(Fakkir Mohamed Ibrahim Kalifulla and Uday Umesh Lalit, JJ.)
Gulsher Mohd. ________________ Appellant(s)
v.
State of Himachal Pradesh ________ Respondent
Criminal Appeal No. 150 of 2015, decided on October 7, 2015
The Order of the court was delivered by
Order
1. This appeal is directed against the reversing judgment of the Division Bench of the High Court dated 17.9.2014/26.9.2014 in Criminal Appeal No. 328/2008. By the judgment impugned the Division Bench while setting aside the order of acquittal of the appellant passed by the learned Sessions Judge Sirmaur District at Himachal Pradesh dated 10.3.2008 in Sessions Trial No. 07-ST/7 of 2005 convicted the appellant for the offence under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the said Act’) and imposed a sentence of five years rigorous imprisonment along with the fine of Rs. 25,000/- and in default to undergo simple imprisonment for a period of six months.
2. As the case of the prosecution goes, on 21.2.2004 at about 4.00 P.M., PW.11 Incharge CIA Inspector along with Head Constable Mujahir Khan, Constable Shamim Akhtar (PW.1), Hussain Singh (PW.4) and Kamal Khan (PW.9) were present at Miserwala, Tehsil Paonta Sahib in connection with detection of Excise and Narcotics cases. At that point of time a secret information was received by PW.11 that the appellant has been dealing in narcotic drugs illegally in his sweet shop where he was selling charas in small quantities to the customers on a regular basis. The information was recorded in Ext. PW-4/A and was sent to SDPO, Paonta Sahib through PW.4 and the raiding party was formed under PW.11. PW.2, an independent witness, by name Ashish Kumar along with one Yusuf Ali, another independent witness, were also joined and the team arrived at the sweet shop of the appellant where he was present at that time. After informing the appellant by PW.11 about the secret information, before searching the appellant in person, PW.11 in compliance with Section 50 of the said Act offered to him whether he would prefer a search to be made in the presence of the Gazetted Officer or a Magistrate. Since the appellant expressed his consent under Ext. PW-1/A which was also reduced into writing, to be searched in the presence of the independent witnesses the appellant was searched and since nothing incriminating was found on his person, the police party proceeded with the search of the appellant’s shop again in the presence of the witnesses including PW.2 and Yusuf Ali. In the course of such search, the charas weighing 500 grams was found out and by following the prescribed procedure two samples of 25 grams each were drawn separately along with remaining quantity of charas which were taken into possession after being duly sealed with the impression “T”. According to the prosecution, the seal after its use was handed over to witness Yusuf Ali. The recovery memo comprised in Ext.PW-1/F was prepared and after following the due procedure the seized charas along with the remaining charas which was in the sealed condition was handed over to SHO of Police Station Paonta Sahib. The SHO, who is PW.8, stated to have put it in another cover and resealed the parcels with the seal impression “H” issued a certificate in Ext. PW-8/C. The sample of charas were sent to CTL, Kandaghat with specimen seal and NCB form vide RC No. 26/2004. The special report Ext. PW-7/A was also sent to SDPO, Paonta Sahib. The site plan was also prepared under Ext. PW-11/B. After the receipt of chemical examiner’s report Ext. PW-8/D and after completion of the investigation the challan was presented before the learned Judicial Magistrate First Class, Court No. 1, Poanta Sahib under Section 20 of the said Act, who committed the case to the learned Sessions Judge, Sirmaur. The learned Sessions Judge having acquitted the appellant of the offence charged against him, State came forward with the appeal before the High Court wherein the impugned judgment came to be rendered reversing the judgment of the learned Sessions Judge and convicting the appellant under Section 20 of the said Act.
3. We heard Mr. M. Dutta, learned counsel for the appellant and Mr. Karanveer Jindal, learned counsel for the State. Learned counsel for the appellant, in the first place, contended that there was a serious infirmity in complying with the mandatory statutory prescription under Section 42 read with Section 50 of the said Act as well as Section 100 of the Cr.P.C. It was alternatively contended that even if such compliance was not called for in the case at hand, the offence was not made out with the evidence which was placed before the Court at the instance of the prosecution.
4. Insofar as the submission made based on Section 42 read with Section 50 of the said Act as well as Section 100 of the Cr.P.C. is concerned, the learned counsel submitted that there were two independent witnesses, namely, PW.2 Ashish Kumar and Yusuf Ali in whose presence admittedly the search of the appellant was carried out. However, since the prosecution chose not to examine Yusuf Ali and the evidence of PW.2 and other independent witness did not support the case of the prosecution there was total non-compliance of Section 50(5) of the said Act and consequently the judgment of the High Court in having interfered with the acquittal ordered by the learned Sessions Judge calls for interference.
5. When we considered the said submission, in the first place, it must be stated that we are not able to appreciate the contention made on behalf of the appellant by relying upon Section 50. When we refer to the facts of this case we find that before causing a search on the body of the appellant, PW.11 rightly chose to involve PW.2 and Yusuf Ali in order to ensure that the mandatory requirement of search he made in the presence of independent witnesses. However, it ultimately transpired that on the person of the appellant no incriminating substance or material could be recovered and consequently the search held in the presence of PW.2 and Yusuf Ali though came to be made no case was laid on the appellant for any recovery of contraband on the person of the appellant, therefore, the question of examining the correctness or otherwise of the compliance of Section 50 of the Act was not required to be examined in this case. The learned counsel would, however, contend that even if the search related to the premises of the appellant, by virtue of the provisions contained in Section 42 providing for effecting any such search of the premises there was every necessity for due compliance of Section 50 as well, having regard to the specific provision contained in Section 50(5). The learned counsel, therefore, contended that when an officer duly authorized under Section 42 seeks to make a search under Section 42 having regard to the prescription contained in Section 50(5), the due compliance of the whole of the prescription contained under Section 50 would equally get attracted while making a search of their premises as well though being made under Section 42 of the said Act.
6. We do not find such a legal consequence getting attracted simply because under sub-section (5) of Section 50 a reference has been made to an officer duly authorized under Section 42 in the said sub-section. The said reference has been made to identify such of those officers who were all noted as empowered officers under Section 42(1) solely for the purpose of Section 50 when a search on a person is made and for which purpose due compliance of all other stipulations contained in Section 50 will have to be carried out. In …, the requirement of compliance under Section 42 for effecting a search of the premises are entirely different from the requirements when a search is to be made on the body of a person under Section 50, though the search to be carried out are to be made by the officers duly authorized and specified in Section 42.
7. Therefore, we are convinced that the said mandatory requirement prescribed under Section 50 will have to be complied with only when a search is carried out on the body of a person and the same cannot have any effect when it comes to the question of effecting a search on any premises for which the compliance required to be carried out is as has been set out in Section 42 of the said Act itself.
8. In the light of our above conclusion, we do not find any scope even to invoke Section 100 Cr.P.C. as was canvassed by the learned counsel by the learned counsel on behalf of the appellant by relying upon Section 50 which has no application relating to a search of a premises.
9. Having steered clear of the said submission made on behalf of the appellant when we come to the independent witness before whom the search was effected, we find the recovery made and the contraband seized were ultimately placed before the Court after obtaining the Chemical Examiner’s analysis. The learned counsel by making reference to the evidence of PW.2 submitted that the recovery was not effected as claimed by PW.11 instead false recovery was made by the prosecution by creating the documents as well as recovery of the samples etc. Learned counsel drew our attention to the evidence of PW.2 extensively. In fact, when we went through the evidence of PW.2 we find that the following categoric statements made by him in the course of his cross-examination by the learned Public Prosecutor after declaring him as hostile. He stated, “I have studied up to 10+2. I never signed on any paper without going through the contents however, on good faith some times I do sign some papers. I was not terrorized by the police. It is correct that Gulsher accused is close to me as both of us are running shops at Missarwala. … …. It is correct that recovery memo Ext. PW-1/F was prepared by the police which bear my signatures at point “B”. This Ext. PW-1/F was prepared by some SHO. Ext. PW-1/F was prepared in my presence and I signed the same after ascertaining its correctness. Now, after going through the contents of Ext.PW-1/F, I can say that the same was not read over to me. … … The parcel of charas were prepared in my presence and I appended my signatures on the parcels. … … The parcel Ext. P6 bears my signatures and I identify the same. Parcel, Ext. P8 also bears my signatures and I identify them on Ext. P6 and as well as on Ext. P8.”
(underlining is our)
10. The above statements in the evidence of PW.2 were more than sufficient to support the case of the prosecution in having made the recoveries from the premises of the appellant, inasmuch as PW.2 was not only an independent witness but he was also very close friend of the appellant but yet he came forward with a very fair statement about the contraband materials found in the premises of the appellant which were recovered in his presence and his statement was also truly recorded, which he signed after going through the same and understanding its correctness. However, when he was cross-examined on behalf of the appellant, he made a contradictory version and thereby virtually withdrawing whatever categoric admission he made in the earlier part of his testimony. Having noted the manner in which PW.2 deposed before the Court and the subsequent expressions contained in the document having been admitted to have been made by him without any hesitation including the correctness of those contents, the documents as well as his attestation on the parcels which contain the samples, the contraband which were duly admitted by him, the contrary statements contained in the latter part of his evidence are all liable to be rejected as containing no truth in it. In fact, when the contents of the documents have been accepted to be true after ascertaining it before the Court, the said part of his evidence alone should carry weight and the latter part of his statement which are made by simply adopting the suggestions put to him at the instance of the appellant will be of no consequence.
11. With that, when it comes to the next submission of learned counsel for the appellant, namely, the samples which were placed before the Court could not have been accepted as the same was tampered was rightly rejected by the learned Sessions Judge. According to the learned counsel, after the samples were sealed with the impression “T” on it and the seal was stated to have been handed over to independent witness Yusuf Ali and the said Yusuf Ali was not examined, there was every scope for the prosecution to tamper with the seal and also duly alter the contents of the parcels. Though the contention, in the first instance, appears to be quite appealing, we find that on behalf of the appellant no acceptable evidence was produced before the Court or even suggested to the witnesses examined in support of the prosecution to remotely suggest that there was any scope at all for tampering. In fact, according to the prosecution, initially samples were created under Ext. P6 and P8 with the seal marked ‘T” and the same was handed over to PW.8/SHO for keeping it in the Malkhana, who in turn put those parcels in a composite cover and sealed it with the mark “H”, which, according to PW.8 was not tampered. In his cross-examination it was not even suggested either to PW.8 or PW.11 that any such attempt of tampering was made to the parcels which were duly stamped in the presence of PW.2. Therefore, we do not find any substance in the said submission made on behalf of the appellant.
12. In the light of the above conclusion, we do not find any merit in this appeal. The appeal stands dismissed.
———
