PANWAR, J. - (1.) THE Criminal Appeal No. 532/2003 has been filed by appellant Sayed Mohd. Naeem (for short `the accused' hereinafter) under Section 374 of the Code of Criminal Procedure, 1973 (for short `the Code' hereinafter) and Criminal Appeal No. 116/2005 has been filed by Union of India through Narcotics Control Bureau under Section 377 of the Code. Both these appeals are directed against the judgment and order dated 13. 3. 2003 passed by Special Judge, (NDPS Cases), Bikaner (for short `the trial Court' hereinafter) in Sessions Case No. 09/99, whereby the trial Court convicted the accused of the offence under Section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the N. D. P. S. Act' hereinafter) and sentenced him to undergo ten years rigorous imprisonment with a fine of Rs. 1,00,000/-, in default of payment of fine further to undergo one year rigorous imprisonment. Aggrieved by the judgment and order impugned, the accused has filed Criminal Appeal No. 532/2003 and aggrieved by the inadequate sentence awarded by the trial Court, the Union of India through Narcotics Control Bureau has filed Criminal Appeal No. 116/2005 seeking enhancement of substantive sentence as well as sentence of fine. Since both these appeals are directed against the same judgment and order, with the consent of learned counsel for the parties, they are heard together and decided by this common judgment.
(2.) BRIEFLY stated the facts of the case are that on 22. 8. 99 PW. 8 Jagdish Purohit received a secret information at 17. 30 hours to the effect that accused is likely to take delivery of contraband heroin between 3 to 5 P. M. on 23. 8. 99 at village Ranjeetpura and would go to Bikaner by bus. The information was found to be reliable and was recorded in Form No. 1 by Jagdish Purohit and conveyed to Zonal Director, Narcotics Control Bureau, Jodhpur vide forwarding letter Ex. P. 55, the carbon copy of which has been placed on record as Ex. P. 56. On receipt of the secret information vide Ex. P. 55 and P. 56, PW. 7 Rajendra Singh Khangarot, Zonal Director, Narcotics Control Bureau, Jodhpur constituted a team vide Ex. P. 57 comprising of PW. 5 Narendra Singh, PW. 8 Jagdish Purohit, PW. 4 S. S. Chouhan, PW. 6 Anuranjan Gupta and others for search and seizure. On 23. 8. 99 as per the information the team reached near bus stand Ranjeetpura and noticed one person standing near to Khejdi tree having a bag in his hand. The raid party introduced themselves to the accused and apprised him of the secret information regarding his being in possession of contraband herein. A notice under Section 50 of the N. D. P. S. Act was served giving him option in be searched in the presence of Judicial Magistrate or Gazetted Officer vide Ex. P. 19. Motbirs were called, they were given notice and after taking their consent to become Motbirs in the presence of Motbirs and Gazetted Officer PW. 5 Narendra Singh, Assistant Director, N. C. B. , Jodhpur, the search was carried out. On the search of bag which the accused was holding in his hand, it was found that the bag was containing 6 kg. 750 grams of heroin. Two samples of 5 grams each were taken. The samples were sealed on the spot. The remaining contraband heroin was also sealed on the spot. Summon Ex. P. 20 requiring the accused to make statement under Section 67 of the N. D. P. S. Act was issued on 23. 8. 99 at 20. 25 hours. The notice was served on the accused. The accused made a voluntary confessional statement vide Ex. P. 21 under Section 67 of the N. D. P. S. Act. Thereafter vide Ex. P. 22, the accused was arrested on 23. 8. 99 at 23. 55 hours. After usual investigation, a complaint Ex. P. 54 for the offence punishable under Sections 8 (c) r/w Sections 21, 23, 27a and 29 of the N. D. P. S. Act was filed before the trial Court against the accused. The trial Court framed the charges. The accused denied the charges and sought trial. The prosecution adduced evidence by producing as many as nine witnesses and documents Ex. P. 1 to Ex. P. 65. The accused made statement under Section 313 of the Code and denied the allegation and stated that he was brought from Delhi to Jodhpur and thereafter to Bikaner. No proceedings against him were taken at Ranjeetpura as also no heroin was recovered from him. The trial court on appreciation of the evidence produced by the parties convicted the appellant for the offence under Section 8/21 of the N. D. P. S. Act and sentenced him as above; however acquitted him of the offences under Sections 8/23, 27a and 29 of the N. D. P. S. Act. I have heard learned counsel for the parties. I have carefully gone through the judgment and order impugned as also the record of the trial Court. It is contended by the learned counsel for the accused that the provision of Section 42 (1) & (2) of the N. D. P. S. Act has not been complied with. According to learned counsel, the secret information received by PW. 8 has neither been reduced to writing nor conveyed to higher officers. The prosecution witnesses admitted that the original secret information received by PW. 8 was sealed in an envelope and thereafter vide Ex. P. 55 it was forwarded to PW. 7 Rajendra Singh Khangarot, Zonal Director, Narcotics Control, Bureau. Thus, the sealed envelope was neither produced in Court nor opened in the Court and therefore, the prosecution has withheld the secret information received by PW. 8 and therefore there is violation of sub-section (1) of Section 42 of the N. D. P. S. Act. It is further contended that at the time of arrest of the accused, a cash memo Ex. P. 24 of Laxmi Hotel, Bikaner was found. Ex. P. 24 shows that the accused arrived at Laxmi Hotel, Bikaner on 22. 8. 99 at 11. 00 A. M. and departed on 23. 8. 99 at 9. 30 P. M. , whereas in the instant case, the recovery of heroin vide Ex. P. 7 Panchnama was effected between 15. 10 to 20. 15 hours. Thus, according to learned counsel a fictitious recovery of heroin has been shown from the accused. Learned counsel for the Union of India representing Narcotic Control Bureau submits that the information was received by PW. 8 which was found to be reliable and it was kept in a sealed cover and vide Ex. P. 55 and Ex. P. 56 the said information was conveyed to the higher officials. Thus, the provision of Section 42 of the N. D. P. S. Act has been fully complied with. So far as cash memo Ex. P. 24 is concerned, it was the accused who managed with the hotel so as to escape from the criminal liability by showing his presence in the hotel at the relevant time of seizure, whereas from the evidence of the prosecution witnesses it has been established that the accused was standing near a Khejri tree having a bag in his hand containing contraband heroin weighing 6 kg. 750 grams. The raid party tallying the features of the accused as per the secret information received, checked the accused and after completing the formalities of the notice under Section 50 of the N. D. P. S. Act, notice to Motbirs, apprising the accused about the secret information and thereafter conducting his search and on search effected a recovery of contraband heroin weighting 6. 750 kgs in a bag which the accused was holding. Learned counsel for the Narcotic Control Bureau further submits that the accused made a voluntary statement under Section 67 of the N. D. P. S. Act, wherein he has categorically confessed his guilt voluntarily. According to learned counsel, from the perusal of the statement made by the accused under Section 67 of the N. D. P. S. Act Ex. P. 21, it is more than clear that the accused has been indulging in trafficking and transporting the contraband heroin for last many years and on earlier occasion also he has been trafficking and transporting the contraband heroin from Afghanistan to Pakistan while in India at Delhi. According to learned counsel, the confessional statement Ex. P. 21 made by the accused is voluntary. Learned counsel further submits that keeping in view the past conduct of the accused and the fact that accused voluntarily admitted that he has been trafficking in the narcotic drugs since 1986 being an Afghan national came to India, got himself declared to be refugee, settled in India and from Delhi having direct contacts and connections with the Afghan nationals as also Pak nationals and has been trading illegally in contraband heroin, the trial court fell in error in not awarding an adequate sentence to the accused. I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. I have scanned, scrutinized and evaluated the evidence on record.
(3.) PW. 8 Jagdish Purohit, Enforcement Officer, at the relevant time posted at Narcotics Control Bureau, Jodhpur unit has stated that on 22. 8. 99 at about 5. 30 P. M. , he received a secret information to the extent that accused Sayed Mohd. Naeem, a fair coloured person having height about 5. 8 feet to 5. 10 feet is likely to take delivery of contraband heroin in village Ranjeetpura. The quantity of heroin tentatively was 5 to 8 kg. as per the secret information. The information was reduced to writing on which the thumb impression of informant (Mukhbir) was taken, thereafter, it was sealed in an envelope. The information was forwarded by a forwarding letter vide Ex. P. 55 narrating therein the information received by him to Zonal Director, Narcotics Control Bureau, Jodhpur. Ex. P. 55 states details of the information, description and name of accused, his wearings, time and place and the date when the accused was likely to take delivery as also the weight of the contraband heroin. It has also been stated that the information is reliable. Ex. P. 56 is the carbon copy of the information received by PW. 8, the original of which was kept in a sealed envelope and forwarded to Zonal Director, Narcotics Control Bureau, Jodhpur. Before the trial Court PW. 8 has proved the secret information received by him and reduced to writing vide Ex. P. 56. Merely because the original secret information which was kept in a sealed envelope and forwarded to the higher authorities which is said to have not been produced in the Court, It cannot be said that the provisions of Section 42 of the N. D. P. S. Act have not been complied with. The carbon copy of the information Ex. P. 56 has been proved by PW. 8, he has proved his signature at two places `c to D', as also Rajendra Singh who received the information proved his signature from `a to B' on Ex. P. 56. From the statement of PW. 8 Jagdish Purohit and PW. 7 Rajendra Singh, it has been proved beyond reasonable doubt that the secret information was reduced to writing and was forwarded to higher officials. Thus, in my view, sub-section (1) and (2) of Section 42 of the N. D. P. S. Act has been fully complied with. The trial Court while noticing this evidence came to the conclusion that the provisions of sub-section (1) of Section 42 of the N. D. P. S. Act have been complied with. The conclusion arrived at by the trial Court cannot be said to be erroneous. So far as the contention of the counsel for the accused regarding the cash memo of Laxmi Hotel Ex. P. 24 that the Ex. P. 24 shows the departure of the accused from the said hotel at 9. 30 PM on 23. 8. 99, this document is not a conclusive proof for the reason that the author of the document Ex. P. 24 has neither been produced nor examined by the accused and therefore document Ex. P. 24 is of no help to the accused vis a vis the evidence of almost all prosecution witnesses who caught the accused along with the contraband heroin at village Ranjeetpura. The accused has failed to explain the possession of the contraband heroin. Section 54 of the N. D. P. S. Act provides that it may be presumed unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance, for the possession of which he fails to account satisfactorily. In the instant case, the accused failed to account satisfactorily the possession of contraband heroin. The samples of the contraband heroin seized from the accused were sent Govt. Opium & Alkaloid Works, Neemuch M. P. , acknowledgment of which is Ex. P. 17 and report is Ex. P. 18. The report Ex. P. 18 shows that each of the six samples is found by qualitative and quantitative analysis to contain a mixture of Morphine and heroin (discetylmorphine) within the meaning of N. D. P. S. Act, 1985. ;