M.R. Verma, J.@mdashThis appeal is directed against the judgment dated 29.3.2001 passed by the learned Sessions Judge, Kullu whereby the deceased Appellant Gupt Ram and other Appellants (hereafter referred to as ''the accused persons'') have been convicted u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (hereafter referred to as ''the NDPS Act'') and each one of them has been sentenced to rigorous imprisonment for 10 years and fine of Rs. 1,00,000 and in default of payment of fine to suffer further imprisonment for one year each.
2. Case of the prosecution against the accused persons is that Rakesh Goyal (PW-1), Zonal Director, of the Narcotics Control Bureau (hereafter referred to as "N.C.B.") Chandigarh, alongwith other officials of the N.C.B., namely, R.P. Singh, O.P. Bhatt (PW-8), Malkiat Singh (PW-4) and two sepoys came to Kullu on 10.10.1999. On 12.10.1999 PW-8 gave him the information vide Ext. PW-1/A that Gupt Ram, Ranjit Lal and his family were dealing in contraband. On receipt of this information, PW-1 issued authorisation Ext. PW-l/B authorizing PW-8 to search the premises of the accused persons and a team consisting of PW-8, R.P. Singh, Malkiat Singh (PW-4), Paramjeet and Rajesh Kumar was deputed to carry out the search of the house occupied by accused persons in village Naraini. Two independent witnesses, namely, K.N. Bhardwaj (PW-5) and Amar Nath were joined in the search party besides some local police officials, including a lady constable. PW-1 also accompanied the search party which proceeded to the residential house in question. On knocking the door of one of the rooms of the house accused Gupt Ram came out of the room and he was informed by PW-8 that as per the information some narcotic material was lying in the house and a search of the house was intended by the search party. Accused Gupt Ram informed that nothing was lying in the house and search could be taken. After deputing one person there the door of the adjacent room was knocked which was opened by accused Laxmi Devi, who was followed by accused Ranjit Lal. They were also informed of the intended search. The notices Exts. PW-5/A and PW-5/B u/s 50 of the NDPS Act were served on accused Gupt Ram and Ranjit Lal and they agreed for search by any of the officer of the search party. After observing the legal formalities, the room, which was opened by accused Gupt Ram, was searched and 10 kgs. of Charas wrapped in a plastic bag kept concealed under the guilt/Gaddi and other clothes was found in a corner of the room. On search of the other room in the possession of accused Ranjit Lal and Laxmi Devi 5 Kgs. of Charas kept in a plastic bag in the Diwaan/bed was recovered. The Charas so recovered was made into three parcels of 5 kgs. each and two samples of 25 grams each were taken from each packet which were marked X-l, X-2, Y-l, Y-2, Z-l and Z-2. The samples were sealed in accordance with the procedure and the parcels of bulk Charas marked X, Y and Z were also sealed with the seal of the NCB provided by PW-1. The packets were got signed from the accused persons which were so prepared that those could not be opened without breaking the seals. About the search and recovery Panchnama Ext. PW-5/C was prepared. Out of the said samples, samples marked X-l, Y-l and Z-l were sent to the CRCL Pusa Road New Delhi for analysis vide Ext. PW-l/D alongwith test memos. The remaining samples and bulk Charas were deposited in the custom Malkhana, Chandigarh against receipt Ext. PW-l/K. The information u/s 57 was submitted by PW-8 to PW-1 vide Ext. PW-l/L. Statements of the accused persons were recorded u/s 67 of the NDPS Act which are Exts. PW-5/C, PW-5/E and PW-5/F. The accused persons were arrested vide Memos Ext. PW-5/H, PW-5/K and PW-5/L. On analysis the samples sent to the Laboratory were found those of Charas vide report Ext. PW-1/J. Consequently, a complaint was lodged by the NCB against the accused persons in the Court of the learned Sessions Judge, Kullu. The accused persons were tried on a charge u/s 20 of the NDPS Act. To prove the charge against them, the prosecution examined eight witnesses. Statements of the accused persons were recorded u/s 313 Code of Criminal Procedure wherein they denied the case of the prosecution and claimed to be innocent. The accused persons, however, did not lead any defence evidence.
3. On the basis of the evidence led by the prosecution, the learned trial Judge convicted and sentenced the accused persons as aforesaid. Hence, this appeal.
4. It may be pointed out here that during the pendency of the appeal accused/Appellant Gupt Ram died and because of the fiscal interest involved his son Bhag Chand was substituted in his place, as envisaged u/s 394 of the Code of Criminal Procedure.
5. We have heard the learned Counsel for the parties and have also gone through the records.
6. The learned Counsel for the Appellant Bhag Chand, whose arguments were by an large adopted by the learned Counsel for the accused/ Appellants, assailed the impugned conviction and sentence on the following grounds:�
a. That the search is vitiated for the reason that NCB officials had no power to search;
b. That the search is vitiated for want of compliance of the provisions of Sections 42, 50, 55 and 57 of the NDPS Act;
c. That the so called independent witnesses were called upon to join search by resorting to the provisions of Section 67 of the NDPS Act applicable to suspects and not the witnesses;
d. That the confessional statements of the accused persons when read as a whole are of no help to the prosecution;
e. That the entire process of search and seizure is suspicious because:�
i. the name of accused Laxmi is not mentioned in the information laid before PW-1 but in his authorization he refers to her by name,
ii.the authorizing officer himself participated in the process of search, recovery and seizure; and
iii. there is no link evidence or other evidence to prove that the samples and bulk case property at different stages remained in safe custody;
f. The charge framed against the accused is defective and misleading having resulted in prejudice to the accused and, therefore, the impugned conviction and sentence are vitiated.
Ground (a):7. It was contended by the learned Counsel for Appellant Bhag Chand and adopted by the learned Counsel for the accused that NCB has no power to conduct search, seizure and arrest, therefore, the conducting of search etc. by the officer of NCB (PW-8) vitiates the impugned conviction and sentence. To substantiate the contention reliance was laid on
8. In Kulwant Singh''s case (supra) Delhi High Court had held that NCB cannot be termed as a department of the Government and is not an authority to perform functions relating to investigation, search and seizure, therefore, search and seizure effected by NCB being illegal cannot form basis for conviction of the accused. However, in appeal the judgment of the Delhi High Court in the said case was set aside by the Apex Court by taking a contrary view in State Through Narcotics Control Bureou v. Kulwant Singh, 2003 (2) Crimes 156 (SC), wherein the Apex Court held as follows:�
25. The offence memorandum of the Government of India dated 2.2.1987 clarified that the Director General, NCB, under the over all supervision of the Revenue Secretary will be responsible devising and undertaking programmes for strengthening and modernizing the Narcotics Intelligence Agencies in the country. As earlier noticed, the Director General is assisted by such officers as may be appointed by the Central Government from time to time. The Director General, NCB has also been declared by the President as the Head of Department for the purpose of exercising financial powers in respect of NCB. It is also brought to our notice that the President of India in exercise of powers conferred by the proviso to Article 309 of the Constitution of India has framed the Department of Revenue (Narcotics Control Bureau) (Group C and Group D parts) Recruitment Rules, 1992 and Department of Revenue Narcotics Central Bureau (Intelligence Officers) Recruitment Rules, 1996. All this leads us to conclude that the NCB is merely a wing or branch of the Department of Revenue of the Government of India. As we have held earlier, it is not constituted as a distinct legal entity, and therefore has no independent existence,except as a branch or wing of the Department of Revenue dealing with matters entrusted to it by the notified order constituting it. Therefore, the notifications empowering the officers to exercise the powers under Sections 36A, 41, 42 and 67 must be held to be legal and valid. The search and seizure carried out by such officers and the arrests made by them in exercise of such power is authorized and warranted. The complaint lodged by the empowered officer u/s 36A(1)(d) is also authorized. The view that we have taken is supported in principle by the decision of this Court in
9. In David Bertrand v. Narcotic Central Bureau 1999 (1) SLJ 880, a Division Bench of this Court held as under:�
16. After analysing the provisions of the Act and the Code and in the light of the judgments of the Apex Court discussed hereinabove, we answer the reference as follows:�
A. Authorized officer of the Narcotic Control Bureau appointed u/s 42 of the Act is not invested with the powers of Police Officer u/s 53 of the Act for the purposes of investigating the offences under the Act and without lodging the First Information Report u/s 154 of the Code of Criminal Procedure, such officer can proceed to investigate the offence under the Act. He is authorized to enter into and search any building, conveyance or place, seized the drugs or substance and arrest the accused without warrant or authorization u/s 42 of the Act.
B. Special Court trying the offences under the Act may take cognizance of the offence upon a perusal of the police report of the facts constituting an offence under the Act submitted by the police officer after completion of the investigation u/s 173 of the Code of Criminal Procedure, whereas empowered or authorized officer of the Act has to file only a complaint of facts constituting any offence under the provisions of Section 36A(1)(d) of the Act.
C. The Magistrate has the jurisdiction u/s 167(2) of the Code of Criminal Procedure to authorise detention of the Petitioner arrested by an authorized officer of Narcotic Control Bureau in compliance of Section 36A(h) of the Act.
10. In view of the above position in law, as settled by the Apex Court and this Court, the contention that search and seizure by the NCB Officer is illegal, therefore, could not form basis for conviction of the accused is unsustainable.
Ground (b):
11. It was contended for the Appellant / accused persons that PW-8 failed to follow the mandatory provisions of Section 42 of the NDPS Act regarding recording of information/personal knowledge contemplated in Section 42(1) and the grounds as contemplated in proviso to Section 42(1). This failure further led to non-compliance of the mandatory provisions of Section 42(2) of the NDPS Act and non-compliance of the aforesaid mandatory provisions is fatal to the case of the prosecution. To substantiate the contention, reliance had been laid on various judgments of the Apex Court and the various High Courts.
12. The learned Counsel for the Respondent, however, contended that the search etc. in question were conducted pursuant to the authorization by the competent authority, therefore, it was not a case of non-compliance of the provisions of Section 41 or 42 of the NDPS Act.
13. By now it is well settled that the provisions of Section 42 of the NDPS Act are mandatory and failure to comply with such mandatory provisions will be fatal to the case of the prosecution. Therefore, all the judgments cited in support of this settled position need not be referred to here in detail and it will be sufficient to say that the Apex Court in State of Punjab v. Balbir Singh 1994 (1) Crimes 753 ;
14. In the case in hand, the intelligence officer of the Respondent (PW-8) had collected the information about the contraband having been kept in the residential premises of the accused persons. He reduced the information in writing Ext. PW-1/A and placed before the Zonal Director of the Respondent (PW-1) who on believing the said information and acting u/s 41(2) of the NDPS Act authorized PW-8 and R.P. Singh vide Ext. PW-1/B to search the premises of the accused persons in village Naraini and produce before him the incriminating substance, thing or document which might be found in the said premises. The search and seizure in question were thus pursuant to the authorization Ext. PW-1/ B, therefore, recording of information as contemplated u/s 42(1) or recording of the grounds under the proviso to Section 42(1) or sending copies thereof as required u/s 42(2) of NDPS Act was not required to be done. The contention that non-compliance of the mandatory provisions of Section 42 of the NDPS Act is fatal to the case is, therefore, not sustainable.
15. It was contended for the Appellant and accused persons that PW-8 failed to comply with the provisions of Section 50 of the NDPS Act and such failure is fatal to the case of the prosecution.
16. Section 50 of the NDPS Act is applicable to search of the person of the suspect/accused. The provisions thereof are also mandatory and noncompliance fatal to the case of the prosecution. However, those provisions are not applicable to a search other than that of the "person". (See:
17. It was next contended for the Appellant/accused that it is admitted case of the prosecution that the contraband samples thereof and the accused persons were not produced before the S.H.O. Police Station, Kullu, as required u/s 55 of the NDPS Act. Thus, there had been breach of the provisions of Section 55, which not only raises serious doubts about the fairness in conducting the search, seizure and the arrest but being non compliance of the mandatory provisions is fatal to the prosecution case. To substantiate the contention reliance was laid on State of H.P. v. Sobha Ram, 1993 (2) Sim. L.C. 128 and
18. The learned Counsel for the Respondent contended that the provisions of Section 55 are not mandatory and non-compliance thereof is not fatal to the case.
19. Section 55 of the NDPS Act reads as under:�
55. Police to take charge of articles seized and delivered.�An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.
20. It is clear on a bare reading of the above Section that it requires the officer-in-charge of a police station to take charge and keep in safe custody the articles seized under the Act which may be delivered to him, permit the officer delivering such articles to take sample of or seal the articles so delivered and himself seal such articles with his seal. From the tone and tenor of these provisions particularly the expression "which may be delivered to him" it is evident that delivery of the articles seized under the Act to the S.H.O. is not a mandatory requirement non-compliance whereof by the seizing officer may be fatal to the case. In case the seized articles are produced before the officer-in-charge of the police station, he is no doubt bound to act in the manner as provided by Section 55 (supra). The non-compliance, however, is directory and not mandatory. Therefore,non-compliance of the provisions of Section 55 ipso facto will not be fatal to the case but the failure to comply with these directory provisions will have a bearing on the appreciation of evidence regarding search and seizure of the case property and arrest of the accused.
21. In Sobha Ram''s case (supra), a Division Bench of this Court observed that the trial Court found non-compliance of the mandatory provisions. of Sections 52, 55 and 57 of the Act which resulted in acquittal of the accused on a charge u/s 20 of the NDPS Act and on facts the Bench agreed with the findings regarding such non-compliance and re-emphasising the earlier decisions of this Court that amongst others the provisions of Section 55 are mandatory, upheld the order of acquittal.
22. In Thandi Ram''s case (supra), the Apex Court has not specifically dealt with the interpretation and nature of Section 55 nor specifically held the provisions of Section 55 mandatory but acquitted the accused on the ground of non-compliance of the provisions of Sections 55 and 57.
23. Of late the question whether provisions of Section 55 of the NDPS Act are mandatory or not has been examined by the Hon''ble Supreme Court and this Court in a few cases and the provisions of Section 55 have been held directory.
24. In Gurbax Singh v. State of Haryana (2001) 3 SCC 28, the Apex Court held as follows:�
9. The learned Counsel for the Appellant next contended that from the evidence it is apparent that the IO has not followed the procedure prescribed under Sections 52, 55 and 57 of the NDPS Act. May be that the IO had no knowledge about the operation of the NDPS Act on the date of the incident as he recorded the FIR u/s 9/1/78 of the Opium Act. In our view, there is much substance in this submission. It is true that provisions of Sections 52 and 57 are directory. Violation of these provisions would not ipso facto violate the trial or conviction. However, IO cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article...
25. In
29. On a bare reading of the abovesaid provisions it is clear that these are enabling provisions and give an option to the officer making the seizure under the Act to deposit the recovered contraband etc. with the officer-in-charge of the police station. The section does not contain any mandate to the officer making the seizure to deposit the seized contraband etc. with the officer-in-charge though in the event of the officer seizing the articles producing the same before the officer-in-charge of the police station, it directs him to take charge of the articles so produced, affix his seal to such articles or to take samples thereof and seal them too, and put him in safe custody. Thus, the provisions are directory and not mandatory, intended to reinforce the link evidence regarding safe custody of the case property.
30. In Duni Chand v. State of H.P. (2001) 2 Shim. L.C. 206, while dealing with the effect of non-compliance of the provisions of Section 55 of the Act, a Division Bench of this Court after considering various judgments of various High Courts, held as under:
17. The ratio of the law laid down in the above said judgment is that if it is assumed that the provisions of Section 55 of NDPS Act are directory in nature, this does not mean that those have not to be complied with. The only fact of such provisions would be that the prosecution has to explain that those were not complied with. If explanation for non-compliance is satisfactory, it has to be seen whether any prejudice has been caused to the accused or not. In the present case as stated above, the prosecution has rendered explanation that the officer-in-charge of the police station was out of station at the time when the seized articles were brought by PW-7 to police station, Kihar and handed over to PW-4. PW-4 has categorically deposed that all the parcels remained intact during the period they remained in his custody. PW-3 stated that PW-4 handed over the sealed parcel duly sealed with seal bearing impression ''K'' alongwith parcel seals to him for taking them to CTL Kandaghat on 28.11.1999. He took the same sealed parcels to Kandaghat and deposited them in Kandaghat on 29.11.1999. He categorically stated that the parcels remained intact during the period they remained in his custody. In the teeth of the satisfactory explanation rendered by the prosecution, we are of the view that non-compliance of Section 55 is a mere irregularity and failure to comply with will not vitiate the entire prosecution case which is otherwise proved against the accused.
In Raj Kumar v. State of H.P. (2001) 1 Shim. L.C. 150, a Division Bench of this Court took similar view and held as under:
31. In
Section 55 of the Act is only an enabling provision authorising and requiring an officer-in-charge of a police station, within whose local limits seizure is made, to keeping safe custody the articles'' if and when delivered.Providing of separated seal on the article recovered and sample by the in-charge of police station, as required under this section, is only a step provided by the statute against tampering so that quality of substance recovered till it is analysed by the Chemical Examiner, remains the same.
32. In so far the other case law relied upon by the learned Counsel for the accused to support his contention is concerned, the crux thereof is that in the given circumstances of a case non-compliance of Section 55 of the Act may lead to the conclusion that possibility of the case property having been tampered with cannot be ruled out and as a result of prejudice thus caused to the accused, the conviction of the accused cannot be sustained. There cannot be any dispute with this proposition and once the non-compliance of the provisions of Section 55 of the Act is coupled with such circumstance which may raise doubts about the safe custody of the case property, the benefit of doubt is bound to be given to the accused. It follows that the provisions of Section 55 of the Act are not mandatory and non-compliance thereof ipso facto is not fatal to the case of the prosecution but such noncompliance has to be kept in view while appreciating the link evidence led by the prosecution to prove that the case property and samples had not been tampered with.
26. There is yet another aspect of the matter. The purpose of Section 55 of the NDPS Act is to ensure fair investigation and avoid any opportunity of tampering with the case property by the officer seizing the same. The legislature to achieve the purpose appears to have laid much faith on the officer incharge of a police station as is clear from the fact that in case the officer incharge of the Police Station himself is the seizing officer, there is no question of compliance of the provisions of Section 55. This legal position by itself is sufficient to hold that non-compliance of the provisions of Section 55 ipso facto is not fatal to the case but in case of non-compliance of these provisions the Court before recording conviction must be satisfied that there is confidence inspiring evidence to prove that the case property and the samples were not tampered with at any stage.
27. In the case in hand, the contraband was seized by PW-8. He handed over the duly sealed parcels of the bulk contraband and the samples thereof to his officer superior PW-1 almost immediately after the seizure and there is no suggestion that PW-8 before handing over the case property to PW-1 had tampered with the bulk contraband or/and the samples. There is no suggestion that PW-1 or PW-8 for any reason whatsoever were biased or prejudiced against the accused persons and had the motive to falsely implicate them in the commission of an offence of being in possession of such quantity of the contraband which evidently is impossible or improbable to procure for being planted to implicate a person(s) falsely.
28. In view of the above, it can safely be held that neither the provisions of Section 55 of the NDPS Act are mandatory nor the non-compliance of such provisions is fatal to the case of prosecution for want of any prejudice having been caused to the accused because of non-compliance thereof. The contention to the contrary, therefore, is not sustainable.
29.It was also contended for the Appellant/accused that PW-8 who conducted the search, seizure and arrest had not made the requisite report u/s 57 of the NDPS Act and the failure to do so being violative of the mandatory provisions, the impugned conviction and sentence are liable to be set aside. To substantiate the contention reliance was laid on Sobha Ram and Thandi Ram''s case (supra).
30. On the other hand, the learned Counsel for the Respondent contended that PW-8 had complied with the provisions of Section 57 of the Act, which even otherwise are not mandatory, therefore, the contention for the Appellant/accused being factually incorrect deserves to be rejected.
31. As per the version of the prosecution, the search, seizure and arrest in the case were effected by PW-8 on the basis of authorization Ext. PW-1/B issued by PW-1. PW-1 has stated that the I.O. (PW-8) had informed him of the arrest and seizure vide Ext. PW-l/L. PW-1 has not been cross-examined on this version. A perusal of Ext. PW-l/L shows that it is information u/s 57 of the NDPS Act sent by PW-8 to the Zonal Director (PW-1) about the search pursuant to the authorization and the consequential seizure of the recovered contraband and arrest of the accused persons. As per the contents of Ext. PW-l/L, the search, seizure and arrest were effected on 12.10.1999 and the information Ext. PW-1/L is dated 13.10.1999 which purports to have been received by PW-1 on 14.10.1999. In the absence of cross-examination of the material witnesses to suggest the contrary, the giving of information Ext. PW-l/L by PW-8 to PW-1 is due compliance of the provisions of Section 57 of the NDPS Act.
32. It may also be pointed out that PW-1 who himself was present on the spot has stated that he himself had also sent the special report Exts. PW-1/F and PW-1/G to his superior. He was recalled for further examination about the sending of these documents to his superior and stated that Ext. PW-1/M is the certified copy of the report and it was sent through Courier vide receipt Ext. PW-1/N.
33. It was contended by the learned Counsel for the accused persons that all these documents purporting to be the information given by PW-1 to his superior officer are fabricated documents and do not fulfil the requirements of the provisions of Section 57 of the NDPS Act.
34.Be it stated that the officer authorized to carry out the search vide authorization Ext. PW-1/A is PW-8 who conducted the search, seizure and arrest and he had given the information Ext. PW-l/L u/s 57 to his superior officer PW-1 and thus the requirement of Section 57 stood satisfied as already held hereinabove. Giving of any further information by PW-1 to his superior officer is not the requirement of Section 57. Therefore,assuming though not admitting that information vide Exts. PW-1/F and PW-1/G was never sent by PW-1 to his superior, that will not mean non-compliance of the provisions of Section 57 because the compliance of the provisions of Section 57 had already been done by PW-8 who was required to do it as per the law. It was, therefore, not required of PW-1 by law to comply with the provisions of Section 57.
35. It is, therefore, not a case of non-compliance of the provisions of Section 57 which even otherwise are not mandatory nor the non-compliance thereof ipso facto fatal to the case but are merely directory and non-compliance whereof only effects the appreciation of evidence. (See: Gurbax Singh''s case (supra)).
36. For the reasons stated hereinabove, the contention that it is a case of non-compliance of the mandatory provision of Section 57 which is fatal to the case has no merit and substance.
Ground (c):
37. It was contended by the learned Counsel for the Appellant/accused that the so called independent witnesses joined in the search party were made to so join by issue of notices to them u/s 67 of the NDPS Act, therefore, their participation in the search was because of panic caused by the notices, therefore, they could not be treated as independent witnesses. Moreover only one of such witnesses was examined and the other was given up. It was further contended that the testimony of a witness who participated in the search pursuant to a notice u/s 67 of the NDPS Act is unreliable and was liable to be rejected.
38. Section 67 of the NDPS Act provides that any officer referred to in Section 42, who is authorized in this behalf by the Central Government may, during the course of any enquiry in connection with the contravention of any provision of the Act call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of the Act or any rule or order made thereunder and may require any person to produce or deliver any document or thing useful or relevant to the enquiry or examine any person acquainted with the facts and circumstances of the case. These provisions are not meant to call upon a person to join as a member of a search party constituted for searching a house etc. where any contraband or incriminating document is suspected to have been kept concealed. Therefore, issue of a notice u/s 67 to a person to join as a search witness is contrary to the purpose, letter and spirit of the Section. In case a notice under 67 is given to a person for the purposes, mentioned in the section, that may lead the summoned person apprehensive and fearful. However, in case the notice purporting to be one u/s 67 is a mere request to a person to join a search party as a witness, then there is no question of the person being under pressure or fear.
39. In the case in hand, the independent witnesses were admittedly called upon to join as such in the search party by a notice u/s 67 of the Act. How such notice was taken and treated by the witnesses to whom it was issued is revealed by the relevant contents of Ext. PW-1/C English version whereof reads as under:�
We the abovementioned witnesses were given a notice u/s 67 of NDPS Act of 1985 by the Narcotic Control Bureau Officers today i.e. 12.10.1999. We were told that they had a confirmed information that Ranjit Lal Thakur son of Shri Tassi Norbu, resident of Village Naraini (near I.O.C. Stores) Mohal, District Kullu was having Charas in a large scale in his residential house and the search of his said house was to be conducted and that they had the warrant of authorization for this purpose. They requested us to be present during the search. Upon this, we agreed to be present with the officers of Narcotic Control Bureau during the house search.
40.There is no challenge to the correctness of the above contents of Ext. PW-1/C which clearly and unambiguously show that the notice purporting to be u/s 67 of the Act served on the independent witnesses, namely, K.N. Bhardwaj (PW-5) and Amar Nath was nothing more than a request to join the search party as witnesses and they obliged. Therefore, the mere fact that the independent witnesses were requested to witness the search by a notice termed as a notice u/s 67 of the NDPS Act does not in any manner create a situation which may be a cause to suspect the truthfulness of PW-5. Hence, the contention that independent witnesses were called upon to join u/s 67 has rendered the statement of PW-5 as unreliable is not sustainable. Want of production of Amar Nath by the prosecution is also no reason to disbelieve other witnesses whose evidence has to be appreciated on its own merits and demerits.
Ground (d):
41. It was contended for the Appellant/accused persons that the alleged confessional statements of the accused persons when read as a whole are of no help to the prosecution and moreover are not proved to have been voluntarily made, therefore, could not be relied upon to convict the accused persons.
42. On the other hand, the learned Counsel for the Respondent had contended that in view of the statements of the material witnesses that the confessional statements were voluntarily made and being admission of the offence committed by them, such confessional statements have rightly been relied by the trial Court in convicting the accused persons.
43. It may be pointed out that NCB officers while investigating the offences under the NDPS Act and conducting interrogation u/s 67 of the Act are not police officers, therefore, the statements made before them are not hit by Section 25 of the Evidence Act or Section 162 of the Code of Criminal Procedure and are admissible in evidence.
44. PW-9 has stated that accused persons made the statements to him and statement Ext. PW-5/C made by Gupt Ram, statement Ext. PW-5/E made by Ranjit Lal and statement Ext. PW-5/F made by Laxmi Devi were reduced by him into writing in the presence of K.N. Bhardwaj (PW-5) and Amar Nath and are signed by the accused and the witnesses. The suggestion given to PW-9 in his cross-examination by accused Gupt Ram that accused did not make the statements and these were recorded by him of his own accord and that their signatures were obtained on the confessional statements forcibly have been denied by him. PW-5 has stated in his examination-in-chief that accused Gupt Ram had made statement in his presence which was reduced into writing and was signed by him and accused Gupt Ram and is Ext. PW-5/C. In his cross-examination by the learned Counsel for the Respondent he has made similar statement about making of statements Ext. PW-5/E and PW-5/F respectively by accused Ranjit Lal and Laxmi Devi. He has also denied the suggestions given to him in his cross-examination by accused persons that confessional statements were not made by the accused persons but were "subsequently manufactured by the police" and that the signatures of accused were obtained under threat at the police station. PW-9 whose presence on the spot is not disputed has also stated that the accused made statements admitting possession of the contraband. He has also denied the suggestion that signatures of the accused persons were forcibly taken on the confessional statements. From the evidence hereinabove referred to it is fully proved that the confessional statements admittedly signed by the accused persons were made by them. The defence of the accused as emerges from the trend of cross-examination is that the signatures of the accused on these confessional statements were taken forcibly in the Police Station. The suggested defence does not seem probable and logical because this is not a police case and the local police is not shown actively involved in the investigation of this case at any stage. If so it is improbable that the police would have undertaken the job of forcing the accused to sign the confessional statements. Secondly it is not in dispute that the accused after arrest were produced before a Magistrate who remanded them to judicial custody on 13.10.1999 and thereafter they were produced before the Magistrate repeatedly for remand till the date of filing of the complaint. However, it is not the case of the accused persons that they ever complained to the Magistrate about use of force against them by the police or the officials of the Respondent to sign the confessional statements. Had it been a case of getting the confessional statements signed from the accused by the police forcibly, in the natural course of conduct the accused would have complained to the Magistrate before whom they were produced as aforesaid. At the time of recording of the statements of the accused u/s 313 Code of Criminal Procedure each of them was specifically questioned about the making and signing of the confessional statements. They denied making and signing of such statements whereas their defence throughout had been that their signatures were forcibly obtained on the said statements. There is not even a whisper in their statements u/s 313 Code of Criminal Procedure to suggest that these confessional statements were obtained forcibly. The defence plea, therefore, is a belated afterthought. In view of the evidence of the Respondent regarding making and signing of statements Exts. PW-5/C, PW-5/E and PW-5/F by the accused persons, these statements cannot be termed as extracted confessions, therefore, are admissible in evidence.
45. Accused Gupt Ram (since deceased) had vide Ext. PW-5/C admitted clearly that he had been dealing in the sale of Charas for the last 25 years and on 12.10.1999 he had kept the Charas in the residence of the accused Ranjit Lal and Laxmi and the Charas was so kept with a view to sell it during Dussehra.
46. Accused Ranjit Lal has vide Ext. PW-5/E clearly admitted that Charas was recovered from his house on 12.10.1999 which was brought there by Gupt Ram who deals in Charas. Though he has further stated that he had nothing to do with the recovered Charas and being in service is away from such business yet recovery of Charas from his house particularly from the room occupied by him and its having been kept there by Gupt Ram which fact was within his knowledge are admitted by him which is confession of incriminating facts so admitted.
47. Accused Laxmi Devi vide statement Ext. PW-5/F has admitted recovery of 10 kgs. of Charas from the room occupied by Gupt Ram and that of 5 kgs. of Charas from the room occupied by her and accused Ranjit Lal and that she had the knowledge that her father Gupt Ram had kept the Charas there. This statement is confession of the incriminated facts so admitted.
48. It may be pointed out that each of the accused admits in their confessional statements that they were made aware of the legal implications regarding use of their statements against them and their right of taking legal assistance and that they had made such statements of their own will and without any pressure. Therefore, these confessional statements, which have been recorded without any delay are proved to have been voluntarily made and are not only admissible evidence but formidable evidence capable of forming basis for conviction.
49.The above view is fully supportable on the basis of the ratio in M. Prabhu Lal''s case (supra) wherein the Apex Court while dealing with the evidentiary value of such confessions, has held as under:�
5. It has been established that the Customs Office was about 20 km. from the place where the truck and the car were apprehended. Having regard to the large quantity of the heroin, the said vehicles with Accuseds 2, 3 and 6 were brought to the Customs Office. Further, accuseds 1 and 2 did not know Tamil. A Hindi-knowing officer had to be arranged. There was, under the circumstances no delay in recording the statements of the Appellants. Further, it is also to be borne in mind that the Appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge u/s 313 of the Code of Criminal Procedure that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be involuntary. The statements were voluntarily made and can, thus, be made the basis of the Appellants'' conviction.
50. Deceased Gupt Ram in his confessional statement Ext. PW-5/C has clearly and unambiguously admitted the possession of the recovered Charas. It is further evident from the confessional statements of Ranjit Lal and Laxmi respectively Exts. PW-5/E and PW-5/F that they were fully aware of the Charas kept in their house/room. At the time of search they were in the room from which 5 kgs. of Charas was recovered and they knew that the Charas was in their room. Their knowledge about the Charas in their room and their occupation of the room simply means that they were in possession of the Charas moreso in view of the evidence on record that the 5 kgs. Charas was recovered from the room in their occupation.
51.The view hereinabove expressed is fully supportable in view of the ratio laid down in Madan Lal and Anr. v. State of H.P. 2003 SCC 1664 wherein the Hon''ble Apex Court while dealing with the connotation and scope of expression "possession" and "conscious possession" held as follows:
19. Whether there was conscious possession has to be determined with reference to the factual backdrop. The facts which can be culled out from the evidence on record are that all the accused persons were travelling in a vehicle and as noted by the trial Court they were known to each other and it has not been explained or shown as to how they travelled together from the same destination in a vehicle which was not a public vehicle.
Section 20. makes possession of contraband articles an offence. Section 20 appears in Chapter IV of the Act which relates to offences for possession of such articles. It is submitted that in order to make the possession illicit, there must be a conscious possession.
21.It is highlighted that unless the possession was coupled with the requisite mental element i.e. conscious possession and not mere custody without awareness of the nature of such possession, Section 20 is not attracted.
22.The expression "possession" is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible, as was observed in Supdt. and Remembrancer of Legal Affairs, W.B. v. Anil Kumar Bhunja to work out a completely logical and precise definition of "possession" uniformally applicable to all situations in the context of all statutes.
23.The word "conscious" means awareness about a particular fact. It is a state of mind which is deliberate or intended.
24.As noted in Gunwantlal v. State of M.P., possession in a given case need not be physical possession but can be constructive, having power and control over the article in the case in question, while the person to whom physical possession is given holds it subject to that power or control.
25.The word "possession" means the legal right to possession (see: Heath v. Drown). In an interesting case it was observed that where a person keeps his fire-arm in his mother''s flat which is safer than his own home, he must be considered to be in possession of the same. (See: Sullivan v. Earl of Caithness).
26.Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of the presumption available in law. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles.
27.In the factual scenario of the present case, not only possession but conscious possession has been established. It has not been shown by the accused-Appellants that the possession was not conscious in the logical background of Sections 35 and 54 of the Act.
28.In fact, the evidence clearly establishes that they knew about the transportation of Charas, and each had a role in the transportation and possession with conscious knowledge of what they were doing. The accused Appellant Manjit Singh does not stand on a different footing merely because he was the driver of the vehicle. The logic applicable to other accused-Appellants also applies to Manjit Singh.
Ground (e) ;
52. It was next contended by the learned Counsel for the Appellant/ accused that the authorization Ext. PW-1/B is a fabricated piece of evidence as the same had been issued on the basis of information Ext. PW-1/A which does not disclose the name of Laxmi and there is no explanation as to how the name of Laxmi was introduced in Ext.PW-1/B when there was no information about her complicity in the crime.
53. The information Ext. PW-1/A which was laid before PW-1 by PW-8 refers to Gupt Ram, Ranjit Lal and his family. PW-8 admittedly did not disclose the name of Laxmi accused to PW-1 till they reached on the spot. There is no specific explanation as to under what circumstances name of accused Laxmi was introduced in authorization Ext.PW-1/B. However, it emerges from the evidence on record that information Ext. PW-1/A was laid before PW-1 at about 2/2.30 p.m. on 12.10.1999 as stated by PW-8 and not controverted by anything to the contrary on the record. The authorization Ext. PW-1/B was issued at about 5 p.m. on 12.10.1999 when the witnesses were also called to Shamshi, as stated by PW-1 who had come to Kullu on 10.10.1999 on receipt of some vague information about likely sales of contraband in Kullu Dussehra and had deputed his staff to verify the correctness of the information. This part of the evidence of PW-1 remains unchallenged. It was PW-1 alone who could explain as to how he named Laxmi Devi in Ext. PW-1/B, however, he was never called upon to do so by way of examination or cross-examination whereas he maintains that he issued Ext. PW-1/B on the basis of information made available to him. In all probabilities the information about the name of Laxmi was collected/received after receipt of information Ext. PW-1/A wherein the name of Laxmi was not mentioned and might have been verified after receipt of Ext. PW-1/A and before issue of Ext. PW-1/B.
54. It may also be pointed out here that as per information Ext. PW-1/A the information was that in case the premises named therein were searched, contraband or connected documents could be found. Therefore, as per the information, the action was to be taken regarding search of premises mentioned in Ext. PW-1/A and Ext. PW-1/B in fact authorizes the search of such premises. It is not in dispute that accused Laxmi at the relevant time was residing in the premises in question. Therefore, the non-mention of name of accused Laxmi in Ext. PW-1 /A and mention of her name in Ext. PW-1/B does not go to the root of the case, more particularly in view of the aforesaid confessional statements of the accused.
55. It was also contended for the Appellant/accused that the authorizing officer (PW-1) himself participated in the search, recovery and seizure, therefore, such search/recovery and seizure are rendered doubtful.
56. There is no dispute that PW-1 was present at the place of search and seizure and had also signed some of the documents relating to search and seizure. There is neither evidence nor suggestions to PW-1 that he himself conducted the search and seizure and it was not conducted by PW-8 as is the evidence of PW-1, PW-5 and PW-8. The mere presence of PW-1 on the spot and witnessing a part of the proceedings, while the search etc. was conducted by PW-8 does not in any manner effect the credibility of the search and seizure. On the contrary, presence of PW-1 a responsible officer of the Respondent against whom there is no allegation of ill will against the accused lends credibility to the search and seizure effected by PW-8.
57. In view of the statements of PW-1, PW-8 and PW-5 who at one stage was declared hostile but in his evidence as a whole supported the prosecution version of search and recovery and the confessional statements of the accused the version of the prosecution about the search and seizure cannot be doubted. Minor contradictions in the evidence of witnesses in this regard may be due to lapse of time and individual perceptions which do not go to the root of the case.
58. It was further contended for the Appellant/accused that there is no cogent and reliable evidence to link the samples with the bulk case property and to prove that the case property at different stages remained in safe custody. It was also submitted that it is case of the prosecution vide seizure Ext. PW-1/C that Charas recovered from both the searched rooms was mixed and made into three packs of 5 kgs. each and samples were drawn from each pack whereas as per the statements of the material witnesses samples from the Charas recovered from each room were separately drawn before making the same into parcels, therefore, there is no evidence to show that representative sample of Charas recovered from each room were separately drawn.
59. There is variation in the contents of Ext. PW-1/C and statements of P Ws regarding the manner in which the samples were drawn. According to the identical version of PW-1, PW-5 and PW-8, two samples were drawn from the pack of 5 kgs. of Charas which was recovered from the room occupied by accused Ranjit Lal and Laxmi and 10 kgs. Charas which was recovered from the room occupied by Gupt Ram was made into two parcels each of 5 kgs. and then two samples each were drawn from each pack. However, as per the contents of Ext. PW-l/C the Charas recovered from both the rooms was mixed and thereafter three packs each of 5 kgs. were prepared and two samples each were thereafter drawn from each of the pack. The witnesses were not confronted by the accused with the contents of Ext. PW-1/C to the extent those vary from their version nor the prosecution sought any explanation to reconcile the variation to find out as to which one of the two versions was correct. It was, owever, suggested by the accused to PW-5 that the Charas recovered from both the rooms was mixed but the suggestion has been denied by the witness.
60. In the ordinary course the aforesaid identical version of the witnesses on oath must prevail on the contents of Ext. PW-5/C in the absence of seeking explanation from them by confronting them with the relevant contents to clarify the variation. Even if it is assumed that Charas recovered from each room was mixed before drawing the sample, the prosecution case cannot fail. None of the two quantities of Charas recovered from each room was so small that either of it would loose its representation when samples are taken from the mixed Charas. In view of the quantity of the recovered Charas if the Charas was first mixed then divided into three parts and samples taken thereafter that will not render the six samples drawn from the whole lot as non-representative of the Charas recovered from each room. It is implicit in the suggestion put to PW-5 by the accused that Charas was recovered from each room. Lastly the confessional statements of the accused persons also deprive them from drawing any benefit out of the alleged lapse.
61. As per the memo Ext. PW-1/C after separating the sampels, the bulk Charas and samples were marked and sealed with seal No. 6 of NCB after affixing slips signed inter alia by the accused persons on each parcel in a manner that the packet could not be opened without breaking the seals and seal impressions were taken on Ext. PW-1/C also. The seal after use was handed over to PW-1. These contents of Ext. PW-1/C are duly supported by the evidence of PW-1, PW-5 and PW-8. It is stated by PW-1 that after completion of the formalities regarding seizure, the I.O. (PW-8) handed over the case property to him which he kept under lock and key and thereafter it was taken to Chandigarh where it was deposited in Customs Godown vide receipt Ext. PW-1/K whereas three samples were sent to CRCL New Delhi through Malkiat Singh under covering letter Ext. PW-1/D alongwith form Ext. PW-1/E. Malkiat Singh TW-4) has corroborated the statement of PW-1 regarding handing over of three sealed samples to him alongwith an envelope containing Exts. PW-l/D and PW-1/E for delivery in the Central Revenue Control Laboratory which he deposited in the said Laboratory against receipt Ext. PW-1/H. He has further stated that the samples remained intact and untampered in his custody and he delivered them in the laboratory on 15.10.1999. As per the contents of the receipt Ext. PW-1/H the samples marked X-l, Y-l and Z-l were received in the said laboratory on 15.10.1999 which were sealed with seal No. 6 of the NCB each having four seal impressions which were intact and tallied with facsimile on test memo. It is case of the prosecution and emerges from evidence that the case property seized on 12.10.1999 was handed over by PW-8 to PW-1 on 13.10.1999 and three samples were entrusted to PW-4 on 14.10.1999 who deposited them in the Laboratory on 15.10.1999 in proper sealed conditions and the bulk case property was taken to Chandigarh where it was deposited in the Custom''s Godown on 17.10.1999 vide receipt Ext. PW-l/K contents whereof show that the case property so deposited was sealed with the seal NCB-6.
62. The case property was produced in the Court at the time of recording the evidence of PW-1 and PW-8. As per the observations of the Court, the property so produced was sealed and seals were intact. The witnesses identified it as recovered case property/retained samples thereof. Nothing appears to have been pointed out for the accused about the condition of the case property so produced which may be suggestive of any tampering therewith. The evidence discussed hereinabove forms a complete link evidence and rules out any tampering with the samples and the bulk case property.
63. It was submitted for the accused that PW-1 after having received the case property sealed it on 14/15.10.1999 and the seal used for sealing the case property remained with him and in between was used for sealing case property in another case.
64. The submissions, however, does not persuade us to suspect tampering with the case property. The seal used for sealing the case property by PW-8 was handed over to PW-1 after the process of sealing was completed by PW-8. No doubt, the seal so used was used for sealing the case property of another case. The evidence of PW-1 in this regard is that after use by PW-8, the seal was handed over to him and on the same night it was taken by another I.O. to seal the case property of other case and after use was returned to him. There is no dispute that this case and Anr. case in which the seal was used were investigated by two different officials and that too in the immediate presence of PW-1. PW-8 did not get possession of the seal after he had handed it over to PW-1 after use, therefore, there was no occasion for PW-8 to use the seal for tampering with the case property.
65. It is not in dispute that the case property was deposited with PW-1 on 13.10.1999 and he sealed the container of the sealed case property, i.e. the ''trunk'' in which it was kept either on 14.10.1999 or 15.10.1999. Be it stated that the case property stood sealed by PW-8 on the spot. Non-sealing of the trunk in which it was kept by PW-1 immediately will not make any difference unless there is something to suggest that during the period trunk remained unsealed with PW-1 anyone had the occasion to tamper with the sealed case property in possession of PW-1 who himself being a responsible officer had no reason to falsely implicate the accused. Therefore, the submission made for the accused that there is no evidence to prove that the case property remained in safe custody and there is no link evidence to connect the samples and the bulk case property is not sustainable.
Ground (f):66. It was further contended for the Appellant/accused that it is case of the prosecution that on search of the room occupied by Gupt Ram 10 kgs. of Charas was recovered whereas on search of the room occupied by accused Ranjit Lal and Laxmi 5 kgs. of Charas was recovered. However, in the charge framed against accused Gupt Ram he is alleged to be in conscious and exclusive possession of 5 kgs. of Charas whereas in the charge framed against Ranjit Lal and Laxmi they are alleged to be in conscious and exclusive possession of 10 kgs. of Charas. Thus, the charges were not framed in conformity with the case of the prosecution and were defective and misleading resulting in prejudice to the accused persons, therefore, the impugned conviction and sentence are vitiated.
67. Section 464 of the Code of Criminal Procedure which deals with the effect of omission to frame or absence of or error in charge reads as under:
464. Effect of omission to frame, or absence of, or error in, charge.�(1) No finding sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
(2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may,�
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction.
68. It is clear on a bare reading of the aforesaid provisions that mere error, omission or irregularity in the charge will not invalidate the findings, sentence or order of a court of competent jurisdiction unless it is shown that such error, omission or irregularity had caused prejudice to the convicted person. Even vagueness in the charge will not render the trial illegal in the absence of prejudice to the accused. In case the charge was fully understood by the accused and they never complained at any stage about their having not understood as to what for they were being tried, the findings, sentence or order will not be rendered illegal. It is only in such circumstances where the charge framed was such which created confusion and bewilderness in the mind of the accused to understand correctly as to what for he was being tried which resulted in prejudice to the accused in defending him that such findings, sentence or order will be invalid.
69. In
14. The counsel next submitted that the charge levelled against the Appellant was different from the one for which he has been convicted. In any event the charge framed, according to the counsel, was vague and it has caused him prejudice in his defence. Here again, we are unable to agree. In the complaint all the relevant facts were stated quite clearly and it was emphasised that the Appellant had been found in possession of 16 pieces of gold with foreign markings ingeniously concealed inside long tabular pouches, in turn hidden inside a pillow case. He was stated to be guilty inter alia of offences punishable under Rule 126-P(2). The second charge framed by the Court was as follows:
That you on or about the 16th November, 1963 at about 12.45 hours at H.A.L. Aerodrome, Bangalore, alighted from the plane No. 105 which arrived from Bombay and when you and your articles were searched, you were found in possession of 16 pieces of gold each bearing markings as to its foreign origin and purity weighing 10 tolas each, having illegally imported into India in contravention of prohibition imposed by the Ministry of Finance Notification No. 1211 F1 /48, dated 25th August, 1948 and without permit issued by the Gold Control Authorities as required under Rule 126-H (d) under the Defence of India Amendment Rules., 1963 and thereby committed an offence under Rule 126-P(2) read with 126-I (10) of the Defence of India Amendment Rules, 1963 relating to Gold Control and within my cognizance. The Appellant never complained that this charge was vague or outside the complaint. Indeed in his statement in Court the Appellant has admitted all the relevant facts alleged by the prosecution. The facts alleged and proved clearly bring the Appellant''s case within the mischief of Rules 126-H(2)(d) and 126-P(2), Rule 126-H (2)(d) has already been reproduced earlier. Under Rule 126-P (2)(ii) whoever has in his possession or under his control any quantity of gold in contravention of any provision of Part XII-A is punishable with imprisonment for a term of not less than six months and not more than two years and also with fine. All the relevant salient facts alleged by the prosecution having been admitted by the Appellant there can hardly be any question of prejudice having been caused to him by the wide language of the complaint and the charge, assuming the language to be wide. This argument is accordingly replied.
70. In
9. Learned Advocate appearing for the Appellant contends before us, as he did before the High Court, that the charges against A1 were extremely vague and prevented him from putting up his defence properly and meeting the charges and that such defect was an illegality which vitiated the whole trial. There can be no doubt that the charges as framed were vague in that they did not specify the manner and mode in which the cheating had been done. The charges undoubtedly should have been more explicit and should have set out the particulars of his acts or conduct which were being relied on as having induced P.W. 1 to part with the two cheques (Exs. N and T). Learned Attorney-General appearing for the State does not seek to justify the vagueness of the charges but supports the decision of the High Court that the defect in the charges amounts to an irregularity which has not materially prejudiced the Appellant. We find ourselves in agreement with the High Court.
It will be recalled that the charges related only to two incidents that took place on two specific dates. The evidence of P.W. 1 began on 4.1.1950. M.A. Thomas (P.W. 2) was examined on 10.1.1950. The two clerks (P.W. 4 and P.W. 5) were examined on the 18th and 19th January, 1950. The Diwan (P.W. 6) also gave his evidence on 19.1.1950. The Assistant Supply Officer (P.W. 10) deposed on the 21st January, 1950 and the Food Minister (P.W. 14) was examined on the 6th March, 1950. The evidence of these witnesses gave all the particulars and details of the charges levelled against the Appellant. The charges were formally framed on 13.6.1950 and the Appellant was examined under that Section of Cochin Penal Code which corresponds to Section 342 of the Indian Penal Code. On 14.6.1950 the Appellant was further examined and on being asked whether he wished to further cross-examine any of the prosecution witnesses he desired to cross-examine, amongst others P.W. 1 and P.W. 10. After such further cross-examination the Appellant was again asked if he wished to say anything regarding the evidence of P.W. 1 and P.W. 10. He made some statement and also said that he would file a written statement which does not appear from the Paper Book to have been done by him. He said he was filing a petition praying for examination of Sri Jose Kallivayalil and of no other defence witness. It does not appear from the record that he examined any defence witness. He was finally examined on 17.8.1950. In the premises it cannot reasonably be maintained that he did not know the particulars and details of the charges brought against him. Indeed, the particulars and details were all on the record before the charges were framed and A1 could not have been misled in any way. The fact that he had no difficulty in knowing what case he had to meet is fully proved by the fact that no grievance was made by him or his Advocate on this score before the Special Tribunal. In our judgment the High Court was clearly right in holding that the irregularity complained of did not cause any real prejudice to the Appellant and did not vitiate the trial.71. In
16. In the present case, though the name of the accused has been wrongly mentioned in the charge as "Gorkhu Ram", such charge was duly explained to the accused. He very well knew the case against him i.e. what he was being tried for. He was given a fair and full chance of defending himself. Nothing has come on the record to suggest that due to the error in the charge any prejudice has been caused to the accused or that there has been failure of justice. The error in charge, on the facts of the present case, has no effect on the trial or the conviction/sentence of the accused.
72. In
7. The argument of Mr. Sethi, counsel for the Appellant, is that since the defence, according to him, was not aware of what P Ws 19, 20, 23 and 24 were to depose at the time the trial in the Sessions Court began, the principle that the accused must be made aware beforehand of the case which he has to meet has been violated. There is no provision in the Code of Criminal Procedure that copies of statements recorded u/s 161 in a connected case should be made available to the defence though there is nothing prohibiting it and in the instant case it would have been better to have done so especially since the statements of these witnesses were not recorded by the Sub Inspector of Muktsar apart from what they had stated before the Sub Inspector of Jalalabad, copies of which could have been given to the defence. The Judicial Committee in Pulukuri Kotayya v. Emperor ILR (1948) Mad. 1 : AIR 1947 PC 67 (A), has laid down that if a trial is conducted substantially in the manner prescribed by the Code of Criminal Procedure but some irregularity occur in the course of such conduct, the irregularity can be cured u/s 537 of the Code and nonetheless so because the irregularity involves a breach of one of the very comprehensive provisions of the Code. Such being the case, where it was established that the statements of the witnesses recorded by a Police Officer during the course of the investigation were made available only at a late stage of the trial, no prejudice was caused to the accused even though the defence did not get them earlier. Their Lordships referred to two earlier cases, namely, ''Bali Ram v. Emperor ILR (1945) Nag. 151; AIR 1945 Nag. 1
(B) and
73. In the case in hand, the accused persons were admittedly given copies of the complaint and all other connected documents making it amply clear that accused Gupt Ram was found in possession of 10 kgs. of Charas and the other two accused jointly in possession of 5 kgs. of Charas. They have denied the respective charges framed against them and knew throughout about the respective weight of the Charas recovered from respective possession of the accused persons and never pointed out at the trial that the wrong quantity of Charas alleged to be in their respective possession had been mentioned in the charge which has led them to a situation where they were not in a position to understand what the charges against them are. The grounds for trial of the accused persons existed for being found in possession of Charas. Wrong mentioning of the recovered quantity of Charas in the charge which does not involve the question of the quantity being commercial or non commercial had, therefore, not caused any prejudice to the accused nor it is shown that mentioning of the wrong quantity of Charas recovered from each set of the accused persons has in any way whatsoever mislead them in their defence. Thus, the accused having not been prejudiced in any manner by mentioning wrong quantity of Charas in the charges framed against them, the defect is a mere irregularity which will not vitiate the findings, sentence and order recorded by the trial Court. The order of conviction and sentence awarded to the accused persons, therefore, cannot be held illegal because of the aforesaid defect in the charge. This contention, therefore, is not sustainable.
74. In view of the above findings, the grounds raised for assailing the impugned conviction and sentence being unsustainable have no adverse bearing on the impugned conviction and sentence. In view of the statements of PW-1, PW-5 and PW-8 read with seizure memo Ext. PW-1/C and the confessional statements Exts. PW-5/C, PW-5/E and PW-5/F, the recovery of the contraband from the possession of the deceased Gupt Ram and the accused persons is fully and firmly proved. On analysis of the samples of the recovered contraband, it was found Charas vide report Ext. PW-1/J, therefore, the learned trial Judge has rightly convicted the accused persons.75. In so far as the sentence awarded to the accused persons is concerned, it is minimum prescribed under the law and in view of the quantity of the contraband recovered appears to be on the lower side. However, the adequacy of the sentence has not been questioned /assailed in accordance with law.
76. For the reasons and conclusions stated hereinabove, the impugned conviction and sentence do not call for any interference by this Court.
77. As a result, this appeal is dismissed.
