1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T S.B.CRIMINAL APPEAL NO.98/ 2003 Jankilal & Ors. Vs. The State of Rajasthan S.B.CRIMINAL APPEAL UNDER SECTION 374(2) CR.P.C. AGAINST THE JUDGMENT & ORDER DATED 19.12.2002 PASSED BY THE SPECIAL JUDGE, NDPS CASES, JHALAWAR IN SESSIONS CASE NO.65/ 2001 (STATE VS. JANKILAL & ORS.). * * * * DATE OF JUDGMENT: FEBRUARY 13, 2009 HON'BLE MR.JUSTI CE S.P.PATHAK Mr.Biri Singh & Mr.Surendra Singh, for the appellants Mr.Satish Chand Purohit, Public Prosecutor BY THE COURT: 1. This appeal has been filed under section 374(2) Cr.P.c. against the judgment and order dated 19.12.2002 passed by the learned Special Judge, NDPS Cases, Jhalawar in Sessions Case No.65/ 2001 (State vs. Jankilal & Ors.) whereby the learned trial court has convicted and sentenced the accused appellants as under: - 2 For offence under section 8/ 17 of the NDPS Act – 10 years R.I. With a fine of Rs.One Lac and in default of payment of fine to further undergo 3 years additional simple imprisonment. For offence under section 8/ 18 of the NDPS Act – 10 years R.I. With a fine of Rs.One Lac and in default of payment of fine to further undergo 3 years additional simple imprisonment. For offence under section 8/ 30 of the NDPS Act – 5 years R.I. With a fine of Rs.50000/ - and in default of payment of fine to further under go 1- 1/ 2 years Simple imprisonment. All the sentences to run concurrently. Briefly stated facts of the case are that P.W.12 Jagidh Prasad Yadav, S.H.O., Police Station, Bhawani Mandi received a secret information Ex.P24 on 18.9.2001 at 1: 30 A.M. on telephone to the effect that accused Jankilal S/ 0 Fateh Lal was doing illegal business of narcotics drugs and in his house, he along with his son Harish Chand and others namely Mangilal, Madanlal and Kriparam were preparing heroin and the same was intended to be sold to some body in the morning. This secret information was entered in Ex.P27 Rojnamcha Aam at S.No.904 at 1: 30 A.M. It is mentioned in the Rojnamcha report that the secret information was being sent to the S.P., Jhalawar and on 3 telephone C.O., Bhawani Mandi was also infomred. P.W.7 Jai Prakash F.C. of the Police Station was sent on 18.9.2001 along with sealed envelope containing the information under Section 42 of the NDPS Act with him and to deliver the same to the S.P., Jhalawar vide memo Ex.P25. In Ex.P25 at place C to D, the S.P., Jhalawar has made an endorsement to the effect that copy was received on 18.9.2001 at 10: 30 A.M. P.W.7 Jai Prakash returned to Police Station back on 18.9.2001 at 1: 40 A.M. and entry in this regard was made in Ex.P26 Rojnamcha at S.No.906. It is also the case of the prosecution that P.W.9 Kalu Ram C.I. came in the Police Station at 2: 10 A.M. on 18.9.2001 and he along with police officials started from the Police Station to the village of accused as per the secret information in a Jeep and an entry was made in this regard in Ex.P21 Rojnamcha at S.No.909. Before starting from Police Station, the matter was discussed with P.W.12 Jagdish Prasad Yadav S.H.O., Police Station as it was not possible to obtain a search warrant in the night and since the heroin was being manufactured at the house of the accused, therefore, it was thought proper to proceed towards the spot along with the police party and in this regard entry was made in Ex.P20 Rojnamcha. The police party after reaching at the spot, as per the secret information, made efforts to arrange independent witnesses. In this connection, a Tehrir was given to Ratan Singh. But in the early hours of 4 the day, witnesses could not be arranged, therefore, P.W.2 Ratan Singh and Pranvir Singh members of police party were made independent witnesses in the case. It is further the case of prosecution that thereafter the house of accused Jankilal was surrounded and door of the house was knocked by one of the member of the police party and on knocking the door, it was opened by accused Janki Lal. The police party entered in the house and disclosed the identity and the purpose. In the right hand side of the house, in one room accused namely Jankilal, Harish Chand, Mangilal, Madan Lal and Kripa Ram were found sitting and there was one LPG Gas Cylinder along with BPL Stove, which was burning and giving light. In the room a drum full of liquid which was of dark gray colour material was found and in a Parati, the material therein gave a smell of smack. In other plastic drum, there was some liquid material, which was found as opium. In plastic bags, Sodium Carbonate and Ammonium Chloride was found which was being used for preparing contraband material. The above material found from the place was sealed, seized and the accused were asked whether they had licence to manufacture drugs to which the accused denied. The accused, thereafter were arrested and brought to the Police Station. F.I.R. No.227/ 2001 was registered in the Police Station. A detailed report under Section 57 of the NDPS Act Ex.P12 was sent to the S.P., Jhalawar on 5 19.9.2001, which was received by the S.P., Jhalawar on 19.9.2001 at 5: 15 P.M. The samples, which were collected on the spot were sent for chemical examination. Investigation of the case was handed over to P.W.8 Man Singh. After completion of usual investigation in the matter, charge-sheet was filed on 6.12.2001 in the court of Special Judge NDPS Case, Jhalawar. Charges were framed against accused persons on 17.1.2002 under Section 8/ 18 & 8/ 21 of the NDPS Act to which accused denied and claimed trial. Charge framed was subsequently amended and charge under section 8/ 17 of the NDPS Act was added after hearing both sides on 27.7.2002. In support of its case, the prosecution examined as many as 12 witnesses and tendered several documents in evidence. In the statement recorded under section 313 Cr.P.C., accused Jankilal stated that he was falsely implicated in the case. It is also stated that the house from where, recovery allegedly made was not his house and no contraband material was recovered from his house. Accused Harish Chand, who is son of accused Jankilal stated that he has got no concern with the house from where contraband material was recovered. He has also stated that he was not at the house when recovery was made and he has been implicated falsely. Accused Madanlal, Mangilal and Kripa Ram have stated that they were falsely implicated in the case and were 6 not in the house when alleged recovery was made. No evidence in defence has been produced. The learned trial court after hearing final submissions convicted and sentenced the accused as indicated hereinabove. I have heard the learned counsel for the accused appellants as well as the learned Public Prosecutor for the State and carefully gone through the material available on the file. In the present matter, points for consideration are, (1) Whether not arranging independent witnesses is fatal to the prosecution? (2) Whether compliance of mandatory provisions of Sections 42 & 57 of the NDPS Act has been made in the case or not? (3) Whether compliance of the provisions of Section 55 of the NDPS Act was made or not and further the memos were prepared at police station or at the spot? (4) Whether the contraband material recovered in the case was in conscious/ exclusive possession of the accused? (5) Whether the learned trial court has rightly convicted and sentenced the accused? 7 Now, I propose to examine the points framed by me. POI NT NO.1 It is to be seen that in the instant case Ex.P2 Tehrir was prepared and given to Ratan Singh A.S.I. of Police Station, Bhawani Mandi on 18.9.2001 to arrange two witnesses in the case. Ratan Singh A.S.I. made a report with reasons on Ex.P2 to the effect that after efforts made to arrange the witnesses, they could not be found. P.W.2 Ratan Singh has stated that he was given Tehrir Ex.P2 and he made all efforts. P.W.3 Ghanshyam and P.6 Latoor Lal have also supported the statement of P.W.2 in this regard. P.W.1 is Durge Shanker. He has also stated that Ratan Singh was asked to arrange independent witnesses. The learned counsel for the appellants argued that the evidence in this case is not reliable as there are contradictions in the statement of P.W.1 Durga Shanker, P.W.2 Ratan Singh, P.3 Ghanshyam and P.W.6 Latoor Lal. Therefore, Ex.P2 in fact is a document, which was prepared subsequently when police party reached to the Police Station. On the other hand, the learned Public Prosecutor contends that there is no reason why the police should prepare false documents after reaching the Police Station. It is also submitted that there may be slight variation in the 8 testimony of witnesses but the factum, which is essential to prove, is that as to whether efforts were made to arrange the independent witnesses in the case looking to the stringent provisions of the NDPS Act. I have considered the above submissions. It appears from perusal of the secret information and the information sent to the S.P., Jhalawar that the incident is of the night and in the early hours when police party reached at the spot, they tried to arrange independent witnesses and it appears more probable that in the early hours of the day, Ratan Singh could not find persons to become witnesses in this case. It is correct that there must be independent witnesses in such matters, but after required efforts, witnesses could not be arranged then in that circumstance, the entire case of the prosecution is not liable to be thrown out. The law, which has developed on the point is that the evidence of police witness can be take into consideration. There evidence cannot be discarded only because they are police witnesses. What is necessary is their evidence is to be scrutinized with caution and care. In the case of State of Punjab vs. Balveer Singh (A.I.R. 1994 SC page 1872), it has been observed that evidence of police witness cannot be discarded only for the reason that they being police witness, their evidence cannot be considered trustworthy. In the case of Hajary vs. State of 9 Rajasthan (A.I.R. 1980 page 803) and Hardev Gurjar Vs. State of Rajasthan (1989 Cr.L.R. Page 582, this Court has also had an occasion to consider the evidenciary value of police witness and it has been held in the above authorities that evidence of Police official cannot be discarded only for the reason that they happens to be police witnesses. The argument of the learned counsel for the appellants requires to be rejected. In view of above discussion the answer to point framed is that in the instant case, in view of Ex.P2 and in view of statement of witnesses namely P.W.1 Durga Shanker, P.W.2 Ratan Singh, P.W.3 Ghanshyam, P.W.6 Latoor Lal and also P.W.12 Jagdish Prasad, it appears that efforts were made to arrange the independent witnesses, but they could not be arranged and in the absence of independent witnesses, the case of the prosecution is not liable to be thrown out. POI NT NO.2. It has been contended by the learned counsel for the accused appellants that in the instant case compliance of mandatory provisions of Sections 42 & 57 of the NDPS Act was not made. It has also been contended that in the absence of compliance of the mandatory provisions, the accused appellants cannot be held guilty and they cannot be 10 convicted and the judgment of conviction and order of sentence is, therefore, liable to be set aside. On the other hand, the learned Public Prosecutor has contended that in the instant case, it was not necessary to comply with the provisions of sections 42 & 57 of the NDPS Act but even if for sake of argument, it is presumed that compliance of sections 42 & 57 of the Act was entitled, then that compliance has been made. I have carefully considered the submissions made before me. It is necessary to see as to what law has developed in relation to compliance of sections 42 & 57 of the Act. In the case of St at e, NCT of Delh i vs. Malvin der Sin gh ( 2 0 0 7 Cr .L.R.( SC) 5 0 4 ) 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 11 Shri Ramesh Chand Saini and Shri H.M.Meena A.C.P. Were informed and requested to come at the spot and when they 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.Th om son vs. St at e of Ker ala & An r . ( 20 0 2 ) 9 SCC 6 1 8 and St at e of Har yan a vs. Jar n ail Sin gh & Or s. ( 2 0 0 4 ) 5 SCC 1 8 8 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 12 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 Act. Explanation to Section 43 lays down that for the purposes of this section, the expression “ pu blic 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 Nar ayan asw am y Ravish an k ar vs. Asst t . Dir ect or , Dir ect or at e of Reven u e 13 I n t elligen ce- 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 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. 14 Un ion of I n dia vs. Sat r oh an – ( 2 0 0 8 ) 8 SCC 3 1 3 – The facts were that on the basis of secret information, Inspector, Narcotic Department along with other officials raided the house of Satrohan at about 8: 00 A.M. In village Dadari Jamalpur. In the search of the house, 29 bags containing poppy straw were recovered. No explanation was offered in relation to possession of poppy straw. After investigation, charge-sheet was filed. The accused denied the possession and ownership of the property. The learned trial court convicted the accused. On appeal before the High Court, the accused was acquitted as there was non- compliance of sections 42 and 50 of the Act. In the facts, the Hon'ble Apex Court observed that section 41(1) empowers a Magistrate to issue warrant for arrest of any person whom he has reason to believe to have committed any offence punishable under the NDPS Act or for search, has not much relevance for the purpose of considering the contention. Under Section 41(2) only a gazetted officer can be empowered by the Central Government or the State Government. Such empowered officer can either himself make an arrest or conduct a search or authorise an officer subordinate to him to do so but that subordinate officers has to be superior in rank to a peon, a sepoy or a constable. Sub-section (3) of Section 41 vests all the powers of an officer acting under Section 42 on three types of officers (i) 15 to whom a warrant under sub-section (1) is addressed, (ii) the officer who authorised the arrest or search under sub- section (2) of section 41, and (iii) the officer who is so authorised under sub-section (2) of Section 41. Therefore, an empowered gazetted officer has also all the powers of Section 42 including the power of seizure. It has further been observed that in case of an emergent situation, these powers can also be exercised even between sunset and sunrise without obtaining a search warrant or authorisation, in terms provided in the proviso to sub-section (1) of Section 42. It has further been observed that since the gazetted officer 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 of the Act. The Hon'ble Apext Court also considered the decisions rendered earlier in the case of St at e of Pu n j ab vs. Balbir Sin gh – ( 1 9 9 4 ) 3 SCC 2 9 9 , Abdu l Rash id I br ah im Man su r i vs. St at e of Gu j ar at - ( 2 00 0 ) 2 SCC 5 1 3 and Bech odan Abdu l Rah im an vs. St at e of Ker ala – ( 2 0 0 2 ) 4 SCC 2 2 9. In the case M.Pr abh u lal vs. Assist an t Dir ect or , Dir ect or at e of Reven u e I n t elligen ce – AI R 2 0 0 3 SC 4 3 11 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 16 section 41 and, therefore, it was not necessary to comply with section 42. In the case of Aam ir Kh an @ Nar u vs. Cen t r al Nar cot ic Bu r eau – 2 0 0 6 ( 1 ) Cr .L.R.( Raj .) 4 4 5 , in para 7 it has been observed as under : - “ Fr om t h e r ecor d it is clear t h at in for m at ion r eceived fr om in for m er at 2 0 .3 0 w as r edu ced in w r it in g m ar k ed as Ex .P1 by t h e Su per in t en den t an d t h er eaft er a t eam w as con st it u t ed con sist in g of Su per in t en den t , Vij ay Sin gh Meen a h im self an d 2 I n spect or s n am ely San j ay Ku m ar an d Rak esh an d Su b- I n spect or Lax m an Kat ar ia. Th e t eam w en t at t h e spot as per in for m at ion given by t h e in for m er an d in pr esen ce of all, sear ch w as con du ct ed by Lax m an Kat ar ia, P.W .6 . P.W .1 Vij ay Sin gh Su per in t en den t an d 2 I n spect or s w er e also pr esen t at t h e t im e of sear ch fr om t h e accu sed. P.W .1 Vij ay Sin gh Su per in t en den t also st at ed befor e t h e Cou r t t h at aft er r eceipt of con sen t of t h e accu sed for sear ch , h e dir ect ed Sh r i Kat ar ia Su b- I n spect or t o m ak e sear ch . Du r in g sear ch 1 Kg. Her oin w as r ecover ed. As per n ot ificat ion dat ed 2 .3 .1 9 8 8 , Cen t r al Gover n m en t Depar t m en t of Cen t r al Nar cot ic Bu r eau au t h or ized su b-I n spect or an d above officer s of