A.K. Awasthy, J.
Appellants/accused have filed these appeals u/s 374, Criminal Procedure Code, against the judgment and order dated 8-10-1998, In Special Case No. 64/97, passed by the learned Special Judge NDPS Act Mandsaur, Shri Jagdish Prasad Parashar.
Appellant Hardeosingh has filed Appeal No. 1289/98 and appellant Balveersingh has filed appeal No. 1299/98 of their conviction and sentence for the offence punishable u/s 8/15 and 8/18 of the Narcotic Drugs and Psychotropic Substances Act (for short ''NDPS Act'') for 10-10 years'' R.I. and a fine of Rs. 1 lac each and in default of payment of fine further R.I. for 2-2 years.
Appellant/accused Azam Khan and Abbas Khan have filed appeal No. 1287/98 against their conviction and sentence for the offence punishable under sections 8/29 and 8/18 of the NDPS Act for 10-10 years'' RI and a fine of Rs. 1 lac each and in default of payment of fine further R.I.. for 2-2 years.
Appeal No. 1295/98 is filed by appellant Siso against the order in the impugned judgment of the confiscation of the truck u/s 60(3) of the NDPS Act.
Prosecution case is that on 1-5-1997 at about 9.45 AM when the officers of the CBN (Prevention of Smuggling in Narcotics Department) were checking the vehicles at Nimbaheda-Jawad Road then signal was given by the Superintendent CBN N.C. Vijay (PW7) to check truck No. DIG-4753, but the said truck took the speed and, thereafter, it was stopped by the officers of the CBN. That accused Hardeosingh and Daljeetsingh came down from the driver seat of the truck and NC Vijay (PW7) told them that they are suspected and he want to take their search. N.C. Vijay (PW7) has apprised accused Hardeo Singh and Daljeet Singh of their right of search by the Gazetted Officer or the Magistrate and both of them have given consent of their search by N.C. Vijay (PW7). The consent memo Ex.P/1 was prepared and the accused have signed the consent memo. That in the search of the cabin on the driver seat behind raisin cartoons one bag containing opium was found and another raxin sack there was poppy straw. That on weighment the opium was 2.100 Kgs and the opium straw was 8.800 Kgs. That the 2-2 samples of opium and ''DODA'' were extracted and the sample packets along with the seized item were sealed. That the ''Panchnama'' of the proceedings Ex.P/2 was prepared and the signatures of the witnesses before whom the seizure was done i.e., Bhanwarsingh (PW1) and Satyanarain (PW2) were taken on Ex.P/2.
Superintendent N.C. Vijay (PW7) apprised the accused persons about the ground of their arrest and they were arrested, inspector A.K. Tulsidasan took statement (Ex.P/11) u/s 67 of the NDPS Act of accused Hardeo Singh. He has also recorded statement (Ex.P/12) of accused Daljeet Singh, wherein both the accused have stated that they have purchased the opium from accused Azam Khan and Abbas Khan from village Hasan Paliya, near Jaora. That after recording the statements of accused Hardeo Singh and Daljeet Singh they were taken to the Office of Central Bureau of Narcotics, Neemuch, where the ''Muddemal'' was handed over to the incharge ''Malkhana'' Abdul Samad Khan (PW3). Abdul Samad Khan (PW3) has sent one sample packet of each item to the Government Opium Factory, Neemuch through Constable Shobhagmal Rathor.
The prosecution case is that Inspector Kishanlal Khagna (PW6) was directed to investigate the case and he went to village Hasan Paliya and gave the notice Ex.P/16 to accused Abbas Khan and notice Ex.P/17 to accused Azam Khan for recording their statements u/s 67 of the NDPS Act. That Inspector Kishanlal Khagna (PW6) took statement of accused Abbas Khan (Ex.P/18) and also statement of accused Azam Khan (Ex.P/19), wherein they have stated that the opium was sold by them to accused Hardeo Singh and Daljeet Singh and they have signed the statements Ex.P/18 and Ex.P/19. That Inspector B.K. Gokhle (PW5) recorded the statements of the witnesses during investigation. That the information of the seizure of the truck was sent to the Special Judge. That the investigating Officer received the report Ex.P/23 dated 23-7-1997 from the Government Opium Factory, Neemuch. Thereafter, on 28-7-1997 the charge sheet was filed by the Investigating Officer B.K. Gokhle (PW5) against the accused Hardeo Singh and Daljeet Singh under sections 8/15 and 8/29 of the NDPS Act and against accused Azam Khan and Abbas Khan u/s 8/18 and 8/29 of the NDPS Act in the Court of Special Judge, Mandsaur.
Accused persons have abjured the guilt and they have denied all the incriminating circumstances appearing against them in their statements u/s 313, Criminal Procedure Code. The defence of accused Hardeo Singh and Daljeet Singh is that they were taking the food in the ''Dhaba'' near Neemuch and the officers of the Narcotics Department physically assaulted them and took their signatures on blank papers. The defence of accused Azam Khan and Abbas Khan is that they have not given any statement to the officer of the Narcotics Department and their signatures were obtained on blank papers. Accused persons have not examined any witness in their defence.
In order to prove the case against the accused persons the prosecution has examined ''Panch'' witnesses Bhanwarsingh (PW1) and Satyanarain (PW2), Superintendent/Deputy Commissioner Narcotics, Abdul Samad Khan (PW3), Inspector CBN, A.K. Tulsidasan (PW4), Inspector CBN, B.K. Gokhle (PW5), Inspector CBN Kishanlal Khagna (PW6) and Superintendent CBN, N.C. Vijay (PW7). The learned trial Court has held that the opium and ''DODA'' were recovered from the possession of the accused Hardeo Singh and Daljeet Singh and they were convicted and sentenced as above. The learned trial Court has further held that the offence of illicit possession of opium and selling the opium is established on the basis of the statements u/s 67 of the NDPS Act against accused Azam Khan and Abbas Khan and they were convicted and sentenced as above. The learned trial Court has also held that the seized truck No. DIG-4753 was used for carrying the Narcotic drugs and it was ordered to be confiscated u/s 60(3) of the NDPS Act.
Appellants Hardeo Singh and Daljeet Singh have challenged their conviction on the ground that the learned trial Court has erred in believing the uncorroborated testimony of the official witnesses and that the mandatory provisions of sections 42, 50, 52, 55 and 57 of the NDPS Act were not followed and, as such, the conviction is bad in law.
Appellants Azam Khan and Abbas Khan have alleged that the learned trial Court has erred in holding that they have given the statements vide Ex.P/18 and P/19 to the Inspector CBN. That it is not proved that the statements were given voluntarily. It is further alleged that the fact of disclosure of the name of Azam Khan and Abbas Khan was not mentioned in the seizure memo and the report u/s 57 of the NDPS Act and, as such, the alleged statements by accused Azam Khan and Abbas Khan are doubtful. That the statements Ex.P/18 and P/19 are not admissible in evidence and the learned trial Court has erred in believing them and convicting the accused on the basis of the statements Ex.P/18 and P/19.
Appellant Siso has alleged that she is the registered owner of truck No. DIG-4753 and without her knowledge her driver/accused if transported the contraband then the truck should not be ordered to be confiscated u/s 60(3) of the NDPS Act. That the order of confiscation of the truck is bad in law and it should be set aside.
APPELLANTS HARDEO SINGH AND DALJEET SINGH (CRIMINAL APPEALS NO. 1289/98 AND 1299/99)
N.C. Vijay (PW7) has stated that on 1-5-1997 he was posted as Superintendent CBN at Neemuch and when with patrolling party, he was checking the trucks near Jawad then at about 9.45 PM from Neemuch truck No. DIG-4753 was given signal to stop, but driver has raised the speed and lateron the members of the patrolling party stopped it. N.C. Vijay (PW7) has further stated that on the front seat two drivers were seated, who were brought down from the truck and they were informed that officers of CBN intend to take their search. N.C. Vijay (PW7) has further stated that both the accused Hardeo Singh and Daljeet Singh were informed that they have a right to opt that their search is made either before the Magistrate or the Gazetted Officer. That it was also informed that N.C. Vijay (PW7) is the Gazetted Officer and, thereafter, both the accused have consented their search by N.C. Vijay (PW7). It is further stated by N.C. Vijay (PW7) that in the cabin of the driver seat one small bag and one rexin bag were found hidden behind the raisin cartoon and one of the bag was having opium and in another bag there was poppy straw. That on weighment the opium was 2.100 Kgs and the ''DODA'' was 8.800 Kgs. N.C. Vijay has further stated that the 2-2 samples of 100-100 Gms. of opium and ''DODA'' were extracted and all the samples along with the seized item were sealed. It is further stated that both the accused gave the statements, which were recorded by inspector CBN, A.K. Tulsidasan (PW4). That the accused were informed about the ground of their arrest and they were arrested and the truck was also seized by A.K. Tulsidasan (PW4).
A.K. Tulsidasan (PW4) has stated that on 1-5-1997 in front of the hotel on Nimbaheda road they were checking the vehicles and about 9 A.M. the truck No. DIG-4753 was signalled to stop, but the driver did not slow down and it was made to stop and both the accused were brought down from the driver seat of the truck. A.K. Tulsidasan (PW4) has further stated that the accused were informed that they are suspected and they have a right of their search either before the Magistrate or the Gazetted Officer and N.C. Vijay t,PW7) is the Gazetted Officer. That the accused consented vide Ex.P/1 for their search by N.C. Vijay (PW7) and consent memo (Ex.P/1) was signed by both the accused. That in the search of the driver''s cabin of the truck behind the raisin cartoons one small packet and another big packet were found hidden and in the small packet there was opium and in another big packet there was ''DODA''. That on weighment the opium was 2.100 Kgs and ''DODA'' was 8.800 Kgs. That the samples were extracted and sealed. A.K. Tulsidasan (PW4) has further stated that accused Hardeo Singh has given statement Ex.P/11 and accused Daljeet Singh has given statement Ex.P/12, wherein they have stated that they have purchased the opium from village Hasan Palia near Jaora from one hotel and they signed their statements. That the accused were arrested and they were taken to the Office of the CBN, Neemuch. It is further stated by A.K. Tulsidasan (PW4) that he has sent the information u/s 57 of the NDPS Act vide Ex.P/13 to the Superintendent CBN.
''Panch'' witnesses Bhanwar Singh (PWl) and Satyanarain (PW2) have said that the truck was not searched before them and the officer of Narcotics Department has taken their signatures on Ex.P/1 to P/7. These witnesses have not assigned the reasons for signing papers Ex.P/1 to P/7. It is clear from their statements that they are suppressing the truth and they were rightly declared hostile. It is observed in para-7 in case of P.P. Fatima vs. State of Kerala, 2004 SCC (Cri) 1 that omission on the part of ''Panch'' witnesses to support the prosecution case would not make the prosecution case any less acceptable, if otherwise the Court is satisfied from the material on record and the evidence of the seizing authority that the seizure was genuinely made.
A.K. Tulsidasan (PW4) and N.C. Vijay (PW7) have conducted the seizure in presence of ''Panch'' witnesses, who were present in the locality and they were not under the thumb of seizing officer. This conduct indicates the fairness in the seizure. A.K. Tulsidasan (PW4) and N.C. Vijay (PW7) have not contradicted each other or their previous statements. Their statements are credible and trustworthy and learned counsel for the appellants has failed to point out any infirmity in their deposition. These witnesses are responsible and senior officials of the CBN. Consequently, the learned trial Court has not committed any error in believing their statements to the effect that opium and ''DODA'' was recovered from the truck of the accused persons.
The contraband was recovered from the cabin of the driver seat. The accused persons were the drivers and they were sitting on the front seat of the truck. Nobody else was in the truck. The accused has not given any explanation of the presence of opium bag and ''DODA'' sack, which was kept hidden in their cabin. The accused persons have given the statements (Ex.P/11 and Ex.P/12), in which they have admitted that the opium was purchased by them. The statements Ex.P/11 and P/12 are signed by the accused and they were not retracted. The statements of accused Ex.P/11 and P/12 were recorded before their arrest and in public place during the seizure and there is nothing to show that statements u/s 67 of the NDPS Act were given by accused under pressure, threat or promise. Consequently, it is proved that the accused were in possession of the contraband. The statutory presumption of conscious possession of contraband in the wake of aforesaid circumstances can be raised by virtue of sections 35 and 54 of the NDPS Act.
The question of compliance of mandatory provisions of sections 42 and 50 of the NDPS Act does not arise in case of chance recovery from vehicle. It is established from the statement of A.K. Tulsidasan (PW4) that the accused were informed about the ground of their arrest and after their arrest they were immediately taken to the higher authority. The ''Muddemal'' was handed over for keeping in safe custody and required information u/s 57 of the NDPS Act (Ex.P/13) was given to the superior authority. Superintendent CBN Abdul Samad Khan (PW3) has stated that he was ''Malkhana'' incharge and on 1-5-1997 he has kept the seized items and sample packet in safe custody and on next day on 2-1-1997 sample packets in sealed condition were sent to Government Opium Factory, Neemuch for the examination. Ex.P/10 is the copy of ''Malkhana'' register, which corroborates that the sealed sample packets were sent next day for chemical examination. The report of Chemical Examiner is Ex.P/23 and it is mentioned in it that the sample packets were received in laboratory on 2-5-1997 and after comparing the seals they was found duly sealed and packed. Consequently, the proper compliance of procedural safeguard under sections 52, 55 and 57 of the NDPS Act is proved and also that all the precautions were taken to remove the possibility of tampering of the seized item and the sample packets. Thus, the learned trial Court has rightly found accused Hardeo Singh and Baldeo Singh guilty for the offence of keeping opium and ''DODA'' in possession.
ACCUSED AZAM KHAN AND ABBAS KHAN (CRIMINAL APPEAL NO. 1287/98)
Inspector CBN Kishanlal Khagne (PW6) has stated that on 2-5-1997 the investigation of case was handed over to him and from case diary he learnt that the seized contraband was sold by accused Azam Khan and Abbas Khan and the notice (Ex.P/16) was given to Azam Khan and notice (Ex.P/17) was given to Azam Khan for taking their statements u/s 67 of the NDPS Act. Kishanlal (PW6) has testified that Abbas Khan gave statement (Ex.P/18) and Azam Khan gave statement (Ex.P/19), which were signed by them. It is stated by accused in their statements u/s 313, Criminal Procedure Code that their signatures were obtained on the blank papers. Accused have neither reported to the Magistrate nor to any authority or anyone that their signatures are obtained by officer of CBN on blank paper. Learned counsel for the appellants has failed to show any infirmity in the statement of Kishanlal (PW6) to create doubt in his testimony. On close scrutiny, Kishanlal (PW6) appears to be trustworthy and reliable.
Kishanlal (PW6) is Inspector of CBN and he is not police officer. It is laid down in case of
Learned counsel for the appellants argued that the statements given by the accused persons to Kishanlal(PW6) are not admissible and they are not reliable, because in seizure memo and information u/s 57 of the NDPS Act it was not mentioned that the statements by co-accused were given that they have purchased the opium from accused Azam Khan. The probative value of statement of Kishanlal (PW6) will not diminish on account of the failure to write in seizure memo and letter u/s 57 of the NDPS Act about the statement of co-accused. However, in the seizure memo of opium and ''DODA'' it is not at all required and necessary to mention that what were the statement of accused. Similarly, the information u/s 57 of the NDPS Act is sent only of arrest of accused and seizure from them and it is no where laid down that information u/s 57 of the NDPS Act should contain other details also. Consequently, there is no force in contention of the learned counsel for the appellant that the absence of details of statement by co-accused in seizure and information u/s 57 of the NDPS Act make the confessional statements Ex.P/18 and Ex.P/19 of Azam Khan and Azam Khan suspicious.
It is contended by the learned counsel for the CBN that the statements u/s 67 of the NDPS Act of Azam Khan and Abbas Khan can be used against co-accused Hardeo Singh and Daljeet Singh and their statements u/s 67 of the NDPS Act, marked as Ex.P/11 and P/12, can be used against accused Abbas Khan and Azam Khan. The confession of accused can be used against co-accused by virtue of section 30 of the Evidence Act. It is clear from the proposition laid down in Kashmira Singh vs. State of M.P., AIR 1952 SC 159 that in view of section 30 of the Evidence Act the confession of accused can be used to corroborate the evidence against co-accused. Consequently, the statement u/s 67 of the NDPS Act (Ex.P/11 and P/12) given to A.K. Tulsidasan (PW4) by accused Hardeo Singh and Daljeet Singh corroborate the statements given by accused Azam Khan and Abbas Khan u/s 67 of the NDPS Act vide Ex.P/18 and P/19 to Inspector CBN Kishanlal (PW6) and vice versa. In wake of aforesaid evidence the learned trial Court has rightly held accused Azam Khan and Abbas Khan guilty for offence punishable under sections 8/18 and 8/29 of the NDPS Act. The learned trial Court has rightly awarded the minimum prescribed sentence to the accused persons.
The learned counsel for the owner of the vehicle has admitted that the accused Daljeet and Hardeo were her drivers. There is nothing on record to show that vehicle was being used without the knowledge or connivance of the owner of the truck. The order of confiscation u/s 60(3) of the NDPS Act is discretionary as held in case of
In the result, all the appeals are totally devoid of merit. The appeals are hereby dismissed.
