JUDGMENT G.S.N. Tripathi, J.
1. This appeal is directed against the judgment and order dated 2-3-1996 passed by the 1st Addl. Sessions, Judge, Varanasi in S.T. Cr. Case No. 635 of 1993, State v. Tasawwar Ansari, whereby the learned trial Court has convicted the accused aforesaid under Sections 21/27-A of the N.D.P.S. Act and sentenced him to undergo 10 years' R.I. on each count and to pay a fine of Rs. 1 Lakh. On failure to pay the fine, two years' additional imprisonment shall have to be undergone by the accused. Both the sentences shall run concurrently. He has also been directed that a free copy of the judgment shall be made available to him.
2. The case of the prosecution is that Sri R. K. Lal, Excise Inspector, Narcotics Control Bureau, Varanasi accompanied by Sarva Sri R.K. Singh, Lallan Tewari, V.K. Singh, R.K. Srivastava, S.N. Tripathi, Gupteshwar Singh and Rajendra Pathak, after receiving an information that a person Tasawwar Ansari, r/o House No. 2/ 159, Ward No. 2, P.S. Sayeed Raza, Distt. Varanasi, who is indulging in the illegal trade of Narcotics goods, had stored the Narcotics properties in considerable quantities at his house, raiding the house of the accused aforesaid. Public witnesses like Sarvashri Kapil Deo Sharma and Ram Kr. Singh, r/o of the same village were called and requested to witnesss the search of the house of the appellant. After receiving a knock at the door, the appellant Tasawwar Ansari came out. The aforesaid party members; introduced to him and also disclosed the reasons for which they had assembled there. Before entering into the house of the appellant, this party asked him to ensure that no illegal narcotics goods were in possession of any one of them and he could satisfy himself by taking physical search. But the accused declined.
3. Thereafter, in the presence of the aforesaid public witnesses, the search of the house of the accused started. In the Almirah of the accused, Pass Book Account No. A55/2787 of Bank of Baroda, in the name of the accused and another Pass Book No. 5/111 of Bank of Baroda, in the name of Sri Rahmatullah Ansari, the father of the accused, were recovered. In the Ist Pass Book, in all Rs. 28,350/- and in the IInd Pass Book a sum of Rs. 12,550/- stood deposited. In the same Almirah, a balance (Taraju) and weights of 100 Gms: 10 Gms. and 5 Gms. were recovered. No other illegal goods were recovered. In the Varandah of his house, one Vespa Scooter No. UP 65B/9558 was standing. A search of the scooter was taken, the key of which was supplied by the accused. He opened the dicky of the scooter. But nothing incriminating was recovered. Then Sri R.K. Lal aforesaid asked the accused to open the look of the oil tank of the said scooter. On this request, the accused was perplexed. But he was requested repeatedly to open the same. He did accordingly. In the petrol tank, there was a cavity containing one polythylene Bag which was recovered, in which some powder of grey colour was placed. On being questioned, the accused admitted that it was Heroin. The field test machine was being carried by the raiding party and, therefore, on the spot, this Grey object was (jested and the report was positive that it was Heroin. The person of the accsuesd was searched after being informed that he could get himself searched before a Gazetted Officer. But the accused declined his request as well. On his personal search, nothing incriminating was recovered. The object was weighted on the spot. It was found to be 144 Gms. From it, two samples of 5 Gms. each were taken and sealed on the spot. Memo was prepared. The remaining 139 Gms. of Heroin was also sealed on the spot separately. Memo for that was prepared, which was signed by the accused as well as the witnesses present there
4. On further interrogation, the accused admitted that this heroin was given to him on 17-3-1993 by one Ayub near Kashi Railway Station in Varanasi. Ayub was a professional trader of Heroin and Narcotics goods for several years. From the income of this illicit trade, he had purchased land and had built a very palatial house. The Scooter UP 65B/9558 from which the Narcotics goods were recovered, was being utilized for this illicit trade and therefore, that too had been taken in possession by the raiding party along with two pass books, balance, weights etc. These Articles were also separately sealed and memo was prepared thereof. The key of the scooter was also taken in possession. The memo was prepared and that is Exhibit Kal, treated as a F.I.R. in this case.
5. The charges were framed against the accused. He pleaded not guilty.
6. The prosecution examined the following evidence in support of its case.
7. P.W. 1 Sri. R.K. Lal, Head of the Raiding party has narrated the entire prosecution story as noted above.
8. P.W. 2 Sri V.K. Singh and P.W. 3 Sri K.D. Sharma are the other witnesses of fact.
9. The accused has deneid the allegations and facts alleged against him. In his statement under Section 313, Cr.P.C, he has admitted the possession of two pass Books noted above. But has denied the recovery of balance and weights. He further denied that any Heroin was recovered from his scooter. The public witneses were pressurised to depose against him. The scooter aforesaid was used by all the members of the family without any resriction. There is no cavity in the sco6ter. The accused, was, in fact, arrested from the market and a false case has been planted against him. The accused did not adduce any evidence in his support.
10. After evaluating the entire evidence and circumstance on the record, the learned trial court came to the conclusion that the prosecution version was correct. He, accordingly, convicted and sentenced the accused as noted above.
11. In this appeal, the learned counsel has mainly pointed out that the prosecution case is not correct and the Heroin has been planted on account of enmity. Thereafter, he argued that the legal formalities were not observed by the raiding party.
12. I have heard the learned counsel for the parties at a stretch and gone through the record. I find that there is no force in this appeal and it deserves to be dismissed.
13. The learned trial court has analysed the entire evidence and circumstances on the record and has come to a correct conclusion that on 17-3-1993, the house of the accused was raided by the Narcotics Bureau Officers and proper searches were made of his house, Almirahs as well as scoooter of the accused. Specially it has been stressed that the key of the scooter was supplied by the accused himself to the Bureau authorities and he unwillingly opened the scooter, in which a cavity was detected, from which 144 gms. of Heroin was recovered. The memo for that was prepared on the spot. According to the prosecution, the value of this Heroin was about 15 Lakhs in the internatioinal market. According to the prosecution, it has been further established that all the documents were prepared on the spot, which also bear the signatures of the accused. In fact, seriously the factum of recovery has not been challenged in this case. The main reliance has been placed upon the fact that certain provisions of N.D. P. S. Act has not been followed, which was mandatory in nature. Therefore, the benefit of that should go to the accused. I do not find any substance in these objections. But before actually dealing with these objections, I wish to analyse other evidence on the record, on the basis of which the prosecution has been able to prove its case.
14. The Report of the Expert, Exhibit Ka 9, is available on the record. It does not require to be proved formally in view of the provision contained in Section 293 of the Code of Criminal Procedure. Earlier to that, the field test machine was carried by the raiding party and with the help of it, it was prima facie established that the disputed Article recovered, comes under the provisions of N.D.P.S. Act as it was Heroin. Not only this, the accused in his statement under Section 313, Cr.P.C. has not challenged this fact that the recovered Article was Heroin. In the cross-examination of the two eye witnesses this fact has not been seriously disputed.
15. The accused had made a statement in his own hand writing at the spot about the recovery of this Article. Sri K.D. Sharma, a public witness has also written this fact in his own hand writing. Therefore, I do not agree with the learned counsel for the appellant that the recovered Article was anything other than Heroin. Simply because at a later stage the accused as well as Mr. Sharma have tried to resile from their statements written in their own hand writing, the case of the prosecution cannot be brushed aside. The learned trial Court has rightly rejected this plea. Immediately after the recovery and lodging of the F.I.R., these two persons did not complain against the conduct of the raiding party although after a considerable lapse of time, it was so chosen by these two persons to deny everything and allege that their signatures had been forcibly obtained in the documents by the raiding party. I do not find any substance in this argument advanced by the learned counsel. The theory set up by the accused is totally false and an after thought.
16. Sri K.D. Sharma in his affidavit dated 29-3-1993 after nearly 12 days, sent to the authorities, complained that he was forcibly taken to the place by the Excise Officers and his signatures were obtained on such documents. Not only this, he was forced to write some documents in his own hands. It appears that all these things were cooked up after the accused was released on bail in consultation with some legal brains. So is the case with the complaint (Annexure 4) sent by the accused on the same date. Thus these delayed explanations were given simply with a view to cause confusion in the correctness of the prosecution case. The raiding party did not comprise of police officers. Therefore, use of force by this party upon the accused does not appear to be natural. Sri Lal in his statement on oath has detailed the manner in which the accused wrote Exhibit Ka 2 and Exhibit Ka 3, in his. own hand writing, which has been proved by Sri Lal. These statements are admissible in evidence against the accused. After these things were over; Sri Gupteshwar Singh, amongst the party, formally arrested the accused and prepared the memo Exhibit Ka 5, He has also proved the entire process right from the beginning of the receipt of information till the culmination of writing of the F.I.R. and information sent to the officers.
17. In the cross-examination dated 10-8-1994, Sri Lal has admitted that no I.O. was appointed nor it was deemed essential. Therefore, formality of investigation was done by him as Well pro-tected by law. There was no necessity of writing his own statement. He sent information to the higher authorities of the department. Therefore, the question of recording his own statement or that of higher authorities, to whom information was sent, was not essential. As per prosecution too, two public witnesses were available including Sri K.D. Sharma, who has been examined in this case. The question of multiplying the witnesses, did not arise nor it was deemed essential. Details regarding the personal features of the accused and witnesses were asked by the learned counsel for the accused during the course of cross-examination. It is not possible for any person to remember such specific features of any person after lapse of time. That is why he had denied at page 11 that he did not recollect as to whether anyone of the witnesses had only one eye.
18. At page 12, he says that on 18-3-1993, he had received an information regarding the possession of Heroin by the accused. He immediately sent the information to the higher authorities. This statement cannot be challenged seriously.
19. At page 12 at the bottom, he admits that he had received information in the office of D.I.C. Colony at Varanasi on 10-3-1993 at about 5 p.m. and exactly 11 1/2 hours thereafter, he proceeded for the spot by the departmental Mini Bus No. UP 65-3203, entry of which was made there in the log book of the department.
20. A very technical question was put that the expert had received the goods duly sealed and on that basis, he examined the Article and came to the conclusion that it was Heroin. But there is no legal flaw in it.
21. Similarly, a very insignificant question was put as to why it was not mentioned in the memo that 5 gms of sample were taken from the recovered Article. This is meaning less.
22. At page 15, he admits that only the accused and his wife resided in the house, when it was raided by him. Neither his parents and any other member of his family was residing therein. He examined the documents relating to the ownership of the scooter in dispute. Whether the cavity was below the petrol tank or by the side of it, was another point of objection raised at page 16 of the cross-examination. He has denied the suggestion that the accused has been falsely implicated in order to extort illegal gains from him. It is difficult to believe. The allegation of enmity so called against Sri R.K. Lal, has also been denied by him as being totally unfounded and baseless.
23. P.W. 2 Sri V.K. Singh, Inspector, Central Excise, Mirzapur was posted as an Intelligence Officer on the date of occurrence. He has given a very strong support on the facts of search and recovery and, preparation of documents etc. on the spot. He has clearly stated at page 2 that the key of the scooter was provided by the accused himself, which he had kept in the Kurta, worn by him. Once the dicky was opened, nothing was found therein. But when the raiding party insisted upon the opening of petrol tank, the accused hesitated. By the side of that tank, there was a small cavity, from which the disputed Article was recovered. It was tested on the spot and other formalities were observed. Actually formal arrest of the accused was effected at about 12 noon and, thereafter, he was produced before the remand Magistrate. The copies of the documents prepared, were sent to the Dy. Director Sri K. K. Jha in Varanasi itself. Similarly, an insignificant question of cross-examination was put to this witness also as to why did he not mention in the complaint that only 5 gms. was taken as a sample for test. No information regarding the proposal to raid the house of the accused, was received by him on 19-3-1993 at about 4.30 a.m. from Mr. Lal. It means that it was kept as a top secret so that the information might not leak out. That is why, minimum time was given to these witnesses to get ready for search. It was urged that there was nothing to conceal from this witness and Sri Lal could not have slept over the matter without co-sharing this information with any body else. I do not think there is any point therein. But one thing is there. The moment the informaiton was given from on person to other, there are many changes of the purpose being frustrated. The smugglers in such goods are very moneyed and wealthy people. There is a lot of resources and influences with them. Therefore, maximum secrecy was observed as it should be. Hence, it cannot be said that the story given by Sri Lal, P.W. 1, is not correct or he should not have concealed the matter upto 4.30 a.m. on 19 -3-1993 from P.W. 2, when he was taken up from his residence. Earlier to that Mr. Jha, D.I.G. of this Bureau had simply asked that witness to be present at about 4.30 a.m. and he abided by that. On which direction the house of accused opens, was a question put up at page 6. The witnesses has said that he cannot recollect. The incident is of 19-3-1993, The statement of this witness was recorded on 23-3-1995 i.e. two years after the incident. "Human memory is a treacherous friend" observed by Oscar Wilde long ago. Therefore, if this witness did not correctly recollect about the direction of door of the house of the accused opening in a particular direction, it will not be fair to say that he did not tell the truth. Committing raids, making recoverises etc. are the daily routine of the office of the department. Therefore, in between 1993-95, several raids could have been made by these witnesses. Hence it was quite natural for them to have forgotten such an insignificant thing. He has also said at page 6 that the recovered goods were lying in the cavity by the side of the petrol tank in the scooter. This is an insignficant contradiction and the learned trial court has. rightly ignored it. I ditto the finding.
24. At page 7, he says that he does not recollect the Huliya and specific features of the public witnesses. That is quite natural. The formal arrest was made by Sri Gupteshwar Singh, of the accused. No person had received any injury during the course of the raid. This way, after a threadbare analysis of the statement given by this witness, supporting the statement of Sri Lal, PW. 1, I find that the only reference which can be drawn is that the accused's house was raided by the team of N.D.P.S. Bureau and the disputed Article i.e. 144 Gms. of Heroin was recovered from his scooter, exclusively owned and possessed by him. Both the witnesses have given a uniform version on all these major points. Hence I find that the learned trial court has given cogent reasons in accepting their statements.
25. P.W. 3 Sri K.D. Sharma is a public witness. He has denied that he was taken by the raiding party on 19-3-1993 in the morning to the house of the accused. The documents bearing his signatures and writing, were shown to him. He admitted that they are in his own writing and have been signed by him (Exhibits Ka 3 and Ka 11). But he says that these documents were got scribed at the dictation of the authorities and under duress. In fact, in the cross-examination, at page 3, by the learned counsel for the accused, he says that his hand were forcibly caught by the authorities and he was compelled to write whatever they dictated. He admits that he resides in the same Mohalla in which the accused resides. He did not complain to the higher authorities regarding the force exercised upon him by the raiding party for obtaining these documents. It simply shows that he has been won over by the accused on account of multiple considerations, including one that he belongs to the same neighbourhood. Therefore, the original statement given by the witness before the raiding party, appears to be reliable as it is in his own hand writing. Hence, the witness has tried to resile in the court below. But his trick should not be allowed to succeed. He is a person, who has either been purchased or coerced to resile from his earlier statement made in his own hand-writing before the witnesses PW 1 and PW 2. The learned trial Court has rightly concluded that the effort of Sri K.D. Sharma to damage the prosecution case, should not be allowed to succeed. I agree with this approach.
26. This way, this fact is proved that on 19-3-1993 around 6 a.m. from the possession of the accused, 144 Gms. of Heroin was recovered by the PW 1 and PW 2. The documents were prepared on the spot, duly signed by the accused as well as witnesses and the allegation of use of force by the authorities, is baseless and has been rightly rejected by the learned trial Court. I agree with the findings of the learned trial Court.
27. Some formal objections have been raised for non-compliance of certain provisions of the N.D.P.S. Act and have been seriously dealt with by the learned trial court at pages 8 and 9 of his judgment by specifically mentioning the issues involved.
28. The power of entry, search, seizure and arrest without warrant or authorisation upon the departmental authorities, has been conferred by Section 42 of the N.D.P.S. Act, as such acts are matters of emergency. The authority, which receives information cannot delay and he may enter into and search any such building, conveyance or place at any time between sun set and sunrise after recording grounds of his belief. In Sub-section (2), the information has to be sent forthwith to the official superior. That has been done in this case. So the allegation of violation of Section 42 does not arise.
29. Section 50 of the Act deals with the search of the person and not resident. It has also come in the evidence of Mr. Lal that an effort was made with the accused that he could get himself searched in presence of the Gazetted Officer or the Magistrate. But the accused declined the request. So, there has been a compliance of Section 50 also.
30. As regards the provisions of Section 57 of the Act, a full report was made to the higher authorities within 2 hours of the arrest, as the accused was produced before the Magistrate along with all the relevant documents. It has also been proved that an information was sent to Sri Jha, D.I.G. of the department without loss of time. Hence the relevant provisions of the Act to safeguard the interest of the accused, have been complied with in letter as well as in spirit. Therefore, the learned counsel's arguments that the requisite formalities of the Act, have not been observed, does not hold water. It is, accordingly, rejected.
31. The accused has taken a flimsy defence that Sri Lal had purchased some goods from his father's shop and had not paid the price. On demand, he was infuriated and threatened to harass the accused. It is difficult to believe as there is no plausible evidence on the point from the side of the accused, either separately or in the shape of cross-examination of the PWs. Hence this allegation has rightly been rejected by the learned trial Court.
32. In these days, totally unconcerned people do not dare to appear against criminals as they have a lot of financial as well as political patronage available to them. Such smugglers are invariably armed and then can take revenge against such public persons without hesitation. That is why, finally, the public witnesses avoid to support the prosecution case. If at all they agree at the time of raid, search etc., they try to resile from the same in trial Court as is evident from the statement of Sri K.D. Sharma, PW 2. The departmental witnesses cannot be seen with an eye of suspicion specially, when they have no anterior enmity with the accused and they are doing their official duties. If such a cynical view is taken every person shall become interested and the departmental witnesses will have to be thrown away without any rhyme or reason. This is not law of the land. The law is that the departmental witnesses perse are no got up witnesses and their evidence cannot be discarded simply because they are people of the department. Doing ones official duty is not a crime. Therefore, the question of seeing the statement of these witnesses with an eye of suspicion is unreasonable, unworkable and is totally illegal in approach. The Hon'ble Supreme Court has rightly rejected the plea that the departmental witnesses should always be seen with an eye of suspicion. Rather the law is that their evidence should be seen with a caution and the evidence should be analysed and examined very thoroughly. But once it is found that the presence of such departmental witnesses is established and they are telling the truth, that shall be utilised as a valuable piece of evidence and conviction can be based upon that.
33. This way, when I have analysed the evidence on the record, I find that though both PW 1 and PW 2 are departmental witnesses but they are not interested witnessses and they have told the truth and nothing but truth and they should be congratulated for that. With a great personal risk to their families, lives and properties, these witnesses have mustered courage to support the prosecution case. I think, such officials and officers should be encouraged to discharge their duties without any fear or favour.
34. At pages 20 to 24, the learned trial Court has dealt with the entire law up to date right from the Balbir Singh's case to Laxmi Narain's case. I find that the analysis of the rulings, which have also been set forth before me also, has been correctly dealt with by the learned trial court and after intensive study, I find that no mandatory provisions of law has been violated by the raiding party. So the question of rejection of the evidence of these witnesses (officers), PW 1 and PW 2 does not arise. As the smugglers of Narcotics goods are breaking the back-bone of the country by weakening the populace at large for their selfish gains and further as a paralleled economy has been set up by such Mafias, the court has to take a very strict view in such matters. Therefore, the learned trial Court, after taking the entire evidence and circumstances on the record, has awarded only minimum sentence as desired by the law. So, the question of further softening the sentence, does not arise.
35. The appeal, thus, fails and, is dismissed accordingly. The accused is already in Jail.