JUDGMENT Mukteshwar Prasad, J.
1. Two accused Nankoo and Badri have filed this appeal against the judgment and order dated 20-5-1995 passed by Sri Abhimanyu Kumar the then Additional Sessions Judge, Kanpur Dehat whereby he convicted the accused under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act') and sentenced each of them to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees one lac. In default in payment of fine , they were ordered to suffer rigorous imprisonment for an additional period of one year.
2. In brief, the prosecution case is that on 12-11-1992 S. I. Babban Singh accompanied by H. C. Khayali Ram and constable Ram Bali were returning to the police station Musha Nagar after investigation and enquiry in village Pulandar. When the police party reached the culvert built on canal, two persons were seen coming to Pulandar. On seeing the police personnel, they accelerated their steps. On suspicion, the police party apprehended them at a distance of about twenty steps towards south of the culvert. This was done at about 5-00 p.m.
3. On enquiry, they disclosed their names as Nankoo, son of Bhadaie and Badri, son of Ram Lal. On their personal search, about 500 grams. Charas from possession of each accused was recovered, which was concealed in Polythene packets kept in a plastic bag. On demand, they failed to produce any licence or permit for having Charas in their possession. S. I. Babban Singh disclosed the grounds of arrest and formally arrested them. Two samples were taken out from the recovered Charas and sealed on the spot. The remaining Charas was sealed in the bags. A sample of seal was also prepared. Since the recovery was made all of a sudden no public witness was called out. On the dictation of S. I. Babban Singh, H. C. Khayali Ram prepared seizure memo and the police personnel and Badri signed the Fard and Nankoo affixed his thumb impression.
4. Both the accused along with recovered Charas were brought to P. S. Musha Nagar where constable Amar Singh prepared Chik report and registered cases at crimes No. 192 and 193 of 1992.
5. The investigation of the case was entrusted to S. I. Awal Singh who interrogated constable Amar Singh and the accused. Thereafter, investigation was taken up by S. I. Asha Ram Verma on 21-11-1992. He interrogated S. I. Babban Singh, H. C. Khayali Ram and Ram Bali and after visiting the scene of incident, prepared a site-plan. The samples were sent to Forensic Science Laboratory for chemical examination and after receipt of the report, both the accused were charge-sheeted.
6. On 17-4-1993, both the accused were charged under Section 20(b)(ii) of the Act to which they pleaded not guilty and claimed to be tried.
7. In order to substantiate its allegations, the prosecution examined P. W.I H. C. Khayali Ram, P. W. 2 constable Ram Bali and P. W. 3 S. I. Asha Ram Verma, I. O. of the case.
8. Both the accused in their statements recorded under Section 313 Cr.P.C. totally denied their arrest and recovery of Charas from their possession in the manner, as alleged by the prosecution, and pleaded their false implication.
9. Accused Nankoo pleaded that he had advanced Rs. 3500/- to one Santosh, a resident of village Chainpur. Out of which, he repaid Rs. 1700/- only. When he demanded the balance amount and went to his house, he was apprehended by the police. Accused Badri pleaded that Santosh had taken a loan from Nankoo in his presence and as such, he was detained by the police.
10. Accused examined one Dori Lal, a resident of village Chainpur, as D. W.I.
11. After evaluation and analysis of the evidence on record led by the parties, learned Judge found both the accused guilty for the offence punishable under Section 20 of the Act and convicted and sentenced them as indicated above.
12. Aggrieved by their conviction and sentence they have come up in appeal.
13. I have heard learned counsel for the appellants, learned Additional Government Advocate and have perused the record carefully.
14. It has been urged with vehemence on behalf of the appellants that no public witness was associated with the alleged arrest and recovery of Charas and the prosecution story is highly doubtful. The appellants were on inimical terms with the local police and the provisions of Section 57 of the Act were not complied with and no report was sent to the higher officers. It was also contended that the arresting officer was not examined by the prosecution for the reasons best known to it and the recovered Charas was not weighed.
15. On the other hand, learned counsel for the State has supported the judgment passed by learned Judge and urged that both the appellants were rightly found guilty and were convicted and Court-below committed no error in appraisal of the evidence.
16. I have given my anxious consideration to all arguments advanced on behalf of the parties. I have scrutinized the evidence with great care and caution with a view to find out whether the appellants were falsely implicated at the Instance of Santosh who had taken a loan of Rs. 3500/- from accused Nankoo. After having considered the entire material on record I find that the learned trial Court committed no illegality in appraisal of the evidence and rightly found both the accused guilty.
17. It is true that S. I. Babban Singh, the arresting officer, was not examined by the prosecution. The prosecution examined H. C. Khayali Ram and constable Ram Ball who were accompanying the arresting officer on the Impugned date. No doubt, the arresting officer was a material witness in the case. I am, however, of the opinion that his non-production in the witness-box is not fatal. Section 134 of the Evidence Act gives green signal to the Courts to place reliance and hold the accused guilty on the solitary testimony of a witness provided the evidence is found to be trustworthy and above board. It provides that no particular number of witnesses shall in any case be required for the proof of any fact. In other words, the law requires that evidence has to be weighed and not counted. In this view of the matter, non-examination of the arresting officer in the present case does not weaken the prosecution version.
18. P. W. 1 H.C. Khayali Ram fully supported the prosecution story and testified that he and constable Ram Bali were accompanying S. I. Babban Singh who had gone to investigate and hold enquiry. When they were returning to the police station and reached the canal, they found two persons coming who took turn on seeing the police personnel looking to their activities, the police force chased them and succeeded in apprehending them towards south of the culvert at about 5-00 p.m. On their personal search, two packets containing 500 grams, of Charas kept in two bags was recovered. The witness added that weight of the Charas was disclosed by the accused. After disclosing the grounds of arrest, they were formally taken into custody and two samples were taken out from the recovered Charas and sealed on the spot. The remaining Charas was also sealed in the bags. Since this arrest and recovery was made without any prior information and all of a sudden, no public witness could be called. The witness added that he had prepared the seizure memo on the dictation of S. I. Babban Singh and obtained signatures of the police personnel and the accused. According to him, both the accused and recovered Charas were brought to the police station and the recovered Charas was deposited in the sealed condition in Malkhana. Moreover, superior officers were informed about the arrest and recovery of Charas within an hour.
19. P. W. 2 constable Ram Bali corroborated the testimony of his colleague Khayali Ram on all material points and testified that on 12-11-1992 at about 5-00 p.m. both the accused were arrested by the police party and two packets, each having 500 grams. Charas were recovered from the possession of the appellants.
20. Both Khayali Ram and Ram Bali were cross examined at length but I find nothing in their cross-examination to disbelieve their testimony. Both the police personnel testified in clear words that suddenly the appellants were apprehended and recoveries were made and as such, public witnesses could not be called out to witness the arrest and recovery. It is true that the witnesses could not disclose the details of the cases who were investigated by the arresting officer but the non-disclosure of the cases or their particulars does not weaken the prosecution case. It was also disclosed by the witnesses that they had given their search to another be- fore searching the appellants.
21. P. W. 3 S. I. Asha Ram Verma, I. O. of the case, testified that after receipt of the report of chemical examiner, he submitted charge-sheet against both the appellants.
22. On the other hand, accused examined D. W. 1 Dori Lal, who testified that the police personnel visited the house of his co-villager Santosh and S. I. Babban Singh arrested both the appellants from the house of Santosh. It appears that Dori Lal being a close neighbour of Santosh, came forward to help the appellants but he could not help and could not face the test of cross-examination.
23. It was urged on behalf of the State that there was no question of compliance of provisions of Section 50 of the Act. I find force in this contention. Since there was no prior information and the arrest and recovery was made all of a sudden, there was no question of apprising the appellants of their valuable right conferred by Section 50 of the Act. So far as the compliance of the provisions of Section 57 is concerned, H. C. Khayali Ram disclosed that superior officers were informed about the arrest and seizure of Charas within an hour. I further find from perusal of the Chik report (F. I. R.) also that the original F. I. R. reached in the office of Circle Officer, Ghatampur on 13-11-1992 who forwarded it to the Court of Magistrate. It means the F. I. R. containing full particulars of arrest and recovery of Charas had reached the office of Circle Officer who signed the same and put the date also. It was held by the Apex Court of the Country in Sajan Abraham v. State of Kerala (2001)2 JIC 632 : (2001 Cri LJ 4002) (SC) that in a case where communication to the immediate superior officer was not made in the form of a report but F. I. R./documents containing particulars of the arrest and seizure of contraband article were sent to the superior officers after registration of the case at the police station, this constitutes substantial compliance of Section 57 of the Act and no prejudice was caused to the accused. It is noteworthy that the provisions of Section 57 of the Act are not mandatory.
24. From the above discussion and scrutiny of the evidence on record, it is not possible to conclude that both the appellants were apprehended by the police from the house of Santosh as pleaded by them and enmity of the appellants could not be proved by reliable evidence. I hold that the prosecution succeeded in bringing home the charge against the appellants by reliable and convincing evidence and, as noted above non-production of the arresting officer is not fatal. Consequently, I hold that the learned trial Judge committed no error in evaluation of the evidence led by the parties and rightly found both the accused guilty for carrying Charas without any licence or permit.
25. In view of the aforesaid finding, I find no infirmity in the impugned order. Accordingly, present appeal fails and has no merits and is hereby dismissed. The appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They shall be taken into custody forthwith to serve out the sentence. Compliance report shall be sent to this Court within six weeks from the date of receiot of a copy of the judgment.