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2016 DIGILAW 2072 (ALL)

Raj Kumar Bajpaee v. State of U. P.

2016-05-27

BALA KRISHNA NARAYANA

body2016
JUDGMENT Bala Krishna Narayana, J. – These three criminal appeals have been filed by the appellants Raj Kumar Bajpai, Anand Tiwari and Akhilesh Dixit against the judgment and order dated 17.02.2009 passed by Sessions Judge, Gorakhpur in Special Trial No. 64 of 2007, Union of India v. Raj Kumar Bajpai and two others under Sections 8, 20 of the NDPS Act, P.S. Pravartan Abhikaran DRI, District Gorakhpur by which the appellants were convicted under Sections 8, 20 of the NDPS Act and sentenced to 12 years R.I. and a fine of Rs. 1 lakh each and in default of payment of fine one year additional R.I., each. 2. Since all the three appeals arise out of the same incident and are directed against the same judgment and order, therefore they are being heard and decided together by a common judgment. 3. Briefly stated, facts of the case, as evident from the complaint filed by Rajeev Kumar Gupta, complainant, who was posted as Intelligence Officer, Directorate Revenue Intelligence, Gorakhpur at the relevant point of time, before the Sessions Judge, Gorakhpur are that Assistant Director, Directorate of Revenue Intelligence, Regional Unit, Gorakhpur received a secret information on 26.02.2007 at about 13: 00 hours from Sri R.K. Singh, the Additional Director, D.R.I., Lucknow Zonal Unit Lucknow that a Toyota Quallis bearing registration no. 31-H-8717 which was coming from Gopalganj side and going towards Gorakhpur was carrying contraband (charas) in a huge quantity for being delivered to someone in Rohtak (Haryana). After noting down the aforesaid information in writing the Assistant Director, Directorate of Revenue Intelligence Regional Unit, immediately called his subordinate officers Pankaj Mishra, Intelligence Officer, Directorate of Revenue Intelligence, Sub Regional Unit, Gorakhpur, Mohd. Shahid, Intelligence Officer, Sub Regional Unit Varanasi and Sri Rajeev Kumar Gupta, Intelligence Officer, Directorate of Revenue, Sub Regional Unit, Gorakhpur and directed them to take necessary action urgently. Acting swiftly the aforesaid officers rushed to Nandanagar crossing NH-28 from where the aforesaid vehicle was expected to pass and procured Sri Anand Singh son of Nathan Singh and Sri Anil Pathak son of Sri G.S.Pathak, residents of Awas Vikas, Betia Hata, Gorakhpur and told them to witness the proposed action of interception and search of the aforesaid Toyota Quallis for the possible recovery of contraband (charas), to which both of them readily agreed. 4. At about 15: 00 hours a silver grey colour Toyota Quallis bearing registration no. 4. At about 15: 00 hours a silver grey colour Toyota Quallis bearing registration no. UP-31-H-8717 was seen coming from Gopalganj side. The officers signalled the driver of the aforesaid vehicle to stop at Nandanagar Railway Crossing but the driver did not stop, on which the officers and witnesses chased the aforesaid vehicle by a Govt. Ambassador Car bearing registration no. DL- 6-CA 8569 and stopped the aforesaid Toyota Quallis in front of Awantika Hotel in Moaddipur Gorakhpur after over taking it on NH-28. Three persons were found sitting in the aforesaid Toyota vehicle, one on the driver's seat, other on the seat next to the driver's seat and the third one on the rear seat. The officers disclosed their identity to the occupants of the Toyota Quallis and confronted them with the information received by them regarding carrying of contraband charas by them in their car. On being quizzed, further the driver of the Toyota Quallis disclosed his name as Akhilesh Dixit son of Sri Brijesh Kumar Dixit r/o Shanti Nagar Garhi Road near Mishri Devi School, Lakhimpur, P.S. Kotwali, District Lakhimpur. The person who was sitting next to the driver's seat told that his name was Anand Tiwari and he was son of Kiran Prakash Tiwari r/o village Mirzapur (Tewaripurwa), Post- Mohmed Nagar, P.S. Ramgaon, District Bahraich. The third occupant of the Toyota Quallis said that his name was Raj Kumar Bajpaee and he was son of Durga Prasad Bajpai r/o village and post Newada, P.S. Ramgaon, District Bahraich. 5. During their preliminary interrogation accused Raj Kumar Bajpaee, Anand Tiwari and Akhilesh Dixit denied that they were carrying any contraband charas in their vehicle but upon being interrogated sternly they admitted that they were carrying charas in their vehicle. Adhering to the provisions of Section 50 of the NDPS Act, 1985, the officers informed all the accused about their statutory right of being searched before a Magistrate or a Gazetted Officer in writing upon which the accused gave their consent in writing to be searched by the officers of the Revenue Intelligence Department. 6. Adhering to the provisions of Section 50 of the NDPS Act, 1985, the officers informed all the accused about their statutory right of being searched before a Magistrate or a Gazetted Officer in writing upon which the accused gave their consent in writing to be searched by the officers of the Revenue Intelligence Department. 6. Considering the fact that a huge crowd had gathered at the place where the aforesaid Quallis was intercepted and keeping in view the safety of the contraband articles the aforesaid Toyota Quallis along with its all three occupants was driven to the office of Directorate of Revenue Intelligence situated at 467-A, Civil Lines, Kasia Road, Gorakhpur for conducting a thorough search of the Toyota Quallis. The search of the Toyota Quallis, which was conducted before the independent witness resulted in recovery of three airbags which were hidden under the rear seat of the aforesaid vehicle and 45 pieces of charas wrapped in yellow plastic paper, 37 pieces of charas wrapped in light yellow colour plastic, and 32 pieces (cakes) of charas wrapped in yellow plastic paper, total 114 pieces in number weighing about 62.100 kgs. were recovered from the three air bags. 7. Four samples, each weighing about 25 gms. were drawn from the charas recovered from the three bags and sealed in the presence of the accused and witnesses for testing by CRCL, New Delhi and Government Opium Factory, Ghazipur and signatures of accused, witnesses and officers were taken thereon. The personal search of accused Raj Kumar Bajapee, Anand Tiwari and Akhilesh Dixit lead to recovery of several personal items like Debit Cards, Cheque Books and Driving Licenses and currency notes, Registration book of the aforesaid Toyota Quallis and its warrantee booklet found in the dash board of the aforesaid vehicle indicated that one Jagdish Sahgal was the registered owner of the vehicle. On further interrogation, the three accused admitted that they were transporting charas which was packed in the three bags in lieu of money which was to be delivered in Rohtak. All three accused further admitted that they had delivered a consignment of Ganja weighing about 143 kgs. at Kanpur which was loaded at Raxsaul in their presence. Accused Raj Kumar Bajpaee confessed that he had been indulging in smuggling of ganja and charas for the last one year. 8. All three accused further admitted that they had delivered a consignment of Ganja weighing about 143 kgs. at Kanpur which was loaded at Raxsaul in their presence. Accused Raj Kumar Bajpaee confessed that he had been indulging in smuggling of ganja and charas for the last one year. 8. On the firm belief that the 114 pieces charas weighing about 62.100 kgs worth Rs. 18,63,000/- which were recovered from the three airbags found hidden under the rear seat of the Toyota Quallis were being transported by the accused in contravention of Section 8/20 of the NDPS Act, the same were seized and accused persons were duly arrested by the officers. All the three bags containing charas were seized and signatures of the accused, witnesses and officers were obtained thereon. The Toyota Quallis vehicle which was used for the transportation of the contraband charas was also seized under Section 43 of the NDPS Act, recovery memo and inventory of recovered contraband charas and Toyota Quallis vehicle were prepared on the spot. Site plan of the place of occurrence was sketched and signatures of accused, witnesses and officers were taken. Accused Raj Kumar Bajpaee in his statement recorded under Section 67 of the NDPS Act on 26.02.07 confessed that he along with other two accused had left Kanpur by Toyota Quallis vehicle in question at about 8.00 p.m. and reached Gopalganj in the morning on 26.02.07 and stayed there at hotel Kailash where one person named Saral had met them and told them to come with their vehicle to Sipaya Dhala which was at a distance of about 15 kms. from their hotel where all the three accused reached at about 10.00 a.m.. One Kanhaiya who was carrying three bags with him met them there and look them to a village where the three empty airbags were packed with charas and concealed under the rear seat of their vehicle. He further stated that they started that their return journey at about 12 a.m. along with the consignment of contraband charas which was to be delivered by them to one Shamsher r/o village Kharkara 20 kms away from Rohtak on Rohtak Hisar Road. However before the consignment of charas could be delivered they were caught by the officers of the DRI at Gorakhpur. 9. However before the consignment of charas could be delivered they were caught by the officers of the DRI at Gorakhpur. 9. As per the statement of accused Raj Kumar Bajpayee recorded under Section 67 of the NDPS Act he was to be paid at the rate of Rs. 8000/- per kg. on delivery of the aforesaid consignment of charas. The accused Anand Tiwari and Akhilesh Dixit in their statements recorded on 26.02.2007 confessed their guilt and corroborated the statement made by the accused Raj Kumar Bajpaee. They further stated that they were in the business of smuggling of contraband articles for monetary gains. The intimation of their arrest was sent to their residential addresses furnished by them. Thereafter they were subjected to medical examination before they were produced before judicial magistrate for remand and thereafter lodged in District Jail, Gorakhpur. According to the report of CRCL, New Delhi, dated 12.06.2007, the samples under reference were found to be charas and analyst's report of Government Opinum and Alkaloid Works Ghazipur (U.P.) dated 04.04.2007 also confirmed the samples as charas. According to the registration certificate of Toyota Quallis its original registered owner was one Jagdish Sahgal r/o Lakhimpur Kheri and on the date of the incident it had stood transferred in favour of one Vipul Barnwal, also r/o Lakhimpur Kheri. Since all the accused had committed offences punishable under Sections 8/20/23/29/42/43 of the NDPS Act, 1985, prayer was made in the complaint to summon the accused from jail and put them to trial and award suitable punishment according to law and to confiscate the Toyota Quallis no. UP-31-H-8717. 10. The learned Sessions Judge, took cognizance of the aforesaid offences and summoned all the three accused Raj Kumar Bajpaee, Anand Tiwari and Akhilesh Dixit to face trial. Charge was framed against the accused under Section 8/20 of the NDPS Act to which all the accused pleaded not guilty and claimed trial. 11. The prosecution in order to prove its case examined PW-1 Rajeev Kumar Gupta, PW-2 Pankaj Mishra and PW-3 Munna Prasad. All the three accused in their examination under Section 313 Cr.P.C. totally denied the prosecution case as spelt out in the complaint and stated that the Toyota Quallis car was parked unclaimed and the officers of the vigilance department were questioning the passers by. All the three accused in their examination under Section 313 Cr.P.C. totally denied the prosecution case as spelt out in the complaint and stated that the Toyota Quallis car was parked unclaimed and the officers of the vigilance department were questioning the passers by. The accused who were strangers to Gorakhpur city were falsely implicated in the present case on the basis of documents which were prepared by the officers of the Directorate of the Revenue Intelligence. Their confessional statements were obtained from them by the officers of the Revenue Intelligence Department under pressure, fear, coercion and duress. They had no concern either with the Toyota Quallis vehicle which was registered in the name of Jagdish Sahgal or with the alleged contraband charas recovered from the said vehicle. 12. The accused examined one Ram Kripal also as DW-1. 13. Apart from the oral evidence the prosecution produced documentary evidence also, site plan Ex. Ka- 1, departmental information Ex. Ka-2, notice given to the accused for search Ex. Ka-3 to Ex. Ka-5, recovery memo Ex. Ka-6, list of recovered documents Ex. Ka-7, inventory memo Ex. Ka-8, report of the CRCL, New Delhi Ex. Ka-9, report of the Govt. Opium Factory Ex. Ka-10 and Ex. Ka-11, arrest memo of the Ex. Ka.-12 and Ka-14, application given for medical examination of the accused and their medical report Ex. Ka-15 to Ex. Ka-17, information given to the department of Search and Recovery Ex. Ka-18, complaint Ex. Ka-19, the summons issued to the accused under Section 67 of the NDPS Act and their statements recorded under the aforesaid section Ex. Ka-20 to Ex. Ka-25, the statements of Jagdish Kumar and Vipul Kumar recorded under Section 67 of the NDPS Act Ex. Ka-26 to Ex. Ka 29. 14. PW-3 Inspector Munna Prasad who had deposited the seized contraband in the custom godown and made the necessary entry produced the certified, photostat copy of the original register paper no. 50 kha which was marked as Ex. Ka-13. The three packets from which the contraband charas was recovered were marked as Material Ex.-1, Materia Ex.-2 and Material Ex.-3. 15. After considering the respective submissions advanced by the learned counsel for the parties before him and scrutinising the evidence on record, both oral as well as documentary, the learned Sessions Judge convicted the accused under Sections 8/ 20 of the NDPS Act and awarded them the aforesaid sentences. 16. 15. After considering the respective submissions advanced by the learned counsel for the parties before him and scrutinising the evidence on record, both oral as well as documentary, the learned Sessions Judge convicted the accused under Sections 8/ 20 of the NDPS Act and awarded them the aforesaid sentences. 16. Sri Ajay Bhanot, learned Senior Advocate, appearing on behalf of the appellants submitted that the prosecution had miserably failed to prove the recovery of charas from the accused and their arrest in the manner as spelt out in the recovery memo and the complaint beyond reasonable doubt by any cogent or reliable evidence. The two independent witnesses who had admittedly witnessed the search of the Tata Quallis, recovery of contraband charas therefrom, seizure and arrest of the appellants were not produced in the witness box by the prosecution during the trial. The conviction of the appellants on the basis of the evidence of the PW-1, 2 and 3 who are interested witnesses being the officers of the Revenue & Intelligence Directorate and the alleged confessional statements of the accused made under Section 67 of the NDPS Act cannot be sustained and is liable to be set aside as the question whether the statement recorded under Section 67 of the NDPS Act can be acted upon for convicting an accused has been referred to a larger bench by a division Bench of the Apex Court. He next submitted that discrepancy in the weight of the samples drawn on the spot from the pieces of contraband charas allegedly recovered from the three air bags which were allegedly hidden under the rear seat of the Tata Quallis vehicle which according to the prosecution case was being driven by the appellant Raj Kumar Bajpaee and in which the other two appellants were sitting and those received by the chemical Examiner CRCL, New Delhi, Govt. Opium and Alkaloid Factory, Ghazipur indicates either the samples which were drawn on the spot were not sent for chemical examination and analysis or the same were tampered and in view of the above no reliance could have been placed on the reports of the CRCL and Govt. Opium Factory, Ghazipur Ex. Ka-9, 10 and 11 for holding that the articles allegedly recovered from the Toyota Quallis vehicle were contraband charas. Sri Bhanot, has also challenged the admissibility of the Ex. Opium Factory, Ghazipur Ex. Ka-9, 10 and 11 for holding that the articles allegedly recovered from the Toyota Quallis vehicle were contraband charas. Sri Bhanot, has also challenged the admissibility of the Ex. Ka-9, 10 and 11 chemical report of CRCL and the analysis report sent by Govt. Opium Factory, Ghazipur on the ground that the aforesaid reports do not disclose the principles on which the expert opinion is based. Advancing his submissions in this regard further he submitted that Section 45 of the Evidence Act which makes opinion of expert admissible lays down that when the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions opinion are relevant facts. Therefore, in order to bring the evidence of a witnesses as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein. He further submitted that the real function of the expert is to put before the court all the materials together with reasons which induced him to come to the conclusion so that the court although not an expert, may form its judgment by its own observation of those material. Tested on the touchstone of the aforesaid principle Ex. Ka-9, 10 and 11 are lacking in the aforesaid requirements and hence wholly inadmissible in evidence for proving that the material which recovered from the Tata Quallis vehicle is which the accused were allegedly travelling was contraband charas. 17. He also submitted that the investigation in this matter was not conducted fairly as the same was done by the complainant himself which seriously prejudiced the accused. 18. He lastly submitted that sentence higher than the minimum punishment prescribed under the NDPS Act upon conviction u/s 8/20 of the NDPS Act has been awarded by the trial court to the appellant without assigning any reason and without even adverting to Section 32 (c) of the NDPS Act, hence the same cannot be sustained. 19. Per contra Sri Sanjay Kumar Singh, learned counsel appearing on behalf of the Union of India has submitted that PW-1, PW-2 and PW-3 fully proved the prosecution case. 19. Per contra Sri Sanjay Kumar Singh, learned counsel appearing on behalf of the Union of India has submitted that PW-1, PW-2 and PW-3 fully proved the prosecution case. The failure of the prosecution to examine the two independent witnesses who had witnessed the arrest of the appellants and recovery of contraband articles from the vehicle in which they were travelling would not vitiate the appellant's conviction in any manner in view of the confession of their guilt made by the appellants in their statements recorded under Section 67 of the NDPS which the appellants had failed to retract at the earliest. It was only at the stage of their examination under Section 313 Cr.P.C. that they had stated that their confession was obtained under duress and coercion. He further submitted that the admisibility of chemical report of the CRCL and report of Govt. Opium Factory, Ghazipur Ex. Ka-9, 10 and 11 which were admissible under Section 293 of the Cr.P.C was never challegned by the accused appellants during the trial on the grounds which have been raised by the learned counsel for the appellant and it is not open to the appellants to challenge the Ex. Ka -9, 10, and 11 on the aforesaid ground for the first time before this Court in this appeal. He next submitted that the minor discrepancy in the weight of the samples drawn on the spot and those received in the forensic lab and the Govt. Opium Factory, Ghazipur which were admittedly received in a packed state with the seal intact would not give rise to any inference that either the sample which were admittedly taken on the spot were not sent for chemical examination or the samples were tampered. Even otherwise despite being subjected to gruelling cross examination, the defense counsel did not cross examine any of the prosecution witness with regard to the aforesaid discrepancy. Had it been done it would have given them an opportunity to furnish an explanation for the same. This having not been done at the trial stage, the conviction of the appellants cannot be challenged for the first time on the aforesaid ground in this appeal. Had it been done it would have given them an opportunity to furnish an explanation for the same. This having not been done at the trial stage, the conviction of the appellants cannot be challenged for the first time on the aforesaid ground in this appeal. He lastly submitted that the impugned judgment is based upon on a thorough marshalling of the facts and a thread bare scrutiny of the evidence on record does not suffer from any illegality or infirmity warranting any interference by this Court and the sentence awarded is just and proportionate to the offence for which the appellants have been convicted. 20. I have heard learned counsel for the parties and perused the lower court record and the law reports cited by the learned counsel for the appellants. 21. PW-1 Rajiv Gupta complainant in his examination in chief fully proved the seizure of contraband charas and the arrest of the appellants as spelt out in the complaint. In his cross examination he has however denied that the accused were either pressurised or coerced into confessing their guilt in their statements recorded under Section 67 of the NDPS Act. 22. PW-2 Pankaj Mishra also supported the prosecution case in his evidence and reiterated the facts stated by PW-1 Rajiv Gupta in his evidence. He proved the notice given to the appellants under Section 67 of the NDPS Act as well as the signatures on the notices given to the appellants under Section 67 of the NDPS Act, and their arrest. In his cross examination he denied the suggestion put to him by the defense counsel that the statements of the appellants were scribed on blank papers on which their signatures were forcibly obtained. 23. PW-3 Munna Prasad Inspector, Godaam Seema Shulk Niwarak, Medwa in his evidence tendered during the trial stated that on 01.08.2008 he was posted as Godown Incharge. He had recorded the receiving of the contraband charas which was recovered from the appellants and made the necessary entry in the register on 01.03.2007. He further submitted that the market value of the seized contraband charas was about Rs. 18,63,000/-. He further deposed that the aforesaid material was produced by him before the court on 18.07.2008, 22.07.2008 and 30.07.2008 and again deposited in the godown in a sealed state and there was no tampering with the packets containing the recovered contraband charas. He further submitted that the market value of the seized contraband charas was about Rs. 18,63,000/-. He further deposed that the aforesaid material was produced by him before the court on 18.07.2008, 22.07.2008 and 30.07.2008 and again deposited in the godown in a sealed state and there was no tampering with the packets containing the recovered contraband charas. The sealed packets were opened in front of the Court on 03.07.2008 and after the cross examination, the packets were sealed again with the court seal and delivered by him to Pankaj Mishra who deposited the same in the godown again on the same day. Necessary entry in this regard was made in the original register. He proved the certified copy of the relevant extract of the original register which is on record of the case. In his cross examination he stated that the three packets containing contraband charas were brought by Pankaj Mishra to the godown. He denied that either the packets were not properly sealed or the same had been tampered with. 24. From the perusal of the evidence of PW-1, 2 and 3 it transpires that the defense counsel failed to put any question to any of the prosecution witnesses with regard to the discrepancy in the weight of the samples drawn on the spot and those which were received in the CRCL, New Delhi and opium factory, Ghazipur. Hence it is not open to the appellants to challenge the admissibility of Ex. Ka-9, Ka-10 and Ka-11 on the aforesaid ground. 25. It is clear from the perusal of the reports of the chemical analyst dated 12.06.2007, Ex. Ka-9 that the weight of samples of suspected charas which were received by chemical examiner was 20.5 gms. and 26.6 gms. respectively. The Ex. Ka-9 further recites that the samples were received with the seal intact and were accompanied with facsimile of the seal affixed on the packets containing sample. Similarly the reports dated 31.03.2007 of the samples of suspected charas sent to the Government Opium and Alkekloid, Ghazipur which is on the record of the trial court as Ex. Ka-10 & 11 indicate that the samples of suspected charas were received in an envelop duly sealed. Similarly the reports dated 31.03.2007 of the samples of suspected charas sent to the Government Opium and Alkekloid, Ghazipur which is on the record of the trial court as Ex. Ka-10 & 11 indicate that the samples of suspected charas were received in an envelop duly sealed. The net weight of the samples was 32.2 gms and 31.10 gms.It is true that the weight of the four samples which were drawn on the spot was 25 gms each.There is no evidence on record showing that the samples drawn on the spot were weighed by a measuring scale or a balance and the weight of the samples was exact weight and not estimated weight.The defense has neither lead any evidence nor made any suggestion to the prosecution witnesses during their cross examination that the samples had been changed or tampered with. Considering the fact that the packets containing the samples were received by chemical expert and the chemical examiner of Central Revenue Control Laboratory, New Delhi and Government Opium & Alkeloid Work Opium, Ghazipur in a sealed state, there is no possibility of the same being changed or tampered. 26. The legal preposition enuntiated by the Apex Court in the there decisions which have been relied upon by the learned counsel for the appellant in support of aforesaid submission that the conviction of the appellants is liable to be set aside in view of the unexplained discrepancy in the weight of the samples drawn on the spot and the samples received in the Central Revenue Control Laboratory, New Delhi and Government Opium & Alkeloid Work, Ghazipur, namely, (2008) 16 SCC 417 Noor Aga v. State of Punjab and another, (2010) 71 ACC 853 Hasan Ali v. State and (2005) 9 SCC 773 Rajesh Jagdamba Avasthi v. State of Goa is not applicable to the facts and circumstances of the present case. 27. The conviction of the appellant in the case of Noor Aga (supra), relied upon by the learned counsel for the appellant, was set aside by the Apex Court noticing numerous discrepancies in the prosecution case including the failure of the prosecution to produce the cardboard carton, which was used in carrying the heroin recovered from the accused Noor Aga and not on account of any discrepancy in the weight of the sample drawn on the spot and that received by the chemical analyst. 28. 28. Similarly the case of Hasan Ali (supra) is also distinguishable from the present case on facts inasmuch as in that case total 1.75 kg. Charas contained in a plastic bag was recovered from the accused Hasan Ali and the entire recovered contraband charas was dispatched for chemical examination, however, the chemical examination report contained a recital that 1.680 kg charas was received by the chemical analyst. The discrepancy of about 70 gms in the quantity of charas recovered was found by this Court sufficient to draw an adverse inference against the prosecution that either the recovered contraband was not sent for chemical examination or the same had been tampered with and for the aforesaid reason, the appeal was allowed and the appellant Hasan Ali was acquitted. 29. In the case of Rajesh Jagdamba (supra) the conviction of Rajesh Jagdamba was set aside and his appeal was allowed by the Apex Court by giving him benefit of doubt, holding that his conviction was liable to be set aside on the ground that although 180.75 gms charas was recovered from the appellant's possession after search and seizure which was packed and sealed in two envelops maked 'A' and 'B' however when those envelops were opened in the laboratory of Junior Scientific Officer, he found the quantity in envelop 'A' nominally less while quantity in envelop 'B' significantly less than the quantity sealed and sent to him and the prosecution having failed to explain the discrepancy, the High Court was not justified in upholding the conviction of the appellant on the basis of the recovery of only envelop 'A' ignoring the quantity in envelop 'B' because there was only one search and seizure and whatever is recovered was packed in two envelops. The discrepancy in the weight of the samples drawn and those received by the chemical analysts in the present case is nominal and not significant enough to doubt the seizure and arrest. 30. The appellants challenge to the reliance placed by the trial court on Ex. Ka-9, Ka-10 and Ka-11 for holding that articles recovered from the vehicle in this the appellants were allegedly travelling was contraband charas was per se illegal on account of that Ex. 30. The appellants challenge to the reliance placed by the trial court on Ex. Ka-9, Ka-10 and Ka-11 for holding that articles recovered from the vehicle in this the appellants were allegedly travelling was contraband charas was per se illegal on account of that Ex. Ka-9, Ka-10 and Ka-11 on the ground that the same did not disclose the principles on which expert opinion was based is also unwarranted, for the simple reason that the defense had not challenged the admisibility of Ex. Ka-9, Ka-10 and Ka-11 on the ground which has been taken by the appellant for the first time before this Court, which is not permissible.Even otherwise Ex. Ka- 9, ka-10 and Ka-11 are admissible in evidence under Section 293 of the Code of Criminal Procedure. 31. As far as the submission made by the learned counsel for the appellant that the accused appellants were prejudiced on account of the investigation of the matter being done by the same police officer who had arrested the petitioner and recovered the contraband article from them his concerned the same is also wholly without any merit. In S. Jeevanathan v. State through Inspector of Police T.N., 2004 (Vol.5) SCC 220, the Apex Court held that if the officer, who is complainant, also conducts the investigation of the case and it is proved that any prejudice was caused to the accused, on account of the adoption of such a course the accused cannot be acquitted unless the evidence was lead by the accused or it was proved from the prosecution evidence that a prejudice was caused to him on account of the matter being investigated by the same police officer who was the complainant. In the present case no FIR was lodged rather a complaint under Section 36(1)(d) of NDPS was filed by the complaint Rajiv Kumar against the appellant and the other accused after seizure and their arrest. The complainant Rajeev Kumar had merely filed the complaint, the evidence of all the three prosecution witnesses was recorded before the trial judge. The appellants in the present case have not been able to demonstrate or prove by any evidence that any prejudice was caused to them on account of complaint against them having been filed by Rajiv Gupta, who was one of the members of the team of Directorate of Revenue Intelligence, which had seized contraband charas and arrested the appellants. The appellants in the present case have not been able to demonstrate or prove by any evidence that any prejudice was caused to them on account of complaint against them having been filed by Rajiv Gupta, who was one of the members of the team of Directorate of Revenue Intelligence, which had seized contraband charas and arrested the appellants. In the present case neither any FIR was lodged nor any police report under Section 173(2) Cr.P.C. was submitted by the Investigating Officer after completion of investigation. Hence the reliance placed by the learned counsel for the appellants on (2010) 15 SCC 369 State of Tamil Nadu v. Rajangam, in this regard is wholly misconceived as in the case of State of Tamil Nadu (supra) cognizance was taken against the accused by the Court on the charge sheet/police report under Section 173(2) Cr.P.c. submitted after completion of investigation which commenced against the accused upon registration of FIR against them. 32. The appellants challenge to their conviction on the ground that in the present case there was no compliance of Section 42 of the NDPS is also without any basis. It is proved from the evidence of PW-1 Rajiv Kumar and Ex. Ka 2 that the information received by Sri R.K. Singh, Assistant Director, DRI, Regional Unit Gorakhpur from Additional Director, DRI Lucknow, Zonal Unit, Lucknow that a Silver Grey colour Toyota Quallis coming from Gopalganj Bihar via ND-28 was carrying huge quantity of charas was taken down by him in writing on 26.02.2007. Since the secret information was received by Sri R.K. Singh, Assistant Director, DRI, Regional Unit Gorakhpur from his superior officer, there was no necessity for him to send copy thereof to his same immediate superior officer again as stipulated under Section 42(2) of the NDPS Act and to that extent in my opinion Section 42(2) of the NDPS is not attracted to the present case. It is further established from the perusal of the of Ex. Ka-18 that information regarding seizure of contraband charas and the arrest of the appellants by the team of Directorate of Revenue Intelligence, Sub Regional Unit Gorakhpur was duly reported to the higher officer on 27.02.2007. 33. It is further established from the perusal of the of Ex. Ka-18 that information regarding seizure of contraband charas and the arrest of the appellants by the team of Directorate of Revenue Intelligence, Sub Regional Unit Gorakhpur was duly reported to the higher officer on 27.02.2007. 33. Now the next question which arises for consideration is that whether the conviction of the appellants is liable to be set aside on the ground of the failure of the prosecution to examine the two independent witnesses Amit Pathak and Anand Singh who had witnessed the interception of the vehicle, the search of the appellants and the vehicle, recovery of contraband charas and seizure. In support of his submission learned counsel for the appellants has placed reliance upon (2008) 16 SCC 417 Noor Aga v. State of Punjab and another. Paragraphs 109, 110 and 111 of the aforesaid judgement which are relevant for our purpose are being reproduced herein below : - “109. In Baldev Singh (supra), it was stated : "28. This Court cannot overlook the context in which the NDPS Act operates and particularly the factor of widespread illiteracy among persons subject to investigation for drug offences. It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed. We are not able to find any reason as to why the empowered officer should shirk from affording a real opportunity to the suspect, by intimating to him that he has a right "that if he requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be searched only in that manner. As already observed the compliance with the procedural safeguards contained in Section 50 are intended to serve dual purpose - to protect a person against false accusation and frivolous charges as also to lend credibility to the search and seizure conducted by the empowered officer. The argument that keeping in view the growing drug menace, an insistence on compliance with all the safeguards contained in Section 50 may result in more acquittals does not appeal to us. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. If the empowered officer fails to comply with the requirements of Section 50 and an order or acquittal is recorded on that ground, the prosecution must think itself for its lapses. Indeed in every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the Court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted." 110. Independent Witnesses It is accepted that when the appellant allegedly opted for being searched by a Magistrate or a Gazetted Officer, Kuldip Singh called K.K. Gupta, Superintendent Customs, PW2) and independent witnesses Mahinder Singh and Yusaf. Whereas K.K. Gupta was examined as PW2, the said Mahinder Singh and Yusuf were not examined by the prosecution. There is nothing on record to show why they could not be produced. Their status in life or location had also not been stated. It is also not known as to why only the said two witnesses were sent for. The fact remains that they had not been examined. Although examination of independent witnesses in all situations may not be imperative, if they were material, in terms of Section 114(e) of the Evidence Act, an adverse inference could be drawn. 111. In a case of his nature, where there are a large number of discrepancies, the appellant has been gravely prejudiced by their non-examination. It is true that what matters is the quality of the evidence and not the quantity thereof but in a case of this nature where procedural safeguards were required to be strictly complied with, it is for the prosecution to explain why the material witnesses had not been examined. Matter might have been different if the evidence of the Investigating Officer who recovered the material objects was found to be convincing. The statement of the Investigating Officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Matter might have been different if the evidence of the Investigating Officer who recovered the material objects was found to be convincing. The statement of the Investigating Officer is wholly unsubstantiated. There is nothing on record to show that the said witnesses had turned hostile. Examination of the independent witnesses was all the more necessary inasmuch as there exist a large number of discrepancies in the statement of official witnesses in regard to search and seizure to which we may now take note of.” 34. In the present case also two independent witnesses Amit Pathak and Anand Singh have not been examined. No explanation has come forth from the side of the prosecution side for their non production during the trial. The question which arises for consideration in this appeal is that whether they were material in terms of Section 114(e) of the Evidence Act and their examination was so imperative that the failure of the prosecution to examine them has vitiated the trial and under the facts and circumstances of this case an adverse inference was bound to be drawn against the prosecution for its failure to examine the two independent witnesses. I have already noticed earlier that the prosecution in order to prove its case produced three witnesses PW-1 Rajiv Gupta, PW-2 Pankaj Mishra and PW-3 Munna Prasad. In their examination in chief they fully supported the prosecution case. The defense despite cross examining them at considerable length failed to elicit anything from them which may either discredit their testimony or falsify the prosecution case. 35. The non production of the independent witnesses of seizure and arrest by the prosecution, in my opinion would have been a relevant factor for drawing an adverse inference against the prosecution if the defense had succeeded in proving non compliance of mandatory provisions of the NDPS Act by the officers during search, seizures and arrest. The appellant have failed to come up with any plausible reason for their alleged false implication by the officers of Directorate of Revenue Intelligence in the present case. The evidence of Ram Kripal who was examined by the defence as DW-1 does not inspire any confidence as he has admitted in his testimony that he was a relative of appellant Anand Tiwari and he had come to give evidence without being summoned by the Court. 36. The evidence of Ram Kripal who was examined by the defence as DW-1 does not inspire any confidence as he has admitted in his testimony that he was a relative of appellant Anand Tiwari and he had come to give evidence without being summoned by the Court. 36. Further all the three appellants admitted their guilt in their statements recorded under Section 167 Cr.P.C. They had got several opportunities to retract their confessions but they waited till their examination under Section 313 Cr.P.C. Learned counsel for the appellant has stated that the issue whether the statements recorded by the Investigating Officer under Section 67 of the Act can be treated as confessional statement or not even if the officer is not treated as police official has been referred by two Judge Bench of the Apex Court to a larger Bench by judgement and order dated 8th October 2013 passed by Toofan Singh v. State of Tamilnadu reported in (2013) 16 SCC 31 and hence the appellants' conviction recorded by the trial court by relying upon the statements of the appellants under Section 67 of the Act cannot be sustained. There is no merit in the aforesaid contention. There is no dispute amongst the learned counsel for the parties that the larger Bench has not answered the reference till date. The law laid down by the Bench of two Hon'ble Judges of the Apex Court Kanhaiya Lal v. Union of India, 2008 (4) SCC 668 and Raj Kumar Karwal v. Union of India, 1990 (2) SCC 409 “that the confessional statement recorded under Section 67 of the NDPS Act could be acted upon as the officer recording the statement under the aforesaid provisions is not a police officer and therefore, such a statement is not a hit by the provisions of Section 24 to 27 of the Evidence Act or Article 20(3) of the Constitution of India” still holds good and is a binding precedent. 37. In view of the foregoing discussion, I do not find that the conviction of the appellants recorded by the trial court under Sections 8 & 20 of the NDPS Act is vitiated by any error of law or fact. The prosecution has succeeded in proving its case against the appellant beyond all reasonable doubt by cogent evidence. 38. 37. In view of the foregoing discussion, I do not find that the conviction of the appellants recorded by the trial court under Sections 8 & 20 of the NDPS Act is vitiated by any error of law or fact. The prosecution has succeeded in proving its case against the appellant beyond all reasonable doubt by cogent evidence. 38. The issue which next arises for consideration is that whether the sentence awarded to the appellants which is higher than the minimum sentence prescribed under the Act for a person convicted under Sections 8, 20 of the NDPS Act is unduly harsh, excessive disproportionate and arbitrary and the same has been imposed, without assigning any reasons and without taking into consideration of provisions of Section 32(B) of the NDPS Act and hence liable to be modified. The minimum punishment prescribed for conviction under Section 8/20 NDPS Act is 10 years R.I. And a fine of Rs. 1 lakh. Section 32(B) of the NDPS Act enumerates the factors to be taken into account for imposing higher than the minimum punishment. It will be useful to reproduce Section 32(B) of the NDPS Act herein below : - “32B. Factors to be taken into account for imposing higher than the minimum punishment. 1 lakh. Section 32(B) of the NDPS Act enumerates the factors to be taken into account for imposing higher than the minimum punishment. It will be useful to reproduce Section 32(B) of the NDPS Act herein below : - “32B. Factors to be taken into account for imposing higher than the minimum punishment. - Where a minimum term of imprisonment or amount of fine is prescribed for any offence committed under this Act, the court may, in addition to such factors as it may deem fit, take into account the following factors for imposing a punishment higher than the minimum term of imprisonment or amount of fine, namely : (a) the use or threat of use of violence or arms by the offender ; (b) the fact that the offender holds a public office and that he has taken advantage of that office in committing the offence ; (c) the fact that the minors are affected by the offence or the minors are used for the commission of an offence ; (d) the fact that the offence is committed in an educational institution or social service facility or in the immediate vicinity of such institution or faculty or in other place to which school children and students resort for educational, sports and social activities ; (e) the fact that the offender belongs to organised international or any other criminal group which is involved in the commission of the offences ; and (f) the fact that the offender is involved in other illegal activities facilitated by commission of the offence.]” 39. After going through the impugned judgement and order very carefully, I find that the trial court while imposing higher than the minimum punishment prescribed under the NDPS Act on conviction under Section 8/20 of the NDPS Act, upon the appellants has failed even to advert to the factors enumerated in Section 32(B) of the NDPS Act. In fact no reason whatsoever is forthcoming in the impugned judgement which lead the trial court to impose higher than the minimum punishment prescribed under the Act upon the appellants. 40. After going through the evidence on record, I am satisfie that in the present case none of the factors as spelt out in Section 32(B) of the Act exist which could have prompted the trial court to award higher than the minimum punishment prescribed under the Act. 40. After going through the evidence on record, I am satisfie that in the present case none of the factors as spelt out in Section 32(B) of the Act exist which could have prompted the trial court to award higher than the minimum punishment prescribed under the Act. The sentence awarded to the appellants thus cannot be sustained. While maintaining the conviction of the appellants under Section 8/20, I allow this appeal in part and modify the sentence awarded to them by the trial court by the impugned judgement and order to 10 years R.I. and a fine of Rs. 1 lakh and in default of payment of fine the appellants shall be liable to undergo further simple imprisonment to one month. The impugned judgment stands modified accordingly. 41. The appeal is allowed in part. No order as to costs. Appeal Partly Allowed.