Lok Pal Singh vs State of Uttarakhand

Hon''ble Servesh Kumar Gupta, J.—This appeal is directed against the judgment and order dated 3.10.2008 rendered by learned Special Sessions Judge, Bageshwar in Special S.T. No. 22/2007, titled as State Vs. Lokpal Singh. By the said judgment, the court below found the appellant guilty for the offence of Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter will be called as the Act). The learned Judge has imposed the sentence of ten years'' R.I. in addition to Rs. 1.00 lakh of fine upon the convict, and in default of the payment of fine, he was sentenced to undergo two and half years'' additional simple imprisonment.

Heard learned counsel for the parties and perused the entire material available on record.

As per recovery memo Ex.Ka-6, the facts are that on 1.7.2007, when Sub-Inspector Pritam Singh of P.S. Bageshwar, along with his police personnel, was busy in patrolling duty and also checking of the hotels of the town, he noticed a man on the Mall Road of the market, holding a white bag in his hand. That man, after noticing the presence of the police, turned back and started moving with fast pace, which arose suspicion in the minds of police personnel. The police personnel asked the accused to stop but he did not do so. By using force, the police nabbed that person who disclosed his name as Lokpal Singh S/o Mangal Singh, R/o Village Jhumi, P.S. Kapkot, District Bageshwar. He further disclosed regarding the fact of having cannabis (CHARAS) with him and for this reason, he was bidding to take to his heels. After having the knowledge of this disclosure by the police personnel, the accused was made aware about his rights to be searched before any Magistrate or a Gazetted Officer, but he was not inclined to be carried before such an officer, and assented for taking of his search by the police itself. His consent letter was also prepared and got signed, which is Ex.Ka-1, on record. On being searched, he was found having possession of cannabis (CHARAS) which was weighed to be 1 kilogram and 100 grams. The weighing instruments were fetched from the mess of the police station. Out of this recovered cannabis (CHARAS), two packets were sealed separately, as samples, for sending them to the Public Analyst. Recovery memo was also prepared on the spot at about 10:45 PM.

Before conducting the search, all the police witnesses took search of each other in presence of the accused, nay he was also extended liberty to search the person of the police officials and this aspect was also recorded in a memo Ex.Ka-2, on record. Prima facie, the recovered contraband was identified as CHARAS, the memo of identification by the police personnel is Ex.Ka-3 and the memo of preparation of samples is Ex.Ka-4. Memo of rest of contraband article, weighing one kilogram, is Ex.Ka-5. Memo of arrest was also prepared which is Ex.Ka-7, whereupon the accused Lokpal Singh also signed. After apprehending the accused, he was brought to the police station and the FIR was lodged in the intervening night of 1/2.7.2007 at 1:15 AM at police station Bageshwar, which is Ex.Ka-9. Entry of G.D. has been produced which is Ex.Ka-10.

Investigation of the case was conducted by another Senior Sub-Inspector who submitted the chargesheet against the accused for the offence of Sections 8/20 of the Act, pertaining to crime No. 529/2007. This chargesheet is Ex.Ka-15.

Afterwards, learned Sessions Judge, Bageshwar levelled the charge upon the accused accordingly and tried him.

Prosecution has produced PW1 S.I. Pritam Singh, the arresting officer, PW2 Constable Rakesh Kathayat, another police personnel who was accompanying S.I. Pritam Singh on the date of incident, PW3 Constable Dushyant Sajwan, who carried the samples to the Forensic Laboratory, Dehradun, PW4 Constable Puran Chandra, who made the entries of G.D. and written the FIR at the police station while PW5 Senior Sub-Inspector, who after investigation, has submitted the chargesheet.

The accused got examined Jagdish Kumar as DW1 in his defence, who happens to be the Manager of Neeleshwar Hotel at Bageshwar town.

After that the statement of the accused was recorded u/s 313 Cr.P.C. who denied his guilt and has stated that the police had arrested him under some misconception of being another Lokpal, who sometimes assaulted upon the police personnel.

Having perused the statements of the witnesses and the judgments of the court below, it is borne out that the accused was apprehended in the intervening night of 1/2.7.2007 at about 11:45 PM. So, the desolate look of the entire market at such odd hours in the remote hills is not unnatural. PW1 S.I. Pritam Singh has also explained the reason of not taking any public witness, inasmuch as, by that time, the entire market had been closed.

Learned counsel for the appellant, in his support, has relied upon the following judgments: -

Baldev Singh Vs. State of Uttarakhand (2008 [2] U.D. 456)

Sukh Dayal Gupta Vs. The State (2009 [1] U.D. 371)

Sadhu Singh Vs. State of Punjab (1997 [3] Crimes 55

In the aforesaid judgments, one judgment has been rendered by a learned Single Judge of Punjab & Haryana High Court whereas, rest of two judgments are by a learned Single Judge of this Court.

In that judgment, learned Single Judge of Punjab & Haryana High Court held that necessity of public witness was not unnatural because the incident was of 6 AM at a public place and that too happened in plains area, whereas in the instant case, the hours are quite odd and that too in the remote hills. Therefore, it will not be proper to take application of this ratio in the present matter.

The other two views, expressed by learned Single Judges of this Court, are with regard to the compliance of provisions of Sections 21, 42 and 57 of the Act. In this regard, the Hon''ble Apex Court (Full Bench) in the case of Sajan Abraham Vs. State of Kerala, held that "the Court while construing such provisions strictly should not interpret it so literally so as to render its compliance impossible. If in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out.

When police party was on patrol duty, i.e. on motion in a jeep then communication to the superior, before proceeding to apprehend the accused, is not understandable. Had they (Police) not done so (to proceed for the arrest) immediately the opportunity of seizure and arrest would not have been lost. The Hon''ble Apex Court refused to agree to the submission that communication orally is not a compliance u/s 50 of the Act."

In the present matter, the appellant was communicated, in writing, that he is free to exercise his right for being searched before a Gazetted Officer or a Magistrate, but he did not exercise the same. This letter of consent is Ex.Ka-1 available on record, which also bears the signature of appellant Lokpal Singh.

Besides, the Hon''ble Jammu and Kashmir High Court, in the case of Parshotam Lal and Others Vs. State, has gone to the extent of laying down a ratio that when accused voluntarily disclosed that a packet carried by him contained Heroin, in that case, the Raiding Party is not required to inform accused of his right to be searched in terms of Section 50 of the Act.

The same High Court has further held while interpreting Section 54 of the Act that when the recovery of Narcotic Drugs is made from the possession of accused, the onus shifts upon him to prove that he did not knowingly possessed said drugs. If the accused fails to discharge this onus, then his conviction is proper.

The Hon''ble Apex Court, further in the case of State of Punjab Vs. Balbir Singh, has held that provisions of Sections 52 and 57 of the Act, which deals with the steps to be taken by the officers, after making the arrest or seizure u/s 41 and 44 of the Act, are by themselves not mandatory."

In the instant case, PW2 Constable Rakesh Kathayat has corroborated the statement of PW1 S.I. Pritam Singh and there is no reason to disbelieve their evidence, simply because they are the police personnel. Besides, they had no enmity with the accused. The Hon''ble Apex Court, in a very old precedent, which is still prevailing and has been reiterated at a number of times by Hon''ble Apex Court itself, is understandable, i.e. Nathusingh Vs. The State of Madhya Pradesh, , wherein it was held that the mere fact that the prosecution witnesses are police officers is not enough to discard their evidence, in the absence of evidence of their hostility to the accused. This precedent regarding the weight of evidence adduced by the police personnel has been reiterated by Hon''ble Apex Court in the case of "State of Delhi Vs. Sunil and another reported in 2001 (1) ACRR 170".

The argument has been advanced on behalf of the appellant that Ex.Ka-14, i.e. the report of the Public Analyst, shows that two sample packets of contraband goods were having the weight of 60.3 gm (Approx) and 51.5 gm (Approx) respectively whereas, at the time of taking sample from the entire alleged contraband goods, the Sub-Inspector disclosed the weight thereof as 100 grams, in cumulative. So, in that way, this weight was 21.8 grams extra and as such, the possibility of tampering with the evidence cannot be ruled out. This argument is not acceptable for the reason that when approximately 100 gram contraband article is being segregated from the total recovered article of 1 kilogram and 100 grams, and that too, not being weighed by electronic mechanism, but by a simple weighing instrument of ration in the police mess, then such incongruity is bound to occur. More so, the weight has been measured by the Public Analyst, marking ''Approximate'' in front of each measurement.

The defence has also taken the plea that the accused was arrested from a hotel because at that intervening night, he was taking rest at Hotel Neeleshwar, situated in the market, wherefor he has also produced a defence witness Jagdish Kumar, Hotel Manager. The Hotel Manager has produced the register of the hotel for the same intervening night which displays the staying of the appellant Lokpal Singh S/o Mangal Singh in Room No. 101. But that entry also is not believable for the reason that the age of such a person, who was staying in the hotel with the name disclosing Lokpal Singh, has been divulged as 36 years. This was the age of said Lokpal Singh on 1.7.2007, whereas when the statement of accused Lokpal Singh was recorded u/s 313 Cr.P.C. on 7.8.2008, he disclosed his age to be 50 years. So, within such a short span of one year, the age of the accused cannot be having such a vast difference of 14 years. Fortiori, the real signature of Lokpal Singh, which are available in his statement u/s 313 Cr.P.C., are quite different than that of signatures which are available on the hotel register.

All the more, PW3 Constable Dushyant Sajwan has been produced by the prosecution, who carried the sample of the contraband article to the Forensic Laboratory. He received the samples on 4.7.2007 from the police station. He has explained that he left from Bageshwar on the same day and reached Haldwani. The distance between Bageshwar and Dehradun is almost 500 kilometers, so in making the entire journey, he consumed the entire day of 4th July and he boarded in the Train in the night of 4th July to leave for Dehradun and accordingly, he reached Dehradun in the morning of 5.7.2007. Thereafter, he went to the Forensic Laboratory on the same day, but could not succeed to get receipt of the samples since the person concerned was not available consecutively for 5th and 6th July, 2007. This witness also informed at P.S. Bageshwar regarding this fact. So, in this way, he could be able to get the samples received at the Forensic Laboratory only on 7th of July, 2007. The above explanation is quite natural and does not leave any room for creating a doubt in the prosecution story.

Having gone through the entire evidence led by prosecution, this Court feels that there is no scope to interfere with the findings arrived at by the court below. The appeal is meritless and liable to be dismissed. It is, accordingly, dismissed. Impugned judgment and order of the court below is affirmed. Appellant is already booked in jail. He will serve out the sentence imposed against him by the trial court.

Let the lower court record be sent back.