Suresh Kumar Singh and Others vs Union of India

B.K. Narayana, J.�Heard Sri J.P.S. Jadaun, learned Counsel for the appellants and Sri Sanjay Kumar Singh, learned Counsel for the Union of India.

This criminal appeal has been filed by the appellants against the judgment and order dated 1.5.2004 passed by the Special Judge, N.D.P.S. Act, Varanasi in Criminal Case No. 15 of 2003, under sections 8, 20 and 23 of the N.D.P.S. Act convicting the appellants under section 20(ii)(C) of the N.D.P.S Act and sentencing them to twenty years R.I. and a fine of Rs. 2,00,000/- (Rs. two lacs only) each and in default of payment of fine five years further R.I. Both the sentences were directed to run separately.

The brief facts of the case as narrated by the complainant-Abhijeet Chaterjee, Intelligence Officer, Varanasi in the complaint filed by him against the appellants before the Special Judge, N.D.P.S. Act, Varanasi which was registered as Criminal Case No. 15 of 2003 (Union of India v. Suresh Kumar Singh and another) are that 560 kg. Charas packed in twenty seven packets was recovered by the officers of Revenue Department, Varansi and Lucknow on 8.10.2002 at about 5:00 p.m. in the presence of two independent witnesses Amit Kumar Singh and Avanish Kumar Singh. From the search of the hidden cavity of truck No. UP 77/9518, which was intercepted near Ashapur crossing on Varanasi-Kanpur road and checked by them on prior information that huge quantity of contraband was being transported by the said truck which was being driven by the appellant No. 1, Suresh Kumar Singh and in which the appellant No. 2, Chandar Sharma was sitting as a cleaner, huge quantity of illicit charas was recovered. Two samples of 24 gm. each were extracted from the recovered contraband by the searching officer who after testing the samples with the testing kit and upon being satisfied that the sample was charas, kept the two samples in different envelopes. The same were sealed and signed on the spot by the officers of the Directorate, witnesses and the appellants. Recovery memo was prepared signed by the officers of the Directorate, witnesses and the appellants. Copies of the same were given to the appellants. Both the appellants in their statements under section 67 of the N.D.P.S. Act which were recorded in writing in the presence of Senior Enforcement Officer of Enforcement Department confessed that they were transporting the consignment of 560 kg. charas in truck No. UP 77/9518. They stated that the owner of the seized charas was one Ramesh Mishra resident of Kanpur and the consignment of Charas was to be delivered by them to him at Kargil petrol pump on Kanpur-Agra road. The consignment of charas was loaded in the truck in question by the aforesaid Ramesh Mishra at Birganj in Nepal Both the appellants were arrested on 9.10.2002 at 1:00 p.m. and produced before the Special Judge, N.D.P.S. Act. Varanasi on the same day and sent to jail. The written report regarding arrest of the appellants and recovery of contraband articles from them was forwarded by the recovery officer to senior Information Officer Revenue Directorate, Varanasi on 9.10.2002. The sample drawn from the seized contraband was dispatched to General Manager, State Opium and Alkaline Works, Ghazipur alongwith letter dated 10.10.2002. According to the report of Joint Director Opium and Alkaline Works, Ghazipur the sample was found to contain charas.

After the receipt of the report of Laboratory, the complainant filed a complaint under sections 8/20 N.D.P.S. Act against the appellants before Special Judge, N.D.P.S. Act, Varanasi. The Court took cognizance of the aforesaid offences on the complaint and summoned both the appellants to face trial who appeared before the Court. Charge under sections 20 and 23 of the N.D.P.S. Act was framed against the appellants who pleaded not guilty and claimed trial.

The prosecution in order to prove its case against the appellants examined the complainant Sri Abhijeet Chaterjee, and Sri Chandra Shekar Singh, Intelligence Officers as (PW-1 & PW-2). Both the prosecution witnesses supported the prosecution case in their statements recorded during trial. The appellants in their examination under section 313 Cr.P.C. denied the charge framed against them and stated that they had falsely been implicated in the present case on the basis of forged documents. They further stated that they were travelling in the truck in question as passengers and they had no concern with the charas recovered from the same.

The appellants did not examine any witness in defence. The documentary evidence adduced on behalf of the prosecution has been referred in detail in the impugned judgment and hence need not be reproduced in this judgment Learned Special Judge, N.D.P.S. Act after considering the entire facts and circumstances of the case and the evidence on record convicted both the appellants and awarded them aforesaid sentences.

Sri J.P.S. Jadaun, Advocate appointed by this Court as Amicus Curie to argue this appeal on behalf of the appellants vehemently submitted that there was no compliance of section 42(2) of the N.D.P.S. Act by the Intelligence Officers who had effected the search of the truck and recovered charas therefrom. The prosecution having failed to examine Amit Kumar Singh and Avanish Kumar the two independent witnesses of search and seizure of the truck in question, recovery of the contraband articles therefrom and the arrest of the appellants, the conviction of the appellants in the present case based on the testimony of the two departmental witnesses alone cannot be sustained and the failure of the Trial Court to draw any adverse inference against the prosecution on account of the aforesaid omission on the part of the prosecution has further vitiated the impugned judgment.

Learned Counsel for the appellants also submitted that the reliance placed by the learned Trial Judge on the confessional statements of the appellants recorded under section 67 of the N.D.P.S. Act in the presence of the higher officials of the Revenue and Intelligence Department while holding the appellants'' guilty of having committed offences under N.D.P.S. Act has rendered the Trial Court''s judgment per se illegal. Sentence awarded to the appellants is too harsh.

Per contra, Sri Sanjay Kumar Singh, learned Counsel for the Union of India submitted that since the search of the truck and recovery of the contraband was made by a Gazetted Officer from a conveyance after intercepting and checking the same on a public road, the provisions of section 42(2) of the N.D.P.S. Act are not attracted to the present case. He next submitted that both the fact witnesses examined on behalf of the prosecution during the trial having fully supported the prosecution case and proved the material documents prepared during the search, recovery and arrest of the appellants and the defence having failed to elicit anything from them which could have discredited their evidence, despite their being subjected to a long drawn cross-examination by the defence Counsel, the conviction of the appellants cannot be said to be vitiated only on the ground of the failure of the prosecution to produce the two independent witnesses during the trial to prove the search and recovery of contraband articles from the truck in question and the arrest of the appellants on the spot. He lastly submitted that the appellants having failed to retract their confessions made by them in their statements recorded under section 67 of the N.D.P.S. Act, either before the Special Judge, N.D.P.S. Act, Varanasi before whom they were produced on the same day on which they were arrested alongwith seized contraband articles or at any subsequent stage of the trial, the stand taken by them in their examination under section 313 Cr.P.C. that their confessions were obtained by the officers of the Revenue and Intelligence Department under coercion and duress clearly appears to be after thought and totally unacceptable. The sentences awarded are in consonance with offence committed by the appellants and no interference with the same is warranted.

I have very carefully examined the submissions made by the learned Counsel for the parties and perused the impugned judgment as well as record of the Lower Court.

The first question which arises for consideration in this appeal is that whether the provisions of section 42 of the N.D.P.S. Act are attracted to the facts and circumstances of the present case and if the answer is in the affirmative, whether there was any compliance of section 42(2) of the N.D.P.S. Act in this case or not. In order to appreciate the aforesaid contention, it will be useful to extract section 42 of the N.D.P.S. Act and scrutinize the evidence tendered by the prosecution in this regard :

"42.(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,-

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof an any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act:

Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior."

Intelligence Officer Sri Abhijeet Chaterjee (PW-1) has in his evidence stated that he was posted as Intelligence Officer in the Directorate of Revenue & Intelligence Department, Varanasi since October, 2001. Acting on a prior information received by him on 8.10.2002 he along with his other colleagues of Varanasi and Lucknow zone had reached Ashapur crossing on Ghazipur-Varanasi road at about 3:00 p.m. arranged two independent witnesses namely, Amit Kumar Singh and Avanish Kumar Singh who were intimated that there was information that huge quantity of charas was being transported by truck No. UP-77/9518 and they were required to remain present as witnesses during the search of the truck, to which they agreed. At about 5:00 p.m. the aforesaid truck reached Ashapur crossing where it was stopped. The person sitting on the driver''s seat disclosed his name as Suresh Kumar Singh, appellant No. 1. The name of the other occupant of the truck was Chandar Sharma, appellant No. 2, the cleaner of the truck. PW-1 Abhijeet Chaterjee and his colleagues disclosed their identities to the two occupants of the truck and informed them in writing that if they so desire the search of their truck as well as their personal search can be conducted in the presence of a Magistrate or a Gazetted Officer. They were further informed that several Gazetted Officers were members of the team of the Revenue and Intelligence Department which had intercepted the truck and if they so desire, they can be searched before them also. Appellant No. 1 Suresh Kumar Singh and the appellant No. 2. Chandar Sharma refused in writing to be searched before a Magistrate or a Gazetted Officer and requested PW-1 Abhijeet Chaterjee and his other colleagues to search them and their truck at any other place. According to their requests, PW-1 along with his other colleagues and independent witnesses drove the truck to the office of Directorate and Revenue, Patel Nagar Mint House Nadesar, Varanasi. According to PW-1 the appellants upon being quizzed about the nature of the goods loaded in their truck replied that the truck was empty. Whereupon, PW-1 and his other colleagues informed the appellants that they had positive information that large quantity of charas was hidden in a secret cavity in the truck. There upon they admitted that there was a hidden cavity in the truck behind the driver''s seat in which charas was hidden. Thereafter the hidden cavity was opened by Sri Abhijeet Chatterjee, Intelligence Officer (PW-1) and his other colleagues, from which twenty seven packets were recovered. The contents of the packets were tested by a testing kit and all the packets were found to contain charas. The weight of the charas recovered from the hidden cavity of the truck upon weightment was found to be 560 kg.

PW-1, Sri Abhijeet Chaterjee further deposed that two samples of 24 gms. each were drawn from the twenty seven packets of charas and kept in two different envelopes, sealed and signed by all the officers present on the spot, witnesses and both the appellants. The remaining charas was packed in thirteen packets and wrapped in a ''markeen'' and sealed on the spot.

PW-1 also stated that a separate list of documents recovered from the search of the truck and recovery memo was also prepared on the spot. Complainant-Intelligence Officer, Abhijeet Chaterjee in his evidence also stated that the personal search of the appellant No. 1, Suresh Kumar Singh led to recovery of Rs. 1100/- (Rs. eleven hundred) and Rs. 800/- (Rs. eight hundred) respectively from him, which was returned to him. The truck by which the charas was being transported was also seized.

PW-1, Abhijeet Chaterjee further stated that both the appellants in their statements recorded under section 67 of the N.D.P.S. Act before Intelligence Office Sri Chandra Shekar Singh in his own hand writing had admitted that the seized charas was loaded in their truck at Beerganj Nepal for being delivered at Kanpur. Both the appellants were then informed that they had committed offences punishable under the N.D.P.S. Act and arrested. Thereafter they were produced before the Special Judge, N.D.P.S. Act, Varanasi along with the packets of samples and the seized contraband.

Complainant Abhijeet Chaterjee (PW-1) further gave evidence that written report relating to the search, seizure and arrest was forwarded by him to his official superior on 9.10.2002. The samples alongwith memo of letter signed by the Senior Intelligence Officer Sri Chandra Shekar Singh (PW-2) dated 10.10.2002 was forwarded to General Manager Government Opium and Alkaline Works, Ghazipur for analysis. The report of the sample forwarded by the forensic expert after chemical analysis of the same indicated that the sample contained charas.

PW-2 Sri Chandra Shekhar Singh, Senior Intelligence Officer proved the statements of the appellants recorded under section 67 of the N.D.P.S. Act (Ext. Ka-12 and Ext. Ka-13) and stated that both the appellants had voluntarily confessed before him that they were transporting a consignment of illicit charas by the truck in question, although they were duly informed that the statements so made by them may be read in evidence against them. PW-2 Chandra Shekar Singh, senior Intelligence Officer further stated that the complainant PW-1, Intelligence Officer Abhijeet Chaterjee had forwarded a complete written report of search, seizure and arrest (Ext. Ka-18) under his signature to his immediate official superior on 9.10.2002.

From a careful scrutiny of the evidence of PW-1 and PW-2, it transpires that PW-1 complainant-Intelligence Officer Abhijeet Chaterjee had reached Ashapur crossing on Ghazipur-Varanasi road alongwith his other colleagues on prior information that a huge consignment of charas was being smuggled by the truck No. UP-77/9518. PW-1 however he has neither disclosed the time nor the source of secret information received by him in his evidence. He has also not spoken anything in his evidence about having either taken down the information received by him in writing under Sub-section (1) of section 42 of the N.D.P.S. Act for forwarding the same within seventy two hours to his immediate official superior. Hence, apparently there was no compliance of section 42(2) of the N.D.P.S. Act. The question which now arises for consideration is whether the appellants'' conviction is liable to be set aside on the aforesaid omission on the part of the searching officer. In order to appreciate the aforesaid aspect of the matter, I now proceed to examine the submissions made by Sri Sanjay Kumar Singh, learned Counsel for the Union of India in this regard.

Sri Sanjai Kumar Singh, learned Counsel for Union of India has submitted that since the search, seizure and arrest was made by Intelligence Officer, Sri Abhijeet Chaterjeet (PW-1) who was himself an officer of gazetted rank, he was not required to comply with the requirement of section 42(2) of the N.D.P.S. Act as the said requirement is confined to cases where the action is taken by the officers below the rank of Gazetted Officers without authorization. In support of his aforesaid submission he has placed reliance upon G. Srinivas Goud Vs. State of A.P., In the case of G. Srinivas Goud (supra) the Hon''ble Supreme Court, while examining the same issue in paragraphs 9 and 10 of its judgment delivered in the aforesaid case has held as hereunder:--

"9. It will be seen from section 41(2) that it refers to only officers of gazetted rank and it is such officers who can authorise their subordinates, not below the rank of peon, Sepoy or constable, to carry out arrest, search or seizure. The function of arrest, search and seizure carried out under section 42(1) is by officers who do not have warrants or authorisation in their hands before proceeding to take action. This is as per the heading of the section which reads: "Power of entry, search, seizure and arrest without warrant or authorisation." Under section 41 it is the specified Magistrates who issue warrants of arrest and it is officers of gazetted rank who give authorisation in favour of their juniors. Provisions of sub-section (2) of section 42 are meant to cover cases falling under section 42(1). Therefore, in our view, the requirement under section 42(2) need not be extended to cases of arrest, search and seizure by officers of gazetted rank. The officer of gazetted rank while authorising junior officers under section 41(2) knows what he is requiring them to do and, therefore, there is no need for reporting. For this reason section 41 does not contain any such requirement. The need for reporting under section 42(2) arises because the officer proceeds without authorisation in terms of section 41(1) or 41(2). The requirement of informing the immediate official superior under section 42(2), in our view, has to be confined to cases where the action is taken by officers below the rank of gazetted officers. without authorisation.

It will be anomalous to say that officers of gazetted rank who are conferred with power to authorise junior officers to carry out arrest, search and seizure, are required to report to their superior officers when they carry out arrest, search or seizure on their own. As already seen the rationale for this provision of informing superiors appear to be that when the arrest, search and seizure is without authorisation by gazetted rank officers, the officers taking action must keep their superiors informed. The superior officers must know about the action taken by their subordinates. However, the position of gazetted rank officers, in view of their rank and seniority and power to authorise subordinates to proceed to action, is totally different. They are the source of power of authorisation. The gazetted rank officers enjoy special position and privileges under the Act. They need not be equated to officers taking action without authorisation or warrants. The requirement of sending information to superior officers under sub-section (2) of section 42 cannot be insisted upon in their case. There is no bar in the statute to functions of arrest, search and seizure being carried out by the officers of the gazetted rank themselves. When they act on their own, they do not have to report to their seniors on such things."

In the present case there is no dispute about the fact that the search, seizure and arrest was made by a Gazetted Officer Sri Abhijeet Chaterjee, Intelligence Officer and his other colleagues who were officers of gazetted rank and hence in view of the law laid down by the Hon''ble Apex Court after interpreting sections 41 and 42 of the N.D.P.S. Act, I have no hesitation in holding that the applicants'' conviction is not liable to be set aside on account of failure of the officers who had searched the truck and effected recovery, seizure and arrest acting upon prior information received by them to comply with section 42 (2) of the Act.

I now proceed to examine the second ground on which the appellants have assailed their conviction. The appellants'' contention is that the Court below erred in not drawing any adverse inference against the prosecution for its failure to produce two independent witnesses Amit Kumar Singh and Avadhesh Kumar Singh who were the witnesses of the search, recovery and arrest during the trial as their evidence would have been the best piece of evidence to prove that the search, recovery, seizure and arrest was made in the same manner as narrated in the recovery memo and the evidence of PW-1 and PW-2. While examining the aforesaid aspect of the matter, the learned Trial Judge has observed in paragraph 21 of the impugned judgment that keeping in view the huge quantity of charas which was recovered from the appellants and the unimpeachable evidence adduced by the prosecution to prove the charge framed against the appellants at the trial there is no possibility of false implication of the appellants in the present case and no adverse inference is liable to be drawn against the prosecution for non-production of the two independent witnesses, who had been enjoined in the search, recovery and seizure.

This Court now proceeds to examine the last ground canvassed by the learned Counsel for the appellants before this Court that the sentence awarded by the Trial Court to the applicants in this case which is higher than the minimum punishment prescribed for the offence for which the appellants have been convicted is totally unjustified and cannot be sustained. The appellants in the present case have been convicted under section 20(C) of the Act. Section 20(C) which prescribes the sentence for contravention which relates to an offence committed under the N.D.P.S. Act involving commercial quantity is being reproduced herein below:

"20(C). Punishment for contravention in relation to cannabis plant and cannabis.--Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder,-

(a) Cultivates any cannabis plant; or

(b) Produces, manufactures, possess, sells, purchases, transports, imports inter-State, exports inter state or uses cannabis, shall be punishable,-

[(i) Where such contravention relates to clause (a) with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine which may extend to one lakh rupees; and

(ii) Where such contravention relates to sub-clause (b),-

(A) And involves small quantity, with rigorous imprisonment for a term which may extend to six months, or with fine which may extend to ten thousand rupees, or with both;

(B) And involves quantity lesser than commercial quantity but greater than small quantity, with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees;

(C) And involves commercial quantity, with rigorous imprisonment for a term which shall not be less than ten years which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees :]

Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees."

Thus, the minimum sentence and fine which can be imposed by a Court upon conviction for an offence under section 20(C) is rigorous imprisonment for a term which shall not be less than ten years and fine which shall not be less than Rs. one lac. Proviso 2 of section 20(C) empowers the Court for reasons to be recorded in the judgment to impose a fine exceeding Rs. 2,00,000/-(Rs. Two lacs). Section 32-B enumerates the factors to be taken into account by the Court for imposing higher than the minimum punishment. Section 32-B of the Act shall be reproduced herein below:

"32. Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the Court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely,:--

(a) the use or threat of use of violence or arms by the offender;

(b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence;

(c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence;

(d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities;

(e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences; and

(f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence."

It appears from the perusal of the impugned judgment and order that the main factor which had weighed with the Court below for imposing punishment on them which is higher than the minimum punishment prescribed under the act is the huge quantity of illicit charas which was recovered from the truck in which they were travelling. It is interesting to note that although the appellants had informed the searching officer that the consignment of seized charas had been loaded in their truck by Ramesh Chandra Mishra and the same was to be delivered to him at Kanpur, no investigation in this direction was done by the investigating agency for ascertaining the veracity of the facts disclosed by the appellants to the searching officer at the time of search and the seizure of the truck. The prosecution has not been able to adduce any evidence proving that the appellants were the owners of the consignment of illicit charas as no attempt was made to search and arrest to Ramesh Chandra Mishra and array him as an accused in the present case. In the aforesaid circumstances it can be said that the appellants were at the most carriers of the consignment. There is no dispute about the fact that they are not convicted or accused in any other case under the N.D.P.S. Act. The learned Trial Judge did not find that any of the factors enumerated in section 32 of the N.D.P.S. Act exist in this case. Hence in view of the above the sentence awarded to the appellants and the fine imposed on them by the Trial Court which is higher than the minimum punishment and fine prescribed for an offence under section 20(C) of the N.D.P.S. Act cannot be sustained and is accordingly modified.

The appeal succeeds in part. While maintaining the appellants'' conviction recorded by the Court below, the sentence awarded to the appellants and the fine imposed on them is reduced to ten years R.I. and fine of Rs. one lac each and in default of payment of fine further R.I. of one year. If the appellants have already undergone the modified sentence including the additional imprisonment required in default of payment of fine they shall be released forthwith, if they are not wanted in any other case.

The impugned judgment and order passed by the Court below stands modified accordingly.

It is further directed that Sri J.P.S. Jadaun, Advocate shall be paid a sum of Rs. 10,000/- (Rs. ten thousand) towards his remuneration for arguing this appeal on behalf of the appellants as Amicus Curie. There shall however be no order as to costs.