JUDGMENT Umeshwar Pandey, J.
1. By this appeal the judgment and order dated 3-3-1993 passed by the 1st Additional Sessions Judge, Varanasi has been challenged. The trial Court had convicted the appellants-Gyan Chand and Lal Chand (hereinafter referred to as 'A-l and A-2' respectively) for the offence punishable under Section 21 of N.D.P.S. Act (hereinafter referred to as the 'Act') and had sentenced them to rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- each. The trial Court further convicted Lal Chand (A-2) for the offence punishable under Section 27A read with Section 29 of the Act and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000/-.
2. The complainant-K. K. Rai (PW-1), the then Intelligence Officer, Narcotics Control Bureau, Varanasi in the morning of 18-11-1989 had received information that A-1 and A-2 are involved in drug trafficking and were likely to give delivery of certain drugs to somebody on that date. He, acting upon such information, reduced it in writing and sent it to his immediate superior Dy. Director of the Department and thereafter he along with his assistant-Alok Kumar (PW-2) and others proceeded for the place in the locality of Kakarmatta of City Varanasi where they arrived at about 10.40 a.m. They approached the residence of A-1 and A-2 and gave a call to them for opening the door. A-1 when opened the door, K. K. Rai introduced himself and disclosed the purpose of his visit to that place. He also volunteered along with his colleagues that A-l may take their personal search before they could commence the search of the premises occupied by him. The accused did not, however, opt to take search of the PW-2 and other members of the search party and thereafter the complainant along with his colleagues entered the building. Inside the house A-2 was also found present who introduced himself to the search party as brother of A-1. The complainant noticed a bag with green and black stripes. PW-2, Alok Kumar picked up that bag and on opening one polythene packet was found inside, which contained certain brown material. In the bag itself certain weights of 500, 200, 100 and 50 gms. denomination were also found. On inquiry made, accused (A-l) told that brown material was his medicine but subsequently he accepted it as a derivative of Morphine. On further search made by the party, no other contraband was recovered from the house. The complainant-K. K. Rai thereafter on testing the brown powder with his test kit, found it to be heroin. The said contraband weighed 400 gms. The search party prepared three samples out of recovered powder in the weight of 5 gms. (material Ext. I) each and sealed it on the spot before all concerned. The remaining contraband (material Ext. II) along with above weights and the weighing instrument were all kept in the same bag and sealed then and there only. A-1 and A-2 along with all members of the search party and the witnesses (Sri Nath and Chhote Lal) put their signatures on those sealed packets and its recovery memo (Ext. Ka-1) was prepared. The statements of A-1 and A-2 (Ext. Ka-2 and Ka-3) in their own hands and under their signatures, were also obtained by the complainant-K. K. Rai on the spot itself and the statements of public witnesses (Sri Nath and Chhote Lal) (Exts. Ka-4 and Ka-5) were obtained under their signatures on the spot itself. All these formalities and proceedings consumed sufficient time of the search party and the entire formality was over only by 8.00 O'clock in the evening. Thereafter, the arrest of the A-1 and A-2 was effected and they along with recovered contraband were brought to the office of Nar -codes Control Bureau, Varanasi and kept there for the night. The recovered articles were deposited with the official custodian in the office itself.
3. The next morning i.e. on 19-11-1989, the accused and the recovered contraband (in sealed condition) were forwarded to the Chief Judicial Magistrate, Varanasi (Ext. Ka-8) and the information of such recovery etc. was sent by the complainant in writing to the Intelligence Officer, B. D. Trivedi, in the office of Dy. Director, Narcotics Control Bureau, Varanasi. On the same day, the sample of the contraband after it was received back from the Court of Chief Judicial Magistrate was sent to the General Manager, Opium and Alkaloid Factory, Ghazipur for its analysis. The samples after its analysis were found to contain heroin. The Chemical Examiner's report (Ext. Ka-11) was received in the office of Narcotics Control Bureau, Varanasi. The complainant thereafter submitted his formal complaint to the Court of Chief Judicial Magistrate on 20-12-1989. On the allegations, as made in the complaint and other materials available before the Court, the appellants were charged for the aforesaid offences under which their convictions have been recorded.
4. The prosecution in support of its case examined before the Court the complainant .(PW-1), K. K. Rai and also PW-2, the Enforcement Officer of Narcotics Control Bureau, Varanasi, Alok Kumar Srivastava. PW-3 and PW-4 Chhote Lal and Sri Nath, who were said to be the witnesses from public, were also produced before the Court and since they did not support the prosecution case, they have been declared hostile.
5. The prosecution has proved.the documents Exts. Ka-1 to Ka-14, which include the recovery memo, the statements of the accused-appellant Gyan Chand and Lal Chand (Exts. Ka-2 and Ka-3), the statements of the witnesses Sri Nath and Chhote Lal (Exts. Ka-4 and Ka-5) which were recorded by PW-2 Alok Kumar Srivastava, the Enforcement Officer, at the time of recovery itself. Exts. Ka-6 and Ka-7 are the copies of arrest memo of the two appellants, the original of which were given to them before their arrest by PW-1. Ext. Ka-8 is the written information given to Dy. Director, Narcotics Control Bureau, Varanasi under Section 57 of the Act about the recovery and arrest of the appellants in the said case. Ext. Ka-10 is the carbon copy of the test memo which was prepared on the spot after the recovery and the original of which was sent to Ghazipur. Ext. Ka-9 is the copy of the letter which was addressed to the General Manager, Opium and Alkaloid Factory, Ghazipur for the chemical analysis of the samples of recovered contraband. Ext. Ka-11 is the report of the Chemical Analyst, stating that the samples after due analysis were found containing heroin in the form of light brown powder. Exts. Ka-12 and Ka-13 are the envelopes and other papers which were received from the office of the Chemical Examiner and Ext. Ka-14 is the criminal complaint filed by PW-1 before the Court of Chief Judicial Magistrate.
6. The accused in the statements under Section 313, Cr. P.C. stated that no search or seizure was made and they had come to their father's place in Mohalla Kakarmatta of Varanasi only for the purpose of vacating that house occupied by his father on rent from Chhangur Pal. the landlord. They further stated that they are the residents of Village Karmarahi in the circle of Police Station Jamaniya of District Ghazipur and no recovery was made and the search party of the Narcotics Control Bureau came at their father's residential house and took them to its office and there they were coerced and tortured for giving the statement before PW-1.
7. From the side of the defence as many as three witnesses (D.Ws. 1 to 3) have been examined.
8. The trial Court, after having considered the entire evidence led from both the sides and other materials available on record, found that the offences with which the appellants were charged had been proved to the hilt'and as such, the order of conviction was recorded for the said offences. The Court below after due hearing on the award of punishment passed the impugned order of punishment also and awarded the respective punishments as stated above, to the appellants.
9. Aggrieved with the aforesaid Judgment and order passed by the trial Court this appeal has been preferred.
10. I have heard Sri P. N. Mishra, Sr. Advocate, assisted by Sri Brijesh Sahai, for the appellant and Sri N. I. Jafri, Advocate, appearing for the respondent,
11. The learned counsel for the appellants while assailing the impugned Judgment of the trial Court has stressed that there was hardly any evidence worth the name over which the trial Court could safely place reliance for recording the conviction of the appellants. He has emphasised that the independent witnesses who have been produced by the procecution have not. supported its version and the substantive evidence which has been given before the Court is only in the Form of the statements of departmental officers who include the complainant/Recovery Officer and the Enforcement Officer of the said Department. Such evidence should not be reasonably treated as safe for record-ing the conviction of the accused unless it is substantiated and corroborated by the independent witnesses in all its material particulars. The learned counsel has also submitted that the recovery of the contraband which is allegedly made cannot be treated as a recovery from a premises which could be said to be in conscious and exclusive possession of the appellants, In this context the learned counsel has cited the case law of Ismailkhan Aiyubkhan Pathan v. State of Gujarat, 2000 SCC (Cri) 1241. The learned counsel has tried to emphasise that the recovery is claimed to have been made from a house in mohalla Kakarrnatta which was taken on rent by the appellants' father and the accused on the alleged date of recovery had come to Varanasi only from their village home of District Ghazipur. Even if this recovery is treated to be actual recovery made from the said premises, the appellants simply on the basis of the statements of PWs-1 and 2, cannot be safely held to be responsible for keeping that contraband in that room of the building.
12. As regards the aforesaid submission made from the side of the appellants, ii. is true that the witnesses who have supported the prosecution version of the case are the witnesses from the department but the testimony of such witnesses cannot be altogether discarded because they belong to the department and one of them is the complainant of the case. The Court has to assess the worth of such evidence from the facts and circumstances and other materials available on record and if these statements, inspire confidence, it has to be accepted by the Courts for the purpose of recording the conviction of the accused. In the present case, the complainant/Recover}' Officer (P.W. 1) K. K. Rai, after having received an information from certain reliable sources that the appellants were persons involved in drug trafficking and were likely to pass on some contraband to somebody on that date, claims to have proceeded for the spot and on arrival at the said premises of mohalla Kakarmatta along with other witnesses, the recovery is said to have been effected. Even though, P.Ws. 3 and 4, who are said to be the witnesses from public and who were said to have been taken to the spot in their capacity as independent witnesses, have not supported the case of the prosecution, yet, the statement of P.W. 1 in addition to its full support from the evidence of P.W. 2, also finds full corroboration from other materials available on the record. The foremost corroborating evidence in the case to support the version of the prosecution given by P.W. 1, is recovery memo (Ext. Ka 1) which bears the signature of both the appellants-Gyan Chand and Lal Chand besides that of the other witnesses. It lends full corroboration to the substantive evidence given by P.Ws. 1 and 2 in this case. Thereafter, the prosecution has the support of the statements given by the appellants on the spot of recovery itself under Section 67 of the Act, which are made relevant under the provisions of Section 53A of the Act.
13. In the aforesaid case of Ismailkhan Aiyubkhan Pathan (2000 SCC (Cri) 1241) (supra), the Apex Court, in view of the facts and circumstances available in that case had refused to accept the fact that the room in which the contraband was recovered was in exclusive possession of the accused persons. The Hon'ble Court in para 4 of the judgment has observed as below :-
"There is no evidence that anybody had seen that any one of the accused was dealing with narcotic drugs. There is also no evidence to show that any one of them had admitted either through a confession or otherwise of any incriminating role. Nor is there evidence that the accused persons, who were found sitting in the room, had possession of the room, actual or constructive. It is the prosecution case that the said room was in the possession of Nasir. But that Nasir is not an accused in this case. He was not. examined as a prosecution witness to disclose as to how the accused persons happened to be in the room. None of the neighbours supported the prosecution case that any one of the accused had a connection with the article in question."
14. That case law, on facts of this case is hardly available to benefit the accused-appellants. Here, we have the statements of P.Ws. 1 and 2 in support of the prosecution version, which get full corroboration from the statements of the accused recorded under Section 67 of the Act. In that case, there was no such statement of the accused, which was reduced in writing by the competent officer. Here Exts. Ka-2 and Ka-3, the statements of the appellants go to fully corroborate and support, the evidence of P.Ws. 1 and 2. In so far as the part of recovery from the possession of the appellants is concerned, the appellants were found sitting in the room from where the contraband is claimed to have been recovered and that building was taken on rent by nobody else than their father himself. The Hon'ble Apex Court in M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence,, while dealing with such situation has propounded that the recovery cannot be doubted for want of non-examination of independent witnesses when such recovery is supported by the confessional statement of the accused persons given voluntarily. Para 6 of the judgment of the said case is relevant in this context and it is extracted as below (para 6) :-
"Next, the learned counsel contends that the independent witnesses of the recovery of the contraband having not been examined and only police witnesses having been examined, the recovery becomes doubtful. Reliance is placed upon the decision in Pradeep Narayan Madgaonkar v. State of Maharashtra . In the decision relied upon while observing the prudence dictates that evidence of police witnesses needs to be subjected to strict scrutiny, it was also observed that their evidence cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or prosecuting agency, but as far as possible, corroboration of their evidence in material particulars should be sought. In that case the observations were made in the light of the fact that the police officials made an attempt to create an impression on the Court that the two witnesses were witnesses of the locality and were independent, knowing fully well that one of the witnesses was under the influence of the police and available to police as he had been joining the raids earlier also and the other witness was a close associate of the said already available witness. The friendship between the two witnesses developed during the days of gambling when the police had admittedly conducted a raid at their den. It was observed that the very fact that the police officer joined the said two witnesses creates a doubt about the fairness of investigation coupled with the manner in which the statements had been recorded in that case. The observations relied upon have no applicability to the facts and circumstances of the present case, particularly having regard to the confessional statements of the appellants which we have held were voluntary. On the facts of the case, recovery cannot be doubted for want of non-examination of independent witnesses."
Since the possession of the premises from which the recovery of contraband is claimed to have been made, was the residential premises in the possession of the appellants' father where the accused were present in the same room from where the recovery was done and soon after such accused persons had also given their statements admitting to this recovery under Section 67 of the Act, the evidence given by the witnesses from the department stating those facts of recovery has to be accepted by the Court, and there is hardly any occasion to raise a doubt about the truthfulness of such evidence.
15. The learned counsel appearing for the appellants has strenuously argued that there is a lot to doubt about the voluntary nature of the statements given under Section 67 of the Act by the accused being Exts.Ka-2 and Ka-3. But I don't agree to this proposition of the learned counsel. The accused persons are said to have been produced before the Magistrate the very next day i.e. 19-11-1989 for the purpose of their remand. Their statements had already been recorded a day earlier i.e. on 18-11-1989. If there was something to complain about such statements that it were obtained by the P.W. 1 under threat and coercion, the fact should have been brought by the accused to the notice of Court on that date itself. On the contrary the appellants had been almost silent throughout the trial up to the stage of their statements given under Section 313, Cr. P.C. about any alleged coercion or duress practiced upon them by the people from the department before their statements were recorded by P.W. 1. Nothing has been elicited in the cross-examination nor any suggestion has been given to P.W. 1 that any undue pressure was exercised upon the appellants-accused for giving their statements in Exts. Ka-2 and Ka-3. A mere suggestion has been given to P.W. 2 in para 8 of his cross-examination that the accused were brought to the office of Narcotics Control Bureau and they were unduly tortured to give their statements and sign the papers there. In fact, if any pressure was practiced upon the accused for giving the statement in Exts. Ka-2 and Ka-3, at least a probability of this fact could have been demonstrated in the cross-examination of the recovery witnesses. A mere suggestion to P.W. 2 will not be of any consequence for the purposes to treat such statements as one obtained under some pressure. The statements are in the hand and signatures of the accused persons themselves and In such situation it would be highly unreasonable to express any doubt about the voluntary character of the same. Before discarding such statements recorded under Section 67 of the Act, there must be sufficient material before the Court for treating it as statements given involuntarily. In absence of any such special reason, the trial Court appears to have rightly believed such statements of the accused given in Exts. Ka-2 and Ka-3 and I am also not persuaded to find anything, which would affect the voluntariness of these statements. There is nothing on record to indicate that the aforesaid statements were actually elicited by any coercion, threat or force. In case of A. K. Mehboob v. Intelligence Officer, Narcotics Control Bureau, 2002 SCC (Crl) 1035, the Hon'ble Apex Court had refused to accept such contention of the defence in similar circumstances and held that there was nothing substantial on the record to indicate that the statements of the accused were obtained under any threat or force etc. The observations made in part of para 5 of the Hon'ble Court are relevant in this context and are extracted as below :-
"It must be remembered that the appel-lant-Naushad has no case that when he was produced before the Magistrate immediately after his arrest that he made any grievance of any maltreatment administered to him by the members of the Narcotics Control Bureau. Wisdom dawned on him (when the complaint dated 11-3-1994 was filed) to put up an advance defence against the statement given by him under his own signature. Even then he did not think it necessary to make any allegation that any intimidatory tactic, much less any third degree method had been applied on him. His case in the said complaint that a reward was offered to him and hence he agreed to sign the statement is contrary to the present stand adopted by him that he was coerced and threatened to make such a statement."
16. In the aforesaid view, if the statement of P.W. I and P.W. 2 find full corrobo-ration with regard to the recovery and possession of the contraband articles, from the statement of appellants recorded under Section 67 of the Act, which are relevant under Section 53A of the Act, such evidence is sufficient to record the conviction for the offences made out of such recovery of contraband from the possession of the accused as well as the offence of its trafficking.
17. The case law of Megh Singh v. State of Punjab, of the Hon'ble Apex Court has been cited by Sri N. I. Jafri, Advocate, about certain presumption which are available in such cases and with the strength of this case law he has stressed that in this case the search party headed by P.W. 1 when enter.ed the room of the premises, noticed a bag with green and black stripes lying on the bed which on opening by P.W. 1 was found containing the contraband material Ext. II. The conscious possession of such article by a particular individual can be determined with reference to factual backdrop culled out from the evidence on record. He has also given reference of provisions of Sections 35 and 54 of the Act and has further submitted that such presumptions are available even in the case of the appellants about their mental state and conscious possession of the contraband. It is for the accused to show that such possession could not be presumed with the help of Sections 35 and 54 of the Act.
18. From the evidence of P.W. 1 and P.W. 2 as has already been discussed above, it is more than obvious that the premises was under the tenancy of the father of the accused persons and that then P.W. 1 and other persons of the search party entered there, the bag containing contraband was found on the cot kept in the room about which when the inquiry was made by the P.W. 1 from the accused, it was told to be some medicine for their use but later on they accepted it as Morphine. Even in the cross-examination of the P.W. 1 and P.W. 2 nothing has been elicited by the defence as to show that the possession of the contraband was not conscious. It is quite clear that the presumption about the commission of offence under the Act in respect of that contraband is available against the appellants under Section 54 of the Act as well as the presumption of their culpable mental state is also there under Section 35 of the Act because the defence in this case has not been able to prove that the accused did not have such mental state or were ignorant about that article. There is also no other reliable material available on record to probabilise any fact, which would rebut the said presumption. In this case both presumptions of Sections 35 and 54 of the Act are clearly available to establish the fact that the heroin which was claimed to have been recovered, was recovered from the conscious possession of these appellants about which they had special knowledge that the article is Morphine.
19. In the case of Ismailkhan Aiyubkhan Pathan (2000 SCC (Cri) 1241) (supra) referred to by the learned counsel for the appellants, the facts are definitely otherwise. There was no evidence to show that anyone of the accused had admitted either through a confession or otherwise of any incriminating role with regard to the recovery of the contraband from the premises of which some third person was the owner but here we have different facts and as such in view of the case of Megh Singh (supra), the recovery of the contraband has to be held to be one from conscious possession of the accused persons.
20. Besides the above, one very relevant point of argument has been strenuously advanced from the side of the appellants that P.W. 1, the complainant when received the information that the appellants were involved in drug trafficking and were in possession of certain contraband at that particular point of time, there was a statutory obligation upon him to record this information in writing under Section 42(1) of the Act and by virtue of Sub-section (2), he was also obliged to send a copy of such information taken out in writing to his immediate officer superior. In the present case, the learned counsel has further added that no such information which is claimed to have been reduced in writing, has been produced before the Court, thus, there is gross non-compliance of the provisions of Section 42(1) and (2) leading to vitiate the entire proceedings. Learned counsel in this context has relied upon the case law of State of Orissa v. Laxman Jena (2002) 2 ALL Cr R 1903.
21. It is true that the harsh provision of the act casts a duty upon the prosecution to strictly follow the procedure and comply with all safeguards as provided under the Act. The possession of illicit article, if proved, against a person facing the trial, the consequences for him are definitely grave as the punishments provided are deterrent. Thus, all the safeguards given in various provisions of the Act including that of Section 42 of the Act, in all cases, must be proved to have been duly complied with. If there is non-compliance, it obviously renders the claim of the prosecution about the recovery and seizure etc. as extremely doubtful. But. in the present case, we do not have that situation. P.W. 1, the Recovery Officer has in very specific words stated in his examination-in-chlef itself that on obtaining the information from reliable sources that the accused were involved in trafficking of the contraband and were likely to make certain transactions with somebody on that date, he recorded this information in writing and gave it to his Dy. Director, the immediate officer superior and also obtained direction from him to conduct the raid. It is true that he has not produced the said written information given to the Dy. Director before the Court but that alone would not vitiate the entire proceedings of the case nor it would render the recovery as such to be suspicious.
22. In T. Thomson v. State of Kerala, 2004 SCC (Cri) 447, the Hon'ble Apex Court has very specifically made it clear that there is no statutory requirement that such written record of the information prepared under Section 42(1) and dispatched to the immediate superior officer under Sub-section (2) in all cases, be produced in the Court as a matter of course. Para 5 of the judgment being relevant is extracted as below :-
"Learned senior counsel further argued that the record alleged to have been prepared by P.W. 1 on getting information regarding the movement of the appellants has not been produced in Court. But he conceded that no motion was made on behalf of the appellants to call for the said record. There is no statutory requirement that such a record should be produced in the Court as a matter of course. We are, therefore, not disposed to upset the finding on that score either."
Here it is not a case as was factually there in State of Orissa (2002) 2 All Cri R 1903 (supra). In view of the facts, it was found from the evidence that the officer making search had not recorded reasons or grounds for his belief to make the search in terms of proviso to Section 42(1) of the Act but here there is specific evidence of P.W. 1 and that on getting information about likely recovery of contraband from the premises in question, he recorded it in writing and sent it to his Dy. Director. This evidence is sufficient in so far as the compliance to the provisions of Section 42(1) and (2) are concerned. Simply because the said written information has not been produced before the Court is definitely not going to vitiate the proceeding nor render the recovery as suspicious. In the case of A. K. Mehboob (2002 SCC (Cri) 1035) (supra) also, the Hon'ble Apex Court has treated such statement of the witnesses alone as full compliance to the aforesaid provisions of Section 42 of the Act. In para 6 of the judgment, the observations have been made in the following words :
"...P.W. 2 has said in so many words that he has recorded the information in his personal diary as well as in the official diary as soon as he got the information that narcotic drugs were being transacted in the house of the appellant-Naushad P.W. 2 had admitted during cross-examination that he had submitted a report to his superior officer. That statement shows that he had acted in conformity with Section 57 of the Act."
23. Thus, in view of the aforesaid, it is apparent that there is full compliance made to the obligations as imposed upon the search officer and contained in Section 42 of the Act and there is no scope for treating the recovery as having been vitiated or becoming doubtful.
24. There is yet another argument advanced from the side of the appellants that in this case, the important link evidence of the safe custody of articles alleged to have been recovered, till it was sent for chemical examination, has not been brought on record by the prosecution. The learned counsel has strenuously argued that the person in whose custody the contraband was kept after its recovery and till it was dispatched for chemical examination has not been produced in the evidence before the Court and as such this link evidence is missing. It is not proved that the alleged contraband was in safe custody till it was sent for chemical examination. Thus, there is also violation of provisions of Section 52A of the Act. In this context, reliance has been placed upon the case law of Valsala v. State of Kerala and Jitendra v. State of M.P., .
25. So far as the safe custody of the samples prepared from the recovered contraband is concerned, the facts of this case are entirely different from the facts of the case of Valsala (supra) as well as Jitendra (supra). Here the recovery is said to have been made on 18-11 -1989 whereas from the statement of P.W. 1 the samples and the remaining contraband were taken in sealed condition to the office of Narcotics Control Bureau and the same were kept with the custodian on that date and the next morning, the whole recovered articles as well as the accused persons were produced in the Court of Chief Judicial Magistrate, Varanasi. On that date itself (19-11-1989) the samples were also dispatched for chemical examination to the Govt. Opium and Alkaloid Works, Ghazipur. The entire recovered articles along with samples thus, having been produced before the Magistrate the very next day and samples also dispatched for chemical examination on the same date, there is no scope for the defence to argue that there was any delay on the part of the prosecution in sending the article for chemical examination. There was hardly any chance for meddling with the recovered contraband for obtaining a manipulated report. In the case of State of Orissa v. Kanduri Sahoo, 2004 SC Cr R 865 : (AIR 2004 SC 833 : 2004 Cri LJ 842), the Apex Court in an identical situation has found that only in case where the dispatch of samples for chemical examination is delayed, the prosecution version would become vulnerable. The Hon'ble Court in that case had placed reliance upon the evidence of P.W. 1, which was categorically to the effect that the articles were kept in the Excise Malkhana from where they were brought and sent for chemical examination. Here also the articles, which were kept with the departmental custodian, was taken to the Chief Judicial Magistrate, Varanasi next morning only and thereafter, it was dispatched the same day for chemical examination. There is no evidence available on the record that in this short period of few hours while the article was kept with the custodian, was meddled by the officers, rather there was no chance of any meddling whatsoever. The conduct of the officers of the department regarding the dispatch of the articles to the chemical examiner or otherwise also has been very fair in this case. In this context the case law of Khet Singh v. Union of India, is quite relevant. The ratio laid down in Valsala (supra) case or that of Jitendra (supra) would hardly be of any benefit in the fact of the present case to the appellants-accused.
26. In addition to the above argument, the learned counsel for the appellants has in a passing manner submitted that P.W. 1 K. K. Rai, the Recovery Officer was not competent officer to file the complaint under Section 36A(1)(d) of the Act but this argument does not appear to have much force because the case of State through Narcotics Control Bureau v. Kulwant Singh, , which has been relied upon in this context does not appear to give any support to this argument because the letter dated 27-9-1989 of which it makes a reference, empowers the officers of and above the rank of Inspector in the Department of Customs, Central Excise, Revenue Intelligence and the Narcotics Control Bureau under the Ministry of Finance (Department of Revenue) for filing of complaints relating to an offence under the Act before the special Courts. Earlier notification of Ministry of Finance (Department of Revenue) dated 14-11-1985 published in Gazette, empowers the officers of and above the rank of Inspector in those departments with the powers specified in Sub-section (1) of Section 53 of the Act. Obviously, with the empowerment of such officers by the notification, they acquire power of In-spector-in-charge of any Police Station and as such they are also authorised to file the complaint under Section 36A(1)(d) of the Act.
27. The learned counsel had also raised an argument with regard to jurisdiction of the Govt. Opium and Alkaloid Works, Ghazipur to make chemical analysis and has tried to question the very result of analysis on the ground that the said Govt. Opium and Alkaloid Works, Ghazipur does not come within the definition of 'chemical examiner' as contemplated under Rule 2(c) of NDPS Rules, 1985. He has tried to point out that this Govt. Opium and Alkaloid Works, Ghazipur has been inserted by virtue of some amendment incorporated in the Rules w.e.f. 25-2-1995 only. I have seen the Rule 2(c) of the Act before it was amended and it is found that this Govt. Opium and Alkaloid Works, Ghazipur was authorised to conduct the chemical examination of the contraband right since the rule came in existence in Rules, 1985. It was not inserted by any amendment, which became effective from 25-2-1995.
28. As the evidence led in this case and as it has been discussed and detailed above, the statements of P.W. 1 and P.W. 2 find full corroboration from the confessional statements of the accused (Ext. Ka-2 and Ka-3) and are further corroborated by the recovery memo and other documents which had been prepared at the time of recovery and proved before the trial Court. The report of chemical examination (Ext. Ka-11) of the samples sent for such purpose makes it evident and fully establish the fact that the samples which had been prepared at the time of recovery and sent for such analysis were found containing heroin in the form of light brown powder. Obviously, the recovery of 400 gms. of heroin from the premises over which the appellants-accused had their possession is proved to the hilt from the evidence available on the record and the trial Court does not appear to have erred in any manner while recording the findings and passing the order of conviction against the appellants in the present case, the judgment and order of conviction does not appear to be assailable to any extent in this appeal which is devoid of merits.
29. As regards the quantum of punishment awarded in this case, the trial Court has imposed the minimum sentence which has been provided under the respective provisions of Sections 21 and 27A of the Act. Thus, there is no scope even for reduction of sentence awarded in the present case. The appeal as a whole does not have any force and it has to fail.
30. The appeal is hereby dismissed and the Judgment and order of conviction and sentence dated 3-3-1993 passed against the appellants is hereby affirmed.
31. The office is directed to send a copy of this judgment to the trial Court for further necessary action in the matter towards the execution and compliance of the orders passed in this appeal.