1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T. MOHAN LAL V. THE STATE OF RAJASHAN. S. B. CRIMINAL APPEAL NO.287/89, against the judgment dated 7.8.89, passed by Shri Mohinuddin,RHJS, Additional Sessions Judge No.2, Jodhpur, in Sessions Case No.9/86. DATE OF JUDLGMENT ::: 16/07/2009 HON'BLE MR. JUSTICE C. M. TOTLA Mr. Mahesh Bora, for Appellant (s). Mrs. Chandra Lekha, PP, for the State. REPORTABLE. BY THE COURT : The appeal challenges conviction and sentence to appellant as per judgment dated 7.8.89 in Sessions Case No. 9/86 before the Court of Additional District & Sessions Judge No.2, Jodhpur as under :- (1) for the offence of Section 18 NDPS Act – 10 years' rigorous imprisonment and fine of Rs.1 lac and in default one year simple imprisonment, (2) for the offence of Sections 457 and 380 IPC – for each 3 years rigorous imprisonment and fine of Rs.100/-, in default one month simple imprisonment. 2 Substantive sentences to run concurrently and for default conjunctively. Heard learned counsel for the appellant and learned Public Prosecutor. Brief relevant facts as per prosecution are that on 13.11.85 at 9.30 O'clock, moning one Bhanwarlal PW 8 posted in Magisterial Court, Osian, lodging written report Ex.P-3 at Police Station, Osian, informed that on that morning, he went to Court to meet night chowkidar Maga Ram who not found there and broken were locks of main gate and malkhana of Court and in malkhana, goods were scattered. This report Ex.P-3 mentions that on searching Maga Ram, it was revealed that he is not present since last night and the details of stolen articles can be provided only by criminal clerk who is informed as these days are Deepawali holidays. Registered on this report FIR No.96/85 Ex.P-3 for the offence of Section 457. It appears that on November 13/14, was Deepawali holiday and the presiding officer PW 6 on being informed arriving 14.11.85 visited premises and got malkhana articles verified and inventory prepared by concerned clerk PW 4 on 16.11.85 which forwarded to police same day. It was found that about 10 kg 420 gm opium and some petty items were stolen from several packets. Appellant accused Mohanlal arrested in other FIR No.95/85 - for the offence of Sections 457 and 380 IPC - disclosed to SHO PW 12 that 3 in the night of Deepawali, he breaking open lock of malkhana of the Court, had stolen opium and “Tehmel” (tehmed – a cloth normally weared while sleeping or in easy position) and the opium in a white bag (polythene cover) is concealed by him in a pit dug by him below a “Puliya” (small bridge) on way from Gupal Sariya to Madiyai – memo of this information is Ex.P-14A and as per disclosure and at the instance of appellant in presence of independent witnesses, bag and tehmel recovered which were taken out digging the pit by appellant himself and the bag contained 10 kg 200 gm of opium – memo of this recovery is Ex.P-6. Separating sample of 200 gm the sample and remaining substances and tehmel also separately sealed. In proceedings for identification of “Tehmel” conducted before the Judicial Magistrate PW 5, the same was identified by clerk PW 4 – memo of identification being Ex.P-4. Keeping the packets in malkhana the packet of sample – forwarded to FSL for examination. After other usual investigation, challan submitted and than, this Sessions case registered. Appellant charged for the offence of Section 18 NDPS Act and also Sections 457 and 380 IPC – that he (1) in night between November 12/13, 1985, breaking of office of Court of Munsif and Judicial Magistrate, Osian, steal 10 kg 428 gm opium of different cases and also some other 4 articles, (2) 10 kg 200 gm opium recovered at about 3.30 pm afternoon from his possession on 16.1.86 lying in a pit below a bridge - claimed trial. Number of criminal case to which the opium belonged and stolen are also mentioned which are about 9 – 10. Prosecution examined 14 witnesses, of which PW 1 Maga Ram is the Chowkidar who states as having gone away because of illness at about 9 in night of 12.11.85 and Bhanwar Lal PW 8 is other peon who going in morning of 13.11.85 observing as above, lodged the FIR. Ummed Singh PW 6 is the Magistrate posted there and Narain Singh PW 4 is the criminal clerk malkhana in-charge. ASI PW 3 Achlu Ram registering FIR Ex.P-13 on presentation of report Ex.P-3, inspected place of occurrence and prepared memos Exs. P- 1 and P-2 in presence of PW 2 and PW 3. PW 3 Hanuman Singh is also the scriber of FIR Ex.P-3 and deposes to have written it as narrated by Bhanwar Lal PW 8. Bheem Singh PW 12 is SHO/ IO who deposing about disclosure and consequent recoveries at appellant's instance also appellant proves memos Exs. P-14 and P.6. Gulab Singh PW 14 and Koja Ram PW 10 are witnesses of this recovery and one of them PW 14 is declared hostile. Before Judicial Magistrate Shri Satya Deo Tak PW 6 – recovered “Tehmel” was identified by PW 4 memo of which is Ex.P-9. Sohan Singh PW 7 the then malkhana In-Charge of Police Station and 5 Constables Mangu Singh PW 9 and Moti Singh PW 11 depose about delivering the packet of sample at FSL. Ex.P-14 FSL report states that substance found in received sealed packet was opium having 1.44 morphine. Explanation put forward by appellant is that he does not know any of theft from Court premises and witnesses are telling lie. The learned Judge, recording conviction for the offence of Section 18 NDPS Act and Sections 457 and 380 IPC, sentenced as above. Learned counsel for the appellant argued that (1) incident as per prosecution is of night falling between 12th/13th November, 1985, on which day the NDPS Act was not in force – the Act came into force only on 14.11.85, (2) alleged recovery is of 16.1.86 on alleged information of 15.1.86 - alleged information given while appellant in custody in other case FIR No.95/85 and not in custody in this case FIR being 96/85, (3) the recovery on disclosure and at the instance of appellant not proved, (4) in any case, the appellant was never in possession and cannot be deemed to be ever in possession. (5) Recovery not proved and even if taken so not lead to inference of appellant's possession. Learned counsel for the appellant also argued that (i) provisions of Section 42 (2) are not at all complied with – alleged information as per which recovery is said to have been made ought to have been treated and was an information received to a police officer and in that case, 6 provisions of Section 42 are attracted which not at all followed, (ii) no sealing of alleged article made by personal seal – such also is not mentioned in memo of seizure ExP6-and no worthy evidence is for whereabouts of seal and memo of impression/ seal, thus, total non- compliance of Section 55, (iii) non-compliance of Section 57, (iv) link evidence for delivering articles at FSL missing – sample taken was of 200 gm, whereas as per FSL report weight including container found only 152 gm, (v) sample forwarded to Laboratory after about 2 months on 11.3.86. Learned counsel vehemently contended that on November 12/13, the NDPS Act was not in force – whomsoever committed theft did not with intention or knowledge of stealing opium – it is neither the case of prosecution, nor it appears that appellant in those days or ever was dealing in such contraband articles so, even if this recovery of January, 86 is taken to be proved, even then appellant cannot be convicted for the offence of NDPS Act and at best, he can be convicted for the offence of theft. Also submitted that alleged disclosure statement not made while in custody in this registered FIR No.96 so recovery cannot help prosecution. Further submitted that for the above reasons and as the accused could not have been charged for the offence of NDPS Act, the entire trial is vitiated and perhaps even investigating officer was not in knowledge and complete know how of as to what procedure was to be followed (as per NDPS Act), so none of the provisions of the Act are complied with. Also 7 submitted that non-compliance of provisions is fatal to the prosecution and the appellant is to be acquitted. In support of the above contentions, learned counsel for the appellant placed reliance on (i) Mohan v. The state of Rajasthan, 1997 Cr.L.R. (Raj.)806; (ii) Dalip Singh v. State of Rajasthan, 2002 (1) R.Cr.D. 139 (Raj.); (iii) Ayub v. State of Rajasthan, 2003 (1) R.Cr.D. 533 (Raj.); (iv) Gurbax Singh v. State of Haryana, 2001 AIR SCW 670; (v) Mohinder Kumar v. The State, Panji, Goa, AIR 1995 SC 1157; (vi) Valsala v. State of Kerala, 1993 SCC (Cri) 1082; (vii) Thandi Ram v. State of Haryana, 2000 SCC (Cri) 189; (viii) State of Punjab v. Balbir Singh, 1994 SCC (Cri) 634; Learned public Prosecutor submitted that articles stolen from malkhana – stolen by breaking open Court office and malkhana in night – recovered on information and at the instance of appellant from a pit dug by appellant himself – recovered articles proved to be opium – recovered substance 10 kg 200 gm which almost equal to the quantity stolen from malkhana and that appellant did steal the opium and it was continuously in his possession which constitutes commission of offences as recorded by the learned trial Judge. A look at evidence of the officer PW 6, the concerned clerk PW 4 of Court, PW 8 who lodged FIR proves that in night falling between 8 November 12th/13th, breaking open the office of the Magisterial Court, the articles were stolen. IO and other witnesses, before whom the place of occurrence was inspected, also depose that locks were broke open and the articles in malkhana were scattered here and there. Thus, it stands proved that in night between 12th/13th the incident occurred. The then Presiding Officer Shri Ummed Singh PW 6 states that he on leave from 8.11.85, returned from his village on 14.11.85 and at bus stand, criminal clerk Narayan Singh, fourth class employee Bhawar Lal and others informed him of incident and lodging of report at police station, and he visiting place of occurrence on very day found as above and all the articles of malkhana were lying torn apart. Similarly, clerk Naryan Singh PW 4 deposes that he out on Deepawali festival coming back on 14.11.85, found locks of malkhana broken, where police seals/slips were affixed. Then, on 15.11.85, he with officer went in the malkhana and after checking and verifying from the record, prepared list Ex.P-5 of missing material and articles submitted it to Officer PW 6 on 16.11.85. PW 4 says that he was criminal clerk and in-charge of malkhana from 80- 81 and all articles of criminal cases are kept in the malkhana, with entry in register, are produced before Court as and when required. PW 4 further states that 10.420 kg of opium of 10-11 cases (from respective packets) was stolen along with a Tehmed – inventory Ex.P-5, describing details also mentions of stealing of some petty items like biscuits, nuts, 9 chocklets etc. Also mentioned in Ex.P5 are criminal case malkhana entry no. and description of property. Thus, is proved that breaking open the Court premises that night, a total 10.420 kg opium of 9-10 cases was stolen. The report was lodged by employee PW 8 getting it written by advocate Shri Hanuman Singh PW 3. First is to be considered the argument of applicability of NDPS Act. This aspect is to be examined on context that theft committed between night of 12th & 13th November, 1985, but recovery alleged is of January 26th, 1986. On November 12th or 13th, 1985, the NDPS Act, 1985 was not in force, but prior to 14.11.85 in force was the Opium Act which prohibited and penalized possession of opium (except under license). Thus, prior to 14.11.85 also, possession of such substance was an offence, but till 14.11.85, sentence prescribed was low - low to a good extent in relation to 1985 Act. This Act which came into force on 14.11.85, does not specifically provide for any contingency of continued possession from prior to 14.11.85 and prior to 14.11.85 also, it was an offence. Thus, not is that for certain acts a new offence is declared to be constituted by the Act w.e.f. 14.11.85 – but the position simply is that the act of possessing opium (without licence or authorisation) was punishable offence even prior to 14.11.85 and by this Act only the sentence is enhanced (simultaneous also are stringent procedural provisions). On applicability of the Act of 14.11.85, for described acts and violation punishment is enhanced. Earlier to 14.11.85 and also after 14.11.85, possession of such substance (opium) was offence, so the argument that as the act, for which the appellant charged, was 10 committed a day or two prior to coming into force of the Act, so he cannot be charged under this offence, is not tenable. Here, it is not the case that the substance was recovered prior to 14.11.85. The above argument is also not sustainable, because of the reason that the recovery is made on 16.1.86, whereas the Act came in force on 14.11.85. For argument that appellant was not in custody in the case registered for this incident, i.e., FIR No.96/85, it appears, as per evidence of SHO IO PW 12, that appellant was arrested in other case No.95/85 on 2.1.86 and being in custody in that case on 15.1.86, did gave this information. Memo of information Ex.P-14A also mentions that while in custody in FIR No.95/85, this information was given. IO PW 12 further states that the appellant was arrested in this case if on 15.1.86. For application of Section 27 of the Evidence Act, custody is necessary, but it does not mean formal custody but includes such custody or such state of affairs where accused can be said to be in the hands of the police officer. What is necessary is that the informant must be in the custody of the police officer-not as a rule necessarily in the related case. Entire prosecution hinges on recovery, so appropriate first is to consider recovery and also how in what circumstances. The Investigating Officer SHO PW 12 state that on 15.1.86, appellant Mohanlal who stood 11 arrested in FIR No.95/85, informed him that in night of last Deepawali, he, breaking open lock of malkhana of Munsif Court, Osian, has stolen opium and “tehmel” and the same are concealed by him in a pit dug by him beneath a bridge on road Gupal Sariya to Madiyai and above that, he has placed a stone. PW 12 further deposes that this information reduced in writing by him Ex.P14A , bears his and appellant's signatures and as per this information on 16.1.86, they with witnesses Gulab Singh and Raja Ram went there and below a bridge on road, at a open place appellant accused himself digging a pit brought out from it a “Gathri” in tehmed in which a packet was opium weighing 10.2 kg from which a sample of 200 gm and remaining substance separately sealed and the “tehmel' was also separately sealed – prepared memo Ex.P-6 bears signatures of all. The Investigating Officer states that seal affixed was of Police Station, Osian and the above information was given in course of interrogation in other case and appellant was in detention since 2.1.86. PW 12 further says that he handed over sealed packets to Head Mohrir on the same day. Of the two independent witnesses, Gulab Singh PW 14 is declared hostile, but he admits his signature on memo Ex.P-6 – other witness Kojaram PW 10 states that from a pit below a bridge Gupal Sariya to Madiyai, appellant took out opium which weighed 10 kg 200 gm and sample of 200 gm and remaining substance were separately sealed – memo Ex.P-6 bears his signature and, in cross-examination, states that the accused was not there and the policemen were telling of recovery and he signed only at 12 police station. The witness admits his signature on this memo. As signatures of both these witnesses PW 11 and PW 14 are on memo Ex.P- 6, so evidence of PW 12 is fully corroborated. ASI Achlu Ram PW 13 depose that he accompanied for recovery and recovery made as above memo Ex.P6 bears signature of PW 6. Here, it is to be noted that recovered substance the opium is more than 10 kg and the appellant was in custody since January 2nd . Looking to quantity etc., it is indeed very hard and not possible to say and neither was any reason that recovery of such a quantity can be implanted. There were no reason for doing so. As above, the recovery stands proved. Arguments advanced regarding non-compliance of Section 42 and related provisions are to be considered in relation to recovery as is alleged land proved, that is, recovery from a place below a bridge on thoroughfare which recovery is affected by the appellant himself digging pit and taking out the packet. Section 42 speaks of authorization for search, seizure etc. of any officer superior in rank to sepoy or constable of the departments mentioned and are empowered by the Government by general or special order. In this case, information is given to PW 12 and recovery is also made by him who was Sub-Inspector and SHO at the police station. Section 43 provides for search at public place etc. When Section 43 applies, hardly in every case arise question of compliance of Section 42. 13 For the officer conducting search under Section 43 in any public place, requirement is not that in each and every eventuality, search can be only by one empowered under Section 42 and/or only after compliance of Section 42. Any officer of any department mentioned in Section 42 may conduct search at public place and not necessarily the officer has to be empowered one. So is also held by the Hon'ble Supreme Court in 2008 (1) SCC (Cri.) 683, State NCT of Delhi v. Balvinder Singh, in para 9 it was held as under :- “9. Section 42 and 43, therefore, contemplate two different situations. Section 42 contemplates 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 sunrise.” Similarly, Hon'ble Apex Court in K. Chithhayan v. State of Tamil Nadu, (2009) 1 SCC (Cri) 393 held that “so far as Section 42 (2) is concerned, it is to be noted that the search was made in the public place and not in a building and such what was applicable was S.43 and not S. 42 of the Act.” In that case while patrolling on a secret information search was of a 14 bag in hand of a person near bus-stop. Thus, no provision of Section 42 is applicable for this seizure. Further, in addition to above, the place from where recovery made was beneath a bridge of a public road it was an open place normally accessible to all and the seizure officer PW 1 Sub-Inspector being SHO was also empowered under Section 42. According to evidence discussed in detail the pit was dug by the appellant himself and the place where the pit was, dug was below such a bridge on a road. Thus, the place, where the pit was, was very much at a public place. For such a seizure at such a place, Section 43 applies. When Section 43 applies, there is no question of compliance of Section 42 (2), because Section 43 empowers to any officer of any of the departments mentioned in Section 42 and not necessarily the officer has to be empowered one under Section 41 or 42. So is also held by Hon'ble Supreme Court in 2008 (1) SCC (Cri.) 415, Directorate of Revenue and Another v. Mohammed Nisar Holia, and in (2008) 1 SCC (Cri.) 683, State NCT of Delhi v. Malvinder Singh. Any how, the seizure is made by SHO who is empowered under Section 42 (1) also and search provenly from a public place – from below a bridge on thoroughfare accessible to all. 15 So non-complying of Section 42 do not help the appellant as provision of Section 42 were not applicable. Thrustly is argued that Section 42 (2) is applicable as the information is alleged to have been given by the appellant to a police officer, so it was mandatory to reduce the same in writing as per provisions of Section 42. In this context, learned counsel for the appellant submitted that since the recovery is made only ias per and consequent to information, mandatorily it had to be reduced in writing as provided by Section 42 (1) and then appropriate procedure was to be followed. Argument advanced is that for the above information, provisions of Section 42 were applicable. Considering this, it appears that appellant was in custody in other case since 2.1.85 - the information was given by him in course of investigation in other case, and then appellant taken in custody in this case that is, 96/85 -coincidently, that disclosure made in course of investigation in FIR No.95/85 related to this registered FIR No. 96/85. Provisions of Section 42 (2) are hardly applicable in such contingencies of some information or knowledge received in course of investigation in other case. Here, it is to be noted that informations which are required to be reduced under Section 42 can be of various nature and details, whereas informations and disclosures received during investigation of any other case is, normally admissible only in situations 16 and are limited to the extent provided by Section 27 Evidence Act. Hon'ble the Apex Court dealing with such a question in Harvidbhai Azambhai Malik v. State of Gujarat, 2009 (3) SCC 403 in para 12 has held as under :- “Therefore, it is settled proposition of law when such an information or intimation or knowledge comes to the notice of the investigating officer in course of the regular patrolling or an investigation of some other offence, it is not necessary to follow in all cases the conditions incorporated in Section 42.” So the above argument about applicability of Section 42 for this information is not tenable. Lastly considering arguments regarding compliance or otherwise of Sections 55 and 57. Section 55 of the Act speaks of taking charge and keeping safe in custody of all the articles, ceased within the local area of the police station and produced before the Officer-in-charge. Under Sections 53 and 41 etc. officers empowered or authorized under the Act can conduct search and seizure. When SHO of the area himself conducts search and effects recovery, there can hardly be applicability of Section 55, because it is the SHO-Officer-in-charge of the same police station. The IO SHO PW 12 does not state about report of arrest and seizure to higher officer, so non-compliance of Section 57 appears, but 17 this provision is only directory one. In cases of non-compliance of Section 57, is to be seen whether it has caused any prejudice and for this non-