2017 (12) TMI 632 - HC - Indian Laws

Conviction upheld under NDPS Act for opium possession. Prosecution evidence deemed reliable, appeal dismissed.

The court upheld the conviction of the appellants under Section 18 of the NDPS Act for possessing opium. The prosecution's evidence, including police ... Compliance with Section 50 of the NDPS Act - Validity of search and seizure - Reliability of police witnesses - Non-examination of an independent witness - Delay in sending samples for chemical examination - Integrity of seals on sample parcels - Possession of commercial quantity - Effect of procedural lapses on convictionNon-examination of an independent witness - Reliability of police witnesses - Effect of procedural lapses on conviction - Non-examination of the independent witness did not vitiate the prosecution case. - HELD THAT: - The court found that absence of examination of the associated independent witness (Baldev Singh) did not create fatal infirmity where the recovery was effected in presence of DSP and other police officials and there was nothing on record to suggest enmity or unreliability of police witnesses. Reliance was placed on authority holding that police testimony need not be discarded merely because they are police witnesses and that non-examination of independent witnesses does not automatically impeach the prosecution case when police evidence is otherwise reliable. [Paras 11, 12]Non-examination of the independent witness does not undermine the prosecution case; the police witnesses were held reliable.Validity of search and seizure - Effect of procedural lapses on conviction - Allegation of interpolation in documents did not establish manipulation of the recovery date or vitiate the recovery. - HELD THAT: - Although some documents showed apparent alterations in the date, the court observed that the primary documents prepared at the first instance (consent memos and recovery memo) consistently recorded the date of recovery as 9.3.2009 and the site plan showed no interpolation. The court held that sporadic or apparent mistakes in peripheral entries could be genuine writing errors and, on totality of evidence, there was no foundation to conclude that dates were manipulated to fabricate the case. [Paras 13]Allegations of interpolation in certain documents were rejected; the recovery date as recorded in primary documents was accepted.Delay in sending samples for chemical examination - Integrity of seals on sample parcels - Effect of procedural lapses on conviction - Delay of four days in sending samples and some damage to seals did not vitiate the prosecution case where sample seals were found intact by the Chemical Examiner. - HELD THAT: - The court noted that seals on malkhana parcels may suffer brittleness during handling, but the Chemical Examiner's report expressly recorded that the seals on the sample parcels were intact and matched specimen seals. Applying precedent that delay alone does not prejudice the accused where seals are intact, the court held that the four day delay did not create reasonable doubt in the prosecution case. [Paras 14, 15]The delay in forwarding samples and partial damage to some malkhana seals did not impair the evidentiary value of the samples; the chemical report was accepted.Compliance with Section 50 of the NDPS Act - Validity of search and seizure - Effect of procedural lapses on conviction - The offer under Section 50 was held to be compliant and not vitiated by being given by the DSP present at the spot. - HELD THAT: - Examining the consent memos, the court found that the DSP introduced himself as a Gazetted Officer and informed the accused of their right to be searched by him or before a Magistrate; the accused expressly reposed confidence and consented. The court reviewed authority establishing that Section 50 requires strict compliance but that no rigid formula is prescribed; the officer must apprise the person of the right. Since the offer included the option of a Magistrate and the accused exercised confidence in the DSP, there was no prejudice and Section 50 compliance was satisfied. [Paras 25, 26, 27, 28, 29]Section 50 safeguards were complied with; the manner of offer did not vitiate the search or recovery.Possession of commercial quantity - Reliability of police witnesses - Validity of search and seizure - The prosecution established possession of opium in commercial quantity and the conviction was sustainable. - HELD THAT: - Three prosecution witnesses (SI Avtar Singh, HC Rajbir Singh and DSP Amarjit Singh Bajwa) gave consistent accounts of recovery; cross examination did not dislodge their testimony. The Chemical Examiner's report confirmed the samples as opium and recorded intact seals. The accused's claim of false implication lacked supporting evidence. On these findings the court concluded that recovery and possession of commercial quantity were proved and justified conviction and sentence. [Paras 30, 31]Fact of possession of commercial quantity of opium established; conviction and sentence upheld.Final Conclusion: The High Court found no merit in the appellants' contentions regarding non-examination of an independent witness, alleged interpolation of documents, delay in chemical examination, or non compliance with Section 50; it accepted the police evidence and chemical report, held possession of commercial quantity proved, and dismissed the appeal, upholding conviction and sentence. Issues Involved:1. Conviction under Section 18 of the NDPS Act.2. Non-examination of an independent witness.3. Alleged interpolation in documents.4. Delay in sending samples for chemical analysis.5. Violation of Section 50 of the NDPS Act.Issue-wise Detailed Analysis:1. Conviction under Section 18 of the NDPS Act:The appellants challenged the judgment dated 16.2.2010, convicting them under Section 18 of the NDPS Act for possessing opium. They were sentenced to 12 years of rigorous imprisonment and fined `1,50,000/- each. The prosecution established charges through testimonies of police officials and other witnesses, leading to the conviction by the Special Court (NDPS), Jalandhar.2. Non-examination of an independent witness:The appellants argued that the prosecution's case was doubtful due to the non-examination of an independent witness, Baldev Singh, who was associated at the time of recovery. The court noted that the presence of DSP and other police officials during the recovery was sufficient, and there was no mandate that recovery must be effected in the presence of an independent witness. The Supreme Court in Kashmiri Lal Vs. State of Haryana held that police officers' testimony could be relied upon if found trustworthy. The court found no reason to distrust the police officials' statements.3. Alleged interpolation in documents:The appellants pointed out possible interpolation in the dates on various documents. However, the court found no such interpolation in the consent memos and recovery memo, which are primary documents prepared at the first instance. The court concluded that any discrepancy in other documents could be a genuine mistake and did not affect the overall credibility of the prosecution's case.4. Delay in sending samples for chemical analysis:The appellants contended that a 4-day delay in sending the samples for chemical analysis, coupled with some seals being damaged, cast doubt on the integrity of the samples. The court noted that the Chemical Examiner's report confirmed that the seals were intact and tallied with the sample seals. The Supreme Court in Hardip Singh Vs. State of Punjab held that a delay in sending samples does not cause prejudice if the seals remain intact. The court found no merit in the appellants' contention.5. Violation of Section 50 of the NDPS Act:The appellants argued that their right under Section 50 of the NDPS Act was violated as they were not given the option to be searched before a gazetted officer other than the DSP present at the spot. The court examined the compliance with Section 50 and found that the DSP had informed the accused of their right to be searched before a Magistrate or himself, a gazetted officer. The Constitution Bench in State of Punjab vs. Baldev Singh and Vijaysinh Chandubha Jadeja v. State of Gujarat emphasized the mandatory nature of Section 50 compliance. The court concluded that the accused were made aware of their rights, and the offer extended was proper, meeting the legal requirements.Conclusion:The court found that the prosecution had established the charges against the accused beyond reasonable doubt. The testimonies of the police officials were consistent and reliable. The alleged interpolation in documents and the delay in sending samples did not affect the case's integrity. The compliance with Section 50 of the NDPS Act was found to be proper. The appeal was dismissed, and the conviction and sentence were upheld.