S.L Kochar, J.:— Being dissatisfied with the judgment of conviction rendered in Special Case No. 44 of 2000 by Special Judge, (N.D.P.S) Indore on 3rd April, 2001 thereby convicting the appellant for the offences punishable under sections 8/18 of the Narcotics Drugs and Psychotropic Substances Act (for short, “the Act”) and sentencing him to suffer R.I for 10 years with fine of Rs. One lac, in default of payment of fine to suffer R.I for two and half years.
2. The prosecution case as furled before the Trial Court is that on 2.8.2000, Sub-Inspector Sabiha Akunjai, working with Inspector M. Dhankani, Central Bureau of Narcotics (for short, ‘C.B.N”) received information from the informant that near park, one person named Ritesh Chakravarti was coming with 1.500 kgs. opium. This information was recorded by Sub-Inspector Smt. Sabina in presence of Inspector S.K Bajpai and (P.W 5) Sub-Inspector (Girwar Puri). Thereafter, senior official was made aware of the same. Senior officials constituted raiding party and reached on the spot along with panch witness (P.W I) Ramchand, (P.W 2) Girish. After waiting for sometime, in the evening at about 4.00 p.m the appellant was seen having black Rexene bag in his hand. He was interrogated by (P.W 5) Girwar Puri, Sub-Inspector, C.B.N, upon which the appellant disclosed his name. Thereafter, he was made aware the informant report and given option for his search as per provision under section 50 of the Act. The Sub-Inspector (P.W 5) Girwar Puri took the search of black Rexene bag of the appellant and found therein 1. 300 kgs. opium. Out of these opium, two samples each weighing 25 gms were separately taken out and sealed. Rest of the opium was also separately sealed and, on all these articles chits were affixed. On personal search of the appellant only 100/- rupees currency note was found. After completing procedure of search and seizure, the appellant was arrested for the commission of offence punishable under sections 8/18 of the Act. The appellant's statement was also recorded vide Ex. P/7 by P.W 5. In this statement, the appellant confessed the commission of crime. Sub-Inspector (P.W 5) prepared detailed report as per Provisions of section 57 of the Act and placed before superior officials who appointed P.W 6 Murali Dhamkani to further investigate the crime. (P.W 6) Inspector sent the samples along with letter Ex. P/12 and test memo Ex. P/14 bearing his seal impression to Government Opium Alkaloid Factory Neemuch for test. The sample was sent with (P.W 4) Head Constable Dinesh Chandrawat, who after depositing the sample with the authority of the factory obtained receipt Ex. P/10. He handed over the same to Investigating Officer after receipt of the analysis report by Neemuch Factory vide Ex. P/11. After required investigation, (P.W 6) Inspector submitted complaint before the Special Judge/Trial Court.
3. Appellant abjured his guilt. His defence was that he was standing on a betel shop situated in a Dhenu market near Purva Hotel. At that juncture, Inspector Bajpai gave signal to someone for stopping the said person and the said person under nervousness ran away and while Page: 214running his bag fell near the appellant. Inspector Bajpai inquired the appellant about the said person to whom the appellant was not knowing. Thereafter, appellant was taken to C.B.N office by Inspector Bajpai along with the said bag and obtained his signatures on several papers and concocted false case against him. The appellant has not examined any witness in defence whereas the respondent has examined in total six witnesses and got proved 16 documents to prove its case.
4. Learned Trial Court after hearing both the parties, relied on the prosecution version and convicted the appellant as mentioned hereinabove.
5. Learned Counsel for the appellant Mr. Rajendra Bhadang, has submitted that prosecution has not examined important and material witness, sub-inspector Sabiha who relied on information of the informant as well as Inspector S.K Bajpai, before whom important and material investigation was done. Therefore, adverse inference should have been drawn by the Trial Court against the prosecution. Learned Counsel has also submitted that there is non-compliance of mandatory provision of section 42 of the Act and that the Trial Court in paragraph 22 of its judgment has wrongly relied on the part of appellant's statement recorded under section 313 of the Cr.P.C in favour of the prosecution.
6. Per contra, learned Counsel for the respondent/department, has supported the judgment and findings arrived at by the Trial Court.
7. According to him non-examination of Sub-Inspector Sabiha and Inspector S.K Bajpai, is not fatal to the prosecution and the same has not caused any prejudice to the appellant and that there is no application of provision of section 42 sub-section (2) of the Act because there was no information for concealment of any narcotics drugs in any; building, conveyance, or in close place and section 42 is not applicable when the person is searched and arrested in a public place. In the instant case, power of seizure and arrest in a public place as prescribed under section 43 will apply and for this section there is no provision alike provisions under section 42 sub-section (2) of the Act regarding sending of copy within 72 hours regarding grounds for belief, the entry, search seizure and arrest without warrant or authorization in any building, connivance or in a close place between sun rise and sun set. Learned Counsel has placed reliance on Supreme Court judgment passed in the case of Rajendra v. State of M.P 2004 SCC (Cri) 314 , 2004 (13) AIC 35 (SC) , 2004 (48) ACC 304 and State of Haryana v. Jamail Singh. 2004 SCC (Cri) 1571 , 2004 (19) AIC 818 (SC) , 2004 (49) ACC 473
8. Learned Counsel has further submitted that the Trial Court has rightly relied on the admission about bag found near his leg and taking signature on the documents of Panchnama.
9. Having heard learned Counsel for the parties, and after perusing the entire record of the case, this Court is of the considered view that there is no force in the submission of the learned Counsel for the appellant that the non-examination of lady Inspector Smt. Sabiha and Inspector S.K Bajpai, is fatal to the prosecution because the information of Mukhbir was recorded by Inspector Sabiha in presence of Inspector S.K Bajpai and Sub-Inspector (P.W 5) Girwar Puri. (P.W 5) Girwar Puri has proved Mukhbir Panchnama, Ex. P/13. He has also disposed that on the basis of Mukhbir information, trap party was constituted in which Inspector S.K Bajpai, Inspector Murli Dhamkani, Inspector Sabiha, Constable Gholap, Constable Manmohan Singh, were the members along with driver of Government Vehicle Dilip Kashyap and on the spot, he appraised the appellant regarding his right of search as per the Page: 215provision under section 50 of the Act, for his search by nearest Magistrate or Gazetter Officer upon which the appellant himself has given consent in writing on Ex. P/1 at place “D” to “D” for his search by this witness (P.W 5) Girwar Puri. This Panchnama was witnessed by independent Panch witness (P.W 2) Girish and (P.W 1) Premchand. Thereafter, almost all proceedings were performed by this witness (P.W 5) Girwar Puri in presence of Panch witnesses. Ex. P/2 memo of seizure is also bearing signature of the appellant, both the Panch witnesses and (P.W 5) Girwar Puri. Regarding the information given by informant and proceedings drawn in pursuance thereof by (P.W 5) Girwar Puri, information as per the provision under section 57 of the Act was sent along with the documents mentioned therein and at the margin of this document Ex. P/15, (P.W 6) Murli Dhamkani Inspector was authorized by Superintendent Ratan Lal for further investigation and filing the complaint before the Court. Inspector Sabiha and inspector S.K Bajpai did not perform any investigation after receipt of Mukhbir information, therefore, non-examination of both the persons, is not fatal to the prosecution and an adverse inference cannot be drawn against the prosecution. So far as non-compliance of section 42 sub-section (2) of the Act is concerned, the same will not apply in the present case because search and seizure of the appellant on public place, provision of section 43 shall apply. This Court finds substance in the argument on the 3rd point put forth by the learned Counsel for the appellant that learned Trial Court in its judgment paragraph 22 has wrongly accepted the statement of the appellant recorded under section 313, Cr.P.C The statement of the appellant can be accepted as a whole or reject as-whole. It is not permissible for a Court to accept only in a culpatory part and reject the exculpatory part and self-defending statement of the accused/appellant. The Supreme Court in the case of State of Gujarat v. Acharya Shri Devendra Prasad Ji AIR 1979 SC 866 has ruled in paragraph 5 that “statement made by the accused under section 342 (new section 313, Cr.P.C), the Court cannot split the statement of the accused into various parts and accept portion or reject the rests. The Court either accept that statement as a whole or not rely on it at all. Applying this principle, if the statement of the appellant under section 313, Cr.P.C is looked into the same is the statement in which the appellant has not pleaded guilty. According to him some unknown persons while running, dropped the seized Rexene bag near the leg of the appellant, thereafter, Inspector S.K Bajpai reached near him, asked him about the bag, took him to the office of the narcotics where his signatures were obtained on several papers after scolding him and beating him. Thus, the finding of the learned Trial Court in paragraph 22 is not correct that the appellant has accepted 50% story of the prosecution case regarding bag and his signatures on all Panchnama.
10. In the instant case, the statement of the appellant was recorded as per provisions under section 67 of the Act by (P.W 5) Girwar Puri vide Ex. P/7 and filed in accused statement. In answer to question No. 19, appellant has replied that GALAT HAI in answer to question No. 18, he replied that his signature were obtained on several papers by delivery of threats. The appellant has not levelled any allegation against (P.W 5) Girwar Puri regarding any kind of ill-will or bad relations with the appellant because of which Sub-Inspector (P.W 5) Girwar Puri may concoct a false case against him. Therefore, this Court has no reason to discard the testimony of (P.W 5) Girwar Puri and the statement recorded by him. The appellant has utterly failed to rebut the statement recorded by Sub-Inspector (P.W 5) Girwar Puri under the provisions of section 67 of the Act. When possession of illicit article is proved then burden lies on the Page: 216accused as per provisions under section 35/34 of the Act that he was not having culpable mental state and explain possession of contraband article satisfactorily. The Apex Court in the case of A.K Mahmood v. Intelligence Officer, Narcotics Control Bureau, 2002 SCC (Cri) 1035 , 2001 (42) ACC 414 (SC) has held that the statement of the accused recorded by officials of Narcotics Bureau, as per the provisions under section 67 of the Act is admissible and can be acted upon against the appellant because officers of Narcotics Control Bureau are not police officers and the appellant has not raised any objection about recording of his statement regarding his possession of contraband articles immediately at the first instance, when he was produced before the Court below. In the instant case also the appellant did not raise any objection oral or in writing when arrested and produced before the Special Judge/Trial Court. In the accused statement recorded under section 313, Cr.P.C he has simply denied recording of statement at his instance signed by him. Therefore, the statement of the appellant Ex. P/7 is a strong evidence to corroborate the statement of Sub-Inspector (P.W 5) Girwar Puri who has no axe to grind against the appellant to implicate him falsely in the case. (Also see Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras. 1999 SCC (Cri) 105 , 1999 (39) ACC 330 (SC)) At this juncture, it would be pertinent to mention here that the learned Trial Court in its judgment has not considered admissibility and veracity of statement of the appellant recorded by (P.W 5) Girwar Puri as per provisions under section 67 of the Act. Therefore, this Court in exercise of appellate powers available in section 386 sub-section (b) (ii) of the Act alter the findings maintaining the sentence, consider the above mentioned statement of the appellant vide Ex. P/7.
11. Learned Trial Court in its judgment paragraph 20 has considered in detail the non-examination of Inspector Sahiba and detail statement not given in Court by Inspector Dhamkani (P.W 6) and rightly held that on one point if more than one witness is available all the witnesses are not essentially required to be examined in Court. The Supreme Court has considered this aspect in the case of V. Thewar v. State of Madras. 1999 SCC (Cri) 105 , 1999 (39) ACC 330 (SC) as well as (1977) 4 SCC 420 : AIR 1978 SC 59.
12. In overall appreciation of evidence and consideration of legal provisions of the Act, this Court is of the opinion that the conviction of the appellant for the abovementioned offence is well founded and fully concur with the judgment of the conviction passed by the learned Court below. Consequently, there is no merit in the appeal of the appellant. Thus, the same is hereby dismissed.
13. Appeal Dismissed.