Kuldeep @ Soni v. State

the appellants-Kuldeep & Ummed Singh, Mr. Lalit Sharma, with Mr. Rajesh Sharma, learned counsel for the appellant-Vijendra, Mr. S.S. Adhikari, learned A.G.A. the respondent/State and perused the record. 10- PW-1 Ved Prakash Thapliyal S.I. stated on oath before the trial court that on 24.1.2005, he along with along with PW-3 Babu Lal and other members of the police force, was on patrolling duty and at 9.00 p.m. when they were returning to the police station, they saw a Maruti Car bearing no. C.H.I.-194 going ahead of police jeep near Durga Mata Temple at Koti Road. The driver of the car was asked to stop the car and when he stopped the car the three persons sitting in the car started running away towards Durga Mata Temple. On this, the police party became suspicious about their activities and chased them. The police party caught the accused persons and enquired about their names. This witness has further stated that the persons disclosed their names as Vijendra Singh, Ummed 6 Singh and Kuldeep @ Soni. This witness has further stated that on being asked about the reason of their running away, he was told that they were not having papers of the vehicle. On getting suspicious about their activities, the police party took the search of the accused persons and found that accused persons namely Vijendra, Ummed Singh and Kuldeep were in possession of 2 kg of charas, 2 kg of charas and 1½ kg of charas respectively. This witness also stated that the articles were seized and recovery memo (Ext.Ka.1) was prepared at the spot. This eyewitness also proved Chick F.I.R. (Ext.Ka.4) and information memos (Ext.Ka.3, Ka.6 and Ka.7). 11- PW-2 Dr. H.C. Sharma, Assistant Director, Forensic Science Laboratory, Agra, chemically examined items recovered from the possession of the accused persons and found that these items were Charas. This witness has proved his reports (Ext.Ka.9, Ext.Ka.10, Ext.Ka.12), which relate to accused Vijendra, Kuldeep and Ummed Singh respectively. 12- PW-3 Constable Babu Lal, who had also accompanied PW-1 Ved Prakash Thapliyal at the spot, has corroborated the prosecution case in the same manner, as stated by PW-1. 13- PW-4 Constable Santosh Kumar has stated on oath that he deposited the recovered items in Malkhana and made necessary entry to this effect in Malkhana register. This witness has proved photo copies of pages of Malkhana register (Ext.Ka.14, Ka.15, Ka.16). This witness has also stated that he made necessary entry after registering the crime at 7 Serial No. 2 in the General Diary and he proved the same vide Ext.Ka.18. 14- PW-5 Narain Ram, who conducted investigation, has stated that he got sent the recovered items through constable Dinesh Kumar to Forensic Science Laboratory on 29.1.2005. This witness has proved site plan (Ext.Ka.22) and after obtaining Chemical Examiner’s report, submitted charge sheets (Ext.Ka.23, Ka.24 and Ka.25) against the accused persons. 15- PW-6 Constable Dinesh Kumar has stated on oath that he carried the sample of recovered items to the Forensic Science Laboratory. This witness has also stated that he got handed over the said articles in a sealed condition without any tampering with it by him on the way. 16- All the aforesaid oral and documentary evidence, read with the report of the Chemical Examiner, proves the charge of offence punishable under Section 8/20 of the Narcotic Drugs and Psychotropic Substances Act framed against the accused persons Vijendra, Ummed Singh and Kuldeep. 17- Learned counsel the appellants has submitted that compliance of Sections 41, 42 and 50 of the N.D.P.S. Act has not been observed in the case. 18- So far as compliance of Section 41 of the Act is concerned, the searching police party had no such information that the accused persons were in 8 possession of psychotropic substance, therefore, it was not expected from the raiding police party that they would observe the compliance of Section 41 of the Act. Likewise, compliance of Section 42 of the Act was not possible, as the recovery was made suddenly and it comes within the category of chance recovery, therefore, there was no occasion to obtain any search order of the superior officer. 19- As regards compliance of Section 50 of the Act, learned counsel for the appellants has submitted that recovery from accused Vijendra might be chance recovery, but in respect of other accused persons Kuldeep and Ummed Singh compliance of Section 50 of the Act should have been made by the searching officer. 20- The submission raised by the learned counsel for the appellants also does not bear any force. When the search of accused Vijendra was made, the police party was not informed that other two accused Kuldeep and Ummed Singh were having any psychotropic substance and recovery of Charas from the possession of these two accused also a chance recovery. Therefore, option of having search of the accused before a Gazetted Officer or a Magistrate could not have been given in the aforesaid facts and circumstances of the case and non-compliance of mandatory provision of the aforesaid Act does not affect the veracity of the case. 21- Learned counsel for the appellants has further submitted that compliance of Section 50(5) of the Act has also not been done in this case. We do not find any force in the submission, as recovery in this 9 case was a chance recovery and illegal Charas in the commercial quantity was found kept in between arms and body of the accused persons in polythene pouches and not from the pockets or the clothes worn by them and the police did not make search of pockets of the jackets and the pants worn by the accused, hence the other belongings of the accused persons kept in their pockets could not be recovered. Therefore, non-compliance of Section 50(5) of the Act does not affect the genuineness of the case. 22- It is also contended on behalf of the appellants that no independent witnesses were taken by the police party and as such, the prosecution story should not have been believed by the trial court. We do not find any substance in this submission also. Had there been no explanation for not taking the public witnesses, we would have agreed with the submission of learned counsel appellants. But, in the present case, there is explanation given by PW-1 Ved Prakash Thapliyal that it was night time and nobody was there at the spot which was the lonely place, therefore no independent witness could be produced as witness of the seizure. The recovery of the contraband from the possession of the accused persons has been fully established from the testimony of the witnesses examined by the prosecution and there is no reason to disbelieve their testimony. 23- For the reasons as stated above, we do not find any sufficient reason to interfere with the conviction and sentence, recorded by the trial court against accused/appellants Vijendra, Kuldeep and Ummed 10 Singh under Section 8/20 N.D.P.S. Act. The appeals lack merit and are liable to be dismissed. 24- Accordingly, appeals are dismissed. The impugned judgment and order dated 16.1.2003 is hereby confirmed. 25- Let a copy of this judgment be placed in the files of CRLA No. 45/2007 and CRLA No.134/2007. (Nirmal Yadav, J.) (B.C. Kandpal, J.) May 06, 2010 SP