JUDGMENT
H.R. Shelat, J.
1. The appellant came to be convicted of the offence under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the N.D.P.S. Act”), and sentenced to R.I. for 10 years and a fine Rs. 1,00,000/-, in default further R.I. for one year more and also came to be convicted of the offence under Section 66(1)(b) of the Bombay Prohibition Act but no separate sentence thereof was inflicted by the then learned Additional City Sessions Judge, Ahmedabad in Sessions Case No. 129 of 1989, consequent upon which, present appeal has been preferred by the original accused.
2. The facts in brief may be stated. P.S.I. Shri Dodia along with his other staff members was patrolling in Bhulabhai Park area, Ahmedabad on 22-1-1989 at 14-00 hours. When he reached near Karnavati Chowk, the informant informed him that one person was to pass riding over a scooter with narcotic drug, viz., charas or ganja. Hence he called panchas and deployed the panchas as well as the members of the staff at different places. When that person came there driving the scooter he was intercepted. He was none else but the present appellant. On taking his search, from his pant’s pocket, a plastic bag was found. Opening the same it could be seen that the powder of charas and also lump of charas were there. On being weighed it was found that the total weight was 75 gms., the value of which was Rs. 300/-.
3. The appellant was not having licence to possess the same. It was found that the appellant had committed the offences as stated hereinabove. After undergoing necessary formalities and investigation, P.S.I. Shri N.G. Dodia lodged the complaint before Bhulabhai Park Police Chowki under the Kagdapith Police Station. The offence was registered. At the conclusion of the investigation a charge-sheet against the appellant was filed before the Court of the learned Metropolitan Magistrate, Ahmedabad who having no jurisdiction committed the case to the City Sessions Court, Ahmedabad. The case was then came to be registered as Sessions Case No. 129 of 1989.
4. The learned Principal Sessions Judge, then transferred the case to the then learned Addl. Sessions Judge who heard the case and appreciating the evidence on record found the appellant guilty with which he was charged and convicted and sentenced him as aforesaid. It is against that judgment and order, present appeal has been preferred before us.
Mr. Yagnik representing the appellant submitted that on few grounds the appellant was entitled to acquittal. However, the learned Addl. Sessions Judge overlooking those grounds and sound principles of law, erroneously convicted the appellant. According to him as per the decision of the Supreme Court in the case of Saiyad Mohd. Saiyad Umar Saiyad and Ors. v. State of Gujarat in , it was obligatory on the part of the Investigating Officer to inform the appellant that he was having a right to have him searched in the presence of a Gazetted Officer or Magistrate. Omission to do so on the part of the Investigating Officer, was fatal to the prosecution. Even no presumption could be drawn to the effect that the Police Officer had discharged his statutory duty. Such contention does not find a ground to stand upon.
5. We may, however, firstly make it clear that about the principle of law made clear by the Apex Court, there can have no dispute but in the present case the requirements of Section 50 of the N.D.P.S. Act are complied with. Indravadan P. Soni (Exh. 12) one of the panchas, when asked, in the chief examination has stated that the Police Officer who was to make the search of the appellant at the initial stage made it clear informing the appellant that he was free to have his search being carried out in the presence of a Gazetted Officer or a Magistrate, as it was his right but the appellant did not avail of the opportunity, and refused to opt for being searched as pointed out. When the opportunity was given to the appellant, and he did not avail of the same; it cannot be said that the mandate under Section 50 of the N.D.P.S. Act is not complied with. The Panch has made it crystal-clear that the appellant was informed and opportunity was given to him. It is now not open to the appellant to contend otherwise and find fault with the prosecution.
6. However, it was next submitted by Mr. Yagnik, the learned Advocate that the Police Officer in his deposition was silent on the point and also in the F.I.R. (Exh. 17) and Panchnama (Exh. 13) nothing was mentioned about affording of the opportunity. That submission also cannot be accepted in view of the clear-cut evidence of the Panch. It may, however, be mentioned that Section 50 of the N.D.P.S. Act does not lay down how grant of the opportunity can be proved. It is a question of fact. In accordance with the Indian Evidence Act, the fact can be proved either by documentary or oral evidence or by both. The Court has to appreciate the evidence before it in its entirety bearing in mind the facts and circumstances of the case and ascertain whether mandatory provision of Section 50 is complied with. It may be stated that to lend assurance, curb any mischief, or trick, or improvements, and to avoid any possible doubt, it is advisable that the fact about affording of the opportunity is mentioned in the panchnama, and if possible in the F.I.R., or acknowledgment thereof is obtained from the accused. If that is not done, the Court has to weigh the oral evidence in that regard with meticulous care and finicky details, and if no inherent improbability is found in the evidence, but the same is found convincing and credible inspiring confidence, it is open to the Court to rely upon the same and draw the conclusion what is in law logically permissible. Hence, omission to mention the fact about grant of the opportunity as mandated by Section 50 of the N.D.P.S. Act in the panchnama or F.I.R. will not be fatal to the prosecution.
7. Finding that the point raised with regard to the non-compliance of Section 50 of N.D.P.S. Act would not find favour, Mr. Yagnik submitted that the muddamal seized was kept in the custody of the police for unduly long time and therefore, the possibility of faulty analysis could not be ruled out. In our opinion a lame attempt has been made for getting favourable order. Here in this case the search was made on 22-1-1989 and on the same day the muddamal charas was seized from the possession of the appellant. Thereafter, on 14-2-1989, muddamal was sent to the chemical analyser for analysis. It thus appears that within 21 days, the investigation officer sent the same to the chemical analyser. The delay of 21 days can never be said to be fatal. Within reasonable time the investigation officer has to send the muddamal to the chemical analyser for analysis so that the things seized may remain in fit condition for being analysed. Here the charas is the object which would not be deteriorated within a period of 21 days to the extent of being unfit for analysis. Even after a period of 40 days the same would remain fit for being analysed. When, therefore, within a period of 40 days, which can ordinarily be said to be reasonable, the muddamal has been sent to the chemical analyser, it cannot be said that the delay is inordinate and thereby the object was made to lose all the characteristics for fit analysis.
8. It was then submitted that due to defacement or fast decrepitude it was difficult for the chemical analyser to discern the facsimile and so there was a reason to doubt about the identity of the muddamal. We perused the evidence. In the panchnama Exh. 30 and the evidence of panch Exh. 12 it is mentioned that when the charas was seized from the possession of the appellant, it was then sealed with facsimile couched in the words: “Inspector of Police, Kagdapith, Ahmedabad City.” Same facsimile intact could be seen by the chemical analyser on receipt of the muddamal along with forwarding letter on which also the facsimile was imprinted. When accordingly the seal tallies, the identity of the muddamal articles cannot be doubted, on the contrary, the same clearly shows that the muddamal which was seized from the possession of the appellant reached in sealed condition to the chemical analyser for analysis and no other thing and till the C.A. received the same muddamal was not tampered with.
9. It was lastly contended that after receiving the information, the police officer did not take down the same in writing and send the copy thereof to his immediate official superior as provided under Section 42 of the N.D.P.S. Act. In our view, Section 42 would not apply to the present case. The search, seizure, arrest were all made in the public place soon after receipt of the information; and therefore, Section 43 of the N.D.P.S. Act would come into play which does not mandate that information received in such cases should first be reduced into writing and sent to the immediate superior officer.
10. To buttress our view a reference of the case of State of Punjab v. Balbir singh may be made. It is held therein that the empowered officer while acting under Section 42 records grounds of his belief on the basis of personal knowledge or take down in writing the information about the commission of the offence under the N.D.P.S. Act he has to send a copy thereof to his immediate official superior; but such officer acting under Section 43 is not required to record of his belief. If he has prior information from any person, it is also not required to be taken down in writing for onward transmission. In this case the search, seizure and arrest were made in the public place and not in the building, conveyance or enclosed place and therefore, not Section 42 but Section 43 of the N.D.P.S. Act will come into play. When that is so, the police officer in this case was not bound to act as mandated by Section 42 and canvassed by the appellant’s learned Advocate.
11. On no other ground submissions are advanced assailing the judgment and order of the lower Court. We perused the evidence on record and nowhere we find the error either of law or of fact having been made by the learned Judge below. Everything has been done in consonance with law. The appreciation of evidence made and conclusion drawn are also consistent with law and the same cannot be termed arbitrary or perverse.
12. We, therefore, unflinchingly hold that the learned Judge below absolutely right in passing the order recording conviction and sentence holding that the charge levelled against the appellant is established beyond all reasonable doubts.
13. For the aforesaid reasons, we see no justification to interfere with the judgment and order of the lower Court and set aside the conviction and sentence. The appeal being devoid of merits, is hereby dismissed.
