- (1.) ONKARESHWAR Bhatt, J. This appeal has been preferred against judgment and order dated 19-10-1994 passed by the then Additional Session Judge III, Bijnor in Special Trial Nos. 44 and 43 of 1992. The appellant has been convicted under Section 17 of the Narcotic Drugs and Psychotropic Substances Act, hereinafter referred to as the Act, and sentenced to rigorous imprisonment for ten years and to pay fine of rupees one lakh and in default of payment of the fine rigorous imprisonment for three years has been ordered. By the impugned judgment the appellant has been acquitted under Section 60 of the Excice Act for which offence he was also tried.
(2.) SRI Jagdev Singh, learned Counsel for the appellant has been heard at great length and in detail and SRI. R. S. Sengar, learned A. G. A. appearing for the State has also been heard. According to the prosecution case P. W. 4 S. I. Devendra Pal Singh was posted at police station Nazibabad District Bijnor. On 8-9-1992 he alongwith Constable Ram Lakhan P. W. 1, Constable Mukesh Giri P. W. 3, Constable Mahendra Singh and Constable Balwan Singh went to village Shahpur. When the police party reached infront of the hut of the appellant they saw four persons sitting there. When the Sub-Inspector turned in that direction three persons ran away and could not be apprehended. Fourth person was the appellant, who was apprehended. On search about 50 Grams opium black in colour wrapped in polythene was recovered from the left pocket of Pajama of the appellant. At that place one plastic cane was also kept from which eight liters of illicit liquor was recovered. At the time of seizure no witness of public was willing to associate because wife of the appellant had forbidden them. The appellant could not show any licence for possession of the said opium and illicit liquor. Therefore, the appellant was arrested at 7. 45 p. m. under Section 17 of the Act and under Section 60 of the Excise Act. Recovery memo was prepared on the spot in the light of torch. The recovered opium was kept in same polythene and sealed in clothes. Specimen seal was also prepared. The appellant and the recovered contraband were brought to the police station. F. I. R. of the case was lodged at police station at 9. 45 p. m. on 8-9-1992. After investigation charge-sheet was submitted against the appellant. Report of Chemical Examiner shows that the contraband was opium as it contained 4. 41% of Morphine. The defence is of denial. The appellant has stated that he had election enmity with Gram Pradhan and he was instrumental in getting him implicated in this false case.
(3.) P. W. 1 Ram Lakhan Sharma who accompanied S. I. Devendra Pal Singh P. W. 4 at the time of search and seizure of the contraband has not been produced for cross-examination, hence he has been discharged. Constable Mukesh Giri P. W. 3 and S. I. Devendra Pal Singh P. W. 4 have stated about the apprehension of the appellant, recovery of the opium on search from possession of the appellant and seizure thereof. The facts of the case show that the recovery of the opium from possession of the appellant was made when S. I. Devendra Pal Singh, who was doing investigation in some other case, had no prior information that the appellant has committed the offence punishable under the Act. It was on sudden search of the appellant that the contraband was recovered from his possession. In the aforesaid situation, compliance of Section 50 of the Act was not required because it was not attracted. It has been contended that since seizure has taken place after sunset the arresting officer should have recorded the grounds of his belief as is provided under the proviso to Section 42 (1) of the Act. According to the prosecution case search was made infront of the hut of the appellant and as shown in the site plan it is an open place. No question has been asked either to P. W. 4 S. I. Devendra Pal Singh or to the Investigating Officers P. W. 5 A. P. Singh, S. H. O. and P. W. 6 S. I. Rajvir Singh that the land infront of the hut of the appellant was enclosed. The proviso to sub-section (1) of Section 42 of the Act will get attracted when a building, conveyance or enclosed place is to be searched. It has come in evidence that the people come and go at the place of occurrence. Therefore, the appellant was arrested and seizure was made from his possession in the public place. In the case of State of Punjab v. Balbir Singh, 1995 (1) JIC 382 (SC) : 1994 Supreme Court Cases (Criminal) page 634, it has been held that empowered officer while acting under Section 43 of the Act need not record any reason for his belief. It has been contended that in the recovery memo as well as the evidence weight of the opium is mentioned as 50 Grams while in the report of the Chemical Examiner it is mentioned as 60 Grams. It has not come in evidence that at the time of seizure contraband was actually weighed on scale. Mention of 50 Grams is only on estimation. Report of the Chemical Examiner which shows that the contraband was 60 Grams does not affect the veracity of the statements of the witnesses because weight mentioned by the Chemical Examiner must have been made after weighing the contraband. In the recovery memo the contraband opium is said to have been wrapped in a polythene bag. P. W. 3 Constable Mukesh Giri has stated that colour of polythene is green white. P. W. 4 S. I. Devendra Pal Singh has stated that the colour of the polythene was white and dirty (Matiyala ). Mentioning of the colour of polythene as green, white and dirty white is not very material contradiction in the statements of these two witnesses. This also does not affect the veracity of the sworn testimony of these two witnesses of fact. It has come in evidence that at the time of recovery the opium was round in shape. P. W. 4 S. I. Devendra Pal Singh has stated that now the opinion is in several parts. On the basis of this fact it is contended that the opium which was recovered is not the same which has been produced in Court. The trial Court has observed that the Chemical Examiner might have broken the opium for the purposes of the examination and due to which the opium which was in one roll might have broken into pieces. There is yet an other possibility that the opium might have dried up in due course of time and due to the above fact it turned into pieces. The recovery was made on 8-9-1992 and S. I. Devendra Pal Singh was examined in Court on 15-6- 1994 when it was found that the opium had turned into pieces. Besides that, no question was put to S. I. Devendra Pal Singh in this regard. It has come in evidence that the contraband was sealed on the spot and that in sealed condition it was deposited in Malkhana of the police station. It has also come in evidence that sample of seal was also prepared. P. W. 7 Constable Anup Singh carried the contraband to Agra for chemical examination on 28-9-1992. He has proved the G. D. entry in this regard. The entire opium seized was sent for analysis. The statement of P. W. 5 A. P. Singh S. H. O. that on 22-9-1992 the contraband was sent from the police station appears to have been made under some misapprehension. In the examination in chief S. H. O. A. P. Singh has stated that on 28-9-1992 he had sent the contraband for chemical examination. Constable Anup Singh also says that G. D. entry mentions that the contraband was sent for analyses on 28-9-1992. Therefore, the statement of A. P. Singh that on 22-9-1992 the contraband was sent is only due to inadvertence. Constable Anup Singh has stated that he had received the contraband from the police station in sealed condition. He has also stated that so long as the contraband remained in his possession, he allowed no one to tamper with it. The report of the Chemical Examiner shows that sealed bundle according to specimen seal was received by him for analysis which was wrapped in polythene. P. W. 4 S. I. Devendra Pal Singh in cross-examination has stated that seal on the bundle of the opium is not one which he had put on the spot. No further question has been put as to what seal the bundle bears. When the contraband was sent for chemical analysis, the seal already affixed on the bundle must have been broken. Therefore, same seal could not have been found when the bundle was produced in Court. Two witnesses of fact have identified that the contraband opium wrapped in polythene is the same which was recovered on the spot from possession of the appellant.;