ORDER R.C. Chopra, J.
1. This appeal under Section 374 of the Code of Criminal Procedure is directed against a judgment dated 11.7.1995 passed by the Special Court under Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act") where by the appellant was convicted under Section 15 of the Act and was sentenced to undergo RI fora period of ten years and a fine of Rs. 1 lakh, in default further RI for a period of one year. The appeal was beyond the period of limitation, but upon an application moved on behalf of the appellant, the delay in filing of the appeal was condoned vide order dated 8.5.1996. Since the appeal was through Jail, Ms. Babita Punia, Advocate was appointed amices Curiae for assisting the Court.
2. I have heard leaned amices Curiae and learned counsel for the State. I have gone through the records.
3. The prosecution case is that on 20.1.1994 at about 12.30 p.m., ASI Ramjit Singh of Police Station Railway Main was on patrol duty at platforms No. 12 and 15. He received a secret information that a person with poppy powder was present at the platform No.7 and was likely to move out in a short while. This information was reduced into writing. Thereafter the ASI associated one public witness Ashok Kumar in the raiding party. At about 12.15 p.m. appellant came through stairs and on the pointing out of the informer, he was apprehended. ASI informed him about the secret information and told him that in case he wanted, he would be produced before a Gazetted Officer or a Metropolitan Magistrate for search, but the appellant declined. A notice under Section 50 of the Act was given to him. SHO as well as ACP were called at the spot. In their presence the bundle of cloth, which was being carried by the appellant, was checked and it was found to contain 18 kgs. of poppy powder. Half kilogram was taken out as sample. The sample as well as the remaining powder were put into different parcels and were sealed with the seals of RJS and SN, the seals of ASI and SHO. CFSL form was also filled up and the mark of seals was put thereon. Both the seals were handed over to the public witness. The case property and CFSL form were taken into possession vide Recovery Memo and a Rukka was sent to Police station for registration of the case. The case property was deposited in the Malkhana. The sample was sent to Chemical Examiner, who gave his report that the sample was of poppy straw. After necessary investigations, a challan was filed in the court.
4. A charge under Section 15 of the Act was framed against the appellant, to which he pleaded not guilty and clamined to be tried.
5. In support of its case, the prosecution examined P.W.1, who proved the Rukka (Exhibit P.W.1/A) and copy of the FIR (Exhibit P.W.1/B). P.W.2 O.P.Tiwari, ACP (Crime) deposed that on receipt of the information, he reached the spot and found that the appellant had been apprehended. In his presence, gathri of the appellant was searched and it was found to contain poppy powder, which was 18 kgs. In his presence, sample was drawn and after sealing of the sample and the case property, seals were handed over to public witness Ashok Kumar. In his cross-examination, he admitted that he had not signed any of the memos prepared at the spot. He also stated that the notice under Section 50 of the Act was given to the appellant in his presence, but this fact was not stated by him in his statement under Section 161 Cr. P.C. Head Constable Asif Ali, P.W.3 was working as Moharrar Head Constable, Malkhana on 20.1.1994. He deposed that two parcels sealed with the seals of RSJ and SN were received by him along with the CFSL form, which were deposited in the Malkhana after necessary entries. On 2.2.1994, the sample parcel along with the CFSL form was sent by him to CFSL, Chandigarh and on 22.3.1994, result was received. According to him, nobody had tampered with the case property or the sample so long as it remained in his custody. In his cross-examination, he was confronted with his statement under Section 161 Cr. P.C. (Exhibit DX) in which it had not been recorded that the seals were affixed on the pulandas. He had not stated that the CFSI form was also deposited along with the case property. Constable Hans Raj, P.W. 4 deposed that at the time of apprehension of the appellant and recovery of the contraband, he was present along with the ASI Ramjit Singh. He fully supported the prosecution case and deposed that in his presence, contraband was recovered from the appellant from which a sample was drawn and thereafter the remanning poppy powder and the sampled were sealed. He had taken the Rukka to the police station for registration of the case. His signatures were present on the secret information (Exhibit P.W.4/C), Personal Search Memo (Exhibit P.W.4/B), Notice (Exhibit P.W.4/D) and the Recovery Memo (Exhibit P.W. 4/A). He identified the poppy powder (Exhibit P2), which was recovered from the appellant in his presence. In his cross-examination on behalf of the appellant, he stated that the informer had accompanied them up to the place where the appellant was found coming. He admitted that so many persons were available at the spot, but the Investigating Officer had not noted down the names and addresses of those, who were not willing to join the raiding party. SHO and ACP had arrived the spot at about 1.50 p.m. He had brought the scale and weights for weighing the poppy powder. After delivering the Rukka at the police station, he had come back to the spot at about 2.35 p.m. and till then, the SHO and ACP were present there. He stated that SHO and ACP had left the spot at about 3.00 p.m. He admitted that in his statement under Section 161 Cr. P.C. at one place, Word 'AJS' was written. He denied that he was not present at the spot and he was deposing falsely. Constable Jagdish, P.W.5 proved the D.D. entries regarding the departure of ASI Ramjit Singh and Constable Hans Raj on patrol duty at about 11.45 a.m. He had also recorded the D.d. entry regarding the apprehension of one person at the platform at about 12.15 p.m. He had taken the sample parcel to CFSL, Chandigarh along withe the CFSL form. He stated that so long as the parcel remained with him, it was not tampered with. Nothing important could be brought out in his cross-examination. ASI Ramjit Singh, P.W.6 is the Investigating Officer. He deposed in detail in regard to the apprehension of the accused and the recovery of the contraband from him. He also proved on record the notice, Recovery Memo, Rukka, Personal Search Memo, secret information as well as the site plan (Exhibit P.W.6/A). He also proved on record the report of CFSL (Exhibit P.W. 6/B) and stated that after completion of the investigations, the challan was filed in Court. In his cross-examination, it came out that public witness Ashok Kumar could not be traced out inspite of best efforts. He admitted that none of the memos was signed by ACP. According to him, ACP had left the spot at about 2.45 p.m. and after about 10-15 minutes, SHO had also left the spot. He denied the suggestion that the appellant had been falsely implicated in this case. ACP Satinder Nath, P.W.7 deposed that on 20.1.1994, he was posted as SHO at Police Station Railway Main Delhi. At about 1.00 p.m. Constable Hans Raj came to his office and informed him that ASI Ramjit Singh had apprehended a person at the stairs of platforms No. 12-15, who was in possession of poppy powder. This information was passed on to O.P.Tiwari, ACP on telephone and thereafter this witness as well as O.P.Tiwari reached the spot simultaneously. In their presence, the bundle which the appellant was carrying, was opened and it was found that it contained poppy powder. On weighing, it was found to be 18 kgs. A sample was drawn and sealed by the Investigating Officer in the presence of this witness. Recovery Memo (Exhibit P.W. 4/A) was bearing the signatures of this witness. This witness also identified the gathri (Exhibit P1), poppy powder (Exhibit P2) and black polythene paper (Exhibit P3) and stated that these was the same, which were recovered from the appellant. In his cross-examination, he admitted that the ACP had not signed any memo. According to him also, public witness was not traceable. He stated that he had remained at the spot till about 2.00 p.m. According to him, ACP had left the spot before him. He denied that the appellant had been falsely implicated in this case.
6. After the close of prosecution evidence, the appellant was examined under Section 313 Cr.P.C. He denied the prosecution case and stated that he had been falsely implicated. He did not lead any evidence in defense.
7. Learned trial Judge, upon scrutiny and appreciation of the evidence on record, held that the prosecution had succeeded in proving that the appellant was found in possession of 18 kgs. of poppy powder and as such, held him guilty under Section 15 of the Act. After hearing him on the point of sentence, the sentence as detailed above was awarded.
8. Learned counsel for the appellant has vehemently argued that the prosecution case cannot be held to be proved beyond shadow of doubt in as much as the only witness, who was allegedly joined in the raiding party, has not been produced before the trial Court. It is submitted that the testimonies of official witnesses cannot be relied upon in the absence of independent corroboration. It is true that in such serious offenses, the testimony of an independent witness is of great help to the Court for ascertaining the truth of prosecution version. but the non-availability of the public witness during trial for the reasons beyond the control of the prosecution cannot be made a basis for drawing any adverse inference against the prosecution. In the Present case, testimony of the Investigating Officer and other witnesses satisfactorily establishes that a public witness was associated in the raiding party while some others, who were requested by the Investigating Officer to join the party, declined to do so. The factum of joining a public witness in the raiding party was a bonafide discharge of the statutory duty cast upon the Investigating officer. The prosecution could not produce the public witness before the trial Court for the reason that he was not traceable at the given address. No suggestion was given to any prosecution witness that this public witness was a fictitious person or was not being produced deliberately and as such, no adverse inference can be drawn against the prosecution case on account of non-production of the public witness.
9. The law is well settled that the testimony of a witness cannot be discarded merely on account of the fact that he happens to be an official witness. The only requirement of law is that testimony of an official witness should be scrutinised with care and caution before acting upon the same. Therefore, in case the testimonies of the official witnesses produced by the prosecution in this case can stand scrutiny and the Court comes to the conclusion that the same are reliable and trust worthy, there would be no impediment in acting upon the same for holding that the prosecution has proved its case.
10. Learned counsel for the appellant has submitted that O.P.Tiwari, ACP, P.W.2 had not signed any document prepared at the spot and as such, his presence at the spot is doubtful. It is also submitted that in his statement under Section 161 Cr.P.C. (Exhibit DX), he had not stated that the seals were affixed on the parcels in his presence. The mere fact that the ACP had not signed any document prepared at the spot, is not enough to hold that he was not present at the spot for the reason that everybody present at the spot was not expected to sign the document being prepared by the Investigating Officer because the documents have to be attested by one or two witnesses and not by all. The omission in his statement under Section 161 Cr.P.C. to say that the Parcels were sealed in his presence cannot be taken as a contradiction and as such, there are no good grounds for holding that this witness was not present at the spot. Minor contradictions regarding the time of departure of the witness from the spot are inconsequential.
11. It is also argued that the presence of FIR number on Recovery Memo (Exhibit P.W.4/A), Memo of Personal Search (Exhibit P.W.4/B), secret information (Exhibit P.W.4/C) and notice under Section 50 of the Act (Exhibit P.W.4/D) clearly shows that these documents were prepared only after registration of the FIR and as such, the entire prosecution case is false and fabricated. This contention cannot be accepted for the reason that no prosecution witness including the Investigating Officer was cross-examined by learned counsel for the accused on this point. No suggestion was given to the Investigating Officer that these documents were prepared only after registration of the FIR and for that reason, FIR number came to be mentioned at the top of these documents. Possibility cannot be ruled out that the Investigating Officer mentioned the FIR number on these documents with the same pen, with which he had prepared these documents, after receipt of the formal FIR from the police station and therefore, it cannot be held that the said documents are manipulated or fabricated and the prosecution case is false.
12. After considering the prosecution evidence and the documents proved on record including the report from CFSL (Exhibit P.W.5/B), I am of the considered view that the prosecution has succeeded in proving on record that 18 kgs. of poppy straw was recovered from possession of the appellant on 20.1.1994, as alleged. The findings of the trial Court in this behalf are well founded and suffer from no infirmity whatsoever. The impugned order of conviction under Section 15 of the Act, therefore, call for no interference.
13. The impugned sentence, imposed upon the appellant by learned trial Court, was the minimum prescribed under the Act and as such, cannot be interfered with.
14. In view of the forgoing reasons, this Court is of the considered view that the appeal has no merit. The impugned judgment of the trial Court is upheld. The appeal stands dismissed.