Bal Mukund vs Central Narcotics Bureau

Ashok Kumar Tiwari, J.

Appellants Bal Mukund and Basantilal stand convicted u/s 8/18 of Narcotic Drugs and Psychotropic Substance Act, 1985 (for short "the Act") and appellant Amritlal stands convicted u/s 8/29 of the Act by Special Judge (N.D.P.S. Act), Ratlam (M.P.) by judgment and order passed on 26.08.2000 in Sessions Trial No. 26/1998.

2(a). Briefly stated the prosecution''s case is that on 20.06.1998 Bajranglal (PW-5) was posted as Sub Inspector at Narcotics Department, Ratlam. On that date, he received secret information from the informant that Bal Mukund and Basantilal who are the residents of Nandwel and Behpur District Mandsaur will be going on 21.06.1998 from their village carrying opium with them. It was also informed that they will be going on foot and pass through Nayapura Fanta Jaora. It was also informed that the quantity of opium carried by them will be about 20 kilograms. It was also informed that aforesaid Bal Mukund and Basantilal were the men of Amritlal Anjana and they use to carry his opium. Bajranglal (PW-5) recorded this information in CBN-1 and the information was sent to the higher authorities.

2(b). On 21.06.1998, M.R. Narvale (PW-7) who was posted as Inspector at Narcotics Office, Ratlam. On that day, he was informed regarding the information recorded by Bajranglal on 20.06.1998 and M.R.Narvale (PW-7) was informed that at about 4.00 to 5.00 a.m., two persons having opium with them will be coming from the side of Maukhedi and they will be going towards Namli by Ratlam - Jaora Road moving through Nayagaon. Under the directions of the Assistant Commissioner, Narcotics, Neemuch, a preventive party was organized by M.R. Narvale (PW-7). Bajranglal, Sub Inspector and the constables of the Narcotics Department were included in the preventive party headed by M.R. Narvale (PW-7).

2(c). The preventive party reached on the spot and appellant Bal Mukund and Basantilal were intercepted. Appellants were apprised of the information received about their having opium. They were asked their options for being searched before nearby Magistrate or gazetted officer. Both the appellants opted for being searched before gazetted officer. Khandelwal, District Opium Officer, Jaora was called and on his arrival, he was introduced to appellants Bal Mukund and Basantilal and their written consent for being searched by him was obtained. A panchnama Ex. P/3 was drawn in reference to obtaining the consent from appellant Bal Mukund and panchnama Ex. P/ 4 was drawn in reference of appellant Basantilal.

2(d). Thereafter, sacks (kattas) carried by them were searched and five small polythene bags containing black substance were recovered from each sack. Each small bag weighed 2 kilograms and the substance contained in them was identified as opium. Thus, 10 kilograms opium was recovered from the sack of each appellant. Two mixed samples of 25 grams each were taken from all five bags recovered from appellant Bal Mukund and two mixed samples weighing 25 grams each were taken from five polythene bags recovered from appellant Basantilal. Respective sets of two samples and five polythene bags were sealed and seized. Five polythene bags recovered from appellant Bal Mukund were sealed together and two samples taken out from them were sealed separately and seized. Similarly five bags recovered from appellant Basantilal were sealed together and two samples taken out from them were separately sealed and seized. The statement Ex. P/20 of Bal Mukund and the statement Ex. P/21 of Basantilal were recorded by M.R. Narvale (PW-7).

2(e). Appellants Bal Mukund and Basantilal were arrested vide arrest memo Ex. P/8 and P/9 respectively. Panchnama Ex. P/6 regarding the sample of seal was also prepared. The spot map and the other required panchnamas were prepared on the spot and the seized substance and appellants Bal Mukund and Basantilal were taken to Narcotics Office. Both the appellants disclosed the fact after their arrest that opium carried by them was handed over to them by Amritlal Anjana. On the basis of their disclosure, M.R. Narvale (PW-7) and the other members of the force reached village Maukhedi and appellant Amritlal was summoned and in his presence, his house was searched but no contraband substance was recovered from his house. Panchnama Ex. P/22 was prepared in this regard. The statement of Amritlal Ex. P/24 was recorded by M.R. Narvale (PW-7) and he was arrested by arrest memo Ex. P/25. Samples of the seized opium were sent for chemical examination. After conducting the required investigation, a complaint was filed against appellants Bal Mukund, Basantilal and Amritlal.

Learned trial Court framed charges u/s 8/18 of the Act against the appellants Bal Mukund and Basantilal and u/s 8/27 of the act against appellant Amritlal. They pleaded not guilty and they were put to trial. After trial, appellants Bal Mukund and Basantilal were convicted u/s 8/18 of the Act. Appellant Amritlal was convicted u/s 8/27 of the Act. The appellants were sentenced to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/-; in default of payment of fine, they were directed to undergo further imprisonment for 2 years. Hence, appellants Bal Mukund and Basantilal have filed Criminal Appeal No. 964/2000 and appellant Amritlal has filed Criminal Appeal No. 1108/2000.

Both the appeals arise out of the same judgment and order of conviction. Hence, they are being disposed of by common judgment.

Learned counsel for appellants Bal Mukund and Basantilal has submitted that provisions of Section 42 and SO of the Act were not complied with. Hence, the conviction of the appellants deserves to be quashed. On the contrary, counsel for respondent - CBN has submitted that search was effected at the public place. Therefore, provisions of Section 42 of the Act were not applicable and search was not of the person of the appellants. Therefore, provisions of Section 50 of the Act are also not: attracted. As far as the question regarding non-compliance of Section 42 of the Act is concerned, it deserves to be rejected at the outset as search has been made at public place and the search was not a house search. Therefore, the contention of the learned counsel for the respondent - CBN that the provisions of Sections 42(2) of the Act are not applicable deserves to be accepted.

Learned counsel for the appellants has submitted that the appellants were not informed of their right of being searched before a Magistrate or gazetted officer hence, the conviction of the appellants is vitiated on this count alone. His submission is that even if part of the prosecution evidence regarding the offer of option to the appellants is accepted, still it cannot be held that the provisions of Section 50 of the Act were properly complied with because according to the testimony of M.R. Narvale (PW-7) himself, it is apparent that appellants were simply asked their desire for being searched either before Magistrate or gazetted officer. The submission of the learned counsel is that appellants were not informed in the clear words that they possessed the right or they could demand as of right for being searched before any Magistrate or any competent gazetted officer.

The contention of the learned counsel for the respondent is that the contraband substance has not been recovered from the person of the appellant and search was not the personal search. It was a search of the luggage hence provisions of Section 50 of the Act do not apply. The contention of the learned counsel for the appellants is that as the sack searched was being carried by appellants, when the search was effected, therefore, it amounts to personal search and the provisions of Section 50 of the Act shall be applicable.

Five polythene bags were recovered from appellant Bal Mukund and five bags were recovered from appellant Basantilal. The weight of the contraband opium contained in each bag is said to be 2 kilograms, but only two samples were taken out from the opium seized from appellant Bal Mukund and two samples were taken out from the opium recovered from appellant Basantilal. There is no evidence to the effect that the samples were the representative samples. The samples should be taken in such a manner so as to form representative sample of the contraband in relation to which criminal liability is sought to be fastened on the accused. If there is more than one package, sample should be taken from each of them. In the present case, five packages have been recovered from each of the appellants Bal Mukund and Basantilal, but two samples had not been taken from each package.

There is no evidence as to how the representative sample was taken out from five bags recovered from appellant Basantilal and how the representative sample was taken out from five packages recovered from appellant Basantilal. Seizing Officer has not even stated in his statement that the sampes taken were the representative samples. He has stated that two mixed (Mishrit) samples were taken from the each set of five bags recovered from the appellants Bal Mukund and Basantilal. Thus, the procedure for taking out the samples has not been properly followed and it is difficult to hold that which of the bag or package contained opium. This makes the fact of seizure of the contraband opium highly doubtful and entitles appellants Bal Mukund and Basantilal to get the benefit of doubt.

Therefore, even if it is held that Section 50 of the Act is not applicable in the present case, as search was not personal search, still the search and seizure being doubtful, appellants will be entitled to get the benefit of doubt. Hence, the question whether provision of Section 50 of the Act are applicable or not, is not being answered.

The contention of the learned counsel for respondent is that appellants Bal Mukund and Basantilal have admitted their guilt in their statement Ex. P/20 and P/21 respectively. Therefore, their conviction deserves to be maintained. Ex. P/20 and P/21 are admissible even though they contained confessional statements of the appellants, as M.R. Narvale (PW-7) before whom these statements are said to be made is not a police officer. Therefore, confessional statements made before him cannot be held to be inadmissible unless it is shown that confessional statements were caused by introducing threat or promise. Thus, though the statements Ex. P/20 and P/ 21 cannot be said to be inadmissible, yet they cannot form the part of the substantive evidence. M.R. Narvale (PW-7) has stated in his statement that statement of Bal Mukund Ex. P/20 and statement of Basantilal Ex. P/21 were written by him. But what was told to Narvale by the appellants has not even been deposed by him. The so called confessional statements have been retracted by the appellants. Therefore, conviction of the appellants cannot be based on Ex. P/20 and Ex. P/21. Thus, recovery from the appellant Bal Mukund and Basantilal is doubtful. Panch witness Jujharsingh (PW-2) and Narsingh (PW-3) have not supported the prosecution''s case. Samples were not taken from each package recovered from the appellants, which renders the proceedings of seizure highly doubtful. Therefore, appellant Bal Mukund and Basantilal are entitled to be acquitted from the charges.

As far as appellant Amritlal is concerned, he was apprehended only on the basis of the statement made by appellants Bal Mukund and Basantilal. The only evidence available against him is his confessional statement recorded u/s 67 of the Act. M.R. Narvale (PW-7) has stated in his statement that statement of Amritlal Anjana Ex. P/24 was recorded by him. The contents of Ex. P/24 have not been duly proved by the prosecution. The so called confession has been retracted by the appellant Amritlal. He cannot be convicted only on the basis of Ex. P/24. Even the confessional statements of co-accused cannot form the basis of his conviction. His conviction is not based on the evidence and cannot be sustained.

Consequently, both the appeals are allowed. The appellants Bal Mukud and Basantilal are acquitted of the charge u/s 8/18 of the Act, giving benefit of the doubt. Appellant Amritlal is also acquitted of the charge u/s 8/29 of the Act, as there is no evidence to substantiate his conviction. The seized property shall be disposed of in accordance with the directions of the learned trial Court in the impugned order. Appellants Bal Mukund and Basantilal are in jail. They shall be set at library, if not required in any other case. Appellant Amritlal is on bail. His bail bonds and personal bonds shall stand discharged.