SABBIR S/o GULAM MOHAMMAD v. STATE OF M. P. — 1997 DIGILAW 11 (MP)

S. B. SAKRIKAR, J. ( 1 ) THIS criminal appeal is directed against the judgment of conviction and order of sentence dated 13-12-1995 rendered by XI Additional Sessions Judge, Indore (Spl. Judge) in Spl. Case No. 19/95 thereby convicting the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, 'the Act') and sentencing the appellant to undergo Rigorous Imprisonment for ten yearsand to pay fine of Rs. 1,00,000/- in default of payment of fine to suffer further Rigorous Imprisonment for two years. ( 2 ) THE case of the prosecution, in short is that on 3rd February, 1995, B. S. Dwivedi (PW 6) Sub-Inspector, Incharge of Police Chouki, Lasudiya got telephonic message that the appellant was going towards Dewas Naka on his scooter bearing Registration No. MP/09-9220 to sell opium. The message was reduced in writing in the Rojnamcha and the copy of the information was sent to the higher authorities. Therefore, raid party was formed and visited the place of incident. Two independent witnesses Rajendra Kumar (PW 4); Ramsingh (PW 5) and Munna Singh (PW 2) Head Constable were included in the raid party. At about 3. 20 p. m. the appellant was seen coming on his scooter and he was intercepted and was apprised of his right as regards formalities pertaining to search, by the raid party. The appellant, however, consented and agreed that search could be taken by B. S. Dwivedi (PW 6 ). Accordingly, on his personal search, two packets of opium were seized from the pocket of his pant. The scooter of the appellant was also searched and five packets of contraband article were seized from the dickey of the scooter. On weighment, the weight of the contraband article was found to be 340 Gms. Two samples of 40 gms were drawn and sealed. The appellant was arrested. The seized property and the appellant were brought to the Police Chouky, Lasudiya. The F. I. R. was registered at Police Chouky, Lasudiya at 0/95 lateron, the crime was registered against the appellant at Police Station M. I. G. Indore vide Crime No. 90/95. One sealed packet was sent for chemical examination to F. S. L. Sagar. P/18 is the report received from F. S. L Sagar. This report confirmed that article was opium and contained Morphine 3. 20 per cent. On completion of investigation, the challan was filed. One sealed packet was sent for chemical examination to F. S. L. Sagar. P/18 is the report received from F. S. L Sagar. This report confirmed that article was opium and contained Morphine 3. 20 per cent. On completion of investigation, the challan was filed. The appellant was charged under Section 8/18 of the Act to which he pleaded not guilty. On evaluation of the evidence, the trial Court convicted and sentenced the appellant as indicated above. ( 3 ) I have heard Shri B. A. Nigam learned counsel for the appellant and Shri Abdul Salim learned Panel Lawyer for the respondent/state. ( 4 ) LEARNED counsel for the appellant contended that the judgment of the trial Court is assailed on the grounds that, it is not proved that mandatory provisions of Section 50 of the Act is complied with. The Prosecution witness (PW 3) Shyamlal, a witness for search panchnama, Ex. P/1 does not support the prosecution case, an independent witnesses of memo of search and seizure, Exh. P/4 and P/5 as also Exh. P/2 and P/3 with regard to obtaining consent of the appellant for search and seizure, do not support the case of the prosecution. The weighment of the seized article on the spot, is also not proved from the statement of Manoj (PW 1 ). Learned counsel for the appellant also submitted that there is no evidence on record to prove that Provisions of Section 55 of the Act with regard to taking of the charge of the seized article by the police officer of the police station is complied with. In the aforesaid circumstances and the law applicable to the present case, charges levelled against the appellant are not proved beyond doubt and the appellant deserves acquittal. The counsel for the appellant relied on the following decisions. (i) AIR 1994 SC 1872 : (1994 Cri LJ 3702), State of Punjab v. Balbir Singh. (ii) AIR 1995 SC 244 , Ali Mustaffa v. State of Kerala. (iii) (1994) 3 Crimes 513 (MP), Bherudas v. Sessions Judge. ( 5 ) IN oppugnation, learned Panel Lawyear appearing for the respondent/state supported the judgment of the trial Court and submitted that from the evidence of the prosecution it is proved beyond reasonable doubt that on the date of the incident, on being searched the appellant was found possessed of 340 Gms. ( 5 ) IN oppugnation, learned Panel Lawyear appearing for the respondent/state supported the judgment of the trial Court and submitted that from the evidence of the prosecution it is proved beyond reasonable doubt that on the date of the incident, on being searched the appellant was found possessed of 340 Gms. opium, in contravention of the Provisions of the Act and the trial Court has rightly convicted and sentenced that appellant for the offence charged against him. ( 6 ) I have carefully considered the submissions advanced by the learned counsel appearing for the parties and perused the record. As regards first objection raised on behalf of the appellant with regard to the non-compliance of mandatory provisions of Section 50 of the Act, the statement of B. S. Dwivedi (PW 6) Investigating Officer, is material for the purpose. Dwivedi (PW 6) was the leader of the trap party, in his statement in paragraph 2, he categorically stated that at the time of incident, when the trap party was waiting for arrival of the suspected accused/appellant at the relevant time, when the appellant wasintercepted, he was asked for his personal search. On being asked for his consent with regard to his personal search in the presence of a Magistrate or a gazetted officer, the appellant gave his consent that the appellant is ready to give his search to the police officer concerned. Exh. P/2 is the notice given to the appellant for the option with regard to search and Exh. P/3 is the consent given by the appellant for his search by the police officer. Exh. P/2 and P/3 bear the signatures of the appellant as also the panch witness, Rajendra Kumar (PW 4) and Ramlal (PW 5 ). The statements of B. S. Dwivedi (PW 6) is fully corroborated by the statement of Munnasingh (PW 2) Head Constable. It is submitted on behalf of the appellant that independent witnesses Rajendra Kumar (PW 4) and Ramsingh (PW 5) did not support the case of the prosecution. Learned counsel invited my attention to the language used in Exh. The statements of B. S. Dwivedi (PW 6) is fully corroborated by the statement of Munnasingh (PW 2) Head Constable. It is submitted on behalf of the appellant that independent witnesses Rajendra Kumar (PW 4) and Ramsingh (PW 5) did not support the case of the prosecution. Learned counsel invited my attention to the language used in Exh. P/2 for obtaining consent of the appellant for his search wherein at the first place it has been mentioned that By asking the appellant in the aforesaid manner, it cannot be said that he was being apprised of his right to give the search before the Magistrate or a gazetted officer and that the provisions of Section 50 are properly complied with. ( 7 ) ON perusal of the statement of the independent witnesses Rajendra Kumar (PW 4) and Ramsingh (PW 5) it is found that these witnesses turned hostile and did not support the prosecution case but the statements of Dwivedi (PW 6) Investigating Officer, Munnasingh (PW 2) head constable cannot be disbelieved or under estimated merely because they are the employees of the Police Department. In case of Hazarilal v. State, AIR 1980 SC 873 : (1980 Cri LJ 564) the law laid down by the Apex Court is relevant. The Apex Court on the point of appreciation of evidence of the police officer in criminal case has held as under :-"where the evidence of the Police Officer who laid the trap is found entirely trustworthy, there is no need to seek any corroboration. There is no rule of prudence, which has crystallized into a rule of law, nor indeed any rule of prudence, which requires that the evidence of such officers should be treated on the same footing as evidence of accomplices and there should be insistence on corroboration. In the facts and circumstances of a particular case a Court may be disinclined to act upon the evidence of such an officer without corroboration but equally, in the fact and circumstances of another case the Court may unhesitatingly accept the evidence of such an officer. It is all matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. "7a. It is all matter of appreciation of evidence and on such matters there can be no hard and fast rule, nor can there be any precedential guidance. "7a. In view of the aforesaid position of law on examining the statement of B. S. Dwivedi (PW 6) and Munnasingh (PW 2) I do not find any reason to disbelieve the statements of the aforesaid witnesses in absence of the corroboration of the independent witnesses. The statements of the aforesaid prosecution witnesses are not suffering from any infirmity and as such the statements cannot be disbelieved on the point of compliance of Section 50 of the Act, even in absence of independent corroboration. It is no doubt true that in view of the law laid down by the Apex Court in Balbir Singh's case (1994 Cri LJ 3702) (SC) (supra) and Ali Mustaffa's case ( AIR 1995 SC 244 ) (supra) the compliance of Section 50 in the present case is mandatory as the case involved personal search of the appellant. ( 8 ) FROM the statement of the aforesaid witnesses B. S. Dwivedi (PW 6) and Munnasingh (PW 2) it is amply proved that before taking the search of the appellant, he was given an opportunity to give his consent as to whether he wants to make his search in presence of the Magistrate or a gazetted officer or willing to give his search by the police. I do not agree with the contention of the learned counsel for the appellant that only for obtaining the consent, Ex. P/2 that if the name of the police officer is mentioned at the first place, the consent obtained, contravenes the provision of Section 50 of the Act. ( 9 ) AS indicated above, the statement of Sub-Inspector B. S. Dwivedi (PW 6) and Munnasingh (PW 2) are found trustworthy and as such I do not find that the trial Court has committed any error in recording the finding on the point that on the date of incident during the search, 2 packets of opium were seized from the pocket of the pant ofthe appellant and five packets from the dickey of his scooter bearing registration No. MP/09-9220. The finding of the trial Court on the point of search and seizure are well founded and fully corroborated and requires no interference in this appeal. The finding of the trial Court on the point of search and seizure are well founded and fully corroborated and requires no interference in this appeal. ( 10 ) THE other objections raised on behalf of the appellant is that weighment of the seized articles on the spot is not proved from the statement of the independent witnesses Manoj (PW 1 ). On perusal of the statement of this witness it is found that there is some infirmity found in the statement of the witness on the point of place and time of weighment of the seized article but as already mentioned above and in view of the unimpeachable testimony of the investigating officer B. S. Dwivedi (PW 6) and the statement of Munnasingh (PW 2), it cannot be said that weighment of the seized article, was not done on the spot immediately after the seizure of the contraband article. The appellant/accused is not entitled to get any advantage of it. ( 11 ) THE objection with regard to non-compliance of Section 55 of the Act is also raised. From the perusal of the statement of B. S. Dwivedi (PW 6), the Investigating Officer, it emerged that the witness in his statement does not say anything about compliance of Section 55 of the Act. Section 55 of the Act casts a duty on the officer conducting a search and seizure to deposit seized and sealed article, immediately after the seizure to the officer-in-charge of the nearest police station and the Police Officer of the Police Station shall take charge of the seized article and keep it in the safe custody pending the orders of the Magistrate, but as laid down in Balbirsingh's case (1994 Cri LJ 3702) (SC) (supra) the non-compliance of Section 55 and other Provisions of Act which deal with the steps to be taken by the Officer, after making arrest or seizure are by itself not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and as such failure will have a bearing on the appreciation of the evidence regarding the arrest or seizure as well as on the merits of the case. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and as such failure will have a bearing on the appreciation of the evidence regarding the arrest or seizure as well as on the merits of the case. In the present case, nothing is said with regard to whether any prejudice has been caused to the appellant/accused due to non-compliance of the provisions of Section 55 of the Act. ( 12 ) IN the facts and circumstances of the case and the law applicable, I am of the opinion that even in absence of the evidence with regard to non-compliance of Section 55 of the Act, the accused/appellant is not entitled to get any advantage in the case at hand. ( 13 ) AS a result of the above discussions, I do not find that the trial Court has committed any error of fact or law in convicting the accused/appellant and sentencing him for the charges levelled against him under Section 8/18 of the Act. The judgment of the trial Court is well founded and based on proper appreciation of the evidence and the application of law and as such requires no interference in this appeal. ( 14 ) CONSEQUENTLY, this appeal fails and the same is accordingly dismissed. The judgment and the order of sentence rendered by the trial Court is affirmed. The appellant is on bail. His bail bonds stand cancelled. He is directed to surrender before the CJM Indore to serve out remaining part of the sentence as ordered by the trial Court and confirmed in this appeal. Appeal dismissed. .