Mere fact as seizure witness appeared as DW would not lead to vitiate the proceedings

Harshit Sharma | Amity Law School, Madhya Pradesh | 5th February 2020

Gurmail Chand V/s. State of Punjab CRIMINAL APPEAL NO.149 OF 2020

FACTS OF THE CASE

1. This appeal has been filed against the judgment of the High Court dated 13.01.2016 in CRA No. S-764-SB of 2003 by which judgment the appeal of the appellant challenging his conviction and sentence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred as the ‘NDPS Act’) has been dismissed.
2. The prosecution states that, S.I. Gurcharan Singh accompanied by ASI Teja Singh H.C. Major Singh and other police officials were present on the bridge canal minor in the area of village Khanjarwal when Hari Krishan s/o Bhajan Lal r/o village Raikot arrived there on 16-10-1998. At around 8.30 AM, Gurmail Chand, the appellant-accused was seen coming and stopped on suspicion. On being enquired about the name and parentage etc., a polythene bag was found lying on the foot mat of the scooter.
3. The DSP arrived at the spot at 9.15 a.m. and he disclosed his identity to the accused-appellant and also apprised him of his rights of search before some other Gazetted Officer or Magistrate. The accused-appellant reposed confidence in the DSP and consent statement of the accused-appellant in this regard was recorded as Ex.PB. On direction of the DSP, Harjit Singh Pannu, SI Gurcharan Singh conducted the search of the polythene bag, from which 10 Kgs. opium was recovered. Two samples of 10 gms. each were separated, sealed and sent for examination.
4. The appellant was charge-sheeted and faced the trial. Hari Krishan, who was witness of seizure, had appeared on behalf of the accused as DW1. Appellant’s statement under Section 313 Cr.P.C. was recorded.
5. The Trial Court on considering the evidence, convicted the accused to undergo rigorous imprisonment for 10 years and to pay ₹1,00,000/- fine (in default 2 years rigorous imprisonment).

Arguments from the side of Appellant

Learned counsel for the appellant questioning the judgment of High Court contends that Hari Krishan, who was claimed to be independent witness of the seizure, had appeared as DW1 and had stated that in his presence no seizure was made and he had signed on the blank papers. He further submits that seizure having not been proved in accordance with law, Courts below have committed error in convicting the appellant. He further submits that there is violation of Section 57 of the NDPS Act, since the report was not sent to the Higher Official within the period as prescribed, which has vitiated the entire proceeding. He further submitted that case property was not produced in the Court which itself was sufficient to disbelieve the entire prosecution story. He submitted that what was produced in the Court, the seal was illegible.

Arguments from the side of Respondent

Learned counsel for the respondent contended the factum that mere non-compliance of provision of NDPS Act shall not vitiate the entire proceedings, keeping it just a mere procedural non-compliance which shall not entirely affect the judicial proceedings. Furthermore, the sole witness becoming the Defence witness shall not affect the credibility of the statement of the witness in respect of the seizure made before him. 

ISSUES RAISED

1. Whether non-compliance of procedure u/s. 57 of NDPS Act will vitiate the entire proceedings and the trial? 

RULING OF THE COURT/ THE COURT HELD THAT

While dismissing the appeal, the court finds the following observations: 

1. “The mere fact that the witness of seizure Hari Krishan has appeared as DW1 does not led to the conclusion that the entire prosecution story has to be disbelieved. There are signatures of Hari Krishan in the seizure memo along with other police officers. The Trial Court as well as the High Court has rightly accepted the seizure, which was held to be in accordance with law. DW1 has not denied his signatures on the seizure memo rather his excuse was that it was taken on the blank paper which was rightly disbelieved by the Courts below.”
2. “In so far as production of the case property, the Judicial Magistrate himself has appeared in the witness box and deposed that it was produced in the Court. The mere fact that one seal was illegible does not vitiate the proceeding.”
3. “In so far as submissions on the basis of Section 57 of NDPS Act is concerned, it has been held that the said provision is not to be interpreted to mean that in event the report is not sent within two days, the entire proceeding shall be vitiated. The provision has been held to be directory and to be complied with but mere not sending the report within the said period cannot have such consequence as to vitiate the entire proceeding. A three-Judge Bench of this Court in Sajan Abraham vs. State of Kerala has held that non-compliance of Section 57 would not vitiate the prosecution case.”