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PETITIONER: AEHOK KUMAR

       Vs.

RESPONDENT: STATE OF HARYANA

DATE OF JUDGMENT:       02/12/1999

BENCH: G.T.Nanavati, S.N.Phukan

JUDGMENT:

     Nanavati

     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.

     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.

     What  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 ’ "^  ^ .  . 3/-

     reliable  and  we find no good reason to  differ  from that finding.

     It  was  also  submitted that when PW-1 had  left  the

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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.

     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 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.

       i  "’.   ’ 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.

     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 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 they were.

     Learned counsel lastly submitted trial in any case the sentence  in default of payment of fine- should be  reduced. That  is  not  pemissible and hence that request has  to  be rejected.  ..6/-

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