PREMA SHAH Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-1-37
HIGH COURT OF UTTARAKHAND
Decided on January 19,2013

Smt. Prema Shah Appellant
VERSUS
STATE OF UTTARAKHAND Respondents

JUDGEMENT

Alok Singh, J. - (1.) APPELLANT is assailing the judgment and order dated 27th February, 2008 passed by Sessions Judge, Bageshwar, in Sessions Trial No. 15 of 2007, whereby the learned Sessions Judge has found the appellant guilty for commission of an offence punishable under Section 20(b)(ii)(C) of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") as well as for commission of an offence punishable under Section 60 of the Excise Act, and has sentenced her to undergo rigorous imprisonment for a period of 20 years and to pay fine of Rs. 2,00,000/ -, failing which, to further undergo additional simple imprisonment for six months, for the offence punishable under Section 20(b)(ii)(C) of the Act; and has sentenced the appellant to pay fine of Rs. 10,000/ -, failing which, to undergo two months' simple imprisonment for the offence punishable under Section 60 of the Excise Act. Brief facts inter alia are that S.S.I. Diwan Singh Bisht (PW1), along with Constable Subhash Chandra (PW2) and other police personnel, left the Police Station on 29th April, 2007 at about 06:05 p.m. for patrolling purpose. The moment patrolling party reached near Jhulapul Tirana, they saw the appellant coming from the other side carrying one bag on her head. Police party signaled her to stop, however, she turned towards the narrow lane and started walking fast. However, she was stopped and was asked that, as the police personnel have suspicion on her, they want to check the bag being carried by her and, therefore, if she wants, she may be checked in the presence of City Magistrate or any other gazetted officer. To this, she replied that she has no objection in being searched by the police personnel. Therefore, PW1 called lady constables from the Police Station by phone. Sunita Rani (PW6), a female constable, and another female constable, namely, Geeta Rawat, reached on the spot and the search was conducted. The bag, being carried by the appellant, was opened, wherefrom, 20 quarters of country -made liquor and about 6 kilograms of charas, contained in four different bags, were recovered. All the recovered items were kept in a sealed cover, after taking samples of 50 -50 grams from each of the four bags containing the charas and, thereafter, appellant was taken to the Police Station and a chick First Information Report (Ex. Ka. 12) was registered. The contraband, so recovered, was kept in the Maal Khana after having obtained the counter -seal of the Station House Officer. Having investigated the matter, a charge -sheet was submitted against the appellant for an offence punishable under Section 8/20 of the NDPS Act and Section 60 of the Excise Act.
(2.) FROM the side of the prosecution, seven prosecution witnesses were examined and forensic examination report was submitted to say that the samples, taken from the contraband, were found to be charas. Having considered the entire material made available on the record, the learned Sessions Judge has passed the judgment and order under appeal. We have heard Mr. L.K. Tiwari, learned counsel appearing for the appellant, as well as Mr. A.S. Gill, learned Senior Government Advocate assisted by Mr. V.P. Bahuguna, Brief Holder for the State, and have carefully perused the record as well as various provisions of the Act.
(3.) HAVING had perused the statements of PW1, PW2 and PW6, following facts have emerged, which are as under: (i) Appellant was apprehended at about 08:15 p.m. of 29th April, 2007 in the Bageshwar market near Jhulapul. From the bag, being carried by her on her head, 20 quarters of country -made liquor as well as four bags containing 6 kilograms of charas were allegedly recovered. (ii) While the chick report was registered in the Police Station on 29th April, 2007 at 11:10 p.m., it has also come on record, as per the statements of PW1 and PW2, that the Police Station is hardly 1 km away from the place, where the appellant was apprehended. (iii) From Paper No. 11 of the paper -book, it is also proved that the contraband, so recovered from the possession of the appellant, for the first time, was produced before the Station House Officer in the morning of 30th April, 2007 and he had put his own seal on the bundles in the morning of 30th April, 2007 and, thereafter, the contraband, so recovered, was kept in the Maal Khana. (iv) It has come from the statements of PW1, PW2 and PW6 that, allegedly, 50 -50 grams charas was collected from each of the four bags as samples on the spot and that no sample was collected either in the presence of the Magistrate or any superior officer. (v) PW1 has stated that Gazetted Officers and Magistrates were residing within a kilometer of the place, wherefrom, appellant was apprehended. He has further stated that, before arresting the appellant, no permission or warrant was obtained from the Magistrate.;


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