R.C. Mishra, J.@mdashThis appeal has been preferred against judgment dated 13-4-96 passed by Sessions Judge (designated as Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity ''the Act'')], Damoh in S.T. No. 71/95, whereby the appellant was convicted u/s 20 (b) (i) of the Act and sentenced to undergo R.I. for 4 years and to pay fine of Rs. 2000/- and in default, to suffer RI for 6 months. Connected appeals, numbered as Cri. Appeal Nos. 864/96 and 878/96, arising out of same transaction, are being decided simultaneously but, by separate judgments with a view to avoiding conflict of opinions.
2. Prosecution story, in short, may be narrated thus:--
(i) On 8-2-95, Ved Prakash Sharma (P.W. 3) posted as Additional S.P. at Damoh, had come to Nohta for annual inspection of Police Station located there. At about 3.15 p.m., a credible information was received to the effect that a consignment of huge quantity of Ganja, packed in sacks, and transported in TATA-407 Vehicle No. MP-15D-0273, was unloaded at the house of Munna @ Narendra Singh situated in Village Khamaria Maujilal (for short ''Khamaria'') and was distributed to the appellant and other persons namely Harishankar (appellant in Cri. Appeal No. 864/96), Umrai Singh (appellant in Cri. Appeal No. 878/96), Lakhan Singh (since dead) (appellant in Cri. Appeal No. 788/96) and Narayan (since dead) (appellant in Cri. Appeal No. 797/96). This information was recorded at Sl. No. 215 of Rojnamcha of the Police Station. Thereafter, a police party headed by Ved Prakash Sharma and comprising SHO B.B. Sharma (P.W. 4) proceeded in Govt. Vehicle No. M.P.P. 1926 to the village.
(ii) The appellant and other suspects were called to Panchayat Bhavan for interrogation. Upon statement made by appellant in presence of panch witnesses viz., Kishore Singh (P.W. 1) and Babu Singh (P.W. 2) and at his instance, a white plastic sack containing 9 kg. of Ganja was recovered from his house located in Village Khamaria only.
(iii) The contraband was duly seized and was taken to the police station where a sample of 20 grams of the contraband was drawn. The sample was forwarded to FSL, Sagar for chemical analysis. Corresponding report (Exh. P-8) indicated that the sample contained Ganja.
3. Appellant abjured the guilt and pleaded false implication due to political rivalry at the instance of co-villager Deshraj Singh. However, no evidence was led in defence.
4. Legality and propriety of the impugned conviction have been challenged on these grounds:--
(a) Non-corroboration of the prosecution case by independent witnesses.
(b) Non-compliance with statutory provisions relating to search and seizure of the contraband.
(c) Possibility that the seized article was tampered with at the police station.
In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence on record and highlighting the fact that entire process of search and seizure was conducted in presence of Additional S.P., a Gazetted Officer, has submitted that the conviction is well founded.
5. Although, panch witnesses Kishore Singh (P.W. 1) and Babu Singh (P.W. 2) admitted their signatures on the memorandum, u/s 27 of the Evidence Act (Exh. P-1) and seizure memo (Exh. P-2) yet, none of them came forward to corroborate the recitals thereof, evidencing that pursuant to information given by the appellant only, 9 kg. of Ganja was seized from his possession. Thus, the prosecution case hinges on the testimony of the official witnesses.
6. Ved Prakash Sharma (P.W. 3), the Additional Superintendent of Police, vividly described the circumstances leading to recovery of the contraband. As per his statement, -
(i) After receiving the information at the Police Station, he had proceeded along with the SHO B.B. Sharma and other members of the police force to Village Khamaria, where the appellant as well as the other persons reported to be involved in an illicit trade of Ganja, were summoned at Panchayat Bhavan.
(ii) Each one of the suspects was interrogated individually by SHO B.B. Sharma in his presence and pursuant to the information furnished by the appellant, both of them had proceeded along with the appellant and the panch witnesses to a house wherefrom a plastic sack containing about 9 kg. of Ganja was recovered.
7. Evidence of Ved Prakash Sharma drew ample support from the statement of SHO B.B. Sharma and the contents of Ravangi Report (Exh. P-5) as well as that of Wapsi Report (Exh. P-9) recorded respectively at Serial Nos. 215 and 234 of the Rojnamcha at 3.15 and 8.50 p.m. on 9-2-1995. His signature on the corresponding memo (Exh. P-2) duly reflected his presence at the time of seizure of the contraband.
8. According to B.B. Sharma (P.W. 4), it was he who had interrogated the appellant at the Panchayat Bhavan and scribed the memorandum (Exh. P-1) upon information given by the appellant to the effect that 9 kg. of Ganja, packed in a sack, was kept in his house. He further testified that at the instance of the appellant only, 9 kg of Ganja packed in a white sack was recovered from the house. He was cross-examined at length but nothing materially inconsistent with the recitals of the documents relating to proceedings starting from the recording of information and culminating in seizure of the contraband could be elicited. The seized sack containing the contraband was also produced before the Trial Court as Article ''A'' in evidence.
9. As further asserted by B.B. Sharma, he had registered the offence by recording the Dehati Nalishi (Exh. P-6) at the spot and deputed Constable Leeladhar (P.W. 6) to produce the same at the police station. Head Constable Madhur Goswami (P.W. 5) corroborated the fact that he had recorded the FIR (Exh. P-10) on the basis of Dehati Nalishi brought by Leeladhar.
10. It is true that none of the panch witnesses named above came forward to support the prosecution version but this fact, by itself, would not make the prosecution case relating to seizure of huge quantity of Ganja less acceptable, if otherwise the Court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made [
11. Coming to the probability of the defence, it may be seen that in the cross-examination of Ved Prakash Sharma, no suggestion was made to the effect that the appellant was implicated at the behest of Deshraj Singh whereas B.B. Sharma emphatically denied such a suggestion. Moreover, on one hand, the defence was not able to bring any fact on record so as to suggest that Deshraj was capable of exerting political influence on the police officials for implicating the appellant in a false case and on the other, the fact that Additional S.P. was also a member of search party also lent additional strength to the veracity of the prosecution version.
12. The requirement of provision of sub-section (1) of Section 42 of the Act, to reduce the secret information into writing before taking any action thereon was duly fulfilled by making entry (Exh. P-5) in the Rojnamcha and provision of sub-section (2) of Section 42 thereof, was not necessary simply because Additional S.P., being the immediate superior officer of the SHO, was a member of the search party and was also exercising his authority. Section 50 of the Act was not attracted as there was no personal search. Since the SHO himself effected the seizure and arrested the appellant, sub-section (4) of Section 52 also had no application.
13. Paragraph 1.3 of the standing instruction No. 1 of 1988 issued by the Narcotics Control Bureau reads as under:--
All illicit narcotic drugs or psychotropic substances recovered from a person, place, conveyance etc. are material evidence as they are liable to confiscation. Further, they constitute primary evidence for any act, omission or commission on the part of a person rendering him liable for punishment under Chapter IV of the NDPS Act, 1985. Most of the narcotic drugs and Psychotropic substances cannot be conclusively proved, to be such drugs or substances merely by visual examination in the Trial Court and they require to be proved by chemical analysis to be conducted by chemists authorised u/s 293 of Cr.PC, 1973....
14. Accordingly, the requirement is to send the sample of seized narcotic drug for chemical analysis. Narcotic Drugs and Psychotropic Substances Rules, 1985 arc silent on the procedure to be adopted for taking sample of the seized contraband whereas non-compliance with the standing orders and instructions issued by the Central Government u/s 52-A (1) of the Act, for drawing of samples does not vitiate the trial [
15. Section 55 of the Act authorises the Station House Officer to keep in safe custody the seized contraband. B.B. Sharma (P.W. 4) was emphatic in slating that he had drawn sample of the seized contraband in presence of the persons who had witnessed the search and had made the corresponding entry in the case diary. No effective cross-examination was made to demolish this evidence. Constable Leeladhar (P.W. 6), who was deputed to carry the sample to the FSL, clearly deposed that it was handed over in a sealed packet. He firmly denied the suggestion that contents of the packet were tampered with by him and the SHO. A copy of the letter forwarded to the S.P. as well as FSL report clearly indicated that the sample was sent to the FSL on 17-2-1995. By examining SHO B.B. Sharma and Constable Leeladhar, the prosecution had ruled out the possibility of the sample being changed or tampered with during the aforesaid period. As pointed out already, there was nothing on record to suggest that the SHO was, in any way, interested in securing conviction of the appellant on absolutely false grounds. This apart, the remaining quantity of the seized contraband, allegedly packed and sealed in presence of the appellant in the sack (Article ''A''), was also produced as an article of evidence before the Trial Court. But, the appellant neither preferred to challenge identity of the sack nor took the plea that the seized article was not Ganja.
16. In the light of these peculiar facts and circumstances of the case, omission to draw sample of the contraband at the spot was rightly considered as only a procedural lapse on the part of the SHO, not sufficient to render the search and seizure illegal.
17. As reflected in the report (Exh. P-8), the sample forwarded for chemical examination contained Ganja viz., cannabis/hemp within the meaning of Section 2 (iii) (b) of the Act. The appellant did not discharge the onus of proof to rebut the presumption envisaged u/s 35 and 54 of the Act, by showing that he had no knowledge about the fact that the sack kept in his house contained Ganja.
18. For these reasons, none of the contentions raised against legality and propriety of the conviction has any merit. In the face of overwhelming incriminating evidence on record, learned Trial Judge did not commit any illegality in convicting the appellant for the offence charged with.
19. This brings me to the question of sentence. A considerable period of more than 17 years has elapsed after the incident in question. Learned Counsel has informed that the appellant has already suffered imprisonment for a period of nearly 1 year and 4 months. Under the un-amended penal provision, that was in force at the time of the alleged incident, the offence carried a maximum punishment of imprisonment for a term of 5 years and fine upto Rs. 50,000/-. In these circumstances, no useful purpose would be served by sending the appellant back to jail. Taking into consideration the facts and circumstances of the case, interests of justice would be met if the sentence of imprisonment is reduced to the period already undergone by the appellant and the fine amount is enhanced to Rs. 5000/-.
20. In the result, the appeal is allowed in part. The impugned conviction is hereby affirmed. However, the term of consequent sentence of imprisonment is reduced from four years to the period already undergone whereas the amount of fine is enhanced from Rs. 2000/- to Rs. 5000/- with the stipulation that in default of payment of fine, the appellant shall have to suffer RI for 3 months. Appellant Ramesh is directed to deposit the enhanced amount of fine on or before 20-4-2012 before the Trial Court or to remain present on that date for being committed to custody to undergo the default sentence.
