T.V. Nalawade, J.
1. The appeal is filed against judgment and order of Special Case (NDPS) No. 3/2011, which was pending in the Court of Extra Jt. Adhoc Additional Sessions Judge, Nanded. Both the appellants are convicted and sentenced for offences punishable under sections 15, 22, 25 of Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as 'NDPS Act' for short). They are also convicted and sentenced for offence punishable under section 18 (C) of the Drugs and Cosmetics Act. Both the sides are heard.
2. In short, the facts leading to the institution of the appeal, can be stated as follows:-
On 19.3.2011 Smt. Nirmala Devi, Deputy Superintendent of Police, a Gazetted Officer, received information that at Amar Complex, Gurudwara Chowk, Nanded, Satpalsingh (accused No. 1) and his servant Shankar (accused No. 2) were in illegal possession of poppy straw powder and they were selling it. Smt. Nirmala Devi was heading a special squad at the relevant time. She collected the staff and with the staff, she went to Vajirabad Police Station, Nanded as the aforesaid police station is situated within the local jurisdiction of this police station.
3. In the station diary of the police station, Smt. Nirmala Devi made entry about the information received by her at about 13.15 hours. Information was given to District Superintendent of Police about the information received by Smt. Nirmala Devi and his permission was obtained for taking action. Two panch witnesses were collected. One photographer was collected for taking photographs of the incident. One Dr. Paratwad, Resident Medical Officer of the Government Hospital, who was Gazetted Officer, was requested to accompany the raiding party and witness the incident. The entries of all these incidents were taken in the station diary of the aforesaid police station. At about 14.15 hours Smt. Nirmala Devi left the police station in Government vehicle with aforesaid persons for effecting raid. The entry about leaving police station was also made in the station diary.
4. The Government vehicles were stopped at some distance from Amar Complex and from there, aforesaid persons walked up to Amar Complex Building. There were three shops in the building on the western side. The raiding party found that the third shop from this row was in open condition and two persons (accused Nos. 1 and 2) were present in the shop. Smt. Nirmala Devi gave her introduction and introduction of aforesaid persons to both the accused. She informed to the accused persons that she wanted to take search of their shop. She and other members of raiding party offered their personal search to accused Nos. 1 and 2, to which both the accused declined. Written consent of both the accused was obtained in that regard.
5. In the presence of Resident Medical Officer and two panch witnesses, Smt. Nirmala Devi took search of aforesaid shop. They recovered dry and wet poppy straw. The total weight of poppy straw recovered from the shop was around 107 K.G. The containers and empty bags were also taken over.
6. Three samples of wet poppy straw of 180 M.L. each were separated. Similarly two samples of dry poppy straw of 500 gms. each were separated. These samples were closed and sealed and labels bearing the signatures of panchas were pasted on these sample packets. The remaining contraband was also closed and sealed in other packets and it was taken over. Nine strips of twenty tablets each of Nitrosun were found and the Officers suspected that it was also narcotic drug or psychotropic substance. The approximate value of the substance seized was around 1.12 lakhs. The cash amount of Rs. 3850/- was also found in the shop. Panchanama of this incident was prepared and photographs of the incident were taken. The panchanama was signed by the panch witnesses, the Police Officer and the Gazetted Officer. A copy of panchanama was given to each of the accused and their signatures were obtained on the panchanama in token of having received copy of panchanama. The aforesaid tablets were also seized under the same panchanama.
7. Shri. Sandip Bharti, who was present with the raiding party, gave report about the aforesaid incident to police station. The crime at C.R. No. 2/2011 came to be registered for aforesaid offences punishable under the NDPS Act. Police Inspector Shri. Kode, who was attached to this police station, took over the investigation. As the accused were produced before him and articles were produced before him, he arrested both the accused and prepared arrest panchanama. He took over the aforesaid articles and kept them in Malkhana of the police station.
8. Police Inspector Kode gave report about the aforesaid incident to the District Superintendent of Police on the same day. He obtained certificate of Judicial Magistrate, First Class, Nanded in respect of two samples which were to be forwarded to C.A. Office on 20.3.2011. He recorded statements of the members of the raiding party.
9. Police Inspector Kode forwarded samples of dry and wet poppy straws to C.A. Office with his covering letter. A sample of tables/strips was also sent. The C.A. Office gave opinion that the dry poppy straw contained 1% morphin. It gave opinion that there were traces of morphin along with other opium alkaloids in wet poppy straw. Opinion was given that nitrazepam was present in the tablets. Inspector Kode made correspondence with the Assistant Commissioner of Food and Drugs Department to obtain the opinion with regard to aforesaid tablets. It was informed that for possession and sell of these tablets, it was necessary to obtain permission of the authority created under the Drugs and Cosmetics Act and they could have been sold only under prescription of Medical Officer.
10. Police Inspector Kode collected record in respect of the aforesaid premises from the office of M.S.E.B. and Municipal Corporation. As per the record, one meter of electricity was taken in the name of accused No. 1 and he had paid the bill in respect of the meter at the relevant time.
11. Chargesheet came to be filed for aforesaid offences. To the charge, the accused pleaded not guilty. They took the defence of total denial. Prosecution examined two police officers including Bharti, Resident Medical Officer, a panch witness, carrier constable and the Investigating Officer. The panch witness turned hostile, but the remaining witnesses supported the case of the prosecution. The Trial Court has believed these witnesses. This Court is discussing the points raised by both the sides hereinafter.
12. Shri. Bharti, (PW 1) P.S.I., who gave First Information Report, has given evidence that as per the instructions received by him, he went to Vazirabad Police Station on 19.3.2013 and there, Smt. Nirmala Devi informed him about the information received by her and the action to be taken. According to him, the place where raid was to be effected was also informed to him. He has deposed that they collected panch witnesses, photographer and material required for effecting raid. He has given evidence that the Resident Medical Officer of Government Hospital, who was Gazetted Officer was requested to accompany the raiding party. Similar evidence is given by the Police Naik Shri. Kadam (PW 3). Both these officers took part in the raid. The evidence of Dr. Paratwad, Resident Medical Officer, is similar in nature. He has given evidence that he reached the police station at about 2.00 p.m. The Police Inspector Kode has given evidence that Smt. Nirmala Devi was working as Deputy Superintendent of Police, as a Gazetted Officer.
13. The evidence given by Bharti (PW 1), Kadam (PW 3) and Dr. Paratwad, Resident Medical Officer (PW 4) shows that Smt. Nirmala Devi headed the raiding party. Smt. Nirmala Devi is not examined as witness. But the evidence of aforesaid witnesses is sufficient to prove that she headed the raiding party and she was present throughout the incident of raid and seizure. Some photographs of the incident are produced, but the photographer is not examined by prosecution.
14. Bharti (PW 1) has given evidence that when raiding party went to the shop, two persons were present in the shop. He has identified accused Nos. 1 and 2 in the Court as the said two persons. He has given evidence that he and others gave their introduction to the accused and it was specifically told that there was Gazetted Officer in the raiding party. He has given evidence that all of them had offered their personal search to the accused before taking the search of the shop, but to this offer, both the accused declined.
15. Bharti (PW 1) has given evidence that when the search of shop was taken in presence of two panch witnesses and aforesaid Resident Medical Officer, they recovered dry poppy straw and liquid poppy straw. In the cross examination of Bharti, it is brought on the record that Nitrosun tablets were also recovered and a sample of these tablets was separated. He has given evidence that the total weight of dry poppy straw recovered was around 107 K.G., i.e. more than 50 K.G., which a commercial quantity. He has deposed that the weight of liquid poppy straw was around 5 K.G. His evidence shows that two samples of 500 grams of each of dry poppy straw and samples of 180 M.L. of wet poppy straw were separated by them. He has deposed that the samples, the remaining contraband and the containers were taken over under the seizure panchanama. He has given evidence that after the incident was over, he gave report in respect of the incident to the police station. The report at Exh. 14 is proved in his evidence and it is consistent on material points with his oral evidence.
16. The panchanama of seizure is at Exh. 17. It is signed by panch witnesses. Though the panch witness has turned hostile, he has admitted his signature appearing on the seizure panchanama and also the spot panchanama. The panchanama is also signed by the Resident Medical Officer and he has admitted his signature. These documents show that two samples of 500 grams each of dry poppy straw were separated and two samples of 180 M.L. of liquid poppy straw were separated. However, this document does not mention that sample packets of Nitrosun tablets were created. In this document, there is the mention of seizure of 9 strips of Nitrosum tablets and each strip was containing 20 tablets. The panchanama shows that seizure was made by Bharti (PW 1) in presence of panch witnesses and the Resident Medical Officer.
17. The C.A. report at Exh. 31 shows that a strip of tablets of Nitrosum was also sent for analysis. However, there is no mention of such sample in the panchanama and other relevant record which is being discussed at proper place. The evidence of Bharti (PW 1) shows that labels bearing his signatures and signatures of panch witnesses were pasted on the sample packets. However, he has not given specific evidence that the packets were sealed by using specific seal.
18. Bharti (PW 1) has given evidence that photographertook the photographs of aforesaid incident. Few such photographs are marked as Articles 1 to 7 in his evidence, but they are not proved as photographer is not examined.
19. The evidence of Police Naik Shri. Kadam (PW 3) is also similar to the evidence of Bharti (PW 1) on the remaining part of the incident. It appears that the seizure panchanama was written on a format of panchanama and so, the names of other members of raiding party are not appearing and there is no detail description of the incident of seizure in Exh. 17. Kadam (PW 3) has also not given evidence on preparation of sample packets of Nitrosun tablets. In the cross examination, he has admitted that a sample was given to each of the accused when the panchanama was prepared and there is such endorsement on Exh. 17 also. In case like present one, accused is not entitled to have a sample of contraband and no right is given to accused to send the second sample for analysis. It appears that due to some misconception, record of giving of sample to accused is created and such evidence is given. However, this circumstance has not created reasonable doubt about the fairness of the investigating agency. There are signatures of both the accused on Exh. 17 to show that they received a copy of panchanama.
20. Dr. Paratwad (PW 4), Resident Medical Officer has given evidence, which is similar to the evidence given by PW Nos. 1 and 3. He has given evidence that the sample packets were sealed and he had put his signatures on the sample packets. He has deposed that he signed on panchanama as he was present during search and seizure. His evidence is consistent with the record. He identified both the accused in the Court. His evidence in the cross examination shows that he could give the description of the locality, where the shop is situated. He was little bit confused about the number of signatures obtained on sample packets, but anybody is bound to be in such state of mind, when the evidence is recorded after about six months of the incident of seizure.
21. The evidence of PW Nos. 1, 3 and 4 shows that only the contraband material was present in the shop and no other article was kept for sale in the shop. This circumstance needs to be kept in mind as accused No. 2, a servant of accused No. 1, was also found in the shop at the relevant time and he has not offered any explanation.
22. Shri. Kode (PW 5), the Investigating Officer has given evidence that during investigation he produced samples before the Judicial Magistrate, First Class for obtaining certificate. The certificate at Exh. 27 issued by J.M.F.C. is about the description of the sample packets, which were two in number. It appears that a sample packet of solid poppy straw and a sample packet of liquid poppy straw were produced before J.M.F.C. It can be said that there was some misconception about the use of provision of section 52-A of NDPS Act and due to that only two sample packets, which were to be sent to C.A. Office, were produced by Kode (PW 5) before J.M.F.C. Unfortunately, the J.M.F.C. also did not know the manner of use of provision of section 52-A of NDPS Act and he gave signature on this certificate. It can be said that the proper inventory as required under section 52-A of NDPS Act was not prepared. However, this mistake is committed only due to ignorance about the manner in which the provision can be used.
23. Kode (PW 5) has given evidence that he prepared spot panchanama at Exh. 16 in presence of panch witnesses on the same day. He has given evidence that he made inquiry with Municipal Corporation to ascertain who was occupying the said shop. He has given evidence that he made enquiry with M.S.E.B. to ascertain who had taken the supply of electricity for this shop. His evidence shows that he collected relevant record from Municipal Corporation and M.S.E.B.
24. The spot panchanama at Exh. 16 of the shop shows that electricity connection was given to the shop. There were two meters for giving electricity supply. The last five digits of the number of one electricity meter were 62651. The last five digits of the other meter number were 15260. The description given of the shop in the seizure panchanama tallies with the description given by Kode and the panchanama prepared by him. This second panchanama was prepared in presence of the same two panchas, who had signed on the seizure panchanama. The spot panchanama shows that there were still remains the contraband on the floor of the shop.
25. A copy of receipt in respect of payment of bill of electricity was collected by Kode and it shows that it was in respect of meter number 550010762651 (last five digits are 62651) and accused No. 1 is the customer and user of this meter. There is copy of bill and the receipt of the relevant time. Other record like record of corporation and M.S.E.B. was in different names. As there is the direct evidence against the accused No. 1 that he was present in the shop at the relevant time and there is aforesaid material, this Court holds that the receipt and bill collected by the Investigating Officer give corroboration to the case of the prosecution.
26. Kode (PW 5) has given evidence that he sent three samples to C.A. office with covering letter. Office copy of the said covering letter is produced at Exh. 30. He has given evidence that the C.A. report at Exh. 30 pertains to the sample sent by him to C.A. Office. Kubde (PW 6) had carried the samples to C.A. Office. He has given evidence that he had taken the samples to C.A. Office on 20.3.2011, but the samples were returned by the C.A. Office as they were not properly sealed. Though there is no such record of C.A. Office, there is circumstance to show that the C.A. Office received the samples on 23.3.2011. Kubde (PW 6) has given evidence that when C.A. Office refused to accept the samples, he produced the same in Vazirabad Police Station and when they were properly sealed, he again approached in C.A. office. There is endorsement of C.A. Office on Exh. 30 to the effect that it received the samples on 23.3.2011.
27. On Exh. 30, office copy of covering letter, there is sample seal of Circle Inspector of Nanded. C.A. report at Exh. 30 shows that the samples were accepted on 23.3.2011 and the said seal tallied with the sample seal shown in Exh. 30. This Court has already made observations with regard to certificate obtained by Kode from J.M.F.C. in respect of two samples. There is no reason to disbelieve Kode in respect of his evidence that the same two samples were forwarded to C.A. Office. Some part of the order made by the J.M.F.C. on Exh. 27 is not legible. However, the remaining part shows that the J.M.F.C. found that the samples were in sealed condition and it was bearing signature of P.S.I. Bharti also. Bharti had no role to pay after depositing the samples and remaining contraband in the police station. Thus, there is no room to have doubt about the case of prosecution that the samples which were separated during the seizure panchanama, were produced in police station and the same samples were forwarded to C.A. Office. The judgment and order of the Trial Court does not show that the aforesaid circumstance was argued before the Trial Court. It appears that the samples or the empty packets, which could have been returned by the C.A. Office, after test were not produced before the Trial Court and only the remaining samples were produced. In view of the C.A. report and aforesaid circumstances, this Court holds that this circumstances has also not created reasonable doubt about the case of prosecution. This point was argued in the appeal. In view of the aforesaid circumstances, the circumstance of seizure of huge quantity of contraband and the evidence of independent witness like Resident Medical Officer, this Court holds that there was no possibility of tampering with the samples, which were closed and sealed at the time of seizure panchanama. The sample packets produced in the Court, were identified by the witnesses as they had signed on the labels pasted on the samples.
28. So far as the remaining contraband is concerned, Exh. 38 shows that police station had applied to the Trial Court to accept the remaining contraband on 20.6.2011. The endorsement of the Office of the Court and the order made by the Court shows that muddemal was not accepted by the Court as there was no space in the Court for keeping the muddemal. The record does not show that the defence had, at any point, expressed doubt about the existence of such muddemal. No desire was expressed by the defence counsel to see the muddemal in the Trial Court. Further, there is document like Exh. 11, the muddemal list which shows that on 19.3.2011 the property produced by the raiding party was accepted by the police station. Some argument was advanced in respect of the circumstance that the property was not produced before the Trial Court. But, in view of the aforesaid circumstances, there is no force in this argument.
29. The evidence discussed above shows that the prosecution has evidence of two Police Officers and also one Gazetted Officer, Resident Medical Officer. There is the record of panchanama of seizure and there is the record to show that the contraband was immediately deposited with the police station by the raiding party. Though there is some discussion with regard to section 50 of the NDPS Act in the Judgment of the Trial Court, as search of the place was conducted, there was no need of using provision of section 50 of NDPS Act. In any case, the record is there to show that there was one independent Gazetted Officer to witness the search and there was one Gazetted Officer of police in the raiding party and she was heading the raiding party. There is the record to show that accused were present in the shop and they have signed on the panchanama in token of having received the copy of seizure panchanama. Thus, there is check of the circumstantial evidence to the oral evidence given by the three witnesses.
30. There is one circumstance like absence of substantive evidence on preparation of sample packets of tablets. There is no such mention in seizure panchanam also. Even Exh. 27, the so called inventory produced before J.M.F.C. does not show that sample packet of tablets was produced before J.M.F.C. The benefit of this circumstance can be given to both the accused. However, this circumstance has not created doubt about the seizure of dry poppy straw and wet poppy straw, which was weighing more than 107 K.G.
31. The evidence of Kode (PW 5) and Exh. 26 show that report about the incident after the seizure was given to District Superintendent of Police by him on 19.3.2011 itself. The two Police Officers examined by the prosecution have given evidence about entries made in the station diary. But, the copies of the entries were not produced in the Court. It appears that the defence counsel also did not request to produce copies of station diary or original station diary in the Court. As Gazetted Police Officer was heading the raiding party, this circumstance cannot go to the root of the case.
32. The evidence of arrest panchanama in respect of accused Nos. 1 and 2, Exhs. 28 and 29 and the evidence of PW 1 and PW 3 show that accused Nos. 1 and 2 were taken in custody in Amar Complex, where the raid was effected. Huge quantity of poppy straw weighing more than 107 K.G. was recovered. There is no circumstance on the basis of which it can be said that a probability of false implication is created. Both the accused have taken the defence of total denial, even when there is both direct and circumstantial evidence against them. Only contraband articles were kept for sale, the premises was in use of accused No. 1 and he was actually found present in the shop when the seizure was made. In spite of all these circumstances, no explanation at all is offered by both accused Nos. 1 and 2. This circumstance is sufficient to infer that both the accused were in possession of the aforesaid contraband. The C.A. report shows that the dry poppy straw contain 1% morphin and opium and opium alkaloids was detected in wet poppy straw.
33. In view of the definition of 'narcotic drug' given in section 2 (xiv), the definition of 'poppy straw' given in section 2 (xviii), the definition of 'opium derivative' given in section 2 (xvi) of NDPS Act, it was necessary for prosecution to show that the substance seized falls under these definitions and then it was necessary to show that commercial quantity of the substance was recovered. There is no need to discuss the definition of psychotropic substance as there is no sufficient evidence to prove that the sample of Nitrosun tablets was separated in the presence of panchas and it was sent to C.A. Office. The C.A. report shows that the C.A. Office received three samples, one sample was in powder format (quantity seized was more than 100 K.G.) and one sample was in liquid format (quantity of around 5 K.G.). The powder form contained 1% morphin and wet substance contained opium and opium alkaloids though the percentage is not mentioned in the C.A. report. These two substances fall under section 2 (xviii) and 2 (xvi) of NDPS Act, respectively. There was no separate charge for possession of the substance defined under section 2 (xvi) and so, the case of prosecution can be considered only for possession of contraband described in section 2 (xviii) of NDPS Act. Opium straw weighing more than 100 K.G. was found in the possession of accused and it falls under section 2 (xviii) of NDPS Act. As per the notification issued by the Central Government, specifying small quantity and commercial quantity, it can be said that as per the item No. 110 of notification, commercial quantity, more than 50 K.G. was found in the possession of the accused. This offence is punishable under section 15 of NDPS Act. The aforesaid discussion shows that conviction for offence punishable under section 22 of NDPS Act is also not possible as sample of psychotropic substance was not separated in panchanama and the evidence in that regard is not convincing. Same thing can be said in respect of the conviction and sentence given under section 18 (C) of Drugs and Cosmetics Act. The conviction and sentence given for these offences need to be set aside. Both the accused are convicted and sentenced for offence punishable under section 25 of NDPS Act also. As there was possession of two accused over the contraband substance, there was no question of using section 25 which provides for giving penalty when the premises is allowed to be used by others. So, the conviction and sentence given for this offence also needs to be set aside.
34. The learned counsel for the appellants submitted that the mandatory provision of section 42 of NDPS Act was not complied with as there is no evidence to show that the information received was reduced in to writing and copy of the information was sent to Superior Officer. On this point, both the sides cited some reported cases. Other points like non production of the contraband in Court were also argued and reported cases were cited on that point.
35. The learned counsel for the appellant placed reliance on the following cases:-
(a) The case reported as 1997 CRI.L.J. 513 (BOMBAY HIGH COURT) [Lamin Bojang Vs. State of Maharashtra] is on compliance of provision of section 42 of NDPS Act. One P.S.I. had received information and so, the question of use of section 42 (2) of NDPS Act was involved.
(b) The case reported as 2006 (12) SCC 321 [Ritesh Chakarvarti Vs. State of Madhya Pradesh] is also on section 42 of NDPS Act. Therewas no independent evidence in that case and the Court held that it was necessary for Officer, who received the information to record it under section 42 (2) of NDPS Act. On facts this case is different.
(c) In the case reported as 2008 (2) SCC 370 [Directorate of Revenue and Anr. Vs. Mohammed Nisar Holia], the Officer, who had received information, had not reduced it into writing under section 42 of the Act and so, it was held that there was no compliance of the provisions.
(d) The facts of the case reported as 1996 (9) SCC 462 [Mohd. Aslam Khan Vs. Narcotics Control Bureau], show that the ownership and the possession of premises in which contraband was found was not proved and so the accused was acquitted.
(e) The case reported as 2009 (12) SCC 303 [State of Punjab Vs. Malkiat Singh] is also on the aforesaid point.
(f) In the case reported as 2007 (1) SCC 450 [Dilip and Anr. Vs. State of Madhya Pradesh], the facts show that the seizure of contraband was made from a scooter. It was held that there was need of compliance of provision of section 50 of NDPS Act. There was other circumstance like sealing was not carried out as per the procedure prescribed by law.
(g) The case reported as 2005 (3) SCC 59 [State of Rajasthan Vs. Gurmail Singh] is on sections 8 and 15 of the NDPS Act. There were loop holes in the case like Malkhana register was not produced. There was no convincing evidence on seals puts on the samples which were prepared during seizure.
(h) In the case reported as 2003 CRI.L.J. 4656 (MADRAS HIGH COURT) [Selvam Vs. State], the High Court has discussed the non compliance of the provisions of sections 50, 55 and 57 of NDPS Act. The observations show that the prosecution had failed to prove that the material seized from the accused was the same material, which was sent to the C.A. Office.
(i) In the case reported as 1996 (1) CRIMES 607 (ORISSA HIGH COURT) [Trinath Goudo Vs. State], the facts show that 36 K.G. of Ganja was seized, which was not produced before the Officer incharge of the police station. The samples also remained with the Excise Office. There was no convincing evidence on the custody of seized articles and sealing of the sample packets. Benefit of these circumstances was given to the accused.
(j) In the case reported as 2000 (4) SCC 465 [Koluttumottil Razak Vs. State of Kerala], it is held that if there is non compliance of section 42, the search and seizure become doubtful and so in such a case, corroboration from some other material is necessary. In this case, the Apex Court has referred another case decided by three Judges of Apex Court which is reported as 2000 (2) SCC 513 [Abdul Rashid Ibrahim Mansuri Vs. State of Gujrat]. In that case decided by three Judges of the Apex Court, it was held that non compliance of provision of section 42 (1) and 42 (2) of NDPS Act may not vitiate the proceeding, but would render the search and seizure suspect. Thus, the larger Bench of the Apex Court has held that when it is not practicable, the Court should not expect the compliance of the provision of section 42 (1) and (2) of NDPS Act and the Court should not insist for the evidence on compliance of this provision in that case.
(k) In the case reported as 2009 (3) Bom.C.R. (Cri.) 487 (NAGPUR BENCH) [Manojkumar @ Ashok Chiddilal Uike and Anr. Vs. State of Maharashtra], this Court held that if the muddemal property is not produced in the Court, there is a breach of mandatory provision of section 52 (A). In that case, benefit of this circumstance was given to the accused. On this point, there is the case of Hon'ble Apex Court reported as AIR 2004 SUPREME COURT 3061 [State of Punjab Vs. Makhan Chand], which is discussed hereinafter, and the observations made by this Court are not consistent with the ratio laid down by the Apex Court.
(l) In the case reported as 2004 (10) SCC 562 [Jitendra Vs. State of Madhya Pradesh], the facts show that muddemal property was not produced in the Court and when the concerned staff member of Malkhana of the Police Station was not examined to prove the same, the benefit of this circumstance was given to the accused.
(m) A copy of judgment delivered by this Court (Aurangabad Bench) in Criminal Appeal No. 6 of 2003 is produced by the learned counsel for the appellants. In that case, this Court held that there was no evidence to show that after seizure, the samples were kept in safe custody in Malkhana of Police Station. The evidence of creation of sample and use of seals was found doubtful and so, benefit of doubt was given to the accused.
(n) The facts of the case reported as 2008 (1) Bom.C.R. (Cri.) 803 (AURANGABAD BENCH) [Tirupati Rajmalu Walal and Ors. Vs. State of Maharashtra] show that the accused was not knowing Marathi and there was doubt about compliance of provision of section 42 and 50 of NDPS Act. Further, the Court held that the conscious possession over the contraband of the accused was not proved when the recovery of contraband was made from the car.
(o) In the case reported as 2011 DGLS (Soft.) 370 [Ram Singh Vs. Central Bureau of Narcotics], the Apex Court held that the servant of hotel/accused was not in conscious possession of contraband. There was only evidence of retracted confession against the accused that the accused had brought the substance from the house of owner of the hotel for sale.
(p) A copy of the judgment delivered by this Court (AURANGABAD BENCH) in Criminal Appeal No. 86/2013 with connected matter decided on 12th August 2013 is produced. In this case, the provisions of sections 41, 42 and 57 are discussed by this Court. One P.S.I. had received the information and there were discrepancies with regard to the compliance of the provisions of the aforesaid sections.
36. On the other hand, the learned APP placed reliance on some reported cases as follows :-
(i) In a case reported as (2003) 8 Supreme Court Cases 449 [M. Prabhulal Vs. Assistant
Director, Directorate of Revenue Intelligence], the Apex Court has discussed the provisions of sections 41 and 42 of NDPS Act. The relevant observations are as follows:-
"It is clear from Section 41 (2) that the Central Government or State Government, as the case may be, can only empower an officer of a gazette rank who can either himself act or authorize his subordinate on the terms stated in the section. Under sub-section (1) of Section 42, however, there is no restriction on the Central Government or the State Government to empower only a Gazetted Officer. But on an officer empowered under sub-section (1) of Section 42, there are additional checks and balances as provided in the proviso and also provided in sub-section (2) of Section 42. It is clear from the language of sub-section (2) of Section 42 that it applies to an officer contemplated by subsection (1) thereof and not to a Gazetted Officer contemplated by sub-section (2) of Section 41, when such a Gazetted Officer himself makes an arrest or conducts search and seizure.
It can, thus, be seen that Section 42 and 43 do not require an officer to be a Gazetted Officer whereas Section 41 (2) requires an officer to be so. A Gazetted Officer has been differently dealt with and more trust has been reposed in him can also be seen from Section 50 of the NDPS Act which gives a right to a person about to be searched to ask for being searched in the presence of a Gazetted Officer.
The High Court is, thus, right in coming to the conclusion that since the Gazetted Officer himself conducted the search, arrested the accused and seized the contraband, he was acting under section 41 and, therefore, it was not necessary to comply with Section 42."
(ii) In a case reported as (2004) 5 Supreme Court Cases 188 [State of Haryana Vs. Jarnail Singh and Others], when the District Superintendent of Police was also member of searching party and so exercising his authority under section 41, the Apex Court held that the provison of section 41 of NDPS Act was not attracted. (iii) In a case reported as (2007) 11 Supreme Court Cases 314 [State, NCT of Delhi Vs. Malvinder Singh], when A.C.P. was part of raiding party, the Apex Court held that the provision of section 42 of NDPS Act was not applicable.
(iv) In a case reported as AIR 2001 SUPREME COURT 3190 [Sajan Abraham Vs. State of Kerala] decided by three Judges of Apex Court, it is laid down that if in a case, the following of mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then prosecution case should not be thrown out. In view of the facts of that case, it was held that inference of violation of provision of section 42 of NDPS Act cannot be drawn.
(v) In a case reported as AIR 2004 SUPREME COURT 3061 [State of Punjab Vs. Makhan Chand], the Apex Court has laid down that non compliance of the procedure laid down under section 52-A is also not inexorable. This ratio shows that the case cited supra reported as 2009 (3) Bom.C.R. (Cri.) 487 (NAGPUR BENCH) [Manojkumar @ Ashok
ChiddilalUike and Anr. Vs. State of Maharashtra] can be of no help to the accused from the present case.
37. In the present case, the evidence has established that Smt. Nirmala Devi, who was Gazetted Police Officer, had headed the raiding party. In view of this fact, there was no need of compliance of provision of section 42 of NDPS Act. The Apex Court has discussed the difference between the Gazetted Officer, exercising his authority under section 41 and other officers, who are mentioned in section 42. Further, in view of the two cases of Apex Court decided by three Judges viz. Sajan'scase and Abdul Rashid Ibrahim Mansuri's case cited supra, it can be said that in a particular case, the Court can give finding that the compliance of provision of section 42 was not practicable and on that ground, the Court may refuse to give acquittal. It can be said that when there is situation like the recovery of contraband by chance, when the recovery is made immediately after the receipt of information and there was possibility of giving opportunity to the accused to escape due to following of the procedure laid down in section 42 (2) of NDPS Act, the Court can give finding that the compliance of provision of section 42 (2) was not necessary. There is the evidence in the present case to corroborate the version of P.S.I. Bharti (PW 1) who made seizure. In view of the facts and circumstances of this case, this Court holds that there was no need to comply the provision of section 42 (2) of NDPS Act.
38. The Investigating Officer gave report to District Superintendent of Police after preparing arrest memos and that document is at Exh. 26. This document contains the details about the seizure, the production of contraband before him and arrest of two accused. The report was given on the same day. Thus, there was sufficient compliance of provision of section 57 of NDPS Act.
39. The evidence of Bharti (PW 1) and the Investigating Officer Kode (PW 5) shows that immediately after the seizure of contraband, the property was produced in the police station. There is the aforesaid report of the Investigating Officer and there is the other evidence including the record of police station which is already discussed. Thus, there was sufficient compliance of provision of section 55 of NDPS Act.
40. In the case reported as AIR 2003 Supreme Court 3184 [Megh Sing Vs. State of Punjab], the point of possession of contraband is discussed by the Apex Court. Following observations are made by the Apex Court in that case :-
"S. 20 (b) makes possession of contraband articles an offence. In order to make the possession illicit, there must be a conscious possession. The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meaning in contextually different backgrounds. It is impossible, to work out a completely logical and precise definition of 'possession' uniformally applicable to all situations in the context of all statues. Possession in a given case need not be physical possession but can be constructive.
The word 'possession' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Sec. 35 of the Act gives a statutory recognition to this position. Similar is the position in terms of S. 54 where also presumption is available to be drawn from possession of illicit articles."
41. The oral evidence given against the accused is already discussed. The circumstances that these two accused together contested the matter in the Trial Court and they filed the appeal together in this Court are sufficient to corroborate the case of prosecution that right from the beginning these two accused were together. They did not give any explanation at the time of the seizure or even after the seizure. No other article was kept in the shop for sale. All these circumstances are sufficient to infer the knowledge and participation of accused No. 2 in the offence. There is convincing evidence on the point of possession of accused No. 1 of the premises, in which the contraband was found and the other record is sufficient to prove that he was the owner and he was in possession of the contraband.
42. The evidence as against the accused Nos. 1 and 2 is sufficient to prove the offence punishable under section 15 of the NDPS Act. This Court holds that the Trial Court has not committed error in convicting the appellants for the offence punishable under section 15 of the NDPS Act. In view of the discussion already made, this Court holds that the conviction and sentence given by the Trial Court for the other offences need to be set aside. The Court has given minimum sentence for offence punishable under section 15 of NDPS Act and so, it is not possible to interfere in the judgment and order on the point of penalty also. In the result, the following order.
ORDER
(I) The appeal is partly allowed.
(II) The judgment and order of Trial Court, convicting and sentencing the appellants for offences punishable under sections 22 and 25 of NDPS Act is hereby set aside. The conviction and sentence given to appellants for offence punishable under section 18 (C) of Drugs and Cosmetics Act is also set aside. The fine amount, if any, paid by the appellants for the offence punishable under section 18 (C) of Drugs and Cosmetics Act is to be returned to the appellants.
(III) The appeal filed against the judgment and order of conviction and sentence given to appellants in respect of offence punishable under section 15 of NDPS Act stands dismissed.
(IV) The remaining part of the judgment and order regarding the disposal of the muddemal property is not disturbed.