JUDGMENT
H.R. Panwar, J.
1. This criminal appeal Under Section 374 of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter) is directed against the judgment and order dated 17.1.2003 passed by the Special Judge, N.D.S.P. Act Cases, Rajgarh, District Churu (for short, “the trial Court” hereinafter) in Sessions Case No. 4/2082, whereby the trial Court convicted both the appellants Under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act” hereinafter) and sentenced each of them to undergo ten years’ rigorous imprisonment and a fine of Rs. One lac each, in default of payment of fine to further undergo 2-1/2 , years rigorous imprisonment. Aggrieved by the judgment and order impugned, convicting and sentencing the appellants, both the appellants have filed the instant appeal.
2. 1 have heard learned Counsel for the appellants and the Public Prosecutor appearing for the State. Carefully gone through the judgment and order impugned, as also the record of the trial Court. I have also scrutinjved, scanned and evaluated the evidence on record.
3. It is contended by the learned Counsel for the appellants that both the independent Motbir witnesses P.W.I Ladu Ram and P.W. 2 Om Prakash have not supported the prosecution case and turned hostile. learned Counsel contended that there is a contradiction with regard to sampling of the contraband poppy husk recovered from’ the appellants and also the samples taken therefrom. learned Counsel further contended that the prosecution witnesses stated that the contraband was weighed by a weighing- balance hanged on a tree, whereas in the site map, no such tree has been shown. It is also contended that it has not come in the evidence that which of the prosecution witnesses deposited the seized contraband articles with the Malkhana Incharge and, therefore, there is missing link evidence from the seizure of the contraband poppy husk and depositing the same with the Malkhana Incharge. learned Counsel also contended that the Malkhana Incharge P.W. 6 Kalla Ram did not say that along with the sample of the contraband poppy husk sent to the FSL, a memo of specimen seal was also sent, which shows that along with the contraband sample sent to the FSL, no memo of specimen seal was sent. learned Counsel further contended that the seizure memo Ex.P/1 runs in four pages but the thumb impression of Motbir P.W.I Ladu Ram is only on one page and there is neither any thumb impression nor signature of P.W. 2 Om Prakash thereon, who is also said to be an independent Motbir witness. learned Counsel also contended that two different copies of Malkhana Register have been produced which are contrary to the each other. On the strength of these contentions, learned Counsel submits that the prosecution story with regard to search and seizure of contraband poppy husk from the appellants becomes highly doubtful.
4. Learned Public Prosecutor appearing for the State supported the judgment and order impugned and contended that the memo of specimen seal was sent to the FSL along with the contraband sample which is evident from the statement of P.W. 9 Sri Chand Chaudhary, the seizure officer, wherein the witness stated that the sample marked “A” was sent to the FSL in a sealed condition bearing the specimen seal at the place marked “Z”. Learned Public Prosecutor submits that the statement of this witness finds corroboration from the FSL report Ex.P/28, wherein it has been mentioned.that the two packets marked “A” and “B” enclosed with separate cloth covers, which were properly sealed bearing the seal impressions which tallied with the specimen seal impression forwarded and tire seals thereon were found intact. According to the Public Prosecutor, had the memo of specimen seal not forwarded, there would have been no such endorsement in the FSL report Ex.P/28, which is admissible Under Section 293 of the Code and even the same has not been challenged by the appellants. Public Prosecutor further submits that P.W. 6 Kalla Ram, the Malkhana Incharge, categorically stated that the contraband articles were deposited with him by SHO P.W. 9 Sri Chand Chaudhary and, therefore, according to the Public Prosecutor, right from the seizure of the contraband poppy husk till it was deposited with the Malkhana Incharge P.W. 6 Kalla Ram, they remained with the seizure officer P.W. 9 Sri Chand Chaudhary and, therefore, there is cogent direct link evidence against the appellants right from the seizure of the contraband poppy husk till its depositing with the Malkhana Incharge along with the samples and taking the sample ,to the FSL along with the memo of specimen seal. Learned Public Prosecutor has relied on a decision of the Hon’ble Supreme Court in Ashok Kumar v. State of Haryana 2000 SCC (Cri.) 506.
5. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties.
6. P.W. 9 Sri Chand Chaudhary, who at the relevant time was the SHO, Police Station, Sidhmukh, stated that he received a secret information vide Ex.P/10, copy of which Ex.P/10-A, disclosing that two persons, in a Maruti Esteem Car, are transporting poppy husk from Rajgarh to Bhadra. The information was found to be reliable and, therefore, it was written down in compliance of Section 42(2) of the N.D.P.S. Act and sent to the immediate superior officer i.e. the Circle Officer, Rajgarh through P.W. 5 Surendra Singh. Thereafter, he, along with P.W. 4 Nawab Ali Khan, P.W. 8 Anop Singh, Pawan Kumar, Nemi Chand, Rajveer and Manphool, in a Government jeep, went to Bhadra Road. Two Motbirs P.W.I Ladu Ram and P.W. 2 Om Prakash were served with notices to become Motbirs and after obtaining their consent, they were also taken along with them and reached to Bhadi Tiraha at 9.00 a.m. arid held a Nakabandi. At 9.30 a.m. a white coloured Maruti Esteem Car bearing No.DL-3CE-3746, which was disclosed in the secret information, came and was got stopped. The person sitting on the driver’s seat disclosed his name as appellant No. 1. Paramjeet Singh and the person sitting by the side of the driver, disclosed his name as appellant No. 2 Darshan Singh. They were served with notices Under Section 50 of the NDPS Act apprising that if they wish to be searched in the presence of a Magistrate, Gazetted Officer or the concerned SHO. They gave their consent to be searched by the SHO himself. Thereafter, in the presence of the Motbirs, the said car was searched and 10 gunny bags of poppy husk, each weighing 39 kgs. totalling to 390 kgs, were found in the card. Two samples of 500 grams each were taken from the bags and sample was marked as “A; and the control sample was marked as “A/1”. The samples and the contraband poppy husk were sealed on the spot by a specimen seal prepared on the spot and marked “B1 and ‘”Bl” respectively. The appellants were informed of the ground of arrest as envisaged Under Section 52 of the NDPS Act. on the search of the card, the documents relating to the car were also recovered and thereafter the seizure memo Ex.P/1 was prepared bearing the signatures of the witnesses P.W. 8 Anop Singh and witness Nemi Chand. He has proved the secret information written down by him vide Ex.P/10 and its copy Ex.P/10-A, which was received by the immediate superior officer vide Ex.P/18; the notices Under Section 52 of the NDPS Act served on the appellants marked Ex.P/3 and Ex.P/4 respectively, the arrest memos Ex.P/6″and seizure memo Ex.P/7, the memo of specimen seal Ex.P/8, copy of Malkhana Register Ex.P/19-A, site map Ex.D/1, FIR Ex.P/21 and the detailed report regarding making search, seizure and arrest which was forwarded to the immediate superior officer vide Ex.P/22. He has also proved Ex.P/11-A, Ex.P/13-A, Ex.P/14-A and Ex.P/15-A, as also the forwarding letter Ex.P/16, the driving licence of appellant Paramjeet Singh Ex.P/24, copy of the insurance of the card Ex.P/25 and the registration certificate of the car Ex.P/27. He has also proved the FSL report Ex.P/28. He has also proved the material contraband (Mudda Maal) and the samples which was received after being chemically examined by the FSL bearing the seal of the FSL. On being opened before the trial Court, the sample marked “A” was found having chit duly signed by him and other persons and the carbon copy thereof Ex.P/28 also found bearing the signatures of the Motbirs as also the signature of appellant Paramjeet Singh and thumb impression of appellant Darshan Singh and they also bear the signatures of witnesses Pawan Kumar, P.W. 8 Anop Singh, Nemi Chand, P.W. 4 Nawab Ali Khan, Vinod and Rajveer, who were the witnesses to the search and seizure. He has proved that it was the same “Dasti-Chit” marked “A” which he sent to the FSL and after being analyzed by the FSL, received back from the FSL. On the packet marked “A”, it bears the Crime Report Number and the names of the parties as also his signatures marked A on Article 1. Similarly, sample marked “B”, on being opened, it was found containing carbon copy of Chit-Dasp Ex.P/19, bearing the signatures of Motbirs P.W. 2 Om Prakash and the thumb impression of Motbir P.W.I Ladu Ram, as also the signature of appellant Paramjeet Singh and the thumb impression of appellant Darshan Singh, as also the signatures of the witnesses to the recovery, viz., Pawan Kumar, P.W. 8 Anop Singh, Nemi Chand, P.W. 4 Nawab Ali Khan, Vinod Kumar and Rajveer. He stated that the memo of specimen seal found on the packets marked “A” and “B” were the same which was prepared and sent to the FSL. He has identified both the appellants in the Court who were found transporting the poppy husk in the car and were arrested on the spot. So far as signatures of the Motbirs on the seizure memo Ex.P/1 are concerned, he stated that at pages No. 1 and 2, there are signatures of Motbirs and, therefore, there was no need to have any more signatures. He stated that Ex.D/2 was prepared by seeing the Malkhana Register and the photo-stat copy of the Malkhana Register is Ex.P/19-A. He stated that thereafter the sample was taken to the Office of the Superintendent of Police for getting the forwarding letter prepared and thereafter it was re-deposited in the Malkhana in sealed condition. He has proved the memo of specimen seal Ex.D/4 deposited in the Malkhana.
7. P.W. 5 Surendra Singh stated that he carried the secret information to the Circle Officer, Rajgarh. He handed over the same to the Circle Officer as on the very day by obtaining the signatures thereon as recipient and came back to the Police Station vide Ex.P/10. He has proved the signatures of the Circle Officer on Ex.P/10 and a copy of which is Ex.P/10-A. He has proved his departure from the Police Station and coming back to the Police Station vide Ex.P/11. He also stated that on 24.1.2002, the Malkhana Incharge P.W. 6 Kalla Ram, Head Constable, gave him two sealed packets marked “A” and “B” relating to Crime Report No. 7/2002. He carried the sample to the office of the Superintendent of Police for getting the forwarding letter prepared, gave the sample to the official working there, got the forwarding letter prepared and brought the packet in sealed condition and deposited in the FSL vide Ex.P/12 and a copy of which is Ex.P/12-A. He has also proved the departure from the police station and arrival vide Ex.P/13 and a copy of which is Ex.P/13-A. He carried the contraband samples in the sealed condition to the FSL and deposited with FSL on 28.1.2002 He has proved the departure for taking the contraband samples to FSL and after handing over the samples to FSL, arrival to the police station vide Roznamcha Ex.P/14 and Ex.P/15 and the copies of which are Ex.P/14-A and Ex.P/15-A. He handed over the contraband samples to the FSL vide Ex.P/16 and a receipt thereof is Ex.P/17. He has proved the Furd-Suchna-Mukhbir Ex.P/18, which was received by the Circle Officer on 22.1.2002 at 11.00 a.m.
8. P.W. 6 Kalla Ram is the Malkhana Incharge, who stated that on 22.1.2002, P.W. 9 Sri Chand Chaudhary, S.H.O., Police Station, Sidhmukh handed over ten packets of material poppy husk and the sample packets marked A and B and the control-samples marked A-l and B-1, the memo of specimen seal the material contraband poppy husk, which were deposited in the Malkhana Register by recording it in the Malkhana Register. On 25.1.2002, the samples were handed over to P.W. 5 Surendra Singh for getting the forwarding letter prepared from the office of the Superintendent of Police at 7.15 a.m. and at 11.3 a.m., he came back from the office of the Superintendent of Police along with the sample packets and the forwarding letter, which were deposited in the Malkhana along with the sample packets marked A and B and the forwarding letter. On 28.2.2002, it was handedover to P.W. 5 Surendra Singh for taking it to FSL, which he deposited with the FSL on 29.2.2002. He has proved the malkhana Register Ex.P/19-A. He stated that the copy of the Malkhana Register Ex.D/2 is not in accordance with the Malkhana Register, whereas the copy of the Malkhana Register is Ex.P/19-A, which is the correct certified photo copy of the Malkhana Register.
9. P.W. 3 Vinod Kumar, P.W. 4 Nawab Ali Khan and P.W. 8 Anop Singh are that the witnesses to the search and seizure. These three witnesses accompanied P.W. 9 Sri Chand Chaudhary, seizure officer and were party to the nakabandi and the search and seizure were carried out in their presence. P.W. 3 Vinod Kumar stated that P.W. 9 Sri Chand Chaudhary, S.H.O., Police Station, Sidhmukh received a secret information regarding transportation of contraband poppy husk, which was informed to him and the other two witnesses by the S.H.O. He accompanied the S.H.O. P.W. 9 Sri chand Chaudhary, on the way took two Motbirs P.W.I Ladu Ram and P.W. 2 Om Prakash after serving them notice and obtaining their consent, reached Bhadi Tiraha. At 9.30 a.m., a white coloured Maruti Esteem Card No.DL-3CE-3746 came from Rajgarh side, which was got stopped. Two persons were in the card, who disclosed their names as appellant No. 1 Paramjeet Singh and appellant No. 2 Darshan Singh. The SHO gave them notice Under Section 50 of the NDPS Act giving them option to be searched in the presence of a Magistrate, gazetted Officer or by the S.H.O. himself. After taking their consent, the car was searched, on which 10 bags of poppy husk were found in the car, each bag containing 39 kgs. of poppy husk. Two samples of 500 grams each were taken therefrom. The samples’ and the remaining contraband poppy husk were sealed on the spot. He has identified the appellants in the Court and stated that both these appellants were arrested on the spot along with the poppy husk in ten bags vide seizure memo Ex.P/1. He stated that the proceedings of taking the samples and weighing the same were done by P.W. Nawab Ali Khan. He stated that he has signed the seizure memo, arrest memo etc. Similar are the statements of P.W. 4 Nawab Ali Khan and P.W. 8 Anop Singh.
10. Thus, from the statements of P.W. 3 Vinod Kumar, P.W. 4 Nawab Ali Khan, P.W. 8 Anop Singh and P.W. 9 Sri Chand Chaudhary, the seizure officer, it has been established that on holding the Nakabandi, both the appellants came in the a white-coloured Maruti Esteem Car No.DL-3CE-3746 and on checking the car after serving notice Under Section 50 of the NDPS Act, though it was not mandatory, it was found -Carrying ten bags, each containing 39 kgs of contraband poppy husk, total 390 kgs., the search and seizure of contraband poppy husk, as also taking of the samples therefrom, sealing the same on the spot, preparation of memo of specimen seal, depositing the material contraband poppy husk, the samples and the memo of specimen seal with the malkhana Incharge P.W. 6 Kalla Ram, have been proved.
11. The receipt of the secret information vide Ex.P/10 and Ex.P/10-A, copy of which was forwarded to the immediate superior officer vide Ex.P/18 have also been proved from the statement of P.W. 9 Sri Chand Chaudhary, seizure officer, and P.W. 5 Surendra Singh, who carried the secret information to the higher officer. The memo of specimen seal Ex.P/8, which was forwarded to the FSL and the packets sealed with that seal were found tallied with the specimen seal which is evident from the FSL report Ex.P/28. The samples, on being analyzed by the FSL, when received back in the Court at the time of recording the statement of P.W. 9 Sri Chand Chaudhary, with the permission of the Court and in the presence of the Presiding Officer of the Court, the samples were opened and the copy of the specimen seal, seal-chit etc. were found in the packet which tallied with the specimen seal on the packet and the counter sample as also on the material contraband (Mudda Maal), which is evident from the statement of P.W. 9 Sri Chand Chaudhary, the seizure officer. Thus, from the statements of P.W. 9 Sri Chand Chaudhary and P.W. 5 Surendra Singh, it is proved that the secret information was received, in compliance of Section 52 of the N.D.P.S. Act, it was got written and immediately sent to the superior officer, receipt of which has been proved by the statement of P.W. 5 Surendra Singh and the signature of the Circle Officer on Ex.P/18 have also been proved by him. Thus, the compliance of Section 52 of the NDPS Act is proved beyond reasonable doubt from the statement of P.W. 5 Surendra Singh.
12. So far as contention of the learned Counsel for the appellants that two Motbirs did not support the prosecution case, is concerned, both the Motbirs P.W.I Ladu Ram and P.W. 2 Om Prakash admitted their signatures/thumb impressions on the notice, various Funds, notice Under Section 50 of the NDPS Act, arrest memo, seizure memo etc. The reasons assigned by them cannot be said to be plausible for signing or affixing the thumb impressions on so many Furds. however, merely because they did not support the prosecution case fully and being cross-examined by the Public Prosecutor, the case of the prosecution does not demolish. Apart from this, there are other witnesses to the recovery, viz., P.W. 3 Vinod Kumar, P.W. 4 Nawab Ali and P.W. 8 Anop Singh, apart from the statement of seizure officer P.W. 9 Sri Chand Chaudhary and the evidence of these witnesses is reliable In P.P. Fathima v. State of Kerala , the Hon’ble Supreme Court held that it has been repeatedly held that the mere fact that a Panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable if otherwise the Court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In that case, the Court satisfied that from the evidence of P.W.I and 2 the seizure has been proved by the prosecution and, therefore, the argument raised by the counsel for the appellant therein failed.
13. So far as the contention of the learned Counsel of the appellants regarding production of two different copies of the Malkhana Register, which according to him are contrary to each other, is concerned, P.W. 6 Kalla Ram, the Malkhana Incharge, has stated that the copy of the Malkhana Register Ex.D/2 is not in accordance with the Malkhana Register, whereas the copy of Malkhana Register is Ex.P/19-A, which is the correct certified photo copy of the Malkhana Register. Moreso, the original Malkhana Register was produced before the Court and the certified true photo copy of the original Malkhana Register Ex.P/19-A is the correct document and, therefore, there is no contradiction in the Malkhana Register; on the contrary, it appears that while preparing the copy of the Malkhana Register, due to over-sight, all relevant facts have not been incorporated in Ex.D/2.
14. From the statements of the prosecution witnesses, more particularly the seizure officer P.W. 2 and the witnesses to the search and seizure officer P.W. 2 and the witnesses to the search and seizure P.W. 3, P.W. 4 and P.W. 8, it has been established beyond reasonable doubt that the police had a secret information with regard to the contraband poppy husk being transported by both the appellants. The information was reduced to the writing and sent to the higher officer, which has been established by the statements of P.W. 9 and P.W. 5. On checking the card in which both the appellants were transporting huge quantity of poppy husk weighing 390 kgs., it was seized. The samples taken therefrom and the control samples were seized and sealed and the memo of specimen seal was prepared. The material contraband poppy husk, samples and the memo of specimen seal were deposited in the Malkhana, which is established from the statements of P.W. 9 and P.W. 6, the Malkhana Incharge. The sample, right from sealing, depositing with the Malkhana, taking to the Office of the Superintendent of Police for getting the forwarding letter prepared and depositing with the FSL, through out remained properly sealed and the seals therein remained intact. The samples received by the FSL along with the impression of seals tallied with the specimen seal impression forwarded and the seals thereon were found intact, and, therefore, there is no contradiction in sealing the material poppy husk as also the samples and received by the FSL and the seals thereon remained through-out intact. The samples on being michrochemically examined by the FSL, the extract of the sample contained in each of the packets marked “A” and “B” gave positive-tests for the presence of chief constituents of opium, hence the samples were of dried crushed capsule of opium poppy. Therefore, in my view, the prosecution case is consistent and there is no contradiction in sealing of the contraband poppy husk and the samples taken therefrom. More so, the FSL report has not been challenged. In Ashok Kumar’s case (supra) the Hon’ble Supreme Court has held that when the articles examined by him were the articles connected with that case and neither the report of Chemical Analyser was challenged nor was any application given for examining him as a witness to establish that the seals on the samples were faint when written by him and it was not possible to say whose seals they were and, therefore, the contentions raised in this respect were found to be without substance. In this view of the matter, the contentions of the learned Counsel for the appellants for non-compliance of Section 52 of the NDPS Act, as also missing link evidence have no force and are liable to be rejected.
15. Both the appellants were transporting huge quantity of poppy husk in 10 bags weighing 390 kgs. which is commercial quantity. Both the appellants were knowing each other. The appellants, in their statements Under Section 313 of the code, have not explained how they travelled together in the car driven by one of the appellants and occupied by other carrying 390 kgs. of poppy husk and travelled together from the said destination in the said vehicle. In Madan Lai and Anr. v. State of Himachal Pradesh 2003 Cri. L.J. 3868, the Hon’ble Supreme Court, while considering the expressions “the possession” and “conscious possession”, held that the word “conscious” means awareness about the particular fact. It is the state of mind which is deliberate or intended. The Apex Court held that not only the possession of the appellants therein but also the “conscious” possession has been established. It has not been shown by the accused-appellants therein that the possession was not conscious in the logical background of Sections 35 and 54 of the Act. In that case, from the evidence, it clearly established that the appellants therein knew about transportation of Charas and each had a role in the transportation and possession with conscious knowledge of what they are doing and held that the presumption available by application of logic flowing from Section 35 and 54 of the Act clearly applies to the facts of that case. In that case, in a Maruti Esteem Car, the appellants therein were transporting Charas. The facts of the case is Madan Lal and Anr. v. State of Haryana (supra) are almost identical to the facts of the instant case. Similar view was also taken by the Hon’ble Supreme Court in Megh Singh v. State of Punjab 2003 Cri. L.J. 2329.
16. Thus, on close scrutiny of the statements of the prosecution witnesses, as discussed, herein-above, in my view, the prosecution has proved the case beyond all reasonable doubt against the appellants. In the circumstances, therefore, I do not find any error in the judgment and order impugned convicting and sentencing both the appellants.
17. In the result, the appeal fails and is hereby dismissed. The judgment and order impugned dated 17.1.2003 passed by the Special Judge, NDPS Cases, Rajgarh, District Churu, in Sessions Case No. 4/2002 convicting and sentencing appellants Paramjeet Singh and Darshan Singh is hereby affirmed.