# Raj Kumar Bajpaee v. State Of U.P

- **Citation:** (2016) 5 ILRA 1285
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-27
- **Bench:** Bala Krishna Narayana
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-bajpaee-v-state-of-u-p-43730
- **Pages:** 15

## Headnote

NDPS Act, 1985 - Sections 8/20, 42, 43, 50, 67 & 32-B - Seizure of Charas - Non-examination
of independent witnesses - Confessional statement under Section 67 - Minor discrepancy in
sample weight - Sentencing above minimum - Modification of sentence.

Recovery and Proof -
Conviction under Sections 8/20 NDPS Act can be sustained on the basis of reliable and cogent testimony of
official witnesses of the Directorate of Revenue Intelligence when their evidence inspires confidence and no
material contradiction or infirmity is brought out in cross-examination. Non-examination of independent
witnesses is not fatal when no prejudice is shown and mandatory provisions are otherwise complied with.

Section 42 NDPS Act -
Where secret information is received from a superior officer and is reduced into writing, requirement of
forwarding the same again to the superior officer under Section 42(2) is not attracted.

Section 50 NDPS Act -
Compliance of Section 50 stands proved when accused are informed of their statutory right in writing and
consent to be searched by the empowered officers.

Confessional Statements -
Section 67 NDPS Act - Statements recorded under Section 67 NDPS Act are admissible and can be relied
upon for conviction, the officers of DRI not being police officers. Reference pending before larger Bench does
not dilute the binding precedents holding such confessions admissible, particularly when not retracted at the
earliest opportunity.

Chemical Examiner's Report -
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
Reports of CRCL and Government Opium Factory are admissible under Section 293 Cr.P.C. Minor discrepancy
in weight of samples drawn and those received by the laboratory, when seals are intact and no suggestion of
tampering is made during trial, does not vitiate prosecution case.

Investigation by Complainant -
Filing of complaint by an officer who was part of the seizure team does not vitiate trial in absence of proof of
prejudice caused to the accused, particularly where prosecution is initiated by complaint and not by FIR.

Sentence - Section 32-B NDPS Act
Award of punishment higher than the statutory minimum requires consideration and recording of factors
enumerated under Section 32-B NDPS Act. In absence of such reasons, sentence above minimum is
unsustainable.

Result -
Conviction under Sections 8/20 NDPS Act affirmed. Sentence modified to minimum prescribed punishment of
10 years rigorous imprisonment with fine of ₹1,00,000, with default sentence reduced.

Appeal partly allowed - Conviction maintained - Sentence modified.

Case listed

(2008) 16 SCC 417 Noor Aga Vs. State of Punjab and another
(2010) 71 ACC 853 Hasan Ali Vs. State
(2005) 9 SCC 773 Rajesh Jagdamba Avasthi Vs. State of Goa
S. Jeevanathan Vs. State through Inspector of Police T.N., 2004 (Vol.5) SCC 220
(2010) 15 SCC 369 State of Tamil Nadu Vs. Rajangam,
(2008) 16 SCC 417 Noor Aga Vs. State of Punjab and another.
Toofan Singh Vs. State of Tamilnadu (2013) 16 SCC 31
Kanhaiya Lal Vs. Union of India;2008 (4) SCC 668
Raj Kumar Karwal Vs. Union of India; 1990(2) SCC 409

## Text

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5 All. Raj Kumar Bajpaee Vs State Of U.P.

1285
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 27.05.2016

BEFORE

THE HON'BLE BALA KRISHNA NARAYANA, J.

Criminal Appeal No.- 2376 Of 2009
&
Connected With Other Cases

Raj Kumar Bajpaee ...Appellant
Versus
State Of U.P. ...Respondent

Counsel for the Appellant:
K.K. Tiwari,Pradeep Kumar Mishra,Vikas Mani Srivastava

Counsel for Respondent:
Govt. Advocate,Sanjay Kumar Singh

NDPS Act, 1985 - Sections 8/20, 42, 43, 50, 67 & 32-B - Seizure of Charas - Non-examination
of independent witnesses - Confessional statement under Section 67 - Minor discrepancy in
sample weight - Sentencing above minimum - Modification of sentence.

Recovery and Proof -
Conviction under Sections 8/20 NDPS Act can be sustained on the basis of reliable and cogent testimony of
official witnesses of the Directorate of Revenue Intelligence when their evidence inspires confidence and no
material contradiction or infirmity is brought out in cross-examination. Non-examination of independent
witnesses is not fatal when no prejudice is shown and mandatory provisions are otherwise complied with.

Section 42 NDPS Act -
Where secret information is received from a superior officer and is reduced into writing, requirement of
forwarding the same again to the superior officer under Section 42(2) is not attracted.

Section 50 NDPS Act -
Compliance of Section 50 stands proved when accused are informed of their statutory right in writing and
consent to be searched by the empowered officers.

Confessional Statements -
Section 67 NDPS Act - Statements recorded under Section 67 NDPS Act are admissible and can be relied
upon for conviction, the officers of DRI not being police officers. Reference pending before larger Bench does
not dilute the binding precedents holding such confessions admissible, particularly when not retracted at the
earliest opportunity.

Chemical Examiner's Report -
1286 INDIAN LAW REPORTS ALLAHABAD SERIES
Reports of CRCL and Government Opium Factory are admissible under Section 293 Cr.P.C. Minor discrepancy
in weight of samples drawn and those received by the laboratory, when seals are intact and no suggestion of
tampering is made during trial, does not vitiate prosecution case.

Investigation by Complainant -
Filing of complaint by an officer who was part of the seizure team does not vitiate trial in absence of proof of
prejudice caused to the accused, particularly where prosecution is initiated by complaint and not by FIR.

Sentence - Section 32-B NDPS Act
Award of punishment higher than the statutory minimum requires consideration and recording of factors
enumerated under Section 32-B NDPS Act. In absence of such reasons, sentence above minimum is
unsustainable.

Result -
Conviction under Sections 8/20 NDPS Act affirmed. Sentence modified to minimum prescribed punishment of
10 years rigorous imprisonment with fine of ₹1,00,000, with default sentence reduced.

Appeal partly allowed - Conviction maintained - Sentence modified.

Case listed

(2008) 16 SCC 417 Noor Aga Vs. State of Punjab and another
(2010) 71 ACC 853 Hasan Ali Vs. State
(2005) 9 SCC 773 Rajesh Jagdamba Avasthi Vs. State of Goa
S. Jeevanathan Vs. State through Inspector of Police T.N., 2004 (Vol.5) SCC 220
(2010) 15 SCC 369 State of Tamil Nadu Vs. Rajangam,
(2008) 16 SCC 417 Noor Aga Vs. State of Punjab and another.
Toofan Singh Vs. State of Tamilnadu (2013) 16 SCC 31
Kanhaiya Lal Vs. Union of India;2008 (4) SCC 668
Raj Kumar Karwal Vs. Union of India; 1990(2) SCC 409

(Delivered by Hon'ble Bala Krishna Narayana, J.)

1. These three criminal appeals have been filed by the appellants Raj Kumar Bajpai, Anand
Tiwari and Akhilesh Dixit against the judgment and order dated 17.02.2009 passed by Sessions
Judge, Gorakhpur in Special Trial No. 64 of 2007, Union of India Vs. Raj Kumar Bajpai and two
others under Sections 8, 20 of the NDPS Act, P.S. Pravartan Abhikaran DRI, District Gorakhpur by
which the appellants were convicted under Sections 8, 20 of the NDPS Act and sentenced to 12
years R.I. and a fine of Rs. 1 lakh each and in default of payment of fine one year additional R.I.,
each.

2. Since all the three appeals arise out of the same incident and are directed aginst the same
judgment and order, therefore they are being heard and decided together by a common judgment.

3. Briefly stated, facts of the case, as evident from the complaint filed by Rajeev Kumar
Gupta, complainant, who was posted as Intelligence Officer, Directorate Revenue Intelligence,
Gorakhpur at the relevant point of time, before the Sessions Judge, Gorakhpur are that Assistant
5 All. Raj Kumar Bajpaee Vs State Of U.P.

1287
Director, Directorate of Revenue Intelligence, Regional Unit, Gorakhpur received a secret
information on 26.02.2007 at about 13:00 hours from Sri R.K.Singh, the Additional Director,
D.R.I., Lucknow Zonal Unit Lucknow that a Toyota Quallis bearing registration no. 31-H-8717
which was coming from Gopalganj side and going towards Gorakhpur was carrying contraband
(charas) in a huge quantity for being delivered to someone in Rohtak (Haryana). After noting down
the aforesaid information in writing the Assistant Director, Directorate of Revenue Intelligence
Regional Unit, immediately called his subordinate officers Pankaj Mishra, Intelligence Officer,
Directorate of Revenue Intelligence, Sub Regional Unit, Gorakhpur, Mohd. Shahid, Intelligence
Officer, Sub Regional Unit Varanasi and Sri Rajeev Kumar Gupta, Intelligence Officer, Directorate
of Revenue, Sub Regional Unit, Gorakhpur and directed them to take necessary action urgently.
Acting swiftly the aforesaid officers rushed to Nandanagar crossing NH-28 from where the
aforesaid vehicle was expected to pass and procured Sri Anand Singh son of Nathan Singh and Sri
Anil Pathak son of Sri G.S.Pathak, residents of Awas Vikas, Betia Hata, Gorakhpur and told them
to witness the proposed action of interception and search of the aforesaid Toyota Quallis for the
possible recovery of contraband (charas), to which both of them readily agreed.

4. At about 15:00 hours a silver grey colour Toyota Quallis bearing registration no. UP-31-H8717 was seen coming from Gopalganj side. The officers signalled the driver of the aforesaid
vehicle to stop at Nandanagar Railway Crossing but the driver did not stop, on which the officers
and witnesses chased the aforesaid vehicle by a Govt. Ambassador Car bearing registration no. DL6-CA 8569 and stopped the aforesaid Toyota Quallis in front of Awantika Hotel in Moaddipur
Gorakhpur after over taking it on NH-28. Three persons were found sitting in the aforesaid Toyota
vehicle, one on the driver's seat, other on the seat next to the driver's seat and the third one on the
rear seat. The officers disclosed their identity to the occupants of the Toyota Quallis and confronted
them with the information received by them regarding carrying of contraband charas by them in
their car. On being quizzed, further the driver of the Toyota Quallis disclosed his name as Akhilesh
Dixit son of Sri Brijesh Kumar Dixit r/o Shanti Nagar Garhi Road near Mishri Devi School,
Lakhimpur, P.S. Kotwali, District Lakhimpur. The person who was sitting next to the driver's seat
told that his name was Anand Tiwari and he was son of Kiran Prakash Tiwari r/o village Mirzapur
(Tewaripurwa), Post- Mohmed Nagar, P.S. Ramgaon, District Bahraich. The third occupant of the
Toyota Quallis said that his name was Raj Kumar Bajpaee and he was son of Durga Prasad Bajpai
r/o village and post Newada, P.S. Ramgaon, District Bahraich.

5. During their preliminary interrogation accused Raj Kumar Bajpaee, Anand Tiwari and
Akhilesh Dixit denied that they were carrying any contraband charas in their vehicle but upon
being interrogated sternly they admitted that they were carrying charas in their vehicle. Adhering to
the provisions of Section 50 of the NDPS Act, 1985, the officers informed all the accused about
their statutory right of being searched before a Magistrate or a Gazetted Officer in writing upon
which the accused gave their consent in writing to be searched by the officers of the Revenue
Intelligence Department.

6. Considering the fact that a huge crowd had gathered at the place where the aforesaid Quallis
was intercepted and keeping in view the safety of the contraband articles the aforesaid Toyota
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
Quallis along with its all three occupants was driven to the office of Directorate of Revenue
Intelligence situated at 467-A, Civil Lines, Kasia Road, Gorakhpur for conducting a thorough
search of the Toyota Quallis. The search of the Toyota Quallis, which was conducted before the
independent witness resulted in recovery of three airbags which were hidden under the rear seat of
the aforesaid vehicle and 45 pieces of charas wrapped in yellow plastic paper, 37 pieces of charas
wrapped in light yellow colour plastic, and 32 pieces (cakes) of charas wrapped in yellow plastic
paper, total 114 pieces in number weighing about 62.100 kgs. were recovered from the three air
bags.

7. Four samples, each weighing about 25 gms. were drawn from the charas recovered from the
three bags and sealed in the presence of the accused and witnesses for testing by CRCL, New Delhi
and Government Opium Factory, Ghazipur and signatures of accused, witnesses and officers were
taken thereon. The personal search of accused Raj Kumar Bajapee, Anand Tiwari and Akhilesh
Dixit lead to recovery of several personal items like Debit Cards, Cheque Books and Driving
Licenses and currency notes, Registration book of the aforesaid Toyota Quallis and its warrantee
booklet found in the dash board of the aforesaid vehicle indicated that one Jagdish Sahgal was the
registered owner of the vehicle. On further interrogation, the three accused admitted that they were
transporting charas which was packed in the three bags in lieu of money which was to be delivered
in Rohtak. All three accused further admitted that they had delivered a consignment of Ganja
weighing about 143 kgs. at Kanpur which was loaded at Raxsaul in their presence. Accused Raj
Kumar Bajpaee confessed that he had been indulging in smuggling of ganja and charas for the last
one year.

9. On the firm belief that the 114 pieces charas weighing about 62.100 kgs worth Rs.
18,63,000/- which were recovred from the three airbags found hidden under the rear seat of the
Toyota Quallis were being transported by the accused in contravention of Section 8/20 of the
NDPS Act, the same were seized and accused persons were duly arrested by the officers. All the
three bags containing charas were seized and signatures of the accused, witnesses and officers were
obtained thereon. The Toyota Quallis vehicle which was used for the transportation of the
contraband charas was also seized under Section 43 of the NDPS Act, recovery memo and
inventory of recovered contraband charas and Toyota Quallis vehicle were prepared on the spot.
Site plan of the place of occurrence was sketched and signatures of accused, witnesses and officers
were taken. Accused Raj Kumar Bajpaee in his statement recorded under Section 67 of the NDPS
Act on 26.02.07 confessed that he along with other two accused had left Kanpur by Toyota Quallis
vehicle in question at about 8.00 p.m. and reached Gopalganj in the morning on 26.02.07 and
stayed there at hotel Kailash where one person named Saral had met them and told them to come
with their vehicle to Sipaya Dhala which was at a distance of about 15 kms. from their hotel where
all the three accused reached at about 10.00 a.m.. One Kanhaiya who was carrying three bags with
him met them there and look them to a village where the three empty airbags were packed with
charas and concealed under the rear seat of their vehicle. He further stated that they started that
their return journey at about 12 a.m. along with the consignment of contraband charas which was to
be delivered by them to one Shamsher r/o village Kharkara 20 kms away from Rohtak on Rohtak
5 All. Raj Kumar Bajpaee Vs State Of U.P.

1289
Hisar Road. However before the consignment of charas could be delivered they were caught by the
officers of the DRI at Gorakhpur.

10. As per the statement of accused Raj Kumar Bajpayee recorded under Section 67 of the
NDPS Act he was to be paid at the rate of Rs. 8000/- per kg. on delivery of the aforesaid
consignment of charas. The accused Anand Tiwari and Akhilesh Dixit in their statements recorded
on 26.02.2007 confessed their guilt and corroborated the statement made by the accused Raj Kumar
Bajpaee. They further stated that they were in the business of smuggling of contraband articles for
monetary gains. The intimation of their arrest was sent to their residential addresses furnished by
them. Thereafter they were subjected to medical examination before they were produced before
judicial magistrate for remand and thereafter lodged in District Jail, Gorakhpur. According to the
report of CRCL, New Delhi, dated 12.06.2007, the samples under reference were found to be
charas and analyst's report of Government Opinum and Alkaloid Works Ghazipur (U.P.) dated
04.04.2007 also confirmed the samples as charas. According to the registration certificate of
Toyota Quallis its original registered owner was one Jagdish Sahgal r/o Lakhimpur Kheri and on
the date of the incident it had stood transferred in favour of one Vipul Barnwal, also r/o Lakhimpur
Kheri. Since all the accused had committed offences punishable under Sections 8/20/23/29/42/43 of
the NDPS Act, 1985, prayer was made in the complaint to summon the accused from jail and put
them to trial and award suitable punishment according to law and to confiscate the Toyota Quallis
no. UP-31-H-8717.

11. The learned Sessions Judge, took cognizance of the aforesaid offences and summoned all
the three accused Raj Kumar Bajpaee, Anand Tiwari and Akhilesh Dixit to face trial. Charge was
framed against the accused under Section 8/20 of the NDPS Act to which all the accused pleaded
not guilty and claimed trial.

12. The prosecution in order to prove its case examined PW-1 Rajeev Kumar Gupta, PW-2
Pankaj Mishra and PW-3 Munna Prasad. All the three accused in their examination under Section
313 Cr.P.C. totally denied the prosecution case as spelt out in the complaint and stated that the
Toyota Quallis car was parked unclaimed and the officers of the vigilance department were
questioning the passers by. The accused who were strangers to Gorakhpur city were falsely
implicated in the present case on the basis of documents which were prepared by the officers of the
Directorate of the Revenue Intelligence. Their confessional statements were obtained from them by
the officers of the Revenue Intelligence Department under pressure, fear, coercion and duress. They
had no concern either with the Toyota Quallis vehicle which was registered in the name of Jagdish
Sahgal or with the alleged contraband charas recovered from the said vehicle.

13. The accused examined one Ram Kripal also as DW-1.

14. Apart from the oral evidence the prosecution produced documentary evidence also, site
plan Ex. Ka-1, departmental information Ex.Ka-2, notice given to the accused for search Ex.Ka-3
to Ex.Ka-5, recovery memo Ex.Ka-6, list of recovered documents Ex.Ka-7, inventory memo
Ex.Ka-8, report of the CRCL, New Delhi Ex.Ka-9, report of the Govt. Opium Factory Ex. Ka-10
1290 INDIAN LAW REPORTS ALLAHABAD SERIES
and Ex. Ka-11, arrest memo of the Ex.Ka.-12 and Ka-14, application given for medical
examination of the accused and their medical report Ex. Ka-15 to Ex. Ka-17, information given to
the department of Search and Recovery Ex. Ka-18, complaint Ex. Ka-19, the summons issued to
the accused under Section 67 of the NDPS Act and their statements recorded under the aforesaid
section Ex.Ka-20 to Ex.Ka-25, the statements of Jagdish Kumar and Vipul Kumar recorded under
Section 67 of the NDPS Act Ex.Ka-26 to Ex.Ka 29.

15. PW-3 Inspector Munna Prasad who had deposited the seized contraband in the custom
godown and made the necessary entry produced the certified, photostat copy of the original register
paper no. 50 kha which was marked as Ex.Ka-13. The three packets from which the contraband
charas was recovered were marked as Material Ex.-1, Materia Ex.-2 and Material Ex.-3.

16. After considering the respective submissions advanced by the learned counsel for the
parties before him and scrutinising the evidence on reocrd, both oral as well as documentary, the
learned Sessions Judge convicted the accused under Sections 8/ 20 of the NDPS Act and awarded
them the aforesaid sentences.

17. Sri Ajay Bhanot, learned Senior Advocate, appearing on behalf of the appellants submitted
that the prosecution had miserably failed to prove the recovery of charas from the accused and their
arrest in the manner as spelt out in the recovery memo and the complaint beyond reasonable doubt
by any cogent or reliable evidence. The two independent witnesses who had admittedly witnessed
the search of the Tata Quallis, recovery of contraband charas therefrom, siezure and arrest of the
appellants were not produced in the witness box by the prosecution during the trial. The conviction
of the appellants on the basis of the evidence of the PW-1, 2 and 3 who are interested witnesses
being the officers of the Revenue & Intelligence Directorate and the alleged confessional
statements of the accused made under Section 67 of the NDPS Act cannot be sustained and is liable
to be set aside as the question whether the statement recorded under Section 67 of the NDPS Act
can be acted upon for convicting an accused has been referred to a larger bench by a division
Bench of the Apex Court. He next submitted that discrepancy in the weight of the samples drawn
on the spot from the pieces of contraband charas allegedly recovered from the three air bags which
were allegedly hidden under the rear seat of the Tata Quallis vehicle which according to the
prosecution case was being driven by the appellant Raj Kumar Bajpaee and in which the other two
appellants were sitting and those received by the chemical Examiner CRCL, New Delhi, Govt.
Opium and Alkaloid Factory, Ghazipur indicates either the samples which were drawn on the spot
were not sent for chemical examination and analysis or the same were tampered and in view of the
above no reliance could have been placed on the reports of the CRCL and Govt. Opium Factory,
Ghazipur Ex. Ka-9, 10 and 11 for holding that the articles allegedly recovered from the Toyota
Quallis vehicle were contraband charas.

18. Sri Bhanot, has also challenged the admissibility of the Ex. Ka-9, 10 and 11 chemical
report of CRCL and the analysis report sent by Govt. Opium Factory, Ghazipur on the ground that
the aforesaid reports do not disclose the principles on which the expert opinion is based. Advancing
his submissions in this regard further he submitted that Section 45 of the Evidence Act which
5 All. Raj Kumar Bajpaee Vs State Of U.P.

1291
makes opinion of expert admissible lays down that when the Court has to form an opinion upon a
point of foreign law or of science or art, or as to identity of handwriting or finger impressions the
opinions upon that point of persons specially skilled in such foreign law, science or art, or in
questions as to identity of handwriting or finger impressions opinion are relevant facts. Therefore,
in order to bring the evidence of a witnesses as that of an expert it has to be shown that he has made
a special study of the subject or acquired a special experience therein. He further submitted that the
real function of the expert is to put before the court all the materials together with reasons which
induced him to come to the conclusion so that the court although not an expert, may form its
judgment by its own observation of those material. Tested on the touchstone of the aforesaid
principle Ex. Ka-9, 10 and 11 are lacking in the aforesaid requirements and hence wholly
inadmissible in evidence for proving that the material which recovered from the Tata Quallis
vehicle is which the accused were allegedly travelling was contraband charas.

19. He also submitted that the investigation in this matter was not conducted fairly as the same
was
done
by
the
complainant
himself
which
seriously
prejudiced
the
accused.
He lastly submitted that sentence higher than the minimum punishment prescribed under the NDPS
Act upon conviction u/S 8/20 of the NDPS Act has been awarded by the trial court to the appellant
without assigning any reason and without even adverting to Section 32 (c) of the NDPS Act, hence
the same cannot be sustained.

20. Per contra Sri Sanjay Kumar Singh, learned counsel appearing on behalf of the Union of
India has submitted that PW-1, PW-2 and PW-3 fully proved the prosecution case. The failure of
the prosecution to examine the two independent witnesses who had witnessed the arrest of the
appellants and recovery of contraband articles from the vehicle in which they were travelling would
not vitiate the appellant's conviction in any manner in view of the confession of their guilt made by
the appellants in their statements recorded under Section 67 of the NDPS which the appellants had
failed to retract at the earliest. It was only at the stage of their examination under Section 313
Cr.P.C. that they had stated that their confession was obtained under duress and coercion. He
further submitted that the admisibility of chemical report of the CRCL and report of Govt. Opium
Factory, Ghazipur Ex. Ka-9,10 and 11 which were admissible under Section 293 of the Cr.P.C was
never challegned by the accused appellants during the trial on the grounds which have been raised
by the learned counsel for the appellant and it is not open to the appellants to challenge the Ex. Ka -
9, 10, and 11 on the aforesaid ground for the first time before this Court in this appeal. He next
submitted that the minor discrepancy in the weight of the samples drawn on the spot and those
received in the forensic lab and the Govt. Opium Factory, Ghazipur which were admittedly
received in a packed state with the seal intact would not give rise to any inference that either the
sample which were admittedly taken on the spot were not sent for chemical examination or the
samples were tampered. Even otherwise despite being subjected to gruelling cross examination, the
defense counsel did not cross examine any of the prosecution witness with regard to the aforesaid
discrepancy. Had it been done it would have given them an opportunity to furnish an explanation
for the same. This having not been done at the trial stage, the conviction of the appellants cannot be
challenged for the first time on the aforesaid ground in this appeal. He lastly submitted that the
impugned judgment is based upon on a thorough marshalling of the facts and a thread bare scrutiny
1292 INDIAN LAW REPORTS ALLAHABAD SERIES
of the evidence on record does not suffer from any illegality or infirmity warranting any
interference by this Court and the sentence awarded is just and proportionate to the offence for
which the appellants have been convicted.

21. I have heard learned counsel for the parties and perused the lower court record and the law
reports cited by the learned counsel for the appellants.

22. PW-1 Rajiv Gupta complainant in his examination in chief fully proved the the seuzure of
contraband charas and the arrest of the appellants as spelt out in the complaint. In his cross
examination he has however deneid that the accused were either pressurised or coerced into
confessing their guilt in their statements recorded under Section 67 of the NDPS Act.

23. PW-2 Pankaj Mishra also supported the prosecution case in his evidence and reiterated the
facts stated by PW-1 Rajiv Gupta in his evidence. He proved the notice given to the appellants
under Section 67 of the NDPS Act as well as the signatures on the notices given to the appellants
under Section 67 of the NDPS Act, and their arrest. In his cross examination he denied the
suggestion put to him by the defense counsel that the statements of the appellants were scribed on
blank papers on which their signatures were forcibly obtained.

24. PW-3 Munna Prasad Inspector, Godaam Seema Shulk Niwarak, Medwa in his evidence
tendered during the trial stated that on 01.08.2008 he was posted as Godown Incharge. He had
recorded the receiving of the contraband charas which was recovered from the appellants and made
the necessary entry in the register on 01.03.2007. He further submitted that the market value of the
seized contraband charas was about Rs. 18,63,000/-. He further deposed that the aforesaid material
was produced by him before the court on 18.07.2008, 22.07.2008 and 30.07.2008 and again
deposited in the godown in a sealed state and there was no tampering with the packets containing
the recovered contraband charas. The sealed packets were opened in front of the Court on
03.07.2008 and after the cross examination, the packets were sealed again with the court seal and
delivered by him to Pankaj Mishra who deposited the same in the godown again on the same day.
Necessary entry in this regard was made in the original register. He proved the certified copy of the
relevant extract of the original register which is on record of the case. In his cross examination he
stated that the three packets containing contraband charas were brought by Pankaj Mishra to the
godown. He denied that either the packets were not properly sealed or the same had been tampered
with.

25. From the perusal of the evidence of PW-1, 2 and 3 it transpires that the defense counsel
failed to put any question to any of the prosecution witnesses with regard to the discrepancy in the
weight of the samples drawn on the spot and those which were received in the CRCL, New Delhi
and opium factory, Ghazipur. Hence it is not open to the appellants to challenge the admissibility of
Ex. Ka-9, Ka-10 and Ka-11 on the aforesaid ground.

26. It is clear from the perusal of the reports of the chemical analyst dated 12.06.2007, Ex. Ka9 that the weight of samples of suspected charas which were received by chemical examiner was
5 All. Raj Kumar Bajpaee Vs State Of U.P.

1293
20.5 gms. and 26.6 gms. respectively. The Ex. Ka-9 further recites that the samples were received
with the seal intact and were accompanied with facsimile of the seal affixed on the packets
containing sample. Similarly the reports dated 31.03.2007 of the samples of suspected charas sent
to the Government Opium and Alkekloid, Ghazipur which is on the record of the trial court as
Ex.Ka-10&11 indicate that the samples of suspected charas were received in an enevelop duly
sealed. The net weight of the samples was 32.2 gms and 31.10 gms.It is true that the weight of the
four samples which were drawn on the spot was 25 gms each.There is no evidence on record
showing that the samples drawn on the spot were weighed by a measuring scale or a balance and
the weight of the samples was exact weight and not estimated weight.The defense has neither lead
any evidence nor made any suggestion to the prosecution witnesses during their cross examination
that the samples had been changed or tampered with. Considering the fact that the packets
containing the samples were received by chemical expert and the chemical examiner of Central
Revenue Control Laboratory, New Delhi and Government Opium & Alkeloid Work Opium,
Ghazipur in a sealed state, there is no possibility of the same being changed or tampered.

27. The legal preposition enuntiated by the Apex Court in the there decisions which have been
relied upon by the learned counsel for the appellant in support of aforesaid submission that the
conviction of the appellants is liable to be set aside in view of the unexplained discrepancy in the
weight of the samples drawn on the spot and the samples received in the Central Revenue Control
Laboratory, New Delhi and Government Opium & Alkeloid Work, Ghazipur, namely, (2008) 16
SCC 417 Noor Aga Vs. State of Punjab and another, (2010) 71 ACC 853 Hasan Ali Vs. State
and (2005) 9 SCC 773 Rajesh Jagdamba Avasthi Vs. State of Goa is not applicable to the facts
and circumstances of the present case.

28. The conviction of the appellant in the case of Noor Aga (supra), relied upon by the
learned counsel for the appellant, was set aside by the Apex Court noticing numerous discrepancies
in the prosecution case including the failure of the prosecution to produce the cardboard carton,
which was used in carrying the heroin recovered from the accused Noor Aga and not on account of
any discrepancy in the weight of the sample drawn on the spot and that received by the chemical
analyst.

29. Similarly the case of Hasan Ali (supra) is also distinguishable from the present case on
facts inasmuch as in that case total 1.75 kg. Charas contained in a plastic bag was recovered from
the accused Hasan Ali and the entire recovered contraband charas was dispatched for chemical
examination, however, the chemical examination report contained a recital that 1.680 kg charas
was received by the chemical analyst. The discrepancy of about 70 gms in the quantity of charas
recovered was found by this Court sufficient to draw an adverse inference against the prosecution
that either the recovered contraband was not sent for chemical examination or the same had been
tampered with and for the aforesaid reason, the appeal was allowed and the appellant Hasan Ali
was acquitted.

30. In the case of Rajesh Jagdamba (supra) the conviction of Rajesh Jagdamba was set aside
and his appeal was allowed by the Apex Court by giving him benefit of doubt, holding that his
1294 INDIAN LAW REPORTS ALLAHABAD SERIES
conviction was liable to be set aside on the ground that although 180.75 gms charas was recovered
from the appellant's possession after search and seizure whch was packed and sealed in two
enevelops maked 'A' and 'B' however when those enevelops were opened in the laboratory of Junior
Scientific Officer, he found the quantity in enevelop 'A' nominally less while quantity in envelop
'B' significantly less than the quantity sealed and sent to him and the proseuction having failed to
explain the discrepancy, the High Court was not justified in upholding the conviction of the
appellant on the basis of the recovery of only enevelop 'A' ignoring the quantity in enevelop 'B'
because there was only one search and seizure and whatever is recovered was packed in two
envelops. The descrepancy in the weight of the samples drawn and those received by the chemical
analysts in the present case is nominal and not significant enough to doubt the seizure and arrest.

31. The appellants challenge to the reliance placed by the trial court on Ex. Ka-9, Ka-10 and
Ka-11 for holding that articles recovered from the vehicle in this the appellants were allegedly
travelling was contraband charas was perse illegal on account of that Ex. Ka-9, Ka-10 and Ka-11
on the ground that the same did not disclose the principles on which expert opinion was based is
also unwarranted, for the simple reason that the defense had not challenged the admisibility of Ex.
Ka-9, Ka-10 and Ka-11 on the ground which has been taken by the appellant for the first time
before this Court, which is not permissible.Even otherwise Ex. Ka-9, ka-10 and Ka-11 are
admissible in evidence under Section 293 of the Code of Criminal Procedure.

32. As far as the submission made by the learned counsel for the appellant that the accused
appellants were prejudiced on account of the investigation of the matter being done by the same
police officer who had arrested the petitioner and recovered the contraband article from them his
concerned the same is also wholly without any merit. In S. Jeevanathan Vs. State through
Inspector of Police T.N., 2004 (Vol.5) SCC 220, the Apex Court held that if the officer, who is
complainant, also conducts the investigation of the case and it is proved that any prejudice was
caused to the accused, on account of the adoption of such a course the accused cannot be acquitted
unless the evidence was lead by the accused or it was proved from the prosecution evidence that a
prejudice was caused to him on account of the matter being investigated by the same police officer
who was the complainant. In the present case no FIR was lodged rather a complaint under Section
36(1)(d) of NDPS was filed by the complaint Rajiv Kumar against the appellant and the other
accused after seizure and their arrest. The complainant Rajeev Kumar had merely filed the
complaint, the evidence of all the three prosecution witnesses was recorded before the trial judge.
The appellants in the present case have not been able to demonstrate or prove by any evidence that
any prejudice was caused to them on account of complaint against them having been filed by Rajiv
Gupta, who was one of the membes of the team of Directorate of Revenue Intelligence, which had
seized contraband charas and arrested the appellants. In the present case neither any FIR was
lodged nor any police report under Section 173(2) Cr.P.C. was submitted by the Investigating
Officer after completion of investigation. Henece the reliance placed by the learned counsel for the
appellants on (2010) 15 SCC 369 State of Tamil Nadu Vs. Rajangam, in this regard is wholly
misconceived as in the case of State of Tamil Nadu (supra) cognizance was taken against the
accused by the Court on the charge sheet/police report under Section 173(2) Cr.P.c. submitted after
5 All. Raj Kumar Bajpaee Vs State Of U.P.

1295
completion of investigation which commenced against the accused upon registration of FIR against
them.

33. The appellants challenge to their conviction on the ground that in the present case there
was no compliance of Section 42 of the NDPS is also without any basis. It is proved from the
evidence of PW-1 Rajiv Kumar and Ex. Ka 2 that the information received by Sri R.K.Singh,
Asistant Director, DRI, Regional Unit Gorakhpur from Additional Director, DRI Lucknow, Zonal
Unit, Lucknow that a Silver Grey colour Toyota Quallis coming from Gopalganj Bihar via ND-28
was carrying huge quantity of charas was taken down by him in writing on 26.02.2007. Since the
secret information was received by Sri R.K.Singh, Assistant Director, DRI, Regional Unit
Gorakhpur from his superior officer, there was no necessity for him to send copy thereof to his
same immediate superior officer again as stipulated under Section 42(2) of the NDPS Act and to
that extent in my opinion Section 42(2) of the NDPS is not attracted to the present case. It is further
established from the perusal of the of Ex. Ka-18 that information regarding seizure of contraband
charas and the arrest of the appellants by the team of Direcorate of Revenue Intelligence, Sub
Regional Unit Gorakhpur was duly reported to the higher officer on 27.02.2007.

34. Now the next question which arises for consideration is that whether the conviction of the
appellants is liable to be set aside on the ground of the failure of the prosecution to examine the two
independent witnesses Amit Pathak and Anand Singh who had witnessed the interception of the
vehicle, the search of the appellants and the vehicle, recovery of contraband charas and seizure. In
support of his submission learned counsel for the appellants has placed reliance upon (2008) 16
SCC 417 Noor Aga Vs. State of Punjab and another. Paragraphs 109, 110 and 111 of the
aforesaid judgement which are relevant for our purpose are being reproduced herein below :-

" 109. In Baldev Singh (supra), it was stated :
"28. This Court cannot overlook the context in which the NDPS Act operates
and particularly the factor of widespread illiteracy among persons subject to investigation for
drug offences. It must be borne in mind that severer the punishment, greater has to be the
care taken to see that all the safeguards provided in a statute are scrupulously followed. We
are not able to find any reason as to why the empowered officer should shirk from affording
a real opportunity to the suspect, by intimating to him that he has a right "that if he
requires" to be searched in the presence of a Gazetted Officer or a Magistrate, he shall be
searched only in that manner. As already observed the compliance with the procedural
safeguards contained in Section 50 are intended to serve dual purpose - to protect a person
against false accusation and frivolous charges as also to lend credibility to the search and
seizure conducted by the empowered officer. The argument that keeping in view the growing
drug menace, an insistence on compliance with all the safeguards contained in Section 50 may
result in more acquittals does not appeal to us. If the empowered officer fails to comply with
the requirements of Section 50 and an order or acquittal is recorded on that ground, the
prosecution must think itself for its lapses. Indeed 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
1296 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

110. Independent Witnesses It is accepted that when the appellant allegedly
opted for being searched by a Magistrate or a Gazetted Officer, Kuldip Singh called K.K.
Gupta, Superintendent Customs, PW2) and independent witnesses Mahinder Singh and
Yusaf. Whereas K.K. Gupta was examined as PW2, the said Mahinder Singh and Yusuf were
not examined by the prosecution. There is nothing on record to show why they could not be
produced. Their status in life or location had also not been stated. It is also not known as to
why only the said two witnesses were sent for. The fact remains that they had not been
examined. Although examination of independent witnesses in all situations may not be
imperative, if they were material, in terms of Section 114(e) of the Evidence Act, an adverse
inference could be drawn.

111. In a case of his nature, where there are a large number of discrepancies,
the appellant has been gravely prejudiced by their non- examination. It is true that what
matters is the quality of the evidence and not the quantity thereof but in a case of this nature
where procedural safeguards were required to be strictly complied with, it is for the
prosecution to explain why the material witnesses had not been examined. Matter might have
been different if the evidence of the Investigating Officer who recovered the material objects
was found to be convincing. The statement of the Investigating Officer is wholly
unsubstantiated. There is nothing on record to show that the said witnesses had turned
hostile. Examination of the independent witnesses was all the more necessary inasmuch as
there exist a large number of discrepancies in the statement of official witnesses in regard to
search and seizure to which we may now take note of."

35. In the present case also two independent witnesses Amit Pathak and Anand Singh have not
been examined. No explanation has come forth from the side of the prosecution side for their non
production during the trial.