TaxTMI 
TaxTMI 
2015 (8) TMI 1226
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce of gazetted officer or a Magistrate. Thereupon, appellant reposed confidence in the Investigating Officer and opted to be searched by him vide his reply Ex.PE/1. Ex.PE and Ex.PE/1 were signed by the appellant and attested by HC Sham Lal and Constable Taqdir Singh. Thereafter, ASI Jai Kishan conducted the search of the bag being carried by the appellant in his right hand, that contained charas, which was weighed and on weighment, it was found to be 2 kgs. Out of that 20 gms were drawn as sample, which was sealed in parcel, that was sealed with the seal bearing impression 'JK' by ASI Jai Kishan, who also prepared the parcel of the remaining charas, which too was sealed by him with his seal bearing impression 'JK'. ASI Jai Kishan handed over his seal to HC Sham Lal after use. Then, he prepared ruqa Ex.PG and sent the same to police station through Constable Satish Kumar, where formal FIR Ex.PG/1 was recorded by ASI Ishwar Singh. Thereafter, ASI Jai Kishan prepared rough site plan Ex. PH with correct marginal notes of the place of recovery. He also arrested the appellant vide arrest memo Ex.PI, that was signed by the appellant, as also, by the witnesses. He also pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ted and searched by ASI Jai Kishan that resulted in recovery of 2 kgs of 'charas' from the bag being carried by the appellant in his right hand. He further testified that 20 gms were drawn as sample from charas contained in the bag and both the sample parcel and the remaining charas were made into two separate parcels by putting those in plastic containers. He further testified that both the parcels were sealed by ASI Jai Kishan with his seal bearing impression 'JK' and seal after used was handed over to him and the case property was seized vide memo Ex.PF. He further testified that later the appellant was arrested by ASI Jai Kishan and on return to the police station, case property and the witnesses were produced before SHO Ram Kishan, who after verification affixed his own seal bearing impression 'RK' on the sample and the parcel Ex.P1 containing remaining charas, which was produced during the deposition of this witness. He also testified that his statement was recorded by the Investigating Officer. PW-6 SHO Ram Kishan testified that on 16.11.2003, he was posted as Station House Officer in Police Station Samalkha, on which day, ASI Jai Kishan produced bef....
X X X X Extracts X X X X
X X X X Extracts X X X X
....currence took place at a busy place, but no independent witness was joined by the Investigating Officer in the police party and only police officials conducted the search. So, he contended that non-joining of any independent witness at the alleged place of recovery is itself sufficient to raise an adverse inference against the respondent. He also contended that even the statements of the prosecution witnesses are highly contradictory and, therefore, were not worth reliance. So, the learned counsel for the appellant contended that the latter may be accorded benefit of doubt and acquitted of the offence punishable under Section 20 of the NDPS Act. On the other hand, learned Additional Advocate General, Haryana contended that there is no flaw in the impugned judgment of conviction and order of sentence, that are based on cogent, corroborating and reliable testimonies of unimpeachable character consisting of PW-1 to PW-7 and, therefore, these were rightly relied upon by the learned trial Court for convicting and sentencing the appellant for commission of offence punishable under Section 20 of the NDPS Act. So, he contended that the impugned judgment of conviction dated 21.11.2005 and ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r of the prosecution may expose them to serious consequences. Moreover, as already noticed that PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) are not alleged to have any animus or hostility against the appellant prior to the day of recovery. It was held by the Hon'ble Supreme Court of India in Ajmer Singh v. State of Haryana; 2010 (2) JT 175; though in cases like the case in hand, independent evidence is required, but accused cannot be acquitted merely because no independent witness produced. Hence conviction was upheld inter alia on said ground. So, the contention raised by the learned counsel for the appellant to the effect that evidence of PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) cannot be relied upon for want of corroboration by the evidence of independent witness, is repelled, in view of the judgment (supra). Regarding non-compliance of Section 50 of the NDPS Act, in this case, suffice it to say that the question of compliance or noncompliance of Section 50 of the NDPS Act is relevant only in case of personal search of the person. The said Section does not extent to search a vehicle or a container or bag, as held by the Hon'ble Supreme Court India in Ajmer Singh&#....
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the appellant in his right hand, as can be seen from the unanimous testimonies of PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan), that have been accepted to be veritable for the reasons given supra. It can be noticed from the testimonies of PW-5 (HC Sham Lal) and PW-7 (ASI Jai Kishan) that on the day of recovery, appellant and the case property were taken to police station, where these were produced before PW-6 (SI Ram Kishan), who was working as Station House Officer of Police Station Samalkha and latter in his deposition deposed that the case property was produced before him by PW-7 (ASI Jai Kishan), who investigated this case. PW-6 (SI Ram Kishan) was subjected to lengthy crossexamination, but long cross-examination failed to elicit anything worth the name, which could possibly shatter his evidence. No motive can be ascribed to him to testify falsely in this case regarding production of case property before him by PW-7 (ASI Ram Kishan), in order to comply with the provisions of Section 55 of the NDPS Act. So, it is candid from the testimonies of PW-5 (HC Sham Lal), PW-6 (SI Ram Kishan) and PW-7 (ASI Jai Kishan) that the compliance of Section 55 of the NDPS Act was made by the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the area of bus stand Smalkha. The learned trial Court rightly observed that since the appellant is a native of Himachal Pradesh, the police could not involve him falsely in the case in hand by bringing him from his State. We, therefore, do not find any merit in the contentions raised by the learned counsel for the appellant, that are, hereby, repelled. There is, thus, no illegality or impropriety in the findings of the learned trial Court, who rightly convicted the appellant for commission of offence punishable under Section 20 (b) (ii) (C). So, the impugned judgment of conviction is, hereby, upheld and affirmed. Learned counsel for the appellant, then contended that keeping in view the quantity of the contraband, as also circumstances of the case, wherein, offence was committed, age and antecedents of the appellant, a lenient view regarding imposition of sentence may be taken. On the other hand, learned Additional Advocate General, Haryana contended that the impugned order of sentence may be upheld and affirmed and that the sentence may not be reduced. We have given our thoughtful consideration to the contentions raised by learned counsel for the parties regarding impositio....