Date of Judgment:
16.08.2021
Bench:
Hon'ble Ajai Tyagi, J.
Parties:
Appellant: Jose Luis Quintanilla Sacristan
Respondent: State of U.P
Overview
- On 15.2.2015, police personnel from Maharajganj Police Station and Seema Suraksha Bal (S.S.B.) were checking on the Indo-Nepal border. They saw a foreigner with a trolley bag coming from the 'No Man's Land' after crossing the Nepal border. The foreigner tried to flee, but when his trolley bag was opened and checked, 10 kg of charas were recovered in a plastic packet.
- When the foreigner was asked about himself, he stated that he is Spanish and his name is Jose Luis Quintanilla Sacristan (the appellant). The S.I. of S.S.B. gave the accused-appellant the option of having his personal search conducted before any Gazetted Officer, if he so desired. He refused to choose this option and instead stated that police officers may conduct a personal search. He also gave his written consent. The recovered charas weighed 10 kg, of which 100 gm was separated as a sample and sent to the Forensic Science Laboratory, Varanasi, for chemical analysis.
- The appellant, Jose Luis Quintanilla Sacristan, filed the appeal against the judgement and order dated 30.10.2017, issued by the learned Additional Sessions Judge, Fast Track Court-I, Maharajganj, convicting and sentencing the appellant to ten years R.I. and a fine of Rs.1,00,000/- (in default, six months imprisonment) under Section 8, read with Section 20 (b) (ii) (C) of the NDPS Act, 1985 and for ten years R.I. and fine of Rs.1,00,000/- (in default, imprisonment of six months) under Section 8, read with Section 23 (C) of NDPS Act, 1985.
Issues
- Whether there was compliance with Section 50 of the NDPS Act, 1985 or not?
- Whether the report submitted by the Forensic Science Laboratory, if not exhibited, can be used as evidence or not?
- Whether the appellant was rightly convicted and sentenced or not?
Legal Provisions
Section 8, NDPS, Act, 1985: Production, manufacture, possession, sale, purchase, transport, storage, use, and consumption of narcotic drugs or psychotropic substances is prohibited, except for medical or scientific purposes and under this Act and its rules and orders.
Section 20, NDPS Act, 1985: Those in possession of cannabis plants or cannabis in commercial quantities can face up to twenty years in prison and a fine of up to one lakh rupees, with the maximum fine being two lakh rupees.
Section 23, NDPS Act, 1985: Punishment for illegal import into India, export from India, or transshipment of narcotic drugs and psychotropic substances in commercial quantities includes rigorous imprisonment for a term of not less than ten years but not more than twenty years, as well as a fine of not less than one lakh rupees but not more than two lakh rupees.
Section 50, NDPS Act, 1985: When any officer duly authorised under Section 42 is about to conduct a search under the provisions of Sections 41, 42, or 43, he shall, if the person so requests, immediately transport the person to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
Section 293, Cr.P.C, 1973: Any document purporting to be a report, under the hand of a Government scientific expert, to whom this Section applies, may be used as evidence in any inquiry, trial, or other proceedings under the CrPC.
Judgement
All the contentions raised by the appellants were considered and answered in the judgement.
- Firstly, the appellant's learned counsel argued that the first information report was delayed, but no explanation was provided. The Bench stated that according to the F.I.R., the accused was arrested at 14:10 on 15.2.2015, and the F.I.R. was filed at 16:45 on the same day. After arresting the suspect, a recovery memo was prepared on the spot, and the suspect was taken to the police station three km north. A first information report was thus lodged immediately.
- Next, the appellants stated that the police did not speak Spanish, so they could not have explained the search, arrest, etc., to the accused. It is also not in the prosecution's case that the police party had a translator to assist the accused appellant. The prosecution witnesses clearly stated that they explained the entire proceedings to the accused in English, which the appellant clearly understood. Hence, the Court observed that there was no language barrier.
- Thirdly, the appellant contended that he was offered a search in front of a gazetted officer, which he declined. Still, any independent witness does not corroborate this. Counsel also stated that the accused was not given the option of being searched before a Gazetted Officer or a Magistrate before his belongings were searched. The Bench cleared that the recovery memo shows that 10 kg charas was recovered from the appellant's bag and not from him personally. Hence, recovering the charas from the trolley bag does not attract Section 50 of the NDPS Act, 1985. Police personnel searched the accused after recovering the charas. The accused denied being searched before a Gazetted Officer.
- Next, because the report from the Forensic Science Laboratory is not on the file, learned counsel for the appellant argued that the prosecution did not prove that the sample sent to the laboratory was found to be charas. The Bench stated that it did not agree with the submission mentioned above by the counsel for the appellant in this regard. According to a review of the records, the chemical examination report of the Forensic Science Laboratory in Varanasi is very much on record.
- Further, the appellant's counsel objected that it is not exhibited if such a report exists and thus cannot be read as evidence. The Court further clarified that the Report of Forensic Science Laboratory is a public document. Relevantly, Section 293 Cr.P.C. was also quoted. Hence, as per the provision, the State Forensic Science Laboratory report is admissible in evidence. The Director of that laboratory is not required to testify. The sample sent to it was found to be charas, according to the report on file.
Conclusion
Henceforth, the learned counsel for the appellant did not raise any other point or argument in their appearance before the Court. The Court determined that the prosecution established its case beyond reasonable doubt. The appellant was rightly convicted and sentenced by the learned trial court. Thus, the Court ordered that the appeal was dismissed because of a lack of merits.
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