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2005(2) JLJ 290
A.K. Awasthy, J.
Prabhulal and another v. Union of India
Criminal Appeal No. 951 of 2001; against the judgment of Special Judge, Indore, passed in Special Case No. 39 of 2000;
Decided on 6.4.2004.
The prosecution case is that on 19.6.2000 at about 8:45 a.m. Sub-Inspector Girvarpuri (PW 5) in the Office of the Central Bureau of Narcotics received the secret information from the approver that the accused persons are travelling in a bus from Ujjain to Baroda with the opium and that bus reaches at Indore at about 11 :00 a.m. Girvarpuri (PW 5) recorded the information in Panchnama Ex. P-8 and it was conveyed to the higher authority/Superintendent, CBN, Ratan Godiya. That the Superintendent Ratan Godiya disclosed about the secret information to Inspector, CBN, Murlidhan Kani (PW 6) and directed him to conduct further proceedings. Thereafter, in the leadership of Inspector Murlidhan Kani (PW 6), the raiding party of the officers of CBN was formed and they reached Gangwal Bus Stand at about 10:00 a.m.
That at about 10:30 a.m., the Ujjain-Baroda bus reached Gangwal Bus Stand and two persons came out from the bus and they disclosed their names as Prabhulal and Shivlal. That suspect Prabhulal and Shivlal were conveyed about the doubt by the officers of the CBN and they were also apprised that they have right of their search before Gazetted Officer or the Magistrate. That both the accused persons have consented their search by Inspector Murlidhan Kani and they signed the consent memo Ex. P-l. That in the search of the bag carried by accused Prabhulal, there was polythene packet having opium weighing 2 kgs. That two samples of 25 gms. each were taken and they were sealed. That in the personal search of accused Shivlal, only 22 tickets were recovered. That accused Shivlal has admitted that he was travelling with accused Prabhulal and they were taking the opium to Baroda. That accused Prabhulal and Shivlal were arrested vide memos Ex. P-6 and 7 respectively. The statements of accused Prabhulal (Ex. P-13) and accused Shivlal (Ex. P-14) were recorded and both the statements were signed by them. [Paras 2 & 3
Held: The statement of accused Prabhulal (Ex. P-13) can be used against accused Shivlal and similarly the statement of accused Shivlal will be used against accused Prabhulal. In view of the statements of accused Prabhulal and Shivlal inculpating themselves and the co-accused, it is proved beyond reasonable doubt that accused Prabhulal was carrying the opium and accused Shivlal hatched the conspiracy to carry the opium with accused Prabhulal. Section 30 of the Evidence Act clearly stipulates that the confessional statement of the accused can be used against the co-accused. [Para 13
(2) Evidence Act, 1872--S. 24--extra-judicial confession made voluntarily -- can be relied upon to convict accused. AIR 1975 SC 902 followed. [Para 13
(3) Narcotic Drugs and Psychotropic Substances Act, 1985 -Ss. 42, 43 and 67 -- panch witnesses of seizure turning hostile -- Court can base conviction on the statement of seizing authority if found believable -- statement of seizing officer fortified by statement of accused under S. 67 -- may be acted upon. [Para 11
(4) Narcotic Drugs and Psychotropic Substances Act, 1985--S.42-- panchnama recorded on information of approver--information immediately sent to superior officer about secret information -- provision complied with. [Para 14
(5) Narcotic Drugs and Psychotropic Substances Act, 1985--Ss. 8/18 and 29 -- sample packet duly sealed and sent for examination--procedural provisions complied with -- conviction rightly awarded. [Para 15
(6) Narcotic Drugs and Psychotropic Substances (Amendment) Act, 2001--S. 41(1), proviso -- case pending in appeal -- amendment Act has no application -- quality of opium has no relevance. 2004 AIR SCW 932 followed. [Para 16
(7) Evidence Act, 1872--S. 134--proof of any fact--no particular number of witnesses is required--Court is concerned with quality and not with quantity of evidence. [Para 10
(8) Narcotic Drugs and Psychotropic Substances Act, 1985--S. 67 -- statement made by accused to empowered officer -- if genuine and reliable can be acted upon to convict him. 2002 SCC (Cri.) 1935 followed. [Para 13
(9) Narcotic Drugs and Psychotropic Substances Act, 1985 --S.50 -- provision under -- applies to personal search only -- does not apply to search of bag, vehicle, house etc. 2004(1) EFR 404 (SC) followed. [Para 14
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1. Appellants-accused have filed this appeal under section 374 CrPC, against the judgment and order dated 23.7.2001, in Special Case No. 3912000, passed by Shri A.K. Pateria, learned Special Judge NDPS Act, Indore, whereby accused Prabhulal has been convicted under section 8 read with section 18 of the Narcotic Drugs and Psychotropic Substances Act (for short 'NDPS Act'), while accused Shivlal has been convicted under section 29 of the NDPS Act and each of them were sentenced to undergo RI for 10 years' RI and a fine of Rs. 1 lac and in default of payment of fine to undergo further RI for 3 years, each. Accused Prabhulal has also filed a separate appeal (Criminal Appeal No. 980/01) against the same judgment and order.
2. The prosecution case is that on 19.6.2000 at about 8:45 a.m. Sub-Inspector Girvarpuri (PW 5) in the Office of the Central Bureau of Narcotics received the secret information from the approver that the accused persons are travelling in a bus from Ujjain to Baroda with the opium and that bus reaches at Indore at about 11 :00 a.m. Girvarpuri (PW 5) recorded the information in Panchnama Ex. P-8 and it was conveyed to the higher authority/Superintendent, CBN, Ratan Godiya. That the Superintendent Ratan Godiya disclosed about the secret information to Inspector, CBN, Murlidhan Kani (PW 6) and directed him to conduct further proceedings. Thereafter, in the leadership of Inspector Murlidhan Kani (PW 6), the raiding party of the officers of CBN was formed and they reached Gangwal Bus Stand at about 10:00 a.m.
3. That at about 10:30 a.m., the Ujjain-Baroda bus reached Gangwal Bus Stand and two persons came out from the bus and they disclosed their names as Prabhulal and Shivlal. That suspect Prabhulal and Shivlal were conveyed about the doubt by the officers of the CBN and they were also apprised that they have right of their search before Gazetted Officer or the Magistrate. That both the accused persons have consented their search by Inspector Murlidhan Kani and they signed the consent memo Ex. P-1. That in the search of the bag carried by accused Prabhulal, there was polythene packet having opium weighing 2 kgs. That two samples of 25 gms. each were taken and they were sealed. That in the personal search of accused Shivlal, only 22 tickets were recovered. That accused Shivlal has admitted that he was travelling with accused Prabhulal and they. were taking the opium to Baroda. That accused Prabhulal and Shivlal were arrested vide memos Ex. P-6 and 7 respectively. The statements of accused Prabhulal (Ex. P-13) and accused Shivlal (Ex. P-14) were recorded and both the statements were signed by them.
4. That, thereafter, the accused were brought to the office of the CBN, where the FIR (Ex. P-15) was drawn and the 'Muddemal' was handed over to the Superintendent for the safe custody. That one of the sample packets was handed over to Constable Yashwant Singh (PW 4) to give it to the Government Opium and Alkaloid Works, Neemuch along with letter (Ex. P-16). That the information under section 57 of the NDPS Act was given to the higher authorities and that the report of the Government Opium Factory, Neemuch (Ex. P-12) indicated that the contents of the sample were opium. After recording the statements of the witnesses and completing the investigation, charge-sheet was filed on 14.9.2000 in the Court of Special Judge, Indore, against the accused Prabhulal under section 8/18 and against accused Shivlal under' section 29 of the NDPS Act.
5. Both the accused persons have abjured the guilt and they have denied the incriminating evidence under section 313 of CrPC. The defence of the accused is that they are innocent and have been falsely implicated by the police. The accused persons have not led any evidence in their defence.
6. The prosecution has examined panch witnesses Naresh (PW 1) and Girish (PW 2). Chemical Examiner J.M. Pamecha (PW 3), Constable Yashwant Singh (PW 4), Sub Inspector Girvarpuri (PW 5) and Inspector Murlidha
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