Sarojnei Saksena, J.
1. Appellantaccused has assailed his conviction' under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short, the Act) and sentence to undergo rigorous imprisonment for 10 years and a fine of Rs. one lac; in default of payment of fine, to undergo further rigorous imprisonment for two years, by judgment dated January 24, 1987, and order dated January 27, 1987.
2. The factual matrix of the case is that on January 30,1986, at about 2 P.M. ASI Kharatilal of CIA Staff Hisar along with ASI Hans Raj and five constables was going towards village Ramayan for crime detection and patrolling duty. When they crossed four or five paces from G.T. road towards village Ramayan, they spotted accused-appellant coming from the side of village Ramayan. On seeing the police party the accused pretended to sit for urination. On suspicion he was apprehended. His personal search was taken by ASI Kharati Lal, who found 800 grams of opium wrapped in a wax paper in the left Dub of his Tahmad which he was putting on. The accused was not having any permit or licence to possess opium. A sample of 10 grams was separated. This sample and the residue were duly sealed on the spot with the seal of 'R.R.'. Recovery Memo was drawn. Site plan was prepared. Ruga was sent to police Station Sadar, Hansi, for registration of the case. After completing the usual investigation on the spot, the accused and the contraband were brought to the Police Station. Case property was deposited in the Malkhana with Moharrar Head Constable. Copy of the FIR and case diary were sent to D.S.P. Hansi on the following day. On February 3, 1986, sample along with sample seal was sent to Forensic Science Laboratory, Haryana, Modhuban. On analysis, Chemical Examiner found that the sample contained opium. His report is Exhibit PE. On these facts, the appellant was prosecuted.
3. To prove the charge the prosecution examined SI Devki Nandan PW-1, SI Singara Singh PW-2, ASI Hans Raj PW-3 and ASI Kharati Lal PW-4. Report of Chemical Examiner Exhibit PE and affidavits Exhibits PF and PG of HCTirath Dass and HC Kanwar Singh respectively were tendered in evidence.
4. the accused denied the guilt. His plea is that of false implication. According to him, on that very day Sunder Singh of his village was arrested by CIA Staff Hisar. He went to CIA Staff and requested them to release Sunder Singh as he was innocent, but police officials paid no heed to his request. As he was rebuked by them, he also retaliated and as a sequel he was falsely implicated in this case. He examined four witnesses in his defence to prove his plea.
5. The learned trial Judge relied upon the prosecution evidence, disbelieved the defence plea and held that on January 30, 1986, the accused was in possession of 800 grams of opium, for which he was not having any licence or permit. Hence he was convicted and sentenced accordingly.
6. Appellant's learned counsel contended that in this case mandatory provisions of section 50 of the Act were not adhered to and on this count alone the accused is entitled to acquittal. To buttress his contention, he has relied on Chander Pal v. The State of Haryana, Criminal Appeal No. 699-SB of 1986, decided on November 11, 1994, by a Single Bench of this Court, and Suraj Bhan v. State of Haryana, 1995 (4) All Instant Judgments 34. He contended that in Suraj Bhan's case a Division Bench of this Court has held that even while discharging patrolling duty when a police officr makes a search of such contraband, he is duty bound to follow the provisions contained in Section 50 of the Act. The Division Bench has taken into consideration the judgments of the Apex Court delivered in Ali Mustaffa Abdul Rahman Moosa v. State of Kerala, 1994 (6) JT 326 : (1994 AIR SCW 4393) State of Punjab v. Balbir Singh : 1994CriLJ3702 and Mohinder Kumar v. The State of Panaji, Goa, 1995 (2) Recent Criminal Reports 599.
He contends that in this case also no doubt as per the prosecution story these police officials were going on patrolling duty but as they apprehended the accused at that point of time, they were required to follow the mandatory provisions of Section 50 of the Act as the Apex Court has held in the judgments referred to above. The facts of Chander Pal's case and that of Suraj Bhan's case are quite different. In Suraj Bhan's case when the police party stopped the accused, they informed him that his bag would have to be searched and at that time the Investigating Officer gave a notice in writing to the accused. informing him that if he requires, the search of the bag would be taken in the presence of a gazetted officer. In this case, it is evident from the statements of Kharati Lal ASI PW-4 and Hans Raj ASI PW-3 that when this police party was moving towards village Ramayan on foot from G.T. road, they spotted the accused coming from the side of village Ramayan. As the accused pretended to urinate by sitting by the side of the road, on suspicion he was apprehended. ASI Kharati Lal PW-4 after giving his personal search to the accused took personal search of the accused and found 800 grams of opium wrapped in a wax paper and put in the left Dub of his Tahmat. Hence it is a case of chance recovery. In view of Balbir Singh's case (supra), the mandatory provisions of Section 50 of the Act cannot be invoked in these circumstances. Hence the said contention is unsustainable.
7. The second contention is that on the spot where the accused was apprehended the fields are all around. A bus stand is also nearby. As the place was close to G.T. road people and vehicles often pass by that road, but even then at the time of search, no independent witness was joined. Prosecution has not explained the circumstances of non-joining of any independent witness. He also contends that from the statements of ASI Kharaiti Lal PW-4 and ASI Hans Raj PW-3 it is evident that they apprehended the accused at 2 P.M. and they were at the spot till 6 P.M. but still no independent witness was joined. Hence on this count also, the accused is entitled to acquittal.
8. This contention is also meritless. Both these prosecution witnesses have stated that at that time they could not find any person working in the nearby fields, nor anybody was present on the bus stand or on the G.T. road. Hence no independent witness was joined. Constable Partap Singh was sent to village Ramayan to bring the scales and weights. He went on foot, came back on foot, hence the delay. ASI Hans Raj PW-3 has admitted in cross-examination that after the recovery 2/3 persons had passed that way but he did not ask them to join the investigation. No adverse inference can be drawn against the prosecution from this part of the statement of ASI Hans Raj PW-3 because after the recovery if 2/3 persons had passed that way, it was immaterial whether at that point of time they were made to join the investigation or not.
The legislative mandate is that at the time of recovery if independent witneses are joined, that lends support and gives credence to the sworn testimony of the official witnesses to prove the recovery of the contraband article and to disprove the plea of false implication, but Section 100 Cr. P. C. is not a mandatory provision. The statements of ASI Hans Raj PW-3 and ASI Kharaiti Lal PW-inspire confidence. There is no suggestion even that they are inimically disposed towards the accused or they implicated the accused in this case with an oblique motive. The defence plea is not at; all put to ASI Hans RAj PW-3. ASI Kharaiti Lal PW-4 has denied the said defence plea. The trial Court has dealt with the defence plea in minutest details and has held it to be unbelievable. The sworn testimony of these official witnesses cannot be discarded solely on the ground that they are official witnesses.
9. The third contention of the appellant's learned counsel is that the prosecution has relied on the affidavit of HC Tirath Dass Exhibit PF and that of HC Kanwar Singh Exhibit PG to prove that after the seizure when the contraband was deposited in the police station Malkhana till it reached the F.S.I. Madhuban the sample was not tampered with by anybody. His contention is that these affidavits are not in accordance with the provisions of Section 297(2) Cr. P.C. They have not sworn in separately which facts are true to their knowledge and which facts are true to their belief. To support this contention, he has relied on Gopi Ram v. State of Punjab 1994(2) Recent CR 355. State of Punjab v. Nachhattaro, 1994(2) Recent CR 442, Raval Singh v. State of U. T. Chandigarh, 1988(1) PLR 369 : (1989 Cri LJ 437) Khushal Chand v. State of Haryana, 1992(3) RCR 624, Gurcharan Singh v. State of Punjab, 1981 CLR 578, Amarjit Singh v. State of Punjab, 1981 CLR 608 and State of Rajasthan v. Daulat Ram, : 1980CriLJ929 .
10. In Gurcharan Singh's and Amarjit Singh's cases (supra) link evidence was missing. In Daulat Ram's case (supra) it was held that the sample of opium changed many hands before it reached the Chemical Examiner's laboratory, but as affidavit of none was filed, its benefit was given to the accused.
11. In this case, HC Tirath Dass has deposed in his affidavit Exhibit PFthat he was working as Head Constable of Police Station Sadar Hansi on February 3, 1986. On this date HC Kanwar Singh gave him a sealed packet with sample seal bearing inscription 'RR' to be taken to F.S.L. Haryana Madhuban. He took it to the Excise Office Hisar, obtained a docket and deposited the sample in the Office of Director, F.S.L. Madhuban on February 4, 1986. He has further deposed that till the packet was in his possession, none tampered with it. HC Kanwar Singh has also deposed in his affidavit Exhibit PG that he was working as Head Constable Incharge Malkhana in Police Station Sadar Hansi from January/February 1986. Key of the Malkhana was with him. ASI Kharaiti Lal deposited one sealed packet with him on January 30, 1986, with seal impression of 'RR'. which he gave to HC Tirath Dass on February 3, 1986, to be deposited at F.S.L. .Madhuban. Thereafter HC Tirath Dass gave him a receipt showing that sample has been deposited there. He has also deposed that till the sample was in his custody it was not tampered with by anybody. These affidavits n have been deposed to be true to their knowledge and belief by these deponents. No fault can be found with these affidavits because there was no extraneous fact about which they were swearing on the basis of their belief. The authorities cited by the learned defence counsel are distinguishable on this count alone.
12. Further these affidavits were tendered in evidence on January 7,1987, in the presence of the learned defence counsel. The deponents were kept present in the Court, but the defence counsel declined to cross-examine them. Hence the contents of these affidavits were not assailed at the time when they were tendered in evidence. Thus, the contents of these affidavits are deemed to have been admitted by the accused.
13. Another contention raised by the appellant's counsel is that since both these affidavits were not put to the accused under Section 313 Cr. P.C. no finding can be based on the basis of these affidavits. To countenance he has relied on Sharad Birdhichand Sarda v. State of Maharashtra, : 1984CriLJ1738 and Kanwar Bhan v. State of Haryana, 1995(4) All Instant Judgments 106. Birdhichand Sarda's case (supra) In Sharad certain facts relied on by the prosecution and considered by the High Court for the conviction of the appellants were not put to the accused person under Section 313 Cr. P.C. Hence the Supreme Court held that these circumstances cannot be considered to base the conviction. In Kanwar Bhan's case (supra) also, since the contents of the affidavit were not put to the accused, it was held that part of the evidence cannot be acted upon to convict the accused. In this case, in question No. 3 the accused was asked that the sample along with the sample seal impression was sent to F.S.L. Madhuban through Head Constable Tirath Dass with seals intact and as per the report Exhibit PE the sample was found to be of opium. While examining the accused under Section 313 Cr. P.C. is required is that all the circumstances appearing against the accused in the prosecution evidence should be put to him so that he may explain those circumstances, if he chooses to do so. It is not required that every document or every witness should be referred to/named in such questions. What is the import of these two affidavits is that after the sample was brought to the police station and till it reached the hands of the F.S.L. officials, the sample was not tampered with. The same fact is put to the accused in question No. 3 specifically. His only answer is that he does not know.
14. In this connection, learned appellant's counsel has further stressed that compliance of the provisions of Section 55 of the Act is important because that lends assurance that the sample was not tampered with till it reached the expert's hands. Therefore, under Section 55 of the Act it is required that as soon as such seized contraband is brought to the police station, S.H.O. should put his seal thereon. In this case from the statement of ASI Kharaiti Lai PW-4 it is evident that after completing the investigation on the spot, he brought the accused and the contraband to the police station and deposited the case property in the Malkhana of the Police Station which is in charge of the S.H.O. through MHC. Hence it is duly proved that as soon as the property was brought to the police station, it was put in charge of the S.H.O. From the aforesaid affidavits, it is proved that during this transitory period the sample was not tampered with by anybody till it reached Forensic Science Laboratory, Madhuban. Even in the F.S.L. report Exhibit PE there is a specific mention that the seal on the sample was intact and it tallied with the specimen seal. Thus, it cannot be said that the above fact was riot put to the accused under Section 313 Cr. P.C. and this part of the evidence cannot be considered. Further, omission to question the accused on any incriminating circumstance appearing against him would not ipso facto vitiate the trial. Accused must show that such non-examination has actually and materially prejudiced him and has resulted in failure of Justice. Accused-appellant has failed to show how prejudice is caused to him by not examining him specifically with regard to these affidavits. It is also not shown that it has resulted in failure of Justice. Hence the prosecution has proved beyond doubt that after the seizure sample was prepared on the spot, it was duly sealed, it was brought to the police station, it was kept in the Malkhana and later on it was sent to F.S.L. Madhuban for analysis and till it reached the F.S.L. precincts the sample was not tampered with.
15. The last contention is that initially the FIR was registered under Section 9 of the Opium Act, though the challan was filed under Section 18 of the Act, but it is obvious that the provisions of this Act were not complied with. Even before the trial Judge this contention was raised and he has aptly dealt with this contention and has rightly negatived it. No infirmity can be found with that finding of the trial Judge.
16. No other point is pressed before me.
17. Consequently, the appeal, being meritless, is hereby dismissed. Conviction and sentence of the appellant are hereby confirmed.