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TMI Blog1992 (1) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 kgs 200 gms of opium (of third country origin) valued at Rs. 16,800/- was recovered from the brief case carried by the appellant. On demand the appellant, could not produce any required documents for importation and legal possession of the said opium. A seizure list was prepared of the brief case and opium in the presence of the bus staff, namely Haribans Rai driver and Binod Kumar conductor of the said bus BHF 3611. The appellant gave his statement that the owner of the opium were Banmalidas Potedar and Ramdhani Singh. After the arrest, the appellant was forwarded to the Presiding Officer, Economic Offences, Muzaffarpur along with the seized articles and also a complaint for taking cognizance and thereafter, the prosecution had been started against the appellant. 4. The appellant denied the prosecution case. No witness in defence has been examined. 5. The prosecution in support of its case, has produced seven witnesses, P.W. 1 is Ram Pravesh Das, Inspector Customs who had supported the case about the checking, recovery and seizure in his presence. He has also proved the seizure list and recording of the statement of the accused P.W. 2 Indradeo Yadav, Head Constable, had been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also signed, in cross-examination he has said that the place from where checking was done was about 11/2 kms. from the Bazar. In the bus, the appellant was 2-3 seats behind the first row of seats. The opium was recovered from the brief case. He had gone for 15 days narcotic drugs training and that is why he was able to understand that the seized article was narcotics. He has said that the list was signed only by the bus driver and conductor but other passengers had refused to become witnesses. P.W. 1 is Ram Pravesh Das, who too has said that he had gone along with the checking party and from the bus, on checking, a brief case containing 4 kgs. 200 gms. of opium was recovered and the seizure list was prepared by P.K Sharma and signed by the witnesses. The seizure opium was kept in packets. The brief case was marked Ext. 1 and opium Ext. II. The spot was lonely one and there was no shop. The appellant was sitting 2-3 seats behind its front seat. The brief case was kept below the seat of the appellant which he claimed to be his own. The accused had not said about the Jai Prakash Jhola and he had not said that the brief case did not belong to him. 9. P.W. 3, Indradeo Yadav, has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er persons of the party have been examined who are of the rank of Custom Superintendent and Excise personnels. They have been subjected to cross-examination. Simply because they are officers, they cannot be said to be interested or unreliable. The evidence of witnesses cannot be judged on the basis of their being officials and non-official. The merit of the evidence is to be considered and not the persons who come to depose. Nothing has come out to show that these witnesses examined by the prosecution, were inimical or were interested in falsely implicating the appellant. The Supreme Court in the case of Nath Singh v. State of M.P. (AIR 1973 SC 2783) where all the witnesses had turned hostile has said at page 2784 (para 2) 'that their evidence could not destroy the prosecution case or mark it doubtful. The prosecution case was supported by the evidence of two police officers P.Ws. 5 and 6. The mere fact that they were police officers was not enough to discard their evidence. No reason was shown for their hostility to the appellant'. Again in the case of Gyan Singh v. State of Punjab, AIR 1974 SC 1024, at page 1026 (para 5) the Supreme Court has observed: 'in a recent case to which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intention. The learned single Judge again referring to Division Bench decision of the Allahabad High Court in the case of Mahesh v. Union of India, 1988 ALJ 411 at page 466 (para 12) in which it has been said : 'these authorised officers are competent to exercise the powers exercisable by an officer in charge of a police station. But thereby they will not become police officers by themselves and that the authorised officers were not police officers in spite of the provisions of Section 53 and Chapter XII would not be attracted to their investigation and therefore the Division Bench ultimately came to the conclusion that the charge sheet could not be filed by the authorised excise officer investigating narcotic offences and they could not file a complaint under Section 180(1)(a) of the Code and they cannot file a charge-sheet under Section 178 of the Code'. In the end it was said in para 15 of the said judgment that 'in view of the aforesaid discussions it is clear that all the provisions of Chapter XII of the Code cannot be attracted in respect of narcotics offences investigated by authorised officers of customs, excise and other departments and such authorised officers are not po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce station investigating a cognizable offence, he does not thereby become a police officer under Section 25, Evidence Act, unless he has the power to lodge a report under Section 173 of the Code. The Supreme Court upheld the two decisions in Mahesh v. Union of India (supra) and Mangal Singh Bhan Singh Rathod (supra). 16. In this view of the matter the confessional statement of the appellant which is on the record can be looked into and can be relied on. In this confessional statement, the appellant has admitted that he was in possession of these articles recovered from his possession since, the recovered articles have been admitted to be his own though for other purposes, as such, non examination of the recovery witnesses has got no effect, more specifically when other witnesses examined by the prosecution, on scrutiny are found to be trustworthy and their evidence is credible. Thus the recovery of the articles has been established from the possession of the appellant for which there is no explanation and so, the appellant has been rightly convicted and sentenced by the learned Additional Sessions Judge. 17. In the result the judgment and order passed by the learned 2nd Additio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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