Crl. A. No. 28 of 2015. Case: Sangita and Ors. Vs State of Sikkim. Sikkim High Court

Case NumberCrl. A. No. 28 of 2015
CounselFor Appellant: Ajay Rathi, Rahul Rathi, Sushant Subba, Pramit Chhetri and Phurba Diki Sherpa, Advocates and For Respondents: Karma Thinlay Namgyal, Additional Public Prosecutor and S.K. Chettri, Assistant Public Prosecutor
JudgesMeenakshi Madan Rai, J.
IssueIndian Evidence Act, 1872 - Section 114(g); Indian Penal Code 1860, (IPC) - Sections 177, 34; Narcotics Drugs and Psychotropic Substances Act, 1985 - Sections 42, 42(1), 42(2), 50, 57; Sikkim Anti Drugs Act, 2006 - Sections 14, 17(3), 21, 21(1), 21(2), 24, 24(3), 24(4), 30, 9, 9(b)(d), 9(d)
Judgement DateMarch 16, 2016
CourtSikkim High Court


Meenakshi Madan Rai, J.

  1. Aggrieved by the Judgment and Sentence dated 30-11-2015 of the Court of the Special Judge (SADA), South Sikkim at Namchi, in Sessions Trial (SADA) Case No. 13 of 2015, which convicted both the Appellants and handed out sentence as follows:--

    "(i) under Section 9(d) of the Sikkim Anti Drugs Act, 2006 (for short "SADA") read with Section 34 of the Indian Penal Code, 1860 (for short "IPC") - simple imprisonment for a period of 2 (two) years and fine of Rs. 1,00,000/- (Rupees one lakh) only, each, with a default clause of imprisonment; and

    (ii) under Rule 17(1) of the Sikkim Anti Drugs Rules, 2007 (for short "SAD Rules") read with Section 14 of the SADA and Section 34 of the IPC - simple imprisonment for a period of 6 (six) months and a fine of Rs. 20,000/- (Rupees twenty thousand) only, each, with a default clause of imprisonment with the sentences of imprisonment being ordered to run concurrently, this Appeal assails both."

  2. The Appellants were booked for the offence under Sections 9/14 of the SADA on 07-03-2015, consequent to them allegedly being found in possession of large quantities of controlled substances during checking by the Police at the Melli Check Post, South Sikkim, at around 1900 hours, when they were travelling in a Bolero Vehicle, bearing registration No. SK 04 J/0752 from Siliguri, West Bengal to Jorethang, South Sikkim. An FIR, was lodged by P.W.3 and registered by Melli Police Station, South Sikkim, bearing No. 5(3)15 dated 07-03-2015. During the course of investigation, the Appellants were arrested. The controlled substances allegedly seized from them were forwarded to RFSL, Saramsa, Ranipool, East Sikkim, for Chemical Analysis and were found to contain controlled substances. On completion of investigation, charge-sheet was submitted against both Appellants under Sections 9(b)(d)/14 of SADA read with Section 177 IPC.

  3. The Learned Trial Court framed charge against the Appellants and on examination of 9 (nine) Prosecution Witnesses (for short "P.W."), finding the Appellants guilty, convicted and sentenced them as detailed hereinabove.

  4. Before this Court, the prayer of the Appellants was that although the Trial Court came to a finding that the case was one of "chance recovery" to the contrary, it is one based on prior information since P.W.3 had informed the Investigating Officer (for short "I.O.") of their suspicion after they had checked M.O.XI and lodged Exhibit 1, the FIR. It was thereafter that the I.O. reached the spot and made further search and seizure, therefore, the I.O. did not "stumble" upon the controlled substances to make it a chance recovery. It was further urged that the search of the Appellants was conducted by a male Constable after sunset, flouting the provision of Section 24(4) of the SADA neither was any option afforded to the Appellants to be searched either before a Gazetted Officer or Magistrate as mandated by the same Section. It was also contended that there was non-compliance of Section 30 of the SADA which contemplates a report being made by the Officer conducting search and seizure to his immediate superior within forty-eight hours of the search besides non-compliance of Sections 17(3) and 21(2) of the SADA. That, Material Objects (for short "M.O.") were not categorically identified by the PWs. That, there are infirmities in the evidence of P.Ws 3, 5 and 6 and other glaring contradictions in the evidence of PWs 3, 5 and 1, apart from which P.W.6 appears to be a stock witness of the Prosecution and hence his evidence is unreliable.

  5. Attention of this Court was also drawn to the FIR, Exhibit 1, which according to Learned Counsel was lodged before the search and seizure was carried out as evident from the time noted on Exhibit 1 the FIR, in contrast to Exhibit 5 and Exhibit 6 (the Seizure Memos) thereby making the Prosecution case suspect. He places reliance on the decision of this Court in State of Sikkim v. Jigmee Dorjee Bhutia 2010 CRI.L.J. 1121 which referred to Pall v. State of Punjab (1996) 1 RCR (CRIMINAL) 802, wherein it was elucidated by the Hon'ble Punjab and Haryana High Court that there was no reasonable basis in Law to arrest the Accused prior to conducting a search in his house because at the relevant time the Accused had not committed any offence. The offence would be committed when he was found in illegal unauthorised possession of the alleged contraband articles. The decision of the Hon'ble Delhi High Court in Kalu Ram v. State (1999) 4 CCR 240 was also relied on by this Court in Jigmee Dorjee Bhutia 2010 CRI.L.J. 1121. It was held therein that recording an FIR prior to alleged recovery of the contraband articles would result in shaking the foundation of the Prosecution case to an irreparable extent.

  6. Reliance was placed on the decision of this Court in Crl.A. 13 of 2015 dated 16-11-2015 in the matter of Nurul Haque v. State of Sikkim while raising the argument that Vehicle Entry Register of Melli Check Post was not produced by the Prosecution inasmuch as non-production of the Register of Vehicular Movement maintained at the Melli Check Post would be a negative inference against the Prosecution in terms of Section 114(g) of the Indian Evidence Act, 1872. It is vociferously contended that apart from the arguments advanced hereinabove the Prosecution case being fraught with contradictions and anomalies is unreliable thus the impugned Judgment and Sentence be set aside.

  7. Resisting the arguments placed by the Appellants, Mr. Karma Thinlay Namgyal, Learned Additional Public Prosecutor, for the State, submitted that the I.O. on 08-03-2015 had submitted a Report, Exhibit 8, to the Senior Superintendent of Police, South Sikkim, Namchi, in compliance of Section 30 of the SADA. Assuming that this had not been done, a three Judge Bench of the Hon'ble Apex Court in Sajan Abraham v. State of Kerala (2001) 6 SCC 692 has observed that the Section 57 of the NDPS Act similar to Section 30 of the SADA is not mandatory in nature nor does it prejudice the Accused. That the Prosecution under this Act was instituted by the Superintendent of Police, South District and the charge-sheet was forwarded to the Court Inspector duly complying with the provision of Section 17(3) of the SADA. That as the case is of one of chance recovery, there is no necessity of complying with Section 21(2) or Section 24(3) of the SADA. In this line of argument it was contended that even if the I.O. had suspected that the ladies bags contained contraband substances, mere suspicion cannot be equated with "reason to believe". On this count, reliance was placed on State of Himachal Pradesh v. Sunil Kumar (2014) 4 SCC 780 where the Hon'ble Supreme Court held that "Mere suspicion, even if it is "positive suspicion" or grave suspicion cannot be equated with "reason to believe". These are two completely different concepts."

  8. That merely because a Prosecution Witness is a stock witness his evidence cannot be disbelieved, to fortify this argument reliance was placed on Nana Keshav Lagad v. State of Maharashtra (2013) 12 SCC 721; Govindaraju alias Govinda v. State by Sriramapuram Police Station and Another (2012) 4 SCC 722 and Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay (2013) 13 SCC 1.

  9. While admitting that there are minor anomalies in the evidence of P.W.3 and P.W.7, Learned Additional Public Prosecutor submits that such minor contradictions do not affect the Prosecution case and has drawn the attention of this Court to the decision in Gurunath Donkappa Keri and Others v. State of Karnataka (2009) 13 SCC 34.

  10. Arguing on Section 24 of the SADA while drawing a parallel with Section 50 of the NDPS Act, it was pointed out that although the Hon'ble Apex Court in Yasihey Yobin and Another v. Department of Customs, Shillong (2014) 13 SCC 344 in a Bench comprising of two Judges held that the "test of inextricable connection" is to be...

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