# Jose Luis Quintanilla Sacristan (In Jail) v. State of U.P

- **Citation:** (2021) 9 ILRA 201
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-16
- **Case number:** Criminal Appeal No. 757 of 2018
- **Bench:** Ajai Tyagi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jose-luis-quintanilla-sacristan-in-jail-v-state-of-u-p-47559
- **Pages:** 7

## Headnote

A. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 - Section
50 - Applicability - Provision of Section 50 of
the Act stands attracted in case of personal
search and not in the case where the search
was given effect otherwise than from the
personal search of the accused - It applies
only in case of personal search of a person. It
does not extend to search of a vehicle or
container or a bag or premises. (Para 11 and
12)
B. Criminal Law - N.D.P.S. Act, 1985 -
Sections 8, 20(b)(ii)(C) & 23(C) - Ten Kg.
Charas recovered at Indo-Nepal Border from
a foreigner - No public witness - Only police
personnel appeared as a witness - Effect -
Held, it can be safely assumed that it is very
hard to procure public-witness because
nobody wants to become witness in such
type of cases, easily. Witnesses, examined in
this case, are no doubt police-personnel, but
they are relevant witnesses and their
statements are consistent and corroborated
each other - High Court further observed
that it cannot be said that police/prosecution
withheld or suppressed public-witnesses
with an ulterior motive. (Para 14)
C. Criminal Law - Criminal Procedure
Code,1973 - Section 293 - Public Document
- Report of Forensic Science Laboratory -
Admissibility as an evidence - Exemption
from being proved - Held, Report of Forensic
Science Laboratory is a public document -
Report of State Forensic Science Laboratory
is admissible in evidence and there is no
requirement to call the Director of that
laboratory to get the report proved. (Para 16
and 17)
Appeal dismissed. (E-1)
Cases relied on :-

## Text

9 All. Jose Luis Quintanilla Sacristan Vs. State of U.P.
201
Hari Shanker Singh in Criminal Appeal No.
548 of 1982 are on bail. Their bail bonds
are cancelled and sureties discharged. They
are directed to surrender forthwith, failing
which they shall be taken into custody to
serve out remaining period of sentence in
terms of the impugned judgment and order
dated 15.7.1982/16.07.1982 passed by the
trial Court.

118. The Senior Registrar of this
Court is directed to transmit the certified
copy of this judgment and order of this
Court along with the record to the Sessions
Judge, Raebareli for necessary information
and compliance. It is further directed that
the record of the case transmitted by this
Court shall be kept in safe custody by the
trial Court.
----------
(2021)09ILR A201
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.08.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 757 of 2018

Jose Luis Quintanilla Sacristan
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Manu Sharma, Sri Dinesh Kumar
Pandey, Sri Mohd. Kalim, Sri Rajeev Kumar,
Ms. Mary Punch

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Narcotic Drugs and
Psychotropic Substances Act, 1985 - Section
50 - Applicability - Provision of Section 50 of
the Act stands attracted in case of personal
search and not in the case where the search
was given effect otherwise than from the
personal search of the accused - It applies
only in case of personal search of a person. It
does not extend to search of a vehicle or
container or a bag or premises. (Para 11 and
12)
B. Criminal Law - N.D.P.S. Act, 1985 -
Sections 8, 20(b)(ii)(C) & 23(C) - Ten Kg.
Charas recovered at Indo-Nepal Border from
a foreigner - No public witness - Only police
personnel appeared as a witness - Effect -
Held, it can be safely assumed that it is very
hard to procure public-witness because
nobody wants to become witness in such
type of cases, easily. Witnesses, examined in
this case, are no doubt police-personnel, but
they are relevant witnesses and their
statements are consistent and corroborated
each other - High Court further observed
that it cannot be said that police/prosecution
withheld or suppressed public-witnesses
with an ulterior motive. (Para 14)
C. Criminal Law - Criminal Procedure
Code,1973 - Section 293 - Public Document
- Report of Forensic Science Laboratory -
Admissibility as an evidence - Exemption
from being proved - Held, Report of Forensic
Science Laboratory is a public document -
Report of State Forensic Science Laboratory
is admissible in evidence and there is no
requirement to call the Director of that
laboratory to get the report proved. (Para 16
and 17)
Appeal dismissed. (E-1)
Cases relied on :-
1. St. of Punj. Vs Baldev Singh; (1999) 6 SCC
172
2. Madan Lal & anr. Vs St. of H.P. 2003 (47)
ACC 763
3. Megh Singh Vs St.of Pun.; 2003 Cr.LJ 4329
4. St. of H.P. Vs Pawan Kumar; 2005 (52) ACC
710.

(Delivered by Hon'ble Ajai Tyagi, J.)
202 INDIAN LAW REPORTS ALLAHABAD SERIES

1. This appeal has been preferred by
the
appellant-Jose
Luis
Quintanilla
Sacristan against the judgment and order
dated 30.10.2017, passed by learned
Additional Sessions Judge, Fast Track
Court-I, Maharajganj, in Special Case
No.16 of 2015, arising out of Case Crime
No.86 of 2015, Police Station-Sonauli,
District-Maharajganj
convicting
and
sentencing the appellant for ten years R.I.
and
Rs.1,00,000/-
fine
(in
default,
imprisonment for six months) under
Section 8 read with section 20 (b) (ii) (C)
of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (herein after referred
to as '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.

2. The relevant facts for disposal of
this appeal are that on 15.2.2015, Sub
Inspector-Ram Saran Yadav with Police
Personnel
of
Police
Station-Sonauli,
Maharajganj
and
Sub
Inspector-Raja
Murad Ali of Seema Suraksha Bal (SSB)
were on checking at India Gate situates at
Indo-Nepal Border. They were jointly
checking the people and vehicles. At about
14:10, a foreigner was seen by them taking
a trolley-bag with him coming from the 'No
Man's Land' after crossing the Nepal
border. Police Personnel stopped him and
started checking his bag, which the
foreigner tried to avoid, but when his
trolley-bag was opened and checked, 10 kg.
of charas was recovered from the bag in a
plastic packet. On asking the foreigner, he
told that he is Spanish and his name is Jose
Luis Quintanilla Sacristan (the appellant)
R/o Village-Street Dolores Lbarrliri No.5
ZA 33401 Aviles Astlirias Spain. The S.I.
of S.S.B. Raja Murad Ali gave option to the
accused-appellant speaking in English that
if he desires so his search can be taken
before any Gazetted Officer. On this
option, he refused to opt and said that
police personnel may take his personal
search for which he gave his consent also
in writing. First of all, police personnel
took personal search of each other and after
that accused was searched. Recovered
charas was weighed by electrical weighing
machine and weight of recovered charas
was found to be 10 kg. out of which 100
gm. of charas was separated as sample and
after sealing it properly, it was sent to
Forensic Science Laboratory, Varanasi, for
chemical examination and rest of the
substance was sealed separately. At the
time of arrest of the accused and recovery
of charas, public was there, but nobody
was ready to become public witness.
Information of arrest of the accusedappellant was given to her sister-Lushia
Cutena
in
Spain
on
her
Mobile
No.0034985565980 and recovery-memo
was prepared on the spot and the case
under Section 8/20/23 NDPS Act, 1985,
was
registered
against
the
accusedappellant
at
P.S.-Sonauli,
DistrictMaharajganj.

3. Heard Ms.Mary Punch, learned
Advocate, assisted by Mr.Mohd. Kalim,
Shri Rajeev Kumar, learned Amicus Curie,
Mr.B.A. Khan, learned AGA appearing on
behalf of the State and perused the record.

4. Learned counsel for the appellant,
first of all, argued that in this case first
information report is delayed, but it is not
explained that how it was delayed. On
perusal of chick-FIR, it is clear that
accused was arrested on 15.2.2015 at 14:10
and on the same day, FIR was lodged at
16:45, i.e., after two and a half hour of the
orrurrence. After arresting the accused,
recovery-memo was prepared on the spot
9 All. Jose Luis Quintanilla Sacristan Vs. State of U.P.
203
and accused was brought to the police
station, which was three km. north from the
place of occurrence. Hence, there is no
delay in lodging the first information report
against the appellant.

5. Learned counsel for the appellant
further submits that accused is a spanishnational, he does not know Hindi while
consent letter is written in Hindi and it is
clear that accused was unable to understand
the language and the matter of consent
letter. In fact, police had taken the signature
of the accused on blank-paper and after that
matter was written on that showing the
consent of the accused. It has also been
submitted that no member of the policeparty
knew
the
Spanish-language,
therefore, it was impossible for them to
explain anything to the accused regarding
his search, arrest etc. It is also not in the
prosecution case that police-party was
having a translator with them, who could
translate the language to the accusedappellant.

6. Per contra, learned AGA submitted
that prosecution witnesses have clearly
stated in their statement that they explained
entire proceedings to the accused in
English-language, which was being verywell understood by the appellant. Hence,
there was no language barrier.

7. In this regard, perusal of recoverymemo (Ex.ka3) shows that the matter of
arrest and recovery was explained to
accused-appellant
in
English-language.
S.I.-Ram Saran Yadav (PW2) has said in
his statement that when the police-party
came to know about charas, S.I.-Raja
Murad Ali from S.S.B. (PW3) talked with
the accused in English-language and also
said in his statement that he made the
accused understood all the things in
English-language. It is not denied by the
defence that accused did not understand the
English-language. Hence, this Court is of
the considered view that there was no
language barrier between the police-party
and the accused-appellant and it cannot be
believed that accused did not understand
what proceedings were going on against
him and what was recovered from his
possession. Therefore, the argument of
learned counsel for the appellant regarding
language-barrier is not sustainable.

8. Learned counsel for the appellant
also argued that in this case, there was no
compliance of Section 50 of NDPS Act,
1985, inasmuch as the offer given to the
accused-appellant for searching in presence
of a gazetted officer and he declined the
offer and the same was not corroborated by
any independent witness. Learned counsel
submitted
that
before
searching
the
belongings of the accused, he was not
given option to be searched before a
Gazetted Officer or a Magistrate.

9. As far as the compliance of Section
50 of the Act, 1985, is concerned, it would
be relevant to quote Section 50 of the Act
for ready reference:

50.
Conditions
under
which
search of persons shall be conducted.--

(1)
When
any
officer
duly
authorized 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 the
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
204 INDIAN LAW REPORTS ALLAHABAD SERIES
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. 1[(5) When
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 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 section 100 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.]

10. The Hon'ble Apex Court in State
of Punjab vs. Baldev Singh (1999) 6 SCC
172, held as under:

"12. 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."

11. Apart from this, it has also been
held by Hon'ble Apex Court that the
provision of Section 50 of the Act stands
attracted in case of personal search and not
in the case where the search was given
effect otherwise than from the personal
search of the accused. Following cases
were relied:

1. Madan Lal and another vs.
State of Himachal Pradesh, 2003 (47)
ACC 763;

2. Megh Singh vs. State of
Punjab, 2003 Cr.LJ 4329; and

3. State of Himachal Pradesh vs.
Pawan Kumar, 2005 (52) ACC 710.

12. In the aforesaid judgments, it has
been held by the Hon'ble Apex Court that
Section 50 of the Act, 1985, applies only in
case of personal search of a person. It does
not extend to search of a vehicle or
container or a bag or premises.

13. In this case, recovery-memo
shows that 10 kg. charas was recovered
from the trolley-bag of the accusedappellant and it was not recovered from the
person of the accused. Hence, recovery of
the
trolley-bag
does
not
attract
of
provisions of Section 50 of NDPS Act,
1985, but it is clear that after recovery, the
charas from trolley-bag, police-personnel
took the personal search of accused also,
but for that recovery-memo shows that he
was given an option to be searched before
Gazetted Officer and that he denied.
Accused-appellant signed consent letter
also, which is Ex.ka2 on record. For this
consent letter, learned counsel for the
appellant has argued that it is written in
9 All. Jose Luis Quintanilla Sacristan Vs. State of U.P.
205
Hindi-language while the accused-appellant
does not know Hindi. It is also submitted
that signature of accused was taken on
blank-paper, but appellant could not prove
that his signature was taken on a blankpaper. So far as language in Hindi is
concerned, the arresting witnesses PW2 &
PW3
have
categorically
stated
in
statements that they explained the matter to
the accused in English-language. S.I.-Raja
Murad Ali (PW3) from S.S.B. specifically
said in his cross-examination that consent
letter was prepared by S.I.-Ram Saran
Yadav (PW2), which was translated and
read over to the accused in Englishlanguage. PW2 also stated in his crossexamination that regarding consent letter,
accused-appellant was told in Englishlanguage. In State of Punjab vs. Baldev
Singh (supra), it is held by Hon'ble
Supreme Court that when an empowered
officer or a duly authorized officer while
acting on a prior information about to
search a person, it is imperative for him to
inform the person concerned of his right
under sub-section 1 of Section 50 of the
Act, 1985, of being taken to the nearest
Gazetted Officer or nearest Magistrate for
making
the
search.
However,
such
information may not necessarily be in
writing. Hence, in this case also, the
accused-appellant was orally given option
regarding search before a Gazetted Officer.
Although, neither the police was acting on
prior information nor charas was recovered
from his person, it was recovered from his
trolley-bag, therefore, it cannot be said that
there
was
contravention
and
noncompliance of Section 50 of the Act, 1985.

14. Learned counsel for the appellant
also argued that S.I.-Ram Saran Yadav
(PW2) stated in his statement that at the
time of occurrence, accused-appellant did
not come to the spot in white-car while
S.I.-Raja Murad Ali (PW3) clearly said that
accused-appellant came at the place of
occurrence in white-car, he has mentioned
his
car
number
also.
Hence,
this
contradictory statement of PW2 and PW3
indicates that there was no recovery from
the accused as there was no such
occurrence took place and false recovery
was
planted
from
accused-appellant
because being the foreign-national, police
demanded illegal money from accused and
when he refused to do so, he was falsely
implicated in this case and for that reason,
police did not make any public witness of
this alleged occurrence. In my opinion, 10
kg. charas is recovered from the possession
of the accused-appellant and learned AGA
also submitted that the market-value of 10
kg. charas is of Rs.1 crore. Hence, it
cannot be presumed that police planted the
charas worth Rs.1 crore, falsely. So far as
public-witnesses are concerned, it can be
safely assumed that it is very hard to
procure public-witness because nobody
wants to become witness in such type of
cases, easily. Witnesses, examined in this
case, are no doubt police-personnel, but
they are relevant witnesses and their
statements are consistent and corroborated
each other. Therefore, keeping in view the
above position and also keeping in view the
fact that accused-appellant was caught by
the combined team of Police and SSB, it
can be safely assumed that prosecution did
not
withhold
the
public
witnesses
deliberately. In the statement under Section
313 Cr.P.C. before the trial court, the
accused-appellant has stated that members
of police-party demanded illegal money
from him and due to not giving the money,
they have falsely implicated. It is burden on
accused-appellant
to
prove
the
said
statement, but there is not even an iota of
evidence in this regard. Appellant has also
not shown any evidence, which could show
206 INDIAN LAW REPORTS ALLAHABAD SERIES
that police-party or members of S.S.B.
were having any enmity with the accusedappellant as the appellant is a foreignnational and there is no reason and
occasion to have any enmity between the
police and the accused-appellant. Hence, it
cannot be said that police/prosecution
withheld or suppressed public-witnesses
with an ulterior motive and it could not
extend any benefit in favour of the
appellant.

15. Learned counsel for the appellant
also submitted that report from Forensic
Science Laboratory is not on record,
therefore, it was not proved by the
prosecution that the sample sent to the
laboratory was found to be charas. In this
regard, I do not agree with the submission
aforesaid
made
by
counsel
for
the
appellant. Perusal of record shows that
chemical examination report of Forensic
Science Laboratory, Varanasi, is very much
on record. Learned counsel for the
appellant objected that if there is such
report, it is not exhibited and, hence, it
cannot be read in evidence.

16. Report of Forensic Science
Laboratory is a public document. It would
be relevant to quote Section 293 Cr.P.C. for
ready reference:

Section 293 in the Code Of
Criminal Procedure, 1973

293.
Reports
of
certain
Government scientific experts.

(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:-

(a) any Chemical Examiner or
Assistant
Chemical
Examiner
to
Government;

(b)
the
chief
Inspector
of-
Explosives;

(c) the Director of the Finger
Print Bureau;

(d)
the
Director,
Haffkeine
Institute, Bombay;

(e) the Director, Deputy Director
or Assistant Director of a Central Forensic
Science Laboratory or a State Forensic
Science Laboratory;

(f)
the
Serologist
to
the
Government.

17. Hence, as per the provision of
Section 293 Cr.P.C., the report of State
Forensic Science Laboratory is admissible
in evidence and there is no requirement to
call the Director of that laboratory to get
the report proved. The report on record
shows that the sample sent to it was found
to be charas. The remaining recovered
charas was produced before learned trial
court during trial and it was proved by S.I.-
Ram Saran Yadav (PW2) as material
9 All. Upendra Kumar Tripathi @ Neeraj Vs. State of U.P.
207
Exhibits 1, 2, 3 & 4 before learned trial
court.

18. No other point or argument was
raised by learned counsel for the appellant
before this Court.

19. In view of above, I reach on
definite conclusion that prosecution proved
its case beyond any reasonable doubt and
the appellant has been rightly convicted
and sentenced by learned trial court.

20. Accordingly, the appeal lacks
merit and is dismissed.
----------
(2021)09ILR A207
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.08.2021

BEFORE

THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 831 of 2020

Upendra Kumar Tripathi @ Neeraj
 ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri P.K. Singh

Counsel for the Opposite Party:
A.G.A.

Proper Sentence/ Quantum of Sentence-
It is the duty of every court to award
proper sentence having regard to nature
of offence and manner of its commission -
The judicial trend in the country has been
towards
striking
a
balance
between
reform and punishment - The criminal
justice
jurisprudence
adopted
in
the
country is not retributive but reformative
and corrective- No accused person is
incapable
of
being
reformed
and
therefore, all measures should be applied
to
give
them
an
opportunity
of
reformation in order to bring them in the
social stream.

Settled law that the court has to award
adequate sentence which is proportional to the
facts, nature and manner of commission of the
offence and should neither be unduly harsh nor
excessively lenient. Effort has however to be
made to reform the accused so that he is
integrated in the society.

Criminal Law - Indian Penal Code, 1860-
Section 304B, Section 498A , Dowry
Prohibition Act- Section 3⁄4- Quantum of
sentence- Maximum awarded sentence to
the
appellant
is
ten
years-
already
undergone eight years and five months of
the
awarded
sentence-appellant
is
sufficient to meet the ends of justice.

In view of the reformative theory of punishment
and considering the facrt that the accused has
already undergone almost the entire sentence
awarded to him, including remission, the
conviction of the appellant upheld and sentence
modified to the period undergone. ( Para 12,
13, 15, 16, 17, 18, 19)

Criminal Appeal partly allowed. (E-3)

Judgements/ Case law relied upon:-

1. Mohd. Giasuddin Vs St. of A.P., AIR 1977 SC
1926,

2. St. of M.P. Vs Najab Khan, (2013) 9 SCC 509

3. Deo Narain Mandal Vs St. of U.P. (2004) 7
SCC 257

4. Shyam Narain Vs St. (NCT of Delhi), (2013) 7
SCC 77

5. Sumer Singh Vs Surajbhan Singh, (2014) 7
SCC 323

6. St. of Punj. Vs Bawa Singh, (2015) 3 SCC 441

7. Raj Bala Vs St. of Har., (2016) 1 SCC 463.