1999 INSC 0946
SUPREME COURT OF INDIA

       Ashok Kumar

       Versus

       State of Haryana

       (G.T. Nanavati and S.N. Phukan, JJ.)

       Crl. Appeal No. 1338 of 1998.

       2.12.1999

       JUDGMENT

       G.T. Nanavati, J. - 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.

       2. In order to establish its case the prosecution had examined PW-1, Shri Dharam Pal
       Pannu, Tehsildar-cum-Executive Magistrate in whose presence the appellant was
       searched, PW-2, Daya Nand, the Chowkidar who was present at the time of the search,
       PW-3 ASI Raj Kumar who had received the Ruqa 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 had received the sealed parcels of seized materials over which
       he had put his own seal and then returned them for safe custody. The prosecution also
       filed affidavits and documents to prove identity of the articles seized and sent for
       chemical analysis and nature of the substances seized.

       3. The 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 the
       conviction.

       4. What is contended by the learned counsel for the appellant is that no independent
       witness was kept present while 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 this cross-examination nothing was
       brought out on the basis of which it can be said that what he had deposed was not
       correct. Only 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 Ashok Kumar but ASI 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.

       5. It was 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 and seizure had not
taken place at the time and in the manner stated by the witnesses and 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 that Raj Kumar was sent earlier as the other evidence on record discloses that
the appellant and the seized articles were sent to the Police Station a little later.

6. 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-
4, the Investigating Officer had identified it and no good reason has been given to doubt
the evidence of this witness on that point.

7. It was 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
Station. In his statement under Section 313 Cr.P.C. the appellant had not stated so. The
appellant was the resident of Badia, a place in the State of Bihar. According to the
evidence of PW-4 while the appellant was alighting from the Bus he was found
carrying a bag and on suspicion he has searched. There was no reason for PW-4 to
falsely involve the appellant.

8. 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 able to point 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 kept in Malkhana and even while
they were taken to the Chemical analysis they were properly sealed.

9. It was 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 clearly 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
witness to establish that the seals on the samples were faint when received by him and it
was not possible to say whose seals they were.

10. Leaned counsel lastly submitted that in any case the sentence in default of payment
of fine should be reduced. That is not permissible and hence that request has to be
rejected.

11. As we find no substance in this appeal, it is dismissed.

Appeal dismissed.