JUDGMENT
Virender Singh, J.
1. Cyril Archibong, A foreign national (Nigerian) stands convicted by the impugned judgment dated May 8, 2001 passed by the learned Judge, Special Court, Chandigarh under Section 21 of the Narcotic Drugs and Psychotropic Substances Act (in short to be referred as the ‘Act’) and has been sentenced to undergo rigorous imprisonment for 15 years and to pay fine of Rs. one lac, in default of payment of fine to suffer further RI for one year.
2. In brief, the case of the prosecution is that on 19.11.1998 SI Dilbagh Singh (PW3) a long with other three police officials was present in Gobindpura mohalla, Mani Majra, near Thakurdawara. Per chance, Bahadur Singh (PW6) and Angrez Singh (not examined by the prosecution) met him there. In the meantime, a secret information was received that the appellant who was habitual of selling smack, was coming from the side of Bitta Petrol Pump towards Modern Complex, Manimajra, with a suitcase containing smack. The secret information was reduced into writing and was sent to the police station through Constable Naresh Kumar. After joining Bahadur Singh (PW6) and Angrez Singh in the police party, a naka was laid. The appellant was seen coming from the side of Bitta Petrol Pump with a briefcase in his hand at 9-10 PM. On seeing the police party, he made an attempt to turn back but was apprehended. The appellant was then served with a notice to tell whether he wanted to be searched before a Magistrate or a Gazetted Officer, because he was suspected of having smack in his briefcase. The appellant opted to be searched before a Gazetted Officer. Consequently, DSP Vijay Pal Singh was called at the spot, who also served the appellant with a similar notice, in reply to which the appellant opted to be searched by the said DSP. Thereafter, the briefcase was opened and smack weighing 2.570 kilograms wrapped in a blue colour plastic bag was recovered. Besides this, Rs. 60,000 one passport and a packet of empty plastic pouches were also found in the briefcase. 100 grams of the smack was extracted as sample and was put into a separate parcel. The sample and the residue smack were separately sealed and taken into possession. Since the appellant could not produce any permit or licence for keeping the said smack in his possession, he was booked in this case. Ruqqa (Exhibit PE) was sent to the police station on the basis of which formal FIR (Exhibit PE/1) was registered.
3. The appellant was charged under Section 21 of the Act.
4. In order to substantiate its case against the appellant, the prosecution examined as many as 10 witnesses.
5. PW1 is Constable Nasib Singh, who had been handed over one parcel of smack, duly sealed, for depositing the same in CFSL, Chandigarh on 23.11.1998. He was also given the docket and sample seal. He had consequently deposited the same.
6. MMHC Rajinder Parshad (PW2) has deposed that on 20.11.1998 Inspector/SHO Om Parkash had deposited with him a sample parcel and the case property of this case besides sample seals. The other articles of Jama Talashi were also deposited with him.
7. SI Dilbagh Singh (PW3) is the Investigating Officer in this case, who has reiterated the prosecution story.
8. DSP Vijay Pal Singh (PW4) has stated that on intimation received from SI Dilbagh Singh, he reached the spot and the recovery of 2.570 kilograms of smack besides cash and a wrist watch was effected from the appellant in his presence. He also talks of other legal formalities conducted at the spot.
9. SI Jagmohan, Incharge FRO Branch (PW5) has stated that from the year 1990 to 1997 and thereafter from July 1998, the appellant did not supply any information regarding his residence in Chandigarh, He had told this fact to SI Dilbagh Singh.
10. Bahadur Singh (PW6) is an independent witness to the recovery, who has supported the prosecution story in toto.
11. Dr. R.M. Tripathi (PW7) of Central Forensic Science Laboratory has deposed that the sample sent to him on testing was found to be that of heroin (Diacetylmorphine).
12. Inspector Om Parkash (PW8) has stated that on 19/20,11.1998, SI Partap Singh had produced the appellant before him alongwith two sealed parcels, one suitcase, Rs. 60,000 currency notes and the articles recovered from the personal search of the appellant. He had deposited the recovered article besides the contraband with the MMHC Rajinder Parshad.
13. Yashpal (PW9) is a Police Draftsman, who had prepared the scaled site plan (Exhibit PG).
14. SI Partap Singh (PW10) has stated that on 19.11.1998 he had reached the spot where ASI Dilbagh Singh and DSP Vijay Pal Singh were present besides other witnesses. He had prepared the rough site-plan at the spot. He had affixed his seal on the parcels.
15. Angrez Singh was given up as having been won over by the appellant. Some other formal witnesses were also given up as unnecessary.
16. The stand of the appellant as emerges from the statement recorded in terms of Section 313 of the Code of Criminal Procedure is that he has been falsely implicated in this case; that no recovery was effected from him; that a sum of Rs. 80,000 and other amount shown as Jama Talashi was taken from his house by SI/SHO Om Parkash, who had raided his house in his absence and on receiving telephone from his wife, he had reached the house; Om Parkash had given the house to Dr. Obisisqsang Ojo, Amadhi and David through the appellant and since they could not pay the rent and as the appellant was a mediator, the Inspector compelled him to pay the rent which he denied; The inspector misappropriated Rs. 20,000 out of Rs. 80,000 recovered from the house of the appellant as adjustment of rent; that the appellant had filed a complaint (Exhibit DF) to the Home Secretary, Chandigarh Administration, Home Ministry, New Delhi and the Chief Justice of this Court to this effect; that no notice U/s 50 of the Act was given to him; that the appellant was compelled to give his option in this regard; that the documents were false in so much so that these do not bear the signatures of independent witnesses as well.
17. In defence, the appellant examined as many as three witnesses:
18. Daniel Anthony (DW1) has toed the defence of the appellant and has stated that on 19.11.1998 SHO Om Parkash came to the house of the appellant with two other police officials and searched the house of the appellant when wife Jassica was there.
19. David Obondo (DW2) has stated that he had taken the house of Om Parkash SHO on rent; that the appellant had introduced him to Inspector Om Parkash and had stood guarantor for him; that in the said house three more Nigerians were also staying; that as those persons could not pay the rent to SHO, the latter had confiscated their articles and told that the articles would be returned only if Rs. 25,000 is paid to him; that since the appellant was a mediator, he was falsely implicated in this case by the SHO.
20. Jassica (DW-3) is the wife of the appellant, who has stated that on 19.11.1998 in the absence of her husband (the appellant), the house was searched and a sum of Rs. 80,000 besides other articles were taken away by the SHO and that the appellant has been falsely implicated in this case.
21. On a consideration of the entire evidence, the learned trial Court has convicted and sentenced the appellant as stated above. Hence this appeal.
22. We have heard Mr. D.S. Rajput, learned counsel for the appellant and Mr. R.S. Raj, learned Standing Counsel for Union Territory, Chandigarh. With their assistance, we have gone through the entire evidence as also the other relevant documents.
23. The first argument of learned counsel for the appellant is that there is no compliance of Section 50 of the Act in this case as the offer allegedly made to the appellant is not in accordance with the law. According to him, the offer made to the appellant was a partial offer as he was not asked as to whether he wanted to be searched before a Magistrate or a Gazetted Officer. The Investigating Officer/Dilbagh Singh and DSP Vijay Pal Singh have confined the offer to the Gazetted Officer of the police only. According to the learned counsel, this offer would be termed as a partial offer and as such would amount to non-compliance of the mandatory provisions of Section 50 of the Act. The learned counsel thus contends that there is no signature of the appellant is the consent memo. Exhibit PB/1 and similarly in another consent memo, prepared by DSP Vijay Pal Singh Exhibit PC/1 so much so that while issuing notice Exhibit PC, DSP Vijay Pal Singh did not disclose to the appellant that he is a Gazetted Officer.
24. Mr. Rajput has further contended that the names of the independent witnesses is not mentioned in the initial ruqqa Exhibit PA/1 and that even the FIR is not lodged on the basis of the said ruqqa. In the same breath, he contended that the prosecution should have produced the secret informer in the Court. All these infirmities are fatal to the prosecution case, Mr. Rajput asserts.
25. It is further contended by learned counsel that the compliance of Sections 42 and 52A(2) of the Act has also not been done in the present case and the appellant deserves acquittal on this count
26. Lastly, in the alternative Mr. Rajput has prayed that the sentence awarded to the appellant is too stringent and he deserves a lenient view in the quantum of sentence.
27. On the other hand, Mr. Rai appearing for the respondent defending the impugned judgment has contended that the appellant has been rightly convicted and sentenced on the basis of the cogent evidence on record.
28. After hearing the rival contentions of both the sides, we are of the view that the conviction as recorded by the trial Court is liable to be maintained. We are not at all convinced by any submission of the learned counsel for the appellant.
29. So far as non-compliance of Section 50 of the Act is concerned, we may make it clear that the recovery in this case was effected from the briefcase of the appellant and not from his person and therefore, the compliance of Section 50 of the Act was not at all required. All the witnesses to recovery have categorically stated that the contraband was in the briefcase of the appellant, which he was having in his hand. Even if any offer in this case is given by issuing the notices to the appellant, in our view it was just superfluous. This aspect does not call for any further discussion in view of the judgment of the Constitutional Bench of the Apex Court rendered in State of Punjab v. Baldev Singh, 1999 (65) ECC 695 (SC): 1999 (3) RCR (Cri) 533 (SC) : 1999 SCC (Cri) 1080 and thereafter followed in Kalema Tumba v. State of Maharashtra, 1999 (67) ECC 6 (SC) : 1999 (4) RCR (Cri) 575 (SC) : 1999 SCC (Cri) 1422.
30. The other limb of the argument that the consent memos, did not bear the signatures of the appellant also loses its significance in the light of above-said discussion but we may point out that the signatures of the appellant are very much there on both the consent memos.
31. The next argument of learned counsel that in the initial ruqqa Exhibit PA/1 names of the independent witnesses are not there; is also of no avail. The said ruqqa is a simple intimation sent by SI Dilbagh Singh (PW3) to the SHO, Police Station, Mani Majra about the receipt of secret informations from a special informer to the effect that the appellant was coming from the side of Bitta Petrol Pump with a briefcase in his hand. He was not supposed to give the complete details in this ruqqa and even if the names of independent witnesses are not mentioned in the ruqqa, it would not have any adverse effect on the prosecution case. Exhibit PA/1 is not the basis of the FIR. It was just entered in the DDR at serial No. 45 dated 19.11.1998 at 8-30 PM. The formal FIR was registered on the basis of a subsequent ruqqa Exhibit PE, which was sent after effecting recovery in this case. A perusal of this ruqqa would show that the said intimation was entered in DDR at serial No. 52 on 19.11.1998 at 11.00 PM. vide which formal FIR No. 145 of 1998 Exhibit PE/1 was registered. This argument of learned counsel is thus without any substance. We may also observe that there is no requirement of law to produce the secret informer in the Court during trial. The prosecution is not supposed to disclose the name of the secret informant in any document which is sent for registration of the First Information Report.
32. The other contention of learned counsel regarding non-compliance of Section 42 of the Act is also without any substance and against the records for a very simple reason that in the present case the secret information was reduced into writing, which is Exhibit PA and was sent to the SHO, police station, Mani Majra, as is evident from the endorsement Exhibit PE/1. Mr. Rajput wants to blow hot and cold in one breath. On one hand he wants to take advantage of the writing Exhibit PA not being the basis of the FIR and on the other hand he wants to criticise the prosecution agency for non-compliance of Section 42 of the Act. Thus, in our view this argument is neither here nor there.
33. Mr. Rajput has also made an endeavour to make capital by submitting that there is non-compliance of Section 52A(2) of the Act. We are afraid if he can derive any benefit on this count. Section 52A has nothing to do prior to the recovery. It comes into play only when the recovery is effected and the case property is to be disposed of after getting the directions of the Magistrate as to ensure that the case property is not misused and also to relieve the prosecution of the responsibility of safe custody. In the present case, admittedly there is no dispute about the identity of the case property at this stage and even if there is non-compliance of Section 52-A of the Act, it would not vitiate the trial at all. The provisions of Section 52-A(2) of the Act are directory and not mandatory in nature as so held in Amarjit Kaur v. State of Haryana and Ors., 2003 (1) RCR (Cri) 99.
34. As a sequel to the aforesaid discussion, we are of the view that there is no infirmity in the impugned judgment of conviction and we uphold the same.
35. So far as quantum of sentence is concerned, we feel that the appellant does deserve some leniency. He is stated to be in custody since 1998 and is not a previous convict. He is a married man. He has already suffered the rigour of protracted trial for about five years. In our view the ends of justice would be adequately met if the substantive sentence of fifteen years RI is reduced to twelve years. It is ordered accordingly. However, the sentence of fine of Rs. one lac, which is the minimum requirement of law, would remain the same.
36. With the modification in quantum of sentence as indicated above, the appeal fails and is hereby dismissed.
Intimation of this judgment be sent to the learned trial court and the Jail authorities.
