Raj Kumar Savita vs Union Of India (Govt. Of India) New ...
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HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

									A.F.R.
 
Reserved
 
Court No. - 33
 

 
Case :- CRIMINAL APPEAL No. - 943 of 2013
 
Appellant :- Raj Kumar Savita
 
Respondent :- Union Of India (Govt. Of India) New Delhi
 
Counsel for Appellant :- S.R. Yadav,Ayodhya Prasad Mishra,Randhir Singh
 
Counsel for Respondent :- I.B. Singh
 
Connected 
 
Case :- CRIMINAL APPEAL No. - 688 of 2013
 
Appellant :- Gopal Verma @ Teetu
 
Respondent :- Union Of India Thru. Directorate Of Revenue Intelligence
 
Counsel for Appellant :- A.P. Mishra
 
Counsel for Respondent :- I B Singh,Digvijay Nath Dubey
 

 
Hon'ble Virendra Kumar Srivastava,J.

1. Both the Criminal Appeals have been filed under Section 374, Code of Criminal Procedure, 1973 (hereinafter referred to as 'Code'), against the judgment and order dated 01.04.2013, passed by the Additional Sessions Judge, Court No.8, Lucknow, in Criminal Case No.431 of 2010 (Union of India Through Shri Brijendra Singh Sodhi, Intelligence Officer, Directorate of Revenue Intelligence, Lucknow Zone vs. Raj Kumar Savita and another), whereby the appellant-Raj Kumar Savita of Criminal Appeal No.943 of 2013 and the appellant-Gopal Verma @ Teetu of Criminal Appeal No.688 of 2013 have been convicted and sentenced for ten years rigorous imprisonment with a fine of Rs. One Lakh, each for offence under Section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as N.D.P.S. Act) with further direction that in default of payment of fine the appellants have to undergo one year each further imprisonment.

2 Since both the criminal appeals have been filed against the same judgment and order passed by the trial Court, both the appeals have been heard together and are being decided by this common judgment.

3. The prosecution case, in a nutshell, is that on 20.6.2010, at about 3.00 p.m., a secret information was received by Sunil Kumar Singh, Deputy Director, Directorate Revenue Intelligence, Zonal Unit, Lucknow (hereinafter referred to as 'D.R.I.") that huge quantity of Hashish (Charas) was being transported from Raxaul (Bihar) to Bharthana (Etawah, U.P.) by two persons in Maruti 800 car white colour, bearing registration no.U.P.80/AE 6792. The said information was conveyed to Ravindra Kumar Tewari (P.W.-2), Intelligence Officer, D.R.I. and Karunesh Srivastava (P.W.-1), Intelligence Officer, D.R.I. and a team, comprising of Ravindra Kumar Tewari (P.W.-2), Karunesh Srivastava (P.W.-1), Ashutosh Dixit, Intelligence Officer, D.R.I. and Ajeet Kumar, Sepoy D.R.I., was constituted with direction to intercept the said Maruti car, in order to search and recover the said contraband charas, transported in the said car. The team, headed by P.W.-1, also contacted two public witnesses, Sri Sajid Ali and Rinku Kumar Yadav, present near the main gate of City Montessory School near D.R.I. office and disclosed the said information to them and requested to accompany the team as witnesses in the proposed action of interception and recovery of the charas, whereupon both of them agreed. Thereafter, the team, headed by P.W.-1 along with aforesaid officers of D.R.I. and public witnesses, reached at 4.15 p.m. near Babu Banarsi Das Engineering College, at Faizabad Road, Lucknow (hereinafter referred to as B.B.D.) in a private hired taxi, stopped it near speed breaker and began to wait the said Maruti car. At about 8.30 p.m. on 20.06.2010, white colour Maruti 800 car was seen, coming from Faizabad side and when the said car as slowed down due to speed breaker, it was seen and found to be Maruti car bearing registration No.U.P.-80/AE 6792. Thereafter, the said car was intercepted and signaled to stop by P.W.-1 and other officers. As and when the car slowed down and stopped, P.W.-1 and other officers rushed towards the said car and found that two persons were sitting in it, they were informed by P.W.-1 and other officers of D.R.I., the purpose of their interception and it was also disclosed to them that since a secret information had been received that they were transporting huge quantity of charas, secreted in the said Maruti car, search of the car was to be conducted. Upon query the driver of the said Maruti car introduced himself as Raj Kumar Savita son of late Arun Kumar whereas other co-passenger introduced himself as Gopal Verma @ alias Teetu son of Jagdish Narayan Verma, both resident of Bharthana District- Etawah.

4. During inquiry, both the appellants admitted that charas had been kept and secreted in the said Maruti car. Before conducting the search, the appellants were apprised their rights by written notice/letter (Ex.Ka.-1 and Ex.Ka.-2) as to whether they want their search before any Magistrate or Gazetted Officer, both the appellants expressed their unwillingness for their search before any Magistrate or Gazetted Officer and they consented and authorize P.W-1 and other officers of D.R.I. for their search. Upon their consent, the D.R.I. team brought the appellants along with the said car, in view of safety and security aspect as the crowd started gathering, to D.R.I. office, situated at 2/31, Vishal Khand, Gomti Nagar, Lucknow, at about 9.30 p.m. Thereafter search of the said Maruti car was conducted by D.R.I. team in presence of public witnesses and at the instance and disclosures of appellant Gopal Verma @ Teetu, 73 rectangular shaped Bars (Battis) (Material Ex.-1 to Material Ex.-73) of charas (each Bar of approximate 500 Grams in weight) were recovered, which were secreted behind the panel cover of four doors, doors of dickey, back side cover of back seat and also from secret space, created in the back portion of the hand brake of the said car, which, on weighing, was found as 36 kgs. Small quantity of charas was scratched by knife from each recovered charas Bar in uniform process, mixed thereafter and four representative samples, each of 25 grams approximately, were drawn and sealed with D.R.I seal on packets, which was signed by both the appellants, D.R.I. officers and independent witnesses. The remaining charas was also sealed in other bag with D.R.I. seal and was also signed by the appellants, D.R.I. officers and independent witnesses.

5. Upon personal search of appellant Gopal Verma Rs.500/- and from appellant Raj Kumar Savita Rs.300/- were also recovered, which were returned to them. Appellant Gopal Verma @ Teetu had also told that he was by profession a goldsmith and one Babloo, resident of Bharthana District- Etawah, had told him that there might be huge profit in smuggling of charas from Nepal. He further stated that Babloo had also advised him to go to Raxaul to smuggle charas and he would cause it sold. He further stated that he had also gone with said Babloo, four months ago to Raxaul and met there with a person named Muslim, who had provided his mobile, bearing no. 9807223995 and assured him that whenever he want for delivery of goods (charas) he may talk with him. He further stated that by arranging the money he had reached on 19.6.2020 to Raxaul, met with said Muslim at 8.00 a.m. and had given Rs.45,000/- to him. He further stated that thereafter the said Muslim took his Maruti 800 car and went towards Raxaul border, assuring him that he would handover the car with loaded mall (charas) on 20.6.2010. He further stated that the said Muslim on fixed date, time and place, handed over the car after showing the charas concealed/secreted behind the door panels and hand brake of the car. He further stated that thereafter he and appellant Raj Kumar Savita arrived Lucknow from Raxaul via Sogauli, Motihari, Gopalganj and Gorakhpur, but they were caught by the D.R.I. team.

6. From the search of the said Maruti car, insurance paper (Ex.Ka.4), registration certificate (Ex.Ka.5), driving licence (Ex.Ka.6) were also recovered. According to which owner of the car was Sri Narayan Singh Chahar and said car was insured and driving licence was issued in favour of appellant Raj Kumar Savita. Karunesh Srivastava (P.W.-1) prepared recovery memo (Ex.Ka.-3), arrest memos (Ex.Ka-7 and Ex.Ka.-8).

7. Representative samples of the said contraband charas were also sent for chemical examination to the Opium Factory, Gazipur and Central Revenue Control Laboratory (CRCL), New Delhi along with required test memos along with request letter (Ext.Ka.9 to Ex.Ka.-12), prepared by P.W.-1 at the time of recovery. In addition to above, in compliance of Section 57 of the N.D.P.S. Act and information/letter (Ex.Ka.-13) was also sent to the Senior Intelligence Officer, D.R.I., Lucknow. Inventory of ceased contraband charas (Ex.Ka.14) was also prepared and the appellants were produced before Pramod Kumar (P.W.-3), Senior Intelligence Officer, D.R.I. for their statements under Section 67 of the N.D.P.S. Act, who recorded the statements of appellant Gopal Verma @ Teetu (Ex.Ka.-16) and statement of appellant Raj Kumar Savita (Ex.Ka.17). The contraband goods along with appellants were produced before the concerned Additional Sessions Judge, Lucknow on 21.06.2010.

8. Investigation was entrusted to Brijendra Singh Sodhi (P.W.-4), who during investigation inspected the place of occurrence, recorded the statement of witnesses as well as appellants and also perused the chemical examinations reports (Ex.Ka.21 and Ex.Ka.22) and after conclusion of investigation, filed a complaint (Ex.Ka.23) against the appellants before the trial Court.

9. Charges under Section 20 (b) (ii) (C) N.D.P.S. Act were framed against the appellants to which they denied and claimed for trial.

10. The prosecution in order to prove its case examined Karunesh Srivastava, Intelligence Officer, D.R.I. (P.W.-1), Ravindra Kumar Tewari, Intelligence Officer, D.R.I. (P.W.-2), Pramod Kumar, Senior Intelligence Officer (P.W.-3), Brijendra Singh Sodhi, Superintendent Custom and Excise (P.W.-4), A.P. Singh, Inspector, Central Custom Excise Duty (P.W.-5).

11. After conclusion of prosecution evidence, statements of appellants under Section 313 Cr.P.C. were recorded wherein they denied the prosecution story and evidence and stated that they were innocent and had been falsely implicated.

12. In defence the appellants did not produce any evidence.

13. Upon conclusion of trial, the trial Court, vide impugned judgment and order, convicted and sentenced the appellants as above. Aggrieved by the said judgment and order, the appellants have preferred these appeals.

14. I have heard Sri A.P. Mishra, learned counsel for the appellants and Sri Digvijay Nath Dubey, learned counsel for the D.R.I./respondents.

15. Learned counsel for the appellants has submitted that appellants are innocent and have been falsely implicated. Learned counsel further submitted that the said recovery has been made in gross violation of Sections 42, 50, 52, 55 and 57 of the N.D.P.S. Act.

16. Learned counsel further submitted that according to prosecution story, on telephonic information, instruction was received by P.W.-2 at about 3.00 p.m. on 20.6.2010 but it was not reduced in writing whereas search was made at about 8.30 p.m. and continued afterward. Learned counsel further submitted that before the search of said car, reasons and grounds of the search was also neither recorded by P.W.-2 nor was sent to his immediate superior officer. Learned counsel further submitted that superior officer i.e. Deputy Director of D.R.I. Department who got the information and gave direction to P.W.-2 to constitute a team and raid there, was also not examined by the prosecution. Learned counsel further submitted that mandatory provisions of Section 50 was also violated as the appellants were not apprised their legal right to be searched before any Gazetted officer or Magistrate because in the consent memo it has not been mentioned that appellants had right to be searched before Gazetted officer or Magistrate. Further, learned counsel also submitted that signatures of independent witnesses were also not taken on the consent memo. Learned counsel further submitted that independent witnesses Sajid and Rinku Kumar Yadav were professional witnesses, they were taken into the company of D.R.I. team, nearby D.R.I. office and no independent witnesses were taken nearby all the places of search and interception. Learned counsel further submitted that the independent witnesses were also not examined. Learned counsel further submitted that the provision of Section 57 of the N.D.P.S. Act was also not complied with because if any report was sent to S.I.O. (Senior Investigating Officer) prosecution has to produce him to prove that report.

17. Learned counsel further submitted that the recovered charas was deposited in Malkhana on 23.06.2010 whereas the recovery was made on 20/21.6.2010 and P.W.-2 had admitted that after recovery of charas it was handed over to office peon of the D.R.I. Learned counsel further submitted that provisions of Section 53 of the N.D.P.S. Act was also not complied with. Learned counsel further submitted that prosecution has also failed to prove as to when the recovered charas was sent to Malkhana because Malkhana register and Malkhana Incharge was not produced.

18. Learned counsel further submitted that at the time of recovery Karunesh Srivastava (P.W.-1) and Ravindra Kumar Tewari (P.W.-2), both were present but whole proceeding of recovery was conducted only by Karunesh Srivastava (P.W.-1), which shows that Ravindra Kumar Tewari (P.W.-2) was not present at the time of occurrence and did not make any efforts to co-operate in the proceedings.

19. Learned counsel further submitted that sample seal was required to be sent separately and not with the sample of contraband recovered charas, to chemical laboratory for analysis whereas in this case sample seal along with the sample of recovered charas was sent together. Learned counsel further submitted that photography of the vehicle/car was also conducted but neither car nor the said photo was produced before the trial Court.

20. Learned counsel further submitted that learned trial Court did not consider the evidence available on record in proper and legal manner and passed the impugned judgment and order in very cursory and casual manner, which is liable to be set-aside.

21. Per contra, learned counsel appearing for respondent/D.R.I. (Union of India) vehemently opposed and submitted that the prosecution has proved its case beyond reasonable doubt. Learned counsel further submitted that alleged huge quantity of the contraband charas was recovered from the car driven and possessed by the appellants. Learned counsel further submitted that no contraband material has been recovered from personal search of the appellants whereas the alleged search was made only after apprising the right as provided under Section 50 of the N.D.P.S. Act, to the appellants. Learned counsel further submitted that in this case provision of section 50 of the N.D.P.S. Act is not applicable as no contraband charas was recovered from the personal search of the appellants whereas huge quantity of charas, secreted in the said car, was recovered.

22. Learned counsel for respondent/D.R.I. further submitted that due information, as required under Section 42 of the N.D.P.S. Act, was given to the superior officer by P.W.-1. Learned counsel further submitted that all the mandatory provisions of the N.D.P.S. Act was fully complied with by the prosecution whereas the appellants have neither produced any evidence in their defence nor stated any thing as to whether any prejudice was caused to them by irregularity, if any, committed by the prosecution witnesses.

23. Learned counsel further submitted that the prosecution witnesses are fully reliable and trustworthy and they have fully supported the prosecution story, nothing have come out in their cross examination which creates any doubt in prosecution story. Learned counsel further submitted that prosecution story cannot be disbelieved only on account of non production of independent witnesses and other official witnesses. Learned counsel further submitted that the impugned judgment and order is legal, well reasoned, well discussed and it requires no interference whereas the appeal is liable to be dismissed.

24. In support of the aforesaid submissions, Sri A.P. Mishra, learned counsel for the appellants, placed reliance on law laid down by Hon'ble Supreme Court in State of Punjab Vs. Balbir Singh, (1994) SCC (Cri) 634, Ritesh Chakarvarti Vs. State of M.P., (2007) 1 SCC (Cri) 744, Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539, Rajinder Singh Vs. State of Haryana, (2011) 8 SCC 130, Sukhdev Singh Vs. State of Haryana, (2013) 2 SCC 212, State of Rajasthan Vs. Jagraj Singh Alias Hansa, (2016) 11 SCC 687, State of Rajasthan vs. Babu Lal, 2009 (3) JIC 612 (SC), Makhan Singh vs State of Haryana, (2015) 12 SCC 247, Mohinder Kumar vs. State, Panji, Goa, (1998) 8 SCC 655, State of Punjab vs. Gurnam Kaur and others, 2009 (2) JIC 267 (SC), State of Rajasthan vs. Tara Singh, 2011 (11) SCC 559, Noor Aga vs. State of Punjab and another, 2008 (2) EFR 707, Loknath Sarkar and another vs. State of West Bengal, 2018 Crl. L. J. 1885, Krishan Chand vs. State of H.P., 2019 (91) JIC 36 (SC), U.O.I. vs. Bal Mukund & Ors., 2009 (2) EFR 218, Sattan Paswan and another vs. State of Bihar, 2018 Crl. L. J. 3762, State of Rajasthan vs. Gurmail Singh, (2005) 3 SCC 59, Central Bureau of Narcotics vs. Bahadur Singh, (2010) 15 SCC 111 and Tofan Singh vs. State of Tamil Nadu, AIR 2020 SC 5592.

25. Since the severe punishment has been provided for the offence under N.D.P.S. Act, some provisions, in order to check the misuse of N.D.P.S. Act by the concerned official, has also been provided.

26. Since the learned counsel for the appellant also submitted that provisions of Sections 42, 50, 52, 53, 55, 57 of the N.D.P.S. Act was not complied with, before any discussion on the merit of the case, it would be relevant to discuss the provisions contained in Sections 42, 50, 52, 53, 55 and 57 of the N.D.P.S. Act, which are as under :-

42. Power of entry, search, seizure and arrest without warrant or authorisation.

(1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intellegence or any other department of the Central Government including para-military forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substance, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset,

(a) enter into and search any such building, conveyance or place;

(b) in case of resistance, break open any door and remove any obstacle to such entry;

(c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act; and

(d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.

(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior.

50. Conditions under which search of persons shall be conducted.

(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate.

(2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1).

(3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.

(4) No female shall be searched by anyone excepting a female.

(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).

(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior.

52. Disposal of persons arrested and articles seized-

(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.

(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.

(e) Every person arrested and article seized under sub-section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to

(a) the officer-in-charge of the nearest police station, or

(b) the officer empowered under section 53.

(4) the authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article.

53. Power to invest officers of certain departments with powers of an officer-in-charge of a police station.

(1) The Central Government, after consultation with the State Government, may, by notification published in the Official Gazette, invest any officer of the department of central excise, narcotics, customs, revenue intelligence 1[or any other department of the Central Government including para-military forces or armed forces] or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of the offences under this Act.

(2) The State Government may, by notification published in the Official Gazette, invest any officer of the department of drugs control, revenue or excise or any other department or any class of such officers with the powers of an officer-in-charge of a police station for the investigation of offences under this Act.

55. Police to take charge of articles seized and delivered- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.

57. Report of arrest and seizure - Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."

27. From perusal of aforesaid provisions, it transpires that basic purpose of the N.D.P.S. Act is that the search and seizure, made by any authorized officer, must be either in execution of any warrant issued by the Magistrate or prior authorization of the Gazetted officer or in the presence of Gazetted officer or Magistrate, if required by the accused in the matter of his personal search. Further, information regarding search and seizure must be within the knowledge and cognizance of superior officer within the prescribed time, as provided in the Act. Further, the ground of arrest must be communicated to accused, recovered contraband drugs be deposited in Malkhana without any delay and representative sample be sent for chemical examination immediately.

28. Law relating to compliance of Sections 42, 50 and other provisions of N.D.P.S. Act, regarding search and seizure, has now been settled by the larger bench/constitutional bench of Hon'ble Supreme Court in Karnail Singh case (Supra), Balbir Singh case (Supra), State of Punjab vs. Baldev Singh (1999) 3 SCC 977, Vijaysing Chandubha Jadeja vs. State of Gujrat (2011) 1 SCC 609, State of Punjab vs. Baljinder Singh (2019) 10 SCC 473, Jeet Ram vs. Narcotics Control Bureau, Chandigarh, AIR 2020 SC 4313 and Mukesh Singh vs. Stae State (Narcotics Branch of Delhi), AIR 2020 SC 4794.

29. Constitutional Bench of Hon'ble Supreme Court in Karnail Singh case (Supra) while discussing the scope of Sections 42 (1) & (2) i.e. statutory requirement of reducing to record the information and reason of belief and conveying it to superior officer, held that no straight jacket formula in this regard could be evolved and in view of invention of cellular phones and wireless services in India, the same may differ from facts and circumstances of each case. Hon'ble Supreme Court, while considering earlier law laid down in Sajan Abraham v. State of Kerala, (2001) 6 SCC 692, Koluttumottil Razak Vs. State of Kerala, (2000) 4 SCC 465, Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, (2000) 2 SCC 513, State of Punjab Vs. Baldev Singh, (1999) 6 SCC 172 and State of Punjab Vs. Balbir Singh, (1994) 3 SCC 299 on the point of Section 42 of the Act, upholding the validity of law laid down in Sajan Abraham case (Supra) where the non compliance of Section 42 was held non fatal to the prosecution, has observed as under :-

"32. Under Section 42(2) as it stood prior to the amendment, such empowered officer who takes down any information in writing or records the grounds under the proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance with this provision the same would adversely affect the prosecution case and to that extent it is mandatory. But if there is delay, whether it was undue or whether the same has been explained or not, will be a question of fact in each case, it is to be concluded that the mandatory enforcement of the provisions of Section 42 of the Act non-compliance with which may vitiate a trial has been restricted only to the provision of sending a copy of the information written down by the empowered officer to the immediate official superior and not to any other condition of the section.

33.Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] had been decided on 1-2-2000 but thereafter Section 42 has been amended with effect from 2-10-2001 and the time of sending such report of the required information has been specified to be within 72 hours of writing down the same. The relaxation by the legislature is evidently only to uphold the object of the Act. The question of mandatory application of the provision can be answered in the light of the said amendment. The non-compliance with the said provision may not vitiate the trial if it does not cause any prejudice to the accused.

34. The advent of cellular phones and wireless services in India has assured certain expectation regarding the quality, reliability and usefulness of the instantaneous messages. This technology has taken part in the system of police administration and investigation while growing consensus among the policymakers about it. Now for the last two decades police investigation has gone through a sea change. Law enforcement officials can easily access any information anywhere even when they are on the move and not physically present in the police station or their respective offices. For this change of circumstances, it may not be possible all the time to record the information which is collected through mobile phone communication in the register/records kept for those purposes in the police station or the respective offices of the authorised officials in the Act if the emergency of the situation so requires. As a result, if the statutory provision under Sections 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure. These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal. Consequently, these provisions should be taken as a discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug peddlers.

35. In conclusion, what is to be noticed is that Abdul Rashid [(2000) 2 SCC 513 : 2000 SCC (Cri) 496] did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham [(2001) 6 SCC 692 : 2001 SCC (Cri) 1217] hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information [of the nature referred to in sub-section (1) of Section 42] from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

(d) While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001."

(Emphasis supplied)

30. In Balbir Singh case (Supra), three judges Bench of Hon'ble Supreme Court while considering the nature and scope of Sections 41, 42 and 50 of the Act has held as under :

"25. The questions considered above arise frequently before the trial courts. Therefore we find it necessary to set out our conclusions which are as follows:

(1) ..............

(2-A) ...........

(2-B) ..............

(2-C) Under Section 42(1) the empowered officer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe from personal knowledge that offences under Chapter IV have been committed or materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief. But under the proviso to Section 42(1) if such officer has to carry out such search between sunset and sunrise, he must record the grounds of his belief.

To this extent these provisions are mandatory and contravention of the same would affect the prosecution case and vitiate the trial.

(3) Under Section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent it is mandatory. But if there is delay whether it was undue or whether the same has been explained or not, will be a question of fact in each case.

(4-A) If a police officer, even if he happens to be an "empowered" officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Sections 100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity.

(4-B) If an empowered officer or an authorised officer under Section 41(2) of the Act carries out a search, he would be doing so under the provisions of CrPC namely Sections 100 and 165 CrPC and if there is no strict compliance with the provisions of CrPC then such search would not per se be illegal and would not vitiate the trial.

The effect of such failure has to be borne in mind by the courts while appreciating the evidence in the facts and circumstances of each case.

(5) On prior information the empowered officer or authorised officer while acting under Sections 41(2) or 42 should comply with the provisions of Section 50 before the search of the person is made and such person should be informed that if he so requires, he shall be produced before a Gazetted Officer or a Magistrate as provided thereunder. It is obligatory on the part of such officer to inform the person to be searched. Failure to inform the person to be searched and if such person so requires, failure to take him to the Gazetted Officer or the Magistrate, would amount to non-compliance of Section 50 which is mandatory and thus it would affect the prosecution case and vitiate the trial. After being so informed whether such person opted for such a course or not would be a question of fact.

(6) The provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. If there is non-compliance or if there are lapses like delay etc. then the same has to be examined to see whether any prejudice has been caused to the accused and such failure will have a bearing on the appreciation of evidence regarding arrest or seizure as well as on merits of the case."

(Emphasis supplied)

31. In Rajendra Singh case (Supra) and Mohen Lal Vs. State of Rajasthan, 2015 (6) 222, Hon'ble Supreme Court again while placing the reliance on law laid down in Karnail Singh (Supra) has held that total non compliance of provisions of Section 42 is not permissible whereas substantial or delayed compliance of the provisions of this section is acceptable.

32. In Baldev Singh case (Supra), Hon'ble Supreme Court while discussing the nature and scope of Section 52 on the point of recovery from personal search and the right of accused, provided in this provision, constitutional Bench of Hon'ble Supreme Court has held as under :-

"55. On the basis of the reasoning and discussion above, the following conclusions arise : (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;

(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused;

(3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;

(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by Section 50 at the trial, would render the trial unfair.

(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- sho rt a criminal trial;

(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;

(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;

(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act

(9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;

(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case."

33. In Vijaysing Chandubha Jadeja case (Supra) while discussing the scope of Section 50 of N.D.P.S. Act, the Constitutional Bench of Supreme Court, observing that mere informing the accused his willingness to be searched before Gazetted Officer or Magistrate is not sufficient but it is the duty of the concerned officer to apprise the accused about his/her right of Section 50 of the Act, has held as under :-

"22. In view of the foregoing discussion, we are of the firm opinion that the object with which right under Section 50(1) of the NDPS Act, by way of a safeguard, has been conferred on the suspect, viz. to check the misuse of power, to avoid harm to innocent persons and to minimise the allegations of planting or foisting of false cases by the law enforcement agencies, it would be imperative on the part of the empowered officer to apprise the person intended to be searched of his right to be searched before a gazetted officer or a Magistrate. We have no hesitation in holding that in so far as the obligation of the authorised officer under sub-section (1) of Section 50 of the NDPS Act is concerned, it is mandatory and requires a strict compliance. Failure to comply with the provision would render the recovery of the illicit article suspect and vitiate the conviction if the same is recorded only on the basis of the recovery of the illicit article from the person of the accused during such search. Thereafter, the suspect may or may not choose to exercise the right provided to him under the said provision. As observed in Re Presidential Poll, it is the duty of the courts to get at the real intention of the Legislature by carefully attending to the whole scope of the provision to be construed. "The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole." We are of the opinion that the concept of "substantial compliance" with the requirement of Section 50 of the NDPS Act introduced and read into the mandate of the said Section in Joseph Fernandez (supra) and Prabha Shankar Dubey (supra) is neither borne out from the language of sub-section (1) of Section 50 nor it is in consonance with the dictum laid down in Baldev Singh's case (supra). Needless to add that the question whether or not the procedure prescribed has been followed and the requirement of Section 50 had been met, is a matter of trial. It would neither be possible nor feasible to lay down any absolute formula in that behalf. We also feel that though Section 50 gives an option to the empowered officer to take such person (suspect) either before the nearest gazetted officer or the Magistrate but in order to impart authenticity, transparency and creditworthiness to the entire proceedings, in the first instance, an endeavour should be to produce the suspect before the nearest Magistrate, who enjoys more confidence of the common man compared to any other officer. It would not only add legitimacy to the search proceedings, it may verily strengthen the prosecution as well."

34. Three Judges Bench of Hon'ble Supreme Court in Baljinder Singh case (Supra), where the recovery of contraband goods was made from the car and not from the personal search of accused, has held as under :

"15. As regards applicability of the requirements under Section 50 of the Act are concerned, it is well settled that the mandate of Section 50 of the Act is confined to "personal search" and not to search of a vehicle or a container or premises.

16. The conclusion (3) as recorded by the Constitution Bench in Para 57 of its judgment in Baldev Singh clearly states that the conviction may not be based "only" on the basis of possession of an illicit article recovered from personal search in violation of the requirements under Section 50 of the Act but if there be other evidence on record, such material can certainly be looked into.

In the instant case, the personal search of the accused did not result in recovery of any contraband. Even if there was any such recovery, the same could not be relied upon for want of compliance of the requirements of Section 50 of the Act. But the search of the vehicle and recovery of contraband pursuant thereto having stood proved, merely because there was non-compliance of Section 50 of the Act as far as "personal search" was concerned, no benefit can be extended so as to invalidate the effect of recovery from the search of the vehicle. Any such idea would be directly in the teeth of conclusion (3) as aforesaid.

17. The decision of this Court in Dilip's case, however, has not adverted to the distinction as discussed hereinabove and proceeded to confer advantage upon the accused even in respect of recovery from the vehicle, on the ground that the requirements of Section 50 relating to personal search were not complied with. In our view, the decision of this Court in said judgment in Dilip's case is not correct and is opposed to the law laid down by this Court in Baldev Singh and other judgments.

18. Since in the present matter, seven bags of poppy husk each weighing 34 kgs. were found from the vehicle which was being driven by accused- Baljinder Singh with the other accused accompanying him, their presence and possession of the contraband material stood completely established."

35. In Jeet Ram case (Supra), where 30 Kg Charas was recovered from the gunny bag placed just below the counter of Dhaba, owned by the appellant, appellant was acquitted by trial Court on the ground of non production of independent witness failure of compliance of Section 50 of the Act but in appeal, filed by the State, judgment and order of trial Court was set aside and the appellant was convicted. In appeal, preferred by the appellant-accused, three judges Bench of Hon'ble Supreme Court has held as under :

"10. It is mainly contended by learned counsel for the appellant that the High Court/appellate Court was not justified in interfering with the judgment of acquittal passed by the trial court merely because another view is possible. As noted earlier, in support of his argument that merely because another view is possible, same is no ground to interfere with the judgment of acquittal by the appellate court, the learned counsel has relied on judgments of this Court in the case of Bal Mukund (2009) 12 SCC 161, Francis Stanly (2006) 13 SCC 210 and Rangaiah (2008) 16 SCC 737. To counter the said submission, the learned Additional Solicitor General Sri Aman Lekhi has submitted that it is always open to the appellate court to review the evidence on record upon which order of acquittal is founded and if it comes to conclusion that the order passed by the trial court is erroneous and unreasonable, it is always open for the appellate court to interfere with the order of acquittal. It is contended that the view taken by the trial court is not a possible view having regard to evidence on record. Such erroneous finding can be corrected by the appellate court. In support of his argument, the learned Additional Solicitor General has placed reliance on the judgments of this Court in the case of Sanwat Singh (1961) 3 SCR 126, Damodarprasad Chandrikaprasad (1972) 1 SCC 107 and Vinod Kumar (2015) 3 SCC 138. Though the ratio laid down in the judgments relied on by the learned counsel for the appellant is that the appellate court would not interfere with the judgment of acquittal only because another view is possible but at the same time whether the findings recorded by the trial court in support of acquittal are valid or not is a matter which is to be considered with reference to facts of each case and evidence on record. On close scrutiny of the depositions of the witnesses examined on behalf of the prosecution as well as on behalf of the accused, we are of the view that the findings recorded by the trial court are contrary to evidence on record and view taken by the trial court was not possible at all, as such the High Court rightly interfered with the same and recorded its own findings to convict the appellant. The trial court acquitted the appellant mainly on the ground that prosecution case was not supported by independent witnesses; conscious possession was not proved; non-compliance of Section 50 of the NDPS Act; proper procedure was not followed in sending the samples for examination and the case of the prosecution was unnatural and improbable. As rightly held by the High Court, this Court in the case of State of H.P. v. Pawan Kumar (2005) 4 SCC 350 has held that Section 50 of the NDPS Act is applicable only in the case of personal search, as such, there is no basis for the findings recorded by the trial court that there was non-compliance of provision under Section 50 of the NDPS Act. Even with regard to the finding of the trial court that the case of the prosecution was not supported by independent witnesses, it is clear from the evidence on record that the incident had happened at about 10 : 30 p.m. in a dhaba which is away from the village site and all other persons who are found in the dhaba were the servants of the accused. It is also clear from the evidence on record that Suresh Kumar and Attar Singh examined on behalf of the appellant are closely related to the accused, as such, they could not be said to be independent witnesses. Pappu was the only other person who is none other than the servant of the dhaba and we cannot expect such a person to be a witness against his own master. Dealing with the issue of conscious possession, it is to be noticed that dhaba is constructed on the land which belongs to Kaushalya Devi who is none other than the wife of the accused. Further in deposition PW-4 has stated that when the accused was questioned as to who was the owner of the dhaba, he claimed to be the owner. The case of the prosecution was found to be unnatural and improbable by the trial court only on the ground that 13 Kg. of charas was lying in open in a gunny bag. The trial court found that it is not believable that any person would keep such a huge quantity of charas in open condition. It is clear from the evidence of prosecution witnesses that the officials of NCB got information that trafficking of charas was going on in the area in question. Two police parties had left for Theog - one party headed by PW-4 R.P. Singh started earlier and second party headed by PW-1 Rakesh Goyal left a little later from Shimla. Thus the depositions of PW-4 R.P. Singh; PW-3 O.P. Bhat; PW-1 Rakesh Goyal and PW-2 Hayat Singh are consistent and trustworthy and cannot be said to be unnatural and improbable. Further it is also to be noted that the trial court has held that seal with which samples and remaining bulk of charas was sealed was handed over to PW-1 Rakesh Goyal who himself gave the sample to PW-2 for carrying to Central Laboratory at Delhi and since the seals remained with the Director, the chances of tampering could not be ruled out. In this regard, it is to be noticed, as rightly held by the High Court, that the trial court totally lost sight of the fact that on 19.06.2001 JMIC, Theog had also appended his signatures on the samples as well as bulk parcels and, therefore, there was no chance of tampering of the samples. Further, there was no such suggestion of tampering either put to PW-1 Rakesh Goyal or to PW-2 Hayat Singh.

11. For the aforesaid reasons, we are of the clear view that the view taken by the trial court was not at all possible, having regard to the evidence on record and findings which are erroneously recorded contrary to evidence on record were rightly set aside by the High Court."

(Emphasis supplied)

36. Three Judges Bench of Hon'ble Supreme Court, on failure of prosecution to examine and produce the independent witnesses, in Raveen Kumar vs. State of Himachal Padesh, AIR 2020 SC 5375, has held as under :

""Para 19- It would be gainsaid that lack of independent witnesses are not fatal to the prosecution case. However, such omissions cast an added duty on Courts to adopt a greater-degree of care while scrutinising the testimonies of the police officers, which if found reliable can form the basis of a successful conviction."

37. In Rajesh Dhiman Vs. State of Himanchal Pradesh, (2020) 10 SCC 740, where the prosecution was failed to produce independent witnesses ; the independent witnesses produced by the prosecution, were declared hostile ; appellant accused was acquitted by the trial Court from offence of N.D.P.S. Act, carrying illegal 2 kgs. and 800 grams charas but the High Court set-aside the acquittal of the accused appellant and convicted him, in appeal, three judges Bench of Hon'ble Supreme Court while relying on law laid down by constitutional Bench in Mukesh Singh Vs. State (Narcotics Branch of Delhi), AIR 2020 SC 4794 has held as under :

"12. We, therefore, see no reason to draw any adverse inference against PW 8 himself investigating his complaint. The appellants' claim of bias stems from the purported delays, non-compliance of statutory mandates and non-examination of independent witness. In effect, the appellants are seeking to circuitously use the very same arguments which have individually been held by the High Court to be factually incorrect or legally irrelevant. Although in some cases, certain actions (or lack thereof) by the investigating officer might indicate bias; but mere deficiencies in investigation or chinks in the prosecution case cannot be the sole basis for concluding bias. The appellants have at no stage claimed that there existed any enmity or other motive for the police to falsely implicate them and let the real culprits walk free. Further, such a huge quantity of charas could not have been planted against the appellants by the police on its own.

xxxx xxxx xxxx

19. As correctly appreciated by the High Court in detail, non-examination of independent witnesses would not ipso facto entitle one to seek acquittal. Though a heightened standard of care is imposed on the court in such instances but there is nothing to suggest that the High Court was not cognizant of this duty. Rather, the consequence of upholding the trial court's reasoning would amount to compulsory examination of each and every witness attached to the formation of a document. Not only is the imposition of such a standard of proof unsupported by statute but it is also unreasonably onerous in our opinion. The High Court has rightly relied upon the testimonies of the government officials having found them to be impeccable after detailed reappreciation of the entire evidence. We see no reason to disagree with such finding(s)."

(Emphasis supplied)

38. It is also pertinent to mention at this juncture that the provision of the Code, if not inconsistent, is applicable on the warrant, arrest, search and seizure made under the N.D.P.S. Act as provided by Section 51 of the N.D.P.S. Act, which is as under :-

"Section 51. Provisions of the Code of Criminal Procedure, 1973 to apply to warrants, arrests, searches and seizures.- The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act."

39. It is also pertinent to note that any error or illegality will not effect the merit of finding, sentence and order passed by the Court of competent jurisdiction unless in the opinion of the Court failure of justice was caused to the accused. Section 465 of the Code is relevant in this regard, which is as under :-

"Section 465. Finding or sentence when reversible by reason of error, omission or irregularity - (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the compliant, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

40. In Mukesh Singh case (Supra) Constitutional Bench of Hon'ble Supreme Court, while discussing the provisions relating to search, seizure and investigation as provided under Sections 41 to 43, 49 to 55, 57 and 57-A of N.D.P.S. Act, Section 154 to 157 and 465 of the Code and Section 114 Evidence Act, has held that only on the ground that investigation was conducted by the informant, prosecution case will not be effected unless it is proved by the accused that a failure of justice was happened with him, as the prosecution witnesses were biased. Hon'ble Supreme Court has held as under :

"12. From the above discussion and for the reasons stated above, we conclude and answer the reference as under :

I. That the observations of this Court in the cases of Bhagwan Singh v. State of Rajasthan (1976) 1 SCC 15 : (AIR 1976 SC 985); Megha Singh v. State of Haryana (1996) 11 SCC 709 : (AIR 1995 SC 2339); and State by Inspector of Police, NIB, Tamil Nadu v. Rajangam (2010) 15 SCC 369 and the acquittal of the accused by this Court on the ground that as the informant and the investigator was the same, it has vitiated the trial and the accused is entitled to acquittal are to be treated to be confined to their own facts. It cannot be said that in the aforesaid decisions, this Court laid down any general proposition of law that in each and every case where the informant is the investigator there is a bias caused to the accused and the entire prosecution case is to be disbelieved and the accused is entitled to acquittal.

II. In a case where the informant himself is the investigator, by that itself cannot be said that the investigation is vitiated on the ground of bias or the like factor. The question of bias or prejudice would depend upon the facts and circumstances of each case. Therefore, merely because the informant is the investigator, by that itself the investigation would not suffer the vice of unfairness or bias and therefore on the sole ground that informant is the investigator, the accused is not entitled to acquittal. The matter has to be decided on a case to case basis. A contrary decision of this Court in the case of Mohan Lal v. State of Punjab (2018) 17 SCC 627 and any other decision taking a contrary view that the informant cannot be the investigator and in such a case the accused is entitled to acquittal are not good law and they are specifically overruled."

(Emphasis supplied)

41. Thus, in view of the law laid down by Hon'ble Apex Court in Karnail Singh case (Supra), Baldev Singh case (Supra), Balbir Singh case (Supra), Vijay Singh case (Supra), Baljinder Singh case (Supra), Jeet Ram case (Supra), Rajesh Dhiman case (Supra), Mukesh Singh case (Supra) and Raveen Kumar case (Supra), it is clear that literal compliance of aforesaid mandatory provisions are not required whereas it depend upon the facts and circumstances of each case and no straight jacket formula can be propounded. It has also been laid down by Apex Court that if the substantial compliance of mandatory provisions of N.D.P.S. Act has been made by the concerned officers as required under Sections 42 and 50 including other provisions of N.D.P.S. Act and no prejudice has been caused to the accused, the prosecution case cannot be disbelieved.

42. It has also been laid down by Hon'ble Apex Court that for non-production of independent witness, the statement of official witnesses cannot be disbelieved unless the accused proved that the prosecution witnesses were biased or the failure of justice was caused to him. It has also been laid down by Hon'ble Apex Court that if a contraband narcotic drugs is not recovered from personal search of accused, rather it was recovered from any vehicle or bag carried/possessed by him, the provisions of Section 50 of the Act will not apply. Similarly, it is also laid down by Hon'ble Apex Court that taking down the information regarding illegal narcotic drugs, possessed by any person, or recording the ground of his belief by concerned officer and sending it within time limit, as provided under Section 42 of the N.D.P.S. Act, depends upon the facts and circumstances of the case. Further, it has also been held that unless there is total non-compliance of provision Section 42, any irregularities in this regard, will not affect the prosecution case.

43. Thus, in view of law laid down by Hon'ble Supreme Court in the aforesaid case laws, it is clear that the procedure safeguard provided under Code as well as under N.D.P.S. Act, are only to ensure to prevent the failure of justice caused to accused and also to ensure the prevention and punishment of illegal use, possession and transportation of narcotic drugs so that the society may be saved from the menace or danger of illegal use of narcotic drugs.

44. In the light of above settled provisions of law, laid down by Hon'ble Supreme Court, it has to be examined as to whether the prosecution has succeeded to prove its case beyond reasonable doubt or whether there is any breach of mandatory provisions of N.D.P.S. Act, which has caused failure of justice or prejudice to the appellants.

45. Karunesh Srivastava (P.W.-1) has stated that he was posted as Intelligence Officer, D.R.I., Zone Lucknow on 20.6.2010 and was informed on his Cell phone by the Deputy Director, D.R.I., Lucknow at about 3:00 p.m. that huge quantity of charas, secreted in white colour Maruti 800 car bearing registration No.UP80/AE 6792, was being illegally transported by two persons from Raxaul to Bharthana, District- Etawah and the said information was also given by him to R.K. Tewari (P.W.-2), Intelligence Officer, D.R.I. He further stated that upon that information he rushed to D.R.I. office, constituted a team comprising of R.K. Tewari (P.W.-2), Ashutosh Dixit, Intelligence Officer, D.R.I. and Sepoy Ajeet Kumar. He further stated that two independent witnesses, present near the gate of D.R.I. office, were also requested to company the team, who were also included in the team and thereafter the members of the team proceeded in a private Scorpio Taxi and reached near B.B.D, Faizabad Road. He further stated that after waiting for hours at about 8:30 p.m., a white colour old Maruti 800 car was seen, coming from Faizabad side and as it slowed down at speed breaker, it was seen and found as Maruti car bearing registration No.UP.80/AE-6792. Stating that the said car was intercepted and signaled to stop and was found that two persons were sitting in the car, he and other officers introduced themselves to them and also the purpose of their interception, he further stated that the person sitting on driving seat, introduced himself as appellant Raj Kumar Savita whereas another person introduced himself as appellant Gopal Verma @ Teetu. He further stated that both the appellants were informed by him and other officers of the D.R.I. that, as per information, huge quantity of charas, secreted in the said car, was being illegally transported by the appellants. He further stated that during interrogation both the appellants confessed the presence of charas in the said car being carried by them. He further stated that thereafter in compliance of Section 50 of the N.D.P.S. Act, written notices (Ext.Ka.-1 and Ext.Ka.-2), informing them that they had right to be searched either before the Magistrate or any Gazetted Officer, were served upon them but both the appellants gave their consent to be searched by the D.R.I. team.

46. He (P.W.-1) further stated that since there was darkness at that place and crowd was also gathered, the D.R.I. team with the consent of appellants, brought them along with the said car at D.R.I. office, Gomti Nagar, Lucknow at about 9.30 p.m. and on the pointing out of appellant Gopal Verma @ Teetu, panel cover of dickey, four doors of the car, back cover and back side cover of hand brake of the car were opened wherefrom 73 rectangular shaped Bars (Battis) (material Ex.-1 to material Ex.-73) of charas (each Bars of average weight of 500 Grams), rapped in cellophane tape, were recovered. He further stated that all 73 Bars were scratched with knife and four representative samples, 25 - 25 Grams each, were prepared and sealed, kept in envelope and again sealed with signature of D.R.I. team, witnesses and appellants also. Stating that the said recovered charas was kept in a bag and thereafter sealed, he further stated that registration certificate (Ext.Ka.-5) and insurance certificate (Ext.Ka.-4) of the said car and driving licence (Ext.Ka.6) of appellant Raj Kumar Savita were also taken into custody for further inquiry. He further stated that both the appellants admitted the possession of charas and also stated that one Babloo Warsi was also involved in the said illegal transportation. He further stated that the recovery memo (Ext.Ka.-3) was prepared by him and it was also signed by the members of the D.R.I. team as well as witnesses and both the appellants. Stating that copies of recovery memos were provided to both the appellants, they were informed their ground of arrest and their arrest memos (Ext.Ka.-7 and Ex.Ka.-8) were also prepared, he further stated that whole search and seizure proceedings were concluded at about 2.00 a.m. on 21.06.2010.

47. He (P.W.-1) has also stated that test memos along with covering letter (Ext.Ka.9 to Ext. Ka.12) were sent separately on 21.6.2010 to Opium Factory, Gazipur and Central Revenue Control Laboratory (CRCL), New Delhi for laboratory test of the said charas. He further stated that proceedings as required under Section 57 of the N.D.P.S. Act was also complied with and report (Ext.Ka.13) was prepared. Stating that at the time of recovery, an inventory (Ext.Ka.14) was also prepared by him, he further stated that after completion of search and seizure proceedings, appellants were produced before the Court for remand and recovered contraband charas was deposited in the godown of custom department.

48. Ravindra Kumar Tewari (P.W.-2) has also stated that at the time of occurrence he was also posted as Intelligence Officer, D.R.I., Zone Lucknow, on 20.6.2010. He further stated that on that day at about 3:00 p.m., an information was given by S.K. Singh, Deputy Director, D.R.I. that huge quantity of illegal charas was being carried in Maruti car bearing registration no.U.P.-80 AE 6792 which had to be recovered along with the accused persons. He further stated that upon that information he reached at his office and constituted a team of Karunesh Srivastava (P.W.-1), Intelligence Officer, D.R.I., Ashutosh Dixit, Intelligence Officer, D.R.I. and Ajeet Kumar, Sepoy, also took two independent witnesses and reached B.B.D. College and started to wait for the said Maruti car. Stating further, as stated by P.W.-1 that the said Maruti car was intercepted at 8.30 p.m., after compliance of mandatory provisions as provided under Section 50 of the N.D.P.S. Act, appellants Raj Kumar Savita and Gopal Verma @ Teetu were interrogated who admitted that huge quantity of charas, approximately 36 Kgs. secreted in the said car was being carried by them, search and seizure proceedings were conducted whereupon the said charas was recovered, recovery memo (Ext.Ka.-3), and other relevant documents along with site plan (Ext.Ka.15) was prepared by Karunesh Srivasava (P.W.-1), he further stated that he had also put his signature on recovery memo (Ext.Ka.-3).

49. Pramod Kumar (P.W.-3) has stated that he was posted as an Intelligence Officer, D.R.I., Zone Lucknow on 21.6.2010 and appellants Raj Kumar Savita and Gopal Verma @ Teetu had appeared before him in proceedings under Section 67 of N.D.P.S. Act. He further stated that he had told and explained the relevant provisions of N.D.P.S. Act to both the appellants, warned them that their statements may be used as evidence in judicial proceedings. He further stated that both the appellants, admitting their guilt voluntarily, had admitted in written statement under their signatures (Ext.Ka.16 and Ext.Ka.17).

50. Brijendra Singh Sodhi (P.W.-4) has stated that on 25.6.2010 he was posted as Intelligence Officer, D.R.I. Zone Lucknow and was appointed as Investigating Officer, vide order (Ext.Ka.-18) passed by S.K. Singh, Deputy Director, D.R.I. Zone Lucknow. He further stated that during investigation he recorded the statements of witnesses and also recorded that statement of Anurag Gaur owner of the Maruti car who stated that the said Maruti car was stolen. He further stated that during investigation he had recorded the statement of appellants (Ext.Ka.19 and Ext.Ka.-20) and during investigation Forensic chemical examination report sent by CRCL, New Delhi opium factory, Gazipur (Ext.Ka.21 and Ext.Ka.22), confirming the samples as charas were also received. He further stated that during investigation it was also found that forged registration number was used on the said Maruti car at the time of recovery. He further stated that after completion of investigation, he had filed a complaint dated 16.12.2010 (Ext.Ka.-23) against the appellants and one co-accused Babloo Warsi.

51. A.P. Singh (P.W.-5) has stated that on 23.6.2010 he was posted as Incharge Godown, Central Excise and Customs Division No.1, Lucknow. He further stated that on that day 36 Kgs. charas, in sealed packet, was deposited by P.W.-1. He further stated that the said recovered contraband charas, received by him, was deposited in godown and relevant entry was made by him in Malkhana register. He also filed self attested photo copies of relevant entry (Ext.Ka.24) made by him in Malkhana register regarding deposit of said contraband charas.

52. So far as compliance of Section 50 of the N.D.P.S. Act is concerned, the submission of learned counsel in this regard is that in Ext.-Ka-1 and Ext.Ka-2, it has not been mentioned that appellants had right to be searched before any Gazetted Officer or Magistrate, hence the said recovery is against this provision. Admittedly, said contraband charas was recovered from the vehicle (car), being used and possessed by the appellants at the time of recovery and no contraband charas was recovered from personal search of any of the appellants. From perusal of Ext.Ka.1 and Ext.Ka.-2 i.e. consent/authorisation letter given by the appellants, it transpires that before their personal search, they were apprised their right that their personal search may be conducted, if they required, before any Magistrate or Gazetted Officer but they refused for their personal search either before any Magistrate or any Gazetted Officer and gave their consent to be searched by officers of D.R.I. team. P.W.-1 and P.W.-2 have categorically stated that the appellants were apprised with their rights provided under Section 50 of the Act but they refused to appear before any Magistrate or Gazetted officer for their personal search and had given consent to be searched by D.R.I. team whereupon their personal search were made but no contraband charas was recovered from their personal search, whereas all charas were recovered from the alleged car, carried by them. Thus, in the light of law laid down by Hon'ble Apex Court in Balbir Singh (Supra), Baldev Singh (Supra), Vijay Singh Chandubha Jadeja (Supra), Baljinder Singh (Supra) and Jeet Ram (Supra), there is no violation of provisions of Section 50 of the Act in this case and submission of learned counsel for the appellants has no force.

53. So far as compliance of Section 42 of the Act is concerned, P.W.-1 and P.W.-2 have specifically stated that direction/information was given to them on 20.6.2010 at about 3:00 p.m. by the Deputy Director, D.R.I. Lucknow i.e. their superior officer. P.W.-1 further stated in cross examination that when he received the said information, he was present at his house and since it was Sunday, the office was closed. Further, in cross-examination he (P.W.-1) again specifically stated that the Deputy Director was his superior officer who by informing him on phone, had directed for taking action.

54. In the instant case, the appellants were intercepted by the D.R.I. team on 20.6.2010 at about 8:30 p.m. near B.B.D. at Faizabad Road, search, seizure and recovery proceedings were continued till 2:00 a.m. on 21.6.2010 and it was concluded in the D.R.I. office. The record further shows that on 22.6.2010 information regarding whole proceedings of search, seizure and recovery (Ext.Ka.-13) was sent to the Senior Intelligence Officer, D.R.I., Zone Lucknow by P.W.-1. Further, the statement of appellants under Section 67 of the Act were also recorded by Pramod Kumar (P.W.-3). Regarding compliance of Section 42 of the N.D.P.S. Act, P.W.-1, in cross-examination, has specifically stated that he had produced the report regarding recovery and arrest before his superior officer within 24 hours and P.W.-2 has also specifically stated that after the arrest of appellants and recovery of contraband goods, detailed information was given by P.W.-1 to the superior officer. P.W.-3 was Senior Intelligence Officer, D.R.I. whereas P.W.-1 and P.W.-2 were Intelligence Officer, D.R.I. In addition to above, statements (Ext.Ka.16 and Ex.Ka.17) of both the appellants, recorded by P.W.-3 on 21.6.2010, were also produced on same day before the Additional Sessions Judge along with other relevant documents and recovered charas at the time of remand of appellants. Nothing has come out in the cross examination of any of the prosecution witnesses whereby an inference can be drawn regarding any doubt on the veracity of their statements.

55. In addition to above, the order dated 25.6.2010 (Ext.Ka.-18) shows that on due information, given by P.W.-1 to the Deputy Director, D.R.I., B.S. Sodhi (P.W.-4) was appointed as Investigating Officer in the case. P.W.-4 has also stated that he was appointed as Investigating Officer vide order dated 25.6.2010, passed by the Deputy Director, D.R.I., Zone Lucknow. This witness was also not cross examined by the defence counsel on the genuineness of Ext.Ka.-18. In cross-examination he has also specifically stated that Karunesh Srivastava (P.W.-1) had given written information to the superior officer within 72 hours from the arrest of the appellants and recovery of the contraband goods.

56. Further P.W.-3 has specifically stated that the appellants were produced before him for their statements under Section 67 of the Act. P.W.-3, Senior Intelligence Officer, D.R.I., who was posted in the same office where office of Deputy Director Intelligence and other superior officer was situated. He had recorded the statement (Ext.Ka-16 and Ext.Ka-17) of the appellants on 21.06.2010. In addition to above, from perusal of documents (Ext.Ka.1 to Ext. Ka.-17) i.e. recovery memo, compliance of Section 50 and other relevant documents including the information given by P.W.-1 to P.W.-3 narrating whole facts i.e. source of information, search and seizure memo of contraband charas and arrest memos of the appellants, prepared by P.W.-1 at the time of recovery, it transpires that the said documents were perused by the In-charge Additional Sessions Judge, Court No.12, Lucknow on 21.6.2010, which shows that appellants were produced before the concerned Court within 24 hours. Furthermore according to P.W.-5, it is also clear that the said recovered contraband goods were deposited in godown on 23.6.2010. The record shows that aforesaid whole proceedings was concluded by P.W.-1 and P.W.-2 in presence of D.R.I. team and witnesses in D.R.I. office in compliance of directions of their superior officers and due information was given to immediate superior officer within the prescribed time as provided under Section 42 (2) of the Act.

57. In addition to above, it is also pertinent to note at this juncture that admittedly, the information of the alleged illegal transportation of charas was given by the Deputy Director, D.R.I. to P.W.-1 on Sunday i.e. 20.6.2010. P.W.-1, in cross-examination, has specifically stated that no G.D. Register (documents/register pertaining to maintenance of entry regarding minutes to minutes events) was being maintained in his office and no entry was being made in any document regarding any event or visitor of his office. P.W.-1 and P.W.-2 have categorically stated that at the time of information, given by his superior officer on phone, they were at home and in compliance of said information and direction they had reached at the office, constituted the team and had proceeded to the place of occurrence. In cross examination of the prosecution witnesses nothing has come out whereby it can be presumed that there was total non compliance of provisions of Section 42 of the N.D.P.S. Act whereby any prejudice or failure of justice was caused to appellants. Thus, in view of the facts and circumstances of this case as well as in the light of law laid down by Constitutional Bench of Hon'ble Supreme Court in Karnail Singh case (Supra), there is no violation of Section 42 of the Act and submission of learned counsel for the appellants in this regard has no force.

58. So far as the submissions of learned counsel for the appellants that recovered charas was not immediately deposited in godown, rather it was handed over to office peon and Malkhana register was not produced, is concerned, P.W.-1 has specifically stated that search and seizure proceedings were concluded at 2:00 a.m. on 21.6.2010 in his office. P.W.-2, in cross-examination, has stated that recovered and sealed charas along with sample seal was kept in the office in the supervision of sepoy and chowkidar of the office, which was later on deposited in the godown of custom department. P.W.-1 has also stated that said recovered charas was deposited in the godown of custom department. P.W.-5 while corroborating the prosecution story has also stated that on 23.6.2010 he was posted as In-charge godown of Central Custom and Excise Division-I, Lucknow and 36 Kgs. charas, in sealed packets got deposited by P.W.-1. This witness had appeared before the trial Court with Malkhana register, proved and filed the self attested photocopy of relevant entry (Ext.Ka.-24), made by him regarding the deposition of said contraband charas in Malkhana register. In addition to above, recovered charas (Material Ext.Ka.-1 to Material Ext.Ka.-73) had also been produced before the trial Court in sealed condition during examination of P.W.-1 and proved by him. In my view, in the facts and circumstances of the case, keeping the recovered charas after its recovery, in office, in safe custody and supervision of chaukidar and sepoy of the office and thereafter depositing the same in Malkhana after legal formalities, is just and proper. Nothing has come out either in the cross-examination of P.W.-1, P.W.-2 or P.W.-5 which creates any doubt in their testimonies. Thus, it is clear that alleged recovered charas was properly sealed and deposited in the godown in the sealed condition within the proper time and the submissions of learned counsel for the appellants, in this regard, has no substance.

59. So far as the submission of learned counsel for the appellants that alleged charas was neither sealed properly nor sample seal was prepared, kept and sent in proper manner to the laboratory for examination with representative sample of charas, is concerned, P.W.-1 in examination-in-chief has specifically stated that at the time of recovery, four representative samples were drawn, whose test memo (Ext.Ka.-9) and (Ext.Ka.10) along with covering letters (Ext.Ka.11 and Ext.Ka.12) were prepared on 21.6.2010. From perusal of these documents (Ext.Ka.-9 to Ext.Ka.12), it transpires that while relevant information of recovered charas as well as of representative samples were mentioned in these documents, sample of seals were also put on it. It further transpires that Ext.Ka.-9 and Ext.Ka.-10, prepared by P.W.-1 was also signed by the independent witnesses and the appellants. These documents were also seen by the concerned Additional Sessions Judge on 21.06.2010 at the time of the remand of appellants.

60. Furthermore, the representative samples were sent for chemical examination to chemical examiner of Government Opium and Alkaloid Works, Gazipur, U.P. and Central Revenue Control Laboratory, New Delhi. In report dated 20.7.2010 (Ext.Ka.-22), prepared by Joint Director, Government Opium and Alkaloid Works, Gazipur, U.P. and in report dated 26.07.2010 (Ext. Ka-21) prepared by chemical examiner C.R.C.L., New Delhi, it has been specifically mentioned in the said reports that the said representative samples packets were received in their office in sealed and intact condition and tallied with facsimile seal as given in the test memo. According to both the reports, after chemical examination, the said samples were found as charas. Nothing has come out either in examination of P.W.-1 and P.W.-2, which may create any suspicion, either in the preparation of sample or sending it to concerned laboratory for chemical examination. Thus, in view of above, submissions of learned counsel for the appellants in this regard has no substance.

61. So far as the submissions of learned counsel for the appellants for non-production of independent witnesses is concerned, it is settled principle of law, prosecution case based on official prosecution witnesses, whose testimony is reliable and trust worthy, cannot be thrown out only on account of non examination of independent or other official witnesses. In this case, as discussed above, statement of prosecution witnesses has been found reliable, hence in the light of law laid down by Hon'ble Supreme Court in Raveen Kumar case (Supra) and Rajesh Dhiman case (Supra), only on the ground of non-production of independent or other official witnesses, prosecution case story cannot be held doubtful and the submissions of learned counsel for the appellants has no force.

62. So far as the submissions of learned counsel for the appellants for non-compliance of provisions of Sections 52, 53, 55 and 57, is concerned, it is settled principle of law, as laid down by Hon'ble Supreme Court in Balbir Singh case (Supra), Gurbax Singh Vs. State of Haryana, (2001) 3 S.C.C. 28 and Bahadur Singh Vs. State of Haryana, 2010 (4) SCC 445 wherein it has been held that compliance of aforesaid provisions is not mandatory. However, in the instant case, record shows that the appellants were informed the ground of their arrest by information (Ext.Ka.-7 and Ex.Ka.-8), the representative samples were properly sealed and sent for chemical examination to the Opium Factory, Gazipur as well as C.R.C.L., New Delhi without any delay, due information was also given without any delay to immediate superior officers and recovered charas was also deposited in Malkhana in sealed condition within time. Thus, in view of the above, submissions of learned counsel has no substance.

63. In addition to above, it is also pertinent to note at this juncture that appellants are the resident of district Etawah, Uttar Pradesh. Their arrest, made by D.R.I. team in Lucknow on 20.6.2010 when they were travelling with Maruti car bearing registration No.U.P.-80 AE 6792, has not been disputed by the appellants. They were produced before the concerned Judge by P.W.-1. on 21.6.2010 and they were also sent to jail. The prosecution has also succeeded to prove its case that from their possession huge quantity of contraband charas was recovered by the D.R.I. team. During examination, no suggestion was put to any prosecution witnesses by the counsel of the appellants, regarding any enmity with the appellants or that the appellants were arrested from any other known time or place and their false arrest or recovery from their possession, was shown in Lucknow by the prosecution witnesses. In addition to above, in examination under Section 313 of the Code appellants had also not specifically stated that prosecution witnesses had any enmity with them or they were arrested illegally from any other time or place and false recovery of charas was shown. Further no evidence has been led by them in their defence to create any doubt in the prosecution story.

64. Drug trafficking has become one of the most serious problem of the world at present. Many white collar criminals are involved in this business who, for their illegal profit, are not only exploiting the life of young generation but also permitting the heinous offences like murder, kidnapping, sexual exploitation of girls and other crimes. Only on account of minor irregularities in search and seizure proceedings or sending the samples for chemical examinations, the prosecution case cannot be held doubtful, unless and until it is proved by the defence that prosecution witnesses were biased and prejudice with the appellants accused and due to which failure of justice was caused.

65. Thus, in the light of aforesaid whole discussions, I am of the view that testimony of the prosecution witnesses is wholly reliable and trust worthy. They were put to lengthy cross examination by learned defence counsel before the trial Court, but nothing could be extracted by way of cross examination so as to create any doubt in their testimony. All the mandatory provisions of N.D.P.S. Act, required in this case, have been complied with by the prosecution witnesses. All the evidence, proved by prosecution, leads to only conclusion that said contraband charas was being illegally transported and possessed by the appellants. The prosecution has proved its case beyond reasonable doubt. The impugned judgment and order, passed by the learned trial Court, is well discussed, well reasoned and within the paramount of the settled provisions of law. The appeals, filed by both the appellants, lack merit and are liable to be dismissed.

66. Both the Criminal Appeals No.943 of 2013 (Raj Kumar Savita Vs. Union of India (Govt. of India) New Delhi) and 688 of 2013 (Gopal Verma @ Teetu Vs. Union of India Thru. Directorate of Revenue Intelligence) are dismissed and impugned judgment and order passed by the trial Court is affirmed.

67. Both the appellants are on bail. Their bail bonds are cancelled and sureties are discharged. They are directed to surrender forthwith before the Court below to serve out their sentence.

68. Office is directed to send a copy of this judgment and order forthwith to the trial Court along with lower Court record for necessary compliance.

Order Date :- 02.03.2021

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