1 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) IN THE HIGH COURT OF JUDICATURE FOR RAJSATHAN AT JODHPUR S.B. CRIMINAL APPEAL NO. 444/2003 (BABU LAL S/O KASHI RAM Vs. STATE ) (GOVING SINGH S/o NATHU SINGH VS. STATE) J U D G M E N T Date of order : 07th October, 2010 PRESENT HON'BLE MR. C.M. TOTLA, J. Mr. Shaitan Singh for Mr. Mridul Jain for the appellants. Mr. K.K. Rawal, P.P. BY THE COURT = = = = Appellants convicted for the offence of violation of Section 8 punishable under Section 18 of NDPS Act recorded in Sessions Case No. 65/2000 by judgment dated 28.02.2003 and sentenced to ten years RI with fine Rs. 1 lac and in default one year RI challenges the validity of conviction and sentence awarded. Heard learned counsel for the appellants and the Public Prosecutor. Prosecution version as disclosed appears to be that posted SHO at Police Station Pratapgarh on 17.10.09 Sub inspector Tej Singh PW/12 making roznamcha entry No. 895 handing over charge to Sub Inspector Suresh Kumar PW/2 Ex.P/23 at 11:15 PM proceeded for investigating for certain FIR. PW/2 about two hours later i.e. at 1 AM informed by some of two persons Babu lal and 2 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) Govind Singh (appellants) with illegal opium shall be proceeding on foot towards Fathpur from their village Jamalpura, so PW/2 making entry Ex.P/21 bearing No. 898 in Roznamcha intimated of this information to Dy. Superintendent vide Ex.P/13, by dispatching it with Constable Keshar Singh PW/11. PW/2 with other SI and two constables making entry Ex.P/22 in Roznamcha proceeded to village Jhansdi where on asking accompanying Constable PW/3 called independent witnesses PW/1 & 9 who when given notices Ex.P/1 and P/16 of received information and asked to be motbir expressed consent and recorded on Ex.P/2 and 16. Allegedly at about 3:30 in night, two persons were seen coming on foot from vilage Jamalpura who encircled and asking them were obtained their names and other particulars etc then were told of information received and further asked if they desirous of search before and by gazetted or higher officer or by incharge present and they expressed desire and consented for search by them. So search was made. Babu lal who had a white bag in his hands containing polythene bag in which was black vicious substance which smelt and tasted of opium and as Babu lal did not have a license so substance seized and on weighing found to be 3.5 kg from which taken and separately sealed were two samples of 50 gm each. Then search was made of other person Govind Singh who also was having a green bag in his right hand in which also was while polythene containing black vicious substance appearing opium that also was seized and weighed 3.0 kg from which also two samples were collected and separately sealed. Memo of these proceedings prepared is Ex.P/4 and packet sealed as above 3 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) respectively marked A to F and seal impression also fixed preparing separate impressions. Appellants informed of their arrest vide memos Ex.P/17 & 18 and arrested preparing memos Ex.P/7 & 8, preparing memo of proceedings P/14 FIR bearing No. 408/01 P/15 came to be registered. Superintendent of Police was informed of all above happening vide letter P/20 ad malkhana articles deposited with Malkhana incharge PW/6, making memo Ex.P/19, and PW/6 making entries P/25 in register keeping packets safe handed over two sample packets marked A & D to Constable PW/7 who obtaining forwarding letter P/26 and with seal impression of above packets deposited at laboratory obtaining receipt P/27. Inspecting place of occurrence I/O PW/10 before PW/4 and PW/5 prepared site memo and plan Ex.P/18 completing needful including recording statements, chargesheet submitted. FSL Report Ex.P/29 describe of substance found in received intact sealed packets to be opium having respectively 6.75 and 8.17 per cent morphine. Appellant Babu lal charged of keeping opium 3.5 kg and appellant Govind Singh of keeping 3.0 kg- denied and claimed trial. PW/1 and PW/9 are motbirs of recovery, declared hostile, state of police obtaining their signature at police station. PW/4 & 5 of preparing site plan. PW/2 is seizure officer and constable PW/3 accompanied him. Head Constable PW/6 & Constable PW/7 depose of safe keeping and delivering packets at FSL and related matters. R PW/8 wife of elder brother of one of the accused appellant of opium 4 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) cultivation license for appellant Babu lal two years ago – PW/10 and 12 investigated including recording of statements. According to appellant, witnesses are telling lie. Appellant Govind Singh avers that while he sleeping at village was taken away. Per appellant Babu lal he was sleeping in compound of Bhadar Singh was picked up by police. Defence witness Bahadur Singh DW/1 state of appellants being his relative came to him and they went to village Honia in some social function where when were asleep in night came police man, abused them, and though asked by others gathered to refrain still took appellants with them. Learned Sessions Judge concludingly inferred that competent officer complying all procedural provisions searched and seized and appellants were in possession of narcotic substance held guilty and sentenced. Learned counsel for the appellant assailing findings of learned Judge argues that (i) SI PW/2 who allegedly searched was not empowered and competent to make such search and seizure (ii) under S.42 search can only be by empowered officer and PW/2 not empowered and he knowing himself not to be SHO, if at all did search, it is completely illegal (iii) mandatory provisions of Section 42 are not complied so vitiated entry is search and seizure – consequently all proceeding (iv) no separate memo of information, said to have been received, is made and is not produced (v) provisions of Section 50 not complied with – assertingly urged t hat provisions are applicable and even if not applicable when contemplated, and per prosecution complied with then as mandatory 5 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) is so strict compliance is to be (vi) Section 55 completely flouted (vi) not fulfilled requirements of Section 57. Taking through the evidence, submits that version of possession and recovery cannot be believed - evidence and versions contrary to each other - memos prepared finds number of FIR which do show of preparation of all memos only post FIR – link evidence i.e intact delivering packets at FSL missing. Stressed that weight found in laboratory is substantially less than the said weight of sample allegedly taken. On behalf of appellant, cited is 2001 Cr. L.J 1166 Gurbax Singh Vs. State of Haryana. On behalf of appellants lastly submitted that sentence awarded in default of payment of fine ought to be reduced. Learned Public Prosecutor submitted that proved in each possession of appellant was opium. Evidence at length is well discussed and analysed by learned trial Judge so need not be repeated in detail. Produced evidence disclose action and recoveries per memos prepared - with stray contradiction or omission here and there to which significance cannot be attached to. Regarding non-authorising of search officer PW/2, pointed out is that he was not regularly posted as SHO but was SI whereas, according to prosecution incharge in absence of SHO doing his duties is vested with all empowerment of SHO. Learned Sessions Judge discussing at length found that regular SHO away so, PW/2 was empowered for all including seizure. The search was made on 18.10.2000. Notification under Section 42 promulgated in year 1988 empowers SHO of police station or officers of rank of 6 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) inspectors. PW/12 depose and so also is deposed by PW/2 and others that PW/2 was incharge police station. Further proved is that PW/12 Tej Singh per entry Ex.P/23, departed from Police station for investigation in relation to other FIR No. 170/2000 and departed from police station giving charge to Suresh Kumar PW/2. PW/12 was SI, PW/2 is also SI who again was given charge specifically mentioning so as above. Roznamcha entry of information received Ex.P/21 and subsequent entries of proceeding for search etc also mentions of PW/2 doing so in the capacity of Incharge. Given such fact situation and when incharge PW/12 provenly was out to a distance and not in direct control of police station then not in position to perform all his duties who also made entries in roznamcha as above. Moreover, the search is not of building, vessel, conveyance but at public way so such argument on such proven fact situations cannot be sustainable. Stress is laid down of non-separate reduction in writing of secret information received. Pertinent to note is that the provisions do prescribe for reduction of information in writing. The information is to be reduced in writing and received information is proved to have been reduced into writing in Roznamcha Ex.P/21A at 1 O clock in night which stands proved by evidence of PW/2 and Constable PW/3. Moreover communication of such information and proceeding for needful action is made to higher officer vide Ex.P/13 as is established by depositions of PW/2 and Constable PW/11 who delivered Ex.P/13 in morning to Dy. S.P at 7:30 AM and Ex.P/13 which further finds endorsement with seal of the Superintendent of 7 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) police he having received it at 10AM. Therefore, the argument raised have not basis. Packets of substance recovered and seal impressions prepared were delivered to Malkahan incharge, Head constable PW/6 Jamna lal who depose of having received in sealed state and of safe intact keeping in malkhana making entries Ex.P/25 in register. PW/2 the recovery officer state that he delivered packets to PW/6 preparing and vide memo Ex.P/19. PW/6 further depose of handing over two packets marked A & D to Constable PW/7 on 08.11.2000 and Constable PW/7 state of receiving packets from PW/6 and papers from P.S and then obtaining forwarding letter from the Superintendent office at Chittorgarh going Jaipur and staying therein in night at P.S. Bani Park depositing both packets intactly at FSL on 10.11.2000. Copy of forwarding letter to FSL is P/26 and receipts P/25. Section 55 provides for taking of charge of articles at Police station and sealing with seal of Officer incharge. Here articles were already sealed by Officer incharge. On the given facts is not essential seems and was to re-seal. Moreover, the articles are prove to have been safely delivered on the very same day to Incharge, Malkhana who keepig safe and intact handed over for delivering at FSL. With above, thrustly raised is argument of laboratory finding of weight of substance being less than 50 gm. According to prosecution and evidence produced, sample collected was of 50 gm and PW/2 and other mentions of taking samples of 50 gm each and keeping them in a polythene and that in iron small container (dibbi) 8 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) which wrapped by cloth and then sealed. Per FSL report Ex.P/29 substance contained with polythene pouch weighed respectively 45.016 gm and 45.5 gm. Seizure was effected on 18.10.2000 and report is of 05.12.2001 and sample on analysis is found to juice of opium poppy having morphine 6.75 and 8.17 %. The substance recovered was semi solid viscocious and in laboratory weighed about after 17 months – difference is about ten per cent. At laboratory, obviously weight was using comparatively fine instrument. In these circumstances, in the considered opinion of the Court, finding the sample of little reduced weight do not adversely affect the prosecution. Emphatically raised is non-compliance of provisions of Section 50(1) & (2). Urged is that when contemplated was such a compliance and attributedly search made so complying then have to be strictly and these provisions mandatory non-compliance of vitiates entire search and seizure. A careful look at the provisions of Section 50 and with settled states the compliance as prescribed is to be made only while personal search, that is when and for search of any person. Unless apparent is or is reasonably established fact situations disclose that personal search was made but only to circumvent provisions of Section 50 otherwise is attributed then only question of compliance or otherwise may arise. Here seizure is from a bag (theli) being carried in hands fastened or with palm and fingers – was not a personal search. In addition, evidence produced disclose prove (motbirs hostile but accept of signatures) disclose that vide memos 9 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) P/3 and P/11 appellants were informed of their right of search before a Magistrate or gazetted officer and they consented for search by incharge P.S. PW/2 and consent also appears in writing bearing signatures of appellants. As such the contention is to be rejected. Lastly is appearance of number of FIR on memos prepared at the place of seizure on basis of which contention is of preparation of memos afterwards at Police station. Memos for calling of motbir and received information given to motbir and their consents Ex.P/1, P/2, P/16, P/17 – memos of notice under Section 50, Ex.P/3, 11–seizure memo Ex.P/4 and memos of arrest Ex.P/5 to 8, seal impressions P/9, 10 have in red ink written FIR 408/2K. Registered FIR Ex.P/15 is also of same number. The very fact that number in red and in writing distinguishly different to person writing memos so number of FIR is written afterwards. This appear only for purpose of denoting the number of related FIR. Therefore, the raised argument is not sustainable. Residuarily submitted is for reduction of sentence in default of payment of fine emphasising that unable to pay fine did not furnish bail bonds for suspensions of sentence though ordered. Taking all factors cumulatively, in the opinion of the Court, just is to reduce the sentence in default of payment of fine to six months RI. For the reasons above described, appeal challenging conviction fails. Sentence to rigorous imprisonment of ten years and fine Rs. 1 lac to each appellant also remains intact. However, in 10 S.B. Criminal Appeal No. 444/2003 (Babu lal & Anr. Vs. State) default of payment of fine instead of one year awarded is six months rigorous imprisonment. Therefore, appeal is rejected. As above is ordered that in default of payment of fine imposed of Rs. 1 lac, each appellant to undergo six months RI. Convictions affirmed. Ten years rigorous imprisonment with fine Rs. 1 lac intact but in default of payment of fine, to undergo six months rigorous imprisonment. (C.M. TOTLA), J.