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2018 DIGILAW 187 (GAU)

Nabab Khan S/o Late Kalin Khan v. Union of India

2018-02-01

MIR ALFAZ ALI

body2018
JUDGMENT AND ORDER : ALFAZ ALI, J. 1. This appeal is directed against the judgment and order dated 25/5/2016 passed by learned Addl. Sessions Judge (FTC) No. 3, Guwahati in NDPS Case No. 35/2015. By the said judgment, learned Addl. Sessions Judge convicted the accused/appellant u/s 17 (c) of the NDPS Act and awarded sentence of rigorous imprisonment for 18 years and fine of Rs. 1,50,000/- and further imprisonment for two years in default of payment of fine. 2. As per prosecution case, on 25/02/2015, one Sri. Paban Baisane, Intelligence Officer (PW 3), Narcotic Control Bureau, Guwahati received an information that one Nawab Khan, resident of House No. 19, Lalmati, Guwahati, has been illegally possessing huge quantity of opium for illegal trafficking. The information was immediately reduced into writing and was forwarded to his immediate superior officer, Ms. Tullika Morang. Said Tullika Morang constituted a team comprising of PW 1, 2, 3 and some other officers to pursue the information and the PW 3 was entrusted with the responsibility of seizing officer. The team of the NCB, accordingly, reached the place of occurrence at Lalmati at about 1.15 pm, where they requested two persons found on the road being Himangshu Borah and Birendra Sarma, who were residents of the said locality for being witnesses to the search and seizure, to which they agreed. Accordingly, along with those two local persons, NCB team arrived at the house of accused/appellant Nawab Khan. They knocked the door and the accused/appellant Nawab Khan came out of the house. On being asked by them the accused/appellant told his name to be Nawab Khan. The NCB team in presence of the witnesses conducted the search in the house of the accused/appellant and found five packets kept under the bed in the first room of the house, containing dark brown colour sticky substances suspected to be opium. A small quantity of the said suspected contraband article was tested in the narcotic drugs detection kits, which gave positive test for opium. All the five packets were marked as P-1, P-2, P-3, P-4 and P-5 and weighed with the help of digital scale in presence of the witnesses and the accused/appellant Nawab Khan. A small quantity of the said suspected contraband article was tested in the narcotic drugs detection kits, which gave positive test for opium. All the five packets were marked as P-1, P-2, P-3, P-4 and P-5 and weighed with the help of digital scale in presence of the witnesses and the accused/appellant Nawab Khan. It was found that P-1 contained 1.002 kgs, P-2 contained 1.012 kgs, P-3 contained 0.6.5, kgs, P-4 contained 1.03 kg and P-4 and P-5 contained 1.03 kgs each and the total suspected contraband in all the five packets were 4.5 kgs. All the packets of contraband articles were seized as per procedure by the seizing offer in presence of the witnesses and the accused/appellant. The seizing officer took some quantity of the suspected contraband from the packets P-1, P-2, P-4 and P-5 which were found to be identical in shape and size and mixed them homogenously. Out of such mixture of the contraband collected from P-1, P-2, P-3 P-5, one sample of 25 gms, each in duplicate were drawn which were marked as S1 and D1. A separate sample of 25 gms in duplicate was also taken from the packet marked as P-3. The NCB team conducted personal search of the accused/appellant and seized one Nokia mobile phone, one pan card, one driving license and cash amount of Rs. 50,000/-, an electricity bill in the name of the accused/appellant was also seized from the place of occurrence. The sample of contraband articles collected from the seized articles were sent to FSL which gave positive test for opium. The seizing officer recorded the statement of the accused/appellant u/s 67 CrPC. On receipt of the report from the FSL, showing that the contraband seized from the possession of the accused/appellant was opium, a formal complaint was lodged and eventually the accused/appellant stood trial for the offence u/s 17 (c) NDPS Act. 3. In course of trial, charge was framed u/s 17 (c) NDPS Act against the accused/appellant, to which he pleaded not guilty. Prosecution examined six witnesses to establish the charge and on appreciation of evidence, learned Spl. Judge convicted the accused/appellant u/s 17 (C) of the NDPS Act and awarded sentence as indicated above. 4. Being aggrieved by the judgment of conviction and sentence, the accused/appellant preferred the instant appeal. 5. I have heard Mrs. S.K Nargis, learned counsel for the appellant and Ms. Judge convicted the accused/appellant u/s 17 (C) of the NDPS Act and awarded sentence as indicated above. 4. Being aggrieved by the judgment of conviction and sentence, the accused/appellant preferred the instant appeal. 5. I have heard Mrs. S.K Nargis, learned counsel for the appellant and Ms. B. Sarma, learned counsel for the respondent/State. I have given my anxious consideration to the submissions made by the learned counsels. 6. Learned counsel for the appellant assailed the impugned judgment broadly on the following grounds: (i) Non-compliance of the provision of section 42(2) of the NDPS Act. (ii) The samples were not drawn as per requirement of law and the samples were also not representative. (iii) Requirement of the provision of section 50 of the NDPS Act was complied. (iv) The contradiction with regard to colour of the contraband (v) Place of seizure was not proved. (vi) The statement of the accused/appellant recorded u/s 67 of the NDPS Act was not made voluntarily and therefore, cannot be rlied upon. (vii) No investigation was carried out as to one Ali from whom the accused/appellant stated to have purchased the contraband. Non-compliance of the provision of section 42(2) of the NDPS Act. 7. Learned counsel for the appellant submitted that the secret information reduced to writing was not forwarded to the superior officer as per requirement of section 42(2) of the NDPS Act, which is mandatory and non-compliance of such mandatory provision vitiates the trial. In support of his submission, learned counsel placed reliance on the decision of the Apex Court in Sukdev Singh v. State of Haryana (2013) 2 SCC 212 and State of Rajasthan v. Babulal, (2009) 14 SCC 215 . 8. Section 42(s) NDPS Act provides that where an officer takes down any information in writing under sub-section (1) or records ground for his belief under the proviso thereto, he shall, within 72 hours, send a copy thereof to his immediate superior official. The Apex court in Sukdev Singh v. State of Haryana (supra) held that total non-compliance with the provision of section 42(2) of the NDPS Act is incurable illegality. The similar view was expressed by the Apex Court in the State of Rajasthan v. Babulal, inasmuch as, in the said case there was total non-compliance with the provision of section 42(2) of the NDPS Act. The similar view was expressed by the Apex Court in the State of Rajasthan v. Babulal, inasmuch as, in the said case there was total non-compliance with the provision of section 42(2) of the NDPS Act. What is amply clear from the ratio laid down by the Apex Court is that total non-compliance with the provision of section 42(2) of the NDPS Act is incurable and fatal for the prosecution. It is therefore, necessary to ascertain whether there was non-compliance with the provision of section 42(2) of the NDPS Act in the instant case, inasmuch as, whether such provision was complied or not complied, is always a question of fact, to be ascertained from the evidence brought on record. 9. PW 3, the seizing officer, has clearly stated in his evidence, that on receipt of the secret information, he reduced it into writing in the prescribed form of NCB-I, and such report was proved as Ex-1. PW 3 further stated that immediately after reducing the secret information into writing (Ex-1), he forwarded the report to PW 1, Tuilika Moran, being the immediate senior officer. PW 1, Tulika Moran, also candidly stated in her evidence that the secret information reduced to writing, being Ex-1, was forwarded to her forthwith. She also proved the note recorded by her on Ex-1. Thus, the Ext-1, the format, in which, the secret information was reduced into writing, the evidence PW 1 & PW 3 leaves no room for doubt that the secret information reduced to writing was forwarded to PW 1, who happens to be the officer, senior to PW 3, who reduced the information into writing. There was no dispute that PW 1 was immediate senior officer of PW 3. 10. Learned counsel for the appellant contended that no document forwarding the report was proved. It is no doubt true, that no forwarding letter, by which the report was forwarded, had been proved. But the Ex-1 makes it appear, that the secret information, which was received by the PW 3 was written down to Ex-1 and the same was forwarded to PW 1, being the senior officer, who constituted the team to pursue the information on the same day i.e., 25/02/2015. But the Ex-1 makes it appear, that the secret information, which was received by the PW 3 was written down to Ex-1 and the same was forwarded to PW 1, being the senior officer, who constituted the team to pursue the information on the same day i.e., 25/02/2015. The requirement of section 42(2) of the NDPS Act is, that the officer receiving the information and reducing it to writing under sub-section (1) of section 42 of NDPS Act has to send the report to the officers superior to him within 72 hours. 11. From the testimony of PW 1, PW 3 and the documentary evidence, Ex-1, it is abundantly clear that the report reduced to writing on the basis of secret information was forwarded to the senior officer on the same day and therefore, it cannot be said that there was non-compliance with the provision of section 42(2) NDPS Act in the present case. The samples drawn were not drawn as per requirement of law and the samples were not representative. 12. Learned counsel for the appellant strenuously argued that the seizing officer did not follow the guidelines provided in the Standing Order No. 1/89 of the Government, while taking the sample, and such failure of the seizing officer in taking representative sample caused prejudice to the accused/appellant and therefore, no conviction could be recorded on the basis of the report of such samples which were not representative and was also not taken as per procedure. The method of drawal of sample as well as the quantity to be taken for each sample have been laid down in Clause 2.3, 2.4, 2.5 and 2.6 of the Standing Order No. 1/89 of the Government, dated 13/06/1989, which are follows: “2.3 The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the case of opium, ganja and charas (hashish). Where quantity of 24 grams in each case is required for chemical test, the same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogenous and representative before the sample (in duplicate) is drawn. 2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. The seized drugs in the packages/containers shall be well mixed to make it homogenous and representative before the sample (in duplicate) is drawn. 2.4 In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample(in duplicate) from each package/container. 2.5 However, when the package/containers seized together in identical size and weight bearing identical markings and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the package are identical in all respects that packages/containers may be carefully bunched in lots of 10 packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of package/container, one sample (in duplicate) may be drawn. 2.6 Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain, and in the case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and so samples need be drawn.” 13. As per the standing order, minimum quantity of 24 gms. in each sample is required for the chemical test in respect of opium. The procedure also provides that sample should be taken in duplicate. It is also provided that contraband drugs found in the bags or containers should be well mixed to make it homogenous and representative before taking the samples. In case of seizure of single packet or container, one sample in duplicate is required to be drawn and in case of opium, the quantity should not be less than 24 gms. It is also provided in the standing order, that when the package or container seized together are identical in size and weight bearing identical markings, which gave identical result on colour test by drugs identification kits, it is permissible to bunch in a lot of ten packets in case of drugs other than ganja and sample may be drawn from the bunch of packets. In the instant case, as evident from the oral testimony of PW 1, PW 2, PW 3 and PW 4, five packets containing opium were seized, out of which, four packets were identical in size and weight and contained almost similar quantity of opium. In the instant case, as evident from the oral testimony of PW 1, PW 2, PW 3 and PW 4, five packets containing opium were seized, out of which, four packets were identical in size and weight and contained almost similar quantity of opium. PW 3 categorically stated that he took the contraband drugs from the packets P-1, P-2, P-4 and P-5, which were almost identical in size and weight and after mixing them homogenously, he took sample of 25 gms in duplicate which were marked as S 1 and D1. The packet P-3 contained less quantity and therefore, he took a separate sample in duplicate from the packet P-3, which were also marked as S2 and D2 and both the samples were sent for chemical examination. 14. The evidence of PW 4 and the FSL report (Ex-18) shows that both the samples (i.e S1 & S2) gave positive test for opium. Evidently five packets of seized opium were marked as P-1, P-2, P-3, P-4 and P-5 and except P-3, other four packets contained almost identical quantity of contraband articles. The PW 3 clearly stated that he had mixed the contraband collected from the packets P 1, P-2, P-4 and P-5 to make it homogenous and samples of 25 gms. in duplicate were taken from such mixed and homogenous lots. PW 3 further stated that, one packet (P-3) contained drugs in less quantity and he took a separate sample in duplicate from the said P-3 packet. Thus, the procedure adopted by the PW 3 in taking sample appears to be quite in conformity with the standing order No. 1/89 and therefore, I do not find any illegality or irregularity committed by the PW 3 in while taking sample in the instant case. Since the representative sample of required quantity, as per the standing order, was taken from the four packets (P-1, P-2, P-4 & P-5) and also a separate sample of required quantity from the remaining packet (P-3) containing less quantity and both the samples were sent for chemical examination, it cannot be said that there was non-compliance of the procedure laid down in the standing order of the Government in taking sample of opium. Oral testimony of the PW 4 and the FSL report (Ex-4) also supported the version of the PW 3 that both the samples were sent for examination. Oral testimony of the PW 4 and the FSL report (Ex-4) also supported the version of the PW 3 that both the samples were sent for examination. When samples were taken as per laid down procedure, there cannot be question of prejudice. Prejudice being a question of fact, there must be some materials on record to indicate as to how the accused was prejudiced in spite of the PW 3 having followed the required procedure for taking sample. There cannot be any presumption of prejudice merely on surmise and conjecture without any material on record. When the samples were taken as per laid down procedure and the accused has not been able to show any material or fact causing prejudice to him, there cannot be presumption of any prejudice out of nothing. (iii) Requirement of the provision of section 50 of the NDPS Act was complied 15. Learned counsel for the appellant submitted, that while conducting body search of the accused/appellant, the officer did not inform the accused/appellant about his right to be searched by or in presence of a Gazetted Officer or a Magistrate. Learned counsel relying on the Constitution Bench judgment of the Apex Court in State of Punjab v. Baldev Singh, (1999) 6 SCC 172 as well as State of Rajasthan v. Paramananda, (2014) 5 SCC 345 and Dilip Singh v. State of M.P, (2007) 1 SCC 450 , submitted that before searching the body of a person, it is obligatory on the part of the officer empowered u/s 42 of the NDPS Act, to inform the person that he has a right to get his body searched in presence of a Gazetted Officer or a Magistrate and if the person desires that his body search should be conducted in presence of a Gazetted Officer or a Magistrate, the officer empowered u/s 42 of the NDPS Act should immediately take him before such officer or Magistrate for conducting the body search. The Apex Court in State of Punjab v. Baldev Singh (supra), laid down the object and purpose of section 50 of the NDPS Act. The Apex Court held that the provision of Section 50 are intended to serve dual purpose-(i) to protect the person against false accusations and frivolous charges and (ii) to lend credibility to the search and seizure conducted by the empowered officer. The Apex Court held that the provision of Section 50 are intended to serve dual purpose-(i) to protect the person against false accusations and frivolous charges and (ii) to lend credibility to the search and seizure conducted by the empowered officer. What the Apex Court in the decisions cited by the learned counsel emphasized is that informing the accused about his right to be searched before a Gazzetted Officer or a Magistrate is a right of the accused and failure to inform the person concerned about the existence of his right to be searched before a Gazzetted Officer or a Magistrate would cause prejudice to the accused. The Apex Court, however, held that such information, about the right of the accused to be searched before a Gazzetted Officer of a Magistrate, need not necessarily be given in writing, it may also be oral. What is essential is that the accused must be informed about his right. It is no doubt true, that if such valuable right, which is intended, on the one hand, to protect the accused from false accusation and frivolous charge and on the other hand, to attract more authenticity and credibility to the search and seizure, if denied and the information to the accused to be searched is not given as required u/s 50 of the Act, the proceeding would stand vitiated. Whether the accused was informed about his right or whether the provision of section 50 of the NDPS Act was complied with, is a question of fact which needs to be ascertained from the evidence brought on record. 16. PW 3 stated that during search, one passbook of Syndicate Bank, one passbook of Bank of India in the name of the accused/appellant, one mobile phone, one pan card, one driving license and cash of Rs. 60,000/-, besides an electricity bill in the name of accused Nawab Khan, were recovered and seized. She also stated that before such personal search of the accused/appellant, notice was issued to the accused/appellant informing about his right to be searched before a Gazzetted Officer or a Magistrate and such written notice was proved as Ex-3. The Ex-3 transpires that the accused/appellant received the said notice. Prosecution has also proved a written consent given by the accused/appellant in presence of two witnesses, which was marked as Ex-4. The Ex-3 transpires that the accused/appellant received the said notice. Prosecution has also proved a written consent given by the accused/appellant in presence of two witnesses, which was marked as Ex-4. The Ex-3, the written notice and 4, the written consent given by the accused in presence of two witnesses, were not controverted during cross-examination. 17. PW 1 stated in her evidence that PW 3 issued notice to the accused/appellant in compliance with section 50 of the NDPS act and he also stated that on receiving such notice, the accused/appellant refused to be searched before any Magistrate or gazzetted officer and he further stated that on getting the consent from the accused/appellant, PW 3 conducted the search. The evidence of this witness was not controverted during cross-examination. When the PW 1 and PW 3 have categorically stated, that before conducting body search, notice was given to the accused/appellant, vide Ex-3 informing the accused/appellant about his right to be searched before a Gazzetted Officer or a Magistrate, and such oral evidence of PW 1 & PW 3 was corroborated by the documentary evidence (Ex-3 & Ex-4), in my considered view, the requirement of section 50 of the NDPS Act with regard to informing the accused/appellant about his right to be searched before a Gazzetted officer or a Magistrate had been duly complied with in the instant case. (iv) The contradiction with regard to colour of the contraband:— 18. Learned counsel submitted that there were contradictions in the evidence of the prosecution with regard to the colour of the seized materials inasmuch as, the prosecution witnesses stated in their evidence that sticky brown colour substances were seized by the PW 3, whereas, the PW 3 admitted that the material exhibits (the seized contraband) were described as black colour sticky substances. According to learned counsel for the accused/appellant, such discrepancy is fatal for the prosecution case. To buttress her submission, the learned counsel placed reliance on a decision of Hon'ble Delhi High Court, reported in 2013 (3) JCC (NAR) 94, Hannan v. State of NCT, Delhi. According to learned counsel for the accused/appellant, such discrepancy is fatal for the prosecution case. To buttress her submission, the learned counsel placed reliance on a decision of Hon'ble Delhi High Court, reported in 2013 (3) JCC (NAR) 94, Hannan v. State of NCT, Delhi. In the said case dealt by Hon'ble Delhi High Court, there were certain discrepancies inasmuch as, some of the witnesses stated that the ganja seized, was recovered from one pink punny packets kept in one suitcase and some witnesses have stated that the black colour ganja was recovered from the punny orange polythene packets kept in two suitcases and some other witnesses had stated that a pink colour ganja were recovered from other suitcases. In view of the above contradictory evidence with regard to recovery of ganja of different colours from a different kind of containers, a doubt was expressed by the Hon'ble Delhi High Court. 19. In the present case, there was no difference in the oral testimony of the witnesses. PW 1, PW 2 & PW 3 deposed that the sticky substances of dark brown colour were found in five polythene packets seized from the possession of the accused/appellant. However, in the said polythene packets marked as material exhibits 1 to 5, the description of the articles was given as black colour sticky substances. In my considered view, the oral testimony of PW 1, PW 2 and PW 3, that the articles found were dark brown colour sticky substances and the description given on the seized packets in P-1, P-2, P-3, P-4 and P-5 (Mat. exhibits 1 to 5) that it was black colour sticky substance does not make any significant difference, nor such minor discrepancy can go into the root of the prosecution case, inasmuch as, all discrepancies are not contradiction. The difference in between two statements of facts can be treated as contradiction only when such statements are most significant, mutually destructive and irreconcilable. Mere difference of perception regarding a fact may not be contradiction to affect the veracity of the prosecution case. If we consider the black colour and dark brown colour of the article, as deposed by the PW 1, PW 2 and PW 3 and the description on Mat. exhibits 1 to 5, such minor discrepancy in describing the article in the M. Exts. If we consider the black colour and dark brown colour of the article, as deposed by the PW 1, PW 2 and PW 3 and the description on Mat. exhibits 1 to 5, such minor discrepancy in describing the article in the M. Exts. 1 to 5 and the oral testimony of PW 1, PW 2 and PW 3 can only be attributed to difference of perception so far the colour of the seized articles was concerned, because of close proximity of the two colour, i.e., the “dark brown colour’ and “black colour”. 20. The facts dealt by the Delhi High Court was distinguishable, inasmuch as, different witnesses have stated the colour of the articles to be different. Some of the witnesses had stated the colour of the articles as pink, some of the witnesses had stated black, whereas, some witnesses had stated creamy colour ganja. Besides, the witnesses also stood contradicted with regard to the container in which the contraband was carried. Obviously there was significant difference and contradiction in the cases dealt by the Hon'ble Delhi High Court. But in the instant case all the witnesses in their evidence stated, that the seized contraband were dark brown colour sticky substance and the description given on the Material exhibits, it was described as sticky substances of black colour. The “dark brown” and “black colour” being not in contrast and because of their proximity, the discrepancy in describing the colour, in the facts and circumstances of the case, was insignificant and cannot create any dent in the prosecution case. It may only be considered as difference of perception, which is probable when both the colours are almost similar inasmuch as, black and dark brown colour cannot be considered as a contrast colour. (v) Whether place of seizure was not proved. 21. Learned counsel for the appellant submitted that prosecution has not been able to prove beyond reasonable doubt that the contraband drugs in the instant case was seized from the exclusive possession of the appellant. Learned counsel contended that the contraband articles were seized from the first room of the house in question, but no evidence was adduced that the house belonged to the accused/appellant. Learned counsel contended that the contraband articles were seized from the first room of the house in question, but no evidence was adduced that the house belonged to the accused/appellant. It was further contended that there was discrepancy in the address of the accused/appellant given in the bank passbooks seized from the accused/appellant and the address mentioned in Ex-1, the secret information, which was reduced to writing. Learned counsel, relying in the following decisions, vehemently argued, that the prosecution failed to prove that the articles in question were seized from the possession of the accused and therefore, no conviction could be recorded. (i) (2014) 3 GLT 610, Abdul Malik v. State of Assam. (ii) (2014) 3 GLT 304, Raju Ali v. Union of India (iii) (2010) 4 GLT 281, Abani Nandi v. State of Tripura. 22. In Abani Nandi (supra), the accused was facing trial for cultivating contraband ganja. As no evidence with regard to ownership of the land was produced, this Court held that the charge against the accused was not proved. In Raju Ali (supra) dealt by the Apex Court when the search was conducted by the concerned officers, they did not call any independent witness from the locality, rather a witness was taken with them from Guwahati city, though the place of occurrence was at a distance of about 30 kms. from the city. It was the plea of Customs officials that the local independent witness may not cooperate with them and therefore, they took the witness with them from the city. On the said facts, the apex Court held that the requirement of presence of independent witnesses was not satisfied. In Abdul Malik v. State of Assam there was no independent witness at all to witness the search and seizure. All these three cases, in my considered opinion, are of no help to the defence in the instant case as factual matrix of all those cases were quite different. In the present case, PW 5 was an independent witness, who accompanied the NCB team to the house of the accused/appellant. 23. All these three cases, in my considered opinion, are of no help to the defence in the instant case as factual matrix of all those cases were quite different. In the present case, PW 5 was an independent witness, who accompanied the NCB team to the house of the accused/appellant. 23. PW 3, the seizing officer, stated in his evidence, that on reaching the place of occurrence, i.e., Lalmati, they found two persons, namely, Birendra Sarma and Himangshu Borah, who on request of the NCB team, agreed to accompany them and the NCB team along with these witnesses went to the house of the accused/appellant and knocked the door of accused Nawab Khan. The accused Nawab Khan came out and also introduced himself to be Nawab Khan. PW 1 supported the testimony of PW 3 that the independent witness PW 5 and one Himangshu Bora, who were found at Lalmati, accompanied the NCB team to the house of the accused/appellant. PW 1 further stated that it was the independent witnesses, who knocked the door of House No. 19, wherefrom the accused Nawab Khan came out and introduced him to be Nawab Khan. 24. PW 5, the independent witness stated, that while he was coming back home, at about 1 to 1.30 pm, the police personnel asked him to lead them to the house of Nawab Khan. He stated that he accompanied the team to the house of Nawab khan and after opening the gate, he called the accused Nawab Khan and the accused Nawab Khan came out from his house. During cross-examination, it was elicited, that the accused/appellant was known to PW 5. It was also elicited during cross-examination, that seeing them on the road, police stopped their car and asked them to show the house of Nawab khan. The accused Nawab Khan also in his examination, u/s 313 CrPC stated, that PW 5 was known to him. What is therefore, abundantly clear from the testimony of PW 1 PW 2 & PW 3 as well as PW 5 is, that PW 5 was not a pocket witness of the NCB, rather he was found at Lalmati near the house of the accused/appellant by the NCB team and on request of the NCB team, he accompanied the NCB team to the house of the accused/appellant. This apart, PW 5 was admittedly known to the appellant. This apart, PW 5 was admittedly known to the appellant. Learned counsel for the appellant submitted that the consent letter, (Ex-4), search-cum-seizure list (Ext-12), the Panchnama, (Ex-13), the address of the house of the accused/appellant was mentioned as House No. 19, Lalmati, Shiv Mandir Road, Sarusajai, Basistha, but in the other document, the address has been mentioned as Lalmati, Basistha. It was further contended by the learned counsel that Sarusajai is far way from Basistha and therefore, there was a discrepancy in the address of the accused/appellant, which casts a doubt on the prosecution case. 25. It is evident from the testimony of PW 6 the investigating officer, that the address given in the passbook was House No. 19, Lalmati, Sarusajai, Beltola. Evidently the passbooks of the accused/appellant were seized at the time of seizure of contraband articles from his house and the address given in the passbook of the accused/appellant and the address given in Exts. 4, 12 & 13 were similar, as in all these documents the address of the accused/appellant was mentioned as House No. 19, Lalmati, Sarusajai. However, in some case, Beltola and in another case Basistha have been mentioned. Beltola and Basistha are large areas, evidently, under which, Lalmati area is situated. When the concise and specific address being House No. 19 at Lalmati, Sarusajai is common in all the documents merely, mentioning Beltola or Basistha would not make any difference, inasmuch as Beltola make reference to a large area or locality. The pin-pointed locality is shown by the place Lalmati and House No. 19 which is same in all documents, including the pass book seized from the appellant. Therefore, it cannot be said that there was material difference or contradictions as to the address of the accused/appellant. When the address mentioned in the Ext-4, 5, 12 and 13 and the address in the passbooks of the accused/appellant, which were seized during personal search of the appellant in his house was same, i.e., House No. 19, Lalmati, Sarusajai, there is no reason for any confusion regarding the address. 26. When the address mentioned in the Ext-4, 5, 12 and 13 and the address in the passbooks of the accused/appellant, which were seized during personal search of the appellant in his house was same, i.e., House No. 19, Lalmati, Sarusajai, there is no reason for any confusion regarding the address. 26. Further contention of the learned counsel was that PW 5 was not an independent witness nor he could be considered as an independent witness in view of section 100 of the CrPC and in support of her submission, learned counsel placed reliance on a decision of the Apex court in Ritesh Chakroborty v. State of M.P, (2006) 12 SCC 321 , In the said case dealt by the Apex court an information was received by the Central Bureau of Narcotic that a person was carrying 105 kg of opium and accordingly, a team was constituted. Noticing the accused/appellant proceeding to catch a bus, the NCB team caught him. In the said case, the so-called witness (PW 2) to the search and seizure was a pan shop owner situated just in front of the office of the NCB. The Apex Couirt refused to accept the PW 2 as an independent witness for the reason that his shop was situated just in front of the office of the NCB and was known to the officials and no reason was shown as to why any other person, who was present at the place of search was not taken as a witness. In the present case, evidently PW 5 was neither a pocket witness nor there was any evidence to show that PW 5 was known to the NCB team from earlier. It is also evident from the testimony of PW 1 and PW 3 that PW 5 was found at Lalmati near the house of the accused, and on request of the NCB, PW 5 agreed to lead the NCB team to the house of the accused/appellant to witness the search and seizure. Such testimony of the PW 1 & 3 is also supported by the PW 5. It is also evident from the examination of the accused/appellant u/s 313 CrPC, that PW 5 was known to the accused/appellant. Such testimony of the PW 1 & 3 is also supported by the PW 5. It is also evident from the examination of the accused/appellant u/s 313 CrPC, that PW 5 was known to the accused/appellant. Therefore, PW 5, can by no stretch of imagination be considered as a pocket witness of the NCB, nor he can be considered as someone who did not know the accused or the house of the accused. 27. The requirement of law is that some independent person should be present to witness the search and seizure to make the search and seizure credible and trustworthy. In the present case, PW 5 appears to be a person, who was found by the NCB team near the house of the accused/appellant, who was also known to the accused/appellant. When there was no evidence to show that the PW 5 was a pocket witness of the NCB and evidence brought on record clearly indicated that PW 5 was an independent witness, I do not find any cogent reason to doubt the evidence of PW 5 in the instant case. Since PW 5 was an independent witness as apparent from the oral and documentary evidence, who knew the house of the accused and accused also knew him, and the oral evidence as well as the documentary evidence clearly indicates that the contraband drugs were seized from the house of the accused/appellant from under the bed and all these evidence leaves no doubt that the contraband articles in the instant case was seized from the possession of the accused/appellant. (vi) Place of seizure was not proved. 28. Learned counsel for the appellant contended that the statement of the accused recorded by the PW 3 u/s 67 of the NDPS Act was not voluntary and cannot be relied upon. PW 3 stated that he recorded the statement of the accused and proved the same as Ex-6. The Ex-6, the statement recorded u/s 67 of the NDPS Act shows that it was written in “Hindi” and was signed by the accused/appellant in “Urdu”. The contention of the learned counsel for the appellant was that the accused/appellant could neither read nor write the Hindi language and therefore, Ex-6 cannot be given any credence nor it can be accepted to be voluntarily made by the accused/appellant. The contention of the learned counsel for the appellant was that the accused/appellant could neither read nor write the Hindi language and therefore, Ex-6 cannot be given any credence nor it can be accepted to be voluntarily made by the accused/appellant. To buttress the submission, learned counsel placed reliance on a decision of the Apex Court in Union of India v. Balmukund, (2009) 12 SCC 161 . In the said case, purported raid was conducted in the early morning in presence of police officers and the accused was also interrogated, while he was in custody, though he was not shown as formally arrested. On the facts of the case, the Apex court was reluctant to accept the statement recorded u/s 67 of the NDPS Act as voluntary and observed as under: “The situation in which such purported statements have been made cannot also be lost sight of. The purported raid was conducted early in the morning. A large number of police officers including high ranking officers were present. Search and seizure had been effected. According to the prosecution, each of the respondent Nos. 1 and 2 were found to be in possession of 10 Kg. of narcotics. No information was sought for from them. It is doubtful whether they had made such statements on the road itself. Exhibits 20 and 21 categorically show that they were interrogated. If they were interrogated while they were in custody, it cannot be said that they had made a voluntary statement which satisfies the conditions precedent laid down under Section 67 of the Act. We, in the backdrop of the aforementioned events, find it difficult to accept that such statements had been made by them although they had not been put under arrest. As the authorities under the Act can always show that they had not formally been arrested before such statements were recorded, a holistic approach for the aforementioned purpose is necessary to be taken.” 29. In the present case, evidently, the house search was made by the NCB official and there was no police personnel present and the statement was recorded in the house of the accused. The Ex-5, the notice given for recording of statement u/s 67 of the NDPS Act and the arrest memo, Ex-7, show that the statement was recorded before the accused was arrested. The Ex-5, the notice given for recording of statement u/s 67 of the NDPS Act and the arrest memo, Ex-7, show that the statement was recorded before the accused was arrested. Since no police officer was present at the place of occurrence and the statement u/s 67 NDPS Act was recorded by PW 3 before the arrest of the accused/appellant, there is no scope for presuming that the statement u/s 67 of the NDPS Act was recorded while the accused was in custody or under any duress. Therefore, on factual matrix, the authority cited by the learned counsel for the appellant is of no help in the instant case. 30. PW 1 stated, that after recording of the statement of the accused u/s 67 of the NDPS Act in Hindi, at the place of occurrence, the same was read over to the accused Nawab Khan, who admitted the recording to be correct and put his signature therein. That the statement was read over and explained to the accused/appellant was not controverted in cross-examination. It was also elicited during cross-examination, that while his statement was recorded, the independent witness was also present. Even it is assumed that the accused could not read and write any other language, except Urdu, there is no reason for believing that the contents of Ex-6, when read over to him in “Hindi”, he would not understand. It is a common knowledge that there is no much difference between Hindi and Urdu. Be that as it may, from the oral evidence of PW 1 and PW 3 and the documentary evidence, Exts. 5 & 6 and also Ext. 7 indicating that statement was recorded before the arrest of the accused/appellant, I am of the considered view, that there was no difficulty in accepting such statement recorded u/s 67 of the NDPS Act. Even independent of the Ext. 6, the statement recorded u/s 67 of the NDPS Act, possession of opium by the appellant in the instant case has been proved beyond reasonable doubt by the oral evidence of PW, 1, PW 2, PW 3, & PW 5 as well as the documentary evidence. 31. Even independent of the Ext. 6, the statement recorded u/s 67 of the NDPS Act, possession of opium by the appellant in the instant case has been proved beyond reasonable doubt by the oral evidence of PW, 1, PW 2, PW 3, & PW 5 as well as the documentary evidence. 31. Learned counsel further submitted, that the accused stated in his statement u/s 313 CrPC that he purchased the opium from one ‘Ali’ of Manipur, but no investigation was carried out by the authority in respect of said ‘Al’i. Whether said Ali was involved in illegal trade of opium is altogether a different issue, and cannot affect the prosecution case against the accused/appellant. 32. The evidence of PW 1, 2, 3, 4 & 5 coupled with the documentary evidence having clearly established that the accused/appellant was in illegal possession of opium (contraband drugs), the impugned judgment convicting the accused/appellant u/s 17 (c) of the NDPS Act requires no interference by this Court. 33. Learned counsel for the appellant submitted that the accused is an old man of 75 years of age and considering his age leniency should be shown, so far the sentence is concerned. Minimum punishment for offence u/s 17 (c) of the NDPS Act is ten years of imprisonment which is extendable to twenty years and minimum fine of Rs. 1 lakh extendable to two Rs. lakhs. The proviso to section 17 of NDPS Act lays down, that court may, for reasons to be recorded in the judgment, impose fine exceeding to Rs. 2 lakhs. Be that as it may, having considered the age of the accused/appellant being 75 years, I am of the view that minimum imprisonment for 10 years will meet the ends of justice. So far the sentence of fine is concerned, default sentence is also reduced to one year. Thus, the accused is sentenced to imprisonment for 10 years and to pay fine as imposed by the learned trial court, in default, he shall undergo imprisonment for one year. 34. With the above modification in quantum of sentence, the appeal is partly allowed. 35. Send back the LCR.