Badri Narayan vs State of Rajasthan

H.R. Panwar, J.—The instant criminal appeal under Section-374 (2) of the Code of Criminal Procedure, 1973 (for short, "the Code" hereinafter) is directed against the judgment and order dated 09.12.2002 passed by the Special Judge, NDPS Cases, Jodhpur (for short, "the trial Court" hereinafter) in Sessions Case No.63/2001, whereby the trial Court convicted the appellant for the offence u/s 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short,"the NDPS Act" hereinafter) and sentenced him to undergo ten days rigorous imprisonment and a fine of Rs.1,00,000/- and in default of payment of fine further to undergo one year''s rigorous imprisonment. By the very judgment and order, co-accused Om Prakash was also convicted for the offence u/s 8/20 of the NDPS Act and sentenced. Aggrieved by the judgment and order impugned, the appellant has filed the instant appeal. Co-accused Om Prakash has not challenged his conviction and the sentence awarded to him.

Briefly stated, the facts of the case, to the extent they are relevant and necessary for the decision of this appeal, are that on 06.07.2001, at 7.45 AM, PW9 Rupinder Singh, IPS, the then Station House Officer, Police Station, Soorsagar, Jodhpur, received a secret information Exhibit P/19 from PW3 Dharma Ram, ASI, Intelligence Department, that near Ram Lodge, Bombay Motors Circle, Jodhpur, the appellant and co-accused Om Prakash are trading in Charas in a betel Cabin. The secret information was reduced to writing vide Exhibit P/19 and sent to the higher officer i.e., the Superintendent of Police, Jodhpur through Constable Lalit Kumar. The Superintendent of Police, Jodhpur authorised PW9 Rupinder Singh to carry out search, seizure and arrest vide Exhibit P/1. PW11 Madan Singh was sent for calling two independent Motbirs, who after taking two independent Motbirs, viz. Sattar Mohammed and Vishan Lal, reached to Police Outpost, Masuriya at 10:00 AM. The two Motbirs gave their consent in writing to become Motbirs. Thereafter the police reached at the place as per the secret information at 11:30 AM. The appellant and co-accused Om Prakash were apprised of the secret information. A notice u/s 50 of the NDPS Act was served on them. On search, the appellant was found in possession of 80 grams of contraband Charas and co-accused Om Prakash was found in possession of 100 grams of contraband Charas. The Charas was seized from the appellant and co-accused Om Prakash. Two samples of30 grams each were taken from the Charas seized from the appellant and co-accused respectively. They were apprised of the ground of their arrest and arrested. On the very day, at 2.50 PM, while the appellant was in police custody, he voluntarily gave an information u/s 27 of the Evidence Act vide Exhibit P/8 that he has concealed some more Charas at his residence in a lidded tin having lock, the key of which is with him. In pursuance of the said information, contraband Charas weighing 1950 grams was also recovered from the appellant. After usual investigation, the police filed Challan against the appellant and co-accused for the offence u/s 8/20 of the NDPS Act. The prosecution adduced evidence by producing as many as 12 witnesses and the documents Exhibit P/1 to Exhibit P/29 as also Exhibit D/1 and Exhibit D/2. The appellant made statement u/s 313 of the Code and denied the allegation. Vide judgment and order impugned, the trial Court convicted and sentenced the appellant, as noticed above. Hence this appeal.

I have heard learned Counsel for the appellant and the Public Prosecutor appearing for the State. Perused the impugned judgment and order as also the record of the trial Court.

It is contended by the learned Counsel for the appellant that in Exhibit P/13, while carrying out personal search of the appellant on his arrest, it has been recorded that apart from his wearings, he has Rs.7,690/- in cash, one HMT watch, one ring having green-coloured precious stone and a key. Learned Counsel for the appellant submits that the word "key" has been subsequently added by the arresting officer and, therefore, the case set up by the prosecution that it was the appellant who opened the tin having lid and lock, is fabricated evidence. It was further contended that the information u/s 27 of the Evidence Act vide Exhibit P/28 was not sent to the immediate superior officer by the seizure officer PW9 and, therefore, according to the learned Counsel, there is non-compliance of the provision of Section 42(2) of the NDPS Act. It was further contended that the specimen seal was not deposited with the Malkhana. Lastly, it was contended that the search and seizure were made by PW9 Rupinder Singh, IPS, who, at the relevant time, was the Station House Officer, Police Station, Soorsagar, though the area where the search and seizure took place, falls within the jurisdiction of Police Station, Pratap Nagar, Jodhpur and mere is no evidence of resealing the contraband and the samples at Police Station, Pratap Nagar, Jodhpur and, thus, there is a violation of provision of Section 55 of the NDPS Act.

Learned Public Prosecutor appearing for the State supported the judgment and order impugned and contended that the secret information received by PW9 Rupinder Singh through PW3 Dharma Ram, ASI, was reducing to writing vide Exhibit P/19 and it was forwarded to the immediate superior officer i.e., the Superintendent of Police, Jodhpur through Constable Lalit Kumar and, therefore, the provision of Sub-Section (2) of Section 42 of the NDPS Act has been fully complied with. He further submitted that in pursuance of the secret information, the recoveries were effected from the appellant and co-accused Om Prakash and thereafter while the appellant was in custody, he further gave an information u/s 27 of the Evidence Act vide Exhibit P/28 and in furtherance of the voluntary information given by the appellant, further recovery of 1950 grams of contraband Charas was made and, therefore, the subsequent information given by the appellant u/s 27 of the Evidence Act cannot be said to be a secret information received by the seizure officer. Learned Public Prosecutor further submitted that notice u/s 50 of the N DPS Act is confined only to the extent of recovery of contraband Charas from the personal possession of the appellant and, therefore, in the notice, there is no requirement to mention other details like wearings of the appellant and possessing of other articles like money, gold ring, key etc. and as such non-mentioning of the details of other articles in the notice u/s 50 of the NDPS Act is not fatal to the prosecution case. So far as compliance of Section 55 of the NDPS Act is concerned, according to the learned Public Prosecutor, there is no requirement that in very case, a re-sealing has to be done on the articles. Learned Public Prosecutor submits that the provisions of Section 55 of the NDPS Act are not mandatory in nature. He further submits that vide Exhibit P/20, a detailed report of search, seizure and arrest was forwarded to the superior officer and, therefore, according to the learned Public Prosecutor, the provision of Section 57 of the NDPS Act has been fully complied with.

I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties

PW9 Rupinder Singh, IPS, is the seizure officer. Vide Exhibit D/1, the Superintendent of Police, Jodhpur, on 06.07.2001, authorised PW9 Rupinder Singh, IPS, the then Station House Officer, Police Station, Soorsagar, Jodhpur, to conduct search of the place given in the secret information as the S.H.O., police Station, Pratap Nagar, Jodhpur, in whose territorial jurisdiction, the place of search is situated, was on leave. PW9 Rupinder Singh was authorised to search, seize, arrest and investigate, authorizing him to have all necessary powers of the S.H.O.

PW9 Rupinder Singh, IPS, has stated that on 06.07.2001, he was the Station House Officer, Police Station, Soorsagar, Jodhpur. He received a secret information which was reduce3d to writing vide Exhibit P/19. The secret information was to the effect that the appellant and co-accused Om Prakash are trading in contraband opium and Charas near Bombay Motors Circle, Jodhpur. The secret information was bearing the signatures of informant PW3 Dharma Ram, ASI, CID (DB), Jodhpur. The said information was sent to the higher officer vide Exhibit P/27, which bears the signatures of Jyoti Swaroop Sharma, the Circle Officer. The place of search falls in the territorial jurisdiction of other police station and, therefore, the Superintendent of Police, Jodhpur authorised him to carry out the search, arrest and seizure etc. vide Exhibit D/1, which bears the signatures of the then Superintendent of Police Dr.Bhupendra Singh. He reached the Police Out Post, Masuriya, took the police officials with him, called the Motbirs through Madan Singh, Sub-Inspector and reached at the place mentioned in the secret information i.e., the Bombay Motors Circle, Jodhpur. A person was standing outside the cabin situated at Bombay Motors Circle and one person was sitting in the cabin. The person who was standing outside the cabin disclosed his name as Badri Narain, the appellant, and the person who was sitting in the cabin was co-accused Om Prakash. The appellant was apprised of the secret information and given a notice u/s 50 of the NDPS Act and was given an option to be searched in the presence of a magistrate or a gazetted officer or by PW9 Rupinder Singh, IPS, who himself was a gazetted officer, vide Exhibit P/1. The appellant exercised the option and consented that he be searched by PW9 Rupinder Singh vide Exhibit P/2. In the presence of the Motbirs, the search was carried out. He was in possession of 80 grams of contraband Charas in the pocket of the shirt which he was wearing. Thus, it has been established that after serving the notice u/s 50 of the NDPS Act, the appellant, on his personal search, was found in possession of 80 grams of contraband Charas. He was arrested vide Exhibit P/13. Two samples of 30 grams each were taken from the contraband Charas. The samples and the remaining Charas were sealed on the spot. The Motbirs consented to remain present and became Motbirs vide Exhibit P/5 and Exhibit P/17 respectively. The site map and the site inspection notes were prepared vide Exhibit P/11. The specimen seal Exhibit P/14 was prepared. The recovery was effected vide Exhibit P/6. So far as search of cabin is concerned, the Furd Exhibit P/4-A was prepared showing the circumstances in which the search of the cabin was required to be carried out in absence of a search warrant. On the search of the cabin, co-accused Om Prakash was found in possession of 100 grams of contraband Charas. He was arrested and the seizure memo was prepared. While in police custody, at 2.55 PM, the appellant voluntarily gave an information u/s 27 of the Evidence Act that he has concealed the contraband Charas in his house in a tin having a lock, of which he is having the key and he can get the same recovered vide Exhibit P/28. In furtherance of the voluntary information furnished by the appellant u/s 27 of the Evidence Act Exhibit P/28, the appellant got recovered 1950 grams of contraband Charas from his house kept in a tin having lock and key. The lock of the tin was opened by the appellant and thereafter on opening the tin, it was found containing 1950 grams of contraband Charas, which was seized vide Exhibit P/8. The site map Exhibit P/9 shows that the place from where the contraband Charas weighing 1950 grams was seized, was the house of the appellant. The circumstances of the search of the house without search warrant were reduced to writing vide Exhibit P/3 and Exhibit P/4. After search, seizure and arrest of the appellant and co-accused Om Prakash, Chak FIR Exhibit P/22 was prepared, which he has proved. He has also proved the contraband Charas recovered, Article 1 to Article 8. He has also proved the material contraband Charas and the samples in the Court. So far as jurisdiction part is concerned, he categorically stated that at the relevant time, the Station House Officer, Police Station Pratap Nagar was not available and, therefore, he was authorised to carry out the search, seizure and arrest under the written authority of the Superintendent of Police vide Exhibit D/1. He further stated that the contraband seized and the samples taken therefrom were sealed on the spot and the specimen seal and the contraband recovered as also the sample were deposited with the Malkhana.

The statement of PW9 Rupinder Singh further finds corroboration from the statement of PW11 Madan Singh, who brought the Motbirs at the request of PW9 Rupinder Singh. He accompanied PW9, the seizure officer, alongwith other police officials with the investigation kit. He has proved the search and seizure of contraband Charas from the appellant weighing 80 grams as also 100 grams contraband Charas from co-accused Om Prakash. He has also proved the samples taken therefrom and sealing of the samples and the material contraband Charas on the spot. He has also proved that the appellant while in custody, furnished an information u/s 27 of the Evidence Act to PW9 Rupinder Singh to get the contraband Charas recovered from his house kept in a tin having lock and key as also the appellant having key to the said lock. He has also proved the subsequent recovery at the instance and in pursuance of the information furnished by the appellant weighing 1950 grams from his house.

PW3 Dharma Ram, who at the relevant time was working as the Assistant Sub-Inspector, CID (CB), Jodhpur, received a secret information that the appellant and co-accused Om Prakash are trading in Charas, Ganja, opium etc. He furnished the information to the higher officers and PW9 Rupinder Singh vide Exhibit P/19.

PW8 Ranjit Singh stated that 14 packets in sealed condition were given to him by PW9 Rupinder Singh in Crime Report No.281/2001 to be deposited in the Malkhana, which he deposited in the Malkhana on 06.07.2001 vide Exhibit P/25 and a copy of which is Exhibit P/25-A. On 09.07.2001, three packets were handed over to Constable PW12 Ganesh Ram vide Exhibit P/26-A alongwith forwarding letter prepared from the Office of the Superintendent of Police, Jodhpur vide Exhibit P/23 for depositing the same to the FSL, Jaipur. He has proved Exhibit P/26. He has categorically stated that as long as the contraband material Charas and the samples remained in the Malkhana, they remained in properly sealed condition.

PW12 Genesh Ram stated that on 09.07.2001, he received three packets, the subject matter of Crime Report No.281/2001 and carried the same to the Office of the Superintendent of Police for getting the forwarding letter prepared vide Exhibit P/26 and a copy thereof is Exhibit P/26-A. He got the forwarding letter prepared from the Office of the Superintendent of Police vide Exhibit P/23 and carried the samples to FSL and deposited the same with the FSL vide Exhibit P/27. He categorically stated that as long as the samples remained with him till they reached the FSL, the seals thereon remained intact.

PW4 Shaitan Singh received a detailed report submitted by PW9 Rupinder Singh regarding the search, seizure and arrest as envisaged u/s 57 of the NDPS Act vide Exhibit P/20 through PW6 Veni Dan. He has proved the receipt of the detailed report in compliance of Section 57 of the NDPS Act vide Exhibit P/20.

PW6 Veni Dan carried the detailed report to the Office of the Superintendent of Police and handed over the same to PW4 Shaitan Singh.

PW7 Rampal stated that he took three samples of Crime Report No.281/2001 to be carried to FSL, Jaipur. He took the samples for getting the forwarding letter prepared and handed over the same to PW12 Ganesh Ram for depositing to the FSL Jaipur vide Exhibit P/24.

The Motbir witnesses PW1 Kishan Lal and PW2 Sattar Mohammed did not support the prosecution case and declared hostile, though they admitted their signatures on various Furds.

The report of FSL Exhibit P/29 clearly states that three packets marked A-1, B1 and C-1 enclosed within separate cloth cover were properly sealed bearing impressions which tallied with the specimen seal impression forwarded. The seals were intact. On microscopic, and chemical examination, the samples contained in each of the packet marked A-1, B-1 and C-1 was found to be of "Charas."

From the evidence of the prosecution witnesses, discussed herein-in-above, it has been proved beyond reasonable doubt that the appellant was found in possession of contraband opium weighing 80 grams and 1950 grams, total 2030 grams, which is commercial quantity as envisaged under the NDPS Act.

So far as contention of the learned Counsel for the appellant that on subsequent recovery of 1950 grams of contraband Charas, no information was reduced to writing and sent to the higher officer as envisaged u/s 42(1) and 42(2) of the NDPS Act is concerned, the information u/s 42 of the NDPS Act was reduced to the writing and sent to the higher officer and thereafter the recoveries of 80 grams of contraband Charas from the appellant and 100 grams of the contraband Charas from co-accused Om Prakash were made. Thereafter, while in custody, the appellant voluntarily furnished an information u/s 27 of the Evidence Act and in the pursuance of that voluntary information given by the appellant, recovery of 1950 grams contraband Charas was also effected. The information u/s 27 of the Evidence Act cannot be said to be an information u/s 42(1) of the NDPS Act and, therefore, there is no violation of the provisions of Section 42(1) and (2) of the NDPS Act. The voluntary information furnished by the appellant u/s 27 of the Evidence Act, while in custody, cannot be treated to be a secret information warranting its compliance by forwarding it to the higher officer.

So far as PW9 Rupinder Singh is concerned, at the relevant time, he was an IPS Officer (Probationer) and posted as the SHO, Police Station, Soorsagar, Jodhpur. He was duly authorised by the Superintendent of Police Jodhpur vide Exhibit D/1 on 06.07 2001 stating therein that he has received the information regarding illicit sale of Charas and opium by co-accused Om Prakash and appellant Badri Narain. The information being Dharma Ram, ASI, CID (CB), Jodhpur, giving the details of the information and noticing that the SHO, Police Station, Pratap Nagar, Jodhpur being on leave, PW9 Rupinder Singh, IPS Officer and at the relevant time the SHO, Police Station, Soorsagar, was authorised to conduct the search, seizure and arrest and, therefore, it cannot be said that the search and seizure as also the arrest made by PW9 Rupinder Singh is without jurisdiction.

In the instant case, the provisions of Section 57 of the NDPS Act have been complied with. In view of the evidence of the prosecution witnesses, more particularly the statements of PW9 Rupinder Singh and PW11 Madan Singh, discussed hereinabove, so far as compliance of Section 55 of the NDPS Act is concerned, the re-sealing is not mandatory in every case in view of the decision of the Hon''ble Supreme Court in Karnail Singh v. State of Rajasthan, 2000(2) ACJ 545 (S.C.): 2000 SCC Cri. 1437, wherein the Hon''ble Apex Court held that if resort is had to the procedure prescribed under Sub-section 3(a) of Section 52, the applicability of Section 55 of the NDPS Act would be attracted but if the arrested person and the seized articles are forwarded under Clause (b) Sub-section (3) of Section 52 of the NDPS Act to the officer empowered u/s 53 of the NDPS Act, the compliance of Section 55 which mandates that officer-in-charge of police station has to affix his seal on articles and samples cannot be insisted upon. In the instant case, after arrest, the appellant was with the officer empowered u/s 53 of the NDPS Act, i.e., PW9 Rupinder Singh, IPS, for investigation and, therefore, the provision of Section 55 of the NDPS Act, are not attracted. The appellant was taken to the nearest police station and, therefore, Section 52 of the NDPS Act also stands fully complied with. It is not in dispute that PW9 Rupinder Singh is an officer empowered u/s 53 of the NDPS Act read with the Notification issued by the State of Rajasthan, i.e., S.O.115 dated 16.10.1986. On close scrutiny of the evidence produced by the prosecution, as discussed herein-above, in my view, the prosecution has proved the case against the appellant beyond reasonable doubt. In the circumstances, therefore, I do not find any error in the judgment and order impugned of the trial Court.

In the result, the appeal fails and is hereby dismissed. The judgment and order dated 09.12.2002 passed by the Special Judge, NDPS Cases, Jodhpur in Sessions Case No.63/2001, convicting and sentencing appellant Badri Narain is hereby affirmed.