IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.A No.325 of 2004 Reserved on : May 13, 2008. Decided on : May 22, 2008. Ashok Kumar and others …Appellants. Versus The Narcotics Control Bureau …Respondent. Coram The Hon’ble Mr. Justice Surjit Singh, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for reporting?1 Yes. For the Appellants : Mr. Anoop Chitkara, Advocate. For the Respondent : Mr. Ashwani Pathak, Central Government Counsel. Surjit Singh, Judge Appellants have challenged the judgment of trial Court, whereby they have been convicted of offence of possessing commercial quantity of Charas and being party to a criminal conspiracy to commit the offence of possession/transportation of Charas and sentenced to ten years rigorous imprisonment and fine of Rs.1,00,000/- each, in respect of offence of possessing Charas. No separate sentence for the offence of conspiracy has been awarded. 2. The conviction and sentence for possession of Charas has been ordered, under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, taking the Charas to be a manufactured drug. That is not correct, because Charas is not a manufactured drug and its possession is punishable under a Whether reporters of the local papers may be allowed to see the judgment? …2… separate provision, i.e. Section 20 of the said Act. The fact, however, does not vitiate the trial, because in the charge as also in the judgment and the findings and conclusions arrived by the trial Court, per impugned judgment, it is mentioned that the appellants were charged with, prosecuted and held guilty of the offence of possessing Charas, which offence, as already noticed, is punishable not under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, as mistaken by the trial Court, but under Section 20 of the aforesaid Act. 3. First, the relevant facts may be noticed. Narcotics Control Bureau, through its Intelligence Officer, PW-8 P.K. Sharma, filed a complaint in the trial Court making the following allegations therein. On 1st July, 2002, PW-4 Ravi Kant Pawar, working as Intelligence Officer with Narcotics Control Bureau, Chandigarh, received information that some persons, engaged in drug trafficking, were likely to pass through Swarghat in District Bilaspur of Himachal Pradesh. He reduced that information into writing and submitted that writing to his superior Officer PW-5 O.P. Sharma, Superintendent. A team of Narcotics Control Bureau Officers, comprising of PW-4 Ravi Kant Pawar, PW-5 O.P. Sharma and PW-8 P.K. Sharma, another Intelligence Officer, and some subordinate officials, left Chandigarh for Swarghat and organized a Naka near the excise barrier. PW-1 L.D. Sharma and PW-2 Sandeep Atri, both Excise Inspectors posted at Swarghat barrier, were associated as independent witnesses. 4. Around 4 a.m., a Toyota Qualis, bearing registration No.HP-01-8949, came from Nalagarh side. It was got stopped. Appellant Ashok Kumar was in driver’s seat. The other two appellants were travelling by the said vehicle. All of them were …3… having bags, which contained Charas. On weighment, the Charas in the bag of appellant Ashok Kumar was found to be 3.950 kgs, Charas in the bag of appellant Rattan Chand was found to be 9.650 kgs and Charas in the bag of appellant Jitender Singh was found to be 3.050 kgs. Three samples, each weighing 25 grams, were separated from the stuff recovered from each of the three appellants. The samples and the three bags containing bulk Charas were made into separate parcels. The parcels were sealed. Statements of the appellants, under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, were recorded by PW-8 P.K. Sharma, one of the two Intelligence Officers, who were the members of the party. 5. The three appellants stated that they had left Bhuntar early in the morning on 1st July, 2002, to drop two passengers, who were Israeli nationals, at Delhi, and that they were asked by Puran Chand (proclaimed offender in this case), who is resident of village Kasaul, Tehsil and District Kullu, to bring a trunk containing Charas, which was lying in a hotel known as Hotel Karlo-Castle, Main Bazaar, Paharganj, New Delhi, and he had promised to pay them freight at the rate of Rs.2,000/- per kilogram and so they went to the said hotel where PW-3 Arfan Alam handed over to them the trunk, containing Charas, and on the way they took out the contents of the trunk and put the same in their bags and threw the trunk. Puran Chand, named by the three appellants, could not be arrested. He was declared a proclaimed offender and was challaned alongwith the appellants, as a proclaimed offender. 6. One sample, out of the three samples collected from the stuff recovered from each of the three appellants, was sent to the …4… Chemical Examiner, who vide reports Ex. PX, PX-1 and PX-2 reported that all the three samples were of Charas. 7. Trial Court charged the three appellants with the offences, under Sections 21 and 29 of the Narcotic Drugs and Psychotropic Substances Act, as aforesaid. Charge framed by the trial Court was defective, as already noticed hereinabove, so far as it pertains to the number of the Section of the Narcotic Drugs and Psychotropic Substances Act pertaining to possession of Charas. The number of the Section ought to have been mentioned as 20, instead of 21, because what was recovered from the appellants was not a manufactured drug but cannabis (Charas), the possession whereof is punishable under Section 20 of the said Act. However, the defect has caused no prejudice to the appellants, as the charge specifically reads that they were being tried for possession of Charas. 8. Complainant-Bureau examined, besides its own officials, namely PW-4 Ravi Kant Pawar, PW-5 O.P. Sharma and PW-8 P.K. Sharma, who conducted the search and seized the Charas from the appellants, two Excise Inspectors posted at Swarghat barrier, namely PW-1 L.D.Sharma and PW-2 Sandeep Atri, and the Manager of the hotel at Delhi PW-3 Arfan Alam, who handed over the trunk to the appellants, on being instructed by proclaimed offender Puran Chand, telephonically. 9. The abovenamed three official witnesses of the Bureau and two Excise Inspectors of Excise Department of Himachal Pradesh stated, with one voice, that Charas, in question, was recovered from Toyota Qualis, bearing registration No. HP-01-8949, by which the appellants were travelling. All of them stated that the …5… vehicle, which was being driven by appellant Ashok Kumar and in which the other two appellants were also present, appeared from Nalagarh side around 4 a.m., on 2nd July, 2002, and that the vehicle was got stopped and on search three bags containing Charas were recovered from the appellants. They also stated that bag recovered from appellant Ashok Kumar, the driver, contained 3.950 kgs Charas, bag recovered from appellant Rattan Chand contained 9.650 kgs Charas and the bag with appellant Jitender Singh contained 3.050 kgs Charas. They also stated that three samples were separated from the stuff recovered from each of the three appellants and all those samples were made into separate parcels and duly sealed. They further stated that the bulk stuff recovered from each of the three appellants was made into separate parcels and those parcels were also sealed. 10. PW-3 Arfan Alam stated that trunk had been kept in his hotel by Puran Chand (proclaimed offender), but he did not know what its contents were and that on 1st July, 2002 he received a telephonic call from Puran Chand asking him to hand over the trunk to three persons, who would be contacting him, and so he handed over the trunk to the three appellants, who came to him and told that Puran Chand (proclaimed offender) had deputed them to collect the trunk. 11. Appellants did not deny that they were travelling by the aforesaid vehicle and the said vehicle was intercepted and Charas was recovered therefrom. However, they pleaded that the vehicle was intercepted not at Swarghat, but at a point two kilometers beyong Swarghat and that besides them Puran Chand, proclaimed offender, and one more person were there and the stuff recovered …6… from the vehicle belonged to said Puran Chand and another person. They stated that the police let Puran Chand and another person escape and the stuff recovered from the vehicle was planted on them. Suggestions on the line of this defence were put to all the abovenamed witnesses of search and seizure, who denied the same. The plea of the appellants is denied not only by the witnesses of search and seizure, as aforesaid, but is also disproved by the testimony of PW-3, Irfan Alam, who stated that only the present three appellants came to him to collect the trunk and that proclaimed offender Puran Chand asked him, on telephone, to hand over the trunk to them. The testimony of the witnesses suggests that Puran Chand himself was not at Delhi on that day and, therefore, he asked him (PW-3 Irfan Alam) to deliver the trunk to the three appellants. 12. Appellants in their statements recorded by PW-8 P.K. Sharma, under Section 67 of the Narcotic Drugs and Psychotropic Substances Act, also stated that when they left Kullu, on 1st July, 2002, they were asked by Puran Chand to collect the trunk, containing Charas, from the hotel of PW-3 Irfan Alam at Delhi and promised to pay them freight at the rate of Rs.2,000/- per kilogram of Charas. The statements are duly proved by PW-8 P.K. Sharma, PW-4 Ravi Kant Pawar, PW-5 O.P. Sharma, PW-1 L.D. Sharma and PW-2 Sandeep Atri. The same are Ex. PW-1/M, Ex. PW1/N and Ex. PW-1/O. No suggestion was put to PW-8 P.K. Sharma or the other witnesses, named above, who all have attested these statements, that the statements were not made by the appellants voluntarily or that any threat, promise or inducement was made to them to extract the aforesaid confessional statements. …7… 13. Learned counsel representing the appellants submitted that the trial Court was not competent to take the cognizance of the matter, as the complaint had not been filed by an authorized officer of the Narcotics Control Bureau. He argued that the complaint had been filed by PW-8 P.K. Sharma, an Intelligence Officer, while the notification issued by the Ministry of Finance, Department of Revenue, bearing No.SO-763(E) dated 27th September, 1989, authorized the Officers of and above the rank of Inspector of the Bureau to file complaints. He argued that there was no evidence on record suggesting that rank of an Intelligence Officer of the Bureau was equivalent to or above the rank of Inspector. 14. It is true that there is no direct evidence on record if an Intelligent Officer (as PW-8 P.K. Sharma, who filed the complaint, was at the relevant time) is equivalent or above an Inspector, in rank, but there is a Division Bench judgment of Calcutta High Court in T. Paul Kuki @ Pabul Youthhand Versus State of West Bengal, 1993(3) Crimes 660, wherein it has been held that Intelligence Officers of the Narcotics Control Bureau are equivalent, in rank, to the Inspectors of Central Excise. 15. Another submission made by the learned counsel for the appellants was that the search had also been conducted by an Officer not authorized for the purpose. He argued that as per Notification No.6/85-F No.664/51/85-opium, dated 14.11.1985, the Officers of the rank of Inspector or above of Narcotics Control Bureau were authorized to conduct search under sub-section (1) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act, but in this case the search had been conducted by PW-4 Ravi Kant Pawar, an Intelligence Officer. As already held while dealing with …8… the first contention of the learned counsel for the appellants, an Intelligence Officer is equivalent in rank to an Inspector and, therefore, under the aforesaid notification, dated 14.11.1985, he was authorized to carry out the search. Accordingly, the submission is rejected. 16. One more submission was made by the learned counsel for the appellants. He argued that search was conducted after sunset and before sunrise, but neither a search warrant nor authorization had been obtained nor were the grounds of belief that search warrant or authorization could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, recorded as per requirement of proviso to sub-section (2) of Section 42 of the Narcotic Drugs and Psychotropic Substances Act and that compliance with the said requirement of law was mandatory, as held by the Hon’ble Supreme Court in a number of cases. 17. Argument is without any merit. Search in the present case was conducted not under Section 42 but under Section 43 of the Narcotic Drugs and Psychotropic Substances Act, because the vehicle, in question, was registered as a taxi and, hence, it was a public vehicle. Search was also conducted at a public place, i.e., on the National Highway. Moreover, the Charas was seized when in transit. Therefore, it was Section 43 and not Section 42(1) or the proviso thereto, which was attracted. It has been held by the Hon’ble Supreme Court in State of Haryana Versus Jarnail Singh and others, (2004) 5 Supreme Court Cases 188, and Union of India Versus Major Singh and others, (2006) 2 Supreme Court Cases (Cri) 614, that where search is conducted in a public conveyance at a …9… public place, Section 42 has no application and such search and seizure is under the provisions of Section 43, which does not require the recording of grounds of belief that if time is consumed on obtaining authorization or warrant of search, the evidence would be concealed or the offender would escape. 18. Sum total of the above discussion is that there is no merit in the present appeal. The same is, therefore, dismissed. ( Surjit Singh ), J May 22, 2008(sd) ( Surinder Singh ), J