JUDGMENT 1. - These three appeals/leave to appeal relate to First Information Report dated 11.11.1997 in respect of recovery of opium weighing 28 kg. from the residential house of accused Hanuman Sahai, Girdhari Lal and Ashok Kumar, therefore, they are being disposed of by this common judgment. 2. A secret information was received by PW-9 Bhishm Dev, Inspector, Office of Superintendent, Narcotics Department, on 10.11.1997 to the effect that Hanuman Sahai Yadav, Girdhari Lal Yadav, both sons of Sohan Lal Yadav, are in possession of 30 kg. opium in their residential house and they are likely to sell it by evening of 11th November, 1997. In case a raid is conducted at their house in the morning of 11th November, 1997, then the contraband can be recovered. The said information was reduced in writing on 10th November, 1997 and a copy thereof was forwarded to the superior officer. A team was constituted under the leadership of Shri R.B. Verma, Superintendent, Central Narcotics Bureau, Jaipur. Two independent witnesses were called and on the basis of secret information the residential house of Hanuman Sahai and Girdhari Lal was raided by the raiding party. The accused Ashok Kumar Yadav son of Hanuman Sahai Yadav opened the door. The raiding party asked Ashok about Hanuman Sahai and Girdhari Lal, but after understanding the situation that a raid party has come to raid their house, both Hanuman Sahai and Girdhari Lal fled from the back door of the house. Thereafter a notice under Section 50 of the N.D.P.S. Act, 1985 was given to Ashok Kumar apprising him about his right to get the house searched either in presence of Magistrate or authorised Gazetted Officer. Ashok Kumar gave a receipt in writing of having received notice and thereafter further gave his acceptance in writing that he is ready to give search of his house in presence of Shri R.B. Verma, Superintendent, a Gazetted Officer. Thereafter search was conducted and total 28 kg. opium was recovered vide recovery memo Exhibit P-2. The statement of Ashok Kumar was recorded under Section 67 of the N.D.RS. Act, 1985 at about 13.00 Hrs. Subsequently he was arrested. On the basis of his information, Suresh Kumar Yadav was also examined and his statement was recorded. The other accused persons Girdhari Lal and Hanuman Sahai could not be searched out and arrested at that time. The statement of Ashok Kumar was recorded under Section 67 of the N.D.RS. Act, 1985 at about 13.00 Hrs. Subsequently he was arrested. On the basis of his information, Suresh Kumar Yadav was also examined and his statement was recorded. The other accused persons Girdhari Lal and Hanuman Sahai could not be searched out and arrested at that time. Three samples of 24 gram, each were taken and sent for chemical examination. As per analysis report, dated 23rd December, 1997, all the three samples were found by qualitative and quantitative analysis to be opium within the meaning of Section 2(XV) of the N.D.P.S. Act, 1985 (for short, 'the Act'). Shri Bhishm Dev, Inspector, Central Narcotics Bureau, Jaipur, filed a criminal complaint against accused Ashok Kumar, Hanuman, Sahai, Girdhari Lal and Suresh Kumar under Section 8 read with Sections 18, 28 and 29 of the Act. The accused persons Girdhari Lal and Hanuman Sahai were declared absconded. Therefore, trial proceeded against accused Ashok Kumar and Suresh Kumar. The trial court framed charge against accused Ashok Kumar under Section 8/18 and against accused Suresh Kumar under Section 8 read with Sections 18, 28 and 29 of the Act. The accused persons denied the charge and claimed to be tried. The prosecution examined nine prosecution witnesses and produced documents Exhibit P-1 to Exhibit P-24. The statements of accused persons were recorded under Section 313 Cr.P.C. In defence, documents Exhibit D-1 to Exhibit D-10 were produced.The trial court, vide its judgment dated 5.9.1999 in Sessions Case No. 5/98, convicted the accused Ashok Kumar under Section 8/18 of the Act and sentenced him to ten years rigorous imprisonment and fine of Rs. 1,00,000/-; in default of payment of fine, to further undergo sentence of two years simple imprisonment. The accused Suresh Kumar Yadav was acquitted of the offence. Being aggrieved with the same, the accused Ashok Kumar has filed S B. Criminal Appeal No. 616/1999 before this Court and, the Department has filed S.B. Criminal Leave to Appeal No. 72/2000 against accused Suresh Kumar Yadav. 3. Accused persons Girdhari Lal and Hanuman Sahai surrendered themselves on 11.12.1999 and 22.9.2000 respectively, and thereafter two separate complaints were filed against both of them on 23.3.2000 and 16.12.2000, respectively. The complaints were registered as Case No. 8/2000 and 52/2000. 3. Accused persons Girdhari Lal and Hanuman Sahai surrendered themselves on 11.12.1999 and 22.9.2000 respectively, and thereafter two separate complaints were filed against both of them on 23.3.2000 and 16.12.2000, respectively. The complaints were registered as Case No. 8/2000 and 52/2000. Both complaints were related to one FIR, therefore, vide order dated 17.8.2002, the trial court passed an order for consolidation of both the cases. After completion of trial, the Special Judge, N.D.P.S. Cases, Jaipur, vide its judgment dated 4.11.2003, in Sessions Case No. 52/2000, convicted the accused persons Hanuman Sahai and Girdhari Lal under Section 8/18 and sentenced them to undergo rigorous imprisonment of ten years and a fine of Rs. 1,00,000/- each; in default of payment of fine, to further undergo simple imprisonment of two years. Being aggrieved with the same, the accused Hanuman Sahai and Girdhari Lal have preferred S.B. Criminal Appeal No. 1648/2003. 4. Although there were separate trial and there are two separate judgments, as referred above, but both appeals, one on behalf of Ashok Kumar and another on behalf of Hanuman Sahai and Girdhari Lal, and Criminal Leave to Appeal, filed by the Superintendent (Prevention), Central Bureau of Narcotics, Jaipur against acquittal of accused Suresh Kumar Yadav, all relate to one incident, as mentioned above, therefore, they were heard together and they are being decided by this common judgment. 5. Learned counsel for the accused persons contended that the trial court committed an illegality in convicting the accused persons whereas in the facts and circumstances of the present case the case was not proved against the accused persons beyond reasonable doubt.Shri Suresh Sahani, the learned counsel for accused appellants Hanuman Sahai and Girdhari Lal, contended that the important witnesses in the present case were withheld by the prosecution. There was no documentary evidence relating to ownership of the house of the accused. The copy of F.S.L. Report was not placed on record separately in subsequent separate trial against accused Hanuman Sahai and Girdhari Lal. No contraband was recovered from the possession of these accused persons. The statements of accused persons recorded under Section 67 of the Act are not admissible and cannot be used against them as they were recorded after their arrest. He also contended that the provisions of Section 42 of the Act have not been complied with as no reasons have been assigned for not obtaining the warrant for search. 6. The statements of accused persons recorded under Section 67 of the Act are not admissible and cannot be used against them as they were recorded after their arrest. He also contended that the provisions of Section 42 of the Act have not been complied with as no reasons have been assigned for not obtaining the warrant for search. 6. Shri Ganesh Meena, learned counsel for accused Ashok Kumar, contended that recovery of the contraband in the present case has not been proved as there were two independent witnesses to recovery memo, namely, PW-2 Laxmi Narain and PW-3 Shiv Dutt and both have not supported the recovery in the present case. He also contended that ownership of the house of the accused is not proved. The Sarpanch of the village was not examined to prove the ownership of the house of the accused persons. He also contended that FSL Report was not produced by the prosecution but it was exhibited by the defence in support of their defence to show the variance in respect of weigh of samples, therefore, he contended that the prosecution failed to prove the case against the accused beyond reasonable doubt and he is entitled to get the benefit of doubt. 7. Shri Tanveer Ahmed, holding the brief of Shri Bhanwar Bagri, the learned counsel for the Superintendent (Prevention), Central Bureau of Narcotics, opposed the appeal of accused Ahsok Kumar and contended that the judgment of the trial court is self speaking and based on oral and documentary evidence and the accused has rightly been convicted and sentenced. He also argued his leave to appeal filed against Suresh Kumar Yadav, who was acquitted by the trial court and contended that as sufficient evidence as available on the record to connect him with the crime and the trial court has committed an illegality in acquitting him. 8. Shri Sushil Sharma, learned counsel for the Union of India, opposed the appeal of accused Hanuman Sahai and Girdhari Lal, and contended that their conviction is based on evidence on the record and there is no perversity of illegality in the finding of the trial court. 9. I have considered the rival submissions and examined the impugned judgments as well as the record of the trial court in both the cases. 10. 9. I have considered the rival submissions and examined the impugned judgments as well as the record of the trial court in both the cases. 10. In Sessions Case No. 5/98 against accused Ashok Kumar the prosecution examined PW-9 Bhishm Dev, who supported the prosecution case, PW-4 Laxman Kataria, who conducted the recovery of contraband from the accused persons, was also examined. He proved the notice under Section 50 of the Act. The recovery of contraband was proved in the present case from the statement of PW-4 Laxman Kataria as well as other departmental witnesses. PW-2 Laxmi Narain Jat and PW-3 Shiv Dutt were witnesses to recovery memo and site plan, and notice also. Although their statements are contradictory to some extent in respect of recovery of the contraband but they have admitted their signature on all the exhibits including the recovery memo. Even if the statements of PW-2 Laxmi Narain Jat and PW-3 Shiv Dutt are not treated as sufficient to prove the recovery of contraband then still the recovery of contraband is proved from the statement of PW-4 Laxman Kataria, PW-5 Ramphal, PW-6 Bahadur Singh Meena, PW-7 Sumer Singh, PW-8 Parmanand Meena and PW-9 Bhishm Dev. The prosecution has produced copy of notice under Section 50 of the Act (Exhibit P-1), recovery memo of the contraband (Exhibit P-2), site plan (Exhibit P-3), seizure memo of seal used (Exhibit P-4), copy of FIR (Exhibit P-8) and statement of accused Ashok Kumar recorded under Section 67 of the Act (Exhibit P-11). So far as FSL Report is concerned the same is available on the record as Exhibit D-4. 11. Exhibit P-11, the statement of Ashok Kumar recorded under Section 67 of the Act, clearly shows that it was recorded on 11.11.1997 at 13.00 Hrs., therefore, it is clear that it was recorded before the arrest of the accused. In his statement he has categorically admitted that his father and uncle Hanuman Sahai and Girdhari Lal are doing the business of opium illegally; he also used to help them in their business. He has also narrated the examples of their trading with some persons. He also admitted that his father and uncle, Hanuman Sahai and Girdhari Lal, fled from the spot from the back door of the house on the date of raid of their residential house. He has also narrated the examples of their trading with some persons. He also admitted that his father and uncle, Hanuman Sahai and Girdhari Lal, fled from the spot from the back door of the house on the date of raid of their residential house. He also admitted the ownership of the accused Hanuman Sahai and Girdhari Lal of the house in dispute. The statement of accused Ashok Kumar (Exhibit P-11) is an important piece of evidence in the present case and it is sufficient to connect the accused persons Ashok Kumar, Girdhari Lal and Hanuman Sahai with the crime. But, apart from this statement, there are other oral and documentary evidence, which proved the case of the prosecution beyond reasonable doubt against accused Ashok Kumar, Girdhari Lal and Hanuman Sahai. 12. The copy of the statement of Ashok Kumar (Exhibit P- 11), in Sessions Case No. 5/98, was also placed on the record in Sessions Case No. 52/2000 against Hanuman Sahai and Girdhari Lal. The copy of the statement of Girdhari Lal was exhibited as Exhibit P-10 and the statement of accused Hanuman Sahai was also exhibited as Exhibit P-15 in Sessions Case No. 52/2000. So far as copy of FSL Report, dated 23.12.1997, is concerned, the same was available on the record as Exhibit D-4 in Sessions Case No. 5/98. After surrender of accused persons Girdhari Lal and Hanuman Sahai on different dates, two separate complaints were filed against them. The complaint against Girdhari Lal was registered as 8/2000 wherein a copy of F.S.L. report dated 23.12.1997 was placed on the record with the complaint. Both the complaints, against Girdhari Lal and Hanuman Sahai, were consolidated. Before proceeding with the trial against accused Hanuman Sahai and Girdhari Lal, the original record of Sessions Case No. 5/98 was summoned in Sessions Case No. 52/2000 as it appears from the order-sheet, dated 9.7.2003, in Sessions Case No. 52/2000, of the court of Special Judge, N.D.P.S. Cases, Jaipur. The identity of the opium is also proved from the statement of the accused recorded under Section 67 of the Act wherein it was admitted that the contraband recovered from the house, was opium. 13. The identity of the opium is also proved from the statement of the accused recorded under Section 67 of the Act wherein it was admitted that the contraband recovered from the house, was opium. 13. In both the cases the prosecution examined sufficient prosecution witnesses and withholding of some of the prosecution witnesses cannot be said to be fatal in the present case as contended by the learned counsel for accused Hanuman Sahai and Girdhari Lal. The identity of the contraband and ownership of the house of the accused, from where recovery of contraband was made, is also proved, as stated above. The fact that two persons who fled from the back door of the house on reaching raid party were accused persons Girdhari Lal and Hanuman Sahai, is proved from the statement of Ashok Kumar (Exhibit P-11) recorded under Section 67 of the Act, therefore, their identity is not in dispute or doubtful. The recovery of the contraband is proved as explained above from the statements of the prosecution witnesses. The FSL Report, dated 23.12.1997, clearly states that three sealed packets marked as A1, B1 and C1, were received intact. The case number was same. Therefore, it cannot be said that there was any inconsistency in the weight of the samples taken vide Exhibit P-2 and received by Laboratory for analysis so as to give any benefit of doubt to the accused persons. 14. The officers of the raiding party were fully competent, authorised and empowered to make search and, therefore, I do not find any contravention of Section 42 of the Act. There is sufficient compliance of Section 42 of the Act in the facts and circumstances of the present case. 15. The learned counsel for the appellants have referred some of the cases in support of their arguments, which were read in detail in the court itself, but the same were not helpful to them in the facts and circumstances of the present case, therefore, the same are not being referred here. 16. In the statement as well as arrest memo, the time has been mentioned, therefore, it is wrong on the part of the learned counsel for the accused Ashok Kumar that the statement of accused Ashok Kumar was recorded after his arrest and thus the same should not be read in evidence. 16. In the statement as well as arrest memo, the time has been mentioned, therefore, it is wrong on the part of the learned counsel for the accused Ashok Kumar that the statement of accused Ashok Kumar was recorded after his arrest and thus the same should not be read in evidence. I have considered both the judgments of the trial court in detail and I do not find any illegality or perversity therein. Looking to large quantity of opium, i.e., 28 kg., the present case cannot be said to be a case of planting. 17. So far as criminal leave to appeal filed by the Superintendent (Prevention), Central Bureau of Narcotics, Jaipur against accused Suresh Kumar Yadav is concerned, I find that sufficient link and cogent evidence was not available on the record against him and reasoning's given by the trial court for his acquittal is absolutely just and reasonable in the eyes of law and I am of the view that no interference is called for in the order of acquittal of Suresh Kumar Yadav. 18. In view of the above discussion I find that there is no force in any of the contentions of the learned counsel for the accused appellants and the learned trial court has rightly convicted and sentenced the accused appellants Ashok Kumar, Girdhari Lal and Hanuman Sahai, and rightly acquitted the accused Suresh Kumar. 19. Consequently the Appeal No. 616/1999, filed by Ashok Kumar, and the Appeal No 1648/2003, filed by Hanuman Sahai and Girdhari Lal, are dismissed. The Leave to Appeal No. 72/2000, filed by Superintendent (Prevention), Central Bureau of Narcotics, Jaipur, against accused Suresh Kumar Yadav, is also dismissed.Appeal dismissed. *******