IN THE

HON’BLE HIGH COURT

AT HARINAGAR

YEAR: 2016

THE CASE CONCERNING: OFFENCE u/s 20 r/w 31 NDPS

UMAKANT AND ANOTHER

V.
STATE OF HARINAGAR

WRITTEN SUBMISSION FOR THE DEFENSE

TEAM: J

0
 TABLE OF CONTENTS

INDEX OF AUTHORITIES…………………………………………………………………..ii

JURISDICTION……………………………………………………………………………….iii

STATEMENT OF FACT………………………………………………………………………iv-v

LEGAL ISSUES……………………………………………………………………………….vi

SUMMARY OF ARGUMENTS………………………………………………………………vii

THE ARGUMENTS ADVANCED…………………………………………………………...1-15

PRAYER………………………………………………………………………………………16

i
 INDEX OF AUTHORITIES

TABLE OF BOOKS:

1. Baljinder Singh Sra, Narcotic Drugs And Psychotropic Substances Act, 1985, 1st edn.,
Prop. Singla Law Agency, Chandigarh, 2021.
2. Avtar Singh, Principles of Law of Evidence, 17th edn., Central Law Publications,
Allahabad, 2009.
3. S.N. Misra, Indian Penal Code, 19th edn., Central Law Publications, Allahabad, 2013.
4. Ratanlal & Dhirajlal, The Code of Criminal Procedure, 23 rd edn., Lexis Nexis, Haryana,
2020.

TABLE OF CASES:

Abdul Rashid Ibrahim Mansuri v. State of Gujarat [A.I.R 2000 SC 821]

Akmal Ahmad v. State of Delhi [1999 (2) RCC 297 (SC)]

Apren Joseph v. State of Kerala [A.I.R 1973 S.C. 1]

Baldev Singh v. State of Haryana [2016 Cri.L.J. 154]

Carroll v. United States [267 U.S. 132 (1925)]

Hardip Singh v. State of Punjab [A.I.R 2009 S.C. 432]

Kashmirilal v. State of Haryana [(2014) 1 S.C.C. (Cri.) 441]

Navdeep Singh v. State of Haryana [CRM No. 16764 of 2014]

Ramesh Kumar v. State of Himachal Pradesh [2002 Cri.L.J. 1880]

Satyavir Singh Rathi v. State thr. C.B.I [2011 Cri. L.J. 2908 (S.C.)]

State of Punjab v. Baldev Singh [A.I.R 1999 S.C. 2378]

Vijaysinh Chandubha Jadejav v. State of Gujarat [(2011) 1 S.C.C. 609]

Zahira Habibullah Sheikh and anr. V. State of Gujarat and ors. [(2004) 4 SCC 158]

ii
 JURISDICTION

The Hon’ble court has jurisdiction to try the instant matter under Section 374(2) of the Code of
Criminal Procedure, 1973 and Section 36B of The Narcotic Drugs and Psychotropic Substances
Act, 1985.

Section 374(2): Any person convicted or a trial held by a session judge or additional session
judge or on a trial held by any other court in which a sentence of imprisonment for more than
seven years may appeal to the High Court.

Section 36B: The High Court may exercise, so for as may be applicable, all the powers
conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973 on a High
Court, as if a special court within the local limits of the jurisdiction of the High Court were a
Court of Session trying cases within the local limits of the jurisdiction of the High Court.

iii
 STATEMENT OF FACTS

1. That on 18th August 2016 Umakant was driving his Maruti Gypsy having registration
number HN34-0420 from Malal to Namoor accompanied by Saju Ram. About 8:30 pm,
the said vehicle was stopped at a Police Naka near Bhagaul by police on duty. Police
team deployed at naka duty comprised of SI Naresh Kumar, HC Dile Ram, Constable
Prem Singh and Constable Ram Lal of Police Station Bhagaul.
2. Umakant hesitated for the search. Nevertheless the Search of the vehicle was conducted
by HC Dile Ram in the presence of SI Naresh Kumar.
3. And a blue bag was found in the dikki of the vehicle and police became suspicious of the
contents of the bag. Therefore SI Naresh Kumar called Mr. Sunder Singh, a resident of
nearby village Hathithan and one Mr. Jaswant, whom was on his way to Muhshehar in
his Alto car bearing Registration No. HN34-1828 was stopped at Naka and the search of
bag was conducted in their presence.
4. That during search a Charas like substance about 2 kg was found in a polythene packet
and during all this Umakant slipped away from the spot. Thus a recovery memo of one
packet of one packet of contraband substance was prepared and signed by two
independent witnesses. Thereafter, personal search of Saju Ram was conducted after
giving him due option of being searched in front of Magistrate or Gazetted officer .He
submitted to search by police officer then 100 grams of Charas was found from his
pocket too. Thereafter a search memo was prepared and signed by independent witnesses
Sunder Singh and Jaswant and SI Naresh Kumar and HC Dile Ram.
5. All the recovered material and Maruti Gypsy along with Saju ram were taken into
custody and after inspection it was found that Maruti Gypsy is owned by Mrs. Sarla
resident of Namoor. The quantity of substance (Charas) found in Gypsy and Saju Ram
was weighed 1802gms and 112gms respectively. The matter was reported to Inspector
Joginder Singh, Officer-In-Charge, Police Station Bhagaul.
6. That FIR was recorded u/s 20 and 29 of the NDPS Act, 1985 against Umakant, Saju Ram
and Sarla, on 19th August 2016 at 10: am. Case was investigated by SI Sanjiv Sharma.
Umakant was arrested from his house at Namoor in the evening of 19th August 2016.

iv
7. That Two sealed samples from each packet were sent to Forensic Lab Julanga on 26th
August 2016.
8. After due investigation and interrogation it was founded that, Umakant went to
pilgrimage from 4th august 2016 to 17th august 2016.Then he went to saju ram house on
18th august 2016 where they agreed to sell the consignment of Charas brought from
Namoor by Umakant.
9. It was founded that Umakant did not have any means to earn his livelihood; still he was
leading a lavish and comfortable life.
10. Police report revealed that, Saju ram had earlier been convicted for selling Charas in
2002 and he was sentenced to rigorous imprisonment for 5years and fine of Rs. 50,000
under sec 20 of NDPS Act, 1985.
11. The police filled Challan u/s 173 of Cr.P.C on 15th January 2017 against Umakant, Saju
Ram and Sarla accused for the offence u/s 20 and 29 of the NDPS Act, 1985, the copies
of which were given to the accused.
12. The special court relying on all the facts and evidences submitted before it, convicted the
appellants but acquitted the third accused. Also, enhanced punishment was awarded to
Appellant No.2 u/s 31 of the said Act.

v
 STATEMENT OF ISSUES

I. Whether the present appeal is maintainable or not?

II. Whether the Trial Court has erred in convicting the accused persons?

vi
 SUMMARY OF ARGUMENTS

I. WHETHER THE APPEAL IS MAINTAINABLE OR NOT?

It is humbly submitted that the special court has rightly appreciated the facts
presented by the parties and has carefully scrutinized the contentions of both the
parties. The grounds of appeal have either been dealt in the lower court or are in
complete violation of the provisions of the Indian Penal Code.

II. WHETHER THE TRIAL COURT HAS ERRED IN CONVICTING THE ACCUSED
PERSONS?
The procedure, as laid down under the 1985 Act has been duly in the present case. The
facts and evidences as stated have proved the presence of actus reus and mens rea on
behalf of Appellants. The story established by the Appellants holds no ground as it is
devoid of any corroborative evidence. The quantum of punishment awarded to
Appellant No. 2 is completely justified on the grounds of previous conviction.

vii
 THE ARGUMENTS ADVANCED

I. WHETHER THE APPEAL IS MAINTAINABLE OR NOT?

THAT THE PRESENT APPEAL IS NOT MAINTAINABLE ON THE GROUNDS OF

RE-APPRECIATION OF THE FACTS AND INTRODUCTION OF NEW AND
CONTRADICTING PLEA

It is most respectfully submitted before this Hon’ble Court that the Appellants have preferred the
present appeal on the following grounds:

1. That the Special Court has failed to rightly appreciate the facts of the case
where the prosecution has utterly failed to prove the offences against them;
2. That the procedure alleged to be adopted in search and seizure does not
stand scrutiny of law, and it also does not satisfy the safeguards provided under
sec.50 of the NDPS Act,1985; and
3. That the Special Court has taken the factum of previous conviction of
Appellant No.2 without framing charges for that and proper evidence on record.

All the grounds are against the appellants with no merits in it thus, the present appeal is not
maintainable.

In regard to the first ground Section 35 & 54 of the Said Act provides for presumption of mens
rea on the parts of accused and presumption of guilt of the accused. These presumptions are
exceptions to the general rule in which the burden of proof is on the prosecution to prove the
guilt of the Accused. However, these sections make it clear that burden of proof is on the
1
accused to disprove the presence of a guilty mind under this case.

Section 35 Presumption of culpable mental state.—

(1) In any prosecution for an offence under this Act which requires a culpable mental state of the
accused, the court shall presume the existence of such mental state but it shall be a defence for

1
Baljinder Singh Sra, Narcotic Drugs And Psychotropic Substances Act, 1985 233 (Prop. Singla Law Agency,
Chandigarh, 1st edn., 2021)

1
the accused to prove the fact that he had no such mental state with respect to the act charged as
an offence in that prosecution.

Section 54- Presumption from possession of illicit articles.—

In trials under this Act, it may be presumed, unless and until the contrary is proved, that the
accused has committed an offence under this Act in respect of—

(a) any narcotic drug or psychotropic substance or controlled substance;

(b) any Charas poppy, cannabis plant or coca plant growing on any land which he has
cultivated;

(c) any apparatus specially designed or any group of utensils specially adopted for the
manufacture of any narcotic drug or psychotropic substance or controlled substance; or

(d) any materials which have undergone any process towards the manufacture of a narcotic
drug or psychotropic substance or controlled substance, or any residue left of the materials from
which any narcotic drug or psychotropic substance or controlled substance has been
manufactured,

for the possession of which he fails to account satisfactorily. 2

In the case of Abdul Rashid Ibrahim Mansuri v. State of Gujarat 3, the court observed that the
burden of proof as to the knowledge of the substance contained in the gunny bags was on the
accused rather than the prosecution.

Thus the first ground of the appeal by the appellants contending the failure of the prosecution to
prove the case is absolutely baseless and against the law because the burden of proof is upon the
appellants. Also in the present case no substantial question of law is involved and interference is
based upon pure question fact. It is a settled position of law that the appellant court (i.e. High
court) can go into the question of law or legal procedure only; it cannot re-examine the
soundness of facts so keeping this legal position in mind, it is apparent that present court should

2
Id at 234

3
AIR 2000 SC 821.

2
not go into facts and when the special court has rightly appreciated all the facts of the case and
scrutinized all the evidences brought before it while passing the judgment.

In the present matter, the Special Court duly noted the findings of the Investigating Officer
(Sanjiv Sharma) that search and seizer in regard to the contraband substances was conducted at
the Police Naka on the Bhagaul-Muhshehar Road and the Forensic Science Lab report confirmed
that the contraband substances ceased contained Charas. Thus one of the 2 primary grounds of
appeal on behalf of the appellants in regard to the appreciation of facts and burden of proof on
the prosecution is baseless.

(2) The second ground of appeal by the Appellants pertaining to procedural compliance is ill
founded and shows Mala-fide intention on the part of the Appellants. At the special court, the
appellants have clearly denied the fact as to any search or seizure being done by the police at the
Police Naka on Bhagaul-Muhshehar Road. Beside this, PW-2, who was declared hostile, deposed
before the court that he had not witnessed any search or seizure at the police Naka on that day.
Rather he was called to the police station on the following day and his signatures were taken on
some papers, the content of which he was unaware.

These facts being on record, the Appellants now have raised the present appeal on the ground
that safeguards given under section 50 have not been complied with. This ground of appeal is in
contradiction to the facts on record. When according to the Appellants No search or seizure has
taken place then the question of compliance of requirements given under section 50 is moot. In
the present case, the Appellants, for the reason best known to them, did not raise any plea at the
special court in regard to the compliance of procedure but clearly refused as to any search and
seizure to have taken place at the police Naka.

Section 50-conditions under which search of a person shall be conducted-

(1)where any officer duly authorized under section 42 is about to search any person under the
provisions of section 41,section42 or section 43,he shall, if such person so requires ;take such
persons without unnecessary delay to nearest Gazetted officer of any of the departments
mentioned in section 42 or to the nearest magistrate.

3
(2)where an officer duly authorized under section 42 has reason to believe that it is not possible
to take the person to be searched to the nearest gazettes officer or Magistrate without the
possibility of the person to be searched parting with possession any narcotic drug or psychotropic
substance or controlled substance or article or document, he may instead of taking such person to
the nearest gazette officer or magistrate, proceed to search the person as provided under section
100 of the code of criminal procedure,19733.4

(3) Section 165 of Cr.P.C: Search by Police Officer-

Whenever an officer in charge of a police station or a police officer making an investigation has
reasonable grounds for believing that anything necessary for the purpose of an investigation into
any offence which he is authorized to investigate, may be found in any place within the limits of
the police station of which he is incharged or which he is attached and that such thing cannot in
his opinion be otherwise obtained without undue delay, such officer, may after recording in
writing the grounds of his belief and specifying in such writing, so far as possible, the thing for
which search is to be made, search, or cause search to be made, for such thing in any place
within the limits of such station. 5

In an English case, Carroll V. United States6, it was held that vehicles may be searched
without warrants if the officer undertaking the search has reason to believe the vehicle contain
contraband .The court explained that the mobility of vehicle allow them to quickly moved from
the jurisdiction if time were taken to obtain warrant.

Thus, the mala-fide intention on the part of the Appellant is apparent and such a ground of
appeal to be dismissed. It is also requested to the Hon’ble court to take a sub-Moro Action u/s
193 of I.P.C. (punishment for false evidence-who intentionally gives false evidence in any of
a judicial proceedings, or fabricates false evidence for the purpose of being used in any
stage of a judicial proceedings, shall be punished with imprisonment of either description

4
Supranote 1 at 362
5
Ratanlal & Dhirajlal, The Code Of Criminal Procedure 277(Lexis Nexis, Haryana, 23rd edn., 2020)
6
267 U.S. 132 (1925)

4
of a term which may extend to 7 years and shall also be liable to fine) against the appellant
for giving false evidence as to denial of any search and seizure to have taken place. 7

In the Landmark case of Zahira Habibullah sheikh & Anr. V. State of Gujarat & ors8, “the
Hon’ble Supreme Court convicted the star witness for turning hostile in the best bakery case as
she had changed her stand in the case on different hearings before the court. She was given
imprisonment of a year along with a fine of Rs 50,000.keeping this in mind the Appellants in the
present case are also required to be convicted for changing their stand in regard to search and
seizure.”

(3) In regard to the third ground of appeal, according to the appellants, the special court has
decided the issue of previous conviction of the Appellant No.2 without framing any charge in
that regard. but the special court has added the charge of previous conviction before deciding the
issue as the punishment awarded by the special court under section 20 read with 31(1)of the
impugned Act where section 31 deals with enhanced punishment for previous conviction. The
special court is empowered under Sec.216 of code of criminal procedure,1973 to alter or add any
charge at any time before the judgment is pronounced so where the punishment has been made
under section 31(1),it is apparent that a requisite charge must have Also been made at the special
court before the judgment was pronounced.

Section 20: Punishment for contravention in relation to cannabis plant and cannabis.

Whoever, in contravention of any provisions of this Act or any rule or order made or condition of
licence granted there under,—

(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

[(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

7
S.N. Misra, Indian Penal Code 388(Central Law Publications, Allahabad, 19th edn., 2013)

8
(2004) 4 SCC 158

5
(ii) where such contravention relates to sub-clause (b),—

(A) and involves small quantity, with rigorous imprisonment for a term which may extend to six
months, 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.]9

Section31-Enhanced punishment for offences after previous conviction.—(1) If any person

who has been convicted of the commission of, or attempt to commit, or abetment of, or criminal
conspiracy to commit, any of the offences punishable under this Act is subsequently convicted of
the commission of, or attempt to commit, or abetment of, or criminal conspiracy to commit, an
offence punishable under this Act with the same amount of punishment shall be punished for the
second and every subsequent offence with rigorous imprisonment for a term which may extend
to [one and one-half times of the maximum term] of imprisonment, and also be liable to fine
which shall extend to [one and one-half times of the maximum amount] of fine. 10

Hence it can be concluded that all the grounds raised by the Appellant are bogus, whimsical and
frivolous notwithstanding the scrutiny of Law. It is also contended that present appeal is an
attempt by the Appellants to escape the punishment by somehow abusing the process of law and
allowing any action which results in injustice and prevent promotion of justice is an abuse of
process of law. Therefore the present appeal is not Maintainable and thus is bound to be
dismissed.

9
Supranote 1 at 194
10
Id at 217

6
 II. WHETHER THE TRIAL COURT HAS ERRED IN CONVICTING THE
ACCUSED PERSONS?

1. It is submitted that all the necessary components to prove the offence under the NDPS
Act have been proved and hence, the conviction should be upheld.
A. PRESENCE OF THE APPELLANTS ON THE SPOT AND RECOVERY OF
CONTRABAND
2. It is humbly submitted that the Appellants, namely Umakant, Appellant No.1 and Saju
Ram, Appellant No. 2, have themselves averred in their written submission that they on
their return journey from Malal to Namoor at about 8 pm on 18th August, 2016 and
thereafter halted at the Police Naka near Bhagaul near Bhagaul –Muhshehar road.
According to Section 56 of Indian Evidence Act, their presence on the spot is not
controverted, thus established.

Section 56: Fact judicially noticeable need to be proved: No, fact of which the Court will
take judicial notice need to be proved. 11

Thus, if the court is bound to take notice of a particular fact the parties are spared of the burden
of proving the fact.

3. It is humbly stated that when the appellants were signaled to stop at Nakka they showed
mild resistance, by making excuse of some urgent work in Namoor.
4. This resistance and the contraband which was found in the joint possession of the two
parties clearly shows that both Umakant and Saju Ram were aware of the fact that they
were in the possession of the contraband.
5. A blue bag was lying in the dikki of the vehicle, of Appellant-1 (Maruti Gypsy having
registration number HN34-0420).SI Naresh Kumar asked Umakant to open the bag.
Showing similar resistance yet again, he remarked that the bag contained nothing but his
clothes and prevaricated checking of the bag which give rise to suspicion. It is also true
that the Appellant-2 said that he knew nothing about narcotic found in the vehicle under
seize. Undeniably, it is seen that such statements are made in almost every case. It is the
reason that the law has made specific provision under which any person found in

11
Avtar Singh, Principles of The Law of Evidence 278(Central Law Publications, Allahabad, 17th edn., 2009)

7
 possession of substance that come within the ambit of NDPS Act shall be presumed to
have knowledge of the nature of contraband.
6. It is humbly submitted that when the police seized a heavy recovery of two kg Charas,
Appellant-1 absconded from the spot, while the officers were busy in searching for
further recovery. It has been held in a case, regarding absconding accused that there are
positive statements by several prosecution witnesses that he ran away on seeing the
police party and these statements have withstood the test of cross examination as well.
Further, no other evidence was led to disprove the fact of running away of accused. So,
we are of the view that the High Court and the Trial Court is based on conjecture and
assumption.
7. That the Appellant 2 after been given notice under Section 50 of NDPS Act was
personally searched through which a packet Charas 100gm was found. Moreover, during
investigation it was found that he had agreed to sell off the Charas brought from Namoor
by Appellant-1 which was delivered to him during the return journey to Malal to Namoor
on 18 August, 2016.
8. The burden of proof resting on accused cannot be held to be discharged merely by the
reason of the fact that explanation offered by the accused is reasonable and probable. It
must be further shown that the explanation is true one. Unless therefore the explanation is
supported by proof, the presumption created by the provision cannot be said to be
rebutted.
9. It is submitted that as per Section 71 of Indian Evidence Act, other evidence can be lead
to prove the execution of the document so that the fate of the attested document does not
lie at the mercy of attesting witnesses. If he turns hostile other evidence may be given.
Such document may then be proved in the same manner as documents not required to be
attested. Before the section can be applied it is necessary to comply with Section 68 of
Evidence Act and to call as a witness one at least of the attesting witnesses.

Section 71: Proof when attesting witnesses denies the execution

If the attesting witness denies or does not recollect the execution of the document, its
execution may be proved by other evidences. 12

12
Id at 343

8
 CASE: AKMAL AHMAD V. STATE OF DELHI13
“In this case it was held that the evidence of search or seizure, made by the police, will
not become vitiated, solely for the reason that the same was not supported by an
independent witness.”
Section 68: Proof of execution of document required by law to be attested
If a document is required by law to be attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose of proving its execution, if there
be an attesting witness alive, subject to the process of the Court and capable of giving
evidence.
10. It is a known fact that the signature of accused is not required on the RECOVERY
MEMO. The recovery memo of two packets has been duly signed by Sunder Singh (pw-
1) and Jaswant (pw-2) as independent witnesses.
11. It is undisputed fact that a written notice that a written notice is not necessary and an oral
explanation is good enough. During personal search of Appellant, apart from the personal
belongings Charas like substance was recovered. SEARCH MEMO was prepared and
signed by SI Naresh Kumar and HC Dile Ram.
12. Thus, the Respondent has produced various witnesses who have been subjected to the hot
seat of cross examination. Still the appellants could not discredit their trustworthiness.
B. NO FALSE CASE HAD BEEN IMPLICATED AGAINST THE APPELLANTS
13. It is humbly submitted that no false case has been planted by the respondent and it is a
genuine recovery that has taken place. It is humbly submitted that search proceedings
concluded late at night. The fact that one of the accused-1was absconding, the police
team was on search for him in the night. The police team also has to fulfill other
formalities. Therefore, mere delay of few hours cannot be the relevant fact to doubt the
prosecution entire material evidence.
14. The apex court in the case, Apren Joseph v. State of Kerala 14, that mere delay in
lodging F.I.R is not necessarily, as a matter of law, fatal to the prosecution; delay can be
condoned if there is necessary explanation.

13
1999 (2) RCC 297 (SC)
14
A.I.R 1973 S.C. 1

9
 15. It is humbly submitted that the seized articles were properly sealed on the spot with a
distinguishable mark on it, being recorded in a recovery memo. The same was weighed
with seals intact and the case property was handed over with the seals intact to the
officer-in-charge of the said police station who assigned the same for proper custody in
inventory room (Malkhana). Thus, when prosecution has established the link from
recovery till examination of sample, every allegation of false implication needs to be
overruled.
16. In a case, Hardip Singh V. State of Punjab15, where the samples were sent after delay
of 40 days. It was held that delay has no consequence for the fact that the recovery of the
said sample from the possession of the appellant stands proved and established by cogent
and reliable evidence led in the trial. It has also come on evidence that till the date the
parcels of sample were received by the Chemical Examiner, the seal put on the said
parcels was intact.
17. In a case it was contended that the seized articles were not sent immediately for chemical
examination. It was held that the seal being intact, the description of the case number and
the impression of seal having been fixed on memo of recovery, there is no reason or
justification to discard the prosecution case on the ground of delay on this score.
C. THERE ARE MAJOR DISCREPANCIES IN THE DEFENSE VERSION
18. It is humbly submitted that there are material contradiction in Appellants case. That it is
not believable that mere fact that his neighbour is an influential person can be a reason
for false implication of the appellant. There is also no material on record to show that as
to what was the status of Maheswar Singh, as to whether he was in a position to exercise
any influence over police officials of the area. The Appellant has not moved any
representation to the higher police authorities against S.I. Naresh Kumar for his false
implication. Nor, were they able to extract anything from the cross-examination PW-3 to
establish any nexus between S.I. Naresh Kumar and Maheswar Singh.
19. It is the case of Appellants that they were put up in lock up along with their vehicle from
the naka. However, Appellant-1 was arrested from his house in the evening on August
19, 2016 with due procedure.

15
A.I.R 2009 S.C. 432

10
 20. It is humbly submitted that Appellants have woven up their story around a complaint
filed against their neighbor about an entirely alien matter establishing no link to the
gravity of the charge alleged against them.
According to Section 91, which incorporates the rule of best evidence states that in case
of writing all proceedings and contemporaneous oral expressions of the thing are merged
in the writing or displaced by it. In case of secondary evidence the rule is “copy of a
copy” is not admissible.
Section 77 of Evidence Act states that public documents may be proved by production
their certified copies. In the instant case, neither the certified copy nor the original copy
of complaint is produced. Therefore, it is inadmissible in evidence.16
D. PROPER PROCEDURE ADOPTED IN SEARCH AND SEIZURE
21. It is submitted that a proper procedure has been followed during the search and seizure of
the vehicle and the person of Appellant No. 2.The Apex Court has observed that seizure
witnesses turning hostile may not be very significant by itself, as it is not an uncommon
phenomenon in criminal trials, particularly in cases relating to NDPS Act.
22. The Respondent submits that the Appellants were informed about their right by the police
officials and the manner in which they informed the Appellants can be held to be due
compliance of Section 50. This contention can be proved on the basis of following
grounds:
(a). The Apex Court has never laid down any set formula as to the manner in which the
right has to be informed to the person to be searched.
(b). In Navdeep Singh v. State of Haryana17, in which the police party held a picket an
option was given to be searched in the presence of a Gazetted Officer or a Magistrate.
The court opined that a substantial question was put across the appellant as to whether
he chooses to be searched by a Gazetted Officer or a Magistrate and stated “In our
opinion, the provisions do not prescribed any set format for such notice. The essence is to
appraise the accused of his legal right of being searched either by a Gazetted officer or a
Magistrate. Here, when the Appellant was apprised of his statutory rights under Section
50 by PW-3 and opts to be searched by a Gazetted Officer, then he has, by necessary

16
Supranote 11 at 353
17
CRM No. 16764 of 2014

11
 implication, consciously exercised his right. In that view of the matter, we cannot accept
the submission of the learned counsel for the Appellant that the mandatory provisions of
Section 50 of the Act were breached.

16. It is humbly submitted that requirements under sub-section 1 of Section 50 need not be
complied with in case of chance recovery. The Constitution Bench of the Apex Court in
State of Punjab v. Baldev Singh18 held, “On its plain reading, would come into place
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, a contraband under the NDPS Act is also recovered, the requirements of Section
50 of the Act are not attracted.”

17. It is humbly submitted that the police team were on their regular patrol duty while setting
up the police naka at Bhagaul-Muhshehar Road. On seeing the police, the Accused
became perplexed and prevaricated the search which aroused the suspicion of police
Thus, the Accused-2 was given option to be searched before the Magistrate or Gazetted
Officer apprising of his right under Section 50 of NDPS.

18. In Vijaysinh Chandubha Jadejav v. State of Gujarat 19, the Apex Court has held, “It
was not necessary that the information required to be given under Section 50 should be
in a prescribed form or in writing but it was mandatory that the suspect was made aware
of the existence of his right to be searched before a Gazetted Officer or a Magistrate, if
so required by him.” Thus, the contention that there was non-compliance of Section 50
falls flat on its face and the Appellants have cooked up their own goose by raising this
contention.

19. In a case in which one independent witness stated that he signed on some papers as per
direction of the police officer and other independent witness was declared hostile, plea of
false implication was held to be untenable by the Court as there was nothing shown by

18
A.I.R 1999 S.C. 2378
19
(2011) 1 S.C.C. 609

12
 accused on the basis of which the testimonies of the witnesses could be treated as
untrustworthy. The court found that it absolutely unimpeachable.
20. In the instant case, DW-1 has never disputed his signature, so this fact stands proved by
the admission of the writer himself that he signed on the Recovery memo and the Search
memo. It has been held in the case that any portion of evidence consistent with case of
prosecution or defence can be relied upon. Seizure/recovery witnesses though turning
hostile, but admitting their signatures/thumb impressions on recovery memo, they could
be relied on by prosecution. The onus of proof lies upon him to show his presence
elsewhere under Section 11 of Indian Evidence Act. It is submitted that there is no force
behind the deposition of DW-1 that he was not present at the scene of the crime when he
has never denied identification of both the accused.
Section 11: When facts not otherwise relevant becomes relevant-
Facts not otherwise relevant are relevant-
(1) if they are inconsistent with any fact in issue or relevant fact;
(2) if by themselves or in connection with other facts they make the existence or non
existence of any fact in issue or relevant fact highly probable or improbable. 20
21. It is submitted that burden of proof lies upon DW-1 under Section 106 of Indian
Evidence Act as to explain the circumstances or compulsions in which they had to sign
the papers.
Section 106: Burden of proving fact especially within knowledge-
When any fact is especially within the knowledge of any person, the burden of proving
that fact is upon him. 21
22. It has been held in a case, Ramesh Kumar v. State of Himachal Pradesh22, that where
the facts do not show as to in how many occasions, the panch witness had stood as a
panch witness and, therefore if a person happened to witness other instances that would
not denude him of his independent character, would not be of any significance to the
case. Merely because a witness had in the past appeared as a prosecution witness in two
cases, would not render him to be labeled as a stock witness in the absence of any other
evidence to show that he was a stock witness.

20
Supranote 11 at 84
21
Id at 410
22
2002 Cri.L.J. 1880

13
 23. Also, the burden of proof to prove that Sunder Singh was a gambler lies on the
Appellants under Section103 of Indian Evidence Act lies on the Defence/Appellant
which they have utterly failed to prove at trial stage.
Section 103: Burden of proof as to particular fact-
The burden of proof as to any particular fact lies on that person who wishes the court to
believe in its existence, unless it is provided by any law that the proof of that fact shall lie
on any particular person.
24. In the recent Supreme Court case of Baldev Singh v. State of Haryana23, it is held
“Conviction can be based solely on the testimony of official witnesses if evidence of such
official witnesses inspires confidence. There is no legal proposition that evidence of
police officials unless supported by independent evidence is unworthy of acceptance.
Evidence of police witnesses cannot be discarded merely on the ground that they belong
to police force and interested in the investigation and their desire to see the success of the
case.”
25. In the case, Kashmirilal v. State of Haryana 24, it was held that if the testimony of the
police officer is found to be reliable and trustworthy, the Court can definitely act upon
the same. The Court cannot disbelieve the testimony of police officials solely on the
presumption that a witness from the department of police should be viewed with distrust.

E. VALID ENHANCEMENT OF PUNISHMENT

26. It is submitted that the enhancement of sentence is properly valid and there has been
proper framing of charges and proper evidence has been tendered in the court of law.

27. It is submitted that the contention of the Appellants that no charge has been framed pales
into insignificance as the charge has been frame according the procedural propriety, after
the conviction for the subsequent offence mentioned in the instant case so that there is no
question of prejudice entering into the process of trial.

28. It is submitted that Accused/Appellant-2 had full knowledge of what he was being tried
for and the fact of being tried for enhanced punishment. The prosecution has led in

23
2016 Cri.L.J. 154
24
(2014) 1 S.C.C. (Cri.) 441

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 evidence, viz., the copy of unmarked judgment, Police Report stating the fact about
undergoing rigorous imprisonment for selling in Charas in 2002, reference about
previous conviction in Bail Orders and the questions by Special Judge about his previous
conviction under Section 313 Code of Criminal Procedure.

29. The proviso to Section 236 and Section 248(3) of the Cr.P.C makes it even further clear
that even a reference to previous conviction or production of evidence in support, of such
allegation by the prosecution is not to be allowed until the charge in the trial for the
subsequent offence has been brought home. Thus, the inquiry into the charge for
“previous conviction” is postponed until the trial and conviction of the accused for the
offence charged. Thus, even though a copy of judgment was submitted by Prosecution,
the judge did not mark it as exhibit as a matter of judicial prudence as no evidence can be
received with reference to previous conviction.25

30. It is submitted that the identity of the accused of being previously convicted is already
established in the charge-sheet under Section 173 submitted to the learned Court. Thus, it
cannot be contended that there was no proper evidence on record or there was non-
compliance of Section 298 Cr.P.C.

31. It is submitted that no objection was raised at the trial stage when question regarding
previous conviction were asked. The Apex Court in a case, Satyavir Singh Rathi v.
State thr. C.B.I26, has held “If an objection as to the 313 statement is taken at the
earliest stage, the court can make good the defect and record an additional statement as
that would be in the interest of all but if the matter is allowed to linger on and the
objections are taken belatedly it would be a difficult situation for the prosecution as well
as the accused. In the case before us, as already indicated, the objection as to the
defective 313 statements had not been raised in the trial court. We must assume therefore
that no prejudice had been felt by the Appellants even assuming that some incriminating
circumstances in the prosecution story had been left out.”

25
Supranote 5 at 438
26
2011 Cri. L. J. 2908 (S.C.)

15
 PRAYER

Therefore in the lights of facts stated, issues raised, arguments advanced and authorities cited,
the counsels for the respondent most respectfully prays before the Hon’ble court;

1. Uphold the decision passed by the special court while dismissing the present appeal to;
1.1 Convict Mr. Umakant of the offences under Section 20 of the NDPS Act.
1.2 Convict Mr. Saju Ram of the offences under Section 20 and 31 of the NDPS Act.
2. Direct the police authority to initiate action against the appellants for offence under
Section 193 of Indian Penal Code, 1860.

AND/OR

Pass any order that the Hon’ble Court deem fit and proper.

All of which is most humbly and respectfully submitted.

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