Rangi Ram Vs. State of Haryana
EmailAppeal: Criminal Appeal No. 1126 of 1995
Petitioner: Rangi Ram
Respondent: State of Haryana
Apeal: Criminal Appeal No. 1126 of 1995
Judges: G.T. NANAVATI & Y.K. SABHARWAL, JJ.
Date of Judgment: Sep 02, 2000
Head Note:
CRIMINAL LAW
NDPS Act, 1985
Sections 52, 53 – Compliance – Accused arrested by sub-Inspector, who was also SHO of Police Station – Accused and seized material not forwarded to “officer empowered u/s 53”. Held that there is no substance as the person who arrested the accused was himself officer-in-charge of nearest police station.(Para 4)
Section 57 – Non – Compliance – Particulars of arrest and sei-zure not made to superior officer – No positive evidence, but, no cross examination also – Provision not mandatory. Held that there is no material to show non – compliance, otherwise also, non – compliance would not vitiate conviction.
(Para 4)
Section 74 – Investigation Officer investigating offence under the Act, himself Officer-in-charge of the police station. Held that Sec. 74 would apply and he had the power to investigate.(Para 5)
Evidence Act, 1872
Section 3 – Independent witness – Accused arrested at mid-night in river bed – Village 1-2 furlong away – None coming forward at act as witness, Held that it does not effect adversely upon other evidence. (Para 6)
Section 3 – Appreciation – Gunny bag of poppy husk – Seal found broken in court – Sample drawn earlier and sent to chemical examiner. Held that merely because seal was found broken, it cannot be concluded that material was substituted. (Para 9)
JUDGEMENT:
NANAVATI, J.
1. The appellant was tried in the Court of Additional Sessions Judge, Karnal on an allegation that during the night intervening 21/22.2.1984 while he was crossing Yamuna river from the Uttar Pradesh side, he was carrying with him 30 kg. of poppy husk and thereby he had committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. In order to prove its case the prosecution had examined Sub-Inspector Ram Krishan S.H.O. Police Station, Indri who had gone near the river along with Head Constable Sahab Singh for the purpose of patrolling. The prosecution had also examined Head Constable Sahab Singh and relied upon the recovery memo (Exh. PC), the report of the chemical examiner (Exb.PF) and the link evidence in the form of affidavits (Exh.PA and PB).
3. The trial court believed the evidence of the two witnesses and further held that the defence raised by the accused that he was falsely involved at the instance of Constable Krishan Lal was an after thought. The learned Additional Judge, therefore, convicted the accused under Section 15 of the N.D.P.S. Act and sentenced him to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1 lac.
4. The High Court after re-appreciating the evidence agreed with the findings recorded by the trial court and confirmed the con-viction and sentence of the appellant. It was submitted by the learned counsel appearing for the appellant that in this case requirement of Section 52 was not complied with inasmuch as the accused and the seized articles were not forwarded to the Officer empowered under Section 53 of the Act. We find no substance in this submission because the person who had arrested the appellant and seized the articles was himself an Officer-in-Charge of the nearest Police Station. It was also contended that the require-ment of Section 57 was not complied with inasmuch as no full report of the particulars of arrest and seizure was made by the Sub-Inspector Ram Krishan to his superior officer. It is true that there is no positive evidence on record to show that such a report was made. But it is also true that in cross-examination of the witness not a single question was put to find out whether he had made any report to his superior officer or not. There is no material on record which would indicate that this provision was not complied with. Moreover, as pointed out by the High Court this provision is not mandatory. Hence, its non-compliance by itself
cannot vitiate the conviction of the appellant.
5. It was next contended that the Investigating Officer in this case had no power to investigate as he was not authorised under the Act to investigate offences arising under the Act. The High Court has rightly pointed out that in this case provision con-tained in Section 74 would apply as the Investigating Officer was himself a Station House Officer of the Police Station having jurisdiction over the area and as such authorised to investigate the offence within his area. Therefore, this contention also deserved to be rejected.
6. It was further contended that no independent person was kept present at the time of arrest of the appellant and seizure of the articles. This aspect was also considered by the Courts below and in spite of independent person was not being kept present, the Court thought it fit to place reliance upon the evidence of the Investigating Officer – Ram Krishan and Head Constable Sahab Singh. The appellant was found carrying poppy husk at mid night and that too in the river bed. The village was 1/2 furlong away. It appears from the evidence of Ram Krishan that nobody had come forward to act as an independent witness to the seizure memo. Therefore, not keeping an independent person present at that time does not reflect adversely upon the other prosecution evi-dence.
7. It was submitted that Mewa Singh who had gone to the village for this purpose should have examined as a witness. Sub-Inspector Ram Krishan has stated that Mewa Singh could not get anyone to come there at that time. We find no good reason to disbelieve him.
8. It was then urged that the seal on the gunny bag when examined in the court was found broken and, therefore, there was no guar-antee as to what was found from the gunny bag. Even this submis-sion does not deserve to be accepted because according to the evidence on record, from the material which was found from the gunny bag a sample was taken and the chemical examiner had re-ported that it was powder of poppy husk. Merely from the circum-stance that the seal was found broken, we cannot jump to the conclusion that the material in the gunny bag was substituted. Moreover, the bag was handed over to Malkhana in good condition much earlier.
9. No attempt was made to draw attention of the trial court and request it to record a finding if the seal was tampered with.
10. As we do not find any substance in any of the contentions raised on behalf of the appellant, the appeal is dismissed.
1. The appellant was tried in the Court of Additional Sessions Judge, Karnal on an allegation that during the night intervening 21/22.2.1984 while he was crossing Yamuna river from the Uttar Pradesh side, he was carrying with him 30 kg. of poppy husk and thereby he had committed an offence punishable under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985.
2. In order to prove its case the prosecution had examined Sub-Inspector Ram Krishan S.H.O. Police Station, Indri who had gone near the river along with Head Constable Sahab Singh for the purpose of patrolling. The prosecution had also examined Head Constable Sahab Singh and relied upon the recovery memo (Exh. PC), the report of the chemical examiner (Exb.PF) and the link evidence in the form of affidavits (Exh.PA and PB).
3. The trial court believed the evidence of the two witnesses and further held that the defence raised by the accused that he was falsely involved at the instance of Constable Krishan Lal was an after thought. The learned Additional Judge, therefore, convicted the accused under Section 15 of the N.D.P.S. Act and sentenced him to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 1 lac.
4. The High Court after re-appreciating the evidence agreed with the findings recorded by the trial court and confirmed the con-viction and sentence of the appellant. It was submitted by the learned counsel appearing for the appellant that in this case requirement of Section 52 was not complied with inasmuch as the accused and the seized articles were not forwarded to the Officer empowered under Section 53 of the Act. We find no substance in this submission because the person who had arrested the appellant and seized the articles was himself an Officer-in-Charge of the nearest Police Station. It was also contended that the require-ment of Section 57 was not complied with inasmuch as no full report of the particulars of arrest and seizure was made by the Sub-Inspector Ram Krishan to his superior officer. It is true that there is no positive evidence on record to show that such a report was made. But it is also true that in cross-examination of the witness not a single question was put to find out whether he had made any report to his superior officer or not. There is no material on record which would indicate that this provision was not complied with. Moreover, as pointed out by the High Court this provision is not mandatory. Hence, its non-compliance by itself
cannot vitiate the conviction of the appellant.
5. It was next contended that the Investigating Officer in this case had no power to investigate as he was not authorised under the Act to investigate offences arising under the Act. The High Court has rightly pointed out that in this case provision con-tained in Section 74 would apply as the Investigating Officer was himself a Station House Officer of the Police Station having jurisdiction over the area and as such authorised to investigate the offence within his area. Therefore, this contention also deserved to be rejected.
6. It was further contended that no independent person was kept present at the time of arrest of the appellant and seizure of the articles. This aspect was also considered by the Courts below and in spite of independent person was not being kept present, the Court thought it fit to place reliance upon the evidence of the Investigating Officer – Ram Krishan and Head Constable Sahab Singh. The appellant was found carrying poppy husk at mid night and that too in the river bed. The village was 1/2 furlong away. It appears from the evidence of Ram Krishan that nobody had come forward to act as an independent witness to the seizure memo. Therefore, not keeping an independent person present at that time does not reflect adversely upon the other prosecution evi-dence.
7. It was submitted that Mewa Singh who had gone to the village for this purpose should have examined as a witness. Sub-Inspector Ram Krishan has stated that Mewa Singh could not get anyone to come there at that time. We find no good reason to disbelieve him.
8. It was then urged that the seal on the gunny bag when examined in the court was found broken and, therefore, there was no guar-antee as to what was found from the gunny bag. Even this submis-sion does not deserve to be accepted because according to the evidence on record, from the material which was found from the gunny bag a sample was taken and the chemical examiner had re-ported that it was powder of poppy husk. Merely from the circum-stance that the seal was found broken, we cannot jump to the conclusion that the material in the gunny bag was substituted. Moreover, the bag was handed over to Malkhana in good condition much earlier.
9. No attempt was made to draw attention of the trial court and request it to record a finding if the seal was tampered with.
10. As we do not find any substance in any of the contentions raised on behalf of the appellant, the appeal is dismissed.
