Bhanwar Singh Vs. Union of India (Uoi) - Court Judgment

H.R. Panwar, J.

1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 (for short, 'the Code' hereinafter) is directed against the judgment and order dated 11.7.2003 passed by Special Judge (NDPS Cases), Udaipur (for short, 'the trial Court') hereinafter) in Sessions Case No. 263/2001, whereby the trial Court convicted the appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances act, 1985 (for short, 'the N.D.P.S. Act' hereinafter) and sentenced him to undergo ten years rigorous imprisonment and a fine of Rs. 1,00,000/-, in default of payment of fine further to undergo one year rigorous imprisonment. Aggrieved by the judgment and order impugned, the appellant has filed the instant appeal.

2. Briefly stated the facts of the case to the extent they are relevant and necessary for the decision of this appeal are that P.W. 1 Dharam Singh Meena, Enforcement Officer, Central Narcotics Bureau, Udaipur received a secret information Ex. P/1 at 12.30 hours on 8.6.2001 to the effect that appellant Bhanwar Singh s/o Devi Singh is carrying opium and likely to deliver the same to some party to Ramleela Park. The information was found to be reliable and therefore, it was reduced to writing vide Ex. P/1. The copy of the information was sent to higher officials of the Central Narcotics Bureau. On this information, he along with other officials of the Central Narcotics Bureau went to the Ramleela Park situated at Hiran Magri, Sector-5, Udaipur and all of them started patrolling the area. Two persons namely Praful Kumar and Kailash Sharma were asked to become Motbirs. Their consent was obtained and they consented to become Motbirs. While they were watching the said park, a person was found sitting on a Bench in the Park with a bag in hand. P.W. 1 Dharam Singh Meena introduced himself and on being asked he said person informed his name to be Bhanwar Singh including his parentage and residential address which was found to be the same which he received by way of secret information. A notice under Section 50 of the N.D.P.S. Act was served on the appellant vide Ex. P/2 giving him option and apprising him of the right that if he wishes, search may be carried out before the Gazetted Officer or a Magistrate or by the Enforcement Officer himself. The learned consented to be searched by P.W. 1. The search was carried out and in the bag which the appellant was carrying found containing opium weighing 2,750 kg. Two simples of 25 grams each were taken. The samples and the remaining opium were sealed on the spot. The appellant voluntarily made a confessional statement under Section 67 of the N.D.P.S. Act vide Ex. P/8 at 20.15 hours on 8.6.2001 confessing the offence. Thereafter vide Ex. P/9 the appellant was arrested at 21.00 hours. After usual investigation, a complaint was filed against the appellant for the offence noticed above. At the instance of the appellant, a search at the house of co-accused Tej singh was carried out and opium weighing 250 grams was also recovered from the house of co-accused Tej singh. The appellant and co-accused Tej Singh were put to trial. By the judgment and order impugned the appellant was convicted and sentenced as noticed above and co-accused Tej Singh was convicted for the offence under Section 8/18 of the N.D.P.S. Act and sentenced to the period of imprisonment already undergone by him i.e. 9 months with a tint1 of Rs.1000/- in default of payment of fine further to undergo one month's simple imprisonment, keeping in view the quantity of contraband opium recovered from him. Co-accused Tej Singh has not challenged the finding recorded by the trial Court as also his conviction and sentence awarded.

3. After arguing the matter at length, Learned Counsel for the appellant has filed an application for taking additional documents on record under Section 391 r/w Sections 294 and 295 Cr.P.C being S.B. Criminal Misc. Application No. 102/2006 and another application for taking copy of FIR on record under Section 391 r/w Sections 294 and 295 Cr.P.C. on 1.3.2006.

4. At the request of Learned Counsel for the appellant, the matter was heard afresh including the arguments on these two applications from 1.3.06 to 6.3.2006.

5. By the aforesaid application, Learned Counsel for the appellant has submitted that there was a news article stating that Narcotics Inspector Dharam Singh Meena was caught taking bribe of Rs.5000/- from one Uma Shanker Menaria, for which an FIR being FIR No. 410/02 was registered and the matter was investigated by the Anti-Corruption bureau of Rajasthan. A letter alleged to have been written by one Suresh Soni to Prem Singh Rajput has also been filed. It appears that in the said letter Suresh Soni has threatened one Prem Singh. On the strength of news article and first information report, Learned Counsel for the appellant submits that the conduct of the Investigation Officer is unfair and therefore, the search and seizure made by him is not beyond suspicion and subsequent investigation conducted by a person having such conduct and the trial are vitiated.

6. Learned Counsel for the Union of India has submitted that the alleged letter has no authenticity and even assuming that one Suresh Soni if at all threatened to Prem Singh, it has no relevancy so far as the present case is concerned. He has also submitted that in the instant case, the contraband opium weighing 2,750 kg. was recovered from the possession of the appellant in a bag on 8.6.2001 in the presence of many witnesses and therefore, the subsequent conduct of P.W. 1 Dharam Singh Meena has no relevancy to the facts of the present case. The present case has to be examined on the evidence produced by the parties in this case. Learned Counsel for the Union of India has further submitted that the documents produced by way of additional evidence are not essential to pronounce the judgment and, therefore, if these documents are not taken as additional evidence, it would not result in failure of justice.

7. I have considered the submissions of the Learned Counsel for the parties on the applications seeking to take on record the additional evidence.

8. In my view, neither the news article nor the first information report of the letter alleged to have been written by Suresh Soni to one Prem Singh, though its genuineness is doubtful, have any relevancy in the search the seizure made by P.W. 1 Dharam Singh Meena in the presence of P.W. 7 S.C. Sarkar, Gazetted Officer, Superintendent, Central Narcotics Bureau and, therefore, both the applications are devoid of any force and are dismissed.

9. I have heard Learned Counsel for the parties on merits of the case at length and have carefully gone through the judgment and order impugned and record of the trial Court and scrutinized, scanned and evaluated the evidence on record.

10. P.W. 1 Dharamsingh Meena, the Seizure Officer, stated that on 8.6.2001 he was Enforcement Officer, Central Narcotics Bureau, Udaipur. On that day, he received secret information at 12.30 hours. The information was found to be reliable which was reduced to writing vide Ex. P/1. The information was sent to Superintendent, Central Narcotics Bureau, Udaipur which was received on 8.6.2001 vide Ex. P/1 and a copy of that information was also sent to Headquarter Gwaliar and Deputy Narcotics Commissioner, Kota through Superintendent. Thereafter he constituted a team comprising of Heeralal, Om Prakash, Deep Singh, Jameel Ahmed, hari Shanker Babulal Tailor etc and went to Ramleela Park at Sector-5 Hiram Magri, Udaipur. At 17.00 hours two persons namely Praful Kumar and Kailash Sharma were called as independent Motbirs, their consent to become Motbirs was obtained. At 17.20 p.m. from the north gate of the park, one person entered in the park having a yellow coloured bag on his shoulder and set on a bench. They waited for ten minutes for the person who was to take the delivery. However, no person came to receive the delivery. At 17.30 p.m., he along with two motbirs went to the person, introduced himself and on being asked the appellant disclosed his name, parentage and residential address which were tallying with the secret information received by him. He was apprised of the information that he is in possession of the opium. A notice under Section 50 of the N.D.P.S. Act was served on him and was apprised of his right to be searched in the presence of Gazetted Officer or he Magistrate and was asked to exercise his option, on which he exercised the option that the searched may be carried out by the Officers present. A search was carried out in the presence of P.W. 7 S.C. Sarkar, Superintendent, Central Narcotics Bureau, a Gazetted Officer. Thereafter a search was carried out. On search of he bag which the appellant was carrying in his hand, opium weighing 2.750 kg. was found which was seized. Two samples of 25 grams each were taken. The samples and the remaining opium were sealed on the spot. Thereafter the appellant made a voluntary confessional statement under Section 67 of the N.D.P.S. Act vide Ex. P/8. He has proved Panchnama Ex. P/7, site map Ex. P/5, specimen seal Ex. P/4, Seizure Panchnama Ex. P/3, voluntary confessional statement made by the appellant Ex. P/8 and the arrest memo Ex. P/9 whereby the appellant was arrested at 21.05 hours. A detailed report in compliance of the Section 57 of the N.D.P.S. Act Ex. P/10 was orwarded to the senior official Mr. S.C. Sarkar, Central Narcotics Bureau and he was appointed as Investigating Officer.

11. P.W. 7 S.C. Sarkar, Superintendent, Central Narcotics bureau in whose presence the search and seizure was made is Gazetted Officer. He stated that P.W. 1 sent a written secret information stating that the appellant is likely to deliver opium at Ramleela park, Sector-5, Hiran Magri, Udaipur. The said information was further sent to Deputy narcotics Commissioner, Kota. He has also proved the information Ex. P/1. He along with P.W. 1 and other officials of the Central Narcotics Bureau went to Ramleela Park, Hiran Magri, Udaipur. Two independent Motbirs were called and their consent was obtained to become Motbirs. At about 5.20 p.m. the appellant came in the park having a bag on his shoulder and set on a bench in the park. He was surrounded by the officials of the Central Narcotics Bureau. On being asked, the disclosed his name Bhanwar Singh the appellant and description and the name and address were tallying with the secret information received by them. Thereafter, he was served with a notice under Section 50 by P.W. 1 Dharam Singh Meena. The appellant exercised the option to the searched in the presence of Gazetted Officer. Thereafter in his presence, on search of the bag it was found that the bag was containing 2,750 kg. opium. Two samples of 25 grams each were taken. The samples as well as the remaining opium were sealed on the spot. Similar is the statement of other Narcotics Bureau Official namely P.W. 6 Jameel Ahmed. The two motbirs P. W. 2 Praful and P.W. 3 Kailash turned hostile, however, they admitted their signatures on the seizure memo, panchnama etc. and no explanation has been furnished as to how they signed those fards.

12. It is contended by the Learned Counsel for the appellant that P.W. 1 Dharam Singh Meena, the Enforcement Officer who conducted the search and seizure and lodged the report and investigated the matter and therefore, the investigation carried out by him vitiates the trial. Learned Counsel for the appellant has relied on decision of Hon'ble Supreme Court in Bhagwan Singh v. State of Rajasthan : 1976CriLJ713 .

13. Mr. B.M. Bohra Learned Counsel appearing for the Union of India has submitted that the investigation conducted by P.W. 1 Dharamsingh Meena, the seizure officer has not caused any prejudice to the appellant. The appellant failed to show any prejudice caused to him. He has relied on two decision of Hon'ble Supreme Court in State represented by Inspector of Police, Vigilance and Anti Corruption, Tiruchirapalli, T.N. v. V Jayapaul : 2004CriLJ1819 and S. Jeevanantham v. State through Inspector of Police T.N. : 2004CriLJ3834 .

14. In State represented by Inspector of Police, Vigilance and Anti Corruption, Tiruchirapalli, T.N. v. V. Jayapaul (supra), Hon'ble Supreme Court held that there is nothing in the provisions of the Criminal Procedure Code which precluded the appellant from taking up the investigation. The fact that the said police officer prepared the FIR on the basis of the information received by him and registered and suspected crime does not disqualify him from taking up the investigation of the cognisable offence. A suo motu move on The part of the police officer to investigate a cognisable offence impelled by the information received from some sources is not outside the purview of the provisions contained in Sections 154 to 157 of-the Code or any other provisions of the Code. It has been further held by the Apex Court that there is no principle of binding authority to hold that the moment the competent police officer, on the basis of information received, makes out an FIR incorporating his name as the informant, he forfeits his right to investigate. If at all, such investigation could only be assailed on the ground of bias or real likelihood of bias on the part of the investigating officer. The question of bias would depend on the facts and circumstances of each case and it is not proper to lay down a broad and unqualified proposition, in the manner in which it has been done by the High Court, that whenever, a police officer proceeds to investigate after registering the FIR on his own, the investigation would necessarily be unfair or biased.

15. In S. Jeevanantham v. State through Inspector of Police T.N. (supra), the appellant therein were found guilty of offences under Sections 8(c) r/w Section 20(b)(ii) of the NDPS Act. They were found in possession of narcotic drug (hashish). The case was registered against the appellants therein on the basis of the statement of P.W. 8 (Inspector) who had conducted the search. Before the Supreme Court it was argued that P.W. 8 was the complainant and he himself conducted the investigation and hence, the entire investigation of the case was vitiated. Hon'ble Supreme Court, while dismissing the appeal, held that in the instant case, P.W. 8 conducted the search and recovered the contraband article and registered the case. Thereafter as part of his official duty he investigated the case and filed a charge-sheet. He was not in any way personally interested in the case. There is no bias in the process of investigation. The appellants also could not point out any circumstances by which the investigation caused prejudice or was biased against them. The appellants were thus, rightly convicted and sentenced by the courts below.

16. In Bhagwan Singh v. State of Rajasthan (supra) relied upon by Learned Counsel for the appellant, the appellant in that case offered bribe to Head Constable Ram Singh, for which Head Constable Ram Singh, lodged a first information report as first informant and therefore, he was complainant. The investigation was undertaken by first informant head constable Ram Singh, he was an officer below the rank of Deputy Superintendent of Police and was not authorised to investigate the case. The Apex Court held that Head Constable who was himself the person to whom the bribe was alleged that to have been offered and who lodged the F.I.R. as informant or complainant. This was an infirmity which was bound to reflect on the credibility of the prosecution case.

17. In the instant case, it was not P.W. I to whom any bribe was offered, but being an Enforcement Officer of Central Narcotics Bureau, in the presence of P.W. 7 S.C. Sarkar, Gazetted Officer, Central Narcotics Bureau, a huge quantity of contraband opium was recovered from the appellant. Apart from P.W. 1, there are the witnesses of search of seizure i.e. P.W. 7 S.C. sarkar and other officials of the Central Narcotics Bureau and, therefore, it cannot be said that in any manner P.W. 1 Dharam Singh Meena the seizure officer was interested in the case.

18. The case relied on by Learned Counsel for the appellant therefore, turns on its own facts and is of no help to the appellant, and in view of two decisions of Hon'ble Supreme Court referred to above, the contention raised by he appellant that P.W. 1 Dharam Singh Meena. the Enforcement Officer registered the crime report as also investigated the matter, therefore, P.W. 1 being the complainant, the investigation carried out by him and the trial on that basis are vitiated cannot be accepted.

19. It was further contended by Learned Counsel for the appellant that according to the case of the complainant, two samples of 25 grams each were taken and sent to Government opium Alakloid Works, Neemuch (M.P.), whereas the report of Government Opium Alkaloid Works, Neemuch Ex. P/34 shows that the weight of the samples was 16.30 and 20.20 grams respectively and therefore, there is a variance in the weight of the samples taken from the appellant and received by the Government Opium Alkaloid Works, Neemuch which the complainant has failed to explain and therefore, according to Learned Counsel the complainant has failed to prove the case against the appellant beyond reasonable doubt, he further contended that the specimen seal was not sent to the Government opium Alkaloid works, Neemuch. Learned Counsel has relied on a decision of this Court in State of Rajasthan v. Bhagirath and Anr. 2002 (2) Cri.LR. (Raj.) 1464.

20. Learned Counsel for the Union of India submitted that the slight reduction in the weight of the samples taken from the appellant and received by Government Opium Alkaloid Works, neemuch, due to loss of moisture cannot be said to be fatal to the case of the complainant, as in the instant case the appellant has not challenged the report of Government Opium Alkaloid Works, Neemuch Ex. P/34 before the trial Court. Learned Counsel further submits that in the instant case. P.W. 6 Jameel Ahmed who carried the samples to the Government Opium Alkaloid Works, neemuch has proved that the seal on the samples remained intact till it reached to Government Opium Alkaloid Works, Neemuch and his testimony has not been shaken in the cross-examination. The report of Government Opium alkaloid Works, Neemuch clearly reveals that it received two sealed paper packets through P.W. 6 Jameel Ahmed, the seals were intact and tallied with specimen of seal forwarded to it and therefore, it is clear that the seals on the samples remained intact till it reached to Government opium Alkaloid Works, Neemuch. Moreso, from the evidence of P.W. 1 and P.W. 6 it has been proved that the contraband opium and samples were sealed on the spot and seal thereon remained intact till samples reached to Government Opium Alkaloid Works, Neemuch. The depositions of these two witnesses were not challenged by the appellant as they were not cross-examined on this material point and therefore, necessary corollary is that the appellant did not want to challenge that version deposed in examination-in-chief. Thus, without there being any challenge to the seal having remained intact, mere reduction in the weight after lapse of some time cannot vitiate the trial of the case. Learned Counsel for the Union of India has relied on the decisions of Hon'ble Supreme Court in Madan Lal and Anr. v. State of Himachal Pradesh 2003 Cr.L.J. 3868 (SC), Pon Adithan v. Deputy Director Narcotics Control Bureau Madras 1999 Cri.L.J. 3663 SO, Ashok Kumar v. State of Haryana 2000 SCC (Cri) 506 and Saikou Jabbi v. State of Maharashtra : 2003(158)ELT801(SC) .

21. In Madan Lal and Anr. v. State of Himachal Pradesh (supra), the Hon'ble Supreme Court held as under:

Coming to the plea that there was reduction in weight of the samples sent for analysis and there was tampering, it has to be noted that this aspect has also been considered by the trial Court which has recorded the reasons for rejecting the same. It has been noted that the seals were intact and there was no tampering. The view has been endorsed by the High Court. On considering the reasoning indicated that there was very minimal and almost ignorable variation in weight, we find no reason to interfere with the findings.

22. In Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras (supra), the Hon'ble Supreme Court held that as the samples were prepared in the Court in presence of the Presiding Magistrate and were properly packed and Court seal was applied on them and as the Chemical Analyst had also found the seal intact, there is little room for doubt that the sample which was examined by the Chemical Analyst was a part of M.O.3 and in our opinion, the courts below did not commit any error in holding that what was found from the appellant therein was heroin.

23. In Saikou Jabbi v. State of Maharashtra (supra) Hon'ble Supreme Court held that coming to the plea regarding non-compliance with Section 55 of the Act, as rightly submitted by the Learned Counsel for the respondent State, there was not even any argument advanced on that score before the trial Court and the High Court. Even otherwise also, the evidence of the investigating officer about safe-custody of the contraband articles has not. been challenged or shaken in the cross-examination.

24. In Ashok Kumar v. State of Haryana (supra), Hon'ble Supreme Court held that the report of the chemical analyser clearly establishes that the articles examined by him were the articles connected with this case. Neither was the report of the chemical analyser challenged nor was any application given for examining him as a witness to establish that the seals on the samples were failt when received by him and it was not possible to say whose seals they were.

25. In the instant case the appellant has not challenged the report of Government Opium Alkaloid Works, Neemuch Ex. P/34 before the trial Court. Further, P.W. 6 Jameel Ahmed two carried the samples to the Government Opium Alkaloid Works, Neemuch has proved that the seal on the samples remained intact till it reached to Government Opium Alkaloid Works, Neemuch and his testimony has not been shaken in the cross-examination. The report of Government opium alkaloid Works, Neemuch Ex. P/34 clearly reveals that it received two sealed paper packets through P.W. 6 Jameel Ahmed, the seals were intact and tallied with specimen of seal forwarded to it and therefore, it is clear that the seals on the samples remained intact till it reached to government Opium Alkaloid Works, Neemuch and thus, in view of the aforesaid decisions of Hon'ble Supreme Court, the contention of the Learned Counsel for the appellant regarding reduction in weight vitiating the trial cannot be accepted.

26. Learned Counsel for the appellant has also contended hat sub-section (2) of Section 42 of the Act has not been complied with.

27. Controverting this arguments, Learned Counsel for the Union of India contended that in the instant case, Section 42 of the Act has no application in the facts and circumstances of the case. He has relied on a decisions of Hon'ble Supreme court in M. Prabhulal v. Assistant Director Directorate of Revenue Intelligence : 2003CriLJ4996 .

28. In M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (supra), Hon'ble Supreme Court held that since search and seizure etc. is conducted by a Gazetted Officer under Sections 41(2) and (3), provisions of Section 42(2) is not applicable.

29. More so, from the statement of P.W. 1 Dharam Singh, it has been established that secret information received by him was reduced to writing vide Ex. P/1 which was sent to Superintendent, Central Narcotic Bureau, Udaipur as also copy of said information was sent to Headquarter Gwaliar and Deputy Narcotics Commissioner, Kota through Superintendent. Thus, it has been established beyond reasonable doubt that the provisions of Section 42 of the NDPS Act has fully been complied with. More so, in the instant case, search and seizure was conducted in the presence of P.W. 7 S.C. Sarkar who himself is a Gazetted Officer and therefore, even otherwise, sub-section (2) of Section 42 of the NDPS Act has no application. Thus, the contention of the Learned Counsel for the appellant regarding non-compliance of provisions of Section 42 also cannot be accepted.

30. It has also been contended by Learned Counsel for the appellant that Section 57 of the NDPS Act has not been complied with, he submits that P.W. 7 S.C. Sarkar himself was present at the time of search and seizure and therefore, detailed report of search seizure and arrest to him is not necessary as envisaged under Section 57 of the NDPS Act.

31. In the instant case, a detailed report of search, seizure and arrest of the appellant has been sent to Supdt. of Central Narcotics Bureau vide Ex. P/10 which was received by the concerned authority on 8.6.2001 itself. Thus, there is total compliance of Section 57 of the NDPS Act.

32. In Sajan Abraham v. State of Kerala : 2001CriLJ4002 , Hon'ble Supreme court held that in this case the communication to the immediate superior had not been made in the form of a report by the officer who made the arrest and seizure but the officer had sent the copies of the FIR along with other records regarding arrest of the accused-appellant and seizure of the contraband articles were sent by the officer to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said to have prejudiced the accused. This Section is not mandatory in nature. When substantial compliance has been made, as in the present case, it would not vitiate the prosecution case.

33. Thus, it is settled law that the compliance of Section 57 of the NDPS Act is not mandatory. Even otherwise, it has been established from the evidence of P.W. 1 Dharam Singh as also by document Ex. P/10 that the provisions of Section 57 have been complied with though its compliance if not mandatory. In the circumstances, therefore, the contention of Learned Counsel for the appellant regarding non-compliance of Section 57 of the NDPS Act cannot be accepted.

34. Learned Counsel for the appellant further contended that Panch witnesses (Motbirs) did not support the case of the complainant and have turned hostile and therefore, on the basis of statement of witnesses of the Central narcotics Bureau, a conviction cannot sustain. He has relied on decision of Hon'ble Supreme Court in State of Rajasthan v. Daulat Ram : 1980CriLJ929 and decision of this Court in Deva v. State of Rajasthan 1991 Cr.L.R. (Raj) 794.

35. Per contra, Learned Counsel for the Union of India has contended that merely because Panch witnesses not supporting the prosecution would not affect the prosecution case'. In the instant case search and seizure has been established by the evidence of prosecution witnesses namely P. W. 1 Dharam Singh Meena and P. W. 7 S.C. Sarkar who are credible and their testimony is reliable. Learned Counsel for the Union of India has relied on a decision of Hon'ble Supreme Court in P.P. Fathima v. State of Kerala : 2003(90)ECC779 .

36. In P.P. Fathima v. State of Kerala (supra) Hon'ble Supreme Court has held that it has been repeatedly held that the mere fact that a panch witness dos not support the prosecution case by itself would not make the prosecution case analysis acceptable if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In this view of the matter, the contention of the Learned Counsel for the appellant regarding panch witnesses not supporting the prosecution case also deserves to be rejected.

37. It has further been contended by Learned Counsel for the appellant that before search and seizure was made, no search warrant was obtained and therefore, the search and seizure is vitiated.

38. Controverting this argument, Learned Counsel for the Union of India submitted that in the instant case before search and seizure, obtaining of search and seizure warrant was not necessary. He has relied on a decision of M.P. High Court in Nand Kishore v. Central Bureau of Narcotics Neemuch 2005 (35) AIC 347.

39. In Nand Kishore v. Central Bureau of Narcotics (supra) M.P. High Court held that true it has come in the evidence of Rajendra Kumar (P.W. 6) that before making search of the house of the appellant he was not having any search warrant. However, this fact cannot be marginalised and blinked away that the officers of Narcotics Department were being headed by Superintendent of their Department P.K. Sinha (P.W. 7) and if that is position, according to me, under Sub-section (2) of Section 41 of the Act, there was no necessity of obtaining search warrant. While relying on the decisions of Hon'ble Supreme court in M. Prabhulal (supra). T. Thomson and Jarnail Singh, it has been further held that thus, even if prior search warrant was not obtained, it cannot be said that there is non-compliance of Section 41 of the Act.

40. Thus, in view of the decision in Nand Kishore v. Central Bureau of Narcotics, the contention raised by the counsel for the appellant regarding the search and seizure vitiated on account of not obtaining the search warrant prior to search, cannot be accepted. Moreso, in the instant case, the provisions of Section 41 of the NDPS Act are not attracted for the reason that it was not a search of any building, conveyance of place but the search was carried out by P.W. 1 in presence of P.W. 7 S.C. Sarkar who himself is a Gazetted Officer, of a bag which the appellant was holding in his hand containing contraband opium.

41. Learned Counsel for the appellant has further contended that Section 50 of the N.D.P.S. Act has not been complied with, he has relied on a decision in Namdi Francis Nwazor v. Union of India and Anr. : (1998)8SCC534 .

42. This controversy came to be considered by three Judge Bench decision in State of H.P. v. Pawan Kumar : 2005CriLJ2208 , wherein Hon'ble Supreme court while examining the scope and applicability of Section 50 of the NDPS Act has held as under:

The word 'person' has not been defined in the Act. In view of the basic principles of interpretation of statutes, it becomes necessary to look to dictionaries to ascertain the correct meaning of the word 'person'. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the word 'person' would mean a human being with appropriate covering and clothings and also footwear.

43. It has been further held by Hon'ble Supreme Court as under:

A bag, briefcase or any such article or container, etc. an, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable' as such. They cannot even remotedly be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on tm head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word 'person' occurring in Section 50 of the Act.

44. Hon'ble Supreme Court, therefore, held that in view of the above, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused.

45. The judgment relied on by the Learned Counsel for the appellant in Namdi Francis Nwazor v. Union of India (supra) was held to be obiter on this point by Hon'ble Supreme court in State of H.P. Pawan Kumar (supra).

46. Thus, in view of the decision of Hon'ble Supreme Court in State of H.P. v. Pawan Kumar, the convention regarding non-compliance of Section 50 also cannot be accepted.

47. Learned Counsel for the Union of India has further submitted that the appellant was found in possession of contraband opium weighing 2,750 kgs. which is commercial quantity and he has failed to discharge the onus of proof as envisaged under Section 35 of the NDPS Act. According to Learned Counsel Section 35 of the NDPS Act provides that in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The explanation to Section 35 provides that in this section 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. He has relied on a decision of Hon'ble Supreme Court in Kamail Singh v. State of Rajasthan 2000 SCC (Cri) 1437 wherein Apex court held that the appellant therein had not discharged the burden of proof in any manner to rebut the presumption envisaged under Section 35 of the Act and therefore, it has been proved that the appellant was transporting the opium with a conscious mind and full knowledge. All ingredients of the offence with which the appellant had been convicted and sentenced had been proved by the prosecution. Learned Counsel also submits that the appellant was found in possession of opium as noticed above and he failed to account for the possession of the same satisfactorily and therefore, the presumption under Section 54 of the N.D.P.S. Act goes against the appellant.

(48). It has also been contended by the Learned Counsel for the appellant that apart from search and seizure officer P.W. I Dharam Singh Meena and P.W. 7 S.C. Sarkar, there were other offices from the department of Central Narcotics Bureau who were also member of the raiding party namely O.P. Sharma, Heera Lal Sharma, Deep singh, Hari Shanker, Babulal and Mohan Verma but they have not been produced by the complainant.

49. In Chittar Lal v. State of Rajasthan : 2003CriLJ3548 , Hon'ble Supreme Court held that administration of justice can be affected and hampered if number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of one witness, leaving aside those cases which are not of unknown occurrence where determination of guilt depends entirely on circumstantial evidence. If plurality of witnesses would have been the legislative intent, cases where the testimony of a single witness only could be available, in number of crimes the offender would have gone unpunished. It is the quality of evidence of the single witness whose testimony has to be tested on the touchstone of credibility and reliability. If the testimony is found to be reliable, there is no legal impediment to convict the accused on such proof. It is the quality and not the quantity of evidence which is necessary for proving or disproving a fact.

50. In Birendra Rai and Ors. v. State of Bihar : (2005)9SCC719 Hon'ble Supreme Court held that mere failure to examine all the witnesses who may have witnesses the occurrence will not result in outright rejection of the prosecution case if the witnesses examined by the prosecution are found to be truthful and reliable.

51. In the instant case, from the statement of witnesses produced by the complainant namely P.W. 1 and P.W. 7 who are truthful and reliable witnesses, the respondent has proved its case against the appellant beyond all manner of doubt and therefore, keeping in view the aforesaid two decisions of Hon'ble Supreme Court on account of non-production of witnesses named above, adverse inference cannot be drawn.

52. Lastly, it was contended by Learned Counsel for the appellant that the statement under Section 67 of the NDPS Act cannot be said to be a confessional statement but at the most it may be an extra-judicial confessional statement and therefore, the conviction on the basis of statement under Section 67 of the NDPS Act cannot be sustained.

53. Learned Counsel appearing for the Union of India, controverting the contention raised by the counsel for the appellant submitted that this controversy is no more reintegrate in view of recent decision of Hon'ble Supreme Court in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (supra).

54. In the instant case, the appellant made a voluntary confessional statement under Section 67 of the NDPS Act Ex. P/8 on 8.6.2001 at 20.15 hours, wherein he confessed that the opium weighing 2.750 kg. was given to him by co-accused Tejsingh and he was carrying the same to Udaipur in order to give it a party at Jodhpur and in the meantime he was caught with the opium by the officials of the Central Narcotics Bureau. This confessional statement is voluntarily made by the appellant and has not been retracted in whole of the trial.

55. Hon'ble Supreme Court in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (supra) held that there was, under the circumstances, no delay in recording the statements of the appellants. Further, it is also to be borne in mind that the accused-appellants did not make any complaint before the Magistrate before whom they were produced complaining of any torture or harassment. It is only when their statements were recorded by the trial Judge under Section 313 Cr.P.C. that a vague stand about the torture was taken. Under these circumstances, the confessional statements cannot be held to be voluntary. The statements were voluntarily made and ; can, thus, be made the basis of conviction.

56. From the record, I am satisfied that the appellant made a voluntarily confessional statement under Section 67 of the NDPS Act before his arrest and after recording the confessional statement of the appellant at 20.15 hours on 8.6.2001 Ex. P/8, the appellant was arrested at 21.05 hours vide Ex. P/9 on 8.6.2001 and therefore, keeping in view the decision of M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence (supra), conviction of the appellant can safely be based on his confessional statement Ex. P/8.

57. On close scrutiny of the evidence produced by the complainant before the trial Court discussed herein above, it has been established beyond reasonable doubt that P.W. 1 Dharam Singh received a secret information to the effect that the appellant is in possession of contraband opium. The information was written down. In compliance of Sub-section (2) of Section 42, the information as sent to higher officer P.W. 7 S.C. Sarkar, Superintendent, Central Narcotics Bureau, Udaipur and a copy of the same was also sent to Headquarter Gavalior and Deputy Narcotics Commissioner, Kota. The seizure party headed by P.W. 1 Dharam Singh Meena reached to the place disclosed in the secret information. The appellant was found carrying a bag in his hand. He was served with a notice under Section 50 of the NDPS Act though in the instant case the notice under Section 50 of he NDPS Act is not mandatory in view of decision of Hon'ble Supreme Court in State of H.P. v. Pawan Kumar (supra). On bag being searched, it was found containing opium weighing 2,750 kgs. which is commercial quantity. The appellant was in possession of said opium without there being any licence or permit in contravention of the provisions of NDPS Act, the appellant voluntarily made a confessional statement under Section 67 of the NDPS Act Ex. P/8 at 20.15 hours on 8.6.2001, thereafter he was arrested vide Ex. P/9 at 21.05 hours. The search and seizure was made in presence of P.W. 7 S.C. Sarkar, the Gazetted Officer. The contraband opium and the samples taken therefrom were sealed on the spot and were deposited with P.W. 7 S.C. Sarkar who in turn sent the samples to Govt. Opium Alkaloid Works. Neemuch through P.W. 6 Jameel Ahmed which has been established from the statement of P.W. 6. The appellant failed to account for the possession of contraband opium and therefore, presumption under Section 35 of 54 of the NDPS Act can be raised against him. Even otherwise, the appellant made a confessional statement voluntarily under Section 67 of the NDPS Act vide Ex. P/8 and therefore, in my view, the complainant has proved the case against the appellant beyond any manner of doubt. In the circumstances therefore, the trial Court was justified in convicting and sentencing the appellant as noticed above.

58. In view of the evidence on record discussed herein above, I do not find any error, illegality or perversity in the judgment and order impugned. The appeal fails and is hereby dismissed. The judgment and order impugned dated 11.7.2003 passed by Special Judge (NDPS Cases), Udaipur convicting and sentencing the appellant for the offence under Section 8/18 of the NDPS Act is hereby affirmed.