JUDGMENT 1. - The appellants are aggrieved by the judgment dated 14.06.2008 passed by the Special Judge, NDPS Cases, Bhilwara, whereby the learned Judge has convicted Ram Gopal for offence under Section 8/29 of the Narcotic Drugs And Psychotropic Substances Act ('the Act', for short) and sentenced him to ten years of rigorous imprisonment and has imposed a fine of Rs. 1,00,000/- and has further directed him to undergo one and a half years of simple imprisonment in default thereof. 2. The learned Judge has also convicted Sohan Bai @ Sunita, appellant No.2, for offence under Section 8/18 of the Act; he has sentenced her to ten years of rigorous imprisonment and imposed a fine of Rs. 1,00,000/- and further directed her to undergo a term of one and a half years of simple imprisonment in default thereof. The brief facts of the case are that on 11.07.2001, M.C. Vijay (P.W.3) left with a police party for checking the transportation of contraband drugs on the Ajmer Bye-pass on the Devli road. The police party intercepted the vehicles near Santosh Bhojnalay on Devli Road, near the Ajmer Bye-pass. Around 10:40 PM, a bus, belonging to Rajasthan State Road Transport Corporation, bearing Registration No.RJ-20C-7197, was intercepted. P.C. Meena (P.W.2), Sub-Inspector introduced himself to the bus driver, Ramswaroop (P.W.1) and Jaikaran. He informed them that the police would like to check the passengers sitting in the bus. Niranjan Guru (P.W.4), Inspector and P.C. Meena (P.W.2), after giving their personal search, entered the bus. Since they found a lady and a man sitting on seat Nos. 19 & 20, behaving suspiciously, P.C. Meena (P.W.2) asked them to get down from the bus. The lady was also accompanied with a four years old child. They were first asked their names. They told their names as Ramgopal and Sunita. She claimed that child was hers. Prior to carrying out the personal search, P.C. Meena (P.W.2) gave them a notice under Section 50 of the Act and informed them about the twin options under Section 50 of the Act. They also informed them that M.C. Vijay (P.W.3) is a gazetted officer. Both the appellants gave their consent to be searched before M.C. Vijay (P.W.3) Initially, Ram Gopal was searched. However, no contraband drugs were discovered from his personal search. Subsequently, Sajjan Devi (P.W.5) took Sunita to a room of Santosh Bhojanalay and searched her. They also informed them that M.C. Vijay (P.W.3) is a gazetted officer. Both the appellants gave their consent to be searched before M.C. Vijay (P.W.3) Initially, Ram Gopal was searched. However, no contraband drugs were discovered from his personal search. Subsequently, Sajjan Devi (P.W.5) took Sunita to a room of Santosh Bhojanalay and searched her. She discovered that Sunita had tied a piece of cloth on her private parts, which was carrying a polythene packet. Thereupon, Sajjan Devi (P.W.5) came out of the room and informed M.C. Vijay (P.W.3) about the said discovery. According to his instructions, she went inside and recovered the loincloth. When the loincloth was searched, it was discovered that it contains a polythene packet containing a liquid. The liquid was discovered to be opium. The packet contained 2.550 Kgs., of opium. Out of the said packet, two samples of 25 gms., were taken and were sealed. Subsequently, after completion of the investigation, the police submitted a charge-sheet against Ram Gopal and Sunita for offences under Sectiions 8/18 and 8/29 of the Act. 3. In order to support its case, the prosecution examined eight witnesses and submitted twenty documents. However, the defence did not examine any witnesses, but did submit few documents. After going through the oral and documentary evidence, vide judgment dated 14.06.2002, the learned Judge convicted and sentenced the appellants as aforementioned. Hence, this appeal before this court. 4. Mr. Mridul Jain, the learned counsel for the appellants, has raised the following contentions before this Court : firstly, Niranjan Guru (P.W.4), Inspector, and P.C. Meena (P.W.2) entered the bus and directly went to seat Nos.19 & 20; they asked the appellants to get down from the bus. But they did not ask any other passenger and did not search any other passenger. This clearly proves that they had prior information that the appellants were carrying contraband drugs. Despite the fact they had prior information, they did not follow the procedure under Section 42 of the Act. Hence, the mandatory provisions of Section 42 of the Act have not been followed, in the present case. Thus, the trial stands vitiated. 5. Secondly, prior to the search of Sunita, sajjan Devi (P.W.5) was not searched by any one. Therefore, the procedure for carrying out the search was not followed. Hence, the probability that the contraband drugs were actually planted cannot be ruled out. Thus, the trial stands vitiated. 5. Secondly, prior to the search of Sunita, sajjan Devi (P.W.5) was not searched by any one. Therefore, the procedure for carrying out the search was not followed. Hence, the probability that the contraband drugs were actually planted cannot be ruled out. Moreover Sajjan Devi (P.W.5) has given a self-contradictory statement before the court. In her examination-in-chief, she claims that when she had searched Sunita, she had found that she was carrying contraband drugs in a loincloth tied to her private parts. She further claimed that she was instructed by M.C. Vijay (P.W.3) to recover the same. She went inside the room and a packet was recovered from the body of Sunita. But in her cross-examination, she claimed that by the time she went back into the room, she found that the loincloth was lying on the floor. Thus, there is contradiction whether the loincloth was recovered from Sunita's body or was found lying on the floor. 6. Thirdly, the prosecution has produced contrary evidence with regard to the safe custody of the sample. P.C. Meena (P.W.2), in his examination-in-chief, claims that under instruction of Dharamveer Kathpaliya (P.W.8), he had handed over the samples of drugs to A.K. Baretha (P.W.7). However, A.K. Baretha (P.W.7) specifically denies the fact that he was ever given the contraband drugs and the samples by P.C. Meena (P.W.2). In fact, it is M.C. Vijay (P.W.3) who claims that he had given the samples to A.K. Baretha (P.W.7) as he was the Malkhana In-charge on the relevant date. Moreover, M.C. Vijay (P.W.3) cliams to have deposited the samples in the Malkhana at 7:30 AM on 12.07.2001. However, according to Dharamveer Kathpaliya (P.W.8), P.C. Meena (P.W.2) had brought the samples to his office at 9:30 AM. In case the samples were already deposited by M.C. Vijay at 7:30 AM on 12.07.2001, the prosecution has failed to explain as to how the samples were deposited by P.C. Meena (P.W.2) at 9:30 AM. Further, the Malkhana Register (Ex.P/14) is rather vague. According to the Malakhan Register (Ex.P/14), the time shown for depositing of the samples is 7:30. However, it does not mention whether it is 7:30 AM or 7:30 PM. According to the learned counsel, it creates a great doubt about the safe custody of the samples. 7. Further, the Malkhana Register (Ex.P/14) is rather vague. According to the Malakhan Register (Ex.P/14), the time shown for depositing of the samples is 7:30. However, it does not mention whether it is 7:30 AM or 7:30 PM. According to the learned counsel, it creates a great doubt about the safe custody of the samples. 7. Fourthly, the doubt is further fortified by the fact that according to the recovery proceedings memo (Ex.P/25), two samples of 25 gms., each were taken. Yet according to the FSL report (Ex.P/24), the FSL received only 22 gms., of opium as the sample. Thus, there is a difference of 3 gms., between the drugs recovered from the appellants and the samples received by the FSL. 8. Fifthly, as far as Ramgopal, appellant No.1, is concerned the learned counsel has contended that there is no evidence to show that he had abetted the transportation of contraband drugs by Sunita. In the night of 11.07.2001, two statements were recorded one of Sunita (Ex.P/10) at 1:10 AM, and another of Ramgopal (Ex.P/11) at 1:40 AM. These statements were recorded after midnight and taken on record on 12.07.2001. According to the arrest memo of the appellants, while Ram Gopal was arrested at 2:15 AM (Ex.P/8), Sunita, 2:20 AM (Ex.P/5). Thus, both the statements (Ex.P/10 and P/11) were recorded prior to their arrest. However, there is no indication given in these statements that they were recorded under Section 67 of the Act. Moreover, after their arrest, another set of statements were recorded of Sunita i.e. Ex.P/16 which was recorded under Section 67 of the Act. Moreover, the statement of Ram Gopal was also recorded under Section 67 of the Act. But the same was never exhibited by the prosecution. According to the learned counsel, the statements of Ram Gopal recorded prior to his arrest (Ex.P/11) cannot be read against him as it was part of interrogation. Moreover, the said statement was not recorded under Section 67 of the Act. Therefore, the said statement cannot be read against him. Moreover, Ram Gopal had retracted both his statements by filing an application on 20th October, 2001. Hence, the said statement looses its significance. Thus, the learned Judge has erred in relying upon Ram Gopal's statement (Ex- P/11) in order to convict Ram Gopal for offence under Section 8/29 of the Act. 9. Moreover, Ram Gopal had retracted both his statements by filing an application on 20th October, 2001. Hence, the said statement looses its significance. Thus, the learned Judge has erred in relying upon Ram Gopal's statement (Ex- P/11) in order to convict Ram Gopal for offence under Section 8/29 of the Act. 9. Lastly, Sunita has already completed her sentence of ten years, she is presently undergoing the sentence for default, as she has failed to deposit the fine amount. Since she has completed her substantive sentence, the learned counsel has prayed that her sentence should be reduced to as undergone and she should not be kept behind the bars for default of payment of fine. 10. On the other hand, Mr. N.K. Rai, the learned Special Public Prosecutor for the UOI, has contended that the police did not have any prior information that the appellants were carrying any contraband drugs. When Niranjan Guru (P.W.4) and P.C. Meena (P.W.2) entered the bus, they found the conduct of the appellants rather suspicious. Therefore, their suspicion was aroused about them. Hence, they were justified in not only asking the appellants to get down from the bus, but also in searching them. Since there was no prior information received by the police, the police was not required to follow the mandatory provisions of Section 42 of the Act. Moreover, since the search was carried out in a public vehicle and that, too, at a public place, Section 42 of the Act is inapplicable in the present case. In fact, the case would be covered by Section 43 of the Act. 11. Secondly, both according to the recovery proceedings memo (Ex.P/25) and according to Sajjan Devi (P.W.5) before searching Sunita, Sajjan Devi (P.W.5) was also searched by Sunita. Therefore, the procedure of search, specified for a police officer, was duly followed in the present case. Furthermore, whether the drug was recovered from the loincloth worn by Sunita, or whether it was lying on the floor would not make much of difference to the prosecution case. For, what is material is that contraband drug was discovered from the body of Sunita. Therefore, even if there is slight contradiction in the testimony of Sajjan Devi (P.W.5), it would not be fatal to the prosecution case. 12. For, what is material is that contraband drug was discovered from the body of Sunita. Therefore, even if there is slight contradiction in the testimony of Sajjan Devi (P.W.5), it would not be fatal to the prosecution case. 12. Thirdly, the contradiction pointed out in the testimony of P.C. Meena (P.W.2) and A.K. Baretha (P.W.7) on the one hand, and in the testimony of M.C. Vijay (P.W.3) and Dharamveer Kathpaliya (P.W.8) on the other hand, again would not cast doubt on the story of the prosecution. For, it is not the case of the defence that the samples have been tampered with. According to the case of the prosecution, the samples were duly sealed at the place of the occurrence, were duly handed over in a sealed condition and were kept in a sealed condition in the Malkhana. In fact, according to the FSL report, they received the samples in a sealed condition. Furthermore, the slight difference in the weight of the sample would not be fatal to the case of the prosecution. After all, a slight difference in the weight of the samples from 25 gms., to 22 gms., can easily be explained. For, opium, in liquid form, tends to evaporate. Therefore, the slight difference would not point to the fact that the samples have been tampered with. 13. Fourthly, Section 67 of the Act permits the police to record the statements of anyone familiar with the facts of the case. Although Exhibit-P/11 does not mention that the statement is being recorded under Section 67 of the Act, yet it would not be fatal to the prosecution case. Since in Exhibit-P/11, Ram Gopal has clearly admitted that one Shyam Lal resides in Khati Mohalla. Shyam Lal told him that he has three kilograms of opium. They had decided that the drugs should be carried by Sunita in a loincloth. Therefore, it was obvious that he had committed commission of crime by abetting Sunita for transporting the contraband drugs. Therefore, according to the learned counsel, Ram Gopal had been convicted rightly for offence under Section 8/29 of the Act. Moreover, Ram Gopal has not retracted his statement at the very first instance particularly when he was produced before the Magistrate soon after he was arrested by the police. In fact, he retracted the statement after almost a lapse of three months. Hence, the retraction of the statement is an afterthought. Moreover, Ram Gopal has not retracted his statement at the very first instance particularly when he was produced before the Magistrate soon after he was arrested by the police. In fact, he retracted the statement after almost a lapse of three months. Hence, the retraction of the statement is an afterthought. Such a retraction would not dilute the veracity of the statement (Ex-P/11). Hence, the learned Judge was certainly justified in relying upon the statement (Ex.-P/11) in order to convict him for the aforementioned offence. 14. Heard the learned counsel for the parties, perused the record and examined the impugned judgment. 15. The first contention raised by the learned counsel is fanciful. For, according to Niranjan Guru (P.W.4), it is only due to the suspicion aroused in the mind of the police officer that the appellants were asked to get down from the bus. It is common knowledge that the police officers are trained to read the body language of the persons in order to decide whether a person is acting suspiciously, unusually, or abnormally. Therefore, it is not something unique that Niranjan Guru (P.W.4) and P.C. Meena (P.W.2) found both the appellants acting suspiciously in an unusual manner. Having their suspicion aroused, they were justified in asking the appellants to get down from the bus. Moreover, there is no requirement of law that while searching the appellants, the police is equally required to search the remaining passengers of the bus. Hence, merely because the police asked the appellants to get down from the bus, it cannot be inferred, legally or logically, that the police had a prior information. Hence, the contention raised by the learned counsel that Section 42 of the Act has not been followed is baseless. 16. In the case of Ravindran @ John v. Superintendent of Customs [ (2007) 6 SCC 410 ], the Honble Supreme court has opined that where a seizure and arrest is made at a public place, then Section 42 of the Act is inapplicable. In such a case, Section 43 of the Act would be applicable. In the present case, since the search was made from a public vehicle in a public place, obviously requirements of Section 42 of the Act are inapplicable to the present case. In such a case, Section 43 of the Act would be applicable. In the present case, since the search was made from a public vehicle in a public place, obviously requirements of Section 42 of the Act are inapplicable to the present case. Hence, the first contention, raised by the learned counsel for the appellants that the provisions of Section 42 of the Act were required to be fulfilled is without merit. 17. The second contention raised by the learned counsel that Sajjan Devi (P.W.5) did not have herself searched prior to searching of Sunita is equally unacceptable. For the said contention, it is contrary to the record. According to the recovery proceeding memo (Ex.P/25) prior to searching Sunita, Sajjan Devi (P.W.5) had gotten herself searched by Sunita. Moreover, Sajjan Devi (P.W.5), in her examination-in-chief, has clearly stated that prior to searching Sunita, she subjected herself to a search by Sunita. Therefore, the contention raised by the learned counsel that Sajjan Devi was not searched prior to searching Sunita is belied by the record. Furthermore, there is no reason to believe that Sajjan Devi (P.W.5) has planted the drugs in the room. For, the appellant No.2, Sunita, in her statement recorded under Section 313 Cr.P.C., has not pleaded that any animosity existed between her and Sajjan Devi (P.W.5) which prompted Sajjan Devi (P.W.5) to plant the drugs in the room. 18. As far as the contention with regard to the selfcontradictory statements of Sajjan Devi (P.W.5) is concerned, with regard to the recovery of drugs, again the contention is untenable. According to Sajjan Devi (P.W.5) while carrying out the personal search, she discovered loincloth worn by Sunita, which contained some liquid. Therefore, she came out and informed M.C. Vijay (P.W.3) about the said discovery. She was directed by him to recover the loincloth. According to her, when the loincloth was opened by the police, opium was discovered in a polythene bag. However, in her cross-examination, she has admitted that by the time she went inside the room, she found the loincloth on the floor. She picked up the loincloth and brought it to M.C. Vijay (P.W.3). The loincloth contained a polythene bag in which opium was discovered. It is immaterial whether the loincloth was taken off by Sajjan Devi (P.W.5), or was taken off by Sunita. She picked up the loincloth and brought it to M.C. Vijay (P.W.3). The loincloth contained a polythene bag in which opium was discovered. It is immaterial whether the loincloth was taken off by Sajjan Devi (P.W.5), or was taken off by Sunita. It is equally immaterial whether the loincloth was lying on the floor and picked up therefrom or it was handed over by Sunita to Sajjan Devi (P.W.5). What is material is that the loincloth contained a polythene bag in which opium was discovered. Therefore, such minor contradiction neither dilutes the veracity of Sajjan Devis testimony, nor is fatal to the prosecution case. Therefore, the said contention raised by the learned counsel for the appellants is bereft of any merit. 19. Although the learned counsel for the appellants has contended that there is some contradictions in the statements of P.C. Meena (P.W.2) and A.K. Baretha (P.W.7), on the one hand, and in the testimony of M.C. Vijay (P.W.3) and Dharamveer Kathpaliya (P.W.8), on the other hand, even this contention is unacceptable. The Courts have to see whether the samples were in the safe custody of the police and whether it reached the FSL safely or not. M.C. Vijay (P.W.3), the incharge of the Malkhana, clearly states that the remaining drugs and the samples were given to him by P.C. Meena (P.W.2) as he was incharge of the Malkhana on the relevant date. 20. Moreover, merely because Mr. Vijay (P.W.3) claims that the samples were given to him at 7:30 AM and Dharamveer Kathpaliya (P.W.8) claims that the samples were brought to his office at 9:30 AM, again, would not dilute the prosecution case. According to M.C. Vijay (P.W.3), the samples were given to him at 7:30 AM. Moreover, according to the malkhana register, the samples were deposited at 7:30. Thus, the malkhana register corroborates the testimony of M.C. Vijay (P.W.3). Most importantly, according to the FSL report (Ex.P/24), the samples were received by it in a sealed condition. Moreover, according to the FSL, the substance received by it contained morphine. Admittedly, opium, in its liquid form, is subject to evaporation and reduction in weight. This fact has been noticed by the courts in catena of cases. Therefore, the difference in weight between 25 gms., taken out at the place of recovery, and 22 gms., received by the FSL, is immaterial. Admittedly, opium, in its liquid form, is subject to evaporation and reduction in weight. This fact has been noticed by the courts in catena of cases. Therefore, the difference in weight between 25 gms., taken out at the place of recovery, and 22 gms., received by the FSL, is immaterial. In catena of cases, the Honble Supreme court has opined that ordinarily the sample, taken at the place of recovery, is weighed by hand-handled balance, whereas the samples weighed at the FSL is weighed on electronic balance. Thus, the latter weighing tends to be more accurate than the former one. Thus, the slight difference in weight would not lead to the inference that the samples have been tempered with. Therefore, the mere difference of 3 gms., in the samples would not cast doubt on the prosecution story.Section 67 of the Act is as under:- 67. Power to call for information, etc., Any Officer referred to in section 42 who is authorised in this behalf by the Central Government or a State Government may, during the course of any enquiry in connection with the contravention of any provisions of this Act- (a) call for information from any person for the purpose of satisfying himself whether there has been any contravention of the provisions of this Act or any rule or order made thereunder; (b) require any person to produce or deliver any document or thing useful or relevant to the enquiry; (c) examine any person acquainted with the fact and circumstances of the case. 21. It is presumption of law that an act done by the public officer is done in accordance with law. Moreover, even if the specific section has not been mentioned, it would not dilute the authenticity of a statement. According to the learned counsel, Ram Gopal statement (Exhibit-17 P/11) was recorded prior to his arrest. Even if Section 67 of the Act has not been mentioned in the said statement, the only power the police has for recording a statement of a person is under Section 67 of the Act. For, Section 67 of the Act clearly states that the Investigating Officer can record the statement of a person familiar with the facts of the case. Therefore, the Investigating Officer was justified in recording the statements of Ram Gopal prior to his arrest. For, Section 67 of the Act clearly states that the Investigating Officer can record the statement of a person familiar with the facts of the case. Therefore, the Investigating Officer was justified in recording the statements of Ram Gopal prior to his arrest. Moreover, since the statement had been recorded prior to his arrest, the same is not hit by Sections 24, 25 and 26 of the Evidence Act. Hence, the contention raised by the learned counsel that the said statement cannot be read against Ram Gopal is without any legal foundation. 22. The learned counsel has contended that since the statement was retracted by Ram Gopal, it should not be read against him. However, the said statement was not retracted at the first instance. In case the said statement was given under duress, Ram Gopal should have mentioned this fact to the Magistrate when he was produced before the Magistrate within twenty-four hours of his arrest. However, Ram Gopal has not retracted this statement till three months later. Thus, the retraction is an after-thought. Hence, the learned Judge was certainly justified in relying upon the statement of Ram Gopal. 23. In this statement (Ex.P.11), Ram Gopal claims that Shyam Lal lives in Khati Mohalla. He told him that he has three kilograms of opium which needs to be transported to Ambala and to be given to a man, Bittu. He had also claimed that he had introduced him to Bittu. After Ram Gopal agreed to carry this opium, Shyam Lal introduced him to Sunita. Shyam Lal and Ram Gopal decided that the opium should be carried by Sunita. In order to ensure that suspicion is not aroused, they decided that a child should be carried by Sunita. They also decided that the drugs shall be transported by Sunita in a loincloth tied to her private parts. He further claimed that on 11.07.2001, Sunita came to his house in the afternoon. Ram Gopal further claimed that he gave a loincloth and a packet of opium to Sunita and told her to tie it on her private parts, so that the same could not be noticed by anyone. He further claimed that he and Sunita travelled together from Garod to Kota, and from Kota they bought two tickets in order to travel to Jaipur. He further admitted that the drugs recovered from Sunita actually belong to him. He further claimed that he and Sunita travelled together from Garod to Kota, and from Kota they bought two tickets in order to travel to Jaipur. He further admitted that the drugs recovered from Sunita actually belong to him. Thus, there was sufficient evidence to show the fact that Ram Gopal had abetted Sunita in transporting the drugs. Hence, the learned Judge was certainly justified in convicting Ram Gopal for offence under Section 8/29 of the Act. 24. Moreover, the learned counsel for the appellants has prayed that Sunita should not be asked to undergo the sentence for non-payment of fine. But the learned counsel has not been able to show any special reason for the same. Therefore, this court is not inclined to reduce her sentence to as undergone. 25. For the reasons stated above, this appeal is devoid of any merit; it is, hereby dismissed. Since the appellant No.1, Ram Gopal, is on bail, the same shall be forfeited; the police is directed to take him into custody for him to serve the remaining part of his sentence as recorded by the learned trial court vide judgment dated 14.06.2008. Sunita is directed to serve out the remaining part of her sentence. *******