- (1.) THE appellant Devi Lal filed this appeal against the judgment dated April 28, 2003 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Chhabra Distt. Baran in Sessions Case No. 94 of 2001 whereby he has been convicted and sentenced under section 8/18 of NDPS Act for 5 years RI with fine of Rs. 50,000 in default of payment of fine to suffer six months RI and under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 10 years' RI and pay a fine of Rs. 1.00 lakh and in default of payment of fine to further undergo Two years' RI. Both the sentences were directed to run concurrently.
(2.) BEFORE proceeding further it may be mentioned that this Court vide judgment dated January 3, 2007, rejected the appeal filed by the accused appellant only on the ground that provisions of section 50 of the NDPS Act have been complied with before making search of the appellant. The accused appellant filed Criminal Appeal No. 1721 of 2008 before the Apex Court and the Apex Court vide its order dated November 3, 2008 disposed the appeal with the direction that the appeal was not properly dealt with by the learned Single Judge and set aside the judgment and directed for hearing the appeal afresh and disposing it in accordance with law at an early date. This case was listed before this Court in April, 2009 and the learned counsel for the appellant prayed for listing it after vacation. On June 30, 2009 arguments were heard and since the record of the case was not available with the Registry of the High Court it was directed to be called through messenger from the trial court on July 1,2009. After receiving the record this case was listed before me today for hearing and disposal. Brief facts of the case are that on May 15, 2001, Ram Chandra PW.6 SHO Police Station Kawai received an information from the informer that one person having Opium poppy and Diacetylmorphine (Heroin) tagged in his both legs is going on foot from Kawai to Railway Station. Ram Chandra recorded this information as per the provisions of section 42 of the NDPS Act and handed over it to Shri Prem Chand Constable PW.7 with a direction that the same may be handedover to the SP Baran and with this direction the witness Prem Chand PW.7 was relieved. The SHO Police Station Kawai also sent this information through wireless to the SP Baran and Dy. S.P. Chhabra and thereafter he alongwith police party departed to the Railway Station Road and on the right side of road in the ground of Senior High Secondary School Kawai one person as per the face reported by the informer was seen who after seeing the police party and police jeep began to run away but he was caught and the reason of escape was asked which he could not reply satisfactorily and on asking he told his name Devi Lal. Ram Chandra PW.6 SHO gave him his identification and made known with the information of informer. Nearby there was no independent witness or Gazette officer available, the accused Devi Lal was given notice under section 50 of the NDPS Act and was informed that he was to be searched and it is his legal right to get himself searched before any Magistrate or Gazetted Officer and he may also give his search to the SHO. It is alleged that the appellant agreed to give his search to the SHO Police Station Kawai Ram chandra PW.6. The consent of the appellant was recorded separately and thereafter the search of the appellant was taken and on search in his both legs in white cloth some thing was tagged and the tagged cloth was opened of both the legs and in each leg one-one bag of black flexible material and one bag of gray material was recovered which on seeing, testing and nosing found to be Opium and diacetrylmorphine and the appellant was not having any licence of these articles. On making weight the opium was found 780-780 gms. of each leg and the diacetrylmorphine (heroin ) was found 130-130 gms. of each leg. Two samples of 30-30 gms. of opium bags were taken and 10-10 gms sample of heroin from the bags were sealed and the tagged cloth was also sealed. The bag, clothes of accused appellant were also sealed and the memos thereof were made separately. The accused appellant was arrested and in his pocket Rs. 290 were found and thereafter he was brought to the police station and the case was registered against him and seized material and samples were kept in Malkhana of police station and the investigation was handedover to SHO Atru Abdul Haq PW.3. The investigating officer visited the site recorded the statements of the witnesses and sent the samples for chemical examination as per rule and after completing the investigation he submitted the challan under sections 8/18 and 8/21 of the NDPS Act against the accused appellant. The trial court framed charges under sections 8/18 and 8/21 of the NDPS Act against the accused appellant and he denied the same and claimed to be tried. In support of its case the prosecution examined Hemraj PW.1, Ram Swaroop, PW. 2, Abdul Haq, PW.3, Ram Charan, PW.4, Shambhu Dayal, PW.5, Ram Chandra PW.6 and Prem Chand PW.7. The accused appellant was examined under section 313 Cr.P.C. and he did not produce any evidence in defence. After hearing both the parties, the trial court vide judgment and order dated April 28, 2003 convicted and sentenced the accused appellant as indicated above. Mr. B.C.Chirania, learned counsel appearing for the accused appellant argued that the provisions of Section 42(2) of the NDPS Act have not been complied with properly. Compliance of section 50 of the NDPS Act are mandatory and no notice was given to the accused appellant. The prosecution witnesses are the employees of the Police Station Kawai and no sincere effort was made to procure independent witness. In view of this mandatory provisions of sections 42 and 50 of the NDPS Act have not been made and the recovery of prohibited articles becomes doubtful and the theory of prosecution becomes false. PW.6 Ramchandra in his statement admitted that he alongwith police staff went to arrest the accused appellant, the charge of the police station was not handed over to any officer. This shows that in fact all the proceedings were not carried at the spot and all the memos and search were made at police station and the story in this regard is not reliable. Ramswaroop Meena PW.2 in his statement admitted that he was not searched by any official and he does not know the reason of not bringing the independent witness and he has also stated that the entry of the seized articles was not made in the Malkhana register of the Police station. In view of this the story of the prosecution with regard to non-availability of independent witness, recovery of prohibited articles becomes doubtful. While making search and arrest the provisions of Section 42, 41, 43 and 51 of NDPS Act have not been complied. The police officer has made irregularities and illegalities and the evidence in this regard cannot be believed. Search and arrest of the accused appellant was made after sunset and as per the provisions of section 42(1) of the Act, SHO Kawai has not recorded any reason. All the witnesses are the police employee and there is no indpendent witness. The trial court erred in relying the evidence of prosecution and in the facts and circumstances, the story of the prosecution becomes doubtful. The sentence awarded by the trial court is much excessive. The accused appellant has been implicated falsely. The accused appellant is a young boy of 30 year and has nothing to do with the alleged occurrence. From the material available on record the charges against the accused appellant are not proved and the findings of the trial court based on mere conjectures and surmises. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the accused appellant. The trial court rightly convicted and sentenced the accused appellant. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of the Sections 42, and 50 of the NDPS Act. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief. The proviso to sub-section (1) lays down that if the empowered 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. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought beforesuch a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect thecredibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. The Apex Court in Balbir Singhs case (1998 ) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ? Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 propounded following conclusions : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing; (2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act; (4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the endresult is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair. (5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial; (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law; (7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search; (8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search; (10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. The above conclusions are not a summary of our judgment and have to be read and considered in the light of the entire discussion contained in the earlier part.
(3.) ON the basis of the above conclusions of their Lordships of the Supreme Court, it is necessary to have a look at the evidence adduced and documents exhibited before the trial court by the prosecution. PW.1 Hemraj, Constable No.456, stated that in May, June, 2001 he was posted at Police Station Kawai. ON May 29, 2002 Malkhana Incharge gave four packets to him for handing over it to FSL. He went to SP Baran for getting forwarding letter and on May 30, 2001 he handed over four packets to FSL. From FSL, he received receipt Ex.P.1, which he handed over to the Police Station Kawai. Ex.P.2 and Ex. P.3 are the forwarding letters. He deposited the sealed packets in sealed condition to the FSL. PW.2 Ramswaroop, Head Constable Police Station Kawai, stated that on May 15, 2001 at 9.55 p.m. as per the information received from informer he was one of them when SHO, Ramchanran with ASI Subhash Chandra, Constable Sambhudayal went in Govt. Jeep to Salpura Railway Station. ON reaching Sr. Secondary Govt. School Ground one person was seen and on seeing the Police jeep he ran away. The police caught him. The SHO disclosed his identity and shown the identity card to him and interrogated him on which he disclosed his name to be Devilal son of Dhoolilal by caste Meena resident of Hanuwant Kheda. The SHO informed him that he is having contraband and if he is interested to be searched by a Magistrate or Gazetted officer he is free to do so. ON this the accused denied. The SHO, sent Ramcharan ASI, to bring independent witnesses and Gazetted officer. ON this Ramcharan ASI informed that in nearby independent evidence or Gazetted officer are not available. ON this Ramcharan, ASI was made a witness and searching proceedings were started. ON searching accused in his both legs in white cloth some thing was tagged and the tagged cloth was opened of both the legs and in each leg one-one bag of black flexible material and one bag of gray material were recovered, which on seeing, testing and nosing found to be opium and diacetrylmorphine and the accused was not having any licence of these articles. ON making weight the opium was found 780-780 gms. of each leg and the diacetrylmorphine (heroin ) was found 130-130 gms. of each legs. Two samples of 30-30 gms. of opium bags were taken and 10-10 gms sample of heroin from the bags were taken and were sealed and the tagged cloth was also sealed. The bag, clothes of accused appellant were also sealed and the memos thereof were made separately. The recovery memo and search memo is Ex. P.1 where he has put his signature A to B. The SHO made him witness and on this he has given his consent as Ex. P.2 where he has put his signature A to B. Notice Ex. P.3 which was given earlier he has put his signature A to B. Ex.P.4 is consent of the accused where also he has put his signature A to B. Ex.P.5 is the recovery memo of Bag of red colour and Garment and underwear. Seized material were marked as packets A1, A2, B1 B2, C1 C2, D1 and D2, E and F. ON that day Malkhana Incharge was Ramchandra Sharma. Ex. P.8 is entry in Malkhana Register. The sealed packets were sent through Hemraj Constable who has deposited the receipt with the Police Station. He further stated that as per the directions of the Rajasthan High Court dated May 13, 2002, the recovered material was again weighed, report of Which was also sent to the High Court. In the Malkhana Register M to N seal was put up by the Medical officer. PW.3 Abdul Haq, DY. S.P. Atru stated that he received the investigation instructions of case No. 99/2001 of 8/18 and 8/21 of NDPS Act of Police Station Kawai. He recorded the statements of Ramchand SHO, Kawai, Ramcharan ASI, PS, Kawai, Ramswaroop Head Constable, and Hemraj, Constable. Ex.P.9 Naksa Moka was also prepared by him where he has put his signature A to B. Receipt of FSL No. 4407 dated 30.5.2001 was also tagged in the case diary by him where he has put his signature A to B. He also tagged the report of FSL Ex. P.10 with the case diary. PW.4 Ramcharan, ASI Police Station Atru, also stated that on May 16, 2001 he was posted at Atru. ON that day investigating officer recorded his statement. He was one of them including Ramnchandra, SHO, Subhash, Shambhudayal who went in jeep to Railway Station Salpura. Near Sr. Secondary School ground one suspect was found. ON seeing police jeep he ran away. He was asked why he ran away upon this he has not given any satisfactory explanation. ON interrogation he given out his name as Devilal son of Dhoolilal Meena, resident of Hanuwant Kheda. SHO informed him about his right. He stated in his statement what has been stated by PW.3 in his statement. He supported that he went in search of independent witness and Magistrate, upon which no body was available about which he reported to the SHO. ON this SHO asked him and Ramswaroop Head constable to act as independent witnesses, thereafter Devi Lal was searched. PW.5 Shambhudayal, Constable No.796 stated that on May 16, 2001 he was posted as constable at Police Station Kawai. He stated that he went to SP Baran about the report under section 57 at his residence. PW.6 Ramchandra Sharma, SHO supported the case of the prosecution. He stated that on May 15, 2001, he was SHO Police Station Kawai and he received an information at 9.45 p.m.from the informer that one person having Opium poppy and Diacetylmorphine (Heroin) tagged in his both legs is going on foot from Kawai to Railway Station. He recorded this information in the Rojnamcha and informed to S.P. Baran and C.O. Baran. Thereafter he along with police party which included Ramcharan ASI, Ram Swarup LC, two constables with jeep and Driver Mangilal along with investigation box departed to Railway Station. At that time he put the Rapat in the Rojnamcha. As per the report of the informer near the Railway Station Road and on the right side of road in the ground of Senior High Secondary School Kawai one person as per the face reported by the informer was seen who after seeing the police party and police jeep began to run away but he was caught by the police and the reason of escape was asked which he could not reply satisfactorily and on asking he told his name Devi Lal. He stated that he gave his identification and made known with the information of informer. Nearby there was no independent witness or Gazetted officer available, the accused Devi Lal gave his consent to be searched by him. ON this he made ASI Ramcharan and Head Constable Ramswaroop as Motbirs. In the presence of both the Motbirs, the accused was searched and on search in his both legs in white cloth some thing was tagged and the tagged cloth was opened of both the legs and in each leg one-one bag of black flexible material and one bag of gray material were recovered which on seeing, testing and nosing found to be Opium and diacetrylmorphine and the accused was not having any licence of these articles. ON making weight the opium was found 780-780 gms. of each leg and the diacetrylmorphine (heroin ) was found 130-130 gms. of each leg. Two samples of 30-30 gms. of opium bags were taken and 10-10 gms sample of heroin from the bags were sealed and the tagged cloth was also sealed. The bag, clothes of accused appellant were also seized and the memos thereof were made separately. After search it was found that the act of keeping prohibited contraband without licence was against the provisions of Sections 8/18 and 8/21 of the NDPS Act and investigation of it was handed over to Abdul Haq, SHO Atru. The seized material was deposited in the Malkhana and again sealed as the earlier seal provided was private. Ex. P.1 search memo and seizure memo was prepared where he has put his signature E to F at two places and G to H is the signature of accused Devilal. Ramswarup has given his consent vide Ex. P.2 for becoming Motbir where Ramswarup put his signature A to B and he put his signature C to D. Ramcharan and Ramswarup were asked to become independent witnesses vide consent letter Ex. P.3 where he has put his signature E to F. Ex.P.4 is consent of Devilal where he has put his signature E to F and G to H is signature of Devilal. Ex.P.5 is seizure memo of Garment and undergarment where he has put his signature E to F and G to H is signature of Devilal. ON returning to Police Station he has again put seal vide Ex. P.7 in the Police Station. Where he has put his signatures at three places . Ex.P.9 is the Naksa Moka where he has put his signature E to F. Ex. P.10 is the report of FSL. For bringing two independent witnesses he directed by Ex. P.18, where he has put his signature E to F. He also gave direction for searching Gazetted Officer vide Ex. P.19 where he has put his signature A to B. Ramcharan gave his consent by Ex. P.20 for becoming independent witness where he has put his signature C to D. Namuna seal is Ex. P.21 where he has put his signature C to D. FIR Ex. P.22 was chalked out by him and he has put his signature A to B over it. Information was recorded by him in Ex. P.23 where he has put his signature A to B. Carbon copy of Radiogram Ex.P.24 was sent by him in compliance of Section 42 of NDPS Act. Ex. P.25 is containing information to SP as per the section 42 of the NDPS Act and where he put his Namuna seal as Ex. P.26 with A to B his signature. Four sealed packets were sent for examination to FSL through Hemraj Constable, to which he brought receipt Ex. P.1 and forwarding letter of it is Ex. P.2. Arrest memo is Ex. P.6. Copy of Register Malkhana is Ex. P.8. Rapat on Rojnamcha Aam is Ex.P.27 and copy of it is Ex. P.27 A. Rapat Rojnamcha 594 is Ex. P.28A and Rapat No.602 is Ex. P.29 and copy of it is Ex. P.29A. Information of informer is Ex. P.30 and copy of it is Ex. P.30 A. Rapat No. 659 is P.32 and copy of it is Ex. 32 A. Copy of Rapat 1171 is Ex. P.33 and Ex. P.34 where he has put his signature A to B. In the cross examination he categorically stated about the compliance of section 42 and section 50 of the NDPS Act. ON reexamination he stated about notice of section 50 NDPS Act vide Ex. P.35 where he has put his signature A to B. PW.7 Premchand, Constable No.767 stated that on 15.5.2001 he was posted at Police Station Kawai. At 9.50 p.m. a sealed envelop was given by SHO Ramchandra to him and he handedover the same to SP Baran. A report about it was also marked in the Rojnamcha. This report was about opium with Devilal. The report was under Section 42 of the NDSPS Act carbon copy of which is Ex. P.25, which he has handed over to Ramchandra Sharma. In the statement under section 313 Cr.P.C. Accused stated that he is innocent. The documents produced by the prosecution may also be looked into. Ex.P.1 is the receipt of the FSL, in relation to handing over of four packets to FSL by Constable Hemraj (PW.1). Ex.P.2 and Ex. P.3 are the forwarding letter of the SP Baran and the SHO given to Hemraj for handing over the packets to the FSL. Ex. P.1 search memo and seizure memo was prepared where Ramchandra Sharma SHO, put his signature E to F at two places and G to H are the signature of accused Devilal. Ramswarup (PW.2) has given his consent vide Ex. P.2 for becoming Motbir where he put his signature A to B and he put his signatures C to D. Ramcharan and Ramswarup were asked to become independent witnesses vide consent letter Ex. P.3 where Ramchandra Sharma SHO has put his signatures E to F. Ex.P.4 is consent of Devilal where Ramchandra Sharma SHO has put his signature E to F and G to H is signature of Devilal. It appears that the trial court marked Ex. P.1 to Ex. P.4 twice. Ex.P.5 is seizure memo of Garment and undergarment where Ramchandra Sharma SHO has put his signature E to F and G to H is signature of Devilal. ON returning to Police Station Ramchandra Sharma SHO again put seal vide Ex. P.7 in the Police Station. Ex.P.8 is the copy of the Malkhana Register. Ex.P.9 is the Naksa Moka where Ramchandra Sharma SHO has put his signature E to F. Ex. P.10 is the report of FSL. Ex.P.11 is the cerrtified copy of the order of the Rajasthan High Court. Ex.P.12 is Nakal Rapat Rojnamcha No. 590 dated 15.5.2002 at 9.40 a.m. Ex.P.13 is the memo prepared in response to the High Court order. Ex. P.14 & Ex. P.15 are the chits prepared as per the order of the High Court where medical officer of Kawai has also put his signature. Ex.P.16 is the letter of the Investigating Officer sent to the High Court. Ex.P.17 is copy of Rapat No.591 dated 15.5.2002. For bringing two independent witnesses Ramchnadra Sharma SHO directed vide Ex. P.18, where he has put his signature E to F. Ramchandra Sharma SHO also gave direction for searching Gazetted Officer vide Ex. P.19 where he has put his signature A to B. Ramcharan gave his consent by Ex. P.20 for becoming independent witness where he has put his signature C to D. Namuna seal is at Ex. P.21 where Ramchandra Sharma SHO has put his signature C to D. FIR Ex. P.22 was chalked out by Ramchandra Sharma SHO and he has put his signature A to B. Information received from informer was recorded by Ramchandra Sharma SHO in Ex. P.23 where he has put his signature A to B. Carbon copy of Radiogram Ex.P.24 was sent by him in compliance of Section 42 of NDPS Act. Ex. P.25 is information to SP as per the section 42 of the NDPS Act and where Ramchandra Sharma SHO put his Namuna seal as Ex. P.26 with A to B his signature. Rapat on Rojnamcha Aam is Ex.P.27 and copy of it is Ex. P.27 A. Rapat Rojnamcha 594 is Ex. P.28A and Rapat No.602 is Ex. P.29 and copy of it is Ex. P.29A. Information of informer is Ex. P.30 and copy of it is Ex. P.30 A. Rapat No. 659 is P.32 and copy of it is Ex. 32 A. Copy of Rapat 1171 is Ex. P.33 and Ex. P.34. Notice of section 50 NDPS Act is vide Ex. P.35 where Ramchandra Sharma SHO has put his signature A to B. The crux of the arguments of the learned counsel for the appellant is that (i) the mandatory provisions of sections 42 and 50 of the NDPS Act have not been made and (ii) the evidence of police personnel has been accepted and no independent evidence has been brought on record in convicting the accused appellant. The Apex Court in Sukhpal vs. State of Haryana (1995) 1 SCC 10, in para No.4 held as under : 4.After giving our careful consideration to the facts and circumstances of the case and the submissions made by the learned counsel appearing for the parties it appears to us that in the instant case, the prosecution has examined the witnesses to establish that the accused had been apprehended with a rifle of 315 bore and 109 live cartridges of such rifle. It is an admitted position that the accused had no licence or permit to possess the said rifle and cartridges at the relevant time. It is also an admitted position that the TADA Act was applicable in the area where the accused was apprehended. Accordingly, all the three ingredients as indicated in the said Constitution Bench decision, have been fulfilled in the instant case. Normally, the presence of PW 5 and PW 6 in the police chowki was not expected at that hour but PW 5 and PW 6 have given a reasonable explanation as to why they had come to the police chowki on that day and why they had waited there. We do not find any valid reason to discard the evidences adduced in the case by PW 5 and PW 6. Apart from that, the police personnel have also deposed and such depositions stand fully corroborated by the evidences of PW 5 and PW 6 and by the recovery of the rifle and cartridges. It may be indicated here that as a rule of prudence, corroboration preferably by a reliable witness is desirable. But in all cases, such corroboration cannot be insisted as a matter of course because it may not be possible in all cases to get corroboration from an independent witness. In our view, the learned counsel for the State is justified in her contention that in the instant case, firing capability of the said rifle has been found by an expert, namely, an armourer who has a special training in the subject. It is not absolutely necessary to make a test- firing for the purpose of ascertaining whether or not a rifle is capable of firing. We are, therefore, not inclined to hold that the firing capability of the said rifle has not been established in the instant case. It also appears to us that the accused was charged under Section 5 of the TADA Act but he has not given any explanation as to why and for what purpose he had possessed the said rifle and the said cartridges. Even when opportunity under Section 313 CrPC was given to the accused, no statement has been made as to why the said arms and ammunition had been kept by him at the time of his apprehension. In our view, in the facts and circumstances of the case, the accused had sufficient opportunity to explain the purpose of possession of the said arms and ammunition and to rebut the statutory presumption under Section 5 of the TADA Act but he has failed and neglected to give any explanation or evidence which may be even remotely construed as an evidence by way of rebuttal. In the above case the Apex Court held that as a rule of prudence it is desirable that the evidence of police personnel should be corroborated preferably by a reliable witness. But in all cases, such corroboration cannot be insisted as a matter of course because it may not be possible in all cases to get corroboration from an independent witness. The Apex Court in Brijpal vs. State (Delhi Administration) (1996) 2 SCC 676 in para 4 held as under : 4. We have looked into the depositions given in this case and the judgment given by the learned Designated Judge. It appears that the prosecution case has been established by cogent evidences given by the witnesses which are not inconsistent or contradictory. In our view, learned Designated Court has rightly held that since only the police personnel had been examined in this case, their depositions are not liable to be discarded, particularly when it is the specific case of the prosecution that they tried to procure independent witnesses from the public, but they failed in their attempt to get which independent witnesses. In the instant case, it has been established from the evidence that the pistol and cartridges were seized from the person of the appellant and after getting them properly sealed they were deposited in the Police Mal Khana, in sealed condition. The Incharge of the Mal Khana has deposed that such weapons remained intact and in sealed condition until the same were sent for being tested by the expert. So far as the question of examining of the said pistol by the expert is concerned, it appears from the depositions of the said expert that he had obtained certificate of technical competency and armour technical course from Bhopal and he had also long experience of inspection, examination and testing of the fire arms and ammunition. In our view, the said police personnel should be held to be expert in arms. The decision relied upon by Mr. Singh in Abdula Pochamma Vs. State of A.P. (1989 Supp. (2) SCC 152) in this connection is clearly distinguishable in the facts of this case. In the case of Abdula it was alleged by the prosecution that a grenade was recovered from the accused but whether the substance recovered was a grenade or not had not been examined by a proper expert and the court gave benefit of doubt by not placing implicity reliance on the testimony of an ASI that the object was a grenade. In the instant case, we have already indicated that the armorer as a matter of fact, had also fired one of the cartridges from the seized pistol which was recovered from the possession of the accused . In Brijpal vs. State (Delhi Administration), the Apex Court held that since only the police personnel had been examined in this case, their depositions are not liable to be discarded, particularly when it is the specific case of the prosecution that they tried to procure independent witnesses from the public, but they failed in their attempt to get such independent witnesses. In the instant case the prosecution has been able to prove that they tried to get the independent witnesses and notice Ex. P.18 was given by PW.6 to Ram Charan ASI (PW. ) to bring two independent witnesses but he failed to get independent witnesses in that locality. Thus the argument of the learned counsel that the evidence of police personnel should not be relied upon in convicting the accused appellant, is rejected as per the decisison of the Apex Court in the cases of Brijpal (supra) and Sukhpal (supra). The other argument of the learned counsel that the compliance of section 42 and 50 have not been made. It is clear from the evidence of PW.7 Premchand that immediately after receiving information Ramchandra Sharma,SHO (PW.6) handed over an envelope containing Ex.P.24 for handing over the information to the SP Baran. Similarly before searching the accused appellant notice of section 50 of the NDPS Act (Ex.35) was given to the accused appellant. Thus the argument of the learned counsel for the appellant cannot be accepted. The prosecution has been able to prove beyond reasonable doubt that the provisions of sections 42 and 50 of the NDPS Act have been complied with in the instant case. It may also be mentioned that after search and seize by the SHO, the information under section 57 of the NDPS Act was also sent to the SP Baran through Shambhudayal (PW.5) constable to SP Baran. Thus it cannot be said that the mandatory compliance of provisions of NDPS Act in any manner was not complied with during investigation or at the time of arrest or at the time of search or at the time of seizure of the contraband found with the accused appellant. The prosecution has been able to prove beyond reasonable doubt that from the possession of the accused appellant in huge quantity Opium and Diacetylmorphine (Heroin) were recovered and the FSL in its report dated August 27, 2002 gave result that on examination the sample contained in each of the packet marked A1 and C1 gave positive test for the presence of chief constituents of coagulated juice of opium poppy having 6.46 % (six point four six percent) morphine in each sample. Similarly on micro chemical examination, the sample contained in each of the packet marked B1 and D1 gave positive tests for the presence of diacetylmorphine (HEROIN). Thus the trial court rightly convicted and sentenced the accused appellant for violation of the provisions of sections 8/18 and 8/21 of the NDPS Act. The findings recorded by the trial court are not perverse in any manner. The trial court rightly convicted and sentenced the accused appellant. The judgment of conviction and sentence is confirmed. For the foregoing reasons the appeal being devoid of merit stands rejected. The appellant who is in jail shall serve out the remaining sentence as ordered by the trial court. ;