JUDGMENT N.S. Gupta, J.
1. Lawrence John Dowser, aged about 35 years, who claimed to be a Science Graduate and was a Canadian national was found in possession of 7.700 grams of Heroin in Room No. 207 of Hotel Buddha Ram Katora, Police station Chetganj, District Varanasi, He was accordingly convicted under Section 21 of the N.D.P.S. Act and was sentenced to undergo R.I. for a period of the ten years and to pay a fine of Rs. One lac and in default of the payment of the same to further undergo R.I. for a period of two years vide Judgment and order dated 30-4-1994, passed by Sri Chandra Prakash, the then VIIth Additional Sessions Judge, Varanasi. Feeling aggrieved by the said judgment the appellant Lawrence John Dowser has come in appeal up before this Court.
2. The prosecution claimed that R. K. Singh, P.W.I, who is then posted as Intelligence Officer at Narcotics Control Bureau, Varanasi received information on 14-5-94 to the effect that a Canadian national named Lawrence John Dowser was staying at Buddha Hotel, Ram Katora, Varanasi and was involved in illicit trade of selling Heroin. He made a memorandum of the said information and informed the; Director Narcotics Control Bureau, Varanasi. Mr. O. P. Rana, Assistant Director, Narcotics Control Bureau, Varanasi headed the raiding party which consisted of V. K. Singh, Inspector, Central Excise, PW. 2, R. K. Singh, P.W. 1, Shivaji Srivastava, R. K. Srivastava, H. C. Yadav and S. N, Tripathi, The raiding party reached Buddha Hotel at about 6.00 P.M. on 14-5-93 and contacted Govind Ram Srivastava, (P.W.3), Manager of Budhana Hotel and Uma Shanker Gangulay resident of Nati Imli, Varanasi. The officers of the raiding party disclosed their identity to these persons, P.W.I, R. K. Singh asked Sri Govind Ram Srivastava, Manager, Buddha Hotel that they have got confirmed information to the effect that the Canadian National who was staying in Room No. 207 in his Hotel was illegally possessing Heroin and that they wanted to take search of the said room. Sri Govind Ram Srivastava, P.W.3 and Uma Shanker Gangulay agreed to witness the said recovery. Sri R. K. Singh, P.W. 1 went to Room No. 207 of Buddha Hotel. He knocked the door, which was opened by the accused appellant Lawrence John Dowser. Sri R. K. Singh, P.W. 1 gave introduction of the raiding party to the accused appellant and asked him to take search of the room in which the accused appellant was staying. He also offered to the accused appellant that if he so desired, he could take the personal search of Sri R. K. Singh P.W. 1 and the other members of the raiding party. He also informed the accused appellant that Sri O.P. Rana, Assistant Director was a Gazetted Officer. It was also offered that the accused could be searched in the presence of the Gazetted officer, or Magistrate, if he so liked, But the accused appellant agreed for search by Sri R.K. Singh, P.W. 1 and V. K. Singh, P.W.2 Sri R. K. Singh, P.W.I, first of all took personal search of the accused appellant, but nothing incriminating was recovered from his person. He thereafter searched out the room in the presence of other members of the raiding party and witnesses. He found a bag made in Taiwan. He found four small polythene packets which contained powder which was grey in colour. Sri R. K. Singh, P.W.I, with the help of the test kit, which he was carrying tested the said packets and found that the said packets contained Heroin. He weighed all the four packets and found the total weight of Heroin as 7.700 gms. Sri R. K. Singh, P.W. 1 found small balance of A. M. Master & Company, Bombay. He also found weights of 20 gms., 10 gms., 5 gms., 2 gms. and 1 gm. He also found three weights of 500 mgs. two weights of 200 mgs two weights of 100 mgs. and three rolled packets of polythene, one spoon, one Churi, six used Hypodermic needles and one unused Hypodermic needle. He also found a paper 'containing addressess, passport Bearing No. MB-'339068 and an Air Ticket was also recovered by Sri R. K. Singh, P.W.I from the said bag. On enquiry the accused appellant informed him that the Heroin which was found in his bag was purchased by him from Colaba, Bombay. He did not disclose the name of that man. He further informed that w.e.f. January 93, till date of raid, he had twice sent Heroin to his friend in Canada. The accused appellant further informed that he has been using the unused Hypodermic needle for his own use. He further informed that as compared to Canada, Heroin was easily and cheaply available in India. Sri. R. K. Singh, P.W. 1 prepared two samples of Heroine weighing five gms. and 2.7 gms each. He kept the said Heroin in two separate envelopes and sealed them and got the said sealed packets signed by the accused appellant as also his collegues who were the members of the raiding party. The said sealed packets were produced before the Court and were Ex. 2 and 3. The bag was also produced before the Court below and was marked as Exh. 4. The balance and weight were all produced before the Court below, they were marked as Exh. 5 and 6/ 1 to 6/8. The polythene rolls were also produced and were marked as 7/1 to 7/3. The balance was marked as Exh. 8, the used Hypodermic needles were marked as Exh. 9/1 to 9/6 and unused needle was marked as Exh. 10. The Test memo was marked as Exh. 11. Sri R. K. Singh, P.W.I prepared recovery memo on spot which contained the signatures of the accused appellant and other witnesses which was marked as Exh. Ka3 and Ka 4. He obtained written statement of Sri Govind Ram Srivastava, P.W.3, Sri H. C. Yadav and V. K. Singh. He arrested the accused appellant at about 10.00 p.m. in the night and prepared the arrest memo Exh. Ka. 5. The accused appellant was, thereafter, taken to the office of Narcotics Bureau. On 15-5-93, Sri R. K. Singh, P.W.I submitted to detailed report to his Deputy Director which was Exh. Ka. 6. The samples taken were despatched by registered parcel to General Manager, Government Opium and Alkaloid Works, Ghazipur for examination and report. The Chemical Examiner on examination of the sample found that the sample contained Heroin. Sri R. K. Singh, P.W. 1, asked the accused appellant to give his statement .in writing, but he refused to do so. The recovered articles were produced before the Magistrate concerned at the time of seeking remand. Sri V. K. Singh, P.W.2 Inspector, Central Excise who was also a member of the raiding party filed complaint, Exh. Ka. 9. The accused appellant pleaded not guilty to the charges framed against him. He pleaded that he was falsely implicated into this case. After needful trial into the matter, the learned trial Judge found the accused appellant guilty under Section 21 of N.D.P.S. Act. He accordingly convicted and sentenced the accused appellant as aforesaid. Hence the appeal.
3. I have heard Sri J. S. Sengar and Sri Amar Saran, learned counsel for the accused appellant and Sri V. S. Misra, learned Standing Counsel for Union of India Sri V. B. Singh, A.G.A., for State at considerable length and have perused the records of the case.
4. The conviction of the accused appellant is based upon the direct evidence of three witnesses of fact viz. Sri R. K. Singh, P.W.I, Intelligence Officer, Narcotics Control Bureau, Sri V. K. Singh. Inspector, Narcotics Control Bureau, P.W.2 and Sri Govind Ram Srivastava, Manager of Hotel Buddha, where the accused appellant was staying (P.W.3)
5. It was vehemently argued by Sri J. S. Singer, learned counsel for the accused appellant that the accused appellant has been falsely implicated into this case by the officers of the Narcotic Bureau, with a view to get cheap popularity and credit and further for seeking promotion that they have hauled up a foreign national. I am unable to agree-for the reason that the officers of the Intelligence Department whose job is to collect information regarding the commission of such offence are not expected to rope in innocent person falsely to get cheap popularity. Sri Senger pointed out the following infirmities in the case :-
1. Exclusive possession of the Heroin in question of the accused appellant is not proved.
2. Investigation of the case was not fair in as much as Sri V. K. Singh, P.W.2 was the member of the raiding party as also a witness of the recovery/seizure memoes.
3. The link evidence to prove the fact that the sample and the recovered articles were the same was missing.
6. I take up all these points for consideration one by one as under:-
(1) Sri R. K. Singh, P.W.I and V. K. Singh, P.W.2 are admittedly the officers of the Intelligence Department who were working as Intelligence Officer, Narcotics Control Bureau, Varanasi on 14-5-1993, the date of occurrence of this case. As intelligence Officer of the Narcotics Control Bureau, it was the part and parcel of their duty to collect information to the effect as to who is dealing in narcotics drugs. Sri R. K. Singh, P.W. 1, clearly stated in his statement on oath before the Court below that he received informations on 14-5-93, to the effect that a Canadian national named Lawrence John Dowser was staying in Budhdha Hotel, Varanasi and that he was in possession of great quantity of Heroin. He further received information to the effect that the accused appellant is indulging in illicit trade of the said Drug. He, therefore, recorded the said in formation in writing and apprised his Director, Narcotics Control Bureau at Varanasi. He, thereafter arranged a raid alongwith his associates Sri V. K. Singh, P.W.2, Gupteshwar Singh Srivastava, Sri R. K. Srivastava, H. C. Yadav, S. N. Tripathi, Sri O. P. Rana who was then working as Assistant Director of Narcotics Control Bureau at Varanasi was leading the raid.
7. Section 68 of the Narcotic Drugs and Psychotropic Substance Act, 1985 grants a previlage to the officer investigating the cases or exercising powers under the provisions of the said Act against the disclosure of the source of information relating to the commission of the offence. Therefore neither Sri. R. K. Singh, P.W. 1 nor Sri V. K. Singh, P.W.2, who were Intelligence Officers vested with the powers under the provisions of the Narcotic Drugs and Psychotropic Substance Act, 1985 were obliged to disclose as to when, where & by whom they got information about the involvement of the accused appellant in the illicit trade of Heroin in question. Thus the fact that the accused appellant disclosed to these officers that he purchased the Heroin in question from a man at Bombay and that the officers of the Narcotics Bureau failed to discover the said man and to bring him to books, loses its significance.
8. It is important to note here that the accused appellant himself in his statement recorded u/S. 313 Cr. PC. stated as under :-
I came to India 1 year 6 months back. I left my hotel at 1,QO p.m. on 14-5-93 and while I was returning to hotel at 10.00 p.m., I was stopped by N. C. R. Persons near a crossing close to hotel, who arrested me and took me to the office, locked me there. They managed to bring my bag from hotel, search it and prepared a list of personal property. Hotel Manager came there. I paid him the hotel charges. They have tortured me and beat me and pressed me to sign some papers envelopes and bundles and pressed me to write copies etc. I had one piece of paper wherein addresses of my mother, father and friends and my Bank Account No. were written, I had never taken herein nor given heroin to any body. I am completely innocent and have been falsely implicated. I am Science Graduate and educated person. I don't take drug. Whenever I left hotel 1 had given the Key to hotel counter.
9. It is clear from the statement of the accused himself that he was a man of about 36 years of age. He stated his occupation as Truck Driver. According to the own statement of the accused appellant the accused appellant came to India about one and half years before the date of his arrest and was admittedly slaying at Budha Hotel. If it was a fact that the accused appellant was not involved in illicit trade of Heroin etc., I do not know as to what fancy he had to stay in this country for a long period of one year and six months, Normally if a foreigner comes for a pleasure trip to the country, lie stays in the country for a month or two. The very fact that the accused appellant according to his own statement was a science graduate and was a truck driver by profession and was slaying in this country for pretty long period of one year and six months, goes to establish that the accused appellant was involved in some criminal activities,
10. It is clear from the statement of Sri Govind Ram Srivastava, P. W, 3, who was the manager of Buddha Hotel, Varanasi, the accused appellant was staying in Room No, 207 of the said Hotel. It is clearly stated that on enquiry from the officers of the Narcotic Department, he informed that the accused appellant was staying in Room No 207, At the instance of the officers, Sri Govind Ram Srivastava, (P.W. 3) accompanied raiding party to Room No. 207, in the meantime when he reached at Room No. 207, Uma Shanker Ganglay also came, Sri Govind Ram Srivastava clearly slated that the officers of the Narcotics Department knocked the door, which was opened by the accused appellant from inside. He clearly stated that the officers of the narcotics Department introduced themselves to the accused appellant and asked him to take their search and to give his search before a Gazetted Officer or Magistrate to which the accused appellant politely refused. He stated that when the officers of the Narcotics Department entered into the room of (he accused appellant, they got a hand bag and recovered Heroin, measurements, weights and injections. He staled that in one of the injections the needle was not there and 2-3 used injections were there. He slated that 20-25 packets, passport of the accused appellant and air-ticket were recovered from the said bag.
11. The circumstances that the intelligence officer of the Narcotics Department had conducted the raid upon the room of the hotel in which the accused appellant was admittedly staying, fully go to show that the officers of the Narcotics Department had raided the room of the accused appellant on the basis of some confirmed information that the accused appellant was indulging in the trade of Heroin.
12. The circumstances that the passport and air ticket of the accused appellant as also the balance and weights measuring from 20 gms. to 100 mgs. were recovered from the said bag alongwith Heroin, fully go to show that the said bag belonged to the accused appellant. The circumstances that the door of the room was opened by the accused himself fully go to show that the accused appellant was in exclusive possession of the said room at the time of the raid in question and that there was no scope for Hie Inspector/Officers of the Narcotics Department to plant anything with the accused appellant.
13. The circumstances that according to his own statement the accused appellant was made to sign a number of papers, fully go to show that the recovery memo as also the seizure memos were prepared by Sri R. K. Singh, P.W. 1 on spot. The circumstances that besides Mr. R. K. Singh, P. W. I, the said recovery memo was also signed by other officers of his department as also from Sri V. K. Singh, P.W. 2 and Sri Govind Ram Srivastava, Manager of the Hotel leave no room to doubt the veracity of the statement of three witnesses of fact, which were rightly relied upon by the court below.
14. When the accused appellant was a well educated man being science graduate and when he had offered no explanation as to why he was keeping the balance and weights, measuring 20 gms. to 100 mgs, as also the used and unused Hypodermic needles, fully go to establish that the accused appellant was keeping and using the said drug. The circumstances that at the time when the room was opened by the accused appellant himself and thereupon the intelligence officers captured the bag containing Heroin in question, fully go to prove that the accused appellant was in exclusive possession of the room in question from which the Heroin in question was recovered was possessed by the accused appellant. I, therefore, find no force in the contention of the learned counsel for the accused appellant on the point that the accused appellant was not in exclusive possession of the contraband in question.
15. Coming to the point that the investigation was tainted in as much as that Sri V. K. Singh, P.W. 2 had participated in the raid in question, I find that the officers of the Intelligence and Narcotics Department are of different character and calibre than the ordinary police officer. The mere fact that Sri V. K. Singh, P.W. 2 had participated in the raid in question, therefore does not vitiate the entire proceeding of the case. When the contention of the prosecution on the point of the recovery of the contraband in question stands fully proved beyond any shadow of doubt from the statement of Sri Govind Ram Srivastava, Manager of the Hotel, the mere fact that one of the officers of the Narcotics Bureau, who was a witness of the raid also and had lodged the criminal complaint in question does not render his evidence on the point of possession of Heroin in question by the accused inadmissible. That apart, besides the statement of Sri V. K. Singh, P. W. 2. the case of the accused appellant stands fully proved beyond any shadow of doubt by the statement of Sri R. K. Singh, P.W. I as also the statement of Sri Govind Ram Srivastava, P. W. 3.
16. Thus the contention of the accused appellant that the investigation of the case was not fair is devoid of any force.
17. Coming on the point of link evidence, I find that the samples were sealed on spot and that they were duly sent in a sealed cover to the Chemical Examiner of Government Opinum and Alkaloid works Ghaziabad. It is clear from the report of the Chemical Examiner that he had received one envelope from Narcotics Control Bureau, Varanasi, vide letter F No. III/1 NV/6/ VWS/93/345 dated 14-5-93, regarding seizure effected on 14-5-93 in yellow envelope duly sealed and that the net weight of the sample was 5.0 gins. The sample was of light brown powder and contained Heroin. It was also mentioned in the said report that the report about 2.7 gins, was being returned separately. It is clear from the report Exh. Ka, 11 which was sent by Sri V. K. Singh P. W. 2 in the scaled cover that the weight of the sample was 05 gms. approximately. The common course of business shall be presumed to have been followed. When the sample in question was kept in sealed cover on spot and when the same was signed besides all other by the accused appellant himself, it is not possible for me to appreciate the contention of the learned counsel for the accused appellant that the link evidence in the case is missing.
18. Lastly it was argued by Sri Senger, learned counsel for the accused appellant that since one unused injection of Heroin was also recovered, it should be presumed that the accused appellant intended to use the same for his own use. It was argued that the contraband in question was in small quantity and therefore the accused appellant was liable to a lessor amount of punishment as is provided under Section 27 of the Narcotic Drugs and Psychotropic Substance Act. I am unable to agree. The Heroin which is said to have been recovered from the bag of the accused appellant was measuring 7.700 gms which was not a small quantity. Then again, the circumstances that the accused appellant was keeping the balance and weights as also used and unused needles, fully go to prove his criminal intent.
19. Besides that direct evidence relied upon by the prosecution of Sri R, K. Singh, P.W. 1, Sri V. K. Singh, P.W. 2 and Sri Govind Ram Srivastava, P. W. 3, the provisions of Section 54 of Narcotic Drugs and Psychotropic Substances Act lays down as follows :-
54. Presumption from possession of illicit In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under Chapter IV in respect of-
a) any narcotic drug or psychotropic substance;
b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance; or
d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance, or any residue left of the materials from which any narcotic drug