Table of Content:- 

• Background of the case
• Issues Raised
• Statutory Provisions Involved
• Submissions of the Parties
• Judgment Analysis
• Conclusion
• Case Laws:-
• State of Punjab vs Baldev Singh [1999 6 (SCC) 172]
• Madan Lal and another vs. State of Himachal Pradesh [2003 (47) ACC 763]
• Megh Singh vs. State of Punjab [2003 Cr.LJ 4329]
• State of Himachal Pradesh vs. Pawan Kumar [2005 (52) ACC 710]

Jose Luis Quintanilla Sacristan vs State of U.P. [Criminal Appeal No. 757/ 2018]

Background of the case

On 15th February 2015, a check was going of India Gate situate at Indo Nepal Border by sub-inspector Ram Saran Yadav of Sonauli Police Station along with Sub Inspector Raj Murad Ali of Seema Suraksha Bal. they were checking people and vehicles over there. Around 2:10 P.M. they saw a foreigner coming from No Man Land after crossing Nepal Border with a trolley bag. Police Personnel present over there stopped him but a foreigner tried to avoid them but the police personnel starts checking his bag and they found 10 kg of Charas from his bag kept in a plastic bag. S.I. Raj Murad Ali of Seema Suraksha Bal offered the accused that if he wanted his search can be conducted before a gazetted officer. The foreigner refused the offer and asked the police personnel to conduct a personal search and he also reduces this in writing.

In search, police recovered 10 kg of Charas out of which 100 gm was taken out as a sample after sealing it properly. The sample was sent to the forensic science laboratory in Varanasi for chemical examination. When the Charas was recovered and the accused was arrested there was a public over there but none of them want to become the public witness. Information of the accused’s arrest was given to his sister Lushia Cutena who lives in Spain. 

Issues Raised

1. Whether the search conduct by the police personnel is in compliance with section 50 of the NDPS Act?
2. Whether the report of Forensic Science Laboratory which is not exhibit can be admitted as evidence or not?
3. Whether the conviction and sentence passed against the accused-appellant is justified or not?

Statutory Provisions Involved

• Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985

“No person shall–

(a)Cultivate any coca plant or gather any portion of coca plant; or

(b) Cultivate the opium poppy or any cannabis plant; or

(c) produce, manufacture, possess, sell, purchase, transport, warehouse, use, consume, import inter-State, export inter-State, import into India, export from India or tranship any narcotic drug or psychotropic substance, except for medical or scientific purposes and in the manner and to the extent provided by the provisions of this Act or the rules or orders made thereunder and in a case where any such provision, imposes any requirement by way of licence, permit or authorisation also in accordance with the terms and conditions of such licence, permit or authorisation:

Provided that, and subject to the other provisions of this Act and the rules made thereunder, the prohibition against the cultivation of the cannabis plant for the production of ganja or the production, possession, use, consumption, purchase, sale, transport, warehousing, import inter-State and export inter-State of ganja for any purpose other than medical and scientific purpose shall take effect only from the date which the Central Government may, by notification in the Official Gazette, specify in this behalf:

1[Provided further that nothing in this section shall apply to the export of poppy straw for decorative purposes.]”

• Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985

“Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,–

(a) Cultivates any cannabis plant; or

(b) Produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis,

Shall be punishable,–

1[(i) where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

(ii) Where such contravention relates to sub-clause (b),–

(A) And involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;

(B) and involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(C) and involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]”

• Section 23 of the Narcotic Drugs and Psychotropic Substances Act, 1985

“Punishment for illegal import into India, export from India or transhipment of narcotic drugs and psychotropic substances.— Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence or permit granted or certificate or authorisation issued thereunder, imports into India or exports from India or tranships any narcotic drug or psychotropic substance shall be punishable,–

(a) Where the contravention involves small quantity, with rigorous imprisonment for a term which may extend to 2[one year], or with fine which may extend to ten thousand rupees, or with both;

(b) where the contravention involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(c) Where the contravention involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years, and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees:

Provided that the court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees.]”

• Section 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985

“Conditions under which search of persons shall be conducted.

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

[(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section100 of the Code of Criminal Procedure, 1973 (2 of 1974)

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.]”

• Section 293 of the Code of Criminal Procedure, 1973

1. “Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any inquiry, trial or other proceeding under this Code.
2. The Court may, if it thinks fit, summon and examine any such expert as to the subject-matter of his report.
3. Where any such expert is summoned by a Court and he is unable to attend personally, he may unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the Court, if such officer is conversant with the facts of the case and can satisfactorily depose in Court on his behalf.
4. This section applies to the following Government scientific experts, namely;
   1. any Chemical Examiner or Assistant Chemical Examiner to Government;
   2. the Chief Inspector of Explosives;
   3. the Director of the Finger Print Bureau;
   4. the Director, Haffkeine Institute, Bombay;
   5. the Director or Deputy Director or Assistant Director of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
   6. The Serologist to the Government.
   7. Any other Government scientific Expert specified by notification by the Central Government for this purpose.”

Submissions of the Parties

The contention of the appellant

1. It was argued that the F.I.R. lodged, in this case, was delayed and the same was not explained. 
2. It was further submitted that the accused is a national of Spain and unable to understand the Hindi language and the consent letter prepared by the police personnel was in Hindi. It was urged that the police take the signature of the accused on blank paper and then wrote a matter of the consent letter.
3. There was no compliance of section 50 of the NDPS Act and the option to search before the Gazetted Officer was not given to the accused-appellant before search and the option of searching before Gazetted officer is given is not corroborated by independent evidence.
4. The counsel also argued that that the police planted the Charas into the appellant’s bag to extract illegal money from him.
5. It was submitted that there was no forensic report was submitted before the court and therefore, it cannot be said that the sample collected by the police is Charas. 

The contention of the Respondents

1. Learned AGA submitted on behalf of the state that the prosecution witnesses testify that the police personnel explained the entire proceeding to the accused in English and the same was understood by the appellant.
2. It was argued that the argument of the appellant was wrong as the market value of the Charas recovered is 1 crore and hence it is not possible to plant such a thing but it is hard to prove as no one want to become a public witness.
3. It was also argued that before the trial court also accused-appellant stated that police demand him money and when he refused to give they planted this Charas and the burden of proof lies upon the accused-appellant to prove that but he was failed to provide evidence for the same. 

Judgment Analysis

The court referred to the judgment of State of Punjab vs Baldev Singh [1999 6 (SCC) 172] in which it was held that:

“On its plain reading, Section 50 of the Act, would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search contraband under the NDPS Act, is also recovered, the requirements of Section 50 of the Act are not attracted.”

The court relied upon the following judgments section 50 is applied in the case of personal search and not in the situations where the search was given effect otherwise than personal search:-

• Madan Lal and another vs. State of Himachal Pradesh [2003 (47) ACC 763]Megh Singh vs. State of Punjab [2003 Cr.LJ 4329]
• State of Himachal Pradesh vs. Pawan Kumar [2005 (52) ACC 710]

The court observed that in the present case 10 kg of Charas has been recovered from the trolley bag of the accused and not in person therefore it doesn’t attract section 50 of the NDPS Act. The court also observed that the argument of the appellant counsel that accused appellant’s signature was taken on blank paper but he was failed to prove the same before the court. And as far as the Hindi language of the consent letter was concerned the arresting witness had testified that the consent had been translated and read over to the accused in English and the accused understood the English language. 

The court stated that Hon’ble Supreme Court in the State of Punjab vs Baldev Singh held that when the officer authorized to conduct a search is duty-bound to inform the concerned person to conduct a search before the nearest Gazetted Officer under the provisions of Section 50 (1) of the NDPS Act and that information is not required to reduce in writing. In the present case, neither the prior information was given to the accused nor the Charas was recovered from the accused in person therefore there is no contravention or non-compliance of section 50 of the NDPS Act. 

The court observed that there was no occasion to believe that there was an enmity between police personnel and the accused as the accused being foreign national. And hence the court is of opinion that there is no proof provided to believe that the police or the prosecution withheld or suppressed the public witnesses. 

The court observed that with regard to the forensic report it is shown that the report of Forensic Science Laboratory Varanasi for chemical examination of the sample is very much on record.  

Conclusion 

It was held by the court that the report of forensic science laboratory is a public document by relied upon section 293 Crpc. And from the bare reading of the section 293 Crpc, it is clear that the report submitted by the State Forensic Science Laboratory is very much admissible as evidence in the court of law and there is no need to call the director of the laboratory to testify the same. The report clearly states that the sample given out of the material found in the trolley bag of the accused is Charas and upheld the decision of the trial court and confirm the conviction and sentence passed by the trial court against the accused. And hence the present appeal has been dismissed by the Allahabad High Court.