Rajasthan High Court - Jaipur
Sahanoor Ali And Anr vs Central Narcaties Beuro Office on 9 September, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S. B. CRIMINAL (JAIL) APPEAL No.98/2006. : : Sahanoor Ali & Anr. Vs. C.N.B.,Kota. : : Date of Order : 9.9.2011 HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr. Ratan Kaushik ] Mr. G. S. Shekhawat ] for the appellants. Mr. Laxman Madnani, Sp. P. P. for the CNB. BY THE COURT :
REPORTABLE Heard learned counsel for the parties.
2. The accused-appellants have preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 19.5.2004 passed by Special Judge (NDPS Cases), Kota in Sessions Case No.18/02 whereby the appellants have been convicted for the offence under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and have been sentenced to undergo rigorous imprisonment of 10 years and a fine of Rs.1 lakh, in default of payment of fine to further undergo rigorous imprisonment of one year.
3. The brief relevant facts for the disposal of this appeal are that the appellants were tried for the offence under Section 8/18 of the Act on the premise that on 28.3.2002 on search being conducted by Inspector Shri Satyapal Singh Sabarwal, CNB, Kota in the presence of independent witnesses narcotic drug opium weighing 4 kg was recovered from the joint possession of the appellants without any valid license or permit. In this regard, FIR No.4/02 was registered at CNB, Kota. According to the prosecution on 28.3.2002 a raiding party was constituted in the supervision of Superintendent, CNB, Kota Shri S. P. Kalra and when the raiding party was conducting Nakabandi in front of Panchwati Garden Restaurant, Jagpura, Kota, a Roadways Bus Registration No.RJ-20-4388 came from Jhalawar side at 10:00 am, which was stopped by Inspector Shri Satyapal Singh Sabarwal and when Inspector Shri Sabarwal and Constable Shri Birdi Lal Meena entered into the bus, the present appellants were found sitting together on Seat Nos.37 & 38 of the bus in a suspicious condition. A green coloured bag and a water can was found in their possession. The prosecution case further is that the appellants were brought down from the bus and they were informed that the Inspector suspects that they are having some contraband with them and it is their right under Section 50 of the Act that they may be searched in the presence of a Magistrate or Gazetted Officer. It was also informed that Shri S. P. Kalra, Superintendent is present at the spot and he is a Gazetted Officer and search may also be conducted in his presence. In this regard, separate written notice was given to each of the appellants and each of them consented that he may be searched by Inspector Shri Satyapal Singh Sabarwal. According to prosecution, when search was made in the bag three cans were found in which a black coloured sticky substance was found, which on being tested was found to be narcotic drug opium. In the water can also narcotic drug opium was found and the total weight of the recovered substance was 4 kg from which two samples of 24 grams each were taken and sealed on the spot itself. The further case of the prosecution is that the remaining substance was also sealed and from the possession of appellant Mohd. Fiaz Ali two bus tickets from Jhalawar to Kota were also recovered. Statement of each of the appellants was recorded at the spot and after that they were arrested. After completion of search and seizure process, the raiding party alongwith arrested appellants and recovered substance came back to Office of CNB, Kota and the Inspector Shri Sabarwal sent a report under Section 57 of the Act to his official superior Shri D. V. Katpaliya, Superintendent upon which FIR No.4/02 was registered. Further investigation in the case was undertaken by Shri Santosh Kumar Pathak, who sent the packet of sample for analysis to Government Opium & Alkaloid Works, Neemuch, (MP) from where chemical analysis report was received. Upon prima facie finding that appellants have committed offence punishable under Section 8/18 of the Act, a complaint was filed before the trial Court. The learned trial Court after hearing the prosecution as well as the appellants framed necessary charges and the prosecution in order to prove charges produced oral as well as documentary evidence whereas each of the appellants denied the allegation and evidence of the prosecution and specifically stated that they have been falsely implicated in the case. They also stated that their statements were not recorded. Opportunity to produce defence evidence was given to the appellants, but they did not avail it.
4. The trial Court after appreciating and evaluating the evidence produced on behalf of the prosecution and hearing both the parties arrived at the conclusion that the substance recovered from the joint possession of the appellants is a contraband, as the FSL report reveals that the sample gave positive test for the presence of 11.05% morphine. It was also found by the trial Court that the quantity of the contraband is more than commercial and during investigation compliance of every mandatory provisions of the Act was made by the Recovery Officer. Therefore, on the basis of the conclusions arrived at by the trial Court, the appellants were convicted and sentenced by the impugned judgment and order dated 19.5.2004 in the manner as has been stated hereinabove. Hence, the instant appeal.
5. The learned counsel for the appellants has raised the following grounds :
(i) Mandatory provisions of Section 50 of the Act were not duly complied with. In this regard, it was submitted that according to the prosecution itself this option was also given to the appellants that Shri S. P. Kalra, Superintendent present on the spot is also a Gazetted Officer of the Department and they may be searched in his presence and upon that the appellants gave consent that Inspector Shri Sabarwal may make search them in the presence of Shri Kalra. The learned counsel submitted that Shri Kalra as an officer of the department was already present on the spot and the raiding party was conducting 'Nakabandi' in his supervision, and thus option of search in presence of Shri Kalra cannot be a proper compliance of mandatory provisions of Section 50 of the Act. It was further submitted that it was the duty of Shri Sabarwal to apprise the appellants of their right that they may be taken for search to a nearest Magistrate or Gazetted Officer, but in the present case such exercise was not done. It was contended that if in a case due compliance of provisions of Section 50 of the Act is not made, the accused is entitled to be acquitted on that ground alone.
(ii) Although, the prosecution case is that on the date of incident a raiding party was constituted and the party was present on the spot for routine search by conducting 'Nakabandi' but the evidence available on record shows that there was prior information to the effect that appellants are traveling in the bus in question and they are having narcotic drug opium in their possession, but that information was neither recorded nor copy of the information was sent to a superior officer and thus, there was total violation of Section 42 of the Act. In this regard, the learned counsel for the appellants has referred the cross-examination of some prosecution witnesses in which they have admitted that the bus was full of passengers but any other person was neither suspected nor searched and only appellants were brought down from the bus and were searched. According to the learned counsel unless there was some prior information about the appellants, it cannot be possible that only appellants were suspected and any other passenger was even not touched. It was further contended that if compliance of mandatory provisions of Section 42 is not done accused is entitled to be acquitted on that basis alone.
(iii) Provisions of Section 55 of the Act were not duly complied with and proper link evidence was also not produced and in absence of that, the chemical analysis report cannot legally be used to conclude that the recovered substance is opium or any other narcotic drug. It was also submitted that it is obligatory for the prosecution to prove beyond reasonable doubt that the sample of the recovered substance remained intact and in the same sealed condition from the time it was taken to the time it reached for analysis to FSL. According to learned counsel for the appellants, in the present case every person who handled the packet of sample has not been produced and there is also no evidence on record to show that alongwith packet of sample memo of impression of seal was also sent. It has not been made clear that in absence of memo of impression of seal on what basis the FSL found that the seal on the packet of sample tallied with impression of seal separately forwarded.
(iv) The evidence available on record clearly reveals that the appellants were arrested as soon as the contraband was recovered and after that their statements under Section 67 of the Act were recorded and thus such statements cannot legally be used to arrive at a conclusion that the contraband was recovered from the joint possession of the appellants and they jointly obtained it and they were traveling together to a same destination.
(v) Independent witness Shri Abdul Rashid (PW.1) and Shri Krishan Chand Sharma (PW.2) has not fully supported the prosecution case. According to Shri Abdul Rashid (PW.1) from the possession of appellants only a bag was recovered whereas the prosecution case is that apart from a bag a water cattle was also found in their possession and on search being made opium was recovered from the cattle also. This witness failed to identify the appellants during trial and in absence of that, it cannot certainly be said that recovery was effected from the appellants. According to PW.1, the search was conducted in front of a hotel situated at Jagpura whereas the prosecution case is that the search was conducted near the bus itself. According to Shri Krishan Chand Sharma (PW.2) also from the possession of appellants only a bag was recovered and they were searched in the bus itself. This witness also failed to identify the appellants during trial. This witness has also stated that although he signed on various memos, but he does not know what was written in them. It was contended by the learned counsel for the appellants that in a case in which independent witnesses do not support the prosecution case, it would not be safe to convict a person for an offence punishable under the provisions of the Act only on the basis of the evidnece of departmental witnesses who are always interested. In this regard, it was also submitted that there are several major contradictions, infirmities, improvements and variations in the statements of departmental witnesses.
(vi) There is no evidence on record to indicate that the recovered substance was in joint possession of the appellants and in absence of that, none of the appellants can be held in possession of recovered substance. Merely on the basis of bus tickets, it cannot be held that the appellants were traveling together and they jointly obtained the recovered substance and at the time of recovery, it was in their joint possession.
(vii) Although, the total weight of recovered substance was found to be 4 kg, but according to chemical analysis report (Ex.P/25) content of morphine was found only 11.05% and if the calculation is made on that basis, the actual weight of morphine in the recovered substance comes only 442 grams and that being far below the commercial quantity prescribed for opium, therefore, benefit of a lesser sentence be granted to the appellants and as both the appellants have already undergone imprisonment of more than nine years and thus, the sentence imposed upon them may be reduced to the imprisonment already undergone by them. It was also prayed that the sentence of fine is also required to be reduced suitably.
(viii) It was vehemently contended that according to prosecution itself, the recovered substance was contained in four separate containers but even then only two samples from one of the container were taken and one of the sample was sent for chemical analysis. Although, it has not been made clear from which container the samples were taken, but even if it is admitted that the samples were taken from the cattle in which 2.150 kg opium was found, even then at the most it can be held that from the possession of appellants only 2.150 kg opium was recovered and that being less than commercial quantity, the maximum sentence of imprisonment that could have been imposed was 10 years. In absence of samples being taken from all four containers, only on the basis of oral evidence, it cannot be held that the substance contained in remaining three containers was also opium.
In support of his submissions, the learned counsel for the appellants has relied upon the case of Jagdish Vs. State of M. P. reported in 2003 (9) SCC, 159.
6. On the other hand, the learned Special Public Prosecutor controverting the submissions made on behalf of the appellants has contended as under :-
(i) In the present case, the evidence available on record clearly indicates that before conducting search of the appellants provisions of Section 50 of the Act were properly complied with and the appellants were apprised of their right to the effect that they may be taken before a nearest Magistrate or Gazetted Officer for the purpose of search and it was also informed to them that Shri S. P. Kalra, Superintendent a Gazetted Officer is present at the spot in whose presence also search may be conducted and upon that the appellants desired that they may be searched in the presence of Shri Kalra. It was also submitted that only by the reason that a Gazetted Officer of the department was already present on the spot and on the desire of appellants the search was conducted in his presence, it cannot be said that provisions of Section 50 of the Act were not duly complied with. The learned Special Public Prosecutor further submitted that as the recovery was not made from the personal search of the appellants, there was no legal requirement to comply the provisions of Section 50 of the Act and even if it is held that provisions were not duly complied with even then the appellants are not entitled to be acquitted only on this ground.
(ii) There is no iota of evidence that there was some prior information to the effect that the appellants are having in their possession some narcotic drug and thus there was no question for the Recovery Officer to record the said information and to send copy of the information to his official superior. During cross-examination of any prosecution witness no such suggestion was made that the department received prior information that appellants are having narcotic drug in their possession but even then the information was neither recorded nor copy of it was sent to an official superior and in absence of that, the appellants cannot be permitted to contend that compliance of provisions of Section 42 of the Act was not made. It was also submitted that only by the reason that no other passenger of the bus was searched and only the appellants were brought down and searched for the recovery of contraband, it cannot be held that there was some definite prior information about carrying of contraband by the appellants and as a result of that a raiding party was constituted and the bus in which the appellants were traveling was stopped and process of recovery was conducted.
(iii) There is sufficient evidence, oral as well as documentary, available on record indicating that the sample taken from the recovered substance remained intact and in the same sealed condition from the time it was taken to the time it reached for analysis to FSL. The evidence available on record also reveals that alongwith the sealed packet of the sample test memo bearing impression of seal was also sent for analysis.
(iv) From the evidence available on record, it cannot be said that the statements of appellants under Section 67 of the Act were recorded after they were arrested in the present case. Therefore, there is no legal bar on relying upon them. It was also submitted that it is not the case of appellants that they were pressurized to give their statements and they never retracted from their statements and thus, the appellants cannot be allowed to contend for the first time in this appeal that the statements allegedly recorded under Section 67 of the Act cannot be relied upon.
(v) Although, the independent witnesses Shri Abdul Rashid and Shri Kishan Chand Sharma did not fully support the prosecution case, but substantially they have supported the prosecution and there is no reason to disbelieve their statements. It is wholly irrelevant that these witnesses failed to identify the appellants during trial because the appellants never disputed that they were arrested on the spot on 28.3.2002 in this case. It is pertinent to note that the appellants are in custody since their arrest. In a case under the provisions of the Act, it is not a legal requirement that the Motbir witness should identify the accused as the person from whose possession recovery was made in his presence. So far as the contradictions, infirmities and improvements in the statements of prosecution witnesses are concerned, even if there are some such contradictions etc., they are of minor nature and only on that account, entire evidence available on record cannot be discarded. It was also submitted that even if in a case independent witnesses do not support the prosecution case, even then, on the basis of reliable evidence of departmental witnesses order of conviction can be passed.
(vi) Evidence available on record and more particularly the statements of the appellants recorded under Section 67 of the Act clearly indicate that the recovered substance was in joint possession of the appellants. In this regard, it was also submitted that the appellants are native of a same place and they were found at a far away place from their native place traveling together in a bus and this fact alone is a clear indication of the fact that the recovered substance was in their joint possession. Thus, each of the appellants is equally liable for possessing narcotic drug opium without any valid license or permit.
(vii) Although, on chemical analysis being made the morphin content in the sample was found only 11.05% but the morphin content found in opium is irrelevant for arriving at a conclusion whether the quantity of the recovered substance is commercial or not. As in the present case, the recovered contraband is narcotic drug opium, therefore, the entire quantity of the recovered substance, which is 4 kg, is to be considered to determine whether the quantity is commercial or below commercial.
(viii) The evidence, oral as well as documentary, available on record indicates that a black coloured sitcky substance was found in each of the container found in possession of the appellants, which on being tested by the kit available to the raiding party, was found to be narcotic drug opium and the entire recovered substance was mixed and weighed and from the mixture two samples of 24-24 grams each were taken out. In these circumstances, it cannot be held that there is no evidence on record to show that the substance contained in remaining three containers is also narcotic drug opium and it should be held that the recovered substance is less than commercial quantity.
In support of his submissions, the learned Special Public Prosecutor has relied upon the cases of Dharampal Singh Vs. State of Punjab : (2010) 9 SCC 608, Dehal Singh Vs. State of H.P. : (2010) 9 SCC 85, State of Punjab Vs. Lakhwinder Singh & Anr : (2010) 4 SCC 402, State, NCT of Delhi Vs. Malvinder Singh : 2007 Cr.L.R. (SC) 504, Hansraj & Anr. Vs. Union of India : 2009 (1) Cr.L.R. (Raj.) 495, Sadhu Ram Vs. State of Rajasthan : 2006 (1) Cr.L.R. (Raj.) 207, State of Haryana Vs. Mai Ram : (2008) 8 SCC 292, Jawahar Singh & Anr. Vs. CBN : 2009 (1) Cr.L.R. (Raj.) 547, UOI Vs. Satrohan : (2008) 8 SCC 313, Kanhaiyalal Vs. Union of India : (2008) 4 SCC 668, Karnail Singh Vs. State of Rajasthan : 2000 Cri.L.J, 4635, State of Rajasthan Vs. Daul @ Daulat Giri : (2009) 14 SCC 387 and also the judgment of 8.5.2008 of Hon'ble Supreme Court passed in Criminal Appeal No.843/08 : State of Rajasthan Vs. Udai Lal and judgment of Hon'ble Rajasthan High Court dated 4.9.2008 in SB Cr. Appeal No.250/2005 : Hari Ram & Ors. Vs. State of Rajasthan.
7. I have considered the submissions made on behalf of the respective parties and also gone through the record made available for my perusal as well as the relevant legal provisions and the case law.
8. My findings with reasons upon each of grounds raised on behalf of the appellants are as follows :
(i) So far as submissions made on behalf of the appellants on the basis of non-compliance of provisions of Section 50 of the Act are concerned, I am of the considered view that they are liable to be rejected only on the ground that in the present case the contraband was recovered not on personal search of the appellants, but the evidence available on record reveals that the recovery of the contraband was made from four different containers, which the appellants were carrying with them. It is well settled that provisions of Section 50 of the Act are applicable and are to be complied with only when the contraband is to be recovered from personal search of an accused. The Hon'ble Supreme Court in the case of State of Himachal Pradesh Vs. Pawan Kumar reported in 2005 Cr.L.J. (SC) 2208 held that a bag, briefcase or container carried by a person cannot fall within the ambit of a person and in such a case Section 50 does not apply. Similarly if a contraband is concealed or kept in a building or vehicle and recovery is to be made from it, provisions of Section 50 of the Act are not applicable and it is not required that the person to be searched may be informed that if so required he may be taken for search to a nearest Gazetted Officer or the nearest Magistrate. Thus, in view of the prevalent legal position it is not required to be considered whether in the present case provisions of Section 50 of the Act were complied with or not. Even if for the sake of arguments, it is admitted that there was no substantial compliance of provisions of Section 50 of the Act even then in the light of prevalent legal position, the process of search and seizure cannot be held to be vitiated and the appellants are not entitled to be acquitted on this ground alone.
Even otherwise, from the evidence available on record, it cannot be said that the provisions of Section 50 of the Act were not complied with. The evidence oral as well as documentary available on record clearly indicates that before the search was made both the appellants were apprised of their rights under Section 50 of the Act to the effect that if they so desire they may be taken to a nearest Magistrate or to a nearest Gazetted Officer for search and it was also informed to them that Shri S. P. Kalra, Superintendent present on the spot, is a authorised Gazetted Officer of the Department and the search can be conducted in his presence also and upon that the appellants gave their consent that they may be searched in the presence of Shri S. P. Kalra. It is also clear that in this regard written notice (Ex.P/1) was given to accused-appellant Shanoor Ali whereas notice (Ex.P/2) was given to accused-appellant Mohd. Faiz Ali. It is also clear that thereafter Shri Sabarwal, Inspector (PW.9) made search of the appellants in the presence of Shri Kalra. I am of the view that merely because the appellants were not taken to a Magistrate or to a Gazetted Officer and search was effected in presence of Shri Kalra, who was a departmental Gazetted Officer and was already present on the spot and the raiding party was conducting 'Nakabandi' in his supervision, it cannot be held that provisions of Section 50 of the Act were not duly complied with. There is no legal bar to make search even in presence of a Gazetted Officer who was already present on the spot as a member of the raiding party. The Hon'ble Supreme Court in the case of State of Rajasthan Vs. Ram Chandra reported in 2005 Criminal Law Journal 2201 held that even if search is conducted in the presence of a Gazetted Officer who is a member of the raiding party, it cannot be held that provisions of Section 50 were not properly complied with. According to Hon'ble Apex Court, the Gazetted Officer and the Officer making search cannot be the same person and he cannot act in dual capacity but even if the Gazetted Officer is member of the raiding party, bias on his part cannot be presumed and even if search is conducted in presence of such Gazetted Officer substantial compliance of provisions of Section 50 of the Act would be presumed. In that case, the facts are like this that search of the accused was conducted in presence of Deputy Superintendent of Police, who reached the spot after accused was detained and the accused himself opted to be searched in his presence. The Hon'ble High Court acquitted the accused on the ground that Deputy Superintendent of Police was in essence a member of raiding party hence, provisions of Section 50 were not complied with, but upon appeal being filed by the State of Rajasthan, the Hon'ble Supreme Court in the facts and circumstances of the case clearly held that merely because search was conducted in presence of such Gazetted Officer who was in essence member of the raiding party, it cannot be said that provisions of Section 50 of the Act were not properly complied with.
In the present case also, Shri S. P. Kalra (PW.3) was a member of the raiding party and he was already present on the spot. The appellants were apprised that Shri Kalra is a Gazetted Officer and in his presence also the search can be made and, thereafter, the search was conducted by Inspector Shri Sabarwal (PW.9) in presence of Superintendent Shri Kalra. The appellants have not disputed that Shri Kalra was a Gazetted Officer of the Department. Thus, even if for the sake of arguments, it is admitted that in the present case also provisions of Section 50 of the Act were required to be complied with, even then from the evidence available on record, it is well proved that before search was conducted provisions of Section 50 of the Act were duly complied with. Therefore, the submissions made on behalf of the appellants on this ground are liable to be rejected.
(ii) From the evidence available on record, it cannot be held that any officer of the department received some prior information to the effect that the appellants are travelling in the bus in question and they are having narcotic drug opium in their possession. Thus, there was no question of recording any such information and to send copy of the information to a superior officer. During cross-examination, to any of the prosecution witness, no such suggestion was made and in absence of that, the appellants cannot be permitted to contend that there is total violation of provisions of Section 42 of the Act. In my view, merely by the reason that no other passenger of the bus was suspected or searched for the recovery of contraband and only appellants were suspected and brought down from the bus and they only were searched, it cannot be said that there was some prior information and that is why the raiding party was constituted and the bus in which the appellants were travelling was stopped and only they were searched. The evidence available on record reveals that not only the bus in which the appellants were travelling was stopped and searched, but also before that many other vehicles were also stopped and searched. In my view, if by his training and experience earned, the Recovery Officer (PW.9) Shri Sabarwal upon entering into the bus in question was able to find the appellants sitting in a suspicious condition and he brought down them from the bus and proceeded to conduct search and seizure from them, it cannot be said that the Recovery Officer was having some prior information. Section 42 of the Act provides that if the empowered officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall send a copy thereof to his immediate offical superior, but if during routine petrolling without any prior information, on suspicion some person is searched for the recovery of contraband, it is not required that provisions of Section 42 be complied with. When there is no prior information, question of its recording and sending of copy, does not arise. It is well settled that provisions of Section 42 of the Act are required to be complied with only when for the recovery of contraband some building, vehicle or enclosed place is to be searched whereas if the contraband is at a public place or in transit, provisions of Section 43 of the Act would be applicable and in that condition it is not required that information be reduced into writing and copy of it be sent to immediate official superior. Section 43 of the Act provides that any officer of any of the departments mentioned in Section 42 may seize in any public place or in transit, any narcotic drug or psychotropic substance or controlled substance in respect of which he has reason to believe an offence punishable under the Act has been committed. The explanation appended to this provision provides that for the purpose of this section, the expression public place includes any public conveyance also. In the present case, as the search was made when the appellants were travelling in a roadways bus, which is a public conveyance, and the recovered contraband was in transit, provisions of Section 43 of the Act are applicable. Therefore, the submissions made on behalf of the appellants being devoid of any merit are liable to be rejected.
(iii) Although, it is well settled that it is for the prosecution to prove behind reasonable doubt that the sample of the recovered substance remained intact and in the same sealed condition from the time it was taken to the time it reached for analysis to FSL and only then the report of FSL can legally be used to arrive at a conclusion that the recovered substance is a narcotic drug or psychotropic substance within the meaning of the Act, but from the evidence available on record in the present case, it cannot be held that the prosecution has failed to discharge its obligation. The evidence available on record clearly indicates that from the recovered substance two samples of 24 grams each were taken and both the samples were sealed on the spot itself and the remaining substance was also separately sealed and packets of both the samples and packet of the remaining substance were handed over in the same sealed and intact condition to Shri C. L. Verma (PW.4) and he deposited all packets in the same sealed and intact condition in the Malkhana of the department. It is also clear that on 29.3.2002 this witness handed over one of the samples marked 'A-1' in the sealed condition to Shri Bihari Singh (PW.7) alongwith copies of test memo and forwarding letter and Shri Bihari Singh (PW.7) deposited the packet of sample alongwith forwarding letter and copies of test memo in the factory situated at Neemach and obtained a receipt issued from there and he handed over the receipt to the Incharge Malkhana. It is also clear that no undue delay was made for sending the sample for analysis. In the cross-examination of these witnesses no such fact has come out as to held that the sample taken from the recovered substance did not remain in the same intact and sealed condition and instead of sample of the recovered substance sample of some other substance was sent for analysis. From the evidence available on record, this contention of learned counsel for the appellants cannot be accepted that every person who handled the packet of sample has not been examined and there is no evidence on record to show that alongwith packet of sample memo of impression of seal was also sent. In the forwarding letter (Ex.P/17) dated 29.3.2002, it is clearly mentioned that apart from sealed packet of sample, three copies of test memo and impression of seal were also sent. In this document, it is also mentioned that apart from packet of sample mark A-1, copy of test memo and forwarding letter was received by FSL. In the receipt (Ex.P/18) dated 30.3.2002 and analysis report (Ex.P/25) dated 27.4.2002 also it is mentioned that apart from packet of sample, copy of impression of seal was also received. Therefore, there is no reason for not relying upon the report (Ex.P/25) to arrive at a conclusion that the recovered substance is narcotic drug opium.
So far as non-compliance of Section 55 of the Act is concerned, in the light of the dictum laid down by the Hon'ble Supreme Court in the case of Karnial Singh (supra), it cannot be said that in the facts and circumstances of the present case compliance of that provision was required. It has been laid down by the Hon'ble Apex Court that the Officer Incharge of a police station who is required under Section 55 of the Act to affix his seal on the packets of the articles recovered, is a distinct agency then officers contemplated under Section 53 of the Act. If search and seizure has been made by an officer other than a police officer, the arrested person and seized articles are required to be forwarded under Section 52 (3) (b) of the Act to an officer empowered under Section 53 of the Act and mandate of Section 55 need not be complied with. In the present case, the evidence available on record indicates that the appellants and the packets of the sample as well as the packet of the remaining substance were produced before Shri D. B. Katpaliya, Superintendent. In his statement Shri Katpaliya (PW.5) has stated that on 28.3.2002, when he was posted as Superintendent in the Office of Joint Commissioner Narcotics, Kota, Inspector Shri Satyapal Singh Sabarwal produced the packets of recovered opium and the samples and the same were deposited in Malkhana. The appellants have not disputed that on the date of incident Shri D. B. Katpaliya was an officer empowered under the provisions of Section 53 of the Act. Therefore, the analysis report (Ex.P/25) cannot be discarded by the reason that provisions of Section 55 of the Act were not complied with. The result is that the submissions made on behalf of the appellants being devoid of merit are liable to be rejected.
(iv) From the evidence available on record, it cannot be said that the statements under Section 67 of the Act were recorded after the appellants were arrested, but from the evidence it is clear that immediately after recovery of the contraband, statements of the appellants were recorded and thereafter they were arrested. According to memo of recovery (Ex.P/3), the recovery was made at 10:30 am whereas the statement of accused-appellant Shanoor Ali was recorded at 11:30 am and the statement of accused-appellant Mohd. Faiz Ali was recorded at 11:45 am. Memo of arrest of accused-appellant Shahnoor Ali (Ex.P/10) reveals that he was arrested at 11:50 am while according to memo of arrest of Mohd. Faiz Ali (Ex.P/11) he was arrested at 12:00 am. It is well settled that if statement of an accused under Section 67 of the Act is recorded before he was arrested, it can legally be used against him even if at the time of recording of the statement the accused was in custody. The Hon'ble Supreme Court in the case of Kanhaiya Lal (supra) has held that incriminatory statement of a person called to provide information relevant to enquiry recorded under Section 67 of the Act is not the same as statement under Section 161 Cr.P.C. and if at the stage of recording of the statement, the person concerned is not an accused, although, he may be in custody, it can be used for basing conviction and in that circumstance the bar under Sections 24 to 27 of the Evidence Act would not operate nor would the provisions of Article 20 (3) of the Constitution of India unless the statement is made under threat or coercion. It was also held that if the person does not immediately retract from his confession, such statement can be used against him during trial. In the present case, it is not the case of appellants that they were threatened or coerced to make statement (Ex.P/8 and P/9). It is an admitted fact that the appellants did not retract from their statements recorded under Section 67 of the Act, therefore, I do not find any legal bar in using these statements.
(v) Although, independent witnesses Shri Abdul Rashid (PW.1) and Kishan Chand Sharma (PW.2) have not fully supported the prosecution case but they have substantially supported the prosecution. In his examination-in-chief, Abdul Rashid (PW.1) has stated that on 28.3.2002 when he as a driver of roadways bus was coming from Aklera to Kota at 10:00 am the bus was stopped and from the possession of two passengers one bag was recovered and in his presence recovery memo (Ex.P/3) was prepared, which bears his signature. The witness has also admitted that on Ex.P/8 and Ex.P/9 he put his signatures. Merely by the reason that during trial the witness failed to identify the persons from whose possession recovery was made, it cannot be said that in the presence of the witness recovery was not made from the possession of the appellants. In my view, in a case under the provisions of the Act identification during trial of the person from whose possession recovery was made by the Motbir witness is not essential and even if such witness fails to identify the accused even then no adverse inference can be taken. Similar is the statement of Shri Krishan Chand Sharma (PW.2). From the evidence of these two witnesses, it is clear that the appellants were travelling in that roadways bus and recovery was effected from their possession. Arrest memos of the appellants reveal that they were arrested on 28.3.2002 at 11:50 am and at 12:00 pm respectively at the spot. The appellants never claimed that they were arrested on any other day and time from a different place and thus there is no possibility that the persons from whose possession the recovery was made were different persons and they were released and appellants were falsely shown as the persons from whom recovery was made. Similarly the fact of recovery cannot also be doubted by the reason that each of these witnesses in his respective statement has stated that only a bag was recovered from the possession of two passengers and they have not stated that a water cattle was also recovered. In my view, it cannot be expected from a Motbir witness in whose presence search and seizure was conducted to narrate each and every fact in detail during trial before the Court. The prosecution case regarding recovery of contraband from kettle cannot be doubted only by the reason that the independent witnesses have stated for a bag only. Similarly, there are no contradictions in the statements of the prosecution witnesses regarding the place where the recovery was effected. Although, Shri Abdul Rashid (PW.1) has stated that the recovery was made in front of Jagpura Hotel whereas the prosecution case is that the recovery was made near the bus, but if the entire evidence is considered properly it is clear that the bus was stopped in front of Jagpura Hotel. In the site plan (Ex.P/5) the place where the roadways bus was stopped has been marked by x and very near to this place the Jagpura Hotel is situated. Thus, it cannot be said that there is major contradiction or variation with regard to the place where the recovery was effected. The present case is not such a case in which none of the independent witness has not supported the prosecution case. Apart from that, even if for the sake of arguments, it is admitted that both the independent witnesses have not supported the prosecution case, even then from the evidence of the departmental witnesses the fact of search and seizure is fully proved. It is well settled that the evidence of a witness cannot be disbelieved and discarded only by the reason that the witness is a departmental officer or employee. If the evidence of such a witness is reliable, order of conviction can be passed even on such evidence. Similarly, a departmental witness cannot always be labelled as interested. It is for the accused to satisfy the Court for what reason the departmental witnesses deposed against him. In the present case, the appellants have not come out with a case that for this particular reason the departmental witnesses have falsely deposed against them. Although, the learned counsel for the appellants submitted that there are several major contradictions, infirmities, improvements etc in the statements of departmental witnesses, but during the course of arguments he failed to point out any such major contradictions etc in the statements of the witnesses. I myself thoroughly went through the statements recorded during trial as well as during investigation, but I did not find any such contradictions etc in their statements so as to discard entirely the evidence produced by the prosecution. Even if there are some contradictions etc they are of very minor nature and such contradictions are bound to come during trial. Therefore, the submissions made on behalf of the appellants being devoid of any force are liable to be rejected.
(vi) So far as the fact of recovery from the joint possession of the appellants is concerned, in my view there is ample evidence available on record to held that the appellants were travelling together and they jointly obtained the recovered substance and at the time of recovery it was in their joint possession. It is an admitted fact that the appellants are native of a same place situated in the state of Assam. From the evidence available on record, it is clear that they were travelling in the same bus and were sitting together on seat No.37 & 38. From the possession of appellant Mohd. Faiz Ali two tickets which were joint together were recovered which is also a clear indication of the fact that both the appellants were travelling together. When two persons belonging to a same native place were found travelling in the same bus at a far away place from their native place sitting on nearby seats, it can easily be said that they were travelling together. In their statements under Section 67 of the Act, the appellants stated that they came to Jhalawar together on 25.3.2002 and they jointly obtained the recovered opium on 28.3.2002 from a person and they proceeded together by a bus from Jhalawar and at Panchwati Graden Restaurant, Jagpura from their possession the opium was recovered. It has also been stated by them that for purchasing the recovered opium each of them contributed half of the sale price and they were carrying it jointly and their cloths were also in the same bag. Thus, there is ample evidence on record so as to held that the recovered substance was in the joint possession of the appellants.
(vii) In the present case, the net weight of the recovered substance was found to be 4 kg. It is true that according to the analysis report (Ex.P.25) on chemical examination the morphine content was found only 11.05%, but only by that reason it cannot be held that the total weight of the morphine in whole of the recovered substance is only 442 grams and thus, it must be held that the quantity of the recovered substance is far below the commercial quantity as prescribed by law. In the present case, the recovered substance is narcotic drug opium and according to FSL report on chemical examination the sample gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 11.05% morphine. The Hon'ble Supreme Court in a recent case of Harjit Singh Vs. State of Punjab reported in 2011 Crl.L.J. (SC)2332 has held that in a case in which the recovered substance is opium in form of coagulated juice of opium poppy determination of contents of morphine in opium is totally irrelevant for the purpose of deciding whether the substance would be a small or commercial quantity. According to the Hon'ble Apex Court the entire recovered substance has to be considered to be opium as the material recovered is not a mixture and the case falls squarely under Entry No.92 appended to the notification dated 19.10.2001. It is to be noted that in that case, the quantity of the recovered substance was about 7 kg and upon analysis being conducted the content of morphine was found only 0.8% and even then the Hon'ble Court came to a conclusion that looking to the fact that the recovered substance is narcotic drug opium, the whole recovered substance is to be considered as narcotic drug for the purpose of deciding whether the substance would be a small or commercial quantity. In the present case also the recovered substance is narcotic drug opium which gave positive tests for the presence of chief constituents of coagulated juice of opium having 11.05% morphine. The present case is on a better footing than the case which was before the Hon'ble Apex Court. Thus, it is to be held that the whole recovered substance i.e. 4 kg is to be considered as to come to a conclusion whether the recovered quantity is commercial or not. It is an admitted fact that for narcotic drug opium the commercial quantity is more than 2.500 kg thus, in the present case the recovered quantity is certainly commercial.
(viii) Although, the prosecution case is that the recovered substance was contained in four separate containers and only two samples were taken for analysis and one of the samples was sent to FSL, but in my opinion even then it cannot be held that that the whole of the recovered substance is not a contraband and at the most it can be held that only one of the container had contraband. The reason is that from the evidence available on record it is clear that in each of the container a black coloured sticky identical substance was found which, on being separtely tested by the kit available to the raiding party, gave positive test for narcotic drug opium and thereafter the substance contained in each of the container was mixed and from the mixture two samples were taken. It is also clear from the evidence that the substance contained in each of the container was separately weighed and thereafter the whole substance was mixed and weighed again and samples were taken from it. In this facts situation, it cannot be accepted that the substance contained in anyone of the containers at the most is narcotic drug opium. I am of the view that failure on the part of the prosecution agency to take out separately samples from each of the container does not adversely effect the prosecution case and this finding of the trial Court is liable to be confirmed that whole of the recovered substance i.e. 4 kg is narcotic drug opium.
9. So far as the judgment of Jagdish vs. State of M.P. (supra) relied upon on behalf of the appellants is concerned, I am of the view that being based on different set of facts, it is of no help to the appellants. The facts of that case appear like this that the Recovery Officer searched only the accused for the recovery of contraband although there were other 30 to 40 passengers in the bus in which the accused was also travelling but the facts of the case indicate that during trial not only the Motbir witnesses, but also the driver and conductor of the bus did not support the prosecution case and in this fact situation, the Hon'ble Supreme Court arrived at a conclusion that it would not be safe to convict the accused on the sole testimony of Recovery Officer. In the present case, not only both the Motbir witnesses have substantially supported the prosecution case, but also other departmental witnesses who were present at the time of search and seizure have also supported the statement of Recovery Officer (PW.9) Shri Sabarwal.
10. To assail the judgment of conviction and order of sentence no other submissions have been made on behalf of the appellants requiring consideration by this Court. The contentions made on behalf of the appellants are of no substance and are liable to be rejected. The result is that the judgment of conviction and order of sentence passed by the trial Court does not require any interference and the appeal is liable to be dismissed.
11. Consequently, there is no merit in this appeal and the same is, hereby, dismissed.
(PRASHANT KUMAR AGARWAL),J.
A.Arora/-
(Hearing/Reserved) All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
AMIT ARORA JUNIOR PERSONAL ASSISTANT.