JUDGMENT
R.C. Mishra, J.
1. This appeal has been preferred against the judgment dated 09.01.2007 passed by the Special Judge [under the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the Act’)] at Bhopal in Special Case No. 01/2006, whereby the appellant stands convicted under Section 8(c) read with Section 21(b) of the Act and sentenced to undergo R.I. for 21/2 years and to pay a fine of Rs. 5000/- and in default to suffer R.I. for three months. He was tried on the charge of being found in an illegal possession of Brown Sugar (Heroin) which is an “opium derivative” within the meaning of Section 2(xvi) of the Act.
2. The prosecution case, in short, is that on 07th January, 2006, on the basis of information received at about 11.30 a.m., ASI M.P. Singh (PW4) at P.S. Jahagirabad, Bhopal, conducted a raid at a place, situated near Berkhedi Filter Pump where the appellant was standing. Although, the appellant was apprised of his legal right under which he could require presence of a Gazetted Officer or a Magistrate for his personal search yet, waiving his right, he permitted the police officer to take his search. During his personal search, one plastic pouch containing 15 grams of heroin was recovered from the left pocket of his trousers. The contraband was duly seized. Two samples of 5 grams each were drawn. One of the samples was forwarded to the Regional Forensic Science Laboratory, Bhopal for chemical examination. Corresponding report (Ex. P-33) indicated that the sample contained 14.99% of diacetylmorphine. After completion of the investigation, charge-sheet was filed before the Special Court.
3. The appellant pleaded not guilty. In the examination, under Section 313 of the Code of Criminal Procedure, he raised defence of false implication by police.
4. To bring home the charge, the prosecution examined as many as six witnesses including the detecting officer M.P. Singh (PW4), and panch witnesses namely Ramchandra (PW2) & Saleem (PW3). No evidence was adduced on behalf of the defence.
5. On consideration of the entire evidence on record, the learned Special Judge, for the reasons recorded in the impugned judgment, found the appellant guilty of the offence charged with. He, therefore, convicted and sentenced him as indicated hereinabove.
6. Legality and propriety of the impugned conviction have been assailed on the following grounds:
(i) None of the independent witnesses had supported the prosecution case.
(ii) Statutory provisions relating to search, seizure and arrest were not complied with.
(iii) The offence was triable by Judicial Magistrate First Class in view of the fact that the contraband recovered from the possession of appellant contained only 2.25 grams of diacetylmorphine, which is less than 5 grams notified as ‘small quantity’ vide S.O. No. 1055 (E) dated 19.10.2001 issued in exercise of the powers conferred under clauses
(viia) and (xxiiia) of Section 2 of the Act. However, the Govt. Advocate, while making reference to the incriminating pieces of evidence, contended that the impugned conviction was fully justified.
7. It is true that both panch witnesses viz. Ramchandra (PW2) and Saleem (PW3) did not support the prosecution version but, this fact, by itself, is not sufficient to discard the evidence of ASI M.P. Singh (PW4), who had conducted the search and seizure in absence of any hostility towards the appellant. What is to be seen is as to whether from his testimony coupled with the other evidence on record, genuineness of the seizure of the contraband from the possession of the appellant was amply proved P.P. Fathima v. State of Kerala referred to.
8. ASI M.P. Singh (PW4) duly corroborated the prosecution version as recorded by him, in his report (Ex. P-31), submitted before CSP after completion of entire proceedings pertaining to search, seizure and arrest in pursuance of the information received at the police station. According to him, after recording the information to this effect that the appellant, carrying brown sugar, was standing near Berkhedi Filter Pump, in panchnama (Ex. P-21), he communicated the same, on wireless set, to the SHO. He further added that the SHO, in turn, had authorized him only to carry out search, seizure and arrest and this fact was jotted down at Serial No. 458 of Roznamcha (Ex. P-5). As per his statement, he deputed constable Babuji Mathur to hand over information (Ex. P-24) to the CSP and then proceeded, along with one Head Constable and two Constables to the spot, described in the information. This fact finds place in the corresponding entry of Roznamcha (Ex. P-28)
9. ASI M.P. Singh (PW4) also asserted that the independent witnesses Ramchandra (PW2) and Saleem (PW3), after being apprised of the information, agreed to witness the search and seizure. According to him, -while expressing his desire to effect personal search, he asked the appellant as to whether he required presence of a Gazetted Officer or a Magistrate for the purpose and an answer in negative enabled him to search body of the appellant, who was found in possession of 15 grams of brown sugar, that was kept in a plastic pouch recovered from trousers’ left pocket. It also came in his statement that, after drawing two samples of 5 grams each, M.P. Singh had proceeded to keep the remaining quantity of contraband separately in a duly sealed packet. Copies of the notice, under Section 50 of the Act (Ex. P-6), corresponding panchnamas (Ex. P-7 to P-15) and seizure memo (Ex. P-16) were also placed on record and with reference to the contents of these documents; no inconsistency could be elicited in the cross-examination of ASI M.P. Singh. Nothing has come in his cross-examination so as to suggest that he was, in any way, interested in securing conviction of the appellant on absolutely false grounds. Further, his evidence can not be rejected on the ground that he is a member of police force. As there is no reason to doubt his veracity, non-corroborative evidence of panch witnesses viz. Ramchandra (PW2) and Saleem (PW3) did not assume any significance.
10. Amarpal Singh (PW5), the then reader to CSP, Bhopal, also stated that the information (Ex. P-24) was received by him at 12.00 noon on 07.01.2006 only. He also acknowledged receipt of ASI M.P. Singh’s detailed report, office copy of which (Ex. P-31) is available on record, at 7.00 p.m. on the same day.
11. Head Costable Pooran Lal (PW1) testified that on 07.01.2006, while working as Malkhana Incharge, he had the occasion to receive three sealed packets from ASI M.P. Singh (PW4). The relevant entry (Ex. P-1) of Malkhana register was also tendered in evidence. He further stated that one of the packets was forwarded to Regional Forensic Science Laboratory, Bhopal. Draft memo (Ex. P-2) and corresponding acknowledgment (Ex. P-3) were also placed on record. Sub Inspector R.S. Vishwakarma (PW6), proved the receipt of the chemical analyst’s report (Ex. P-33) indicating that the article forwarded for examination contained 14.99% of diacetylmorphine.
12. The evidence on record clearly proves that the search and seizure of the contraband were effected only after complying with the requirements of Sections 42(2) and 50 of the Act. Observance of directory provision of Section 55 as to charge of the contraband seized and those of Section 57 of the Act as to arrest and seizure is also amply proved. Learned Counsel for the appellant, while placing reliance on a D.B. decision of this Court in Sadik Mohd. Sabir v. State of M.P. 2007 Cri.L.J. 365, has contended that absence of signatures of the panch witnesses on the packets containing the seized substance and its samples throws doubt upon its alleged recovery from his possession. However, as reflected in the analyst’s report (Ex. P-33), the seals of the packet-containing sample were found intact. Moreover, neither report of Chemical Analyser was challenged nor any application was given for examining him as witness to establish that seals on samples were faint and unidentifiable when received by him. As such, the doubt raised as to identity of sample was apparently unfounded See : Ashok Kumar v. State of Haryana . Obviously, the decision in Sadik Mohd.’s case (supra) has no application to the facts of the present case.
13. This apart, the appellant did not discharge the onus of proof to rebut the presumption envisaged under Section 54 of the Act. Thus, in the face of overwhelming incriminating evidence on record, the learned trial Judge did not commit any illegality in holding that the charge against the appellant was proved beyond a reasonable doubt.
14. For the aforesaid reasons, none of the first two contentions raised on behalf of the appellant deserves acceptance. Further, the pronouncement of the Supreme Court in Amarsingh Ramjibhai Barot v. State of Gujarat provides complete answer to his third and the last plea that the net quantity of heroin i.e. 2.25 grams (approx.) being less than the notified “small quantity” would make the offence fall under Section 27 of the Act. As explained, the residuary Clause (e) of Section 2(xvi) of the Act defining “opium derivative” takes into sweep all preparations containing any quantity of diacetylmorphine. Accordingly, the substance recovered from the appellant was “manufactured drug” within the meaning of Section 2(xi) of the Act. In this view of the matter, the appellant was guilty of an offence punishable under Clause (b) of Section 21 of the Act as the quantity of “manufactured drug” found in illicit possession of the appellant was more than “small quantity” but less than “commercial quantity”. This aspect has already been taken into account by the learned trial Judge while awarding the sentences in question.
15. Further, taking into consideration criminal antecedents of the appellant, any reduction in the impugned sentences would not be proper.
16. In the result, the appeal is dismissed and the impugned conviction and consequent sentences are hereby affirmed. Appeal dismissed.