JUDGMENT [ENTITY], J.
1. This appeal is directed against the judgment dated 15-9-93, passed by the Special Judge, N.D.P.S. Cases, Jodhpur, by which the learned Special Judge convicted the accused-appellant for the offence under Section [SECTION] of the [ACT] (in short, 'the Act') and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 1,00,000/- and in default of payment of fine further to undergo one year's rigorous imprisonment.
2. PW. 2 [ENTITY], Station House Officer, Police Station, Jaitaran, was on a Special Checking Duty in connection with "Road Safety Week" campaign. On 10-1-93, he was checking the motor vehicles, as per directions of the Superintendent of Police, Pali, on Jaitaran-Agewa road and had laid a barrier. At about 2.00 p.m., the accused came on a moped-vickey. On search 1,730 kgs. of opium milk and 430 grams of opium were recovered from the dicky of the moped, which were seized. Two samples one from the opium milk and the other of the opium, weighing 30 grams each, were taken, which were separately sealed. The moped and the key to the dicky were, also, seized, site plan was prepared and the accused was arrested. The seized materials were deposited in the [ENTITY] of Police Station, Jaitaran. The sealed samples were sent for F.S.L. examination to the State Forensic Science Laboratory, Jaipur, which were found positive for the opium. The accused was challaned in the Court of the learned Special Judge, N.D.P.S. Cases, Jodhpur, and the prosecution, in support of its case, examined seven witnesses. The accused did not examine any witness in his defence. The learned trial Court, after trial, convicted and sentenced the accused-appellant for the offence under Section [SECTION] of the [ACT]. It is against this judgment that the appellant has preferred this appeal challenging his conviction and sentence passed by the learned Special Judge.
3. It is contended by the learned counsel for the appellant that (i) the compliance of the mandatory provisions of [SECTION] of the Act has not been made; (ii) there is a violation of [SECTION] of the Act as the seal used is the seal of Police Station, Jaitaran and not the personal seal of the Station House Officer; (iii) independent witnesses have not supported the prosecution case; (iv) the goods recovered have not been produced in the Court; and (v) the informant and the investigating officer is one and the same person, which vitiates the Whole trial. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that there is no violation of [SECTION] or [SECTION] of the Act and the independent witnesses of the recoveries, though have turned hostile but they have partly supported the prosecution case. It has, also, been contended by the learned Public Prosecutor that no objection regarding the use of the seal of the Police Station, Jaitaran, was raised at the earlier stage, moreover, no prejudice has been caused to the appellant due to this fact. It has, also, been contended that the goods recovered were produced in the Court at the later stage and even the non-production of the goods and the investigation by the same person, who made the seizure and later-on conducted the investigation, do not, in any way, prejudice the case of the appellant and unless the prejudice has been caused to the accused, the trial and conviction are not vitiated.
4. Before considering the submissions made by the learned counsel for the parties, I would first like to consider the nature of the evidence produced by the prosecution. PW1 [ENTITY] and PW2 [ENTITY] are the two Motbir witnesses to the recoveries of the opium and opium milk from the accused-appellant. They have not supported the prosecution case and were declared hostile. They were cross-examined by the learned Public Prosecutor. In the cross-examination, PW1 [ENTITY] has admitted that the recovery memos were prepared in his presence, which bear his signatures and no force was used upon him for signing these documents. The police was checking the vehicles and the opium and opium milk were recovered, which were weighed in the Police Station, but he cannot recollect the weight of the opium and of opium milk. He has, also, admitted that the Memos Ex. P. 1 to Ex. P. 4 were read-over to him and he appended his signatures thereon after fully understanding the same. PW 2 [ENTITY] has, also, admitted his signatures on the documents Ex. P. 1 to Ex. P. 4. PW3 [ENTITY] is the Assistant Sub-Inspector of Police, who, along with the Checking Party, went with the Station House Officer in connection with the Road Safety Week campaign and the checking of the vehicles were made. At about 2.00 p.m., the accused came on a moped-vickey. He was stopped and checked and on search, one bag was recovered from the dicky of his moped, which contained the opium milk weighing 1.730 kgs. and the opium weighing 430 grams. Two samples weighing 30 grams each, were taken from the opium milk as well as from the opium and thereafter the samples as well as the opium milk and the opium were sealed vide Ex. P. 2. The accused was arrested and a case was registered against him. In the cross-examination he has admitted that the opium was weighed by the Station House Officer in his presence but he denied the suggestion that the seizure memo was prepared in the Police Station. PW4 [ENTITY] was the Foot Constable at the relevant time, posted at Police Station, Jaitaran, who took the samples from the [ENTITY] on 12-1-93 for taking the same for F.S.L. examination to the State Forensic Science Laboratory, Jaipur. After taking the sealed packets from the [ENTITY], he got a forwarding letter (Ex. P. 8) prepared from the office of the Superintendent of Police, Pali, and thereafter deposited the sealed samples for F.S.L. examination in the aforesaid Laboratory. PW5 [ENTITY] was the Assistant Sub-Inspector of Police, posted in the Crime Branch of the office of the Superintendent of Police, Pali, who, after receiving the samples from [ENTITY], got a forwarding letter prepared and signed and handed-over the same to [ENTITY]. Both these witnesses have stated that the seals on the samples remained intact throughout from the date the samples were deposited in the [ENTITY] till they were deposited for F.S.L. examination in the State Forensic Science Laboratory, Jaipur. PW 6 [ENTITY] was the Station House Officer posted, at the relevant time, at Police Station, Jaitaran. He has stated that on 10-1-93, at about 1.00 p.m., he was on checking duty in connection with "Road Safety Week" campaign and was checking the vehicles on the High-way on Jaitaran-Agewa road near "Fauji Hotel". At about 2.00 p.m., the accused came on a moped from Dewariya side. He was stopped and checked and on checking, a plastic bag was found in the dicky of the moped, which contained the opium-milk weighing 1.730 kgs. and opium weighing 430 grams. Two samples weighing 30 grams each, were taken from the opium milk and the opium. The samples as well as the remaining opium-milk and opium were seized and sealed. The seized articles were deposited in the [ENTITY] of Police Station, Jaitaran, from where the samples, in the sealed condition, were sent for F.S.L. examination through PW 4 [ENTITY], which, on chemical examination, were found positive for opium. PW7 [ENTITY] was the Head Constable, who was with the Station House Officer ([ENTITY]) at the time of checking and his statement is the same as that of [ENTITY].
5. The first contention, raised by the learned counsel for the appellant is that the compliance of [SECTION] of the Act has not been made by PW 6 [ENTITY] the Station House Officer, Police Station, Jaitaran. He did not take-down in writing the 'belief or the 'personal knowledge' or any information received from any person that the accused-appellant has contravened the provisions of the Act, nor he forthwith sent a copy of the same to his immediate officer superior. The contention, raised by the learned counsel for the appellant is devoid of any force because the provisions of [SECTION] of the Act are not applicable in such matters. The Station House Officer had no prior information regarding the contravention of the provisions of the [ACT] by the accused-appellant. The Station House Officer, along with the Checking Party, had gone on the High-way in connection with "Road Safety Week" compaign and a drive was being organised by the police party for checking the vehicles on the road and during that checking, the appellant was detained and searched and on search the recoveries of the opium milk and the opium were made from the dicky of the moped driven by the accused and, therefore, the question of compliance of the provisions of [SECTION] or [SECTION] of the Act till the recoveries were made by the Station House Officer, does not arise as the alleged search and seizure were not made in pursuance to the prior information or any reasonable belief of the Station House Officer regarding the contravention of the provisions of the Act by the appellant. It has been held by the Supreme Court in the case of: the State of Punjab v. [ENTITY], (1994) 2 JT (SC) 108: (1994 Cri LJ 3702), that (at p. 3718 of Cri LJ):
If a police officer, without any prior information, as contemplated under the provisions of the Act, makes a search or arrest a person in the normal course of investigation into an offence of suspected offence as provided under the provisions of the [ACT] and when such search is completed at that stage, [SECTION] and [SECTION] of the [ACT] would not be attracted and the question of complying with the requirements thereunder would not arise. If during such search or arrest there is a chance recovery of any narcotic drug and psychotropic substances then the Police Officer, who is not empowered, should inform the empowered officer, who should thereafter proceed in accordance with the provisions of the [ACT]. If he happens to be the empowered officer then from that stage onward he should carry out the investigation in accordance with the other provisions of the [ACT].
The Station House Officer never proceeded on the spot after receiving any prior information or on any reasonable belief that the accused has contravened the provisions of the [ACT]. He went there only in connection with checking the vehicles on the High-way in pursuance to the "Road Safety Week" campaign and checked the accused and found narcotic drug and psycho-tropic substance in the dicky of his moped and, therefore, the provisions of [SECTION] or [SECTION] of the Act are not applicable till the search and seizure of the articles were effected from the accused-appellant.
6. The next contention, raised by the learned counsel for the appellant is that the seal, used by the investigating officer while making the recoveries is the common seal of Police Station, Jaitaran, and not the special seal as envisaged under [SECTION] of the Act, which vitiates the whole trial. In support of its contention, learned counsel for the appellant has placed reliance over: [PRECEDENT]. The appellant was apprehended only in a checking drive of the motor vehicles arranged in connection with the Road Safety Week campaign. The S.H.O. and the police party never proceeded after receiving any information or any belief that the contravention of the provisions of the [ACT] has been made by the accused and, therefore, it was not expected of the Station House Officer to have carried the special seal with him, as envisaged under [SECTION] of the Act. Moreover, the appellant has not been able to show that any prejudice has been caused to him due to non-placing the special seal on the samples etc. In the absence of any prejudice being caused to the appellant, even any illegality or irregularity in the investigation in this regard, does not vitiate the result unless some miscarriage of justice has been caused to the accused thereby. In the present case, the investigating officer never expected that some contravention of the provisions of the [ACT] will be made by the accused which will come to his knowledge and, therefore, he was not expected to carry the special seal with him, as suggested by the learned counsel for the appellant. The contention, raised by the learned counsel for the appellant, on this count, is, therefore, devoid of any force.
7. The next contention, raised by the learned counsel for the appellant is that the independent witnesses of the recoveries have not supported the prosecution case and the prosecution case mainly rests upon the evidence of the police witnesses, who are interested witnesses and, therefore, the judgment, passed by the learned Special Judge, deserves to be set aside and the accused-appellant deserves to be acquitted. In support of his case, learned counsel for the appellant has placed reliance over: [PRECEDENT]. PW1 [ENTITY] and PW2 [ENTITY] are the two Motbir witnesses to the recoveries. They have not supported the prosecution case and were declared hostile. But, however, in the cross-examination they have admitted their signatures on the recovery memos. They have, also, admitted that the opium and opium milk were recovered from the accused-appellant and were weighed in their presence. Thus, they have admitted the seizure and sealing of the opium and opium milk as well as the samples thereof. This evidence of the Motbir witnesses corroborates the statements of PW3 [ENTITY], A.S.I. and PW6 [ENTITY], S.H.O., who made the recoveries from the accused-appellant, prepared the recovery memos, seized the articles, sealed them, as well as the statement of PW7 [ENTITY], who was, also, a member of the Checking Party. The witness of the police witnesses cannot be thrown-away merely on the ground that they are police personnel and interested in the positive result of the case. It is the duty of the prosecution to call for the independent Motbir witnesses to the recovery and to produce them in the Court. This duty has been discharged by the prosecution in the present case. If the Motbir witnesses have been won over by the accused-appellant or they are not supporting the prosecution case in its entirety then merely on that ground the evidence of police personnel cannot be discarded and the whole prosecution case cannot be thrown away. In the present case, the statements of the police witnesses stand corroborated by the statements of the hostile Motbir witnesses, viz., PW1 [ENTITY] and PW2 [ENTITY]. Evidence of hostile witnesses is not wiped-off merely because they have turned hostile and it can be used for the purpose of corroboration to the extent they corroborate the prosecution version. It has been held by the Hon'ble Supreme Court in: the State of Punjab v. [ENTITY], 1994 2 JT (SC) 108: (1994 Cri LJ 3702 at p. 3710), that:
It is well settled that the said testimony of the witness is not to be doubted or discarded on the ground that he happens to be an officer but as a rule of caution and depending on the facts and circumstances of the case, the Court looks for independent corroboration.
Thus, the contention, raised by the learned counsel for the appellant has no legs to stand on and deserves to be rejected. In the case of [PRECEDENT], there were material contradictions in the statement of the prosecution witnesses on the point of recovery and the seizure and arrest of the accused was made in contravention of the mandatory provisions of the Act and the independent witnesses did not corroborate the evidence of the police witnesses, therefore, the learned Single Judge of this Court disbelieved the prosecution case looking into the material contradictions regarding the recovery and the seizure of the articles. This case is, therefore, of no assistance to the appellant.
8. The last contention, raised by the learned counsel for the appellant is that it was the Station House Officer PW 6 [ENTITY], who made the search and seizure and lodged the F.I.R. and later on conducted the investigation and as the informant and the investigating officer is one and the same person, the whole trial vitiates and the accused-appellant deserves to be acquitted. This argument of the learned counsel for the appellant is based on the judgments of this Court rendered in: [PRECEDENT] [PRECEDENT], [PRECEDENT] and [PRECEDENT]. In these judgments and in some other judgments of this Court, i.e., in: [PRECEDENT], [PRECEDENT], [PRECEDENT] and [PRECEDENT], the view that has been taken by this Court is that the Officer who recovered the contraband article from the accused had investigated the case also, and, therefore, the investigation was basically bad and reflects upon the credibility of the investigation and vitiates the trial and the conviction. Reliance has, been placed, in some of these cases, on the judgment of the Supreme Court in the case of: [ENTITY] v. State of Rajasthan AIR 1976 SC 985: (1976 Cri LJ 713). In the recent judgment of the Supreme Court in: the State of Punjab v. [ENTITY] (1994) 2 JT(SC) 108: (1994 Cri LJ 3702) it has been held by the Supreme Court that:- (at P. 3709 of Cri LJ) When a police officer carrying on the investigation including search, seizure or arrest, empowered under the provision of the [ACT], comes across a person being in possession of the narcotic drug or psychotropic substances then two aspects will arise. If he happpens to be one of those empowered officers under the Act, also, then he must follow thereafter the provisions of the [ACT] and continue the investigation as provided thereunder. If on the other hand, he is not empowered, then the obvious thing he should do is that he must inform the empowered officer under the [ACT] who should thereafter proceed from that stage in accordance with the provisions of the [ACT].
The Position of law, which emerges from the judgment of [ENTITY]'s case is that it is only the empowered officer who can conduct the investigation and if an empowered officer comes across a person being in possession of the narcotic drug or psychotropic substance and had made the search, seizure and arrested the accused under the Act then he can proceed with the investigation. It is not necessary, as per the view taken by the Hon'ble Supreme Court that it is only the other officer who should proceed with the investigation and the person, who has made the search or seized the article or arrested the accused or lodged the report, becomes disentitled to carry-on the further investigation. The officer who has seized the article, arrested the accused and lodged the report, can be said to be a 'complainant' only in a technical sense in view of the Explanation appended to [SECTION], of the Act, which defines the word 'complainant.' The proceedings on the spot, after receiving some secret information, proceeding to the spot and holding a search, seizure and arrest of the accused, are the part of the investigation, which have already been undertaken by the Station House Officer and lodging the report after the search, seizure and arresting the accused, does not make the investigating officer disentitled to carry-on the investigation as he has no grudge or annoyance or discontent or dissatisfaction against the accused. In the Supreme Court's judgment in [ENTITY]'s case, the Head Constable, to whom the bribe was offered, lodged the report. He had a personal grudge against the accused and he has lodged the report against the accused and, also, investigated the matter and, therefore, in those facts and circumstances, the Apex Court held that the investigation stands vitiated because it has been conducted by the complainant himself. But the position in the present case is somewhat different and in this view of the matter, after the judgment of the Supreme Court in [ENTITY]'s case, the earlier judgments, on which reliance has been placed by the learned counsel for the appellant, are not applicable and the empowered officer, after search and recovery, can proceed with the investigation.
9. In a larger Bench decision (consisting of five Judges) of the Supreme Court in: Dr. M.C. Salkunte v. The State of Mysore, AIR 1971 SC [SECTION]8: (1972 Cri LJ 519), a similar question, as is in the present case, came-up for consideration before the Supreme Court where the trap under the [ACT] was laid down by the Inspector, who further investigated into the matter and charge-sheeted the accused. The question: whether any prejudice was caused to the accused by reason of the investigation conducted and the trap being laid by the same Inspector of the police, arose for consideration and the Hon'ble Supreme Court held that: (Para 15) To set aside the conviction it must be shown that there has been a miscarriage of justice as a result of irregular investigation.
The Apex Court, therefore, dismissed the appeal filed by the accused-appellant, maintained the conviction and sentence by holding that even if any irregularity is conducted in the investigation, no miscarriage of justice has been caused thereby.
In [PRECEDENT] it has been held that:
An illegality committed in the course of investigation does not affect the competence and jurisdiction of the Court for trial and where cognizance of the case, in fact, has been taken and the case has preceded to termination, the invalidity of the preceding investigation does not vitiate the result unless miscarriage of justice has been caused thereby. The defect or illegality in the investigation, however serious, has no direct bearing on the competence or the procedure relating to cognizance or trial.
In [PRECEDENT] the same view has been reiterated by the Apex Court by observing that:
Function of investigation is merely to collect the evidence and any illegality or even irregularity in the course of collection of evidence can scarcely be considered to affect the legality of the trial by a otherwise competent Court unless the miscarriage of justice has been caused thereby.
In [PRECEDENT], it has been held: "The Court would not attach any importance to any illegality in the matter of investigation if it is relied upon at the conclusion of trial in the absence of prejudice pleaded in the Court. To put an accused to trial, the investigation is a preliminary step. Trial follows cognizance and cognizance is preceded by investigation.
An inclusive definition of investigation has been given in Sub-clause (b) to Section 2, of the [ACT], according to which 'investigation' includes all the proceedings under this Code for the collection of evidence, conducted by a police officer or by any person (other than a Magistrate) who is authorised by the Magistrate in this behalf. As per the definition, it consists of: (i) proceedings to the spot; (ii) the arrest of the suspected offender; (iii) the collection of evidence relating to the commission of the offence; (iv) the search of the place or seizure of the things; (v) ascertainment of the facts and circumstances and preparation of the site-plan etc.; (vi) recording the statements of various witnesses; and (vii) thereafter to form an opinion whether from the evidence collected by the investigating officer, any case to proceed-with against the accused is made out. Thus, if after receiving the information from some secret source when the investigating officer proceeded towards the place to arrest the accused and to make the search and seizure and if he found that some contravention of the provisions of the [ACT] has been made then it is in the process of investigation. The Act does not envisage the investigation by two separate persons - one, up to the stage of arrest of the accused, search and seizure and thereafter by the another officer. The investigating officer, who made the search, seized the article, arrested the accused and lodged the report, who was authorised under the [ACT] to investigate, was, thus, competent to proceed with the investigation in view of the latest judgment of the Supreme Court in the case of: the State of Punjab v. [ENTITY], (1994 Cri LJ 3702). There is no provision either in the [ACT] or in the [ACT], according to which any illegality or irregularity in the investigation would render the trial illegal. In the absence of any such provision, any irregularity or illegality in the investigation thus, cannot vitiate the trial or conviction. The learned Special Judge has, therefore, not committed any illegality or irregularity in convicting and sentencing the accused-appellant and the appeal, filed by the appellant, deserves to be dismissed.
10. In the result, I do not find any merit in this appeal and the same is hereby dismissed.