Chet Ram v. State Of H.P

R.L Khurana, J.:— The above-noted two appeals arising out of two separate judgments rendered on 20.10.2001 by the learned Sessions Judge, Kinnaur Division at Rampur, in Sessions Trial Nos. 4 and 3 of 2001 respectively are being disposed of together by this common judgment since common questions of fact and law are involved therein.

2. On 5.11.2000 at about 5.50 a.m Assistant Sub Inspector Kanshi Ram of Police Station, Ani, was present in the area of Nagan along with Head Constable Rattan Chand and Constable Bhup Singh, Ram Lal and Hira Singh in connection with routine patrolling. At such time, he received a secret information about two persons carrying “Charas” in their bags from Ani in H.R.T.C bus running from Karana to Chandigarh via Ani. Finding the information to be reliable, he reduced such information into writing and forwarded a copy thereof to Deputy Superintendent of Police, Ani, Shri Ahmad Sayad through constable Ram Lai. Assistant Sub Inspector Kanshi Ram then constituted a raiding party in which he associated two independent witnesses from the area, namely, Bhag Chand and Ram Lai. At about 6.30 a.m H.R.T.C bus bearing No. HP-06-2809 running between Karana and Chandigarh via Ani was seen coming. It was signalled to stop at Nagan Intersection. The police party entered the bus. Two persons matching the description, as given in the secret information received earlier, were found sitting respectively on seats No. 25 and 37 having one bag each on their laps. The said two persons are appellant Mangat Ram (hereinafter referred to as A-1) and appellant Chet Ram (hereinafter referred to as A-2).

3. Both A-1 and A-2 were asked to step out of the bus. Thereafter Assistant Sub Inspector Kanshi Ram carried out the search of the bag of A-1 while Head Constable Rattan Chand carried out the search of the bag of A-2. During the course of search of the bag of A-1 “Charas” in the shape of billets wrapped in a scarf was recovered therefrom which on weighment was found to be 3050 grams. Two samples weighing 25 grams each were separated therefrom. The two samples and the remaining bulk of “Charas” along with scarf and bag were separately sealed and taken into possession. Similarly, during the search of the bag of A-2 by Head Constable Rattan Chand, “Charas” in the shape of billets wrapped in polythene was recovered therefrom. The “Charas” on weighment was found to be 4650 grams. Two samples weighing 25 grams Charas were separated. The samples and the remaining bulk of “Charas” alongwith polythene and the bag were separately sealed and taken into possession.

4. The two accused, after being informed about the grounds for their arrest, were arrested. Two separate “Rukkas” were sent to the police station for the registration of the cases. On the basis thereof, a case for the offence under section 20, Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) came to be registered at Police Station, Ani vide F.I.R No. 71 of 2000 against A-1. A similar case also came to be registered against A-2 vide F.I.R No. 72 of 2000. The case property in both the cases was produced separately by Assistant Sub-Inspector Kanshi Ram and Head Constable Rattan Chand before the incharge of Police Station Ani Shri Tejinder Verma, Sub Inspector, who after resealing the same with his own-seal had deposited the same in the Malkhana.

5. On one of the sample in both the cases beihg sent for chemical, analysis, the same was found to be “Charas”.

6. The two accused thereafter, on completion separately sent up for trial for the offence under section 20 of the Act. Both the accused on having been charged did not plead guilty and claimed trial. The defence put-forth by the two accused is that of denial simpliciter and false implication.

7. In Sessions Trial No. 3 of 2001, against A-1, the prosecution examined twelve witnesses in all. No defence evidence was led by A-1.

8. In Sessions Trial No. 4 of 2001 against A-2, the prosecution examined thirteen witnesses and no evidence in defence was led by A-2.

9. The learned Sessions Judge on consideration of the evidence led before him vide two separate judgments recorded on 20.10.2001 came to the conclusion that a case for the offence under section 20 of the Act stood proved against each of the two accused beyond a reasonable doubt. He, accordingly, while convicting each of the two accused for the said offence, sentenced them to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees one lac each. In default of payment of fine, each of the two accused has been sentenced to undergo simple imprisonment for a further period of one year.

10. Aggrieved by the conviction and sentence recorded against them by the learned Sessions Judge, the two accused have come up before this Court by way of the present appeals.

11. The only contention raised on behalf of the accused is that the prosecution has miserably failed to prove and establish the recovery of the bags, alleged to be containing Charas from the conscious possession of each of the two accused. Therefore, the conviction and sentence recorded against them cannot be sustained and are liable to be set aside.

12. As per the prosecution case bag Ex. P-3 in Cr. A. No. 684 of 2001 containing 3050 grams of “Charas” was recovered from the conscious possession of A-1 while bag Ex. P-4 in Cr. A. No. 661 of 2001 containing 4650 grams of “Charas” was recovered from the conscious possession of A-2.

13. The witnesses examined on behalf of the prosecution have categorically stated that A-1 was found sitting on seat No. 25 with the bag Ex. P-3 while A-2 was found sitting on seat No. 37 of the bus with the bag Ex. P-4 in his lap. None of these prosecution witnesses has been cross-examined on behalf of the accused in so far as their possession of the bags Ex. P-3 and P-4 are concerned.

14. It is well settled, that failure to cross-examine the witness(s) on a particular aspect would lead to presumption that such aspect is not disputed.

15. In the present cases as well on the failure of the two accused to cross-examine the prosecution witnesses on the question of possession of bags Ex. P-3 and P-4, it will have to be presumed that they did not dispute the fact that such bags were recovered from their possession. Therefore, there is no merit in the contention put forth by the learned Counsel for the two accused that the prosecution has not been able to prove and establish that the bags Ex. P-3 and P-4 were respectively recovered from the conscious possession of A-1 and A-2. The learned Trial Court is thus right in holding the bags Ex. P-3 and P-4 containing “Charas” to have been recovered from the conscious possession of the two accused.

16. In so far as A-2 is concerned, an additional contention was raised to the effect that Assistant Sub-Inspector Kanshi Ram was neither empowered nor competent to authorise head Constable Rattan Chand to conduct the search of the bag Ex. P-4 alleged to have been found in possession of A-2, in view of the provisions contained in section 41(2) of the Act.

17. Section 41(2) of the Act provides:—

“Any such officer of gazetted rank of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including the para-military forces or the armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government if he has reason to believe from personal knowledge or information given by any person and taken in writing that any person has committed an offence punishable under this Act or that any narcotic drug or psychotropic substance or controlled substance in respect of which any offence under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter V-A of this Act is kept or concealed in any building, conveyance or place, may authorise any officer subordinate to him but superior in rank to a peon, sepoy or a constable to arrest such a person or search a building, conveyance or place whether by day or by night or himself arrest such a person or search a building, conveyance or place.”

18. Relying on the above provision, it was contended by the learned Counsel for A-2 that since Assistant Sub Inspector Kanshi Ram is not an officer of gazetted rank, he could not have authorised Head Constable Rattan Chand to carry out the search.

19. There is no merit in the contention raised on behalf of the accused. Section 41(2) of the Act has no application to the facts of the present case.

20. A bare reading of the provisions contained in section 41(2) of the Act shows that it applies only to a case when an officer of a gazetted rank has reason to believe either from his personal knowledge or on information given by any person and taken in writing that any person has committed an offence punishable under the Act.

21. If the officer concerned, having the reasons to believe either from his personal knowledge or on the basis of information received by him that an offence under the Act has been committed, is of a non-gazetted rank, then section 41(2) of the Act is not applicable.

22. Besides, section 41(2) of the Act talks of authorisation to carrying out a search of a building, conveyance or place. It does not talk about authorisation for the search either of the person or the bag and other belongings of the accused/suspect.

23. In the present case, Head Constable Rattan Chand had carried out the search of the bag Ex. P-4 belonging to A-2 on the asking of Assistant Sub Inspector Kanshi Ram.

24. Moreover, undisputedly Head Constable Kanshi Ram himself was empowered and competent under section 42 of the Act to carry out the search. Therefore, even in the absence of any direction of and/or authorisation by Assistant Sub-Inspector Kanshi Ram, he could have carried out the search of the bag Ex. P-4 belonging to A-2. No fault can be found therewith.

25. No other point was urged before us on behalf of the accused.

26. Considering the evidence coming on record, the two accused stand rightly convicted and sentenced by the Court below for the offnece under section 20 of the Act. No interference therewith is called for in the present appeals.

27. Resultantly, there being no merit in the present two appeals, the same are accordingly dismissed. The conviction and sentence of the two accused are affirmed and maintained.

28. Appeal Dismissed.