1999 JTR(SC) 1031
1999 4 AICLR 385 ; 2000 AIR(SC) 403 ; 1999 AIR(SCW) 4546 ; 1999 2 ALD(Cri)(SC) 893 ; 1999 39 AllCriC 874 ; 1999 CriLR 757 ; 1999 3 Crimes(SC) 185 ; 2000 CrLJ 509 ; 1999 3 EastCrC(SC) 415 ; 2001 1 GLR 218 ; 1999 8 JT 118 ; 1999 4 RCR(Cri) 614 ; 1999 6 Scale 417 ; 1999 8 SCC 508 ; 1999 SCC(Cri) 1501 ; 2000 1 UJ 18 ; 1999 KHC 1416 ; 1999 8 Supreme 548
1999(8) Supreme 548
Supreme Court of India
(From Gujarat High Court)
G.T. Nanavati and S.N. Phukan, JJ.
Sarjudas and Anr. -Appellants
versus
State of Gujarat -Respondent
Criminal Appeal No. 807 of 1997
Decided on 15-9-1999
Counsel for the Parties :
For the Appellants : Imtiaz Ahmed, Advocate (A.C.).
For the Respondent : Ms. Hemantika Wahi, Y. Adhyaru and Ms. Anu Sawhney, Advocates.
Act
Referred
:BOMBAY PROHIBITION ACT : S.83, S.66(1)(b)
EVIDENCE ACT : S.3
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT : S.20(b)(ii), S.50
(A) The appellants were convicted under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act read with Section 66(1)(b) and Section 83 of the Bombay Prohibition Act for possessing charas without a licence or permit. The prosecution case rested on the seizure of narcotics from a bag on the appellants scooter, invoking Section 50 NDPS regarding information about examination rights, Section 3 Evidence Act on admissibility of evidence, and Section 50 NDPS on the obligation to inform the accused of rights during search and seizure. The Court examined the alleged non-observance of mandatory procedural safeguards and inconsistencies in the testimony of Panch witnesses and police personnel, applying principles of evidence evaluation under the Evidence Act and the NDPS framework.
(B) Key legal principles include that a search need not be declared unlawful merely because the accused was not orally informed of their right under Section 50 NDPS if the substance was not found on their person, the evidentiary value of a panchnama is assessed for consistency and reliability, and allegations of mala fide action by police and panchas require specific material evidence to succeed. Discrepancies in witness testimony that are merely apparent and do not affect the core reliability of the evidence do not mandate overturning a conviction.
Facts of the case:
The appellants were found in possession of charas weighing seven kilograms and 419 grams stored in a bag hanging from a scooter near Nursing Takri. They were stopped by police personnel, and a panchnama was recorded in the presence of panchas. The appellants were not separately searched on their persons, and questions were raised regarding the timing of when the panchas were summoned and the sealing of the seized material. The prosecution maintained that the narcotics were recovered in their presence and that the seal on the forensic packet was consistent, albeit with a minor clerical discrepancy. An enmity-based motive for false implicating was also suggested.
Findings of Court:
The trial Court and the High Court both found no merit in the appellants contentions regarding non-observance of mandatory NDPS requirements, the legality of the search and seizure, or the credibility of the prosecution evidence. The High Court dismissed the appeal summarily, holding that the evidence was reliable, the seizure was properly documented, and there was no indication of police or panch complicity influenced by external pressure.
Issues:
Whether the failure to orally inform the appellants of their right under Section 50 NDPS rendered the search and seizure illegal; whether the identification and chain of custody of the seized narcotics were legally sound; and whether the appellants were falsely implicated due to prior enmity with a third party.
Ratio Decidendi:
The Court held that Section 50 NDPS information is required when a person is searched on their person, and its non-disclosure does not vitiate the seizure when the narcotics are found on property and not on the accuseds person. The panchnama, corroborated by police and forensic evidence, was deemed reliable despite minor inconsistencies, and no material was placed before the Court to support allegations of mala fide conduct by the authorities.
Result:
The appeal was dismissed, and the convictions under the NDPS Act and the Bombay Prohibition Act were upheld.
(A) The appellants were convicted under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act read with Section 66(1)(b) and Section 83 of the Bombay Prohibition Act for possessing charas without a licence or permit. The prosecution case rested on the seizure of narcotics from a bag on the appellants scooter, invoking Section 50 NDPS regarding information about examination rights, Section 3 Evidence Act on admissibility of evidence, and Section 50 NDPS on the obligation to inform the accused of rights during search and seizure. The Court examined the alleged non-observance of mandatory procedural safeguards and inconsistencies in the testimony of Panch witnesses and police personnel, applying principles of evidence evaluation under the Evidence Act and the NDPS framework.
(B) Key legal principles include that a search need not be declared unlawful merely because the accused was not orally informed of their right under Section 50 NDPS if the substance was not found on their person, the evidentiary value of a panchnama is assessed for consistency and reliability, and allegations of mala fide action by police and panchas require specific material evidence to succeed. Discrepancies in witness testimony that are merely apparent and do not affect the core reliability of the evidence do not mandate overturning a conviction.
Facts of the case:
The appellants were found in possession of charas weighing seven kilograms and 419 grams stored in a bag hanging from a scooter near Nursing Takri. They were stopped by police personnel, and a panchnama was recorded in the presence of panchas. The appellants were not separately searched on their persons, and questions were raised regarding the timing of when the panchas were summoned and the sealing of the seized material. The prosecution maintained that the narcotics were recovered in their presence and that the seal on the forensic packet was consistent, albeit with a minor clerical discrepancy. An enmity-based motive for false implicating was also suggested.
Findings of Court:
The trial Court and the High Court both found no merit in the appellants contentions regarding non-observance of mandatory NDPS requirements, the legality of the search and seizure, or the credibility of the prosecution evidence. The High Court dismissed the appeal summarily, holding that the evidence was reliable, the seizure was properly documented, and there was no indication of police or panch complicity influenced by external pressure.
Issues:
Whether the failure to orally inform the appellants of their right under Section 50 NDPS rendered the search and seizure illegal; whether the identification and chain of custody of the seized narcotics were legally sound; and whether the appellants were falsely implicated due to prior enmity with a third party.
Ratio Decidendi:
The Court held that Section 50 NDPS information is required when a person is searched on their person, and its non-disclosure does not vitiate the seizure when the narcotics are found on property and not on the accuseds person. The panchnama, corroborated by police and forensic evidence, was deemed reliable despite minor inconsistencies, and no material was placed before the Court to support allegations of mala fide conduct by the authorities.
Result:
The appeal was dismissed, and the convictions under the NDPS Act and the Bombay Prohibition Act were upheld.
NDPS - Relied on for the proposition that Section 50 of the NDPS Act is not applicable when the recovery is from a bag on a vehicle and not from the person of the accused.
Judgment
Both the appellants have been convicted under Section 20(b)(ii) of the NDPS Act and Section 66(1) (b) and 83 of the Bombay Prohibition Act as, they were found in possession of charas weighing 7 kgs. and 419 grams without any licence or permit.
2. Various contentions regarding non-observance of mandatory requirements of different provisions of the NDPS Act were raised before the trial Court but it found no substance in them and held that all those provisions were complied with in this case. The trial Court also found that the prosecution evidence could safely be relied upon eventhough there was some inconsistency in the evidence regarding the time at which the Panch witnesses were called. P.S.I. Chavda and the constable accompanying him had stated before the Court that the Panch witnesses were called before they had stopped the appellants. According to the Panch witnesses they were called thereafter. The Panchnama clearly states that the Panchas were called after P.S.I. Chavda had stopped the appellants while they were proceeding on the scooter on the road near Nursing Takri. This contradiction, in our opinion, is of no significance and the trial Court was right in not disbelieving the prosecution evidence on this ground.
3. The High Court also did not find any substance in any of the contentions raised on behalf of the appellants and dismissed the appeal summarily.
4. What is contended by the learned counsel for the appellant is that the appellants were not informed of their right under Section 50 of the NDPS Act that they were entitled to be examined in presence of a Gazetted Officer or a Magistrate and, therefore, the search of the appellants was illegal and the evidence regarding recovery of charas from their possession could not have been relied upon.
5. We do not find any substance in this contention as the charas was not found on the person of the appellants but it was found kept in a bag which was hanging on the scooter on which they were riding. Therefore, this was not a case where the person of the accused was searched and from his person narcotic drug or psychotropic substance was found. The correct position of the law on this point has been stated by this Court in The State of Punjab v. Baldev Singh1.
6. It was also submitted that identify of the articles seized from the appellants and the articles examined by the Forensic Scientific Laboratory has not been established by the prosecution. The submission was that the seal which was affixed on the articles seized from the appellants was different from the seal which was found on the packet received by the Forensic Scientific Laboratory for analysis. There is no substance in this contention. The seal which was affixed on the seized articles, as stated by PSI Chavda in his evidence, was of Police Inspector, Sabarmati. The seal on the packet which was received by the Forensic Scientific Laboratory read “Police Inspector, Sabarmati, Ahmedabad City”. A small lapse on the part of the PSI Chavda while deposing before the Court has led to this discrepancy which is more apparent than real. Sabarmati is a locality within Ahmedabad City. The Specimen of the seal sent to the Forensic Scientific Laboratory also tallied with the seal on the packet sent to it. Therefore it is not possible to hold that the seal which was found on the packet was different and therefore a doubt arises whether the material which was seized from the appellants was the same as was examined by the Forensic Scientific Laboratory.
7. It was lastly contended that in view of the enmity between the appellants and one Ram Swarup Das they were falsely involved. Even if enmity is assumed there is no material to show that the Police and the Panchas were in any way under the influence of Ram Swarup Das or there was any reason for them to oblige Ram Swarup Das by falsely implicating the appellants. It is also not believable that at the instance of Ram Swarup Das the Police had planted such a big quantity of charas worth Rs. 85,000/- to falsely implicate the appellants.
7. As we do not find any substance in this appeal the same is accordingly dismissed.
(C.R.) Appeal dismissed.
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Parallel Citations of other Journals :
Sarjudas and Anr. v. State of Gujarat, 1999(8) Supreme 548 : 1999(4) Crl. L.R. 385 : 1999(4) Crimes 185 : 1999(8) JT 118
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