JUDGMENT
V.S. Aggarwal, J.
1.
This is an appeal filed by Dharam Singh
(hereinafter described as the appellant) directed
against the judgment and order of sentence passed by
the Special Judge, Delhi dated 9th November, 2001 and
20th November, 2001 respectively. The learned trial
court had held the appellant guilty of the offence
punishable under Section 21 of the Narcotic Drug and
Psychotropic Substances Act, 1985 (for short the Act)
and by the subsequent order of sentence awarded him
rigorous imprisonment of 10 years and a fine of Rs. 1
lakh.
2. The facts of the prosecution case in brief are
that on 22nd June, 1998 Sub Inspector Prem Chandra had
received a secret information that one person named
Dharam Singh who is a drug peddler would come between
4.30 PM and 5.00 PM via Vishnu Garden, Kyala Delhi.
He would carry smack. This information was recorded
in daily diary No. 15 and copy of which was sent to
senior station. The officer in charge, police station
informed the Assistant Commissioner of Police and
directions were received to conduct the raid
immediately.
3. A raiding party was organized comprising of Sub
Inspector Prem Chandra, Inspector P. Chaubey, ASI
Setbir Singh, head constable Bharat Singh and others.
At about 3.30 PM they left the police station with the
secret informer in a government vehicle. Departure
entry was made by sub Inspector Prem Chandra. They
reached Khyala Road, Vishnu Garden, Delhi. The
vehicle was parked at a distance.
4. The investigating officer Sub Inspector Prem
Chandra asked five/six persons who were passing nearby
and shopkeepers to join the raiding party but they
refused to join the same. Thereupon the official
staff was briefed. They held the picket and at about
4.40 PM at the pointing of the secret informer the
appellant was apprehended while coming from S Block.
Vishnu Garden. Contents of the secret information was
disclosed to the appellant. He was served with the
notice under Section 50 of the Act that he has a right
and he was given an option that if he likes his person
can be searched before a magistrate or a gazetted
officer. The appellant refused to exercise the
option. His refusal was recorded.
5. Thereafter from the right side pocket of the
pant of the appellant a polythene packet was
recovered. It had another two packets which contained
light brown colour smack. Contents were weighed and
found to be 20 gms. 5 gms was taken as the sample.
The representative sample and the rest of the smack
were converted into sealed parcels and sealed with the
seal of PCK. Rukka was sent to the police station on
basis of which formal first information was recorded.
The seizure memo and the sealed articles were produced
before Inspector Mahesh Sharma who affixed the seal of
MCS on all those packets. The appellant had been
arrested. Report under Section 57 of the Act was
further sent. The recovered article had been
deposited in malkhana and representative sample
was subsequent sent to the Central Forensic Scientific
Laboratory. On receipt of the report that it was
smack the report under Section 173 Code of Criminal
Procedure was filed.
6. The learned trial court had framed a charge with
respect to the offence punishable under Section 21 of
the Act to which the appellant pleaded not guilty and
claimed a trial. The prosecution in support of its
case had examined 10 witnesses before the evidence was
closed by virtue of the statement of the public
prosecutor. When examined under Section 313 Code of
Criminal Procedure the appellant denied recovery of
smack from his person. He stated that he was lying in
his house on 22nd June, 1998 when a person came with
the police. The appellant was arrested and falsely
implicated.
7. Learned trial court on appraisal of the evidence
concluded that it has been proved that smack was
recovered weighing 20 gms from the person of the
appellant and with these basic findings the above said
judgment and order of sentence had been passed.
8. In order to establish that the appellant was
found in possession of the smack the prosecution has
examined Prem Chandra, PW-4. He had deposed in terms
of the prosecution case as has been recited above.
After disclosing about sending of the daily diary
entry to the senior officers he stated that picket had
been held and at 4.40 PM at the instance of the secret
informer the appellant was apprehended. The appellant
was informed about the secret information and notice
under Section 50 of the Act was served. The appellant
had refused and his refusal too was recorded followed
by search of the appellant whereupon 20 gms of smack
was recovered from the appellant. The witness had not
been cross-examined. In addition to that Inspector
Prem Chaubey, PW-6 too has supported the prosecution
version but he also was not cross-examined followed by
constable Manoj Kumar, PW-7 and Sub Inspector Satbir
Singh, PW-10.
9. When a witness is not examined in that event
unless the court finds other cogent reasons ordinarily
there would be little ground to discredit the
testimony. Of course the court can always scrutinise
the evidence and come to a conclusion irrespective of
the fact whether evidence is cross examined or not.
But in the present case in hand the evidence of the
prosecution witnesses is consistent. There is no
ground to discredit or disbelieve them. When evidence
by itself is trustworthy and consistent it must follow
that the prosecution had successfully proved that 20
gms of smack was recovered from the appellant.
10. A feeble attempt was made to urge that provision
of Section 50 of the Act had not been complied with.
11. There is no over-emphasizing that the provisions
of Section 50 of the Act are mandatory in nature. But
in the present case notice Ex. PW 4/C was served on
the appellant giving him the right that if he likes
his person can be sent searched before a gazetted officer
or a magistrate. The appellant had refused vide PW
4/T. In other words, the right enshrined under
Section 50 of the Act was conveyed but not exercised.
There is nothing else on the record to indicate that
any prejudice as such had been caused. The argument
therefore must be repelled.
12. In that event the learned counsel for the
appellant argued that in any case sentence awarded by
the learned trial court is excessive. According to
the learned counsel the trial court had ignored the
amendment effected in Section 21 of the Act. Section
21 of the Act, had been amended with effect from 2nd
October, 2001. Under Section 21(b) if the
contravention involves quantity less than commercial
quantity but more than small quantity, the punishment
could extend up to 10 years and with fine which could
extend up to Rs. 1 lakh. The expression “commercial
quantity” too was inserted in Section 2 of the Act and
reads as under:-
“(viia) “Commercial quantity”, in relation to
narcotic drugs and psychotropic substances,
means any quantity greater than the quantity
specified by the Central Government by
notification in the Official Gazette”
In pursuance of the said provision a Government of
India notification has been issued and in case of
smack if the weight of the contraband is 20 gms it
would be less than the commercial quantity.
Therefore, Section 20(b) of the Act would come into
play.
13. By virtue of the amendment of the Narcotic Drugs
and Psychotropic substances Act of the year 2001
Section 41 had been enacted which is being reproduced
below for the sake of facility:
“41. Application of this Act to pending
cases. -(1) Notwithstanding anything
contained in Sub-section (2) of Section 1, all
cases pending before the Courts or under
investigation at the commencement of this Act
shall be disposed of in accordance with the
provisions of the principal Act as amended by
this Act and accordingly, any person found
guilty of any offence punishable under the
principal Act, as it stood immediately before
such commencement, shall be liable for a
punishment which is lesser than the punishment
for which he is otherwise liable at the date
of the commission of such of offence:
Provided that nothing in this section shall
apply to cases pending in appeal.
(2) For the removal of doubts, it is hereby
declared that no Act or omission on the part
of any person shall be punishable as an
offence which would not have been so
punishable if this Act has not come into
force.”
Under the relevant provision reproduced above, the
amended provisions including the amendment to Section
21 would govern even all the pending cases. It came
into force on 19th October, 2001. In other words, the
amendment had come into force before the present
judgment and the order of sentence in question had
been pronounced. Therefore the matter was to be
governed by the amended Section 21 of the Act.
14. Taking note of this fact it was contended that
as already referred to above the sentence should be
suitably reduced.
15. In face of the aforesaid and the fact that 20
gms as such had been recovered the interest of justice
shall be fully met if the sentence is reduced to four
years rigorous imprisonment and a fine of Rs. 20,000/-.
In default of payment of fine the appellant would
undergo further simple imprisonment for one year.
subject to the said modification in the sentence the
appeal fails and is dismissed.