Sat Pal, J.
1. By this judgment, we are disposing of two appeals bearing Cr. Appeal No. 93DB of 1996 and Cr. Appeal No. 140DB of 1996, as they arise out of the same judgment, dated 8th December, 1995 passed by the Additional Sessions Judge, Jagadhri. By this judgment, the learned Additional Sessions Judge convicted the appellants Raj Kumar and Harcharan Singh under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (in short, the Act) and sentenced each of them to rigorous imprisonment for 14 years and to pay a fine of Rs. one lac. It was further ordered that in default of payment of fine, each one of them shall undergo rigorous imprisonment for three years.
2. In this case, FIR Exhibit PA/1 was registered at Police Station City Yamunanagar on 22nd November, 1993 at 4.45 p.m. on the basis of a ruqa sent by Dhanpal Singh Inspector, SHO PS City Yamuna Nagar. As per the case of the prosecution, Dhanpal Singh, SHO Police Station City Yamuna Nagar (PW 5) along with other members of the Police party was present for traffic control at bypass Chowk Radaur Road on 22nd November, 1993 when a secret informer met him and disclosed that Harcharan Singh alias Channi and one Raj Kumar, who indulged in wholesale smuggling of opium, could be nabbed redhanded if a raid was conducted at the house of Harcharan Singh. After sending the ruqa PW 5 Dhanpal Singh Inspector sent a message to the Control Room to send a Gazetted Officer at the spot. It is further alleged that when the Police party was going towards the house of accused Harcharan Singh at Khanpur Chowk, then two independent witnesses, namely Mastan Singh and Noor Mohd. were associated and when they reached the house of Harcharan Singh, they found that he was having a balance in his hand and in one pan some opium was there while in the other pan one weight was kept while another weight was lying near the scales. At that time, Raj Kumar accused was having his hand on the attache case. After about 10 minutes Shri Mohd. Akil ASP Jagadhri reached the spot and then searched the attache case and the weighing scale and found opium. On weighing it was found 7 kg. out of which 200 grams opium was separated as sample. Both the sample and the remaining opium were put in separate parcels and sealed with the seals of DPS and MA. Thereafter, the seal of DPS was handed over to independent witness Nur Mohd. while ASP kept his seal with him. Thereafter, PW 5 Dhanpal Singh prepared the site plan Exhibit PG with correct marginal notes and recorded the statements of the witnesses. The case property and the sample were deposited in the Malkhana. After receipt of the Chemical Examiner''s report, Exhibit PJ, challan was filed against the appellants.
3. In support of its case, the prosecution examined five witnesses. PW 1 Bharat Singh, ASI proved the ruqa sent by him. PW 2 Noor Mohd. and PW 3 Mastan Singh are the independent witnesses who were associated with the case. PW 4 Akil Mohd. was the Additional S.P. at the relevant time who was called before conducting the raid. PW 5 Dhanpal Singh Inspector is the Investigating Officer.
4. Relying on the prosecution evidence, the learned Additional Sessions Judge, by his judgment dated 8th December, 1995, convicted both the appellants under Section 18 of the Act and sentenced each of them to undergo R.I. for 14 years and to pay a fine of Rs. one lac each. In default of payment of fine, both the appellants were ordered to undergo R.I. for three years.
5. Mr. Kalra, learned counsel appearing on behalf of appellant Raj Kumar submitted that the conviction of the appellants could not be sustained as the provisions of Section 50 of the Act have not been complied with in the present case. He submitted that before conducting the search, the appellants were not given the option to be searched before a Gazetted Officer or a Magistrate. In support of this submission, he placed reliance on the following judgments:
(1) State of Punjab v. Balbir Singh, AIR 1994 SC 1872;
(2) Mohinder Kumar v. State, AIR 1995 SC 1157;
(3) Sayid Mohd. Saiyd Umar Sayid v. State of Gujrat, JT 1995(3) SC 489;
(4) Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1995(1) Chandigarh Cr. Cases 108;
(5) Jasbir Singh v. State of Punjab, 1996(3) RCR 55.
6. The learned counsel further submitted that under Section 100(4) of the Code of Criminal Procedure two independent responsible witnesses of the locality were required to be associated before conducting the search but in the present case no responsible person of the locality was associated. On the contrary one Noor Mohd. was called from his fields and one Mastan Singh was picked up from Khan Chand Road, Yamuna Nagar. He further submitted that even one of the said two independent witnesses namely Noor Mohd. has not supported the case of the prosecution. As regards Mastan Singh, he submitted that this witness was stock witness of the prosecution as this witness himself submitted that he retired from the Police Department in 1965 and he has deposed in 5/6 cases of the Police. He, therefore, contended that the evidence of Mastan Singh could not be relied upon. In support of this submission, the learned counsel placed reliance on two decisions of this Court in Sohan Lal v. State of Punjab, 1991(1) RCR 544 and Mahender Singh v. State of Haryana, 1995(3) RCR 475.
7. The learned counsel further submitted that the affidavits of Bhag Singh and Lal Chand have not been verified in accordance with law and as such their evidence should be excluded. He submitted that even these affidavits were not put to the appellants while recording their statements under Section 313 Cr.P.C. He, therefore, contended that because of these discrepancies, the conviction of the appellants could not be sustained. In support of this submission, he placed reliance on the following judgments :
(1) Sham Lal v. State of Haryana, 1993(2) RCR 403 ;
(2) Bhoolan v. State of Punjab, 1995(3) RCR 505 ; and
(3) Darshan Singh v. State of Haryana, 1995(3) All Instant Judgments 515.
8. Mr. Varinder Singh, learned Deputy Advocate General submitted that in the present case, the provisions of Section 50 have been fully complied with. He submitted that it has been proved by the prosecution that Sh. Mohd. Akil who admittedly was a Gazetted Officer was present on the spot when the search was conducted. In support of this submission, he placed reliance on a judgment of the Supreme Court in Manohar Lal v. State of Rajasthan, 1996(1) RCR (Crl.) 660 : JT 1996(1) SC 480. The learned counsel further submitted that in the present case, two independent witnesses namely, Noor Mohd. and Mastan Singh were associated before conducting the search. He submitted that though Nur Mohd. was declared hostile, the other independent witness Mastan Singh has fully supported the case of the prosecution. He also submitted that Mastan Singh cannot be said as stock witness as he might have appeared in 5/6 cases of the Police while he was in service. Regarding discrepancy in the verification of affidavits of Bhag Singh and Lal Chand, the learned Deputy advocate General submitted that the alleged discrepancy in the verification was not of any substantial nature. He, therefore, contended that there was no merit in the appeals and should be dismissed.
9. We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records. Before dealing with the contention raised by the learned counsel for the appellants, that the provisions of Section 50 of the NDPS Act have not been complied with it will be appropriate to refer to Section 50 which reads as under :
"50. Conditions under which search of persons shall be conducted. (1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to sub section (1).
(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female."
The provisions of this Section came up for consideration before Three Judges Bench of the Hon''ble Supreme Court in the case of Raghbir Singh v. State of Haryana, 1996 S.C.C. (Cr.) 266. In this case, two Judges bench of the Hon''ble Supreme Court referred the following question with regard to the interpretation of Section 50 of the Act for decision by a larger Bench :
"Whether a person to be searched under Section 50 of the NDPS Act, 1985 has a right to be given the option of being searched either by a Gazetted Officer or by a Magistrate."
Answering the question and concurring with the view take in Manohar Lal''s case (supra), the Supreme Court came to the conclusion that Section 50 of the Act affords the person to be searched a safeguard and he may require the search to be conducted in the presence of a senior officer. The senior officer may be a gazetted officer or a Magistrate, depending upon who is conveniently available. The relevant provisions from this judgment are reproduced herein below :
"It is, therefore, that the Act affords the person to be searched a safeguard. He may require the search to be conducted in the presence of a senior officer. The senior officer may be a Gazetted Officer or a Magistrate depending upon who is conveniently available.
The option under Section 50 of the Act, as it plainly reads, is only of being searched in the presence of such senior officer. There is no further option of being searched in the presence of either a Gazetted Officer or of being searched in the presence of a Magistrate. The use of the word ''nearest'' in Section 50 is relevant. The search has to be conducted at the earliest and, once the person to be searched opts to be searched in the presence of such senior official, it is for the police officer who is to conduct the search to conduct it in the presence of whoever is the most conveniently available, Gazetted Officer or Magistrate."
10. In terms of the law laid down by the apex Court in the above mentioned case, it is now settled that the only option to be given to a person who is in possession of articles which are illicit under the NDPS Act is whether he will like to be searched in the presence of a senior officer (who should be a Gazetted Officer) and it will be for the Police Officer who is to conduct the search, to conduct it in the presence of whosoever is most conveniently available whether a Gazetted Officer or a Magistrate. It will be relevant to point out here that in the case of Raghbir Singh (supra) the earlier judgment rendered by Three Judges Bench of the Apex Court in the case of Sayid Mohd. Saiyad Umar Saiyd (supra) was referred to.
11. In the present case, it is not disputed that search was conducted in the presence of Sh. Mohd. Akil, Additional Superintendent of Police, Jagadhri, who was admittedly a Gazetted Officer. In view of this, we are of the opinion that Section 50 of the Act has been complied with in the present case. It may be relevant to point out here that in the case of Raghbir Singh (supra), the accused was given the option of being searched by the Police Officer who conducted the search or before a Gazetted Officer and a specific contention was raised on behalf of the appellant that since the accused was not told that he could opt to be searched before a Gazetted Officer or Magistrate, the provisions of Section 50 were not satisfied but this contention was rejected in that case.
12. As regards the contention of the learned counsel for the appellants that the provisions of Section 100(4) of the Code of Criminal Procedure have not been complied with as two independent responsible witnesses of the locality were not associated and even one of the two attesting witnesses associated with the case, namely Nur Mohd. has not supported the prosecution case and the other witness namely Mastan Singh was a stock witness, we are of the opinion that there is no substance in this contention. Admittedly, in this case, two independent witnesses PW 2 Nur Mohd. and PW 3 Mastan Singh were associated. As regard the contention that they are not from the locality, PW 4 Sh. Akil Mohd., in his crossexamination, has stated that many persons were present outside the house from where opium was recovered but when the Police enquired from them their names, they became shy and went away. Thus there is no violation of Section 100(4), Cr.P.C.
13. It is true that PW 2 Nur Mohd. has not supported the case of the prosecution and he was declared hostile and even PW 3 Mastan Singh has also not fully supported the case of the prosecution but we cannot ignore the fact that PW 4 Sh. Akil Mohd., who at the relevant time was Additional Superintendent of Police and was Senior Superintendent of Police when he was examined, has fully supported the case of prosecution. This witness has been thoroughly crossexamined by the learned counsel for the accused but no dent has been made in the prosecution story. The recovery of the opium from the appellants has been fully proved by this witness. It would not be reasonable to expect that a Police Officer who was holding the high post of Additional Superintendent of Police, would resort to perjury and concoct the evidence in order to rope in innocent persons. The presence of PW 4 Akil Mohd. at the time of the search has not been disputed by PW 2 Nur Mohd. and PW 3 Mastan Singh. PW 3 Mastan Singh, in his examinationinchief has even fully supported the case of the prosecution. Simply because he had appeared in 3/5 cases on behalf of the Police as a witness, it cannot be concluded that he is a stock witness. Admittedly, he has been in the Police service as a constable and he might have appeared as a witness while in service. Even the circumstantial evidence is against the accused. It has come on record that PW 5 had received a secret information that both the appellants were sitting in the house of Harcharan Singh and were selling opium and on the receipt of this information, he had sent ruqa Exhibit DA to the Police Station whereupon formal FIR Exhibit DA/1 was recorded and thereafter a message was sent for presence of a Gazetted Officer and only then the raid was conducted. When, therefore, besides the oral evidence of PW 4 Akil Mohd., who is a Gazetted Officer, there is circumstantial evidence which is consistent with the guilt of the accused, we do not find any difficulty in upholding the prosecution case. The view we have taken finds support from a judgment of the Supreme Court in the State of U.P. v. G.K. Ghosh, AIR 1984 SC 1453.
14. As regards the contention of the learned counsel for the appellants that the affidavits of Bhag Singh and Lal Chand have not been verified in accordance with law, we are of the view that this discrepancy is not of substantial nature and cannot be fatal to the prosecution case. It is not disputed that the facts mentioned in the said two affidavits fully support the case of the prosecution. Only in the verification clause, there is some minor discrepancy. In paras 2 and 3 of the affidavit, HC Bhag Singh had stated that Dhanpat Singh Inspector/SHO had handed over to him a parcel containing 200 grams of opium which was already sealed with the seals of DPS and MA in intact position and the said parcel was handed over to Lal Chand UGC for sending the same to the office of A.C.E. Chandigarh and that on 2.12.1993 receipt No. 101 was handed over to him by Sh. Lal Chand UGC. As per verification, these three paragraphs have been verified as correct according to the record. Verification of facts mentioned in these paragraphs from the record cannot be ruled out as the relevant entries are also made in the Police record and besides there is no crossexamination on the facts mentioned in these paragraphs. Lal Chand, UGC, in Paras 2 and 3 of his affidavit Exhibit PC, has stated that on 1.12.1993, a parcel containing opium of 200 grams was handed over to him by Bhag Singh MHC in intact condition for sending the same to the office of A.C.E. Chandigarh and receipt No. 101 dated 2.12.93 was handed over to him. The verification of these two paragraphs is also as per records. It cannot be said that the facts stated in these two paragraphs could not be verified from the records as the relevant records have been mentioned in these two paragraphs. Besides, there is no crossexamination on the facts mentioned in paragraphs 2 and 3 of this affidavit.
15. As regard the contention of the learned counsel for the appellants that these affidavits were not put to the accused while recording their statements under Section 313, Cr.P.C. we do not find any substance in this contention also. By question No. 9, it was clearly put to the accused that it is in evidence against him that sample in sealed condition was sent to the Chemical Examiner, Chandigarh, for analysis through Constable Lal Chand who took the same in the sealed condition after receiving the same from MHC and report Exhibit PJ of the Chemical Examiner had been received to the effect that the sample was found of opium. From this, it is clear that the gist of these two affidavits was put to the accused.
16. For the reasons recorded herein above, we uphold the conviction of both the appellants Raj Kumar and Harcharan Singh under Section 18 of the Act.
17. As regards the quantum of sentence, we find from the impugned judgment that appellant Harcharan Singh is not a previous convict but still he has been awarded sentence of rigorous imprisonment for 14 years and to a fine of Rs. one lac. Keeping in view the facts and circumstances of the case, we are of the opinion that it would meet the ends of justice if the substantive sentence awarded to appellant Harcharan Singh is reduced from 14 years to 10 years. The sentence of fine of Rs. one lac is, however, upheld. So far as appellant Raj Kumar is concerned, it has come on record that though another case under the NDPS Act is pending against him but he is also not a previous convict under the NDPS Act, though he is a previous convict for an offence under Section 420, IPC. Keeping in view the facts and circumstances of his case, we are of the opinion that it would meet the ends of justice if the substantive sentence awarded to him is also reduced from rigorous imprisonment for 14 years to rigorous imprisonment for 12 years. The sentence of fine of Rs. one lac in his case, is, however, upheld.
18. With this modification in the substantive sentence, awarded to the two appellants, both the appeals stand dismissed.
