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2000 DIGILAW 1037 (RAJ)

Paras v. State of Rajasthan

2000-08-16

SUNIL KUMAR GARG

body2000
JUDGMENT 1. - The above-named accused-appellant has preferred this appeal against the judgment and order dated 29.1.1999 passed by the learned Additional Sessions Judge, Sojat District Pali in Sessions Case No. 155/92 by which he convicted the accused-appellant for the offence under section 8/18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') and sentenced him to ten years' Rigorous Imprisonment and fine of Rs. 1 lac and in default of payment of fine, to further undergo three years' R.I. 2. The facts giving rise to this appeal are as follows:- On 10.11.1990 at about 4.30 p.m., PW 3 Bhanwar Singh, Prevention Officer, Excise Department, Sojat alongwith other officials PW 4 Rakbaram, PW 5 Thanaram and PW 6 Mod Singh reached near the Bera Bada Kadai during the round, where they saw a person in Khakhi uniform and on seeing them, he ran away, but the constables PW 5 Thanaram and PW 6 Mod Singh caught him and on interrogation he told his name as Paras. On suspicion, he was checked in person and on checking, opium was found in a plastic wrapper) in undergarment. On weighing, its weight was found to be 430 grms. and out of that, a sample of 30 grms. was taken and the only Motbir which was found by PW 3 Bhanwar Singh, is PW 2 Kunaram and the second Motbir was not available. PW 3 Bhanwar Singh prepared the fard of search Ex.P/1 on the spot, also prepared site plan Ex.P/2, arrested accused-appellant on the spot through Ex.P/2, arrested accused-appellant on the spot through Ex.P/3, and lodged the report Ex.P/4 to PW 8 Bhanwar Singh, SHO, PW 8 Bhanwar Singh thereupon chalked out police FIR Ex.P/5. Thereafter, the sample, which was taken, was sent to FSL at Jaipur through PW 7 Jabar Singh and the receipt of depositing the sample in FSL at Jaipur is Ex.P/6. Thereafter, the sample, which was taken, was sent to FSL at Jaipur through PW 7 Jabar Singh and the receipt of depositing the sample in FSL at Jaipur is Ex.P/6. The report of the FSL is Ex.P/9 the result of which is as follows:- "On chemical examination the sample contained in the packet marked A gave positive tests for the chief constituents of the coagulated juice of opium popy having 2.24% (two point two four per cent) morphine." After usual investigation, a challan was presented against the accused-appellant in the Court of Magistrate and, thereafter, the case was committed to the Court of Additional Sessions Judge, Sojat, which was received by the Additional Sessions Judge, Sojat on 2.5.1991.A charge under section 8/18 of the NDPS Act was framed against the accused-appellant on 4.6.1994 by the Additional Sessions Judge, Sojat. The accused-appellant denied the charge and claimed trial. Thereafter, prosecution examined as many as nine witnesses and got exhibited some documents and statement of accused-appellant was recorded under section 313 Cr.P.C. and one witness in defence was produced.After recording evidence and considering material available on record, the learned Additional Sessions Judge, Sojat vide his judgment and order dated 29.1.1999 convicted the accused-appellant and sentenced as stated above holding inter alia : 1. That no doubt in the present case, the compliance of Section 50 of the NDPS Act has not been made, but it would not affect the case. 2. That presence of Motbir PW 2 Kunaram is natural one and his evidence is reliable. 3. That seal remained intact from the very beginning to the stage when the sample was sent to FSL at Jaipur and the recovered article is opium and thus, a case under section 8/18 of the NDPS Act was proved beyond reasonable doubt against the accused-appellant. Aggrieved from the said judgment and order dated 29.1.1999 passed by the learned Additional Sessions Judge, Sojat, the present appeal has been filed by the accused-appellant. 3. In this appeal, the learned counsel for the accused-appellant has made the following submissions:- 1. Aggrieved from the said judgment and order dated 29.1.1999 passed by the learned Additional Sessions Judge, Sojat, the present appeal has been filed by the accused-appellant. 3. In this appeal, the learned counsel for the accused-appellant has made the following submissions:- 1. That for District Pali, Special Court for NDPS Cases was constituted in February, 1992 at Jodhpur and thus, the trial of the present case by the learned Additional Sessions Judge, Sojat is without jurisdiction and the case should have been tried at Jodhpur by the Special Court for NDPS Cases and for that reliance has been placed on Sections 36, 36-A to 36-D of NDPS Act. 2. That provisions of Section 50 of the NDPS Act, which are mandatory, have not been compelled with in the present case and thus, because of non-compliance of these provisions, the trial in the present case stands vitiated. 3. That witness PW 3 Kunaram, who is the only Motbir produced by the prosecution in the present case, is inimical to accused-appellant as this witness has got instituted a rape case against the father of the accused-appellant and thus, his evidence should not have been accepted and in absence of his evidence, there remains no independent witness in this case and hence, prosecution case becomes doubtful. 4. That articles recovered and sample prepared have not been produced in the Court during the trial and Malkhana Register has also not been produced and thus, from this point of view also, the case of the prosecution should not be accepted. Hence, it has been prayed that accused-appellant be acquitted of the charge under section 8/18 of the NDPS Act. 4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 29.1.1999 passed by the learned Additional Sessions Judge, Sojat. 5. I have heard the learned counsel for the accused-appellant and the learned Public Prosecutor and perused the record of the case.Point No. I 6. To appreciate the point No. 1, it may be mentioned here that the present incident took place on 10.11.1990, the case was committed to the Court of Additional Sessions Judge, Sojat by the Magistrate, which was received by the Addl. Sessions Judge, Sojat on 2.5.1991 and the charge under section 8/18 of the NDPS Act was framed against the accused-appellant on 4.6.1994 by the learned Additional Sessions Judge, Sojat. 7. Sessions Judge, Sojat on 2.5.1991 and the charge under section 8/18 of the NDPS Act was framed against the accused-appellant on 4.6.1994 by the learned Additional Sessions Judge, Sojat. 7. It may be stated that there is no dispute that a notification dated 12.2.1992 was issued by the Government of Rajasthan under its delegated powers conferred by Section 36 of the NDPS Act and by that notification, it is also clear that for District Pali, a Special Court for trying cases under NDPS Act was established at Jodhpur. It has also been reported that just after issuance of the said notification, the Special Court for NDPS Cases at Jodhpur started functioning. Note :A copy of the said notification dated 12.2.1992 has been kept in the file of the appeal. 8. The question that arises for consideration is whether in the above circumstances the learned Additional Sessions Judge, Sojat has jurisdiction to conduct the trial in the present case or not. For that we have to go through Sections 36 & 36-A to 36-D of NDPS Act. 9. For convenience Sections 36 & 36-A to 36-D of the NDPS Act are reproduced here:- "36. Constitution of Special Courts.(1) The Government may, for the purpose of providing speedy trial of the offences under this Act, by notification in the official Gazette, constitute as many Special Courts as may be necessary for such areas as may be specified in the notification. (2). . . . . . . . (3). . . . . . . . . 36-A. Offences triable by Special Courts.(1) (a). . . . . . . . . . (b). . . . . . . . . . (c). . . . . . . . . . (d). . . . . . . . . . (2). . . . . . . . . . (3). . . . . . . . . . 36-B. Appeal and revision 36-C. Application of Code to proceedings before a Special Court . . . . . . (c). . . . . . . . . . (d). . . . . . . . . . (2). . . . . . . . . . (3). . . . . . . . . . 36-B. Appeal and revision 36-C. Application of Code to proceedings before a Special Court . . . 36-D. Transitional provisions.(1) Any offence committed under this Act on or after the commencement of the Narcotic Drugs & Psychotropic Substances (Amendment) Act, 1988, until a Special Court is constituted under section 36, shall, notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), be tried by a Court of Sessions : Provided that offences punishable under sections 26, 27 & 32 may be tried summarily. (2) Nothing in sub-sec. (1) shall be construed to require the transfer to a Special Court of any proceedings in relation to an offence taken cognizance of by a Court of Session under the said sub-sec. (1) and the same shall be heard and disposed of by the Court of Sessions." 10. It may be stated here that Sections 36-A to 36-D have been inserted by Section 11 of the Narcotic Drugs & Psychotropic Substances (Amendment) Act, 1988 (Act No. 2 of 1989) to make transitional provisions for the trial of the offences under the Act till the Special Courts as per the provisions of Section 36 of the Act are constituted by the Government for the trial of the offences under the Act. 11. Section 36-A of the NDPS Act confers exclusive jurisdiction to the Special Court constituted for a particular area, to try all offences under the Act, arising from that area. Section 36-B of the NDPS Act provides for appeals and revisions to the High Court from the judgments and orders passed by the Special Courts. Section 36-C of the NDPS Act provides for application of the provisions of the Criminal Procedure Code, 1973 to the proceedings before the Special Court as if the Special Court is a Court of Session. 12. Section 36-C of the NDPS Act provides for application of the provisions of the Criminal Procedure Code, 1973 to the proceedings before the Special Court as if the Special Court is a Court of Session. 12. The Hon'ble Supreme Court took the occasion to deal with the above sections in Supreme Court Legal Aid Committee Representing Under trial Prisoners v. Union of India & Ors., XI 1994(3) Crimes 644 and held thus:- "On a conjoint reading of Sections 36, 36-A to 36-D, it seems clear to us that after the insertion of these provisions all offences under the Act have to be tried by the Special Court for the area constituted under section 36. That is the thrust of Cl. (a) of sub-sec. (1) of Section 36-A. But the legislature was aware that there may be a time gap between the coming it to force of these provisions w.e.f. 29.5.1989 and the Constitution of a Special Court. This period which is a transitional period is taken care of by Section 36-D of the Act. Under this provision during the transitional period offences committed under the Act would be tried by the Court of Session alone notwithstanding anything to the contrary contained in the Code. But once the Special Court is constituted under section 36 that Court alone would have jurisdiction to try the offences under the Act save and except those in relation whereto the Sessions Court has already taken cognizance." 13. A reading of the aforesaid provisions, makes it clear that although Section 36-A confers exclusive jurisdiction on a Special Court to try all the offences under the Act arising from the area for which the Court is constituted, the cases pending in Sessions Court on the date of constitution of the Special Court and of which the cognizance had already taken by such other Court, shall remain unaffected, and continued to be tried by that Court. If the cognizance has not been taken on that date, then the case has to be transferred to the Special Court constituted for that area. 14. If the cognizance has not been taken on that date, then the case has to be transferred to the Special Court constituted for that area. 14. In the present case, there is no dispute on the point that the said notification under section 36(1) of the NDPS Act was issued by the State Government on 12.2.1992 and there is also no dispute on the point that the present case was lying pending in the Court of Additional Sessions Judge, Sojat before the issuance of the said notification. It is also not in dispute that charge in the present case was framed against the accused-appellant on 4.6.1994 meaning thereby after the issuance of the notification. 15. Amended Section 36-D(2) of the NDPS Act clearly states that a case which was pending before the issuance of the notification in the Court of Session, would not be transferred to the Special Court constituted for that area, if cognizance had already been taken by that Sessions Court and the same shall be heard and disposed of by that Sessions Court and not by the Special Court. 16. In the present case, as already stated above, a charge was framed against the accused-appellant on 4.6.1994 by the learned Additional Sessions Judge, Sojat, though the notification was issued by the State Government on 12.2.1992. 17. The question that arises for consideration is whether the present case should have been tried by the learned Additional Sessions Judge, Sojat District Pali or it should have been transferred to the Special Court for NDPS Cases at Jodhpur, after the notification dated 12.2.1992 was issued by the State Government. The answer to this question depends as to when cognizance is said to have been taken for the alleged offence. 18. The Hon'ble Madhya Pradesh High Court in Barji & Ors. v. State of M.P., 1999 (4) Crimes 82 has taken the view that Sessions Court trying offences under the NDPS Act can be said to have taken cognizance only when it applies its mind for framing the charge. Meaning thereby the view of the Hon'ble Madhya Pradesh High Court is that the Court trying cases under the NDPS Act should be deemed to have applied its mind when the charge is framed and thus, for such type of cases, cognizance is taken on the date when the charge is framed. 19. Meaning thereby the view of the Hon'ble Madhya Pradesh High Court is that the Court trying cases under the NDPS Act should be deemed to have applied its mind when the charge is framed and thus, for such type of cases, cognizance is taken on the date when the charge is framed. 19. Earlier to this judgment of the Madhya Pradesh High Court, the Bombay High Court in Chubby Ekwealcoh v. A.K. Sekar & Anr., 1995 Cr.L.J. 2238 has taken the similar view holding inter alia that cognizance can be said to have been taken when the charge was framed and the Court applied its mind for the first time. 20. I am in agreement with the views taken by the Hon'ble High Courts of Madhya Pradesh and Bombay in respect of the matter in question as to when cognizance is said to have been taken in NDPS cases and hold that in NDPS Cases cognizance is taken by the NDPS Court or Sessions Court, as the case may be, when it applies its mind for the purpose of framing charge and not earlier to that. 21. In the present case, charge was framed against the accused-appellant on 4.6.1994 and thus, it can be said that cognizance was taken by the learned Additional Sessions Judge, Sojat on 4.6.1994 when he applied his mind. Thus, it can be said that before 4.6.1994, no cognizance has been taken by the Court of Additional Sessions Judge and therefore, as per the notification dated 12.2.1992 issued by the State Government and as per the provisions of sub-sec. (2) of Section 36-D of the NDPS Act, the case should have been transferred by the Court of Additional Sessions Judge to the Court of Special Judge, Jodhpur constituted for trial of offences under the NDPS Act and in these circumstances, the trial conducted by the learned Additional Sessions Judge, Sojat after the issuance of the said notification on 12.2.1992, was illegal and without jurisdiction and therefore, conviction and sentence passed against accused-appellant by the learned Additional Sessions Judge, Sojat through his judgment and order dated 29.1.1999 cannot be sustained. 22. Hence, the point No. 1 stands decided accordingly.Point No. 2 23. 22. Hence, the point No. 1 stands decided accordingly.Point No. 2 23. From Ex.P/1 fard of search and from the statement of PW 3 Bhanwar Singh, it appears that no compliance of Section 50 of the NDPS Act has been made in this case and there is no dispute on this point as the learned Additional Sessions Judge in his impugned judgment has held that compliance of the provisions of Section 50 of the NDPS Act was not necessary. 24. There is also no dispute on the point that in the present case, personal search of the accused-appellant was made on search, 430 grms. opium was recovered from his possession. 25. The Hon'ble Supreme Court in Kalema Tumba v. State of Maharashtra & Anr., 2000 Cr.L.R. (SC) 38 has clearly held that in case of personal search, provisions of Section 50 of the NDPS Act are mandatory and not otherwise. The Hon'ble Supreme Court in State of Punjab v. Baldev Singh, (1999) 4 SCC 595 has held that the requirement of informing the accused about his right under section 50 comes into existence only when person of the accused is to be searched and it has been further made clear the search of baggage does not require compliance of Section 50 of the NDPS Act. 26. In the present case, the accused-appellant was searched personally, therefore, compliance of section 50 of the NDPS was mandatory and non-compliance thereof would result in acquittal of the accused-appellant as he has been deprived of his valuable right to be examined in presence of a Gazetted Officer or a Magistrate. 27. Hence, the point No. 2 stands decided accordingly.Point No. 3 28. From perusing lard of search Ex.P/1, it appears that PW 3 Bhanwar Singh took Motbir PW 2 Kunaram only and for second Motbir, he wrote that second Motbir was not available and, therefore, he was not taken. 29. PW 2 Kunaram, who is the only Motbir, has admitted the following facts in his cross-examination : 1. That accused-appellant is the Jeth of his niece. 2. That he knows accused-appellant by birth. 3. That before the alleged incident, his niece lodged a report against the father of the accused-appellant for committing the offence of rape. 4. That it is also correct that when the FIR was lodged by his niece he also went to the police station. 30. 2. That he knows accused-appellant by birth. 3. That before the alleged incident, his niece lodged a report against the father of the accused-appellant for committing the offence of rape. 4. That it is also correct that when the FIR was lodged by his niece he also went to the police station. 30. From perusing the facts narrated above, it clearly appears that this witness is totally an interested witness and inimical to accused-appellant and cannot be regarded as an independent witness and thus, his evidence is tainted one, as being interested witness and should have not been relied upon by the learned Additional Sessions Judge. Hence, his evidence is not being relied upon. 31. Apart from this so-called Motbir, there is no other Motbir in the present case. Thus, the whole proceedings of search and seizure in the present case in absence of Motbirs have become doubtful, especially when the accused-appellant was not informed about his right to be searched in presence of Magistrate or Gazetted Officer and in these circumstances, accused-appellant is entitled to acquittal. In this regard, reliance can be placed on the decisions of this Court in Dilip Kumar v. State of Rajasthan, 1999(1) RCC 487 and Dev Chand & etc. v. State of Rajasthan, 2000 Cr.L.J. 194 . 32. In Dilip Kumar's case (supra), it was held as under:- "Mandatory provisions of Section 50 NDPS Act not properly complied with - Bald statement that independent witnesses were not available so policemen were appointed as witnesses does not instil confidence - Conviction cannot be sustained - Hence set-aside - Appellant acquitted." 33. In Dev Chand's case (supra), it has been held as under:- Narcotic Drugs & Psychotropic Substances Act (61 of 1985). Section 50 Search and Seizure - Conducted by Police Officers - No independent witnesses were taken - Place where search was likely to be conducted was a bus stop where presence and availability or independent witness could have been expected - Accused were not informed to get themselves and their belongings searched either in presence of Magistrate or a Gazetted officer - Non-compliance of Section 50 proved -Accused entitled to benefit of doubt." 34. Hence, point No. 3 stands decided accordingly.Point No. 4 35. Hence, point No. 3 stands decided accordingly.Point No. 4 35. In this case, there is also no dispute on the point that Malkhana Register has not been produced nor specimen seals were taken on separate paper nor there is evidence that specimen seals were sent to FSL alongwith the sample. 36. PW 1 Ratandas simply says that articles of the present case were given to him by PW 8 Bhanwar Singh, SHO in two sealed packets and they remained with him from 10.11.1990 to 13.11.1990. He does not say anywhere that the same has been entered by him in the Malkhana Register. 37. PW 7 Jabar Singh is that witness, who took the sample and deposited in the FSL at Jaipur. He states that Malkhana Incharge was Khusal Singh, who handed over the sample to him. 38. PW 8 Bhanwar Singh, who was SHO, Police Station Sojat at the relevant time, admits in his cross-examination that he does not know who was the Head Constable at that time and further, information to his superior officers was sent by him, but the same is not there in the file. 39. The Malkhana Incharge Khusal Singh has not been produced in this case and in absence of the Malkhana Register, it cannot be said that the said articles were deposited in the Malkhana and from the statement of PW 1 Ratandas, it is further clear that sample and other packets remained with him. 40. Thus, from the above, it is apparent that articles seized have not been kept in proper custody and proper form and the evidence produced in this respect by the prosecution is not satisfactory and in absence of this, the findings of the learned Additional Sessions Judge, Sojat in this respect cannot be sustained. 41. For the reasons stated above, it appears that apart from jurisdictional error in the present case, the prosecution has also not been able to prove its case beyond reasonable doubt against the accused-appellant for the offence under section 8/18 of the NDPS Act and thus, the findings of the learned Additional Sessions Judge convicting the accused-appellant for the offence under section 8/18 of the NDPS Act are liable to be set aside and the accused-appellant is entitled to be acquitted. 42. 42. It may be stated here that had there been the only jurisdictional error in the present case and other three points would not been decided against the prosecution, then the question of remanding the case to the learned Special Judge, NDPS Cases, Jodhpur would have come into consideration, but since the case of the prosecution otherwise also fails, therefore, question of remand does not arise.Accordingly, the appeal filed by the accused-appellant-Paras is allowed and the impugned judgment and order of sentence dated 29.1.1999 passed by the learned Additional Sessions Judge, Sojat District Pali are set aside and the accused-appellant is acquitted of the charge under section 8/18 of the NDPS Act.Since accused-appellant-Paras is in jail, he be released forthwith, if not required in any other case.Appeal allowed. *******