Judgment:
R.C. Kathuria, J.
1. This appeal is directed against the judgments dated 6-6-2000 and 8-6-2000 passed by the Additional Sessions Juge, Fatehabad convicting the appellant-accused, Gurdev Kaur, under Section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentencing her to undergo rigorous imprisonment for a period often years and a fine of Rs. 1,00,000/-. In default of payment of fine, the accused was directed to undergo further rigorous imprisonment for a period of one year.
2. On 21-3-1998, Assistant Sub Inspector Anup Singh along with Constables Om Parkash, Dharampal and Dalip Singh was present at the bus stand, Ratia in connection with patrolling and detection of crime. He received a secret information that Gurdev Kaur daughter of Makhtiar Singh resident of village Ladhuwas had alighted from the bus which had arrived from Fatehabad and was sitting on the Bench waiting for boarding a bus to Village Ladhuwas. The informer also conveyed to him that she was in the business of sale of opium and it was possible that she might have come from Rajasthan carrying opium. Finding this information to be reliable, he secured the presence of Shri Dharambir Mittal, Executive Magistrate and in his presence apprehended the accused. The Investigating Officer informed the accused that he had apprehension that the bag which she was holding contained narcotic or contraband articles and for that reason search has to be conducted. A notice Ex. PC in this regard was served upon her wherein she was also informed that Shri Dharambir Mittal, Tehsildar, Ratia, Executive Magistrate, was also present and in case she had any objection she should state the same before him. In reply she informed the Investigating Officer that she had confidence in him and he could carry out the search. Thereafter, search of the bag was conducted which was found containing opium, 10 Grams opium was separated as sample and the remaining opium when weighed was found to be 980 Grams. The sample opium was put in an empty match box and the residue opium was but in a plastic bag and thereafter it was sealed by the seal of AS and the seal was handed over to Shri Dharambir Mittal. Seizure memo Ex. PD was prepared which was attested by the witnesses. Ruqa Ex. PE was transmitted to the Police Station, Ratia on the basis of which FIR Ex. PE/1 was recorded by Assistant Sub Inspector Ghisa Ram, S.H.O. of Police Station, Ratia. The Investigating Officer prepared the rough site plan of the recovery Ex. PF. On return to the police station, the sample and the residue opium along with the accused and witnesses were produced before the S.H.O., Police Station, Ratia, upon which ASI Ghisa Ram, after verifying the investigation, affixed his own seal as GR on the sample as well as on residue opium. Thereafter, on the direction of the SHO, the case property was deposited with Balwinder Singh, Moharrir Head Constable Balwinder Singh of the Police Station. The Investigating Officer also prepared the report under Sections 55 and 57 of the Act Exs. PH and PK respectively. On analysis of the sample, the Forensic Science Laboratory, Madhuban in its report Ex. PM found the sample to be opium. Thereafter, the accused was sent to trial which led to her conviction and sentence as stated above.
3. To link the accused with the crime, the prosecution examined as many as six witnesses. Sub Inspector R. N. Rathee (PW-1) had proved the report submitted under Section 173 of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the Code') on 26-9-1998. Head Constable Balwinder Singh (PW-2) testified with regard to the entrustment of the sample of the opium along with seal of AS and GR on the sample which was deposited with him on 21 -3-1998 and subsequent entrustment of the said sample to Constable Roshan Lal on 25-3-1998 for its delivery in the office of Forensic Science Laboratory, Madhuban as per certificate No. 359. He proved his affidavit Ex. PA in this regard. Constable Roshan Lal (PW-3) testified about the entrustment of the sample given to him by Head Constable Balwinder Singh on 25-3-1998 in the office of Forensic Science Laboratory, Madhuban. He also tendered his affidavit Ex. PB in support of his statement. Assistant Sub Inspector Ghaisa Ram (PW-6) maintained that on 21-3-1998, while he was posted as SHO, Ratia, Anup Singh, ASI had produced the accused, the witnesses and case property in the Police Station, Ratia. He had verified the investigation of this case and affixed his own seal GR on the sample as well as on residue opium and thereafter at his instance the case property was deposited with the Moharrir Head Constable of the Police Station, Ratio. He also proved his endorsement on report Ex. PH/1 prepared by ASI Anup Singh which was sent to DSP and thereafter he had sent the report Ex. PK to Shri Charanjit Singh, DSP, Fatehabad. The recovery of 990 Grams opium made from the bag carried by the accused at Bus Stand, Ratia on 21-3-1998 stands corroborated by Shri Dharambir Mittal, Tehsildar (PW-4) and ASI Anup Singh (PW-5).
4. The accused in her statement under Section 313 of the Code while pleading innocence, stated that on that day she had come from Village Ladhuwas and she was to go to Village Ding in order to attend the marriage of daughter of her sister. She maintained that nothing was recovered from her and she had been falsely implicated in this case by the Police. In her defence, she had examined Atma Singh, who is related to her because she is the daughter of his brother Mukhtiar Singh. He testified that Gurdev Kaur had never indulged in the sale of poppy husk or opium and had been falsely implicated in this case. The defencq version did not carry any conviction with the trial Judge and accepting the version of the prosecution, the accused was convicted and sentenced as noticed earlier.
5. Learned counsel representing the appellant-accused has assailed the judgment of the trial Judge on following three grounds:--
(i) There has been non-compliance of the mandatory provisions of Section 41(2) of the Act. which has caused prejudice to the accused. In support thereof reliance was placed on Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 (1) Rec Cri R (Criminal) 611 : 2000 Cri LJ 1384 (SC); Ranbir Singh v. State of Haryana, 2000 (1) Rec Cri R (Criminal) 738 (P & H); Gurjant Singh v. State of Haryana, 2000 (2) Rec Cri R (Criminal) 47 (P & H) and Chander v. State of Haryana, 2000 (2) RCR (Criminal) 136.
(ii) Sample was tampered with as the weight of the sample opium was found less by the Forensic Science Laboratory, Madhuban at the time of analysis than what was stated to have been separated from the bulk opium at the time of recovery.
(iii) Independent witnesses were deliberately not associated at the time of recovery which warrants rejection of the testimony of official witnesses in support of the charge against the accused.
6. The State counsel while controverting the above stand taken on behalf of the appellant contended that recovery was made from the bag carried by the accused at a public place and for that reason provisions of Section 42 of the Act did not come into play. While controverting the other submissions made, the conviction and sentence awarded to the appellant for the reasons stated in the judgment, of the trial Judge were justified.
7. Coming to the submissions made, it has come in the testimony of ASI Anup Singh that he had left police station, Ratia at 3-15 p.m. and straightway reached the Bus Stand, Ratia whim is located outside the city. It is half kilometre away from Ratia. Within ten minutes of his reaching there he had received a secret information that the accused dealt in the sale of opium and,if raid, was conducted she could be apprehended at the Bus Stand, Ratia while sitting on a bench. The Investigating Officer admitted that he did not send the secret information in writing to the police station. He did not say a word in his testimony that any information in writing about the secret information received was sent by him to his immediate superiors. Rather, no further explanation was sought from him by the defence in this regard. In order to appreciate the stand taken on behalf of the appellant about the non-compliance of the provisions of Section 42(2) of the Act by the Investigating Officer, necessarily the provisions of Section 42 of the Act have to be noticed in extenso. It reads as under:--
42. Power of entry, search, seizure and arrest without warrant or authorisation.--(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue, intelligence or any other department of the Central Government or of the Boarder Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Governemnt, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psycho tropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset.--
(a) enter into and search any such building, conveyance or place;
(b) in case of resistance, break open any door and remove any obstacle to such en-try;
(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and
(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance:
Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under Sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior.
8. The reading of the above provisions together amply brings out the purpose, purport and limitation of the operation of these provisions as they embrace the information acquired by the empowered officer in respect of narcotic drug or psychotropic substance in any building, conveyance or enclosed place.' The requirement of sending the information or grounds of such a belief to be sent in writing to the immediate superior forthwith is necessarily linked with the keeping or concealing of narcotic drug or psychotropic substance at the above mentioned places. It is one of the assepted principles of interpretation of the provisions of a statute that at the first instance the bare provisions of the enactment should be given the meaning which flows from the language of the statute. The examination of the provisions of Section 43 of the Act brings out the clear distinction about the field which is covered by the provisions of Section 43 in comparison to the field covered by provisions of Section 42 of the Act. Section 43 of the Act talks of the powers of seizure and arrest at a public place. It provides as under:--
43. Power of seizure and arrest in public places.-- Any officer of any of the departments mentioned in Section 42 may --
(a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, cdong with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance.
(b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company.
Explanation.-- 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. The above provisions vest in the empowered officer the power to seize any narcotic drug or psychotropic substance in any public place or in transit. The explanation of this section further gives expanded meaningbecause it states that for the purpose 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. There is a conspicuous omission of the word 'public'in the provisions of Section 42(1) of the Act because it does not preface the words 'any building, conveyance or enclosed place'.
10. The facts of the present case have to be evaluated keeping in view the above distinction in mind. In this case, the secret information received by the Investigating Officer confined only to one fact that the accused had alighted from the bus whcih had come from Fatehabad and was waiting to board the bus to Village Ladhuwas. The information also related to her being in the business of sale of opinum and if she was apprehended opium could be recovered from her. Obviously, she was sitting at a public place and was in the process of transit in terms of the provisions of Section 43 of the Act. This information would not be covered by the provisions of Section 42 of the Act. because it cannot be said that this information received by the Investigating Officer related to the commission of offence in respect of narcotic drug or psychotropic substance in 'any building, conveyance or enclosed place'. The provisions of Section 43 of the Act which are applicable in the facts and circumstances of the case do not require that on receipt of any information received by the Investigating Officer, it should be reduced in writing and should be sent to the immediate superiors are envisaged under the provisions of Section 42 of the Act. Therefore, the stand taken from the side of the accused that mandatory provisions of Section 42 have not been complied with by the Investigating Officer as such cannot be of any help to the accused.
11. As regards the cases which reliance has been placed by the counsel for the appellant, in case Gurjant Singh v. State of Haryana 2000 (2) Rec Cri R 47 (P & H) (supra), the facts were that on 2-2-1998, the Inspector, CIA, Bhiwani had received a secret information that accused was coming from Rajasthan border with the opium. Thereafter he held a Nakabandi and apprehended the accused along with the Rajesh and searched the accused which led to the recovery of a Kgs. opium from his possession. After the completion of the investigation, a charge-sheet was filed against the accused under Section 18 of the Act. The accused was convicted by the Additional Sessions Judge but the appeal was allowed on the short ground that there was violation of subsection (2) of Section 42 of the Act admittedly, for the reason that the secret information said to have been received by PW-2 that the accused was coming from Rajasthan border with opium was not reduced in writing and the same was not sent to the superior officials. It was also observed that Sub-section (2) of Section 42 of the Act mandates that the officer who received the information will reduce it in writing and send the same to the higher officials. Reliance was placed for this conclusion on the case Balbir Singh v. State of Punjab 1994 (1) Rec Cri R (Criminal) 719 : 1994 AIR SCW 4981 and it was held that provisions of Section 42 are mandatory. Consequently, the accused was acquitted. It is not - clear from the judgment as to whether the accused in that case was coming in a vehicle or on foot or the incriminating substance was recovered from carrier of a bicycle or from any other container or bag.
12. In case Chander v. State of Haryana 2000 (2) Rec Cri R 136 (P & H) (supra), the facts were that the Investigating Officer along with other police officials were present at the Bus Stand, Rohtak on 28-8-1988. At about 6.00 p.m. he received a secret information that the accused was dealing in the sale of opium and was sitting at Booth No. 10 from where the Bus was scheduled to go to Village Gochhi and if raided, the opium could be found in his possession. Thereafter, the Investigating Officer in the company of police officials went to Booth No. 10 where the accused was found sitting on a bench. From the personal search of the accused he recovered 200 Grams of opium from his Dhoti. In this case also one of the grounds accepted for the acquittal of the accused was that there was no evidence to the fact that secret information received by the Investigating Officer was reduced into writing and sent to the higher officials and for that reason villation of Sub-section (2) of Section 42 of the Act had been committed. Another ground was also taken into account for acquitting the accused but that aspect of the matter is not relevant to the present controversy. The fact remains that secret information received by the Investigating Officer was in respect of presence of the accused in a Booth which is an 'enclosed place' in terms of the provisions of Section 42 of the Act.
13. In case Ranbir Singh v. State of Haryana 2000 (1) Rec Cri R 738 (P & H) (supra), according to the prosecution version, on 4-7-1986, Sub Inspector along with Head Constable and other police officials were proceeding from Damdama to Bahiyan on patrolling duty. When they reached on the N.G. Canal, the Sub Inspector received the secret information that the accused was in the habit of dealing in opium. When the police party reached the Dhani of the accused, he was seen poming out of his house holding Dolu in his right hand. On seeing the police party, he started going back to his house. He was apprehended and his search led to the recovery of 2 Kgs. of opium in the Dolu which he was holding in his right had. During the course of evidence it had also come on record that when the police party had gone to the Dhani of the accused he was seen coming out of the Kotha. On the basis of evidence pn record, the Court came to the conclusion that there had been violation of Sub-section (2) of Section 42 and Section 50 of the Act. It was also observed that the provisions of Sub-section (2) of Section 42 are mandatory in nature. Resultantly, the accused was acquitted. It has to be taken from the above stated facts that the information related to his presence at his Dhani which is a building in terms of the provisions of Section 42 of the Act and not a public place in terms of Section 43 of the Act.
14. In case Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000 (1) Rec Cri R (Criminal) 611 : 2000 Cri LJ 1384 (SC), the facts were that the appellant was an auto-rickshaw driver. On the evenipg of 12-1-1988, his auto-rickshaw was intercepted by the police officials while it was proceeding to Shahpur (Gujarat). Four gunny bags containing charas were found stacked in the vehicle. The appellant was arrested and prosecuted under Section 20(b)(ii) of the Act and Section 66(l)(b) of the Bombay Prohibition Act. The trial Court ordered his acquittal but on appeal the Hon'ble High Court of Gujarat set aside the order of acquittal and convicted him for the offences under the aforesaid sections and he was accordingly sentenced. On further appeal before Hon'ble Supreme Court two grounds were raised by the counsel who was appointed as Amicus Curiae to defend him. First related to the non-compliance of the provisions of Section 42 of the Act, which according to the counsel for the accused, vitiated the seizure of the contraband articles and the second related to non-compliance of Section 42 of the Act which was enough to vitiate the search as a whole. While dealing with the import of provisions of Section 42 of the Act the discussion and observations contained in para 18 to 20 have to be quoted with advantage. The same read as under:--
18. A two Judge Bench of this Court has considered the said question along with other questions in State of Punjab v. Balbir Singh, 1994 (1) Rec Cri (Cri.) 736 : 1994 (3) SCC 299 : 1994 Cri LJ 3702. In paragraph 25 of that judgment the conclusions were laid down, of which what is relevant for this case regarding Section 42(1) is,the following:
(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carryout the arrest or search Without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must recor4 the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.
19. When the same decision considered the impact of non-compliance of Section 50 it was held that 'it would affect the prosecution case and vitiate the trial'. But the Constitution Bench has settled the legal position concerning that aspect in State of Punjab v. Balbir Singh 1994 Cri LJ 3702 (supra), the relevant portion of which has been extracted by us earlier. We do not think that a different approach is warranted regarding no-compliance of Section 42 also. If that be so, the position must be the following.
20. If the officer has reason to believe from personal knowledge or prior Information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused.
15. Stand taken by the counsel representing the State was that appellant had not disputed the recovery of charas from the vehicle and for that reason non-recording of the information received by the Police Officer at the first instance have no bearing. This stand was not accepted y making the following observation in para 21 of the judgment:--
We cannot approve the contention because non-recording of information has in fact deprived the appellant as well as the Court of the material to ascertain what was the precise information which PW-2 got before proceeding to stop the vehicle. Value of such an information, which was the earliest in point of time, for ascertaining the extent of the involvement of the appellant in the offence, was of a high degree. A criminal Court cannot normally afford to be ignorant of such a valuable information. It is not enough that PW-2 was able to recollect from memory, when he was examined in Court after the lapse of a long time, as to what information he got before the proceeded to the scene. Even otherwise, the information which PW-2, in this case, recollected itself tends to exculpate the appellant rather than inculpate him.
16. The one distinguishing feature which would be noticed from the facts of the above mentioned case is that it was auto-rickshaw and not a public conveyance in terms of the explanation contained in Section 43 of the Act. Even in the above mentioned case as would be apparent from the observations noted above, the mandatory nature for compliance of Section 42(2) of the Act has been confined to those provisions wherein it is specifically stated that 'under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate superior official. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. There is no observation made in the above mentioned case that the provisions of Section 43 of the Act would, in any manner, govern the operation of the provisions of Section 42 of the Act.
17. In fact, provisions of Sections 42 and 43 of the Act came up for consideration in case State of Punjab v. Baldev Singh, AIR 1999 SC 2378 : 1999 Cri LJ 3672. In para 10 of the judgment at page 2387 it was observed as under:--
10. The proviso to Sub-section (1) lays down that if the empowered officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, vonveyance or enclosed place, at any time between sunset and sunrise, after recording the grounds of his belief. Vide subsection (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to Sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 43 deals with the power of seizure and arrest of the suspect in a public place. The material difference between the provisions of Section 43 and Section 42 is that whereas Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure, Section 43 does not contain any such provision and as such while acting under Section 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any Narcotic Drugs or Psychotropic substances in a public place where such possession appears to him to be unlawful.
18. The above observation leaves no scope for doubt that the Court has to keep in mind the clear distinction in respect of the operation of the above two sections. In the facts and circumstances of the present case provisions of Section 42 of the Act cannot be said to be applicable because information relating to possession of the narcotic drugs by the person, who was present at a public place, had been received by the empowered officer. Therefore', the stand taken on behalf of the appellant with regard to non-compliance of provisions of Section 42 of the Act cannot be accepted.
19. The matter needs to be examined from another angle as well. Even if it is taken for the sake of argument that the provisions of Section 42 of the Act apply in the present case, still the circumstances of the case brought on record do not warrant that the case of the prosecution be rejected outright on account of non-compliance of provisions of Section 42 of the Act. As already noticed, the Investigating Officer ASI Anup Singh, on receipt of the secret information against the accused, immediately took two steps to ensure that he was able to nab the accused before she could board the bus for her destinction as per secret information received by him. The first immediate step taken was to depute Constable Dharampal to call the Tehsildar, Ratia at about 3.45 p.m. or 4.00 p.m. In the meantime, he kept a watch on the accused. The distance between the Tehsil office and the place of occurrence is one kilometre. Shri Dharambir Mittal, Tehsildar, Ratia, Executive Magistrate, reached at the spot in Jeep at about 4.00 p.m. After arrival of the Tehsildar at the spot, the Investigating Officer rushed to the place where the accused was and informed the accused with regard to the suspicion regarding her carrying contraband item in the bag. He gave her option that she could be searched before the gazetted officer or the Tehsildar, Ratia, who was with him. He had also reduced into writing the notice Ex. PC and attestation of the accused was obtained by him as Ex. PC/1 in this regard. It is, thereafter, he conducted the search which led to the recovery of 990 Grams of opium from the bag carried by the accused. He had also testified with regard to the seizure proceedings. He is fully supported by Shri Dharambir Mittal. Tehsildar in this regard because he too maintained that Constable Dharampal, who had come to summon him had not brought any written request to him. Further, according to him, Bus Stand, Ratio is located at a distance of 2 kilometres from his office and he reached there by bus. If the Investigating Officer had started noting down the information, definitely it would have consumed some time and provided an opportunity to the accused to board the bus for her destinction. In case Sajan Abraham v. State of Kerala, 2001 (3) Rec Cri R (Criminal) 808 : 2001 Cri LJ 4002, the facts were that on 10-10-1993 Head Constable and two other Constables of Special Squad got information at about 7.00 p.m. that a person was selling injectible narcotic drugs near the Blue Tronic Junction, Palluruthy. They informed this to Sub Inspector of Police, Palluruthy Cusba Police Station, who was coming in a jeep along with his police party., Thereafter, Sub Inspector along with the other members of the police party including the Head Constable and other members of the Special Squad went to the scene of occurrence and stopped their vehicle a little away from the spot. On reaching there they found the accused standing on the road with a packet in his hand. He was identified by Head constable and apprehended by the Sub-Inspector. On search, the packet possessed by the appellant-accused in that case was found to contain 5 strips of 5 ampules each of Tidigesic and three injection syringes and a purse containing currency note of Rs. 10/-. Seizure memo was prepared at the spot and the appellant was arrested which led to trial but he was acquitted by the trial Court. In appeal, the High Court, on re-appraisal of the evidence, set aside the acquittal of the appellant and held that the prosecution had led positive evidence beyond reasonable doubt that appellant had committed the offence punishable under Section 21 of the Act and accordingly, he was convicted and sentenced. In appeal to the Hon'ble Apex Court, the conviction was challenged on the ground that mandatory provisions of Sections 42, 50 and 57 had been violated. Dealing with the submissions that violation of Section 42 of the Act had taken place, it was observed that 'in construing any facts to find, whether prosecution has complied with the mandate of any provisions which is mandatory, one has to examine it with pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply, which the Courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of law. The Court however while construing such provisions strictly should not interpret it so literally so as to render its compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection.. In other words, 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.'
20. In the above mentioned case notice was taken of the fact that after the information was conveyed by the Head Constable to the Sub-Inspector, they had immediately proceeded to the place where the appellant was standing and had they not done so immediately, the opportunity of seizure and arrest of the appellant would have been lost. On the basis of these facts, it was concluded that no inference can be drawn that there has been violation of Section 42 of the Act. In the present case though provisions of Section 42 of the Act would not apply but even on the analogy of applicability of these provisions, facts and circumstances are such that this ground would not come to the rescue of the accused. In the above mentioned case, it would be noticed, no reference to the provisions of Section 43 of the Act had been made and the matter had been examined in the light, of the stand taken regarding violation of the provisions of Section 42 of the Act.
21. As regards the other criticism made, it is clear from the statement of Investigating Officer ASI Anup Singh and Shri Dharambir Mittal, Tehsildar, Ratia, Executive Magistrate, that 990 Grams opium was recovered from the bag of the accused out of which 10 grams of opium was separated as sample. Even Head Constable Balwinder Singh had stated that he was entrusted with the sample containing 10 Grams of opium which was duly sealed with the seal of AS and at the time of seizure and that of GR at the time it was deposited with him on 21-3-1998 by ASI Anup Singh and that on 25-3-1998 he had handed over the same to Constable Roshan Lal for its delivery in the office of Forensic Science Laboratory, Madhuban, He is fully corroborated in this regard by Constable Roshan Lal. No doubt, in the report of the Forensic Science Laboratory, Madhuban, Ex. PM, the weight of the sample of opium had been mentioned as 8.29 Grams approximately. This marginal difference in the weight as such cannot be taken as the basis for a conclusion that there had been tampering of the sample during the period Constable Roshan Lal had taken the sample to deposit the same with forensic Science Laboratory, Madhuban. In fact, no explanation was sought from Head Constable Balwinder Singh and Constable , Roshan Lal in this regard.
22. In Rajendra Kumar Mohta v. Abhijit Das Gupta, 2000 (1) Rec Cri R (Cri) 204 (Delhi), a plea was raised from the side of the accused with regard to the discrepancy in the weight of the sample. While dealing with the stand taken, it was observed in the above mentioned case that 'discrepancy as regarde weight of the samples is also a question of fact that should be decided at the end of the trial. Scientific explanation may also be available from the Chemical examiner as to whether loss of weight of the samples could be due to natural process of dehydration or for other reasons. Therefore, such questions cannot be decided in advance before parties adduce their evidence.' In the present case, in view of the definite stand of the witnesses referred to above, there is no justification to draw a conclusion that sample in question had been tam-'pered with merely because at the time the analysis was done, the weight of the sample of opium was found to be 8.29 Grams approximately. Under the circumstances of the case, the stand taken from the side of the appellant merits rejection.
23. Coming to the last submission, it has been admitted by Shri Dharambir Mital, Tehsildar that many persons were present at the bus stand but no public man was called at the time search of the accused was conducted. ASI Anup Singh also admitted that search was not conducted by him in the presence of any public witness though public witnesses were available. No explanation was sought from him as to why he did not join any public witness at the time of recovery proceedings. Merely, because other public witnesses had not been associated by the Investigating Officer cannot be construed as an adverse circumstance so as to doubt the genuineness of the recovery made. In Ashok Kumar v. State of Haryana, 2000 (1) Rec Cri R (Criminal) 567 : 2000 Cri.LJ 3186, the search and seizure was made from the accused in the presence of Tehsildar, who was also the Executive Magistrate, and the stand taken from the side of the accused that no independent witness had been associated was not accepted. There is no such rigid rule of law that when recovery of a contraband article rests solely on the testimony of official witnesses that per see is a ground to reject the recovery. Rather, the Courts have adopted an approach of extra care and caution to scrutinise the statement of the official witnesses so as to rule out false implication of the accused. In the present case, the recovery proceedings have been witnessed by Shri Dharambir Mittal, who is Tehsildar-cum-Executive Magistrate, which further lends assurance to the genuineness of the recovery made. Therefore, there is absolutely no force in the contention raised on behalf of the accused.
For the aforesaid reasons, there is no merit in the appeal and the same is accordingly dismissed. The accused shall undergo the sentence awarded to her.