JUDGMENT
S.L. Kochar, J.
1. This is an appeal preferred by the appellant, against the judgment passed by Ill ASJ Mandsaur in ST No. 18/94 on 27.2.1997, thereby convicting the appellant, for the offence punishable under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1895 (for short ‘the Act’) and sentencing him to undergo R1 for 10 years with fine of Rs. 1 lac, in default of payment of fine further Rl for 2 years.
2. The facts necessary for disposal for this appeal, are that on 28th September, 1993, the SHO of Police Station Afajalpur, received information from informant/Mukhbir that one Gopal Kumawat of village Lasudawan would be going to village Badwan along with illicit opium. On the basis of the said information, Exh.
P/1, SHO O.P. Dube (PW 8) made a Panchanama of the information in presence of witnesses Subhash (PW 1) and Dulesingh (PW 2) and sent the information Exh. P/15 to SDOP Sitamau, along with a copy thereof with constable Heeralal (PW 6) which was received by reader Abdul Gafur Mansuri (PW 7). Thereafter, SHO O.P. Dube (PW 8) along with police force reached the field of one Mohan Gayari and arranged the trap. As soon as Gopal came there along with the opium, he was stopped by the police. On interrogation, he disclosed his name as Gopal. Thereafter, in compliance to Section 50 of the Act, appellant Gopal was given an option to be searched before gazetted officer, magistrate by police officer concerned O.P. Dube (PW 8). The appellant consented for his search to Investigating officer, O.P. Dube (PW 8). The consent panchanama is Exh. P/2. On search, at the instance of the appellant, 9 kg opium was found in fertilizer bag which was in his possession. Out of which, a sample of 2 packets of opium, in 2 Bristal Cigarette packets, containing 30 gms each were prepared for sending for chemical examination. Chemical Analyst found that the samples were of opium, containing 3.56 morphine. On usual investigation, charge-sheet was filed and on trial, the appellant was convicted and sentenced as indicated above.
3. Learned counsel for the appellant submitted that there is no compliance of Sections 42 and 50 of the Act as also the samples were not kept in proper custody. Therefore, the conviction of the appellant is bad in law. In support, the counsel placed reliance on the cases Jayantilal Modi and Ors. v. State of Maharashtra, 2001(2) Mh.LJ. (FB) 615 : 2002 (1) EFR 406 Bom. High Court, Full Bench; K. Mohanan v. State of Kerala, 2000 SCC (Cri.) 1228; Valsala v. State of Kerala, AIR 1994 SC 117 and Baldev Singh v. State of Punjab, (1990) 4 SCC 692.
4. In contra, Mr. Girish Desai, Deputy Advocate General, appearing for the State submitted that there is proper compliance of Sections 42 and 50 of the Act. At the first instance, Mr. Desai submitted that in this case provisions, enumerated under Section 42 of the Act will not apply because there was no information about concealment of contraband article in any building, conveyance or enclosed place. In the present case, according to him, provision of Section 43 will apply, which empowers authorized police officer to effect search, seizure and arrest of the accused in a public place. For this purpose, he placed reliance on the Supreme Court judgment passed in the State of Punjab v. Balbir Singh, 1994 (3) SCC 299 (para 9). The counsel further submitted that there is sufficient compliance of Section 50 of the Act in the present case and the same is varied in the light of the judgment rendered by the Supreme Court in the case of Joseph Fernandez v. State of Goa, 2000 SCC (Cri) 300. The counsel also relied on the judgment passed by this Court in Mohammad Khaijar alias Lallu v. State of M.P. (Criminal Appeal No. 166/95 decided on 27.8.2002).
5. Having heard learned counsel for the parties and after perusing the entire record, this Court is of the opinion that there is proper compliance of Sections 42 and 50 of the Act, by the investigating Agency and the samples were also kept in
proper custody in MALKHANA. The samples were also sent for analysis within 5 days from the date of seizure i.e. 28.9.1993.
6. The contention of the learned counsel for the appellant is that as per provision under Section 42 of the Act, copy of the MUKHBIR information, as shown, to be sent by the police, is containing different facts to an the information received. This Court has perused panchanama of the information received from informant to the police, which is Exh. P/1, prepared in the presence of two independent witnesses Subhash (PW 1) and Dulesingh (PW 2). This Panchanama also bears the signatures of these witnesses, though they turned hostile. But both these witnesses have admitted their signatures. Copy of the same was sent through Exh. P/15. Copy of the MUKHBIR report/panchanama is Exh. P/1 and Exh. P/15 is the letter to the SDOP regarding sending of the Panchanama MUKHBIR Report. The same were received by the Reader of SDOP on 28.9.1993 at 12.30 p.m. The counsel has pointed out contradictions in Exh, P/1 and Ex. P/15 i.e. in Exh. P/1 MUKHBIR Report is disclosing the fact that:-
^^xksiky dqekor ylqMkou dk] ,d FkSyh esa voS/k
vQhe ysdsj [ksrksa esa jkLrs ls cMous xk¡o ds rjQ ys tkus okyk gS**
XXX
Whereas in Ex. P/15, it is mentioned at portion “C” to “C”
^^jkLrs ls gksdj tk jgk gS**
Therefore, correct information was not being sent to the superior officer and false case has been concocted by the police,
7. This Court is not Impressed by this argument advanced by the counsel for the appellant because Ex. P/15 is not the MUKHBIR Panchanama, it is the covering letter about sending of Panchanama of MUKHBIR Report vide Exh. P/1. At the bottom of Ex, P/15 Is mentioned/written “SANLAGNA” (enclosures) is written “Mukhbir Panchanama”.
8. Section 42(2) of the Act reads as under:
“Section, 42,……
(1) …………….
(2) Where an officer takes down any information in writing under Sub-section (1) or records ground for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior,”
This section requires, to send copy of the Mukhbir report, which was taken down in writing by the concerned police officer. Copy of Ex, P/1 was ‘sent with Ex. P/15 with covering letter immediately and the same were received by the reader of the SDOP on 12.30 p.m. on the same day.
8. The next contention of the learned counsel for the applicant is that there is no compliance of Section 50 of the Act. In view of the judgment passed by the Supreme Court in K. Mohanan’s case (supra) the police officer effecting seizure from personal search of the appellant, was required to inform him about his right in that behalf under the law. Non-mentioning of fact that the appellant was apprised about his right, to be searched by gazetted officer or a magistrate, is clear breach of provision of Section 50 of the Act. In the present case, the investigating officer, has asked the appellant whether he wanted to get himself searched by empowered gazetted officer or a magistrate. It is true that in the document Ex. P/2, prepared in compliance of the provision of Section 50 of the Act there is no mention of the fact that the appellant was apprised or/informed about his right being searched by the gazetted officer or a magistrate. There is a decision of the Supreme Court consisting of 3 Judges Bench in Joseph Fernandez’s case (supra) wherein it is held as under;
“Learned counsel tried to highlight a point that Section 50 of the Narcotic Drugs and Psychotropic Substances Act has not strictly been complied with by PW 8, the officer who conducted the search. According to the learned counsel for the appellant, the searching officer should have told the person who was subjected lo search that he had a right to be searched in the presence of a gazetted officer or a magistrate, In this case PW 8 has deposed that she told the appellant that if he wished he could be searched in the presence of the gazetted officer or a Magistrate to which the appellant had not favourably reciprocated. According to us the said offer is a communication about the information that the appellant has a right to be searched so. It must be remembered that the searching officer had only Section 50 of the Act then in mind unaided by the interpretation placed on it by the Constitution Bench. Even then the searching officer informed him that “if you wish you may be searched in the presence of a gazetted officer or a Magistrate. This according to us is in substantial compliance with the requirement of Section 50. We do not agree with the contention that there was non-compliance with the mandatory provision contained in Section 50 of the Act,”
9. In the light of this judgment, Consent Panchanama, Exh. P/2 and the statements of prosecution witness O.P. Dubey, (PW 8) and other witness Argun Singh (PW 5) are clearly establishing the substantial compliance of requirement of Section 50 of the Act. The judgment relied on by the learned counsel in the case of K. Mohanar (supra) has been passed by Two Judges Bench of the Supreme Court whereas the judgment passed in Joseph Fernandez’s case (supra) has been passed by Three Judges Bench. Therefore, applying the principle of application of precedent former judgment passed by Larger Bench prevails over the latter. This Court may usefully refer to the Judgment passed by the Supreme Court in the case of Mittulai v. Radhe Lal, AIR 1974 SC 1596. It is pertinent to note here that in both these judgments (K. Mohanan’s case and Joseph Femandez’s case) the Supreme Court has considered the judgment rendered by the Constitutional Bench.
10. This Court has gone through the judgment of Constitutional Bench the State of Punjab v. Baldev Singh (supra). In this judgment, the Supreme Court has not expressed any opinion, whether the provisions of Section 50 are mandatory or directory. In the judgment para 43 the Supreme Court has held that:
“The judgment in Pooran Mal case has to be considered in the context in which It was rendered. It is well settled proposition of law that a decision is an authority for what it decides and not that everything said therein constitutes a precedent. The courts are obliged to apply an intelligent technique in use of precedents bearing it in mind that a
decision of the Court takes its colour from the questions involved in the case in which it was rendered.”
11. In the light of the judgment passed in Joseph Fernandez’s case (supra) this Court is of the firm view that substantial compliance of Section 50 of the Act, has been done in the present case. On the basis of the statement of investigating officer, O.P. Dubey (PW 8) and other witnesses as also document Ex. P/2, no prejudice has been caused to the appellant. Therefore, he is not entitled to get any benefit in that behalf.
12. So far as contention of the learned counsel for the appellant, about not keeping of the samples in a proper custody before sending the same for analysis is concerned, this Court has gone through the statement of Shivram Singh (PW 9), who is, the then head constable and who has testified that 8.940 gms opium in a sealed packet and 2 packets of sealed samples were handed over to him by O.P. Dube (PW 8) and he deposited the same in the MALKHANA and immediately thereafter entries were made in this regard vide Ex. P/21. These samples were deposited on the same day i.e. on 28.9.1993 when search and seizure were made at the instance of the appellant. On 3.10.1993, samples were sent to FSL, Indore for chemical examination. Therefore, there is absolutely no delay in sending the samples. Learned counsel for the appellant placed reliance in Valsala’s case (supra). The ratio of this case is not applicable to the case on hand because there was absolutely no evidence that after search and seizure sample was in whose custody and also there was nothing to show whether it was sealed and kept in proper custody. The sample was produced in Court after more than 3 months. Such is not a situation, in the present case. In this case, the samples were taken and sealed immediately i.e. on 28.9.1993. It was also deposited in MALKHANA and thereafter sent within 5 days for chemical analysis. The samples were sealed separately and sent immediately. The Chemical Analyst’s report Ex. P/20 clearly revealing the fact that on 4.10.1993, sealed packets of the samples were received and its seal were also tallying with the specimen seal. Shivram. Singh (PW9) was given suggestion by the counsel for the prosecution that in register Ex. P/21, the date for sending the samples was mentioned later on. This suggestion was denied by this witness. Document Ex. P/21 is revealing the fact that seized article i.e. opium, was kept in sealed packets. The seal was also kept in MALKHANA and to this effect entries are available in MALKHANA register. In the present case, the prosecution has led cogent and reasonable evidence and established beyond reasonable doubt that after seizure, samples were duly sealed and seized packets were immediately deposited in the MALKHANA. The seal was also deposited in the MALKHANA. Thereafter, within 5 days, the samples were sent to FSL and the report is disclosing the presence of Morphine in the sample.
13. In the light of the aforesaid factual and legal discussions, this Court is of the opinion that the prosecution has succeeded in proving guilt of the appellant beyond reasonable doubt and there is no infringement of any mandatory provision of the Act muchless under Sections 42 and 50 of the Act, which may render conviction of the appellant illegal and unjust. Therefore, this appeal deserves fate of dismissal.
14. Consequently, this criminal appeal fails and is hereby dismissed.