Kumar Vs. State of Haryana  INSC 413 (2 December 1999)
The appellant has been convicted under Section 20 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 as, on 24.9.1995. he was found in possession
of charas weighing 5 kgs . and 500 grams. '" . , ^ " ' ^ In .order to
establish its case the prosecution had examined PW-I, Shri Dharam Pal Pannu, Tehsildar-cm-Execitive
Magistrate in whose presence the appellant was searched, PW-2, Daya Nand,the Chowkidar
who was present at the time of the search,FW-3 ASI Raj Kumar who had received
the Ruppa at 3.35 p.m. and registered an offence against the appellant, PW-4
ASI Maha Singh the Investigating Officer, and PW-5, S.I. Satbir Singh. who of saized
.materialshad received the sealed 'parcela:over which he had put own own seal
and then returned them for safe custody. The prosecution also filed affidavits
and documents to prove ..2/- identity of the articles seized ana sent. for
chemical analysis and nature of the substance seized.
Trial Court believed the prosecution witnesses and also the documentary
evidence and held that the appellant did possess charas as alleged by the
prosecution. The High Court agreed with the findings of the trial Court and.confirmed
is contended by the "learned counsel for the appellant is that no
independent witnees was kept present which the appellant was searched. But that
circumstance cannot create any doubt as the appellant was searched in presence of.a-Magistrate.
The Magistrate was examined as a witness and in his cross-examination nothing
was brought out on the basis of 'which it can be said that what he-had deposed was.not
correct. Onsy submission by the learned counsel .with respect to his evidence
was that he .had not identified.the appellant in the Court. He was not able to
state that the person present in the dock was the same Ashcok Kurnar but AST Maha
Singh had identified the appellant. His evidence has been found to be ' "^
^ . .
reliable and we find no good reason to differ from that finding.
also submitted that when PW-1 had left the place at about 3.30 p.m. the work of
preparing the samples was not over and yet in the FIR the time of registration
mentioned is 3.35 p.m. and that would mean that really the search ana seizure
had not taken place at the time and in the manner stated by the witnesses ana
everything was done at the Police Station. We find no substance in this submission
. Though the Investigating Officer has stated that he had sent constable Raj
Kumar with Ruqqa to the Police Station for registration of the offence after
the search and seizure was over, it appears cent that Raj Kumar was/earlier as
the other evidence on record discloses that the. appellant arid the seized
articles were sent to the po1ice Station a little later. )-.1 It was next
contended that identity of the cloth bag stated. to have been recovered from
the appellant, was not established as PW-1 had not identified it in the Court.
PW-A, the Investigating Officer had identified it ..4/- -4- and no good reason has
been given to doubt the evidence of this witness on -that point.
also contended that nothing. happened at the place where the search and seizure
are stated to have taken place and that everything was done at the Police
statement under Section 313 Cr.P.C. the appellant had not stated so. The
appellant was the resident of Bad i a, a place in the State of a i bar. '
According to the evidence of PW-4 while the appellant was alighting from the
Bus he was found carrying a bag aria on suspicion he was searched. There was no
reason for PW-4 to falsely invo"ve the appellant.
"'. ' It was also submitted that there was non-compliance with the
requirement of Section 55 of the NDPS Act, but the learned counsel was not
complied out which part of Section 55 was not complied with. The prosecution
evidence clearly discloses that the seized articles were produced before the
Officer incharge of the Police Station, that he had put his seal over those
articles and thereafter they were sent for safe custody. The evidence also
discloses that the seized articles were .. 5/- kept in Malkhana and even while
they were taken to the Chemical analysis they were properly sealed.
strongly submitted that. as admitted by PW-1, the seals on the packets produced
before the Court were very faint and could not be read properly. Thus there was
no reliable evidence to prove that the samples seized from the appellant were
the same as were examined by the chemical analyser. There is no substance in
this contention. The report of the chemical analyser c^ear^y establishes that
the articles examined by him were the articles connected with this case.
Neither the report of the chemical analyser was challenged nor any application was
given for examining him as a witness to establish that the seals on the samples
were faint when received by him and it was not possibles to say whose seals
counsel lastly submitted trial in any case the sentence in default of payment
of fine- should be reduced.
is not pemissible and hence that request has to be rejected. ..6/- As we find
no substance in this appeal, it. is dismissed.