Sarjudas and Anr. Vs. State of Gujarat
EmailAppeal: Criminal Appeal No. 807 of 1997
(From the Judgment and Order dated 6.10.93 of the Gujarat High Court in Crl. A. No. 557 of 1993)
(From the Judgment and Order dated 6.10.93 of the Gujarat High Court in Crl. A. No. 557 of 1993)
Petitioner: Sarjudas and Anr.
Respondent: State of Gujarat
Apeal: Criminal Appeal No. 807 of 1997
(From the Judgment and Order dated 6.10.93 of the Gujarat High Court in Crl. A. No. 557 of 1993)
(From the Judgment and Order dated 6.10.93 of the Gujarat High Court in Crl. A. No. 557 of 1993)
Judges: G.T. NANAVATI & S.N. PHUKAN, JJ.
Date of Judgment: Sep 15, 1999
Appearances:
Mr. Imtiaz Ahmed, Advocate (A.C.) for the appellants.
Ms. Hemantika Wahi, Mr. Y. Adhyaru and Ms. Anu Sawhney, Advocates for the Respondent.
Head Note:
CRIMINAL LAWS
NDPC Act, 1988
Section 50 – Compliance – Charas found not on person but in a bag hanging on scooter – Search not in presence of magistrate or Gazetted officer. Held that there is no substance in the contention as charas was not found on person. Baldev Singh’s case relied upon.
NDPC Act, 1988
Section 50 – Compliance – Charas found not on person but in a bag hanging on scooter – Search not in presence of magistrate or Gazetted officer. Held that there is no substance in the contention as charas was not found on person. Baldev Singh’s case relied upon.
Held:
The charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in The State of Punjab v. Baldev Singh 1999 (6) SCC 172.(Para 5)
Cases Reffered:
1. The State of Punjab v. Baldev Singh 1999 (6) SCC 172.
JUDGEMENT:
1. Both the appellants have been convicted under Section 20 (b) (ii) of the NDPC Act and Section 66 (1) (b) and 83 of the Bombay Prohibition Act as, they were found in possession of charas weighing 7kgs. and 419 grams without any licence or permit.
2. Various contentions regarding non-observation of mandatory requirements of different provisions of the NDPS Act were raised before the trial Court but it found no substance in them and held that all those provisions were complied with in this case. The trail Court also found that the prosecution evidence could safely be relied upon even though there was some inconsistency in the evidence regarding the time at which the Panch witnesses were called. P.S.I. Chavda and the constable accompanying him had stated before the Court that the Panch witnesses were called before they had stopped the appellants. According to the Panch witnesses they were called thereafter. The Panchnama clearly states that the Panchas were called after P.S.I. Chavda had stopped the appellants while they were proceeding on the scooter on the road near Nursing Takri. This contradiction, in our opinion, is of no significance and the trail Court was right in not disbelieving the prosecution evidence on this ground.
3. The High Court also did not find any substance in any of the contentions raised on behalf of the appellants and dismissed the appeal summarily.
4. What is contended by the learned counsel for the appellant is that the appellants were not informed of their right under Section 50 of the NDPS Act that they were entitled to be examined in presence of a Gazetted Officer or a Magistrate and, therefore, the search of the appellants was illegal and the evidence regarding recovery of charas from their possession could not have been relied upon.
5. We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in The State of Punjab v. Baldev Singh 1999 (6) SCC 172.
6. It was also submitted that identity of the articles seized from the appellants and the articles examined by the Forensic Scientific Laboratory has not been established by the prosecution. The submission was that the seal which was affixed on the articles seized from the appellants was different from the seal which was found on the packet received by the Forensic Scientific Laboratory for analysis. There is no substance in this contention. The seal which was affixed on the seized articles, as stated by PSI Chavda in his evidence, was of Police Inspector, Sabarmati. The seal on the packet which was received by the Forensic Scientific Laboratory read “Police Inspector, Sabarmati, Ahmedabad City”. A small lapse on the part of the PSI Chavda while deposing before the Court has led to this discrepancy which is more apparent than real. Sabarmati is a locality within Ahmedabad City. The Speciman of the seal sent to the Forensic Scientific Laboratory also tallied with the seal on the packet sent to it. Therefore it is not possible to hold that the seal which was found on the packet was different and therefore a doubt arises whether the material which was seized from the appellants was the same as was examined by the Forensic Scientific Laboratory.
7. It was lastly contended that in view of the enmity between the appellants and one Ram Swarup Das they were falsely involved. Even if enmity is assumed there is no material to show that the Police and the Panchas were in any way under the influence of Ram Swarup Das or there was any reason for them to oblige Ram Swarup Das by falsely implicating the appellants. It is also not believable that at the instance of Ram Swarup Das the Police had planted such a big quantity of charas worth Rs. 85,000/- to falsely implicate the appellants.
8. As we do not find any substance in this appeal the same is accordingly dismissed.
2. Various contentions regarding non-observation of mandatory requirements of different provisions of the NDPS Act were raised before the trial Court but it found no substance in them and held that all those provisions were complied with in this case. The trail Court also found that the prosecution evidence could safely be relied upon even though there was some inconsistency in the evidence regarding the time at which the Panch witnesses were called. P.S.I. Chavda and the constable accompanying him had stated before the Court that the Panch witnesses were called before they had stopped the appellants. According to the Panch witnesses they were called thereafter. The Panchnama clearly states that the Panchas were called after P.S.I. Chavda had stopped the appellants while they were proceeding on the scooter on the road near Nursing Takri. This contradiction, in our opinion, is of no significance and the trail Court was right in not disbelieving the prosecution evidence on this ground.
3. The High Court also did not find any substance in any of the contentions raised on behalf of the appellants and dismissed the appeal summarily.
4. What is contended by the learned counsel for the appellant is that the appellants were not informed of their right under Section 50 of the NDPS Act that they were entitled to be examined in presence of a Gazetted Officer or a Magistrate and, therefore, the search of the appellants was illegal and the evidence regarding recovery of charas from their possession could not have been relied upon.
5. We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in The State of Punjab v. Baldev Singh 1999 (6) SCC 172.
6. It was also submitted that identity of the articles seized from the appellants and the articles examined by the Forensic Scientific Laboratory has not been established by the prosecution. The submission was that the seal which was affixed on the articles seized from the appellants was different from the seal which was found on the packet received by the Forensic Scientific Laboratory for analysis. There is no substance in this contention. The seal which was affixed on the seized articles, as stated by PSI Chavda in his evidence, was of Police Inspector, Sabarmati. The seal on the packet which was received by the Forensic Scientific Laboratory read “Police Inspector, Sabarmati, Ahmedabad City”. A small lapse on the part of the PSI Chavda while deposing before the Court has led to this discrepancy which is more apparent than real. Sabarmati is a locality within Ahmedabad City. The Speciman of the seal sent to the Forensic Scientific Laboratory also tallied with the seal on the packet sent to it. Therefore it is not possible to hold that the seal which was found on the packet was different and therefore a doubt arises whether the material which was seized from the appellants was the same as was examined by the Forensic Scientific Laboratory.
7. It was lastly contended that in view of the enmity between the appellants and one Ram Swarup Das they were falsely involved. Even if enmity is assumed there is no material to show that the Police and the Panchas were in any way under the influence of Ram Swarup Das or there was any reason for them to oblige Ram Swarup Das by falsely implicating the appellants. It is also not believable that at the instance of Ram Swarup Das the Police had planted such a big quantity of charas worth Rs. 85,000/- to falsely implicate the appellants.
8. As we do not find any substance in this appeal the same is accordingly dismissed.
