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2004 DIGILAW 343 (MP)

Prabhulal v. Union of India

2004-04-06

A.K.AWASTHY

body2004
JUDGMENT 1. Appellants-accused have filed this appeal under section 374 CrPC, against the judgment and order dated 23.7.2001, in Special Case No. 3912000, passed by Shri A.K. Pateria, learned Special Judge NDPS Act, Indore, whereby accused Prabhulal has been convicted under section 8 read with section 18 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act'), while accused Shivlal has been convicted under section 29 of the NDPS Act and each of them were sentenced to undergo RI for 10 years' RI and a fine of Rs. 1 lac and in default of payment of fine to undergo further RI for 3 years, each. Accused Prabhulal has also filed a separate appeal (Criminal Appeal No. 980/01) against the same judgment and order. 2. The prosecution case is that on 19.6.2000 at about 8:45 a.m. Sub-Inspector Girvarpuri (PW 5) in the Office of the Central Bureau of Narcotics received the secret information from the approver that the accused persons are travelling in a bus from Ujjain to Baroda with the opium and that bus reaches at Indore at about 11 :00 a.m. Girvarpuri (PW 5) recorded the information in Panchnama Ex. P-8 and it was conveyed to the higher authority/Superintendent, CBN, Ratan Godiya. That the Superintendent Ratan Godiya disclosed about the secret information to Inspector, CBN, Murlidhan Kani (PW 6) and directed him to conduct further proceedings. Thereafter, in the leadership of Inspector Murlidhan Kani (PW 6), the raiding party of the officers of CBN was formed and they reached Gangwal Bus Stand at about 10:00 a.m. 3. That at about 10:30 a.m., the Ujjain-Baroda bus reached Gangwal Bus Stand and two persons came out from the bus and they disclosed their names as Prabhulal and Shivlal. That suspect Prabhulal and Shivlal were conveyed about the doubt by the officers of the CBN and they were also apprised that they have right of their search before Gazetted Officer or the Magistrate. That both the accused persons have consented their search by Inspector Murlidhan Kani and they signed the consent memo Ex. P-1. That in the search of the bag carried by accused Prabhulal, there was polythene packet having opium weighing 2 kgs. That two samples of 25 gms. each were taken and they were sealed. That in the personal search of accused Shivlal, only 22 tickets were recovered. P-1. That in the search of the bag carried by accused Prabhulal, there was polythene packet having opium weighing 2 kgs. That two samples of 25 gms. each were taken and they were sealed. That in the personal search of accused Shivlal, only 22 tickets were recovered. That accused Shivlal has admitted that he was travelling with accused Prabhulal and they. were taking the opium to Baroda. That accused Prabhulal and Shivlal were arrested vide memos Ex. P-6 and 7 respectively. The statements of accused Prabhulal (Ex. P-13) and accused Shivlal (Ex. P-14) were recorded and both the statements were signed by them. 4. That, thereafter, the accused were brought to the office of the CBN, where the FIR (Ex. P-15) was drawn and the 'Muddemal' was handed over to the Superintendent for the safe custody. That one of the sample packets was handed over to Constable Yashwant Singh (PW 4) to give it to the Government Opium and Alkaloid Works, Neemuch along with letter (Ex. P-16). That the information under section 57 of the NDPS Act was given to the higher authorities and that the report of the Government Opium Factory, Neemuch (Ex. P-12) indicated that the contents of the sample were opium. After recording the statements of the witnesses and completing the investigation, charge-sheet was filed on 14.9.2000 in the Court of Special Judge, Indore, against the accused Prabhulal under section 8/18 and against accused Shivlal under' section 29 of the NDPS Act. 5. Both the accused persons have abjured the guilt and they have denied the incriminating evidence under section 313 of CrPC. The defence of the accused is that they are innocent and have been falsely implicated by the police. The accused persons have not led any evidence in their defence. 6. The prosecution has examined panch witnesses Naresh (PW 1) and Girish (PW 2). Chemical Examiner J.M. Pamecha (PW 3), Constable Yashwant Singh (PW 4), Sub Inspector Girvarpuri (PW 5) and Inspector Murlidhan Kani (PW 6). The learned trial Court has held that accused Prabhulal was found in possession of the opium and accused Shivlal has entered into conspiracy with accused Prabhulal to transport the opium and both the accused were convicted and sentenced as above. 7. The learned trial Court has held that accused Prabhulal was found in possession of the opium and accused Shivlal has entered into conspiracy with accused Prabhulal to transport the opium and both the accused were convicted and sentenced as above. 7. Appellant Prabhulal has assailed his conviction on the ground that the uncorroborated testimony of Inspector Murlidhan Kani (PW 6) was wrongly believed by the learned trial Court and the statutory provisions of sections 42, 50, 52, 55 and 57 of the NDPS Act were not followed and the learned trial Court has erred in convicting accused Prabhulal. It is further contended that the learned trial Court has erred in holding that accused Shivlal has given the statement under section 67 of the NDPS Act and that the statement were given voluntarily and, as such, the learned trial Court has erred in convicting accused Shivlal. 8. Murlidhan Kani (PW 6) has stated that he was directed to conduct the raid in persuance of the secret information against the accused and in his leadership the members of the CBN reached Gangwal Bus Stand, where accused Prabhulal and Shivlal got down from the bus going from Ujjain to Baroda and it was informed to them that it is suspected that they are carrying the opium. It is further deposed that both the accused persons were apprised of their right of' search before the Magistrate or the Gazetted Officer and both of them gave their consent for search by him and consent memo Ex. P-1 was signed by the accused persons. It is further deposed that in the search of the bag of accused Prabhulal 2.300 kgs. of opium was found and two samples of 25 gms. each were extracted and sealed. Murlidhan Kani (PW 6) has stated that both the accused have admitted that they are carrying the opium to Baroda. That the opium was sealed and the accused were taken to the Office of CBN where FIR (Ex. P-15) was registered. 9. 'Panch' witnesses Naresh (PW 1) and Girish (PW 2) have stated that the officer of the CBN has not searched the accused before them and their signatures were taken on Ex. P-1 to P-8 by the police in the office of the Narcotics Bureau. Naresh (PW 1) and Girish (PW 2) have not assigned any reason of signing the papers (Ex. P-1 to P-8 by the police in the office of the Narcotics Bureau. Naresh (PW 1) and Girish (PW 2) have not assigned any reason of signing the papers (Ex. P-1 to P-8) in the Office of the CBN. These witnesses have contradicted their statements to the Investigating Officer, wherein they have stated that the seizure and memo from the accused were signed by them. From the statements of Naresh (PW 1) and Girish (PW 2) it appears that they are suppressing the truth and they have turned hostile. Learned counsel for the appellants has argued that the uncorroborated statement of Murlidhan Kani (PW 6) should not be believed in view of the fact that the independant witnesses Naresh (PW 1) and Girish (PW 2) have turned hostile. 10. It is laid down in section 134 of the Evidence Act that no particular number of witness shall be required for the proof of any fact. The evidence has to be weighed and not to be counted and the Court is concern with the quality and not the quantity of the evidence. It is observed in case of P.P. Fatima v. State of Kerala [2004 SCC (Cri.) 1] that even if the 'Panch' witnesses have turned hostile the conviction can be based on the statement of the seizing authority if Court is satisfied from the material on record that the seizure was genuinely made. The learned counsel for the appellants has failed to point out any infirmity or contradiction or improbability in the statement of Murlidhan Kani (PW 6) to create doubt in his statement. From the statement of Murlidhan Kani it is clear that he has followed the prescribed procedure meticuluously. 11. The Seizing Officer has called the 'Panch' witnesses Naresh (PW 1) and Girish (PW 2), who are from the locality and they are not the thumb witnesses of the police or the CBN. Seizing Officer has no reason to cook up false case against the accused persons. Accused persons have not led any defence nor given any reason of their false implication by Inspector Murlidhan Kani (PW 6). The statements of Murlidhan Kani (PW 6) are strenthened and the truthfulness of his version is fortified by the statements of the accused persons under section 67 of the NDPS Act. 12. Murlidhan Kani (PW 6) has stated that accused Prabhulal has given statement Ex. The statements of Murlidhan Kani (PW 6) are strenthened and the truthfulness of his version is fortified by the statements of the accused persons under section 67 of the NDPS Act. 12. Murlidhan Kani (PW 6) has stated that accused Prabhulal has given statement Ex. P-13 and accused Shivlal has given statement Ex.P-14 and these statements were signed by the accused persons. The accused persons have given statements just after the seizure of the opium and before their arrest by the officer of the CBN. There is nothing on record to show that the statements given by the accused - persons were under pressure or inducement. Accused persons have not retracted their statements Ex. P-13 and Ex. P-14. The accused persons were taken to the Magistrate after their arrest and they have not made complaint before the Magistrate or to any authority that their signatures on their statements Ex. P-13 and P-14 were taken by force or inducement. 13. It is held in case of Mulkraj v. State of U.P. [ AIR 1975 SC 902 ] that if the extra judicial confession is made voluntarily then it can be relied upon for convicting the accused. In case of A.K. Mehboob v. Inteligent Officer Narcotics Control Bureau [2002 SCC (Cri.) 1935] the apex Court has observed that the statements made to the empowered officer under section 67 of the NDPS Act if genuine and reliable can be acted upon to convict the accused. In the statement made by accused Prabhulal he has stated that accused Shivlal was with him and carrying the opium to Baroda and accused Shivlal has also stated in his statement that he 'was carrying the opium in the company of accused Prabhulal. The statement of accused Prabhulal (Ex. P-13) can be used against I accused Shivlal and similarly the statement of accused Shivlal will be used against accused Prabhulal. In view of the statements of accused Prabhulal and Shivlal inculpating themselves and the co-accused, it is proved beyond reasonable doubt that accused Prabhulal was carrying the opium and accused Shivlal hatched the conspiracy to carry the opium with accused Prabhulal. Section 30 of the Evidence Act clearly, stipulates that the confessional statement of the accused can be used against the co-accused. 14. Section 30 of the Evidence Act clearly, stipulates that the confessional statement of the accused can be used against the co-accused. 14. Sub Inspector CBN Girvarpuri (PW 5) has stated that on 19.6.2000 he has received the information at about 8:45 a.m. from the approver against the accused persons and he has prepared the 'Panchnama' Ex. P-8 and sent the information to the superior officer Ratan Godiya. Murlidhan Kani (PW 6) has also stated that Superintendent Ratan Godiya directed him to conduct the raid and told him about the secret information Ex. P-8. Consequently, it is proved that the requirement of section 42 of the NDPS Act was duly and promptly complied with. The contention of tile learned counsel for the appellants about non-compliance of the provision of section 50 of the NDPS Act is irrelevant, because it is time and again held and repeated in case of Rajendra and others v. State of M.P. [2004 (1) EFR 404 (SC)] that in case of personal search section 50 of the NDPS applies I and it is not applied in the search from the bag, vehicle, house etc. 15. Accused were immediately taken to the higher authority in the CBN Office where the FIR was drawn and the Seizing Officer has deposited the 'Muddemal' in the safe custody and sent the information of the seizure and arrest to the superior officer. Yashwant Singh (PW 4) has stated that he was posted as constable in the CBN Indore. On 19.6.2000 at about 10 p.m. he proceeded with the sample packet to Neemuch and on next day on 20.6.2000 he has given the sample packet in the office of the Government Opium and Alkaloid Factory, Neemuch. From the receipt Ex. P-11 it is clear that the sample packet was delivered just within 12 hours of the seizure to the Government Opium Factory, Neemuch. Consequently, it is proved that the requirement of sections 52, 55 and 57 of the NDPS Act were complied with and the sample packet was sent in a sealed condition to the Opium Factory, Neemuch. Ex. P-12 is the report of the Chemical Examiner. Chemical Examiner J.M. Pamecha (PW 3) has testified that the sample packet was received from the Superintendent CBN Indore on 20.6.2000 and the seal on the sample was compared with the specimen seal and it was found properly sealed. Ex. P-12 is the report of the Chemical Examiner. Chemical Examiner J.M. Pamecha (PW 3) has testified that the sample packet was received from the Superintendent CBN Indore on 20.6.2000 and the seal on the sample was compared with the specimen seal and it was found properly sealed. J.M. Pamecha (PW 3) has further stated that after the Chemical test the contents were found opium and Ex. P-12 is the report signed by him and his assistant S.K. Shukla. There is nothing in the cross examination of J.M. Pamecha (PW 3) to show that the sample was not duly sealed. Consequently, from the statement of the Constable Yashwant Singh (PW 4) and Seizing Officer (PW 6) and J.M. Pamecha (PW 3) it is clear that the sample packet was kept and sent duly sealed for the chemical examination. In the wake of the aforesaid circumstances the learned trial Court has rightly held that accused Prabhulal guilty under section 8/18 of the NDPS Act and accused Shivlal for the offence under section 29 of the NDPS Act and has rightly awarded the minimum prescribed sentence. 16. The contention of the learned counsel for the appellant is that the accused persons were in possession of less than commercial quantity of opium and, as such, the sentence passed against the accused should be reduced is not tenable. The relexation in sentence as per amending Act No.9 of 2001 in section 41 of the NDPS Act is not applicable in pending appeals. In case of Bashir @ N.P. Bashir v. State of Kerala [2004 AIR SCW 932] the apex Court has held that the proviso in section 41 (1) of the NDPS Act of down grading the harshness in punishment is not applicable in pending appeals is quite valid. 17. The appeal is devoid of merit and is hereby dismissed. A copy of this judgment be kept in the file of Criminal Appeal No. 980/01. ............................