JUDGMENT
H.R. Panwar, J.
1. The Criminal Appeal No. 532/2003 has been filed by appellant Sayed Mohd. Naeem (for short ‘the accused’ hereinafter) under Section 374 of the Code of Criminal Procedure, 1973 (for short ‘the Code1 hereinafter) and Criminal Appeal No. 116/2005 has been filed by Union of India through Narcotics Control Bureau under Section 377 of the Code. Both these appeals are directed against the judgment and order dated 13.3.2003 passed by Special Judge, (NDPS Cases), Bikaner (for short ‘the trial Court’ hereinafter) in Sessions Case No. 09/99, whereby the trial Court convicted the accused of the offence under Section 8/21 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 with 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 accused has filed Criminal Appeal No. 532/2003 and aggrieved by the inadequate sentence awarded by the trial Court, the Union of India through Narcotics Control Bureau has filed Criminal Appeal No. 116/2005 seeking enhancement of Substantive sentence as well as sentence of fine. Since both these appeals are directed against the same judgment and order, with the consent of learned Counsel for the parties, they are heard together and decided by this common judgment.
2. Briefly stated the facts of the case are that on 22.8.99 PW. 8 Jagdish Purohit received a secret information at 17.30 hours to the effect that accused is likely to take delivery of contraband heroin between 3 to 5 P.M on 23.8.99 at village Ranjeetpura and would go to Bikaner by bus. The information was found to be reliable and was recorded in Form No. 1 by Jagdish Purohit and conveyed to Zonal Director, Narcotics Control Bureau, Jodhpur vide forwarding letter Ex. P. 55, the carbon copy of which has been placed on record as Ex. P. 56. On receipt of the secret information vide Ex. P. 55 and P. 56, PW. 7 Rajendra Singh Khangarot, Zonal Director, Narcotics Control Bureau, Jodhpur constituted a team vide Ex. P. 57 comprising of PW. 5 Narendra Singh, PW. 8 Jagdish Purohit, PW. 4 S.S. Chouhan, PW. 6 Anuranjan Gupta and Ors. for search and seizure. On 23.8.99 as per the information the team reached near bus stand Ranjeetpura and noticed one person standing near to Khejdi tree having a bag in his hand. The raid party introduced themselves to the accused and apprised him of the secret information regarding his being in possession of contraband herein. A notice under Section 50 of the N.D.P.S. Act was served giving him option in be searched in the presence of Judicial Magistrate or Gazetted Officer vide Ex. P. 19. Motbirs were called, they were given notice and after taking their consent to become Motbirs in the presence of Motbirs and Gazetted Officer PW. 5 Narendra Singh, Assistant Director, N.C.B., Jodhpur, the search was carried out. On the search of bag which the accused was holding in his hand, it was found that the bag was containing 6 kg. 750 grams of heroin. Two samples of 5 grams each were taken. The samples were sealed on the spot. The remaining contraband heroin was also sealed on the spot. Summon Ex. P. 20 requiring the accused to make statement under Section 67 of the N.D.P.S. Act was issued on 23.8.99 at 20.25 hours. The notice was served on the accused. The accused made a voluntary confessional statement vide Ex. P. 21 under Section 67 of the N.D.P.S. Act. Thereafter vide Ex. P. 22, the accused was arrested on 23.8.99 at 23.55 hours. After usual investigation, a complaint Ex. P. 54 for the offence punishable under Sections 8(c) r/w Sections 21, 23, 27A and 29 of the N.D.P.S. Act was filed before the trial Court against the accused. The trial Court framed the charges. The accused denied the charges and sought trial. The prosecution adduced evidence by producing as many as nine witnesses and documents Ex. P.I to Ex. P. 65. The accused made statement under Section 313 of the Code and denied the allegation and stated that he was brought from Delhi to Jodhpur and thereafter to Bikaner. No proceedings against him were taken at Ranjeetpura as also no heroin was recovered from him. The trial court on appreciation of the evidence produced by the parties convicted the appellant for the offence under Section 8/21 of the N.D.P.S. Act and sentenced him as above; however acquitted him of the offences under Sections 8/23, 27A and 29 of the N.D.P.S. Act.
3. I have heard learned Counsel for the parties. I have carefully gone through the judgment and order impugned as also the record of the trial Court.
4. It is contended by the learned Counsel for the accused that the provision of Section 42(1) & (2) of the N.D.P.S. Act has not been complied with. According to learned Counsel, the secret information received by PW. 8 has neither been reduced to writing nor conveyed to higher officers. The prosecution witnesses admitted that the original secret information received by PW. 8 was sealed in an envelope and thereafter vide Ex. P. 55 it was forwarded to PW. 7 Rajendra Singh Khangarot, Zonal Director, Narcotics Control, Bureau. Thus, the sealed envelope was neither produced in Court nor opened in the Court and therefore, the prosecution has withheld the secret information received by PW, 8 and therefore there is violation of Sub-section (1) of Section 42 of the N.D.P.S. Act. It is further contended that at the time of arrest of the accused, a cash memo Ex. P. 24 of Laxmi Hotel, Bikaner was found. Ex. P. 24 shows that the accused arrived at Laxmi Hotel, Bikaner on 22.8.99 at 11.00 A.M. and departed on 23.8.99 at 9.30 P.M., whereas in the instant case, the recovery of heroin vide Ex. P. 7 Panchnama was effected between 15.10 to 20.15 hours. Thus, according to learned Counsel a fictitious recovery of heroin has been shown from the accused.
5. learned Counsel for the Union of India representing Narcotic Control Bureau submits that the information was received by PW. 8 which was found to be reliable and it was kept in a sealed cover and vide Ex. P. 55 and Ex. P. 56 the said information was conveyed to the higher officials. Thus, the provision of Section 42 of the N.D.P.S. Act has been fully complied with. So far as cash memo Ex. P. 24 is concerned, it was the accused who managed with the hotel so as to escape from the criminal liability by showing his presence in the hotel at the relevant time of seizure, whereas from the evidence of the prosecution witnesses it has been established that the accused was standing near a Khejri tree having a bag in his hand containing contraband heroin weighing 6 kg. 750 grams. The raid party tallying the features of the accused as per the secret information received, checked the accused and after completing the formalities of the notice under Section 50 of the N.D.P.S. Act, notice to Motbirs, apprising the accused about the secret information and thereafter conducting his search and on search effected a recovery of contraband heroin weighting 6.750 kgs in a bag which the accused was holding. learned Counsel for the Narcotic Control Bureau further submits that the accused made a voluntary statement under Section 67 of the N.D.P.S. Act, wherein he has categorically confessed his guilt voluntarily. According to learned Counsel, from the perusal of the statement made by the accused under Section 67 of the N.D.P.S. Act Ex. P. 21, it is more than clear that the accused has been indulging in trafficking and transporting the contraband heroin for last many years and on earlier occasion also he has been trafficking and transporting the contraband heroin from Afghanistan to Pakistan while in India at Delhi. According to learned Counsel, the confessional statement Ex. P. 21 made by the accused is voluntary. learned Counsel further submits that keeping in view the past conduct of the accused and the fact that accused voluntarily admitted that he has been trafficking in the narcotic drugs since 1986 being an Afghan national came to India, got himself declared to be refugee, settled in India and from Delhi having direct contacts and connections with the Afghan nationals as also Pak nationals and has been trading illegally in contraband heroin, the trial court fell in error in not awarding an adequate sentence to the accused.
6. I have given my thoughtful consideration to the rival submissions made by the counsel for the parties. I have scanned, scrutinized and evaluated the evidence on record.
7. PW. 8 Jagdish Purohit, Enforcement Officer, at the relevant time posted at Narcotics Control Bureau, Jodhpur unit has stated that on 22.8.99 at about 5.30 P.M., he received a secret information to the extent that accused Sayed Mohd. Naeem, a fair coloured person having height about 5.8 feet to 5.10 feet is likely to take delivery of contraband heroin in village Ranjeetpura. The quantity of heroin tentatively was 5 to 8 kg. as per the secret information. The information was reduced to writing on which the thumb impression of informant (Mukhbir) was taken, thereafter, it was sealed in an envelope. The information was forwarded by a forwarding letter vide Ex. P. 55 narrating therein the information received by him to Zonal Director, Narcotics Control Bureau, Jodhpur. Ex. P. 55 states details of the information, description” and name of accused, his wearings, time and place and the date when the accused was likely to take delivery as also the weight of the contraband heroin. It has also been stated that the information is reliable. Ex. P. 56 is the carbon copy of the information received by PW. 8, the original of which was kept in a sealed envelope and forwarded to Zonal Director, Narcotics Control Bureau, Jodhpur. Before the trial Court PW. 8 has proved the secret information received by him and reduced to writing vide Ex. P. 56.
8. Merely because the original secret information which was kept in a sealed envelope and forwarded to the higher authorities which is said to have not been produced in the Court, It cannot be said that the provisions of Section 42 of the N.D.P.S. Act have not been complied with. The carbon copy of the information Ex. P. 56 has been proved by PW. 8, he has proved his signature at two places ‘C to D’, as also Rajendra Singh who received the information proved his signature from ‘A to B’ on Ex. P. 56. From the statement of PW. 8 Jagdish Purohit and PW. 7 Rajendra Singh, it has been proved beyond reasonable doubt that the secret information was reduced to writing and was forwarded to higher officials. Thus, in my view, Sub-section (1) and (2) of Section 42 of the N.D.P.S. Act has been fully complied with. The trial Court while noticing this evidence came to the conclusion that the provisions of Sub-section (1) of Section 42 of the N.D.P.S. Act have been complied with. The conclusion arrived at by the trial Court cannot be said to be erroneous.
9. So far as the contention of the counsel for the accused regarding the cash memo of Laxmi Hotel Ex. P. 24 that the Ex. P. 24 shows the departure of the accused from the said hotel at 9.30 PM on 23.8.99, this document is not a conclusive proof for the reason that the author of the document Ex. P. 24 has neither been produced nor examined by the accused and therefore document Ex. P. 24 is of no help to the accused vis a vis the evidence of almost all prosecution witnesses who caught the accused along with the contraband heroin at village Ranjeetpura. The accused has failed to explain the possession of the contraband heroin. Section 54 of the N.D.P.S. Act provides that it may be presumed unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of any narcotic drug or psychotropic substance or controlled substance, for the possession of which he fails to account satisfactorily. In the instant case, the accused failed to account satisfactorily the possession of contraband heroin. The samples of the contraband heroin seized from the accused were sent Govt. Opium & Alkaloid Works, Neemuch Madhya Pradesh, acknowledgment of which is Ex. P. 17 and report is Ex. P. 18. The report Ex. P. 18 shows that each of the six samples is found by qualitative and quantitative analysis to contain a mixture of Morphine and heroin (discetylmorphine) within the meaning of N.D.P.S. Act, 1985.
10. PW. 5 Narendra Singh, is the Gazetted Officer. He, at the relevant time of occurrence was posted as Assistant Director, Narcotics Control Bureau, Jodhpur unit. He stated that he was asked by PW. 7 Rajendra Singh, Zonal Director that the accused who is resident of Malviya Nagar, Delhi, describing his features, height, wearings, is likely to take delivery of contraband heroin weighing 6 to 8 kg. between 3 to 5 P.M. on 23.8.99 at village Ranjeetpura Bikaner. A team was constituted by PW. 7 headed by him. They went to village Ranjeetpura. PW. 4 Shrawan Singh Chouhan was asked to bring Motbirs. He brought the motbirs. Near to bus stand Ranjeetpura, they were holding Nakabandi and guarding the area. At about 3.50 P.M., as per the secret information received, a person came from Gajewala side and stood under a Khejri tree near bus stand. PW. 4 Shrawan Singh went to the accused, got himself introduced and asked the name of the accused. The accused disclosed his name Sayed Mohd. Naeem including the parentage. He was informed about the secret information and thereafter a notice under Section 50 of the N.D.P.S. Act for search was served on him. He has proved notice under Section 50 vide Ex. P. 3 and the consent given by accused to be searched by Gazetted Officer Ex. P. 19. He stated that he introduced himself t be a Gazetted Officer of the Narcotics Control Bureau. He has also proved notice Ex. P. 1 and P. 8 served on the motbirs. He has also stated that notice under Section 50 of the N.D.P.S. Act was served on the accused and PW. 4 Shrawan Singh searched the accused in his presence. The accused was having a bag in his hand. On the search of the bag, six polythene bags were found. PW. 4 Shrawan Singh tested the contraband by testing kit which they were carrying with them. The contraband was found to be heroin. On being asked as to whether he possesses permit or licence for contraband heroin, the accused stated that he had no licence or permit. The contraband heroin was weighed which was 6 kg. 750 grams. The two samples of 5 grams each were taken. The samples were sealed on the spot and the remaining contraband was also sealed on the spot and marked Article P. 1, S. 1 to 6 S. 1 and P. 1 S. 2 to P. 6 S. 2. Thereafter Panchnama Ex. P. 7 was prepared. He stated that this process consumed the time from 3.10. P.M. to 8.15 P.M. On 23.8.99. Inventory was made vide Ex. P. 13 on the spot. Thereafter, the confessional statement of the accused under Section 67 of the N.D.P.S. Act after giving him a notice was recorded. He has proved Ex. P. 19 by which the accused consented for his search, Ex. P. 28 a detailed report as envisaged under Section 57 of the N.D.P.S. Act which was prepared by PW. 4 S.S. Chouhan and sent to higher officials. On personal search of the accused, certain articles were found on the person of the accused which were seized vide Ex. P. 29 & 30. He has proved Article 1 to Article 8. He was immediate superior officer to PW. 4 S.S. Chouhan.
11. PW. 6 Anuranjan Gupta, who at the relevant time was posted as Enforcement Officer at Narcotics Control Bureau, Jodhpur and a member of team constituted by PW. 7 Rajendra Singh vide Ex. P. 57 for the search and seizure, made a similar statement to that of PW. 4 S.S. Chouhan and PW. 5 Rajendra Singh and stated that while holding Nakabandi, a person was found standing near to Khejri tree having a bag in his hand. PW. 4 S.S. Chouhan along with the two motbirs asked his name. He disclosed his name as Sayed Mohd. Naeem of Malviya Nagar, Delhi. He was apprised of the secret information. He was given option for search of his own and his bag by Gazetted Officer or nearest Magistrate. After taking consent of search, he was searched. On search, the bag which the accused was carrying in his hand was found containing six polythene bags and on being tested it was found heroin. Subsequently, the investigation was done by this witness, he stated that vide letter Ex. P. 29 dated 26.8.99 he was entrusted the subsequent investigation in the matter. He has proved Ex. P. 30 the diary bearing telephone numbers, cash memo and relevant papers etc. He issued summons to various persons whose names figured in the confessional statement of accused under Section 67 of the N.D.P.S. Act vide Ex. P. 32 to Ex. P. 45. He has proved Ex. P. 46 summon issued to Manager Laxmi Hotel, Ex. P. 47 carbon copy of letter sent to Divisional Manager, Northern Railway, New Delhi, Ex. P. 48 copy of letter regarding inquiry about the assets of accused, Ex. P. 49 copy of letter regarding inquiry about the papers found in possession of the accused and Ex. P. 50 diary which was recovered from the accused bearing telephone numbers.
12. PW. 7 Rajendra Singh Khangarot, Zonal Director, Narcotics Control Bureau, Jodhpur stated that on 22.8.99 at about 5.30 P.M. he received a secret information in a sealed envelope from PW. 8 Jagdish Purohit, by which it was brought to his notice that the accused who is resident of Malviya Nagar, Delhi, description of is body given in the information, is coming from Ranjeetpura bus stand having heroin weighing 6 to 10 kg. between 3 to 5 PM on 23.8.1999 and would carry it to Bikaner. PW. 5 Narendra Singh, Assistant Director was called and he was apprised of the information. The copy of information entered in Form-1 was sent to the Office of Narcotics Control Bureau, Delhi. He has proved Ex. P. 55 the information sent by PW. 8 Jagdish Purohit and received by him. He has proved his signature on the information as having received the same. He has also proved Ex. P. 56 the carbon copy of the secret information having his signature in original. He further stated that he constituted a team vide Ex. P. 57 headed by PW. 5 Narendra Singh comprising of PW. 8 Jagdish Purohit, PW. 4 S.S. Chouhan, PW. 6 Anuranjan Gupta etc. He has also proved Ex. P. 28 by which PW. 4 S S. Chouhan sent a detailed report as envisaged under Section 57 of the N.D.P.S. Act He stated that the samples of the heroin seized from the accused were sent to Neemuch Laboratory for chemical analysis Sri Chandra Gupta vide Ex. P. 14. He has proved Ex. P. 58 letter dated 25.8.99 addressed to Under Secretary, Ministry of External Affairs, New Delhi regarding the accused being Afghan national.
13. On close scrutiny of the statements of PW. 4 S.S. Chouhan, PW. 5 Narendra Singh, PW. 6 Anuranjan Gupta, PW. 7 Rajendra Singh Khangarot and PW. 8 Jagdish Purohit, it has been established beyond reasonable doubt that on 23.8.99 at about 3.50 P.M., the accused was found having a bag in his hand containing the contraband heroin weighing 6 kg. 750 grams. On being chemically analyzed, it was found to be heroin. The accused made a voluntary confessional statement Ex. P. 21 confessing his guilt. The confessional statement was not properly retracted. Merely because at the request of the accused he was medically examined vide Ex. P. 26 and on his person superficial bruises four in number were found, it cannot be said to be a ground to conclude that the confessional statement Ex. P. 21 was obtained by torture or harassment. The prosecution has proved beyond reasonable doubt by Ex. P. 55 and Ex. P. 56 that the provisions of Section 42 of the N.D.P.S. Act have been substantially complied with as also compliance of Section 57 of the N.D.P.S. Act though the provision of Section 57 is not mandatory. In the instant case, the prosecution has also proved the compliance of Section 50 of the N.D.P.S. Act though in the instant case compliance of Section 50 is not attracted for the reason that the accused was found carrying a bag containing heroin and therefore it was a search of bag and not search of person. Even otherwise, the accused was searched in presence of Gazetted-Officer after completing the requisite formalities. The appellant was served with a notice and thereafter he made a voluntary statement. Bare perusal of confessional statement Ex. P. 21 clearly goes to establish that on the relevant date the accused was in possession of contraband heroin weighing 6.750 kg. without any valid permit or licence in contravention of provisions of N.D.P.S. Act. It also appears from the confessional statement that the petitioner has been indulged in trafficking narcotic drugs since 1986. He confessed that he is a Afgan National and residing in India since 1986 at Malviya Nagar, Delhi for last 8 to 9 years. He learnt the Hindi from a teacher. The confessional statement was read over to him in Hindi which he understands according to his statement. In his statement, the accused gave names of certain persons with whom he was having contact from last many years indulging in trafficking of narcotic drugs more particular in heroin. He had contacts with the persons residing abroad i.e. Pakistan and Afganistan with whom in preceding residing abroad i.e. Pakistan and Afganistan with whom in preceding years he had been dealing in narcotic drugs. Thus, in my view, from the evidence on record and discussed herein above, the prosecution has proved its case against the accused beyond reasonable doubt. In M. Prabhulal (supra) Hon’ble Supreme Court held that if the confessional statement is voluntary, the conviction can be sustained on that basis. Merely because at the stage of making statement under Section 313 of the Code, the accused made a vague assertion that after giving beating his statement was got recorded, it cannot be said that the accused retracted from his confessional statement without any delay. After arrest, the accused was produced in the Court and thereafter during trial, he failed to retract the confessional statement and therefore, in my view, the confessional statement Ex. P. 21 is voluntary in nature.
14. Coming to the appeal filed by the Union of India through Narcotics Control Bureau under Section 377 of the Code seeking enhancement of the sentence, learned Counsel for the Union of India submits that from the confessional statement which the accused made voluntarily Ex. P. 21 it has been established that the accused being a Afghan national came to India in 1986 and thereafter had come in contact with various persons including Pak and Afghan nationals and has been indulging in drugs trafficking more particularly trading in heroin without there being any licence or permit and therefore, the activities of the accused in contravention of N.D.P.S. Act have been established beyond reasonable doubt and therefore, according to learned Counsel the trial Court fell in error in not awarding the adequate sentence. learned Counsel appearing for the accused submitted that the sentence awarded by the trial court cannot be said to be inadequate and the quantum of sentence awarded by the trial Court which normally is not interfered with by this Court.
15. The appeal filed on behalf of Union of India has been filed through Vijay, Agarwal Advocate on the ground of inadequacy of the sentence. Section 377(2) of the Code reads as under:
377. (2): If such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, (the Central Government may also direct) the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.
16. From the bare reading of Sub-section (2) of Section 377 of the Code, it is more than clear that an appeal under Section 377(2) of the Code on the ground of inadequacy of sentence can be maintained if such conviction is in a case in which the offence has been investigated by the Delhi Special Police Establishment, constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy. In the instant case, neither the Central Govt. directed the public prosecutor to present an appeal to this Court against the sentence on the ground of its inadequacy nor Mr. Vijay Agarwal, Advocate has been appointed as public prosecutor in conformity with Section 24 of the Code. Therefore, Mr. Vijay Agarwal, Advocate representing the Union of India not being the public prosecutor and there is nothing to show that the Union of India directed the public prosecutor to present an appeal to this Court against the sentence on the ground of its inadequacy, the appeal seeking enhancement of sentence is, therefore, incompetent. This controversy has been set at rest by Hon’ble Supreme Court in Assistant Collector of Central Excise, Madras v. Krishamoorthy and Ors. wherein Hon’ble Supreme Court held as under:
As is evident and crystal clear it is the public prosecutor who under the directions of the Central Government is obliged to present an appeal to the High Court against the sentence on the ground of its inadequacy. Such power does not vest with the complainant. Here the appeals have been preferred by the complainant through the counsel engaged by the complainant happens to be the Central Government public prosecutor. Plainly, a fiduciary relationship of client and counsel appears to have been established. No such situation is permissible under Section 377(2) of the Code of Criminal Procedure. The reason is obvious because the law presumes that it is the Central Government, which through its public prosecutor can voice grievance before the High Court in relation to the inadequacy of sentence. The complainant has full say only in an appeal against acquittal under Section 378(4) of the Code of Criminal Procedure but has no locus standi to move under Section 377(2) of the Code of Criminal Procedure.
17. In this view of the matter, the appeal filed by Union of India through Narcotic Control Bureau through Mr. Vijay Agarwal, Advocate is not competent in view of specific provision as envisaged under Sub-section (2) of Section 377 of the Code and therefore, deserves to be dismissed as not maintainable.
18. Consequently, the Criminal Appeal No. 532/2003 filed by accused-appellant Sayed Mohd. Naeem fails and is hereby dismissed. The judgment of conviction and order of sentence passed by Special Judge, N.D.P.S. Cases, Bikaner in Sessions Case No. 9/99 dated 13.3.2003 against appellant Sayed Mohd. Naeem is hereby affirmed. The Criminal Appeal No. 116/2005 filed by Union of India through Narcotics Control Bureau is dismissed as not being competent.