Om Prakash Sharma vs State of M.P.

Arun Mishra, J.

The Appellant was convicted u/s 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the ''NDPS Act''), for allegedly carrying 30 k.g. of Ganja for the purpose of sale. On having been found guilty, he has been sentenced to undergo rigorous imprisonment for four years and fine of Rs. 15,000/- and in default of payment of fine, to undergo further rigorous imprisonment for 1 year.

As per the prosecution case, on 20.3.98, Hetram Mannar, S.D.O. (P), Kotma, district Shahdol, received an information from an informer that the accused was carrying 30 k.g. Ganja on a bicycle. Then police came in a jeep led by Hetram Manhar S.D.O. (P), Pramod Pandey Sub-Inspector, R.K. Dwivedi A.S.I., A.P. Tiwari Head Constable, Ramnaresh Constable, Firdous Ekka Head Constable, Brijmohan Singh Constable and witnesses; Sukhlal Kewat and Vinod Kumar Soni along with the informer. They found the accused coming by the side of NALAH. He was carrying one bag full of Ganja which was loaded on the carrier and one military uniform colour bag was carried on the handle of the bicycle. On enquiry accused disclosed his name as Om Prakash, S.D.O. (P) Shri Hetram Mannar obtained the consent of the accused for the search vide Ex. P/10 and from the bag which was on the carrier of the bicycle, 25kg. Ganja and from the bag on the handle of the bicycle 6 kg. Ganja, total quantity 31kg. was seized vide seizure memor Ex. P/4. At the very time out of seized Ganja, 50-50 grams quantity was separated and sealed in two packets for the purpose of analysis. Abdul Quadir had done the weighment of Ganja. Spot map Ex. P/5 was prepared. Accused was arrested vide arrest memo Ex. P/7. Dehati Nalish Ex. P/11 was reduced in writing on the spot. At the police station offence was registered as Crime No. 60/98 vide Ex. P/16. The intimation was given to the Superintendent of Police on wireless regarding seizure of Ganja. The seized ganja was referred to the Forensic Science Laboratory, Sagar Vide Ex. P/13. The report Ex.P/15 obtained from F.S.L. Sagar has been placed on record. It was found that the seized material was Ganja.

Accused abjured the guilt and contended that he was falsely implicated in the case and was arrested from the flour mill of one Bhagwan Deen Kewat, at village Kumhari. In defence, Bhagwan Deen Kewat was examined by the accused.

Learned Counsel appearing for the Appellant has submitted that the conviction of the Appellant is bad in law. The seizure has not been proved from the possession of the Appellant. Information given by the informer was not reduced in writing as required u/s 42 of the NDPS Act. It is further submitted that there is non-compliance of Section 57 of the NDPS Act. There was inordinate delay in sending the sample for chemical examination. It has not been established that the sample sent for chemical examination was seized from the possession of the accused. He further submits that it has not been established that the seized material was Ganja. In the alternative, his submission is that the benefit of Probation of Offenders Act ought to have been given or the sentence imposed be suitably reduced in the facts and circumstances of the case.

Various documents have been placed on record. Ex.P/1 is the memo sent to requisition of witnesses Sukhlal and Vinod Kumar Soni. Search memo (Ex.P/2) of S.D.O(P), Hetram Manhar records that the S.D.O. (P) was not carrying any contraband. Search of accused was made. Search memo (Ex. P/3) of the accused was prepared. After seizure, 50-50 grams of Ganja was taken out of each of the bags and was sealed and the sample of seal has also been affixed on seizure memo (Ex. P/4). Crime details form (Ex. P/5) was drawn. Weighment memo (Ex. P/6) of seized material was reduced in writing. Accused arrest memo is Ex. P/7. The police statements of Vinod Kumar Soni (Ex. P/8) and Abdul Quadir (Ex. P/9) were recorded. Consent of the accused (Ex. P/10) for the search was taken. Dehati Nalish (Ex. P/11) was reduced in writing on the spot. The wireless message {Ex. P/12) was sent to the Superintendent of Police, Shahdol which contains details with respect to the seizure of Ganja. Contraband material was sent to the F.S.L. Sagar vide memo Ex. P/13. Contraband goods were placed in Malkhana. Entry in Malkhana register (Ex. P/14) was made. The report of F.S.L. Sagar (Ex. P/15) discloses that the contraband sample material was Ganja. The first information report (Ex. P/16) was registered at police station. General diary entry of police station Kotma records at serial No. 890 (Ex. P/17) the intimation which was received through an informer that the accused Omprakash Sharma was likely to carry Ganja. The information was reduced in writing in general diary by Sub-Inspector Mr. Pandey and S.D.O. (P) was informed. At serial No. 891 of the general diary, there is an entry of giving intimation to S.D.O. (P) by Sub-inspector Pramod Pandey that he was informed telephonically at 12.10 hours. Initial intimation was received at 12.05 hours. Another" entry of general diary (Ex. P.19) records leaving of trap party in search of the accused towards the spot. The general diary entry at serial No. 907 (Ex.P/20) records factum of trap, returning back of police, after seizure of the contraband along with the accused person. General diary entry (Ex. P/21) relates to placing of the seized Ganja along with the sample in Malkhana.

The prosecution has examined Vinod Kumar Soni (PW-1) as witness to the trap, and Abdul Quadir (PW-2) as witness to weighment. Hetram Manhar, S.D.O. (P) was examined as PW-3. Firdous Ekka (PW-4) constable produced a general diary and has proved the general diary entries Ex. P/17 to Ex. P/21.

Bhagwan Deen was examined as DW-1 by the accused in defence.

Vinod Kumar Soni (PW-1) was the witness to the trap. Though he has admitted his signature in Ex. P/1 in the portion ''A'' to ''A'', but, turned hostile. Abdul Quadir (PW-2) states that weighment was done in his presence. He owns his signature over ex. P/6, but, he has stated that it was done next day. Hetram Manhar (PW-3) and Firdous Ekka (PW-4), no doubt, have supported the case in the investigation part, seizure etc.

The first submission of learned Counsel is that the compliance of Section 42 of the NDPS Act has not been proved by the prosecution, inasmuch as it has not been proved that the information received from the informer was reduced in writing. His submission is that Section 42 of the NDPS Act is a mandatory provision and its non-compliance would vitiate the entire investigation and the safeguard available to the accused from undue harassment has been violated in his submission.

Effect of failure to take down information in writing or recording of the ground under proviso to Section 42(1) and requirement of sending forthwith a copy thereof to his immediate official superior, has been considered in various decisions. It may be noted that what is contemporary u/s 42 is the recording of reason for search. Section 42 requires that if there is any reason to believe from the personal knowledge or information given by any person, be taken down in writing, that any contraband in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept. Reason to believe has to be taken down in writing. Similar question arose for consideration in case of State of Punjab Vs. Balbir Singh, wherein it has been laid down that if the search has to be conducted between sunrise and sunset, this provision does not mandate that he should record his reasons for belief. But, under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise he much record the grounds for his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

In case of Mohinder Kumar Vs. The State, Panaji, Goa, , search was conducted between 7.45 p.m. and 8 p.m. i.e. after sunset, considering the decision in case of State of M.P. v. Balbir Singh (supra) it was held that ASI had reached the house accidentally while on patrolling duty. When the conduct of the accused persons raised a suspicion he went there and effected the search, seizure and arrest. It was, therefore, not on prior information but he purely accidentally stumbled upon the offending articles and not being the empowered person, on coming to know about the accused persons being in custody of the offending articles, he sent for panchas and on their arrival drew up the panchnama. In these circumstances from the stage he had reason to believe that the accused persons were in custody of narcotic drug and sent for panchas, he was under an obligation to proceed further in the matter in accordance with the provisions of the Act. u/s 42(1) proviso if the search is carried out between sunset and sunrise, he must record the grounds of his belief. Admittedly, he did not record the grounds of his belief at any stage of the investigation subsequent to his realising that the accused persons were in possession of Charas.

However, there are contrary views available of the Supreme Court in case of Radhakishan Vs. State of U.P., and in case of State of Kerala and Others Vs. Alasserry Mohammed and Others, where the larger Benchs had considered the matter and it was held that violation of statutory provisions in making search will render the search illegal but will not render the search inadmissible and will not vitiate the trial. In two latter decisions of the Supreme Court in State of Punjab Vs. Jasbir Singh and Others, and State of Himachal Pradesh Vs. Shri Pirthi Chand and another, , cases under NDPS Act itself, it has been held that evidence collected during investigation in violation of the statutory provision does not become inadmissible and trial on the basis thereof does not get vitiated.

It may further be seen that in the context of pari materia provision in case of Bai Radha Vs. The State of Gujarat, , a case under Suppression of Immoral Traffic in Women and Girls Act. Section 15(1) of that Act requires the reason for search to be mentioned. The search was conducted without recording such reason, without a warrant. It was held by the apex Court that the power to conduct the search was derived from the statute and not from the recording of the reasons and, therefore, search was not rendered illegal on account of the contravention of the provisions of Section 15(1) of the Act and as such an infirmity does not vitiate the trial. A similar view was taken in case of The State of Rajasthan Vs. Rehman, .

Thus, in veiw of the aforesaid legal position of the corresponding Section 42(1) of the NDPS Act, the facts unfolded in the case by the documentary evidence in the shape of Ex. P/17 reflects that intimation was reduced in writing at 12.05 hours for having the reason of receiving the information in the general diary at serial No. 890 and giving intimation to the higher officer -S.D.O.(P) was also reduced in writing in general diary entry No. 891 at 12.10 hours. Trap party had proceeded at 15.25 hours as evident from general diary entry No. 904 Ex. P/19. Arrival of S.D.O. (P) was entered at 15.20 hours in general diary entry No. 904. It may further be seen that the search was conducted at 17.15 hours as evident from search memo Ex. P/3 on 20.3.98. It was the time of 5.10 p.m. which was before the sunset. The seizure was done at 17.20 hours i.e. to say 5.20 p.m, on 20.3.98. It was the time before the sunset. As the search and seizure was conducted in the instant case after sunrise and before sunset, it was not necessary to have recorded the reason for such a search u/s 42(1) of the NDPS Act. However, in the instant case, it has been proved by the general diary entries Ex. P/17, Ex. P/18 and Ex. P/19 that such entries were made in the general diary. Thus, there was additional safeguard of recording a reason, which was completely adopted in the instant case. General diary entries have been proved by Firdous Ekka (PW-4). There is nothing to disbelieve him.

Learned Counsel for the Appellant has further submitted that the compliance of Section 57 of the NDPS Act has not been proved in the instant case. The S.D.O. (P) had made the arrest and seizure and he had informed the Superintendent of Police vide Ex. P/12. Hetram Manhar, S.D.O. (P) examined as PW/3 has proved the document Ex. P/12. He has clearly stated that he had informed the Superintendent of Police very next day on 21.3.98. Section 57 of the NDPS Act requires that full report to be given within forty-eight hours next after such arrest of seizure. The arrest was made on 20th and full report with the requisite particulars was made vide Ex. P/12 which contains the particulars regarding the accused, quantity of contraband, registration of offence, crime number of offence and sending the accused for seeking police remand. The witness was not subjected to cross-examination with respect to his statement in para 4 that he had given the intimation to the Superintendent of Police as contained in Ex. P/12.

Thus, there is nothing to disbelieve the uncrossed deposition of PW-3 Hetram Manhar. The cross-examination is not merely matter of procedure, but, is a matter of substance. One is bound to put his version in the cross-examination if he wants to challenge the part of the deposition made by the witness or the investigation made. Thus, there is no hurdle in accepting the version of Hetram Manhar with respect to compliance of Section 57 of the NDPS Act.

The second part of the requirement of pre-recording in the general diary and giving the intimation to the higher officer has also been proved in the instant case, as apparent from the general diary entry Ex. P/20 which recorded that the accused was searched and contraband was seized and immediately it was put in the Malkhana. General diary entry Ex. P/21 is in that regard. The Superintendent of Police, Shahdol was informed vide ex. P/12 regarding the seizure on 21.3.98. Intimation to the S.D.O. (P) was made immediately on receiving the information by the sub-inspector as mentioned in the general diary entry No. 891 Ex. P/18.

Thus, the submission raised by learned Counsel for the Appellant as to non-compliance of Section 42 and 57 to the effect that the reasons were not recorded for making search or higher officer was not intimated, is devoid of merit.

Learned Counsel has further submitted that the seizure has not been proved. It may be true that V.K. Soni (PW-1) has not supported the seizure in his presence. This witness had turned hostile, However, the witness has admitted his signature over Ex.P/1 in the protion ''A'' to ''A'' and the map Ex. P/5 in the portion ''A'' to ''A''. On the memo of weighment, document Ex. P/6, the witness has admitted his signature and also on the arrest memo. He has gone to the extent of stating that while he has signed this document accused was not in the police station nor any contraband was there, but this witness has not to be believed on his face value. There is no cogent reason to dis-believe the investigating officer Hetram Manhar. S.D.O. (P), Kotma examined as PW-3 who has clearly supported the investigation and has supported the seizure. He has proved the documents Ex. P/1 to P/16.

It is not uncommon that the witness of the public turns hostile. There is no concept of the law that the investigation officer is not an upright witness and the witness of the public is upright. No doubt an officer is interested in success of the investigation, but, that by itself cannot make the investigation officer any less independent and upright witness. Investigation has not been shown to be tainted by any ill-will or malice. The deposition of Hetram Manhar (PW-3) inspires confidence. The prosecution has been able to establish search and seizure as required.

The defence has examined Bhagwandeen. He has stated that the accused was arrested from his flour mill by the police. He has deposed that at 11 a.m. accused was called by the police. For what purpose accused was taken away, witness was not able to state. He has given the date of such an event as 19.3.98. The wintess has stated that he was not aware where the accused was on 20.3.98, which is the date of incident. Nothing has been brought out what was the reason for the witness to remember the date as 19.3.98. He has not given any reason why the police had called the accused from his flour mill. The contraband was seized on 20.3.98. Thus, the witness was not speaking about the event of 20.3.98 and as such the deposition of Bhagwandeen does not inspire confidence.

Learned Senior counsel appearing for the Appellant has submitted that it has not been proved by the prosecution that the contraband material was Ganja. He has submitted that there is no evidence on record to show that the contraband contained Ganja. There is evidence on record that the material was weighed and was immediately placed in Malkhana as apparent in general diary entry No. 909, Ex. P/21 dated 20.3.98. Ex. P/4 mentions that 50 grams material was taken from each of the bags and seal was put on the contraband. Sample of the seal was also affixed on seizure memo Ex. P/4, by which samples were sealed. Weighment certificate (Ex. P/6) has been proved by S.D.O. (P) Hetram Manhar (PW-4). It is also evident that material was sent on 23.3.98 (Ex. P/13) to F.S.L. Sagar for chemical examination. The report (Ex. P/15) of the F.S.L. shows that both samples were subjected to requisite physical, chemical, microscopic and thin layer crometographic examinations. It was found that both the samples contained Ganja. Thus, the submission raised by learned Counsel for the Appellant does not withstand scrutiny in view of the report on record,

The last submission of learned Counsel for the Appellant that the accused be given benefit of Probation of Offencers Act, is totally misconceived. In the facts of the case and also considering that in offence under the NDPS Act, normally the benefit should not be extended in such cases of the probation accused is not entitled for such benefit in the case. With respect to reduction in sentence, I do not consider that any leniency is required, particularly in cases of NDPS Act, which are the offences against the society and nation which weakens the youth. The sentence imposed upon the Appellant does not call for any alteration. The conviction is proper,

In the result, the appeal sans merits and is dismissed.