JUDGMENT
Lokeshwar Singh Panta, J.
1. Appellant Raj Mohammad alias Raju (hereinafter referred to as the ‘accused’) has filed this appeal from Model Central Jail, Nahan against the judgment and order of conviction and sentence under Section 15 of the Narcotic Drugs and Psychotropic Substances Act, 1985, (for short NDPS Act) recorded by the Sessions Judge, Una on August 31 1999 in Sessions Case No. 20/98/Sessions Trial No. 28/98.
2. The prosecution case was that on 29-8-1998 SI Sarup Chand (P.W.I 1) was on routine patrolling along with SI Ajay Rana, Constable No. 297 Baldev Raj (P.W.6) and Constable No. 239 Subhash Chand (P.W. 10) in vehicle No. HP-20-6060 when the patrolling party was present at a short distance away from the Pollan barrier, constable Pawan Kumar (P.W.3) disclosed S.I, P.W. 11 that he received a secret information at about 9 p.m. about the involvement of the accused a resident of Jaijon, Police Station, Mehalpur, District Hoshiarpur (Punjab) that the accused was doing the business of sale and purchase of poppy husk and if he was searched, poppy husk could be recovered from his possession. On the said information, report Ex.P F was prepared and sent to Superintendent of Police, Una through PW 6, P.W. 11 formed a raiding party consisting of independent witnesses, Surinder Singh (P.W.I) Updesh Singh (P.W.2) and other police personnel and proceeded towards Polian barrier. When the raiding party reached at some distance before reaching Police Barrier, Pollian, one person was found coming with a bag in his hand going towards Jaijon on foot and on seeing the police, the said person tried to run away who was lateron apprehended by the police. On interrogation, he disclosed his name as Raj Mohammed alias Raju (the accused), resident of Jaijon. The accused was informed in writing that the police had suspicion about his involvement in carrying poppy husk and whether he wanted to give search to the police or before a Magistrate or Gazetted Officer. The accused consented in writing for giving his personal search to the police. In the presence of independent witnesses P.W.I and P.W.2, search of the accused was conducted and from his bag being carried by him, one more polythene bag of blue colour was found and on checking, poppy husk was found therein without possessing any valid permit. The poppy husk after weighment was 1 kg. and 350 grams from which two samples of 250 grams each were taken out and the said samples were sealed with Seal ‘S’ and the seal after use was given to P.W.2. The grounds of arrest were communicated to the accused. The sample was sent to C.T.L. Kandaghat. As per report of the Chemical Analyst (Ex.PL), the contents of the sample were found of poppy husk. P.W. 11 recorded the statements of the witnesses and completed the investigation. The charge-sheet was laid before the learned Sessions Judge against the accused for the commission of the offence under Section 15 of the NDPS Act.
3. The learned Sessions Judge on consideration of the police report submitted under Section 173, Cr.P.C. found prima facie case against the accused and charged him accordingly. The accused pleaded not guilty to the charge and claimed to be tried.
4. The prosecution examined in all 11 witnesses to prove the charge against the accused and placed on record the material documents. The defence of the accused in his statement recorded under Section 313, Cr.P.C. was that he was asked by PW-3 Constable Pawan Kumar around 2.30 p.m. On August 29 1998 to get down from the bus at Police Barrier, Polian and thereafter was made to sit there when he was again asked to sign certain documents after the arrival of the other police personnel. He pleaded that he has been falsely implicated in the case. However, no evidence was led by him.
5. The learned Sessions Judge on examination of the entire evidence and on consideration of the contentions of the learned counsel for the accused, found the accused guilty of the offence punishable under Section 15 of the NDPS Act and accordingly convicted him and sentenced to undergo rig-orous imprisonment for ten years and to pay fine of Rs. 1 lac and in default of payment of fine, he shall undergo simple imprisonment for two years. Now, the accused has challenged his conviction and sentence by way of this appeal filed from Jail.
6.This appeal, was admitted by a Division Bench of this Court on 13-10-1999 and Ms. Shyama Dogra, Advocate has been engaged as Legal Aid Counsel on behalf of the accused.
7. Before us, the learned Legal Aid Counsel pointed out that there are contradictions and infirmities in the evidence of the police personnel about the recovery of the contraband from the possession of the accused and the learned Sessions Judge has based the conviction of the accused on improper and incorrect appreciation of the evidence. She contended that one of the independent witness, namely, Surinder Singh (P.W.I) has not supported the case of the prosecution and the second witness (P.W.2) is a stock witness of the police and, therefore, no reliance could be placed on his testimony whereas other witnesses are police personnel who are interested in the successful result of the case. Ms. Shyama Dogra learned Legal Aid Counsel also contended that the mandatory provision of Section 50 of the NDPS Act are not complied with by the investigating officer in the present case and, therefore, conviction of the accused is bad in law and he deserves to be acquitted of the charge.
8. We have given our anxious and thougtful consideration to the contentions of the learned Legal Aid Counsel and in order to appreciate them we propose to re-assess and re-appraise the entire evidence adduced on record.
9. It is not in dispute that P.W.I has turned hotile to the prosecution and resiled from his earlier statement. But when he was cross-examined by the learned Public Pros-ecutor, he admitted that notice of search Ex. PA was given by P.W. 11 to the accused seeking his option about his personal search by the Magistrate or some Gazetted Officer. The accused opted that he shall be searched by the police officer and thereafter the accused put his thumb impression on the written consent in his presence. P.W. 11 thereafter searched the accused in his presence and on search poppy husk was recovered from the bag being carried by the accused. He signed the recovery memo Ex. P.C. P.W. 2 admitted his presence at Police Barrier, Polian on 29-8-1998 at 9.30 p.m. when the accused was on his way to pass though the police barrier. He stated that SI P.W.11 issued notice Ex.PA to the accused seeking his option of his personal search either from the Magistrate or the Gazetted Officer to which the accused consented vide document Ex.PB that he shall be searched by the Sub-Inspector P.W. 11. He has fully corroborated the entire case of the prosecution in his deposition before the trial Court.
10. It was the evidence of P.W.3 Constable Pawan Kumar that on 29-8-1998 file was on duty at Police Barrier, Polian when he received a secret information that one person was carrying some contriband and the name of the accused was given to him who was to pass through the police check-post. He was to transmit the information to Police Post, Haroli but in the meantime, patrolling party headed by SI P.W. 11 reached at the Police Check-post and then he passed on the said information to P.W. 11 which was recorded in writing (Ex.PF) and signed by him. SI Mahant Ram (P.W.4) at the relevant, time was the Reader to the Superintendent of Police, Una on that day who deposed that constable P.W. 10 came to him and handed over Special Report Ex.PF which was placed before Sh Vimal Gupta, Deputy Superintendent of Police as Shri D. P. Sharma, Superintendent of Police, Una on that day was out of station. Constable Sadhu Singh (P.W. 5) the member of the raiding party carried the copy of the statement of Constable P.W.3 recorded under Section 154, Cr.P.C. (ExPF) to the Police Station, Una for registration of the case and on the basis of the said statement FIR (Ex.PJ) was registered by HC Kuldip Kumar (P.W. 7) at Police Station, Una at 11.15 p.m. which was signed by SHO/SI Vtrender Singh (P.W.8). P.W.6 the other member of the raiding party carried information (ExPH) recorded under Section 42(2) of the NDPS Act to the Superintendent of Police, which was taken down by P.W. 11 under Section 42(1) of the Act. Constable (P.W.7) received bag (Ex.Pl) containing polythene bag (Ex.P2 and P3) along with two sealed samples from SI P.W. 11 on 30-8-1998. On 5-9-1998, he handed-over the samples to Constable Subhash Chand (P.W. 10) for their delivery to the Chemical Examiner of C.T.L. Kandaghat. He produced on record, a copy of Daily dairy rapat No. 25 marked Exts. PK and PK/1 showing the departure of P.W. 11 on patrol duty to Police Barrier, Polian. On 30-9-1998, P.W. 11 handed over Exts. P1 to P3 along with two samples to SI P.W.8 who sealed those samples with seal marked ‘A’. Inspector Kishan Singh (P.W. 9) prepared the final report after receipt of the report of Chemical Examiner (Ex.PL). Constable (P.W. 10) has also corroborated the version of constable P.W.3 and independent witnesses P.Ws. 1 and 2 in its entirely. P.W. 11, the investigating officer has corroborated the testimony of all the above said witnesses in his deposition and has elaborated the entire procedure adopted by him as permissible under law when he searched the accused, prepared the necessary documents and recorded the statements of the witnesses.
11. Now in the teeth of the above-said evidence on record, the first question for our consideration is whether the investigating officer has complied with the mandatory provisions of Sections 42 and 50 of the NDPS, Act in the case on hand.
12. From the entire re-assessment and re-examination of the evidence discussed hereinabove, we are convinced that SI P.W. 11 recorded the information report Ex PH and sent the same to the Superintendent of Police, Una through constable P.W.6 and the same was proved to have been received by S. P. Una on 29-8-1998 at 11 p.m. as proved by PW-6. Thus, the compliance of the mandatory provisions of Section 42 of the NDPS, Act was proved to have been done in this case and the contraband recovered from the possession of the accused has been found to be poppy husk by the Chemical Examiner, Kandaghat, vide his report Ex. PL.
13. To prove the compliance of Section 50 of the Act, the prosecution has examined independent witnesses P.Ws. 1 and 2, Constable P.W. 10 and Investigating Officer (P.W. 11) and all these witnesses have proved that notice (Ex.PA) under Section 50 of the Act was given to the accused who gave his consent (Ex.PB) it wrting stating that he be searched by P.W. 11, though at the initial examination, P.W.I turned hostile to the prosecution yet in his cross-examination conducted by the learned Public Prosecutor, he admitted his signatures on notice (Ex.PA) and merely being a hostile witness his evidence cannot be discredited in its entirety. We find no material contradictions in the testimony of the above said witnesses which would discredit their version about the search of the accused and recovery of the poppy husk from his possession. Even otherwise Section 50 of the Act has no application to the facts of the present case. The contraband was recovered not from the person of the accused but the same was recovered from a bag which was being carried by the accused. This Court in Shesh Ram v. State of H.P. (Criminal Appeal No. 20 of 1999) decided on December 21, 2000 (Reported in 2001 (3) Cur Cri R 36) held that since the recovery was effected from a haversack and not from the person of the accused. Section 50 of the Act would not be attracted. The accused has not proved on record that independent witness P.W. 2 is a stock witness of the police and his evidence shall be disbelieved and discarded. The compliance of Section 50 of the Act has been fully complied with by the investigating officer in the present case. However, there is minor discrepancy about the weight of the poppy husk recovered from the possession of the accused in the statement of P.Ws. 1, 2, 10 and 11. P.Ws. 1, 10 and 11 have categorically stated that on weighing the poppy husk, it was found 1 kg. and 350 grams recovered from the possession of the accused whereas in the examination-in-chief of P.W.2, he stated that the poppy husk recovered was 3 1/2 kgs. But lateron P.W. 2 clarified and maintained that the weight of the poppy husk was 1 kg. and 350 grams and, therefore, such a trivial discrepancy appearing in the examination-in-chief of P.W.2 will not make the prosecution case suspicious and doubtful.
14. The contention of the learned Legal Aid Counsel that poppy husk (Exts. P1 to P3) was handed over to PW8 by PW11 was unsealed and uncovered and, therefore, the possibility of tampering with the sample could not be ruled out and as such, the benefit of doubt should be given to the accused, merits no acceptance. The sample of the recovered article was duly sealed by the investigating officer on the spot and deposited in the Police Station which was re-sealed by P.W.9 and out of the said sample, one sample was sent to the Chemical Examiner for its analysis which was lateron found to be that of poppy husk,
15. On meticulous examination of the entire evidence on record and the reasoning recorded by the learned Sessions Judge on consideration of the entire material on record, we find that the accused has rightly been convicted by the learned Sessions Judge. The accused has failed to account satisfactorily for the possession of the contraband recovered from his possession and he could not rebut the presumption envisaged under Section 54 of the NDPS Act.
16. Now the further question arises for our consideration is whether the learned Sessions Judge was right in rejecting the claim of the accused for the benefit of Probation available under Section 33 of the NDPS Act or not? The reason recorded by the learned Sessions Judge was that the accused could not produce the correct proof of his age below 18 years, therefore, the benefit of Probation could not be extended to him. We do not agree with the said reasoning recorded by the learned Sessions Judge.
17. Section 33 of NDPS Act reads as under :-
Nothing contained in Section 360 of the Code of Criminal Procedure 1973 or in the Probation of Offenders Act, 1958 shall apply to a person convicted of an offence under this Act unless such person is under eighteen years of age or that the offences for which such person is convicted is punishable under Section 26 or Section 27
In the present case, the accused has been convicted under Section 15 of the NDPS Act.
18. Section 6 of the Probation of Offenders Act provides restrictions on imprisonment of offenders under twenty-one years of age, which reads as under :-
(1) When any person under twenty-one years of age is found guilty of having committed an offence punishable with imprisonment (but not with imprisonment for life), the Court by which the person is found guilty shall not sentence him to imprisonment unless it is satisfied that, having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to deal with him under Section 3 or Section 4 and if the Court passes any sentence of imprisonment on the offender, it shall record its reasons for doing so.
(2) For the purpose of satisfying itself whether it would not be desirable to deal under Section 3 or Section 4 with an offender referred to in Sub-section (1), the Court shall call for a report from the probation officer and consider the report, if any and other information available to it relating, to the character and physical and mental conditions of the offender.
19. From the plain reading of Section 33 of the NDPS Act, the benefit of Probation of Offenders Act can be extended to an accused being under 18 years of age at the time of commission of the offence. In the present case, the accused is stated to be under 18 years of age at the time of commission of the offence. In Satyabhan Kishore v. The State of Bihar 1972 SCC (Cri) 540 : 1972 Cri LJ 1042, their Lordships of the Supreme Court while dealing with the provisions of Sections 3,4 and 6 of the Probation of Offenders Act, have observed as under (at Page 1045; of Cri LJ) :-
Whereas Sections 3 and 4 leave it to the discretion of the Court to make an order as provided therein, Section 6 provides that where a person under 21 years of age is found guilty of an offence punishable with imprisonment (but not with imprisonment for life), the Court by which he is found guilty shall not sentence him to imprisonment, unless it is satisfied, having regard to the circumstances of the case, including the nature of the offence, that it would not be desirable to deal with him under Section 3 or Section 4 and if the Court passes any sentence of imprisonment on such offender it shall record its reasons for doing so. Under Sub-section (2), the Court, for the purpose of satisfying itself whether it would not be desirable to deal with such an offender under Section 3 or Section 4, shall call for a report from the probation officer and consider such report, if any and any other information available to it relating to the character and physical and mental condition of the offender. Section 6 thus lays down an injunction, as distinguished from the discretion under Sections 3 and 4, not to impose a sentence of imprisonment upon an offender of the class covered by the section unless for reasons to be recorded by it. the Court finds it undesirable to proceed with him under Section 3 or Section 4.
(Emphasis supplied).
20. In Ishwar Das v. The State of Punjab (1973) 2 SCC 65 : 1972 Cri LJ 874, their Lordships have reiterated as under at Page 876; of Cri LJ ;-
Sub-section (1) of Section 4 of the Act that it makes no distinction between persons of the age of more than 21 years and those of the age of less than 21 years. On the contrary, the said Sub-section is applicable to person of all ages subject to certain conditions which have been specified therein. Once those conditions are fulfilled and the other formalities which are mentioned in Section 4 are complied with, power is given to the Court to release the accused on probation of good conduct. Section 6 of the Act deals specifically with persons under twenty one years of age convicted by a Court for an offence punishable with imprisonment other than imprisonment for life. In such a case an injunction is issued to the Court not to sentence the young offender to imprisonment. Unless the Court is of the view that having regard to the circumstances of the case including the nature of the offence and the character of the offender, it would not be desirable to release him after admonition under Section 3 or on probation of good conduct under Section 4 of the Act.
(Emphasis supplied)
21. Again in Mohamed Aziz Mohamed Nasir v. State of Maharashtra 1976 SCC (Cri) 148 : 1976 Cri LJ 583 the Supreme Court in para 2 of the judgment held as under (at Page 584; of Cri LJ) :-
Section 6(1) lays down an injunction as distinct from a discretion under Section 3 or Section 4′, not to impose a sentence of imprisonment on a person who is under twenty-one years and is found guilty of having committed and offence punishable with imprisonment other than that for life, unless for reasons to be recorded by it, it is satisfied that it would not be desirable to deal with him under Section 3 or Section 4. This inhibition on the power of the Court to impose a sentence of imprisonment applies not only at the stage of trial Court but also at the stage of “High Court or any other Court when the case comes before it on appeal or in revision.
Further it is stated that Section 6 is intended for the benefit of juvenile delinquents reflecting the anxiety of the legislature to protect them from contact or association with hardened criminals in jails and retrieve them from a life of crime and rehabilitate them as responsible and useful members of society.
22. In the case on hand, we find from the charge framed by the learned Sessions Judge on 18-11-1998 that the age of the accused has been stated as 17 years. The accused in his statement recorded under Section 313, Cr.P.C. dated 17-9-1999 has also stated the same age. The accused preferred bail application No. 207/98 on 14-9-1998 before the learned Sessions Judge under Section 439, Cr.P.C. for the grant of bail. In his order dated 18-11-1998, the learned Sessions Judge as per statement made by the accused in the said application found the age of the accused to be 17 years and he was accordingly released on bail without furnishing personal bond presumably considering him to be under eighteen years of age and only two sureties in the sum of Rs. 20,000/- each were ordered to be furnished by the accused.
23. On examination of the above-said record, we are inclined to accept the claim of the accused that at the time of commission of the offence, he was less than 18 years of age and, therefore, the provision of Section 33 of NDPS Act is wholly attracted in the present case as the accused stands convicted under Section 15 of the Act. The very object of Section 33 of NDPS Act would stand frustrated if the accused is allowed to be kept in contact or association with hardened criminals in Jail atmosphere for a longer period. In identical case, in Rakesh alias Duro Pravinbhai Thakar v: State of Gujarat 1995 (2) Crimes 129 : 1995 Cri LJ 1263 the learned Judges of the Bench have extended the benefit of probation to an accused convicted under Sections 17 and 18 of the NDPS Act.
24. No other point has been argued by the learned counsel on either side.
25. In the result, this appeal is partly allowed. The impugned order of conviction under Section 15 of the NDPS Act is hereby confirmed. Since we are inclined to release the accused Raj Mohammed alias Raju on probation, the rigorous imprisonment of 10 years and fine Rs. 1 lac and in default thereof to undergo simple imprisonment for two years will have to be suspended for two years i.e. the accused Raj Mohammed alias Raju is released on probation for two years. Accordingly, accused Raj Mohammed alias Raju is ordered to be released on probation on his executing a bond in the sum of Rs. 10,000/- with one surety of the like amount undertaking to appear and receive the sentence in the event of committing the same or similar offence during the course of the probation period. During this period, he will conduct himself as a good citizen. The accused Raj Mohammed alias Raju accordingly shall appear before the learned Sessions Judge, Una on any date on or before January 31, 2001, to furnish his bond as directed here-in-above.
26. In this view of the matter, the accused Raj Mohamed alias Raju is ordered to be released forthwith unless otherwise he is required by the police in any other case.
27. A copy of the judgment be sent to the accused through the Superintendent/Deputy Superintendent, Model Central Jail, Nahan.
28. Before parting with this judgment, we wish to place on record our appreciation for the assistance rendered by Legal Aid Counsel Ms. Shyam Dogra.