JUDGMENT
J.M. Malik, J.
1. This appeal is directed against the order passed by the learned Additional Sessions Judge, wherein he sentenced the accused to undergo Rigorous Imprisonment for a period of ten years and to pay a fine in the sum ofRs. 1,00,000/- failing which the appellant was to further undergo Simple Imprisonment for two years as the accused was nailed with Smack weighing 500 grams which he had kept in a bag, under Section 21 of NDPS Act.
2. Learned Counsel for the appellant made the following five submissions in support of her case. Her main thrust was on the non compliance of provision under Section 42 of NDPS Act. She vehemently argued that provisions of Section 42 of NDPS Act were not complied with. In this context, she cited an authority reported in State of Punjab v. Baldev Singh 1999 SCC (Criminal) 1080, wherein it was held:
(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief. To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.
Learned Counsel for the appellant drew my attention towards the depositions of Prem Chander SI, PW7 and Mahesh Sharma SHO, PW1. Prem Chander SI, PW7 deposed that he had informed both the Inspectors Mahesh Sharma SHO and Inspector Parvesh Choubey PW4 regarding the secret information. He further deposed that SHO informed the ACP regarding this information and ACP directed to conduct a raid. He explained that he recorded this information at DD No. 4 and proved its copy on the record as Ex. PW5/D. On the other hand, Inspector Mahesh Sharma stated that at about 10.30 AM, Constable Gajender handed over to him the case property. In his cross-examination, he admitted that he did not receive any information before receiving the sealed cloth parcel and form CFSL in connection with this case. Inspector Parvesh Choubey PW4 stated that at about 8.10 AM SI Prem Chander informed him that he had received the secret information. He testified that this information was also conveyed to Inspector Mahesh Sharma who conveyed the same to ACP Mr. R.P. Mehta. He testified that on this information ACP directed to organize a raiding party for raid. He deposed that raiding party consisted of Inspector Parvesh Choubey himself, Prem Chander SI, Darshan Singh ASI, Bharat Singh HC, Rudar Ali Constable, Manoj Kumar Constable, Gajender Singh Constable and Driver Constable Jagat Singh, nicked the accused in front of shop No. T-29, DGB Road.
3. Learned Counsel for the appellant argued that the version given by one Inspector is ajar with the facts narrated by another. He stressed that the Court should read between the lines and conclude that all the documents were prepared at the Police Station itself.
4. This argument does not sound very convinced. Due to passage of time, statements of PW1 and PW4 may be some what contradictory. However, PW4 and PW7 have supposed the prosecution case in tandem. Their depositions read in conjunction with DD No. 4 depict that Section 42 was complied with DD No. 4 is a document of infinite importance. I see no reason to discard it.
5. Secondly, it must be borne in mind that Police Officers have to work day in and day out. Human memory is vicissitudinary. The Court has to take a down to earth view. It must be borne in mind that the incident took place on 29.06.1998 and statements of PW1, PW4 and PW7 were recorded on 11.09.1999, 04.11.1999 and 27.01.2000. Each person does not have a tenacious memory.
6. It must also be borne in mind that PW4 was the member of the raiding party but PW1 did the formal functions only. ASI Darshan Singh also deposed that Inspector Parvesh Choubey briefed them before the raid was led. At later stage, he stated that Inspector Parvesh Choubey informed the accused/appellant that he was to be searched by SI Prem Chander and the appellant was at liberty to search SI Prem Chander but before being searched the accused refused to do the needful. It is, therefore, clear that Inspector Parvesh Choubey being the member of the raiding party was in a position to depose each and every thing. Under these circumstances, I am of the considered view that the provisions of Section 42 were complied with.
7. Moreover, the recovery was effected at a public place. The non- compliance of provisions of Section 42 was, therefore, not even required.
8. In State of Haryana v. Jarnail Singh and Ors. 2004 VI AD (S.C.) 499, it was observed,
Sections 42 and 43, therefore, contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place, while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made under Section 42 between sunset and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act and, therefore, it is obvious that if a public conveyance is searched in a public place, the officer making the search is not required to record his satisfaction as contemplated by the proviso to Section 42 of the NDPS Act for searching the vehicle between sunset and the sunrise.
9. In Narayanaswamy Ravishankar v. Asstt. Dir., Directorate of Revenue Intelligence 2002 VIII AD (S.C.) 204, it was held,
In the instant case, according to the documents on record and the evidence of the witnesses, the search and seizure took place at the Airport which is a public place. This being so, it is the provisions of Section 43 of the NDPS Act which would be applicable. Further, as Section 42 of the NDPS Act was not applicable in the present case, the seizure having been effected in a public place, the question of non-compliance, if any, of the provisions of Section 42 of the NDPS Act is wholly irrelevant.
The second submission made by the learned Counsel for the appellant was that the entire investigation was done by Prem Chander, Sub Inspector and FIR number on certain documents such as notice under Section 50 NDPS Act Ex. PW4/A and recovery memo Ex. PW4/B clearly goes to show that the same were written by the same person at the same time. She argued that this very fact envelopes the prosecution case with an integument of suspicion and the appellant warrants acquittal on this short point. For the following reasons, I am unable to collect any significance with this argument. During his cross-examination SI Prem Chander denied that he had mentioned the FIR number on seizure memo at the time of its preparation. He explained that the same were recorded later on.
I have perused the above said two documents. A bare look clearly goes to show that gaps were left out and although the same were written by the same person, yet, there is defense in handwriting. In Raj Pal v. State of H.P. 2004 Crl. L.J. 695, Himachal Pradesh High Court, it was held,
Even a bare look on these documents it is evident that sufficient space at the top of each of these documents was left to insert the particulars of the F.I.R. at a later stage and the difference in space between the main body of the document and the contents containing the particulars of the F.I.R. is suggestive of the fact that such space was left blank for inserting the F.I.R. at a later stage.
The argument of the learned Counsel for the appellant is not substantiated by the above said documentary evidence. Secondly in S. Jeevanatham v. The State through Inspector of Police, TN 2004 VII AD (S.C.) 290, it was held that one officer can investigate the case fully. This view finds support from an authority reported in State Rep. By Inspector of Police, Vigilance and Anti-Corruption, Tiruchirapalli, Tamil Nadu v. V. Jayapaul 2004 VII AD (S.C.) 416, nothing in Cr. P.C. Precludes the First Officer from taking up investigation. The question of bias would depend upon the facts and circumstances of each case. It was further held,
In the present case, the police officer received certain discreet information, which, according to his assessment, warranted a probe and therefore, made up his mind to investigate. The formality of preparing the FIR in which he records the factum of having received the information about the suspected commission of the offence and then taking up the investigation after registering the crime, does not, by any semblance of reasoning, vitiate the investigation on the ground of bias or the like factor. If the reason which weighed with the High Court could be a ground to quash the prosecution, the powers of investigation conferred on the police officers would be unduly hampered for no good reason. What is expected to be done by the police officers in the normal course of discharge of their official duties will then be vulnerable to attack.
Not proper to laid down and unqualified proposition. It was also argued on behalf of the appellant that there is no evidence which may go to show that CFSL form was ever received by the laboratory. In this connection, my attention was drawn towards the statement of Dr. R.N. Tripathi, Senior Scientific Officer, CFSL, Chandigarh, PW11. He deposed that a sealed parcel with the seal of MCS and PCK was received in the office through Constable Ajeet Singh which was marked to him. He did not state in so many words that it was accompanied by CFSL form. However, Constable Ajeet Singh, PW3 stated that he had deposited the sealed parcel and CFSL form at Chandigarh on 28.07.1998 on the same day. His statement clearly proves that the CFSL form was deposited with the CFSL.
Again, CFSL report Ex.PW11/A was proved on the record. Although, it does not specify that CFSL form was deposited, yet, there is an endorsement which reads, ‘seals were intact and tallied with the specimen seals.’ There is further column No. 7 which clearly goes to depict that the laboratory had received specimen seals. This argument too does not ensure in favor of the appellant.
Learned Counsel for the appellant pointed out that incident took place on 29.06.1998 and the sealed parcel was deposited with the CFSL on 24.07.1998. She opined that there was inordinate delay in sending the sample to the CFSL. To my mind, this argument is lame of strength. It is clear that parcel was deposited within one month. It cannot be said that there was delay in sending the sample to CFSL. Learned Counsel for the appellant further submitted that PW11 admitted that the sample was not weighed. In his cross- examination, PW11 admitted that he had not weighed the parcel. The accused has failed to show that he has been prejudiced by not weighing of the sample by the Senior Scientific Office. He has not alleged that Senior Scientific Officer is inimical to him. In view of the solid and unflappable evidence adduced by the prosecution, this small objection pales into insignificance. It was lastly pleaded that no independent witness was joined in the raiding party. The appellant has failed to prove that the police had any enmity or hostility with him. The trial court has rightly relied upon an Apex Court authority reported in State of Kerala v. M.M. Mathew . In addition to that similar view was taken by the Apex Court in authorities reported in Manish sDixit and Ors. v. State of Rajasthan 2001 Crl. L.J.
Last but not the least, the accused/appellant has no defense to make.
I have perused his statement recorded under Section 313 Cr.P.C. by the trial court. The defense set up by the appellant is that of denial simplicitor. He alleged that he was falsely implicated at the instance of the informer. He explained that he had gone to meet his cousin brother and brother-in-law Bablu at Pahar Ganj where he was falsely taken away by the police. It is interesting to note that he did not disclose the name of the informer. This allegation finds no place in his bail application dated 29.5.1999 which is available in the trial court record. The allegation that he was arrested at the instance of the informer was introduced at the eleventh hour i.e. On 08.02.2002 when the statement of the appellant was recorded under Section 313 Cr. P.C. No suggestion was given to the IO that he had arrested the accused at the instance of the informer.