis (hemp), opium, poppy straw and include all manufactured goods, whereas psychotropic substances are those which have been specified in the Schedule. In terms of the Act, "cannabis (hemp)" means charas as well as ganja and also any mixture thereof. Section 8 of the Act prohibits, amongst others, possession by any person of any narcotic drug, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of the Act or the rules or orders made there under and, in case, where any such provision imposes any requirement by way of license, permit or authorization, also in accordance with the terms and conditions of such license, permit or authorization, from the date of coming into force of the Act, i.e. with effect from 14th November, 1985. In terms of Section 10 of the Act, the State Government may permit possession of cannabis, excluding charas. At the same time, Section 9 of the Act does not authorize the Central Government to permit possession of charas, although under Section 9A of the Act, it may do so in public interest. That has not been done yet. Section 20 of the Act provides that whoever, in contravention of any provision of the Act, possesses cannabis of commercial quantity, shall be punished with rigorous imprisonment for a term, which shall not be less than 10 years, but which may extend to 20 years, and shall also be liable to fine, which shall not be less than one lakh rupees, but which may extend to two lakh rupees, provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. According to the Act, "commercial quantity" means any quantity greater than the quantity specified by the Central Government by notification in the Official Gazette. By a notification, amongst others, 1 kg of cannabis (charas) has been declared by the Central Government as commercial quantity. On 21st November, 2006, at 19.35 p.m., a First Information Report was lodged. The same was lodged on the basis of a seizure memo. It was alleged that, on 21st November, 2006 at 13.05 p.m., S.I. Girish Chandra Tamta, S.I. C.P. Singh, S.I. J.S. Gabrayal, Constable Jitender Singh, Constable Gulshan Negi, Constable Tejveer Singh, Constable Naveen Joshi left on Gypsy No. 04C/3072, driven by Gajendra Dhyani, in search of wanted criminals. It was stated that when the policy party reached in front of Railway Station, they saw two persons coming from inside the Railway Station carrying plastic bags in their hands. Seeing the vehicle of the search party, they started running inside the Railway Station. The search party chased them and caught them near the reservation center at about 15.30 p.m. One of them was the appellant herein. On questioning the appellant is said to have disclosed that, in the plastic bag, he was carrying charas. The appellant was made to open the bag, where 13 packets were found, each weighing about 1 kg. Those were sniffed and it appeared to be charas. Sample of 100 grams was taken and the remaining 12 kg 900 grams was kept in the polythene packets and the bag containing the same. Those were sealed and the sample of the seal was prepared. A similar recovery was made from the other person Raju @ Bablu. Two separate crime cases were instituted and SI K.R. Sharma was handed over the investigation. It was stated that before the search was made, appellant was told that the same can be made before a Magistrate or a Gazetted Officer if he wish, when the appellant allowed the police party to search him in writing bearing his signature. At the time of seizure, appellant was taken in custody. Sample charas was sent to forensic laboratory, whereupon, it was reported that the sample was of charas. In the circumstances, a police report was filed, which was accepted by the court and, on the basis thereof, charge was framed. Appellant denied the charge. Hence, trial commenced.

(2.) At the trial, prosecution produced the consent letter, the seizure memo, arresting information memo, G.D. Departure, First Information Report, forensic science laboratory report, site map and the charge sheet. The prosecution also produced oral evidence through SI Girish Chandra Tamta, SI Jitendra Singh Gabrayal, Constable Naveen Chandra Joshi and SI K.R. Sharma. Prosecution witnesses, namely, SI Girish Chandra Tamta, SI Jitendra Singh Gabrayal and Constable Naveen Chandra Joshi stated what was alleged in the First Information Report. In his evidence, SI K.R. Sharma stated that, initially, investigation was done by SI B.D. Joshi and, on 24th November, 2006, he took over the investigation. He stated that the took the statement of the complainant and, on his pointing out, investigated the place of incident and prepared the site map. He stated that statements of witnesses were recorded and the sample of charas was sent to forensic laboratory. Forensic Laboratory reported that the sample was confirmed as charas. He, accordingly, prepared and submitted the charge sheet. The accused was examined under Section 313 of the Code of Criminal Procedure, when he stated that police took his custody from as car of which he was driver and that a false case has been made against him. He also stated that the prosecution witnesses are deposing falsely against him. No witness appeared on behalf of the defence nor any documentary or otherwise evidence was produced on behalf of the defence.

(3.) At the trial, it was contended that there was non compliance of Section 50 of the Act. Section 50 of the Act lays down the conditions under which search of persons is to be conducted. In the instant case, search of the appellant did not yield recovery of any narcotic drug or psychotropic substance. The same resulted in recovery of a sum of Rs. 250/-. The appellant contended that, even search of the bag, allegedly containing charas, could only be carried out after complying with the provisions of Section 50 of the Act. In this connection, trial court relied upon the judgment of the Hon'ble Supreme Court rendered in the case of Madan Lal vs. State of Himachal Pradesh, 2003 SCC(Cri) 1664, where the Hon'ble Supreme Court observed that compliance of the provisions of Section 50 of the Act is required when the person is to be searched and not when a container or bag in possession of the person concerned is to be searched. The learned trial Court also relied upon the judgment of the Hon'ble Supreme Court rendered in the case of State of Rajasthan vs. Daulat Ram, 2005 SCC(Cri) 1594, where the Hon'ble Supreme Court held that Section 50 of the Act does not apply in relation to bag carried over the head of the person. In the circumstances, the learned court below rejected the contention that, in relation to the search of the bag in question, there was any requirement of complying with the provisions of Section 50 of the Act. Similar contention was raised before us, but for the reasons already indicated by the Hon'ble Supreme Court in the judgments referred to above, we are also of the view that there was no requirement of complying with the provisions of Section 50 of the Act while searching the bag carried by a person.