1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T 1. S.B.CRIMINAL APPEAL NO.1246/2002. Hansraj & another Vs. The Union of India. 2. S.B. CRIMINAL APPEAL NO.911/2002. Devi Lal Vs. The Union of India. S.B.CRIMINAL APPEAL UNDER SECTION 374(2) CR.P.C. **** DATE OF JUDGMENT: 2nd MARCH, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr. Biri Singh Sinsinwar) for the appellants. Mr. Surendra Singh ) Mr. Laxman Madnani) Special Public Prosecutor for Union of India. Mrs.Rekha Madnani ) Mr. Naresh Kumar Dangi) BY THE COURT: These two appeals have been filed under section 374 (2) Cr.P.C. against the judgment and order dated 1st July, 2002 passed by the learned Special Judge, NDPS Act Cases, Jhalawar in Sessions Case No. 9/2001 (Union of India Vs. Devilal and others) whereby the learned trial court has convicted and sentenced the accused appellants for the offences under sections 8/15 and 8/29 of the Narcotics, Drugs and Psychotropic Substances Act 1985 (in short referred to as, 'NDPS Act') as under:- 2 ACCUSED HANSRAJ U/s 8/15 NDPS Act 15 years R.I. And fine of Rs.1.50 lacs, in default of payment of fine to further undergo 4 years 6 months S.I. ACCUSED RANJIT U/s 8/29 NDPS Act 15 years R.I. And fine of Rs.1.50 lacs, in default of payment of fine to further undergo 4 years 6 months S.I. ACCUSED DEVILAL U/s 8/15 NDPS Act 15 years R.I. And fine of Rs.1.50 lacs, in default of payment of fine to further undergo 4 years 6 months S.I. Briefly stated the facts giving rise to the present case are that PW-8 D.P. Bhatnagar, Inspector Central Bureau of Narcotics filed a complaint in the court of Special Judge, NDPS Act Cases, Jhalawar on 7.2.2001 stating, inter-alia, that on 11.11.2000 a team constituted under the leadership of PW-1 J.L. Meena, Superintendent, Central Bureau of Narcotics consisting of PW-2 A.Q. Sagar, PW-7 A.P. Choudhary, PW-4 Nisar Mohammad, PW-5 Phool Chand, PW-6 Azizullah Khan, PW-8 Dharmendra Prasad Bhatnagar, Ghasiram, Jahin Ahmed and Madan Lal to check the illicit trafficking of the contraband material. The above persons of the Narcotics Bureau Department on 11.11.2000 reached near Suliya Chowki about 12.30 p.m. (morn.) and while they were checking the vehicles, a truck bearing No. RJ 31 G 2508 came from the side of Bhawani Mandi. The truck was stopped by PW-2 A.Q. Sagar. After 3 stopping the truck, inquiry was made by him from the driver and two persons those who were sitting in the truck. They handed over the challan builty of the truck and on seeing the challan builty a doubt arose about the authenticity of the builty. They wanted to check the truck, therefore, two independent witnesses were arranged. Thereafter inquiry was made from the accused persons infront of witnesses. They disclosed their names as Devilal, Hansraj and Ranjit, all residents of Hanumangarh. They were thereafter given notice Ex.P-1 to P-3 under section 50 of the NDPS Act respectively to Devilal, Hansraj and Ranjit. It was stated in the notice under section 50 of the NDPS Act that they had right to be searched in the presence of the Magistrate or before a gazetted officer. It was also stated in the notice that since one officer PW-1 J.L. Meena of the Narcotics Bureau was superintendent, Narcotics Bureau Department and was a gazetted officer and in case they were willing to be searched by him, search of their person and the truck could be taken in his presence. The accused gave consent for the search of their persons as well as of truck by PW-1. In the search of the truck 124 bags of doda chura powder were found below orange bags and the accused-appellants also confirmed that bags recovered contained doda chura powder. After getting the bags unloaded the same were weighed and total weight was found 4630 kg. The accused were asked as to whether they possess license for transporting the contraband material to which they denied. Two 4 samples each of 50 gms were taken from bags and marked as A-1 to M-1. Total 26 samples were taken. The samples were sealed. Memo Ex.P-4 seizing the bags and taking the samples was prepared. Samples in the bags were marked. There weight was also mentioned in the memo Ex.P-4. Thereafter, it was signed by the accused as well as other members of the Central Bureau of Narcotics Department. Specimen seal memo Ex.P-5 was prepared in the presence of accused and other persons. All signed the memo of specimen seal. Site map Ex.P-6 was also prepared. Everything was completed by 6.30 p.m. The sealed sample packets were examined by the Opium and Alkali ed Works, Neemach (M.P.) on sending the same through PW-6 Azizullah Khan constable to find out as to whether the material contained any contraband material. 13 samples reached in laboratory properly with seals intact. On examination found containing morphine therein within the meaning of NDPS Act. Statement of accused namely Devilal Ex.P-16, Hansraj Ex.P-17 and Ranjit Ex.P-18 were recorded. The accused thereafter were arrested through memos Ex.P-7, P-8 and P-9. between 7.30 p.m. to 9.00 p.m. PW-2 A.Q. Sagar submitted FIR before PW-1 J.L. Meena, Superintendent, Central Bureau of Narcotics along- with truck, accused-appellants and the memos prepared at the site. PW-1 J.L.Meena on the report registered case No.2/2000 under section 8/15 of the NDPS Act and handed over investigation to PW-8 D.P. Bhatnagar. On the basis of the 5 statement of the accused, Gafoor Khan, Pawan Kumar, Madan Lal Bansal, Umrav Singh and Narayan Singh were given notice by the department but they did not appear. The learned trial court on filing complaint after hearing both sides framed charge under section 8/15 of the NDPS Act on 17.2.2001 to which the accused denied and claimed trial. In support of its case, the prosecution examined as many as 8 witnesses and tendered several documents. After close of the prosecution evidence in the statement recorded under section 313 Cr.P.C., the accused stated that they were falsely implicated. The accused Devilal and Ranjit stated that they were arrested from railway station, Bhawanimandi and thy had no concern with the truck or the material recovered from the truck. They have also stated that their signatures were obtained on blank papers and their statement were not recorded by the officials of the Narcotics department. Accused Hansraj has stated that he does not know driving of the truck and he had no concern with the truck. He was arrested from the railway station, Bhanwanimandi and his signatures were obtained on the blank papers by the officials of the Narcotics department. No evidence in defence was adduced. After hearing final submissions, learned trial court convicted and sentenced the accused as indicated above. I have heard learned counsel for the accused appellant as well as learned public prosecutor for the Union of India. 6 Following submissions have been made by the learned counsel for the appellant: (i) The compliance of sections 42, 55 and 57 of the NDPS Act has not been made in the case, therefore, the judgment of conviction and order of sentence is liable to be set aside; (ii) No inquiry in relation to other persons to whom notice were given finding involvement in relation to recovered contraband material shows that other persons those in fact were responsible have been left and accused appellants have falsely been implicated in the case. (iii) The statement of the accused under section 67 of the NDPS Act are not admissible in evidence. (iv) Sentence awarded is excessive. On the other hand, learned public prosecutor has made the following submissions. (i) The case was not one where a secret information was recorded prior to the incident and, therefore, compliance of section 42 of the NDPS Act was not a must. (ii) Necessary compliance of sections 55 and 57 of the NPDS Act has been made. (iii) The above provisions of the NDPS Act are only directory and not mandatory in nature. (iv) In the instant case, since on checking of the truck, it was found to contain bags of poppy straw on the public way, therefore, the provisions of section 43 are applicable. 7 I have carefully considered the submissions made before me. In the instant case in relation to the submissions made by the learned counsel for the accused appellants, it is to be seen as to whether compliance of section 42 of the NDPS Act was must and the same has not been made, therefore, the accused are entitled to be acquitted on this count. It appears that in relation to truck seized, there was no prior secret information but when by the officials of the Narcotics department after stopping the truck which was in transit on search found containing bags of doda powder, therefore, compliance of section 42 of the NDPS Act was not essential. In the case of State, NCT of Delhi vs. Malvinder Singh (2007 Cr.L.R.(SC) 504) Sub Inspector of Special staff, North District, Delhi while he was on patrolling duty along with other police persons was informed by an informer near a Petrol Pump, which was within the bounds of Police Station, Timarpur that accused Malvinder Singh was in possession of opium. Consequently, a raiding party was organized and accused while driving the scooter was spotted by the members of the raiding party and was stopped. The accused was informed about the information that he had in his possession contraband material and option was given to him for search. The S.H.O. of the Police Station Shri Ramesh Chand Saini and Shri H.M.Meena A.C.P. Were informed and requested to come at the spot and when they 8 came, in their presence search was conducted and opium was recovered. Charge-sheet was filed in the case. After trial, conviction was recorded against the accused under the provisions of the NDPS Act . On appeal before the High Court, judgment of the trial court was set aside holding that in the absence of compliance of Section 42 of the NDPS Act, conviction was not maintainable and acquitted the accused. The matter came up before the Hon'ble Apex Court. A argument was raised that the police officer while on patrolling duty received information and had organized the raid party and the A.C.P. was also informed. Therefore, section 42 of the Act was having no application in the case and in fact the case was not only covered by section 43 of the NDPS Act but also covered by Section 41 of the NDPS Act. The Hon'ble Apex Court considering observations made in the case of T.Thomson vs. State of Kerala & Anr. (2002) 9 SCC 618 and State of Haryana vs. Jarnail Singh & Ors. (2004) 5 SCC 188 observed that in the facts of the case provisions of section 43 of the NDPS Act were applicable because 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 etc. in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the 9 Act. Explanation to Section 43 lays down 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. It has been further observed that sections 42 & 43 contemplates two different situations. Section 42 contemplate entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise. It has been further observed that in the facts of the case section 42 has no application and the order of the High Court was liable to be set aside. In the case of Narayanaswamy Ravishankar vs. Asstt. Director, Directorate of Revenue Intelligence- 2002 Cr.L.R. (SC) 892 the Apex Court while considering sections 42, 43, 50 & 57 of the Act, in the facts where 5940 gms. of heroin found concealed in the bottom of a suitcase alleged to be belonging to Narayanaswamy while he was attempting to transport the same from International Airport Chenai to 10 Singapore, the accused after trial was acquitted by the trial court holding that mandatory provisions like section 42 & section 50 had not been complied with. In appeal to the High Court, the decision of the trial court was set aside and accused was convicted and sentenced. Before the Hon'ble Apex Court on appeal, argument was of absence of compliance of sections 42 & 57 of the NDPS Act, which vitiated the trial. The Hon'ble Apex Court observed that on the basis of record and evidence led in the case, it was found that the search and seizure took place at the Airport, which is a public place. Therefore, provisions of section 43 of the NDPS Act would be applicable. It was also observed that seizure was made in public place. The question of non-compliance, if any, of the provisions of section 42 of the NDPS Act is wholly irrelevant. It has also been observed that as per the statement of P.W.3, the arrest of the accused was immediately intimated to the superior officer. Therefore, finding no merit in the appeal, the same was dismissed. In the case M.Prabhulal vs. Assistant Director, Directorate of Revenue Intelligence – AIR 2003 SC 4311 the Hon'ble Apex Court has observed that when the Gazetted Officer has himself conducted the search, arrested the accused and seized the contraband, he was acting under section 41 and, therefore, it was not necessary to comply with section 42. 11 In the case of Aamir Khan @ Naru vs. Central Narcotic Bureau – 2006(1) Cr.L.R.(Raj.) 445 , in para 7 it has been observed as under :- “From the record it is clear that information received from informer at 20.30 was reduced in writing marked as Ex.P1 by the Superintendent and thereafter a team was constituted consisting of Superintendent, Vijay Singh Meena himself and 2 Inspectors namely Sanjay Kumar and Rakesh and Sub-Inspector Laxman Kataria. The team went at the spot as per information given by the informer and in presence of all, search was conducted by Laxman Kataria, P.W.6. P.W.1 Vijay Singh Superintendent and 2 Inspectors were also present at the time of search from the accused. P.W.1 Vijay Singh Superintendent also stated before the Court that after receipt of consent of the accused for search, he directed Shri Kataria Sub-Inspector to make search. During search 1 Kg. Heroin was recovered. As per notification dated 2.3.1988, Central Government Department of Central Narcotic Bureau authorized sub-Inspector and above officers of the Department under Section 42 of the Act. Therefore, in view of above referred notification dated 2.3.1988 it is clear that P.W.6 Laxman Kataria Sub-Inspector was authorized officer under Section 42 of the Act. Apart from above, it is also clear that the Superintendent, Vijay Singh and 2 Inspectors were present at the spot and as per statement of P.W.-1 he gave instructions to Laxman Kataria to make search in the matter. In these circumstances, I do not find any violation of Section 42 of the Act. So far as another submissions about violation of sub-section (2) of Section 42 of the Act is concerned, I find that information Ex.P1 was recorded by PW-1 Vijay Singh, who was Superintendent and was Gazetted Officer, therefore, in view of judgment of the Hon'ble Supreme Court in G.Srinivas Gound vs. State of A.P.(supra) the compliance of sub-section (2) of section 42 of the Act was not necessary. So far as Ex.P-1 and Ex.P-7 are concerned, I find that Crime No.0/1999 has been mentioned and both the documents have been proved by the cogent evidence.” 12 In the case of Kulwant Singh vs. State of Rajasthan – 1998 Cr.L.J (Raj.) 745 it has been observed by this court that when Circle Officer himself arrived at Police Station and verified about the information then in the above circumstances, not sending the information as per the provisions of Section 42 of Act was not necessary. In the case of Bhairu Lal, Veer Ji Kumawat vs. State of Gujarat – 1992 (2) E.f.R. 51 the provisions of Section 42(2) of the NDPS Act have not been considered mandatory in nature. It appears that as regards sending detailed information to the higher officials are concerned, that provisions has been properly complied with. Ex.P-11 is the detailed report under section 57 of the NDPS Act presented before Superintendent, Central Bureau of Narcotics and has been proved by PW-1. The above report was also received along with relevant memos prepared. This fact finds place at para 20 of the impugned judgment. In view of the fore-going discussion, I find no merit in the contention of the learned counsel that in view of non- compliance of sections 42 and 57 of the NDPS Act the accused appellants are entitled to be acquitted. As regards the contention of the learned counsel for the accused-appellants that proper sealing was not done and compliance of section 55 of the NDPS Act was not made, therefore, the provisions being mandatory in nature, the accused 13 are liable to be acquitted is liable to be rejected for the simple reason that as per the law developed on the point, the provision is mandatory in nature. Besides this, it appears that memo Ex.P-5 of impression of seal was prepared at the spot. The witnesses namely, PW-1 J.L. Meena, PW-2 A.Q. Sagar, PW-3 Bafati Khan, PW-6 Azizullah Khan, PW-7 A.P. Choudhary and PW-8 Dharmendra Prasad Bhatnagar in their statement recorded before the trial court have proved this aspect of the matter and further the seal packets were sent for examination in laboratory of Neemach (M.P.) and a report thereof Ex.P-15 was recovered wherein it has been specifically stated that the samples were found intact and properly sealed and also received with specimen impression of seal used at the time of seizure. Sufficient evidence to show that samples taken at the spot were the same sent for chemical examination. The entires of the samples were made in Ex.P-16, the register, a photo-stat copy of which has been placed on record and marked Ex.P-16A. PW-6 Azizullah Khan sepoi took the sealed 13 packets after obtaining them from PW-1 to deposit the same in Alkalied Works, Neemach for examination. Thus, the argument of the learned counsel for the accused-appellants that on account of non-compliance of section 55 of the NDPS Act accused are entitled to be acquitted is liable to be rejected. 14 It is correct that in relation to other persons notices were sent but then if no inquiry was conducted any further or no complaint was filed, that cannot be a ground to entitle the accused-appellants to be acquitted from the charges framed against them. The argument of the learned counsel for the accused-appellants requires to be rejected. In relation to the argument of the learned counsel for the accused appellants that they were falsely implicated or their statement were recorded after arresting them, therefore, the same cannot be considered admissible in evidence. It appears that the accused were arrested and between 7.30 to 9.00 p.m. and prior to that by 6.30 p.m. almost all necessary memos regarding search, seizure, taking of samples etc. were prepared and thereafter statement were recorded and accused were arrested vide memos Ex.P-7 to P-9. It may be mentioned here that not only the statement of accused recorded under section 67 of the NDPS Act (Ex.P-16 to P-18) but the other material available on record in itself is sufficient to reach to a conclusion that in the truck the accused-appellants were found and thereafter on making the search of the truck, contraband material was recovered and the accused had no license to possess or transport the same. The learned trial court has also discussed the matter in detail. By the evidence of the witnesses namely; PW-1 J.L. Meena, PW-2 A.Q. Sagar, PW-4 15 Nisar Mohd., PW-5 Phool Chand and other witnesses, it has been amply established that the accused were in conscious possession of contraband material when they were found in truck to which no satisfactory explanation was offered by them. Simply in the statement recorded under section 313 Cr.P.C. accused stated that they were falsely implicated in the case, cannot be considered sufficient to exonerate the accused from the liability to explain the conscious possession of contraband material at least by placing same on record to show that they were falsely implicated in the case. There does not appear any reason for the witnesses of the Narcotics department to falsely implicate the accused appellants in the case. The argument of the learned counsel, therefore, has no substance and is hereby rejected. In the last, it has been argued that the alleged recovery in the instant case was made of poppy straw bags/ poppy straw powder and the accused were at that time quite young and now almost 8 years have passed, their families have completely being ruined, their daughters are of marriageable age, therefore, if the sentence is reduced from 15 years to 10 years, that would meet the ends of justice in the facts and circumstances of the case. 16 On the other hand, learned public prosecutor has contended that looking to the act of the accused-appellants severe punishment was required and the trial court has adequately punished the accused for the offence committed by them. I have carefully considered the submissions made before me. In the facts and circumstances of the case and particularly taking into consideration the argument of the learned counsel for the appellants and the precarious condition of the families of the accused-appellants, I am of the opinion that in this case, if the sentence awarded to the accused-appellants under section 8/15 and 8/29 of the NDPS Act is reduced to 10 years with a fine of Rs.1 lac and in default of payment of fine to further undergo two years simple imprisonment will meet the ends of justice. In view of the fore-going discussions, both the appeals require to be partly allowed. While maintaining conviction against the accused-appellants, the sentence under sections 8/15 and 8/29 of the NDPS Act is reduced from 15 years R.I. to 10 years R.I. and fine from Rs.1.50 lacs to Rs.1.00 lacs, in default of payment of fine to further undergo four years six months simple imprisonment is reduced to two years simple imprisonment. 17 In the result, both the appeals are partly allowed and while maintaining the judgment of conviction, the order of sentence under section 8/15 of the NDPS Act against accused appellants Hansraj and Devilal and under section 8/29 of the NDPS Act against accused appellant Ranjit is reduced from 15 years R.I. to 10 years R.I. with fine of Rs. 1.00 lacs instead of Rs.1.50 lacs and in default of payment of fine to further undergo two years simple imprisonment instead of 4 years 6 months simple imprisonment. The accused appellants are in jail. They will serve out the remaining sentence. The order of sentence is modified to the above extent. (S.P.PATHAK) J.