Rajasthan High Court - Jaipur
Ram Dhan vs State on 29 August, 2011
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR JUDGMENT Ramdhan Vs. State of Rajasthan S.B.Criminal Appeal No.491/2006 under Section 374 Cr.P.C. DATE OF JUDGMENT ::: 29.08.2011 PRESENT HON'BLE MR. JUSTICE PRASHANT KUMAR AGARWAL Mr.Kamlendra Sihag for the appellant. Mr.Laxman Meena Public Prosecutor. REPORTABLE BY THE COURT:-
The accused-appellant has preferred this appeal under Section 374 Cr.P.C. against the judgment of conviction and order of sentence dated 05.03.2005 passed by Special Judge (NDPS Cases) Bundi in Sessions Case No.5/2003 whereby the appellant has been convicted for offence under Section 8/18 of the Narcotic Drugs & Psychotropic Substance Act, 2005 (hereinafter to be referred as the Act) and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs.1,00,000/- and in default thereof to further undergo rigorous imprisonment for one year.
2. The brief relevant facts for the disposal of this appeal are that the appellant was charge-sheeted for the above offence on the premise that on 6.4.2003 when a motorcycle, on which the appellant was riding, was searched by SHO Police Station Nainwa (District Bundi) in the presence of independent witnesses narcotic drug opium weighing 3.500 kg. contained in a polythene bag which was further contained in a cotton bag was recovered without any valid licence or permit. In this regard FIR No.94/2003 was registered at Police Station Nainwa (District Bundi) for offence under Section 8/18 of the Act. To prove the charge the prosecution produced oral as well as documentary evidence whereas in his statement under Section 313 Cr.P.C., the appellant denied the allegation and evidence of the prosecution and specifically stated that at that time he was a pillion rider on the motorcycle with Kanhaiyalal but the police with the connivance of Shri Kanhaiyalal involved him in a false case. It was also stated by him that no opium was recovered from his possession and the recovered opium does not belong to him the police did not give him any notice and near the place of alleged incident several shops are situated but the police did not make any efforts to call any independent witness to associate in the process of search and seizure. It was further stated by him that he even does not know how to ride a motorcycle and the police pressurized him to put his signature on several papers. It was also stated by him that at the time of recovery packets were not sealed. In defence the appellant produced DW1 Shri Chhitarlal and during cross examination of prosecution witnesses copy of statements under Section 161 Cr.P.C. of Shri Jagdish, Brij Mohan and Randheer Singh were exhibited.
3. The trial court after evaluating and appreciating the evidence produced by the respective parties arrived at a conclusion that the appellant was having in his possession the recovered contraband by the reason that at the time of recovery, the motorcycle from the dicky of which the recovery has been made was in the possession of the appellant and he was riding on it. The trial court also came to the conclusion that the quantity of recovered contraband is more than the commercial quantity as provided under the provisions of the Act. It was also concluded that during investigation, the Recovery Officer duly complied every mandatory provisions of the Act and, therefore, on the basis of the conclusions arrived at by the learned trial court, the appellant was convicted and sentenced by the impugned judgment and order dated 05.03.2005 in the manner as has been stated hereinabove. Hence, the instant appeal.
It is pertinent to note that alongwith appellant one Shri Vijay Bahadur Singh and Raju were also tried but they have been acquitted from the charge levelled against them.
4. Heard learned counsel for the appellant as well as learned Public Prosecutor and have also gone through relevant legal provisions and the record made available for my perusal.
5. Assailing the impugned judgment and order, the learned counsel for the appellant has raised following grounds:-
(i) Provisions of Section 50 of the Act were not complied with :- In this regard it was contended on behalf of the appellant that Section 50 of the Act provides that before search of a person is conducted, he shall by a written notice be informed of his right that if he so requires he may be taken to a nearest gazetted officer or magistrate for search but in the present case no such written notice was given and according to the prosecution itself consent of appellant was taken on Ex.P1 which is not a due compliance of mandatory provisions of the Act. It was also contended that according to prosecution, the appellant desired that he may be searched before a Tehsildar and upon that Tehsildar PW-11 was called on the spot whereas the legal requirement is that the person to be searched is to be taken before the officer for which he has expressed his desire. In this regard it was also submitted that when after arrest appellant was searched, copy of notice allegedly given under Section 50 of the Act was not recovered from his possession and this is a clear indication of the fact that infact no written notice was given under Section 50 of the Act. It was further submitted that it is well settled that provisions of Section 50 of the Act are mandatory and if in a case due compliance is not made the accused is entitled to be acquitted on this ground alone.
(ii) Non-compliance of Section 42 of the Act :- In this regard it was submitted that evidence available on record reveals that recovery was made at 6.45 p.m. i.e. after sun-set but admittedly the Recovery Officer did not obtain any search warrant. Referring to Section 42 of the Act, the learned counsel for the appellant contended that if for the recovery of a contraband search is to be made after sun-set and before sun-rise, it is necessary to obtain search warrant from an authorised magistrate, but in the present case admittedly it was not done. It was further submitted that provisions of Section 42 of the Act are also mandatory and non compliance of the provision results in acquittal of the accused.
(iii) Non-compliance of Section 55 of the Act:- In this regard it was submitted that Section 55 of the Act provides that when packets of the recovered substance are brought to the police station, the SHO concerned would re-seal the packets produced before him but in the present case it is an admitted case that the SHO PW5-Randheer Singh or any other police officer or personnel in his supervision did not re-seal the packets allegedly sealed at the place of recovery. Referring Section 55 also to be mandatory in nature, the learned counsel for the appellant further submitted that non compliance of this provision also results in acquittal of an accused.
(iv) It was contended that it is mandatory requirement of law that the packet of sample should remain intact and in the same sealed condition in which it was at the time of seizure and it should be deposited in the Forensic Science Laboratory in the same intact and sealed condition and in absence of that, the report of FSL cannot legally be used to come to a conclusion that the recovered substance is a narcotic drug or psychotropic substance within the meaning of the Act but in the present case no such evidence has been produced by the prosecution so as to fulfill the above requirement. Referring to several facts and circumstances available on record, learned counsel for the appellant has contended that the prosecution is required to prove beyond reasonable doubt that the sample was not tempered with from the time it was taken to the time it was deposited in the FSL but in the present case the prosecution has miserably failed to discharge its burden.
In this regard, the learned counsel for the appellant has referred to the fact that the seal allegedly used by the Recovery Officer to seal the packets of the sample and packet of the remaining contraband was neither destroyed at the spot itself, nor it was sealed and handed over to an independent witness nor it was deposited in the 'Malkhana' of the Police Station in a sealed condition. There is no evidence on record to show that the memo of impression of seal was also sent alongwith the packet of the sample to the FSL and in absence of it, it cannot be held that in FSL, the seal found on the packet of the sample tallied with impression of seal separately sent. It was also contended that the receipt Ex.P6 issued by FSL states that a sealed packet was received and it no where states that alongwith packet some papers including memo of impression of seal was also received. The recovery was made on 6.4.2003 whereas the sample has been sent as late as on 25.4.2003 and for this undue delay no explanation has been given of the prosecution and in absence of it, it is to be held that sample of some other substance was sent for analysis. It was further contended that there was every possibility that the Recovery Officer by misusing the seal available to him, tempered with the packet of the sample and instead of the sample of the recovered substance sample of some other substance was sent for analysis.
(v) There is no evidence available on record to show that the Recovery Officer made efforts to associate independent witnesses in the process of search and seizure. It is an admitted fact that the place of recovery is a busy place and nearby many medical shops, houses, a 'Dharamshala', a hospital and several hotels are situated and in this set of facts it cannot be believed that when effort was made, no such person was available at that time so as to associate him in the process. In this regard it was also submitted that according to prosecution, the Recovery Officer sent Constable-Shri Shafi Mohammed to bring two independent witnesses but without any reason Shri Shafi Mohammed was not produced as a witness and in absence of his evidence it cannot be held that no such person was available as to associate him in the process of search and seizure. It was also contended that according to prosecution alongwith the Recovery Officer, Constable-Shri Shafi Mohammed also proceeded from the police station to the place of recovery but in the Rojnamcha or in any other document produced on behalf of the prosecution name of Shri Shafi Mohammed does not appear as a person who also accompanied with the Recovery Officer from the police station whereas names of other police personnels appear in the documentary evidence and this fact alone is clear indication of the fact that Constable Shri Shafi Mohammed was not accompanying the Recovery Officer and thus he was not directed to bring independent witnesses. It was submitted that in absence of independent witnesses the entire recovery stands vitiated.
(vi) It was also contended that there are several major and material contradictions, infirmities and improvements in the statements of police witnesses produced on behalf of the prosecution and upon such evidence it was not safe to convict the appellant but the learned trial court without considering the evidence in proper perspective has convicted the appellant. On the basis of statement of a police officer/police personnel an accused can be convicted only when the evidence of such witness is of sterling worth but in the present case the evidence produced on behalf of the prosecution is not of such a nature. In this regard it was also submitted that in the memo of Information Ex.P1, Seizure Memo Ex.P3, Arrest Memo Ex.P4 and Memo of Impression of Seal Ex.P5 there is major variation regarding the time on which these documents were prepared and this fact makes the whole prosecution case doubtful.
(vii) It was submitted that although the total weight of the recovered substance has been found to be 3.500 kg. but on analysis being made the actual content/quantity of morphine was found only 7.03% and if calculation is made on that basis the total weight of morphine in whole of the substance comes to 246 gms. only which is far below the commercial quantity prescribed for opium which is more than 2.500 kg. It was also submitted that quantity of contraband allegedly recovered from the possession of appellant being an intermediate quantity and therefore, benefit of a lesser sentence be granted to him. It was further submitted that the appellant has already undergone imprisonment of more than eight years and thus, the sentence of imprisonment may be reduced and modified to that extent and similarly sentence of fine and sentence of imprisonment in default thereof may also accordingly be reduced and modified.
In support of his submissions, the learned counsel for the appellant relied on the case of Hira Lal Vs. Union of India reported in 2004 (2) Cr.L.R.(Raj.) 860, Mohinder Kumar Vs. State of Panaji Goa reported in (1998) 8 SCC, 655, Saudan & anr. Vs. The State of Rajasthan reported in 2003 (1) Cr.L.R.(Raj.) 483, Dev Chand Vs. State of Rajasthan reported in 2000(1) WLC (Raj. 284, Smt.Iqbal Begum Vs. State of Rajasthan reported in 1999 WLC (Raj.) UC, 466, E.Micheal Raj. V. Intelligence Officer, Narcotic Control Burea reported in JT 2008 (4) SC, 523 and judgment and order dated 16.01.2009 passed by the High Court of Delhi at New Delhi in Cr.Appeal No.436/2007 (Rajender Kumar Vs. State).
6. On the other hand, the learned Public Prosecutor supporting the impugned judgment and order, submitted that the evidence available on record shows that during investigation each and every mandatory provisions of the Act was duly complied with. It was also submitted that although during the process of search and seizure independent witnesses were not associated but evidence of police officer/police personnel available on record clearly reveals that when search was effected the contraband opium weighing 3.500 kg. was recovered from the Dickey of the motorcycle upon which the appellant was riding. It was further submitted that on the desire of the appellant himself gazetted officer Tehsildar was called on the spot and search was conducted in his presence and the Tehsildar PW11 Shri Brij Mohan has also supported the prosecution case. It was also contended that the testimony of Shri Brij Mohan cannot be doubted as he is an independent witness. The learned Public Prosecutor also submitted that the entire recovered substance has to be treated as a narcotic drug and total weight of the recovered contraband cannot be determined on the basis of percentage of morphine found in it.
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.
My findings with reasons upon each of ground raised on behalf of the appellant are as follows:
(a) So far as non compliance of the provisions of Section 42 of the Act is concerned, I am of the considered view that looking to the facts and circumstances of the case, Section 42 is not applicable. Section 41 (1) provides that a Metropolitan Magistrate or a Magistrate of the first class may issue a warrant for the search, whether by day or by night, of any building, conveyance or place in which he has reason to believe any narcotic drug or psychotropic substance in respect of which an offence punishable under the Act has been committed is kept or concealed. Section 42 (1) provides that if an empowered officer has reason to believe from personnel knowledge or information given by any person and taken down in writing that any narcotic drug or psychotropic substance in respect of which an offence punishable under the Act has been committed is kept or concealed in any building, conveyance or enclosed place, he may between sunrise and sunset enter into and search any such building, conveyance or place. The proviso to that section provides that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. Sub-section (2) of Section 42 of the Act provides that where an officer records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his 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 this Act has been committed. The explanation appended to this provision provides that for the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
In my considered view, the conjoint reading of Section 41, 42 and 43 in very explicit term reveals that a search warrant is required to be obtained only when a building, conveyance or enclosed place is to be searched by an empowered officer at any time between sunset and sunrise and in such a case the searching officer may make search without obtaining a search warrant if such officer has reason to believe that a search warrant can not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender but in such a situation he is required to record the grounds of his belief and to send a copy thereof to his officer superior within seventy two hours. According to Section 43 of the Act when seizure is to be made in any public place or in transit, no such search warrant is required to be obtained. Even if a building, conveyance or enclosed place is required to be searched at any time between sunrise and sunset search warrant is not required to be obtained. In my view, looking to the provisions of Section 42 and 43, it cannot be said that it is a mandatory requirement to obtain search warrant in each and every case and thus, the whole process of search and seizure cannot be held to be vitiated only by the reason that it was conducted without obtaining search warrant. Apart from that, in the present case on consideration of evidence available on record it cannot be said that the search and seizure was conducted after sunset. In my view, if in a case the process of search commenced before sunset but it continued even after sunset it cannot be said that at that time search warrant was required to be obtained. Thus, in absence of search warrant neither the recovery can be held be vitiated nor the prosecution case can be held to be doubtful.
So far as the case law relied upon by the appellant is concerned, in my view being based on different set of facts it is of no help to the appellant. The facts of the case of Hira Lal Vs. Union of India (supra) appear like this that search for recovery of contraband was conducted after 8.00 p.m. and recovery was effected from a residential house i.e. building. According to Section 42 of the Act it is required that if contraband is to be recovered from a building after sunset and before sunrise search warrant is required to be obtained. In the case of Mohinder Kumar Vs. State, Panaji Goa (supra) compliance of section 42 (1), for recording grounds of belief was required by the reason that in that case search for recovery of contraband was carried out between sunset and sunrise. In the present case the facts are entirely different as recovery was made in a public place when the appellant was carrying the narcotic drug by concealing it in the dicky of a motorcycle upon which he was riding and the search was conducted before sunset. It is pertinent to note that during cross examination of any prosecution witness no suggestion was made that the search was conducted after sunset. Thus, the submissions made on behalf of the appellant based on Section 42 of the Act being devoid of any substance are liable to be rejected.
(b) So far as submissions made on behalf of the appellant 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 appellant but the evidence available on record reveals that the recovery was made from the dickey of the motorcycle which the appellant was riding at the time of recovery. 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) 2008 has held 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 he so requires 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 the prevalent legal position the process of search and seizure cannot be held to be vitiated.
(c) Similarly, looking to the facts and circumstances of the case, it cannot be accepted that provisions of Section 55 of the Act are applicable. This provision provides that an officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
A close reading of this section reveals that packets of samples are required to be sealed with a seal of the officer-in-charge of the police station i.e. are required to be re-sealed only when some contraband is seized under the provisions of the Act by an officer other than the officer-in-charge of the police station. According to this provision if some articles are seized under the provisions of the Act within the local area of a police station and are delivered to the officer-in-charge of that police station, he shall take charge of and keep in safe custody, pending the orders of the Magistrate, packets so delivered to him and he shall also allow the officer accompany such articles or who may be deputed for the purpose of delivering the articles, to affix his seal to such articles or to take samples of and from them and all samples so taken also be sealed with a seal of the officer-in-charge of that police station. Thus, in the event of officer-in-charge of a police station himself conducting search and seizure of some articles under the provisions of the Act within the local area of that police station itself, question of delivery of such articles, again taking samples of and from them and re-sealing of such samples does not at all arise. Question of re-sealing of packets of sample can arise only when contraband is seized by any other officer. Apart from that, the provisions of Section 55 cannot be said to be mandatory in nature and thus, even if in the present case the packet of recovered substance including the samples were not re-sealed when they brought to the police station, the process of search and seizure cannot be held to be vitiated. By this reason, it can not also be held that packet of sample did not remain intact and there was every likelihood of tampering with it. Consequently, the submissions made on behalf of the appellant on the basis of non-compliance of provisions of Section 55 of the Act being devoid of merit are rejected.
(d) This legal position cannot be disputed that it is a mandatory requirement of law that packet of sample should remain intact and in the same sealed condition from the time of recovery to the time of its deposition in the Forensic Science Laboratory for analysis and it is for the prosecution to prove this fact beyond reasonable doubt and in absence of it, the report of FSL cannot 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 looking to the evidence available on record in the present case it cannot be held that the prosecution has failed to discharge its burden. The circumstances upon which the learned counsel for the appellant has relied upon and has urged this court to discard the report of FSL are not such of a nature as to accept the contention of the learned counsel. It is true that there is no evidence on record as to show that the seal used by the Recovery Officer to seal the packets of the sample and also the packet of the remaining contraband was either destroyed at the spot itself or it was sealed and handed over to an independent witness or it was deposited in the 'Malkhana' of the police station in a sealed condition, but by this reason only it cannot be held that the Recovery Officer misused the seal available to him and instead of the sample taken from the recovered substance, sample of some other substance was sent for analysis. In the cross examination of Recovery Officer PW5 Shri Randheer Singh no such suggestion was made that he misused the seal and the packet of sample was tempered with and instead of the sample taken from the recovered substance, he by misusing the seal prepared sample of some other substance available with him and sent that sample for analysis to the FSL. In my considered view without putting such suggestion in the cross examination of the witness and without affording opportunity to him to explain his stand in this regard, the appellant cannot be permitted to raise such a ground without there being any basis beyond it. Although, there always remains some possibility of misusing of the seal if it is kept by the recovery officer himself but mere possibility cannot turn in reality without there being any foundation in the form of evidence. Although, it is expected from a recovery officer to avoid raising of any such doubt, the seal should be handed over to an independent witness in a sealed condition or it should immediately deposited in a sealed condition in the 'Malkhana' of the police station or it should be destroyed immediately after use, but even if in a case the recovery officer fails to take such a precaution, merely by that reason it cannot be held that there is every likelihood that the seal was misused and instead of the sample taken from the recovered substance sample of some other substance was sent for analysis.
So far as this contention of the learned counsel for the appellant, that there is no evidence on record so as to show that the memo of impression of seal was also sent alongwith the packet of the sample to the FSL, is concerned, I am of the considered view that there is sufficient evidence, oral as well as documentary, available on record as to show that alongwith the sealed packet of sample some material documents including memo of impression of seal was also sent to the FSL. The recovery officer Shri Randheer Singh in his examination-in-chief has stated that memo of impression of seal Ex.P5 was prepared at the spot which bears his signature as well as impression of seal. He has also stated that the sealed packets were handed over to 'Malkhana' in-charge Shri Rameshwar. It has also been stated by him that the sealed packet of sample was sent to FSL Jaipur through Constable-Shri Sukhdev Sharma and from FSL report Ex.P18 was received. It is to be noted that in cross examination the above statement of the witness was not disputed and no suggestion was made to him that memo of impression of seal Ex.P5 was not prepared at spot and it does not bear the impression of seal which was used by him to seal the packets. PW3-Shri Sukhdev Sharma in his examination-in-chief has stated that on 25.4.2003 when he was posted as constable at Police Station Nainwa, Malkhana-in-charge Shri Rameshwar Prasad handed over to him a sealed packet alongwith some papers relating to the present case and he deposited that packet in the sealed condition after obtaining some papers from the office of S.P. and the FSL issued receipt Ex.P6 and he handed over that receipt to the SHO. The witness has also proved his departure from the police station and his arrival also. In his cross examination also the witness has stated that the packet was in a sealed condition and some papers were given to him from the office of S.P. It is pertinent to note that in his cross examination no such suggestion was made that alongwith the packet of sample no papers were given to him. No explanation was also sought from him what were the papers which were given to him by the 'Malkhana-in-charge'. PW4 Shri Rameshwar Prasad in his examination-in-chief has deposed that on 6.4.2003 when he was working as 'Malkhana-in-charge' at Police Station Nainwa, the SHO handed over to him three sealed packets and he deposited them in the 'Malkhana' and also made entries regarding it in the 'Malkhana Register' Ex.P7. The witness has also stated that on 25.4.2003 he handed over one sealed packet alongwith some papers to Constable-Shri Sukhdev Sharma. In his cross examination the witness has denied that the 'Malkhana Register' was not maintained regularly and in a proper manner. It is to be noted that to this witness also no such suggestion was made that alongwith packet of sample no documents or papers were given to Constable Shri Sukhdev Sharma. Ex.P5 memo of impression of seal shows that on 6.4.2003 at 7.50 p.m. the recovery officer in the presence of witnesses Shri Kailash Chandra Sharma and Shri Girdhari Lal prepared this document. It bears the impression of seal which was used by the recovery officer to seal the packets. Ex.P6 receipt dated 26.4.2003 issued by the FSL Jaipur shows that on 26.4.2003 a sealed packet relating to FIR No.94/2003 alongwith letter No.3550-51 dated 25.4.2003 of S.P.Bundi was received through Constable Shri Sukhdev Sharma. In the report under Section 57 of the Act dated 7.4.2003 Ex.P16 apart from other, this fact is also mentioned that memo of impression of seal was also prepared. In the report of FSL Ex.P18 dated 18.8.2003 apart from the result of analysis it has also been mentioned that on 26.4.2003 a sealed packet marked B1 relating to Police Station Nainwa FIR No.94/2003, dated 6.4.2003 offence under Section 8/18 of the Act alongwith letter No.3550-51 dated 25.4.2003 issued by S.P.Bundi was received through Constable Shri Sukhdev Sharma and seal on the packet was intact and the seal impression found on the packet tallied with the specimen seal forwarded. In my considered view the evidence as already referred clearly indicates that alongwith the packet of sample copy of memo of impression of seal was also forwarded to the FSL. Although, PW3 Constable Shri Sukhdev Sharma and PW4 'Malkhana-incharge' Shri Rameshwar Prasad in so many words has not stated that the papers which were sent alongwith sealed packet also included copy of memo of impression of seal but when report of FSL categorically mentions that the seal found on the packet tallied with the impression of seal forwarded, it only means that alongwith the packet of sample copy of memo of impression of seal was also sent. In absence of proper cross examination and suggestions, the appellant cannot be permitted to contend that there is no evidence on record as to show alongwith packet of sample memo of seal impression was also sent. In my view alongwith the sealed packet of the sample memo of impression of seal was also sent and that is why in FSL report it has been clearly mentioned that the impression of seal tallied with each other. There is no reason to disbelieve the fact mentioned in the FSL report. It is pertinent to note that FSL report is admissible in evidence under Section 293 Cr.P.C.and it is not required to be proved by the person who has prepared it. In my view if the appellant was of such impression that the fact about impression of seal is falsely/wrongly stated in the report, it was for him to make a prayer to the trial court to summon the officer who prepared the report as a witness. I am of the view that the report being admissible in evidence under Section 293 Cr.P.C. every fact mentioned it is admissible in evidence. Although, the recovery was made on 6.4.2003 where the sample was sent for analysis as late as on 25.4.2003 but only by that reason also it can not be held that the packet of sample was tampered with and instead of sample of the recovered substance, sample of some other substance was sent. No explanation was sought from the prosecution witnesses for this delay and in absence of this, the appellant cannot now be allowed to contend that late sending of sample facilitated tampering with the sample. In my opinion it is not the time factor which counts for determining whether sample was tampered with or not but it is the intention to tamper with, which is relevant. The Hon'ble Supreme Court in a recent case Jarnail Singh Vs. State of Punjab reported in 2011 Cr.L.R. (SC) 1738 has held that Mere delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with. Thus, the delay in sending the sample is of little significance. There is nothing on record so as to arrive at a conclusion that delay was intentional. Thus, it cannot be accepted that the report of FSL Ex.P18 cannot be used to come to a conclusion that the recovered substance is narcotic drug opium or any other contraband.
(e) Although, on consideration of the evidence available on record it is to be held that the recovery officer did not make any efforts to associate independent witnesses in the process of seach and seizure but only by that reason the prosecution case cannot be doubted. Although, it is a legal requirement that efforts should be made to associate atleast two independent and impartial witnesses in such a process but if from the evidence available on record the court finds that the charge against the accused is proved, the court may convict the accused on the basis of evidence available on record even in absence of evidence of independent witnesses. In the present case, the fact of search and seizure of contraband from the possession of the appellant is proved not only from the statements of PW1-Shri Kailash Chandra Sharma and Recovery Officer-PW5-Shri Randheer Singh, but also from the statement of Tehsildar-PW11 Shri Brij Mohan Bairwa. The evidence available on record reveals that PW1-Shri Kailash Chandra Sharma, ASI and another ASI Shri Girdharilal were associated as independent witness in the process and on the desire of appellant, PW11 Shri Brij Mohan Bairwa- Tehsildar was also called on the spot and in their presence search and seizure was conducted. Although, PW11 Shri Brij Mohan Bairwa was called on spot on the desire of the appellant himself so as to fulfill the legal requirement of Section 50 of the Act but in my view as the process of search and seizure was conducted in his presence, he would also come in the ambit of an independent and impartial witness. Shri Brij Mohan Bairwa in his examination-in-chief has stated that on 6.4.2003 when he was posted as Tehsildar Nainwa at 6.35 p.m. he received an information to the effect that in his presence is required as some person is to be searched and upon that he reached at the spot, where police personnel including Recovery Officer SHO Shri Raghuveer Singh and appellant were present and he was informed that in his presence the motorcycle of the appellant is to be searched. The witness further stated that in the presence of him and two independent witnesses when the SHO searched the dickey of the motorcycle a black sticky substance was recovered which was contained in a polythene bag which was further contained in a cotton bag. According to this witness in his presence the recovered substance was weighted and the net weight of the recovered substance was found to be 3.500 kg. from which two sample of 30 gms. each were taken and sealed at the spot itself. He has also stated that in his presence recovery memo Ex.P3 and memo of impression of seal Ex.P5 were prepared which bears his signature. In his cross examination the witness has stated that when the information was received, he was in his office and he went to the spot by a motorcycle. He admits that he himself did not call any independent witness and has opined that both police personnels being responsible persons are independent witnesses. He has also stated that the weighing instruments were called through a constable who brought them within 10 to 15 minutes. The witness has categorically denied the suggestion that he did not go to the place of recovery and no search and seizure was effected in his presence and he merely put his signature lateron on the memos. PW1 Shri Kailash Chandra Sharma in his examination-in-chief has stated that on 6.4.2003 when he was posted as a second officer at Police Station Nainwa, he alongwith SHO and other police personnel went to the place of recovery and in his presence when search was made narcotic drug opium weighing 3.500 kgs. was recovered from the dickey of the motorcycle which the appellant was riding. According to this witness Tehsildar Shri Brij Mohan Bairwa was also called at the spot and the process of search and recovery was effected in his presence. According to this witness also from the recovered substance two samples of 30-30 gms. each were taken out and were separately sealed and remaining substance was also sealed. The witness has also proved the various memos allegedly prepared at the spot. Although, a lengthy cross examination was effected of this witness but nothing such has come out doubting his presence at the time of alleged search and seizure. In his cross examination also the witness in clear terms has stated what steps were taken regarding search and seizure. Similarly, PW5-recovery officer Shri Randheer Singh also in his examination-in-chief has in very clear words stated what steps were taken by him as to effect search and seizure of the contraband from the possession of appellant. According to this witness prior information was received by him to the effect that a person wearing white shirt and black pant by riding a black coloured Rajdoot motorcycle is likely to transport narcotic drug opium and in pursuance of that information he alongwith police party including PW1 Shri Kailash Chandra Sharma reached at the place of recovery. According to this witness also when dickey of the motorcycle was searched in the presence of PW11-Shri Brij Mohan Bairwa Tehsildar narcotic drug opium weighing 3.500 kg. was recovered and from the recovered substance two samples of 30 grams each were taken out and sealed separately and the remaining substance was also separately sealed. According to the witness he used his personal seal to seal the packets. He has also proved the memos prepared at the spot. In his cross examination, the witness has stated that at 6.30 p.m. on the desire of the appellant, Tehsildar was called and he reached at the spot at 6.45 p.m. According to this witness the Tehsildar came to the spot by his jeep. The witness has also stated that process of search and seizure was effected in the presence of Tehsildar PW11 Shri Brij Mohan Bairwa.
According to the recovery memo Ex.P3 on 6.4.2003 at 6.45 p.m. in the presence of Shri Kailash Chandra Sharma, Shri Girdharilal and Shri Brij Mohan, the SHO Randheer Singh PS Nainwa searched the dickey of the motorcycle, narcotic drug opium weighing 3.500 kg. was recovered. This memo bears the signature of PW11 Shri Brij Mohan Bairwa and thum impression of appellant. Memo of arrest Ex.P4 shows that on 6.4.2003 at 7.30 p.m. appellant was arrested at the spot in the presence of Shri Kailash Chandra Sharma and Shri Girdharilal. This document also bears the thumb impression of appellant.
A perusal of aforesaid evidence clearly indicates that on 26.4.2003 when in presence of PW11-Shri Brij Mohan Sharma and PW1 Shri Kailash Chandra Sharma and another police personnel Shri Girdharilal search was made by the Recovery Officer PW5 Shri Randheer Singh narcotic drug 3.500 kg was recovered from the possession of the appellant and he was not having any licence or permit to possess the recovered contraband. I find no major contradictions, infirmities or improvements in the statements of above witnesses. Even if there are any contradictions or infirmities in their statements, they are of minor and insignificant nature and only by that reason their statements cannot be doubted and discarded. The presence of PW11 Shri Brij Mohan Bairwa, the then Tehsildar Nainwa, cannot be doubted by the reason that there is variation regarding the fact that he came to the place of recovery by a Government jeep or on motorcycle or by the reason that whether he received information about search when he was in his office or at his residence. The witness in his cross examination has explained that the office and residence of Tehsildar are situated in the same building and on that day although it was Sunday but he was in his office regarding Famine work. There is no reason that a responsible Government officer of the rank of Tehsildar would falsely depose against an innocent person. It can also not be believed that the witness put his signature on the memos merely on the asking of a police officer although no search and seizure was made in his presence. So far as the statements of PW1 Kailash Chandra Sharma and PW5 Shri Randheer Singh are concerned, their statements cannot be discarded only by the reason that they are police officers. It is well settled that the evidence of a witness cannot be rejected only by the reason that the witness is a police officer/police personnel. If the court finds the evidence of such a witness reliable, then an accused can be convicted even on the evidence of such a witness. I find no reasons to reject the testimony of PW1 Shri Kailash Chandra Sharma and PW5-Shri Randheer Singh. So far as variance in time on which the memo of information Ex.P1, seizure memo Ex.P3, arrest memo Ex.P4 and memo of impression of seal Ex.P5 is concerned, I fail to notice any major variation in the time at which these memos were prepared. The learned counsel for the appellant failed to show how there is time variation in these memos. Ex.P1 memo of information was prepared at 6.30 p.m., Ex.P3 recovery memo was prepared at 6.45 p.m., appellant was arrested at 7.30 p.m. whereas memo of impression of seal was prepared at 7.50 p.m. The prosecution case is also that first of all, the appellant was informed about his right under Section 50 of the Act and on his desire gazetted officer Tehsildar Nainwa PW11 Shri Brij Mohan Bairwa was called on the spot and in his presence search was made at 6.45 p.m. It is also the case of the prosecution that after recovery and seizure, the appellant was arrested when it was found that he is not having a licence or permit and thereafter memo of impression of seal was prepared. This fact is also not very material whether weighing instruments were already with the police party or they were brought by a constable after the recovery was made and thus fact of recovery can not be doubted even if there is some contradiction in the statements of witnesses regarding this fact.
(f) In the present case the net weight of the recovered substance was found to be 3.500 kg. It is true that according to the FSL report, on chemical examination the morphine content was found only 7.03% but only by that reason it cannot be held that the total weight of the morphine in whole of the recovered substance is only 246 gms. 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 the FSL report on chemical examination the sample gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 7.03% 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. The Hon'ble Apex Court distinguished the case of E.Micheal Raj (supra). 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 poppy having 7.03% 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.3.500 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.
8. To assail the judgment of conviction and order of sentence no other submissions or contentions have been made on behalf of the appellant requiring consideration by this appellate court. The contentions made on behalf of the appellant are of no substance and are liable to be rejected. The net result is that the judgment of conviction and order of sentence passed by the trial court does not require any interference. The appeal is liable to be dismissed.
9. Consequently, there is no merit in this appeal and the same is, hereby, dismissed.
(PRASHANT KUMAR AGARWAL) J teekam All corrections made in the judgment/order have been incorporated in the judgment/order being emailed.
Teekam Khanchandani Private Secretary