JABBER BARDEWA Vs. STATE OF SIKKIM

JUDGEMENT

(1.) Aggrieved by the impugned Judgment dated 30-07- 2018, convicting him of the offence under Section 7(a), read with Section 14 of the Sikkim Anti Drugs Act, 2006 (for short "SADA, 2006") and Section 9(d) of the SADA, 2006, and with the Order on Sentence, dated 31-07-2018, the Appellant assails both before this Court. The Appellant was ordered to undergo simple imprisonment for a period of six months and fined Rs.3,000/- (Rupees three thousand) only, under Section 7(a) read with Section 14 of the SADA, 2006. He was also sentenced to undergo simple imprisonment for a period of one year and fined Rs.5,000/- (Rupees five thousand) only, under Section 9(d) of the SADA, 2006. The sentences were ordered to run concurrently

(2.) Learned Counsel for the Appellant advanced the argument that the provisions of Section 24(1) of the SADA, 2006, which requires the Appellant to be searched either before a Gazetted Officer or a Magistrate has not been complied with, the search and seizure was conducted sans either of them. P.W.2, the Head Constable who apprehended the Appellant was unaware of the search and seizure of controlled substances, although he claims to have found the Appellant in a state of slight intoxication at around 3 p.m. and detained him in the bus he was travelling in. Contrarily, the Seizure Memo records the time of search and seizure as 14.30 hours, half an hour prior to detention of the Appellant by P.W.2, while P.W.3 the Doctor claims to have medically examined the Appellant at 14.50 hours, also prior in time to the Appellants detention. These circumstances are a ludicrous proposition in the Prosecution case for which the Appellant is entitled to the benefit of doubt. P.W.3 who medically examined the Appellant found no signs of intoxication and declared the Appellant clinically fit for detention. The Prosecution case is that P.W.3 witnessed the search of the belongings of the Appellant but he failed to recall or identify the Appellant or the controlled substances purportedly recovered from the Appellant. That, the evidence of P.W.6 raises doubts on the authenticity of the Prosecution case as he has variously described the colours of the seized controlled substances as "green in his statement to the Police and "blue before the Learned Trial Court. Hence, on the anvil of the discrepancies enumerated above, the Prosecution case is doubtful and the Appellant deserves an acquittal.

(3.) In repudiation, the Prosecution strongly urged that, the presence of P.W.5 an independent witness at the time of search and seizure along with another witness and P.W.3, establishes recovery and seizure of the controlled substances. That, the allegation of non-compliance of Section 24(1) of the SADA, 2006, is an erroneous proposition as P.W.3 a Gazetted Officer and two other independent witnesses were present when search and seizure were carried out. That, 6 files of "Spasmo- Proxyvon plus" capsules containing 144 capsules, 17 loose "Spasmo-Proxyvon" capsules and 22 loose tablets of "Nitrosun 10" were recovered from the pocket of the Appellant and seized as proved by the evidence of P.W.5 and the Investigating Officer (I.O.) P.W.6,. The samples of the seized substances which were chemically analysed by P.W.1 is proof of the fact that they contained controlled substances. No explanation was furnished by the Appellant for being in possession of such a large quantity of controlled substances neither did he put any facts to rebut the case of the Prosecution or state that the controlled substances were for his own consumption. The only inference therefore is that substances were meant for sale and hence, the impugned Judgment and Order on Sentence of the Learned Trial Court warrants no interference.