T. Vaiphei, J.
1. This criminal appeal under Section 374(2), 1973 of the Code of Criminal Procedure read with Section 36B of the Narcotic Drugs and Psychotropic Substances Act, 1985 ('NDPS Act' for short) is directed against the judgment and order dated 16.5.2007 passed by the Ld. Special Judge (NDPS), Shillong, in Cr. (NDPS) Case No, 2 of 2006 convicting the appellants under Section 20(b)(ii)(C) of the NDPS Act and sentencing them to undergo rigorous imprisonment for a term often years with a fine of Rs. 1,00,000/- to be paid by each of them, and, an default thereof, to undergo another two years of rigorous imprisonment.
2. The case of the prosecution, briefly stated, is that on 7.2.2006 at about 8 P.M., the Superintendent of Police, East Khasi Hills District (Mr. A.R. Mawthoh), received a reliable information to the effect that some antisocial elements had crossed over from Bangladesh for going to Assam via Shillong and accordingly directed the Dy. S.P. Reorganization (Mr. Lethindra Sangma), to proceed to Umtyngar for frisking and checking vehicles. He was also instructed to take with him Sub-Inspector Y. Chhetri, the Officer-in-Charge of Ri-Bong Beat House. The said police personnel then proceeded to Umtyngar around 9 P.M. and reached the destination after about 45 minutes. On reaching their destination, the police personnel started checking the vehicles which were plying on the road throughout the night. In the morning of 8.2.2006 around 5.30 A.M., when the police personnel checked one truck coming from Dawki Road towards. Shillong, a huge quantity of contraband ganja was found inside the truck whereupon the driyer and handyman of the truck, namely, Mr. H. Kala Singh, the appellant No. 1, and Mr. Mohan Singh, the appellant No. 2, respectively, were apprehended. The police also seized the truck bearing Regd. No. AS-01/3698 and the contraband ganja at the spot and brought them to Laban Police Station. The seizure was made by the said S.I. Y. Chhetri on the authorization of the Dy. S. P., Reorganisation. The S.I. concerned then lodged a written ejahar to the Officer-in-Charge of Laban Police Station whereafter a regular case being F.I.R. No. 9(2) 2006 Laban P.S. under Section 20(b), NDPS Act was registered on 9.2.2006 against appellants.
3. On 10.2.2006, the appellants were produced before the Ld. Special Judege (NDPS), Shillong who remanded them to judicial custody. The case was endorsed to the S.I. concerned, who also seized the contraband ganja for investigation. During the course of investigation, the I.O. examined a number of witnesses under Section 161, Code of Criminal Procedure, 1973 ('Cr.P.C' for short) and collected evidence. On completion of the investigation, the police, having found a prima facie case, submitted the charge sheet against the appellants under Section 20(b) NDPS Act to stand their trial. On 12.7.2006, the Ld. Special Judge (NDPS) also found a prima facie case to go to trial and accordingly framed the charge against the appellants under Section 20(b) NDPS Act, to which the appellants pleaded not guilty and claimed to be tried. The trial court thereafter proceeded with the treial. In the courts of trial, the prosecution examined as many as six witnesses and exhibited thirteen documents and material exhibits including 140 master packets to establish the charge leveled against the appellants. At the conclusion of the trial, the trial court convicted the appellants under Section 20(b) NDPS Act and sentenced then to undergo imprisonment with fine in the mannerindicated in the beginning. On thebasis of the evidence of Shri Lethindra Sangma, Deputy Superintendent of Police (Reorganisation), Pw 3, Constable No. 365 Krishna Chhetri, Pw 5 and S.I. Yograj Chhetri, Pw 6, the trial court found that a vehicle checking had been conducted, on the instruction of the S.P., Khasi hills, at Umtyngar Bridge with effect from the night of 7.2.2006 for detecting anti-social elements moving from Bangladesh to Assam and that while checking vehicles, a truck bearing registration No. AS-01-3698 was detained in the morning of 8.2.2006 at about 580 A.M., which, on search was found to cary 140 numbers of boxes containing ganja, which were seized by the police and that the appellant No. 1 and the appellant No. 2 were the driver and the handyman respectively of the seized truck.
4. The trial court held that it could not be said that the appellants did not have knowledge about the presence of contraband ganja inside the truck because the quantity of the contraband was huge, which ruled out a case of planting of such evidence by the police and accordingly held that the prosecution succeeded in establishing that the appellants were in possession of the contraband ganja recovered from the truck. The triali court also rejected the case of the appellants that conviction could not based on the evidence of police witnesses when their evidence were not corroborated by independent witnesses. In reaching this conclusion, the trial court took into consideration the fact that there were no inhabitants in and around the place bf recovery of the contraband ganja who could come forward to be independent witnesses. Moreover, according to the trial court, the evidence tendered by these witnesses is credible and trustworthy and could not be discarded as there was no substantial infirmiiy in their evidence. On the contention regarding violation of the provisions of Sections 42 and 50 of the Act, the trial court found that the contraband ganja was detected and recovered from the truck in question when random and general checking was made on all the vehicles passing through Umtyngar Bridge throughout the night of 7.2.2006 for which the police did not have prior knowledge about the presence of contraband ganja in the truck, and, therefore, held that it was nothing but chance recovery. As it was a case of chance recovery, according to the trial court, there was no need to record the information or to forward the information to a superior officer office. The trial court accordingly held that there was no violation of Section 42 of the Act. Similarly, the trial court also held that as the contraband items were seized by physical search orithe appellants, the question of compliance with Section 50 of the Act could not arise. As per the evidence of PWs 3, 4 (Shri B. Purkayastha, the Officer-in-Charge of Laban Police Station), 5 and 6, the trial court concluded that when the master packets of the contraband ganja were kept in a separate room under lock and key of the Officer-in-Charge of the Police Station, in the absence of any evidence to the contrary, the possibility of any third person meddling with the seized articles was ruled out. It was on the basis of f the aforesaid findings that the trial Court convicted the appellants. The correctness of the views taken by the Ld. Special Judge is called into question in this appeal.
5. Assailing the impugned judgment, Mr. Dblen Phurailatpam, the learned Counsel for both the appellants, submits that the trial court has completely overlooked the evidence on record indicating that the recovery of the contraband ganja was made on prior information and was not chance recovery and of the withholding of a material evidence like G D. i.e. Laban PS. GDENO-130 dated 7.2.2006 appearing in the Seizure List dated 8.12.2006 (Ext. 9), which could have revealed that the search and recovery were made on prior information received on 7.2.2006 itself; it is the duty of the prosecution to produce the said G D. Entry to prove that the recovery was a chance recovery, and the non-production of this vital document highly warrants the drawing of adverse inference against the prosecution. He also submits that there are several discrepencies in the statements of P.W. Nos. 3, 5 and 6 on the place where the seized 140 packets were counted and also the place where seizure was actually made, Umtyngar Bridge or Laban Police Station and that these discrepencies/contradictions on the evidence of those PWs made the case of the prosecution wholly unreliable for convicting the appellants. It is also contended by the learned Counsel for the appellants that the trial court also violated the mandatory provisions of Sections 233 and 235 Cr.PC. is not calling upon the appellants to enter on their defense after it decided not to acquit them and in not hearing them on the question of sentence; the impugned conviction and sentence are thereby vitiated. Finally, the learned Counsel submits that though the weighing certificate (Ext. 10) was alleged to have been done on 8.2.2006 i.e. before the registration of the FIR, yet this document contained the FIR number therein thereby indicating that the weighing certificate is a false and fabricated document and also that when the seized truck was never produced before Court, it could not be proved that it has a hidden compartment or a modified one so as to conceal the contraband ganja. For all these reasons, thus submits the learned Counsel, serious doubts have been cast upon the prosecution case, and the appellants are accordingly entitled to benefit of doubt, and should be acquitted. Refuting the contentions of the learned Counsel for the appellants, Mr. K. Khan, the learned Additional Public Prosecutor, maintains that the appellants have failed to point out any serious infirmity in the findings of the trial court. The non-production of the so-called G D. Entry harped on by the counsel for the appellants cannot destroy the otherwise wholly consistent and credible evidence adduced on behalf of the prosecution. He contends that no whisper of suggestion was made by the appellants on the significance of this document during the trial nor did they demand the production thereof during the trial, and, as such, no adverse inference can be drawn against the prosecution by this omission. He further contends that since it is a case of chance recovery in a public place, neither Section 42 nor Section 50 of the Act is required to be complied with. He, therefore, urges this Court not to interfere with the impugned judgment of conviction and sentence, which is perfectly in order.
6. The first question which falls for our consideration is whetherthe contraband ganja was seized on prior information or chance encounter by the police. PW 3 is the Deputy Superintendent of Police (Reorganization), who was instructed by the S.P., East Khasi Hills to conduct vehicle checking on 7.2.2006 to detect anti-social elements entering Assam from Bangladesh. He testified that he took S.I. Yograj Chhetri (PW 6 and the 1.0. of the case) and Constable Krishna Chhetri (PW 5), to Umtyngar area for the operation in question and that when they reached Umtyngar Bridge around 10 P.M., they carried out checking of all vehicles plying along the road throughout the night, and it was in the mom-ing around 5.30 A.M. when they encountered one truck proceeding from Dawki Road towards Shillong, which was checked by them to detect anti social elements and just before they let go of the truck, they noticed that the portion of the body of the truck where the load was earned was modified and divided into two compartments. Earlier, they were under the impression that it was an empty truck. According to PW 3, this aroused their suspicion whereupon they asked the driver and the handyman to come out and explain their suspicion, to which the appellants declared in slang Hindi 'Thora Mai Hai!' On further enquiry about the identity of the goods, deposed PW 3, the appellants were stated to have offered them some bribe if they were allowed to proceed. PW 4 further deposed that the appellants ultimately admitted that there were some 140 packets of ganja in the vehicle, which was of No. 1 quality. It is also deposed by PW 3 that they then insisted to check and did check the vehicle through PW 6, as authorized by him in writing at the spot, and accordingly recovered 14 numbers of boxes containing a total of 2.40 quintals of ganja on the basis of disclosure made by the appellants. PW 3 further deposed that they then informed the S.P., East Khasi Hills and brought the seized truck to Laban Police Station and that prior to bringing the truck to Laban Police Station, both the truck and the contraband ganja were seized by PW 6 in his presence by preparing the seizure list. He also deposed that at the Laban Police Station, PW 6 procured weighing machine and weighed the contraband ganja in his presence, and thereafter higher police officials including the S.P. and D.GP. reached the police station whereafter the appellants informed them that the contraband ganj a belonged to one Mona based at Guwahati. According to PW 3, they i.e. himself, PW 4 and PW 6 then immediately took the empty truck and the appellants to Guwahati to apprehend the owner of the ganja, but at Guwahati, the appellant No. 1 contacted the said owner by telephone in Manipuri, which might have given a hint to the said owner that somethinghad gone wrong, and as a result, their attempt to apprehend said owner with the help of Noonmati Police Station got aborted. These are the sum and substance of the statement of PW 3. Though lengthy cross-examination was done on behalf of the defense, a perusal of the cross-examination will show that the statement of this witness is not shaken in any manner. On the contrary, the cross-examination is mostly in the nature of denial and/or suggestion.
7. Coming now to the deposition of PW 5, who was the constable accompanying PW 3, this witness also testified that he was sent on duty along with S.I. Y. Chhetri (PW 6) at Umtyngar for checking vehicles, which they did throughput the night and that the next morning between 5 and 5.30 A.M., they apprehended the truck bearing registration No. AS-01/3698, searched the same and found some 140 packets of ganja inside the track. He signed in the seizure list Ext. 9, weighing certificate Ext. 10, statements of the appellant No. 1 and appellant No. 2 Ext 11 and Ext. 12 as the witness thereof. In the cross-examination, this witness initially deposed that the seizure list was prepared at Umtyngar Bridge, but later on he deposed that the seizure list was prepared at Laban Police Station only to change this version by saying that he read the seizure list Ext. 9 at the place of occurence at Umtyngar Bridge where he put his signature as asked by PW 6, which he repeated subsequently. The trial court rightly put questions to the witness on these inconsistent answers. PW 5 thereupon clarified that the seizure list was prepared at Umtyngar Bridge, the place of seizure and he read the contents thereof then and there. Nothing was elicited in his cross-examination to falsify his examination-in-chief or to impeach his credit. The statement of this witness is wholly consistent, trustworthy and a natural. Minor discrepancies on trivial matters not touching the core of the prosecution case should be ignored while appreciating the evidence of prosecution witnesses. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. In our judgment, reading the statement of PW 5 reveals that his evidence on the whole is truthful and corroborates the evidence of PW 3 in material particulars.
8. PW 6 is the Investigating Officer, who seized the contraband ganja on the authorization 6f PW 3. It is in his evidence that on 7.2.2006 at about &30 P.M., he received a telephonic information from the Superintendent of Police, East Khasi Hills, Shillong to the effect that some anti-social elements were expected to come from across the Bangladesh border either by Dawki Road or Sohra Road towards Shillong, and was asked to conduct vehicle checking near Umtyngar Bridge together with PW 3, whom he was asked to meet at Laban PS. On reaching Laban Police Station, he along with PW 3 and PW 5 and some personnel from Border Wing Home Guards, etc. left Laban P.S. at around 9.15 P.M. and proceeded to Umtyngar Bridge where they checked the vehicles coming from both directions throughout the night. He further deposed that at around 5.30 A.M. of 8.2.2006 one truck bearing registration No. AS-01/3698 proceeding along Dawki Pynursla Road was stopped by them and that when they questioned the driver and the handyman, they admitted that they were carrying contraband ganja, whereupon PW 3 authorized him under Section 41, NDPS Act to conduct search and seizure. PW 6 went on to testify that on searching the truck, he found 140 numbers of packets therein, which was seized by him by preparing a seizure list Ext. 9, upon which PW 3,5 and himself put their respective signatures; that he along with PW 3 and others then brought the truck, the contraband ganja and the appellants to Laban Police Station; that at the police station, he took out little samples from each of the 140 packets, mixed than together and conducted test with available kit thereat, which tested positive indicating that the goods seized were contraband ganja and that they also took out samples and packed them in separate packets numbering four, which were kept in different boxes, one for FSL and one for emergency purpose. It is also deposed by PWJ that after making the seizure and taking the sample as aforesaid and after weighing the packets, which aggregated to 2,400 kilograms of contraband ganja, he handed over the same and the seized truck to the1 Officer-in-Charge of Laban PS. (PW 4) for safe custody in the Malkhana. The cross-examination of this witness could not discredit his evidence on the recovery of the contraband ganja from the ' truck, which was driven by the appellant No. 1 with the appellant No. 2 as his handyman. On the contrary, this witness corroborates the statements of P.W. 3 and 5 in material particulars.
9. The last of the material witnesses is the Officer-in-charge of Laban Police Station, who was examined as PW 4. It is in his evidence that on 8.2.2006, PW 3 along with PW 6 came to the police station and lodged a written ejahar under the signature of PW 3 stating that they had apprehended some antisocial elements and intercepted a vehicle bearing registration No. AS-01/3698 on 8.2.2006 at around 5.30 AM and that on searching the vehicle, ahuge quantity of ganja contained in 140 packets was found inside the same, which along with the vehicle was seized from the possession of the appellants No. 1 and 2. He also deposed that on receipt of the ejahar, they immediately started an enquiry and proceeded to Gauhati to arrest the main culprit, namely, Pakhimia, but when their mission failed, they returned and registered the case under Section 20(b) NDPS Act and that he entrusted PW 6 to investigate the case. He further deposed that all the seized 140 packets of ganja were kept in a separate room under lock and key, which was entered in a Malkhana register. This witness folly corroborated the statements of PW 3 and 6 on the (i) bringing of the seized contraband ganja and vehicle to the police station on 8.2.2006, (ii) the seizure of the contraband ganja by them, (iii) the quantity of the seized contraband ganja and (iv) the arrest of the appellants. The cross-examination of this witness is confined to mere denial and suggestions, which are denied by him and does not really erode his credibility. On proper analysis and objective appreciation of evidence, it is our view that the evidence of PW 4 inspires confidence for corroborating the evidence of PW 3,5 and 6.
10. The quantity of the contraband ganja seized by the police was admittedly two quintals and four hundred kilograms. There is also no dispute that the contraband seized was ganja as the same was tested positive. When the quantity recovered is so large, it does not appear to be a case of planting. This is the observation of the Apex Court in G. Srinivas Goud v. State of Assam reported in : 2005CriLJ4367 in a somewhat similar circumstances where 20 kg of a white powder-like substance called diazepam was recovered from the accused by the Assistant Commissioner, Prohibition and Excise, Secunderabad. In our opinion, the aforesaid observation will be equally applicable to this case when the quantity of ganja seized is to the order of two quintals and four hundred kilogram. It must be a remarkable police personnel to collect such huge quantity of ganja for the sole purpose of planting evidence upon the appellants, more so, when no plea was taken by the defense in the trial that the contraband items were planted by the police. The learned Counsel for the appellants lays much emphasis on some contradictions between die statements of PW 5 in the cross-examination that the seizure was made at Laban Police Station and that of the statement of PW 3 in his cross-examination that he did not count the packets of ganja at Umtyngar where the seizure was made and submits that this contradictions make the prosecution case highly doubtful. What is to be noticed is that when this discrepency in the evidence of PW 5 was questioned by the trial court, he clarified that the seizure was prepared at Umtyngar, the place of seizure. No further question was asked by the defense on this point. Consequently, we hold that the discrepency in the statement of PW 5 has been sufficiently explained, and no tangible benefit can be derived by the defense on this score. In this context, the observations of the Apex Court in State of Punjab v. Karnail Singh (2003) SCC 271 are apposite, which read thus:
12. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defense. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. See Gurbachan Singh v. Satpal Singh ( : 1990CriLJ562 . The prosecution is not required to meet any and every hypothesis put forward by the accused. See State of U.P. v. Ashok Kumar Srivastava : [1992]1SCR37 . A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in a meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. Vague hunches cannot take the place of judicial evaluation. See Inder Singh v. State (PelhiAdmn.) : 1978CriLJ766 . 'A judged does not preside over a criminal trial merely to see that no innocent person is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.' Per Viscount Simon in Stirland v. Director of Prosecution, 1944 AC 315 : (1944) 2 All ER 13(HL), quoted in State of U.P. v. Anil Singh 1988 Supp SCC 686' Doubts would be called a reasonable if they are free from a zest from abstract speculation. Law cannot afford any favourite other than the truth.' See: Shivaji Sahabrao Bobade v. State of Maharashtra : 1973CriLJ1783 , State of U.P. v. Krishna Gopal : 1989CriLJ288 and Gangadhar Behera v. State of Orissa : 2003CriLJ41 .
(SCC citations supplied)
11. On the question whether the contraband ganja was recovered on the basis of prior information or by chance, we have also duly noted the submissions of the learned Counsel for the appellants. The stand taken by the learned Addl. Public Prosecutor is that the seizure was effected by chance encounter while making random search on all vehicles passing through Umtyngar Bridge throughout the right, one of which being the seized truck which was carrying the contraband items and that the recovery was made not on the basis of prior knowledge or information. There can be no quarrel with the
proposition of law that in the case of chance recovery, it is Section 43, and not Section 42, of NDPS Act, which is applicable. If any authority is needed for this proposition of law, we may quote with benefit the following observations of the Apex Court in State of Haryana v. Jarnail Singh : 2004CriLJ2541 :
8. Section 43 of the NDPS Act provides that any officer of any of the Departments mentioned in Section 42 may seize in any public place or in transit any narcotic drug or psycho-tropic susbtance, etc., in respect of which he has reason to believe that an offence punishable under the Act has been committed. He is also authorized to detain and search any person whom he has reason to believe to have committed an offence punishable under the Act. Explanation to Section 43 lays down that for the purposes of this section, the expression 'public place' includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public.
9. Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act, and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and sunrise.
10. In the instant case, there is no dispute that the tanker was moving on the public highway when it was stopped and searched. Section 43 therefore clearly applied to the facts of this case. Such being the factual position there was no requirement of the police officer conducting the search to record the grounds of his belief as contemplated by the proviso to Section 42. Moreover it cannot be lost sight of that the Superintendent of Police was also a member of the searching party. It has been held by this Court in M. Prabhulal v. Asstt. Director, Director of Revenue Intelligence : 2003CriLJ4996 that where a search is conducted by a gazetted officer himself acting under Section 41 of the NDPS Act, it was not necessary to comply with the requirement of Section 42. For this reason also, in the facts of this case, it was not necessary to comply with the requirement of the proviso to Section 42 of the NDPS Act.'
(SCC citations supplied)
12. We have, earlier, extensively reproduced the depositions of PW Nos. 3, 5 and 6, who were the police officials who undertook the exercise of search and seizure operation in respect of the contraband ganja. It has been the consistent case of these prosecution witnesses that the recovery was made by chance, and not upon prior information or knowledge. In fact, they deposed that they checked all the vehicles passing through Umtyngar Bridge throughout the night for apprehending anti-social elements sneaking into Assam from Bangladesh through Shillong and that the seized truck was one of the vehicles checked by them at about 5.30 A.M. of 8.2.2006 wherefrom the contraband ganja was seized. A perusal of the transcript of their cross-examination will show that the truthfulness of these witnesses could not in any manner be shaken by the defense. All that is said on behalf of the defense is that these witnesses, being police personnel, cannot be believed. As recently as 2007, the Apex Court reiterated the legal position that it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police officials as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence. See Girja Prasad v. State of M.R. (2007) 7 SCC 625 (Para 25). As noted earlier, it is not the case of the defense that the contraband ganja was planted by the prosecution witnesses; no such suggestion was even made in their cross-examination. Moreover, when the quantity of the contraband seized was so large, the possibility of planting it is quite remote. Consequently, the absence of independent witnesses is hardly material for successful prosecution of the case, and the evidence of police officials such as PW 3,5 and 6 are credible and reliable enough to sustain the conviction of the appellants.
13. To demonstrate that the recovery has been made on prior information, the learned Counsel for the appellants seeks to draw support from the Seizure List dated 8.2.2006 (Ext. 9) where it is mentioned that the seizure of the contraband and the truck was shown to have been made'. In connection with Laban P.S. G Deno-130, Dt. 07.02.06' and contends that the contents of that entry would have revealed that the police had prior information about the transportation of contraband ganja in the truck, but the prosecution deliberately withheld this entry to enable them to project that it was a case of chance recovery. According to the learned Counsel, to escape the mandatory provisions of Section 42 of NDPS Act, the prosecution must establish beyond reasonable doubt that it was a case of chance recovery, and by withholding this evidence, the court is entitled to draw adverse inference against the prosecution theory of chance recovery. These contentions cannot be accepted for more than one reason. In the first place, no case was ever set up by the defense in the course of trial that the recovery of the contraband ganja was made on the basis of prior information; not even a suggestion was made to that effect in the cross-examination. True, in a criminal case, the accused has the right to remain silent, and the burden of proving the guilt of the accused is rather heavy on the prosecution and that from the evidence led by the prosecution themselves, if the accused can point out reasonable, not fanciful or imaginary, doubt, the benefit of doubt is invariably to be given to him. But in the instant case, much as we tried, we are unable to find reasonable doubt on the theory of chance recovery set up by the prosecution. Secondly, which is more important, no effort was ever made by the defense in the course of trial to call for that entry through the court. It is not necessary for the prosecution to meet each and every hypothesis put forward by the defense. It may be relevant to refer to the observations of the Apex Court in T. Thomson v. State of Kerala : (2002)9SCC618 , which reads thus:
5. Learned Senior counsel further argued that the record alleged to have been prepared by PW 1 on getting information regarding the movement of the appellants has not been produced in court. But he conceded that no motion was made on behalf of the appellants to call for the said record. There is no statutory requirement that such a record should be produced in the court as a matter of course of course. We are, therefore, not disposed to upset the finding on that score either.
(Emphasis supplied)
14. The question of drawing adverse inference against the prosecution for non-production of this document will also not arise in view of the fact that no suggestion with respect to the contents of this document was ever made by the defense. In fact, this issue is raised by the defense for the first time of hearing of this appeal. It may also be apposite to refer to the observations of the Apex Court in Ashok Kumar v. State of IN. (2006) 10 SCC 156, which are as follows:
12. Submission of Mr. Krishnamurthy that another first information report was also lodged earlier, is based only on a suggestion made to PW 10. PW 10, in his deposition, categorically denied that even before lodging the complaint, Ext. P-1, another complaint was lodged at Valathi Police Station. It is true that the learned trial Judge had recorded a contention raised on behalf of the accused that despite an application having been filed by the accused, the prosecution had failed to produce case diary and general diary relating to the date of occurence of Valathi Police Station. When however questioned, the learned Counsel could not point out from the records of the case that any such application was filed by the accused or any order had been passed by the learned trial Judge calling for the general diary from the police station. The question of drawing an adverse inference against the prosecution for non-production of the case diary or the general diary would have arisen had the court passed an order being satisfied that the prosecution intended to suppress some facts which were material for the purposes of arriving at the truth or otherwise of the prosecution case. If no such application had been filed and no order thereupon had been passed by the court, the question of drawing any adverse inference against the prosecution would not arise. We have noticed herein before that P W 10 made a categorical statement to the effect that prior to the lodging of the first information report, no other report had been lodged. If that be so, the question of production of any document did not arise unless it had been pointed out by the accused with reference to the number or the person who made such report as to the existence or recording of any other case in the general diary. Even no suggestion to that effect has been given to PW 1. We, therefore, have no hesitation to reject the said contention.
(Emphasis supplied)
15. On a conspectus of the aforesaid two decisions, neither serious doubt can be created in the case of the prosecution for non-production of the document called 'G Deno-130' by the prosecution nor can adverse inference be drawn against the prosecution for such omission. On the contrary, it is interesting to note that the defense has not even spelt out the true nature of this document. Resultantly, we reject the case of the defense that the recovery of the contraband ganja was made by the police on the basis of prior information, and not by chance encounter. Once, it is found on evidence that the recovery of the contraband ganja was made on chance recovery upon search made in a public conveyance in a public place, we have no alternative but to hold that the police were not under any obligation to follow the provisions of Section 42 of the NDPS Act. Since the recovery of the contraband items were made from a vehicle, it was also not necessary for the police to comply with the provisions of Section 50 of NDPS Act. In so far as the contention of the learned Counsel for the appellants that the seized truck was never exhibited nor did the trial court made any effort to examine whether it has a hidden or modified compartment, the contention is noted only to be summarily rejected inasmuch as the statement to that effect made by PW 3 in his examination-in-chief was never denied or disputed by the defense in his cross-examination. Therefore, the question of exhibiting the seized truck does not arise. As for his contention that since the seizing officer, namely, PW 6, and the investigating officer are one and the same person, the investigation suffers from basic infirmity and the conviction of both the appellants under such circumstances stands vitiated. We have gone through the decision of Rajasthan High Court in Ummed v. State of Rajasthan 1996 (1) Crimes 358, and examination of that decision does not lay down any hard and fast rule that whenever and wherever the complainant and the investigating officer in an NDPS Act case are one and the same, the investigation got tainted and conviction cannot be sustained. What we can understand from reading this judgment and observations of the Apex Court quoted therein is that such infirmity is bound to reflect on the credibility of the prosecution case. In the case at hand, we have already noted that the statements of these police officials examined as PW 3,4, 5 and 6 do not suffer from substantial discrepancy or inconsistency or other anomaly, which can otherwise destroy the core of the prosecution case. Moreover, no case of prejudice on account of such aberration has been set up by the defense. Therefore, on the basis of the evidence adduced by the prosecution, we hold that the prosecution has proved to the hilt that both the appellants were in possession of, and transporting two quintals and four hundred kilogram of contraband ganja in the seized truck bearing registration No. AS-01/3698 on 8.2.2006 at about 5.30 A.M. in contravention of the provisions of the NDPS Act, which is punishable under Section 20(b)(ii)(c) of that Act.
16. On the contention of the learned Counsel for the appellants that though the weighing certificate (Ext. 10) was said to have been prepared on 8.2.2006 and the FIR registered only on 9.2.2006, yet the weighing certificate shows that the FIR number was already mentioned therein and as such this document is a false and fabricated document, the contention does not have any substance inasmuch as the genuineness of this document was never impeached by the defense in the cross examination of PW 6 who prepared the same. Moreover, the witness was also never confronted with such discrepancy at the time of his cross-examination (what is cross examination for, after all. As for non-compliance of the provisions of Section 102(3), CrPC, a Division Bench of the Gujarat High Court in Gulam Nurmamad Theim v. State of Gujarat 2003 Crl L.J. 356 (366) held that in cases of chance recovery, where the recovery of the contraband has been made by empowered officer, after complying with the provisions of Sections 41, 42 and 52 of the NDPS Act, there would be no question of breach of provisions of Section 102 CrPC. We are in respectful agreement with the views taken by their Lordships of the Gujarat High Court. On a parity of reasoning, if, on the facts found, the seizure is made by the empowered police officer in accordance with the pro visions of Section 43 of NDPS Act, the need to follow the procedure laid down in Section 102(3) CrPC will stand obviated for the simple reason that the manner in which search and seizure of contraband is to be made is fully dealt with by the NDPS Act, which is a special law engrafting a procedure different from those prescribed by CrPC on such specified matters. In so far as the contention regarding the admissibility of Section 67, NDPS Act is concerned, this need not detain us in view of the decision of the Apex Court in Abdul Rashid v. State of Bihar : 2001CriLJ3290 in which it was held that a confessional statement made before a police officer is not admissible in evidence. In any case, the trial court also did not take into consideration the confessional statement of the appellants in convicting them.
It is next contended by Mr. Dolen-Purailatpam, the learned Counsel for the appellants, that the trial court did not comply with the provisions of Section 233 CrPC, which prescribes that soon after the closing of the prosecution witnesses, the court has to peruse the evidence and see whether the accused can be acquitted or not, and if the court did not acquit the acquit, he should be given opportunity to him, asking him specifically if he wants to produce defense witnesses on his behalf or not and that the trial court, having failed to do so in the instant case, the conviction cannot be sustained in law. It is true that in the instant case, no opportunity was given to the appellants to produce defense witnesses after the trial court did not acquit them at the stage of Section 233 CrPC, but then the trial did give them such opportunity just after their examination under Section 313 CrPC. A perusal of the order dated 22.3.2007 of the trial court would show that the trial court recorded that there was prima facie case against the appellants, and it was not a fit case for acquittal at that stage and that the trial court accordingly posted the case for DWs on 3.4.2007, for which the defense counsel was directed to take step. On 3.4.2007, it was further recorded in the order sheet of the trial court that no step was taken by the defense counsel to summon any defense witness and that the defense counsel, Shri Rocky Sharon submitted that he had no witness to examine as defense witness in the case whereafter the trial court adjourned the case to 10.4.2007 for production (of appellants ?) and arguments.
17. It is true that no specific question was put to the appellants on whether they wished to adduce defense evidence in the body of the accused examination, but then it cannot be seriously denied by the appellants that an opportunity was afforded to them to adduce defense witness, which they declined. It is not the form but the substance which is important. In our judgment, the trial court has substantially complied with the provisions of Section 233 CrPC, albeit at the stage of accused examination. When the appellants through their counsel and, that too, in their presence, have unequivocally and expressly declined to produce their defense witnesses, it will be travesty of justice on the part of the trial court to insist that they produced their defense witnesses because Sections 233 CrPC said so. This provision is apparently engrafted in the statute book to ensure that accused is given an adequate opportunity to defend himself effectively and, conversely, is not denied of fair trial. In our opinion, even if it is held on facts that the provision of Sections 233 CrPC has not been complied with, the conviction of the appellants would not, ipso facto, be illegal if no prejudice is caused to them. Unless prejudice is shown, omission on the part of the trial court to require the appellants to enter their defense at the stage of Section 233 CrPC, cannot render their conviction illegal. In the ultimate analysis, the test is whether on facts and in fact, prejudice has been caused to the accused or not on account of violation of Section 233 CrPC. On the facts so found, if the appellants insist strict compliance with Section 233 CrPC, conceding such demand, we are afraid, will reduce such provision to a mechanical ritual. Right to produce defense witnesses under Section 233 CrPC, notwithstanding the absence of prejudice, is not an incantation to be invoked nor rite to be performed on all and sundry occasions. We therefore, hold that the non-compliance of Section 233 CrPC by the trial court, assuming without admitting that there was such omission, on the facts found in this case, did not cause, or could not have caused, prejudice to the appellants in any conceivable manner.
18. Lastly, Mr. Dolen-Phurailatpam, the learned Counsel for the appellants, submits that the appellants were not given an opportunity of hearing on the question of sentence, which is violative of the mandatory provisions laid down by Section 235(2) CrPC. At this stage, it may be noted that no challenge was made in this appeal as to the quantum of sentence imposed upon the appellants. To satisfy ourselves on the genuineness of this grievance of the appellants, we have perused the material on record. It is seen from the order sheet dated 16.5.2007 that the appellants were fully heard by the trial court. The law is well-settled that hearing of the accused oh the question of sentence is obligatory, but that is the case here. True, the sentence hearing was done by the trial court on the day the appellants were convicted. The record reveals that no adjournment was sought for by the appellants for the sentence hearing though they along with their counsel were present in Court on that day, may, their counsel had, in fact, made his submissions on the question of sentence at length. We cannot overlook the fact that we are not, in this case, dealing with an offence punishable with death or life imprisonment and that only the minimum sentence prescribed by Section 20(b)(ii)(c) of NDPS Act has been awarded upon 'he appellants. The provisions of Section 235 CrPC are in the following terms:
235.(1) After hearing arguments and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall, unless he proceeds in accordance with the provisions of Section 360, hear the accused on the question of sentence, and then pass sentence on him according to law.
19. A cursory glance at the provisions extracted above does not, in express term, prohibit that conviction and sentence shall have to be recorded on the same day. But the law appears to be well-settled now in view of the recent decision of the Apex Court in Motilal v. State of M.R. : 2004CriLJ907 where the top court, after discussing the case laws, held:
5. We have carefully considered the submissions of the learned Counsel appearing on either side. The grievance sought to be made on the alleged non-compliance with the provisions in Section 235(2) CrPC, does not merit countenance and the decision relied upon, as noticed above, does not help to support the claim as well. The decision in Santa Singh case : 1976CriLJ1875 was one where the sentence imposed was of death; the maximum, and in such circumstances this Court thought fit to set aside the sentence alone and remand the same to give a hearing on the same. It was indicated even therein in the concurring judgment of S. Murtazala Faji Ali, J. that no grievance can be made where minimum sentence under the provisions of law has been awarded. As a matter of fact, the same Bench while dealing with the case reported in Nripal Singh v. State of Haryana : 1977CriLJ642 remitted the case for consideration afresh of the Sessions Judge the question of sentence after giving opportunity only in respect of the accused on whom death sentence was imposed and straightaway disposed of and dismissed the appeal in respect of those accused who were sentenced to life imprisonment only on being convicted of an offence of murder under Section 302 IPC. In Ramdeo Chauhan v. State of Assam : 2001CriLJ2902 a Bench of three learned Judges had occasion to consider the question in the light of the amendment made by introducing the third proviso to Sub-Section (2) of Section 309 CrPC, and observed that the plea made as to the sentence and conviction being recorded on the same day resulting in contravention of Section 235(2) CrPC, cannot be accepted and that though the normal rule be that after pronouncing the verdict of guilt the hearing should be made on the same day and sentence should also be pronounced on that day itself, in cases where the Judge feels or if the accused demands more time for hearing on the question of sentence especially when the judge proposes to impose death penalty, the third proviso to Section 309 CrPC, would be no bar for--affording such time and if for any reason the court was inclined to adjourn the case after pronouncing the verdict of guilt in grave offences, the person convicted should be committed to jail till the verdict on the sentence is pronounced.
(SCC citations supplied)
20. We have also examined the proportionality of the sentence imposed upon the appellants in view of the fact that leniency of the trial court was sought for in the course of sentence hearing on the ground that they were simply transporting the contraband ganj a to earn their livelihood and that they were not the actual owners of the same. In our view, this sentimental submission could have been accepted in so far as the fine imposed is concerned had the appellants pleaded guilty to the charge at time of charge hearing thereby obviating the need to hold lengthy trial at huge public expenses and it is now too late in the day to seek mercy even on the quantum of the fine so imposed. It must be noted that the provisions of Section 20(b)(ii)(c) of NDPS Act do not make distinction between the actual owner and mere transporter of contraband ganj a on the question of imposing sentence. The appellants have been found guilty of possessing and transporting 2 quintals and 400 kilogram of contraband ganja, which is undoubtedly a commercial quantity, in a truck in a public place. Moreover, which is more important, a perusal of Section 20 of NDPS will show that no discretion is given to a court to reduce the sentence of imprisonment to a period less than 10 years. In this connection, we are tempted to quote the following observations made by the Apex Court in 1990 in Durand Didier v. Chief Secy., Union Territory of Goa : 1990(25)ECC289 , which, according to us, are valid even today:
The organized activities of the underworld and the clandestine smuggling of narcotic drugs and psychotropic substances into this country and illegal trafficking in such goods and substances have led to drug addiction among sizable section of the public, particularly the adolescents and students of both sexes and the menace has assumed serious and alarming proportions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, casuing the deleterious effects and deadly impact on the society as a whole, Parliament in its wisdom, has made effective provisions by introducing the Narcotic Drugs and Psychotropic Substances Act, 1985 specifying mandatory minimum imprisonment and fine. In the present case the sentence of 10 years' rigorous imprisonment and the fine of Rs. 1,00,000/ - with the default clause as modified by the High Court does not call for interference.
21. We say no more. In the result, the impugned judgment of conviction and sentence does not call for our interference. The appeal fails, and is, accordingly, dismissed. The appellants, who are already in jail, shall serve out the remaining period of their sentence and pay the fine. Transmit the L.C. records forthwith.