S.C. Jain, J.
(1) The facts giving rise to this appeal are that on receipt of a secret information in the Crime Branch Office of Delhi Police on 1.5.1987, S L , Hari Singh organized a raiding parly consisting of Asi Jasbir Singh, Asi Ram Partap. Hc Kamal Singh, Hc Jamaludin, Constables Dbaramvir, Balbir Singh, Same Singh, Devi Bharan, Dalip Kumar, Prem Chand, Adesh Kumari under the supervision of Inspector Omvir Singh at about 5 a.m. No person from the public was included in the raiding party, as nobody showed his inclination to join the same despite request made by the police officers. Nakabandi was made at T-point at Lodhi Road and Dargah Nizamuddin road at about 7 am on the pointing out of the informer, the appellant Ashraf along with another person Nasiruddin were apprehended. Both of them were having one thela (bag) each in their hands. They were given an offer whether they would like to be searched before a gazetted officer or a magistrate but they refused. From the search of the bag which the appellant Ashraf was holding in his hand, opium was recovered which on Weightiest was found to be 3 kgs. 50 grams was taken out as sample. The sample as well as the remaining opium so recovered from Ashraf were sealed on the spot with the seal of Js and Cfsl form was filled in and the seal of Js was affixed on it as a specimen The recovery memo Ex. Public Witness 5/A was prepared Rukka Ex. Public Witness K/A was sent to the police station on the basis to which formal Fir was recorded Site plan Ex, Public Witness 7/A was prepared. The appellant was arrested and he was explained the ground of his arrest and his personal search vide Ex Public Witness 5/B was taken. Special report about the arrest and recovery of the contraband along with the case property, the sample and Cfsl from were sent to the Sho, who after putting his own putting his own seal on the sample and case property deposited them in the Malkhana of the police for safe custody. Cfsl form along with the simple was sent of the Cfsl Lodhi Road, New Delhi ana Report Ex Public Witness 8/3 was received. According to the report the contents of the sample parcel gave positive test for opium and percentage of morphine was 3.3 After completing all the formalities, challan was filed in the court and the appellant was charged under Section 18/21 of the Ndps Act. He pleaded not guilty to the said charge and claimed trial.
(2) In support of its version, the prosecution examined eight witnesses in all including inspector, Daulat Ram, Sho and Si Hari Chand 10 of the case. The defense of the appellant is that he is electrician by profession. On that day, he was working in the guest-house of Nasiruddin when police came there and searched the premises. From one of the almirahs of Nasiruddin, opium was recovered but nothing was recovered from him and he has been falsity implicated in this case In defense he examined three witnesses The learned Addl Sessions Judge believed the prosecution version and convicted appellant for the offence punishable under Section 18 of the Ndps Act and sentenced the appellant to undergo rigorous imprisonment for ten years and to a fine of Rs. 1 lakh, the minimum sentence prescribed for the said offence, in default of payment of fine he was further ordered to undergo rigorous imprisonment for six months Benefit nf set off under Section 428 Criminal Procedure Code . was allowed to him.
(3) Aggrieved, this appeal has been preferred. The learned counsel for the appellant challenged the judgment of the learned Addll. Sessions Judge on various grounds. His first contention is that no public person was joined in the raiding party before conducting search of the appellant though there were many persons available in the vicinity and near the place from where the appellant was apprehended. That area is thickly populated. According to the learned counsel no joining of any person from the public in the raiding party is fatal to the prosecution case He put reliance on a decision of this Court in Sunari @Chamari v. State : 34(1988)DLT124 in support of his contention that before making a search the officer or the other person concerned is required to call two or more witnesses which is not idle formality.
(4) The next submission of the counsel for the appellant is that as per the prosecution version itself, the secret information bad been received by the Crime Branch Officers much in advance and Public Witness 8 Hari Singh had stated that the information was sent to the higher officers, but this fact is not apparent on the judicial file and as such there has not been any compliance or the provisions of Section 42(2) of the Ndps Act. He also contended that the provisions of Section 50 of the Ndps Act have also not been complied with inasmuch as the search was not conducted in the presence of any gazetted officer or a magistrate. He put reliance on a decision of Punjab ana Haryana High Court in Bhajan Singh v. State 1988 (1) Cri 444 in support of his contention that the provisions of Sections 41, 42, 43, 50, 53, 55 of the Ndps Act are mandatory in nature and contravention thereof vitiates the investigation and the trial. According to the learned counsel, the provisions of the Act being mandatory have to be strictly construed, especially in view of the minimum sentence of imprisonment and fine prescribed under the Act leaving no discretion on the court to impose lesser imprisonment or fine irrespective of the quantum of recovery. Some minor discrepancies in the statements of witnesses have also been pointed out by the counsel for the petitioner In support of his contention that in the absence of public witnesses, up reliance should be placed on the testimony of the police officials for convicting the appellant, he cited a decision of our own High Court in Rajesh v. State 1989 (3) Cri 638.
(5) I have given my considered thought to the submission made by the learned counsel for the appellant and have scrutinised the evidence on record minutely. It is well settled that the testimony of a witness is not to be disbelieved or discharged on the ground that he happens to be an official but it is an equally well recognised rule of caution that court should look for independent corroboration to the testimony of official witnesses in such cases Relevant of course, in this context, are the time and opportunity available to the police party to associate with such an independent witness.
(6) In this case, the .secret information was received at 5 am. in the morning on that very day and the police had very little time for organising the raiding party for apprehension of the accused persons It has come in the statement of Public Witness 8, Si Hari Singh who organized the raiding party that he requested five or six passerby to join the raid but they refused This version given by this witness has not been shattered in the cross-examination meaning thereby that he made efforts to join the public persons in the raiding party but could not succeed. It ;s a matter of common knowledge that no public person would like to involve himself by becoming a witness of recovery in such like cases. The factum of non joining the public witness in the raiding party has been duly explained by prosecution by giving a satisfactory Explanationn in this regard. Keeping is view the stringent punishment provided under the Act, the interest of justice do indeed render it incumbent, upon the court to ensure that before a conviction is recorded no element of doubt creeps in and thereforee, it has to be seen whether the statements of the police officials can be relied upon or not and are sufficient for the conviction of the appellant for this offence. Asi Ram Partap Public Witness 5, Jagbir Singh Public Witness 7, Hari Singh Public Witness 8, are the witnesses of recovery and they have deposed in a corroborative manner that appellant along with Nasiruddin came from the side of the Tomb on Lodhi Road Both of them were having bag in their hands. On the pointing of the informer both of them were stepped and Hari Singh Si asked them whether they would like to be searched before a gazetted officer or a magistrate. but they declined Asharaf Ali appellant was apprehended by Hari Singh Si and Nasiruddin was apprehended Jagbir Singh SI. The bag from the appellant was taken by S.I. Hari Singh and it was checked. It was found containing some maternal wrapped in a newspaper kept in a 'momi' envelope The 'momi' envelope was checked and it contained opium which on weighment was found to be 3 kg, out of which 50 grams was taken as sample. which was sealed in a cloth parcel and the remaining opium was sealed in the same bag with the seal of J S. The sample was also sealed with the seal of JS. Cfsl form was filled in and sealed with the seal of J.S. The seal was given to Ram Partap ASI. Statements of these witnesses of this point are corroborative and remained unsheltered in their cross-examination. The preparation of the recovery memo, personal search memo and other documents proved and exhibited by other witnesses give credence to the statement of these official witnesses. Non inclusion pf public witness in the raiding party in such circumstances cannot be said to be fatal to the prosecution case.
(7) The other contention of the learned counsel for she petitioner that the provision of Section 50 of the Ndps Act has not been complied with is also devoid of any force, It has come in the statement of these witnesses that Hari Singh 10 gave an offer to Ashraf Ali that before his search a gazetted officer or a magistrate can be called if so desires but Ashraf Ali declined. This in my view is compliance of Section 50 of the Ndps Act. Regarding the objection turn non compliance of Section 42(2) of the Ndps Act, it has also come in the statement of Public Witness 8 Asi Hari Singh that three or four days earlier to the incident he had the general information which he nad passed on to his higher officer. After the apprehension of the appellant and completing the formalities on the spot. the case property duly sealed with the seal of the 10. the sample duly sealed in a separate parcel, Cfsl form having the specimen seal of the 10 along with the accused were produce before the Sho of the concerned police station. The Sho after putting his own seal on the case properly and the sample got the same deposited in the Malkhana. It finds corroboration from the statement of Daulat Ram Sho Nizamuddin Police Station This version given by the witness has not been shattered in his crossexamination. Minor contradiction in the statement of the witness who have not been alleged to be inimical to the appellant. Venkatarama Ayyar, J. of the Supreme Court in Aher Raja Khima v. State of Saurashtra : 1956CriLJ426 :- 'The presumption that a person acts honestly applies so much in favor of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds thereforee. Such an attitude can do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.' There has been a valid compliance of the provisions of Section 42(2), 43, 50,52(2x3), 53, 55 and 57 of the Ndps Act and the decisions cited by the counsel for the petitioner are not helpful to the appellant in the present circumstances of the case. The trial court has appreciated the facts and law judicially. I find no infirmity and illegality in the findings of the learned Addl. Sessions Judge while convicting the appellant for the said offence. I confirm the findings of the learned Additional Sessions Judge convicting the appellant Ashraf Ali under Section 18 of the Ndps Act.
(8) On the point of sentence also, the recovery of opium is quite heavy i.e. 3 kgs. The minimum sentence provided for such an offence is 10 years rigorous imprisonment and a fine of Rs. 1 lakh which may extend to 20 years rigorous imprisonment and a fine of Rs. 2 lakhs. The trial court has awarded the minimum sentence of ten years rigorous imprisonment and a fine of Rs. 1 lakh. la view of the minimum sentence of imprisonment and fine prescribed under the Ndps Act, no discretion is left to the trial court to impose a lesser sentence of imprisonment or fine in any case whatsoever, irrespective of the quantum of recovery. Under these circumstances, I also confirm the finding of the trial court on the point of sentence. As a result, this appeal is dismissed.