S.C. Vyas, J.
1. Feeling aggrieved by the judgment passed by Ist Additional Sessions Judge and Special Judge, NDPS Act Neemuch dated 10-7-2003 in Special Case No. 79/2002 whereby the appellant has been convicted for the offence punishable under Section 8 read with Section 18(c) or in alternative Section 8 read with Section 18(c) and Section 29 of the NDPS Act and has been sentenced with rigorous imprisonment for 5 years and fine of Rs. 1,000/-, this appeal has been preferred.
2. The short facts of the case are that on 3-5-1998 at about 5.00 a.m. in the morning Narcotics Commissioner, Neemuch along with other officers of his department was checking vehicles on Neemuch-Chhitod Road at Ghasundi bus stand, during such checking bus bearing No. RJ-9P/0927 was stopped by the checking party and when passengers were checked then it was found that two persons sitting on seat Nos. 44 and 45 became uncomfortable seeing the checking party. Their name and addresses were ascertained by the checking party and thereafter both of them were brought down from the bus. They were informed that the checking party wants to take their search and they have got a right to be searched in presence of Magistrate or Gazetted Officer, on asking both of them agreed for being searched in presence of Gazetted Officer N. S. Dhruv P.W. 5. A memo under Section 50 of the NDPS Act was drawn obtaining their consent for search, thereafter both of them were searched and it was found that Om Prakash was carrying a polythene bag of fertilizers when that bag was opened then another bag was found inside that bag and in that other polythene bag 2 kg. 400 g. blackish substance was found. When members of the checking party tested and smelled it then it revealed that it was opium. On search appellant-Mangilal was found having two tickets of the bus in his pocket and on inquiry he stated that those journey tickets were for the journey of appellant as well as Om Prakash. Two samples of 30g each were drawn from the opium seized from the accused-Om Prakash, samples were sealed separately and seizer memo was prepared on the spot itself. Thereafter appellant and co-accused-Om prakash were arrested by the checking party, report of the incident under the provisions of Section 57 of the NDPS Act was made by Dy. Narcotics Commissioner, Neemuch along with the both accused persons and the seized articles. One sample was sent for examination to Government Opium Factory, Neemuch where on examination it was confirmed that article which was seized from the accused-Om Prakash was opium, as it was containing 10.03% Morphine, thereafter after completing other formalities of investigation appellant and co-accused were charge-sheeted before learned Special Judge. Appellant and co-accused abjured their guilt and pleaded false implication in the case. After trial learned Special Judge found appellant as well as co-accused-Om prakash guilty and sentenced both of them under Section 8 read with Section 18(c) or in alternative Section 8 read with Sections 18(c) and 29 of the NDPS Act and sentenced them for R.I. for 5 years and fine of Rs. 1,00,000/- (one lakh). Main accused-Om prakash was already in jail for more than 5 years during pendency of trial so when he deposited the fine amount and was released from jail. He has not preferred any appeal challenging the judgment of conviction.
3. In this appeal though initially conviction of appellant was also challenged but at the time of final argument learned Counsel for the appellant-Shri J. K. Joshi has confined his arguments only on the question of sentence and has expressed that he does not wish to challenge the conviction of the appellant.
4. Otherwise also prosecution witnesses Narayan Singh Dhruv P.W. 5, Rajendra Kumar Rajak P.W. 6 who were members of the search party have stated on the date of incident when the search party was conducting the search of the vehicles which were passing at Ghasundi bus stand Neemuch-Chhitod Road then they found that appellant and other person Om prakash were travelling in bus bearing No. RJ-09P-0927 and at the time of search looking to their uncomfortness they become suspicious and so they were brought down from the bus and were informed that search party wants to take their search. Thereafter they were also informed regarding their right for being searched before some Magistrate or Gazetted Officer. After obtaining their consent under Section 50 of the NDPS Act for taking search in presence of Gazetted Officer, Narayan Singh Dhruv P.W. 5 they were searched. These witnesses also deposed that on search co-accused-Om prakash was found carrying a fertilizer bag, which was containing another plastic bag and in that plastic bag 2.400kg. opium was recovered from that bag. From recovered opium two samples of 30g were made and one of that sample was send for chemical examination to Government Opium Factory. It has also been stated by these witnesses when present appellant-Mangilal was searched then two journey tickets were recovered from him, which were for the journey for Neemuch to Chhitodgarh and appellant-Mangilal on being asked informed that these tickets were for the journey of co-accused-Om prakash and for himself. Statements of appellant-Mangilal and co-accused-Om prakash were also recorded on the spot. Appellant-Mangilal in his statement Ex. P-15 which was recorded by Rajendra Kumar Rajak P.W. 6, has stated that he was carrying the opium along with co-accused-Om prakash for its delivery to one Sherukhan r/o Bhilwada. The statement has been proved by witnesses Rajendra Rajak and is admissible and not being confessional statement given to a police officer and being a statement recorded by officer of Narcotics Department. As held by Hon'ble Supreme Court in the case of Raj Kumar Karwal v. Union of India AIR 1991 SC 45 : 1991 Cri LJ 97 that 'because a Narcotic Officer does not possess all the powers of a police officer and he is not a police officer within the meaning of Section 25 of the Evidence Act hence confession to such officer does not hit by Section 25 of the Evidence Act and can be read in evidence.'
5. Apart from that confessional statement it was found on spot that main ac-cused-Om prakash and the appellant were travelling not only on adjacent seats of the bus that the present appellant was carrying journey tickets of the main accused-Om prakash also. This facts itself is sufficient to hold that he has at least abetted the commission of the offence punishable under Section 8 read with Section 18 of the NDPS Act. Driver and conductor of the bus Purushottam P.W. 3 and Kaluram P.W. 4 who signed Panchnama's Ex. P-3 to Ex. P-9 have turned hostile and not supported the case of prosecution but they have also admitted that Panchnama Ex. P-3 to Ex. P-9 bear their signature and they have also been confronted their police statement Ex. P-11 and Ex. P-12 so in such a situation if the Panchnama witnesses have not supported the case of prosecution even then witnesses Narayan P.W. 5 and Rajendra Kumar Rajak P.W. 6 got full corroboration from memos Ex. P-3 to Ex. P-9 which were prepared at the time of the alleged incident. Ex. P-10 is seizure memo of bus tickets seized from the present appellant. The seized tickets have also been pasted on the memo itself, a perusal of those tickets shows that both the tickets were for journey from Neemuch to Chhitodgarh and bearing Sri. Nos. 031942 and 031943 and seats numbers 44 and 45. This is a circumstance which conclusively establishes that present appellant was performing journey along main accused-Om prakash and was carrying journey tickets of both the passengers.
6. Learned trial Court has not committed any mistake in holding that appellant is also guilty along with main accused for the offence punishable under Sections 8, 18(c) read with Section 29 of the NDPS Act, so the conviction recorded against the appellant is well founded.
7. However, on the question of sentence appellant deserves some leniency. It is apparent from the face of record itself that sentence of 5 years R.I. was passed by the learned trial Court taking into consideration this fact that main accused-Om prakash was already in jail for more than 5 years 2 months and 8 days and, therefore, sentence of 5 years R.I. was passed with a direction to give set off all the period for which main accused-Om prakash was already in jail. Present appellant was released on bail during trial and, therefore, he was taken into custody from the date of judgment itself and still is serving his sentence. He has completed 2 years and nearly 11 months in the jail, including the period of confinement during trial. As the present appellant was not carrying the contraband article with him and he has been convicted only on the basis of carrying journey tickets of the main accused, therefore, the sentence awarded to the present appellant requires to be modified.
8. This Court feels that 3 years R.I. and fine of Rs. 1,000/- will be a sufficient punishment to the present appellant. Looking to his role in commission of crime, therefore, jail sentence awarded to the present appellant is reduced from 5 years to 3 years. Sentence of fine will remain unturned. With this modification in sentence the appeal is dismissed.