JUDGMENT
U.C. Maheshwari, J.
1. This appeal has been preferred by the appellant/accused under Section 374 of Cr. P.C. being aggrieved by the judgment dated 16.9.2003 dated passed by Special Judge (N.D.P.S) Bhopal in Special Case No. 40/02 convicting the appellant under Section 21(c) and 18(c) of Narcotic Drugs and Psychotropic Substance Act (In short the Act’) and sentenced for 10 years R.I. with fine of rupees one lac.
2. The prosecution story in brief are that on 25.4.2002 at about 12.40 in noon the station house officer P.S. Govindpura, Bhopal Shri D.S. Chouhan has received information through informer, that a person is carrying Narcotic Psychotropic Substance in a suit case on a motor cycle bearing registration No. MP- 05-D-1008, he will be reaching to Habibganj Bus stand to meet a person. The same was recorded in rojnamcha and under the intimation to City Superintendent Police said police officer along with force left the police station for such place. On the way independent witnesses were also taken with them. On reaching to said bus stand, a motor cyclist came there who was stopped and inquired about his whereabouts. He disclosed his name as Ganeshram the appellant. The said police officer had informed him about aforesaid information and asked for his search with option that the same could be carried out in presence of the gazetted officer or or he is ready to give it to him. On giving the consent to hove search by such police officer. The said S.H.O. with accompanied person and force first have given their own search and subsequent to it the search of appellant was carried out. In search Rs.700/- and one mobile phone of’ Erection Company was found on his person, while a whitcase was also tagged with the motor cycle at left side. The same was opened for search in which a brown colour powder in a plastic container and some black substance like opium were found. The same were identified as Brown Sugar 260 gram and opium 2.00 kg The same was seized and the packets of samples for chemical analysis prepared. In this respect various panchanamas regarding information for search, search of themselves and appellant and other related papers were prepared on spot. The seized substance were scaled. On information by the appellant one T.V. set and one Kardhana purchased by him out of the income of Psychotropic Substance were also recovered and seized. The memorandum and panchanamas were also prepared in this regard. Thereafter appellant was brought to police station and an offence as crime No. 330/02 was registered against the appellant. The seized substance, its sample and Articles were kept in Malkhana of police station. The report of such in writing was sent to city superintendent of police. The said samples were sent to FSL Sagar for chemical analysis and examination. The same were found as brown sugar and. opium as per report of FSL. On completion of the investigation the appellant was charge sheeted under Section 8/18, 21 of N.D.P.S. Act.
3. The learned subordinate Special Judge has framed the charges against the appellant: Under Section 8(c)/21(c) of the Act in respect of said brown sugar and additionally also framed under the same sections in respect of said opium. On denying the same the prosecution has examined as many as seven witnesses and exhibited the papers from Ex. P.1 to P.30-B while on behalf of the appellant one witness was examined in his defence by exhibiting one news paper as Ex.D.1. On appreciation of the evidence the Special; Judge has held guilty to appellant under the aforesaid Sections and sentenced him as said above. Hence, the appellant has preferred this appeal.
4. Shri G.R. Deshmukh, learned Counsel for the appellant has vehemently submitted that investigating agency has not complied the provisions of Section. 50 of the NDPS Act regarding search, by referring para 17 of the impugned judgment he said that even after holding that the search was not carried out in strict compliance of Section 50 of NDPS Act the inference was not drawn against the prosecution. The seizure of alleged contraband substance, brown sugar and opium from the possession of the appellant has not been proved by any independent witnesses. According to him the independent panch witnesses mentioned in the proceedings regarding search, seizure, sampling, weighing and memorandum Ex.P.7 to Ex.P.20 have not supported such papers and in the lack of the same it were not admissible and reliable but mere on the basis of the testimony of said seizing officer, D.S. Chouhan (P.W.6) and the testimonies of other police officials the appellant has been brought home guilty. He further said that the independent witnesses Karan Singh P.W.5 and Santosh P.W.7 have not supported the seizure of contraband substance from the possession of the appellant, except their signature they have not admitted any thing as described in Ex.P.7 to Ex.P.20. He also assailed the case of prosecution on the ground of his false implication and submits that as per prosecution the seizure was made in afternoon, therefore it’s publication in the evening news paper was not possible but the same was published in “Daily Sandhya Prakash” the evening news paper of the some town, it shows that the time of said seizure as alleged by prosecution is not reliable because in such a short period circulation and publication of such news was not possible. On appreciation of this circumstance it is apparent that appellant has been falsely implicated by fabricating the forged panchnama and other documents. On appreciation of the said the trial court ought to have acquitted to appellant but he was convicted under the wrong premises and prayed for allowing his appeal by setting aside the conviction and sentence of the appellant awarded by the trial court. He also placed his reliance on some decisions of the Apex Court.
5. While on the other hand, Shri Ramesh Shukla, learned Dy. G.A. has submitted that aforesaid contraband substance were not seized from the person of the appellant but the same was seized from a suitcase (Attachi) tagged and kept on the left side of motor cycle riding by the appellant. In such circumstance the compliance of the provisions of said Section 50 was not necessary as held by the Apex Court and placed his reliance on some reported decisions. Besides this he said that in the present case the provision under Section 50 of the Act was duly complied with as per procedure, the same are evident by the Panchnamas Ex.P.7 and Ex.P.8. The same have been proved by P.W.6, D.S. Chouhan the investigating officer and by Santosh P.W. 5 and Karan Singh P.W. 7 who admitted their signature on it.
6. So far seizure of aforesaid contrabands are concerned the corroboration by independent witnesses are not necessary under the law. If the testimony of investigating officer (seizing officer) is reliable then mere on his deposition the entire proceedings regarding seizure could be relied on by the trial court, while in the case at hand the independent witness Karan Singh P. W. 5 and Santosh P. W. 7 have admitted their signature on all the aforesaid panchnamas, hence in view of this admission of there signature the testimony of said investigating officer could not be disbelieved. In support of his contention he has placed reliance on some decided case of the Apex Court and! submitted that even in the lack of corroboration to the prosecution story by the independent witnesses, on account of of said signature of the witnesses the testimony of police officer was rightly relied on by the trial court. So far news paper Ex.D.1 is concerned he has submitted that in view of availability of direct evidence against the appellant such news paper is not beneficial to the appellant. Besides this the news paper does not carry more sanctity in comparison of legal evidence recorded by the judicial court with these arguments prayed for dismissal of the appeal.
7. Having heard the learned Counsels. I have gone through the record and impugned judgment, it appears from the record that on receiving information from informer regarding transportation of said contraband substance, the same was recorded in the Rojnamcha of police station and panchanama was also prepared (Ex.P.24 and 24(c). This information by Teharir Ex.P.1 was sent to the City Superintendent of Police. The same was endorsed in Rojnamcha Ex.P.26. The station house officer before leaving the police station with police force for such place has endorsed the same in Rojnamcha Ex. P.27. On reaching Habibganj bus stand the appellant was stopped and given notice (Ex.P.7) regarding information and suspicion and also asked for search with option to conduct in presence of gazetted officer or by said police officer. On giving consent by the appellant to have search by the police officer. The panchnama Ex.P.8 was prepared in this regard. Thereafter, firstly police staff and witnesses have given their own search to the appellant as evident by Ex.P.9, subsequent to it the appellant was searched, on his person, the currency notes of Rs. 700/- and a mobile phone was found and the same were seized by Ex.P.10. One suitcase was also tagged on his motor cycle. On searching the same the aforesaid contraband substances the brown sugar and opium were found in at the same were identified as per aforesaid substance for which the panchnama Ex.P.11 regarding opium and Ex.P.14-A regarding brown sugar were prepared. After verification the weighing scale as per Ex.P.12 the said substance were weighing the opium was found in the quantity of 2 kg as per Ex.P. 13 while the brown sugar was found 360 grams as per Ex.P.14 the weighing Panchnamas. Out of them samples were taken out and sealed the same by panchnama Ex.P.15 and Ex.P. 16. The suitcase and the said substances were seized by preparing the panchnama Ex.P. 18. The appellant was arrested by Ex.P.20, the memo of the appellant under Section 27 of the Evidence Act Ex.P.17 was prepared and in pursuance of the same the T.V. and Kardhana were sized by Ex.P.19.
8. On sending the aforesaid seized substance to F.S.L. Sagar by Ex. P.3, the same were found to be opium and brown sugar as per report Ex.P.22 in this connection the rojnamcha entries regarding messenger were also proved. On returning the police station from the spot Ex.P.29 rojnamcha entries was-made and an offence under the aforesaid section under the Act was registered as Ex.P.30-B (FIR) by said Station House Officer D.S. Chouhan (Investigating Officer) (P.W.6).
9. In view of the aforesaid, it appears that the concerning police officials has followed the entire process prescribed under the N.D.P.S. Act in respect of seizure and investigation of such offence. The sequence of all aforesaid exhibited papers are very relevant with this case. If such all sequence is found to be reliable and there is no brake or lacking in it then false implication of the appellant cannot be inferred. The testimony of D.S. Chouhan (P. W. 6) the seizing and investigating officer of the case could not be disbelieved because of following reasons
10 It (sic) that the independent (sic) singh ( P.W.5) and Santosh (P.W.7) have not supported to the ease of prosecution in respect particulars mentioned in the aforesaid pannchnama Ex.P.7 to Ex.P.20 but they ha admitted their signature on it, The Karan .Singh (P:W.5) has admitted his present on spot also.. The admission, of their signature on Ex.P.7 to Ex.P.20-givi additional support to the deposition of P. W. 6 to the case of prosecution. Now days the independent person are afraid to give the statement against the person like appellant involved in a criminal activity of Narcotics and Psychotropic substance the activity of under world. Therefore, the signature of such witnesses are supporting to the version of the said seizing officer. Therefore, I do not find any reason to disbelieve the testimony of said police officer D.S. Chouhan (R.W.6). The case of the prosecution is not failed mere on becoming hostile the witnesses of seizure and other panchnamas.
11. The notice (Ex.P.7), The consent panchnama for search (Ex.P.8) search memo of staff (Ex.P.9), search memo of appellant , (Ex.P.10), memo of identification of aforesaid substance (Ex.P11 and Ex.P.14-A), memo of weighing scale verification (Ex.P. 12), weighing memo of aforesaid substance (Ex. P. 13..and Ex.P.14), memo of identification of aforesaid substance and the memo for preparing the samples (Ex. P. 15 and Ex. P16), memo under Section 27 of Evidence Act (Ex.P. 17) by which the appellant has given some in formation and the recovery memo (Ex.P.9) and other panchnamas have been proved by the independent witnesses Karan Singh (P.W.5) who stated in his deposition that the motorcyclist was caught by Shri Chouhan (P.W.6) alongwith a suitcase in which some black substance like opium was found. The search of that person and vehicle was carried out in his presence. The seizure memos of the same were drawn up by said police officer, on which his signatures were also taken but lastly he deposed that no proceeding was carried out in his presence on account of it he was declared to be hostile and cross-examined but in any case substantially he has supported to the prosecution by admitting his signature on aforesaid papers. Besides this, other independent witness Santosh (P.W.7) has become hostile in the trial but he has admitted his signature on the aforesaid papers Ex.P.7 to Ex.P.20 in paragraph 1 of his deposition which also supports the case of prosecution till some extent.
12. Besides the aforesaid Ex.P.7, Ex. P.20 the other papers including Rojnamcha, Malkhana Register, FSL report, recovery memos have been proved by the testimony of Shri D. S. Chouhan (P.W.6) the Seizing Officer of the aforesaid substance. He has also stated that the aforesaid substance as opium and brown sugar marked as Article A-l and A-2 (Opium) and Article B-l and B-2 (Brown Sugar). On perusing the aforesaid all papers and their sequence in which the same have been drawn up itself show there truthfulness. I have not found any circumstance in the deposition of D.S. Chouhan (P.W.6) on account of which he could be disbelieved. He has carried out the search seizure and the other investigation in accordance with law. The provisions of Section 42, 50, 55, 57 and other provisions of NDPS Act have been duly complied with.
13. It is settled position of law that even on becoming hostile of’ independent witnesses of aforesaid search and seizure the accused could be convicted on believing the testimony of investigating officer and official witnesses in view of the principal laid down by the Apex Court in the matter of P.P. Fathima v. State of Kerala in which it is held as under :
7. The learned Counsel then contended that in view of the fact that the panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fuel that a panch witness does not support the prosecution case by itself Would not make (he prosecution case any less 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 the instant case also we are satisfied that from the evidence of Pws 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails.
14. In view of the aforesaid precedents if the instant case is examined then it appears that the witness of Ex. P. 7 to Ex. P. 20 have admitted their signature on it and other evidence show the genuineness of search, seizure and investigation. Thus it is held that even in the absence of corroboration by independent witnesses the appellant could be convicted on relying the testimony of D.S. Chouhan (P.W.6), the investigating officer and also with the assistance of other evidence available on record.
15. Although the counsel for the appellant has submitted that in the lack of corroboration from independent source mere on testimony of police officer appellant could not have been convicted but the same is not sustainable in view of the aforesaid dictum.
16. So for objection of Section 50 of N.D.P.S. Act is concerned, the trial court has held in para 17 of the impugned judgment that the intimation (Ex.P.7) regarding search was given to the appellant in accordance with aforesaid provision but the search was not carried out strictly in compliance of such provision. This objection raises two questions first whether Section 50 of N.D.P.S. Act was applicable for the search of the suitcase or the motorcycle or the same is applicable only for search of a person? Second if such provision was not applicable for search of suitcase and vehicle then approach of the trial court is correct. The aforesaid questions were answered by the Apex Court in the matter of Madanlal and Anr. v. State of H.P. in which it is held as under :
16. A bare reading of Section 50 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. (Sec Kalema Tumba v. State of Maharashtra, State of Punjab v. Baldev Singh and Gurbax Singh v. State of Haryana.), The language of Section 50 imiplicitly clear that the search has to be in relation to a person as contrasted to search of premises vehicles or articles. This position was settled beyond doubt by the Constitution Bench in Baldev Singh case. Above being the position, the contention regarding non-compliance with Section 50 of the Act is also without any substance.
17. In view of the aforesaid the compliance of Section 50 was not required for the search of such suitcase or the motorcycle. Hence the argument on behalf of appellant in this regard is not sustainable and such question is answered accordingly.
1.8. So far second question is concerned the appellant was searched in the presence of witnesses and for which he was given a notice Ex.P.7 with option to carry out the search before Magistrate or by police officer himself. On giving consent (by Ex. P.8) regarding gazatted officer to have his search by the police officer then the search was carried out in which the said contraband was no recovered from his person. So this question decided in favour of the appellant by the trial court. Such finding does not require any interference as the case is no based on account of recover of said substance from the person of the appellant. But the case is based on recovery of the same from the suitcase. Hence, the objection regarding non-compliance of Section 50 of the Act is No. 1 sustainable.
19. Therefore, it is held that in the instant case the compliance of Section 50 of the Act. was not required and the trial, court has not committed any error in holding the same.
20. On behalf of the appellant the decisions of the Apex Court in the matter of State of punjab v. Baldeo Singh reported in AIR 1999 S.C. 2378 and in the matter of Kalema Tumba v. State of Maharashtra and Anr. reported in AIR 2000 S.C. 402. The aforesaid both the cases have been considered by the Apex Court while deciding the case of Madanlal and Anr. v. State of’ H.P. (Supra). Hence, these citations are not helping to the appellant in any manner.
21. One more question was raised on behalf of appellant that the story put forth by the prosecution is not reliable in view of Ex. D.l Daily Evening News Paper “Sandhy Prakash” published from Bhopal. According to him if ‘the incident took place in the noon then the same could not have been published in the evening paper. Such objection is not sustainable under the law because firstly the news paper does not have more sanctity in comparison of the evidence recorded by the judicial court in judicial manner. Secondly, on account of the news paper no inference could be drawn in favour or against either of the parties unless such news is not investigated as per prescribed procedure of the law. It is undisputed under the law that the news paper or its news are not covered by the definition of public document as defined under the evidence Act. Hence, this objection is also not sustainable under the law and not helping in any manner.
22. Beside this no any other question was raised on behalf of the appellant.
23. Therefore, in view of forgoing reasons, I have not found any infirmity, inconsistency or anything contrary to law in the impugned judgment. Hence, this, appeal lias no merits and deserves to be dismissed. Therefore, by affirming the impugned judgment of’ the trial-court this appeal is hereby dismissed.