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2000 DIGILAW 202 (RAJ)

Kutabdeen v. State of Rajasthan

2000-02-16

MOHD.YAMIN

body2000
Honble YAMIN, J.–This is a revision against the judgment of learned Additional Sessions Judge No.1, Jodhpur dated 10.7.1991 by which he dismissed the appeal of the petitioner and confirmed his conviction and sentence of six months rigorous imprisonment with a fine of Rs. 100/-and in default to undergo one months rigorous imprisonment under each count for offences under Sections 13 and 14 of the Dangerous Drugs Act, 1930 (hereinafter referred as `the Act) passed by the Chief Judicial Magistrate, Jodhpur. (2). I have heard the learned counsel for the petitioner as well as learned Public Prosecutor at length and have also perused the record. (3). Briefly stated, the petitioner and six other accused persons were put to trial before learned Chief Judicial Magistrate, Jodhpur for the said offences on the ground that on 2.4.1975 Station House Officer of Shergarh was carrying on anti smuggling campaign. On that date on the basis of secret information he checked truck No. RJQ-9619 coming from the side of Jaisalmer. On search it was found that Mehardeen and Kutabdeen were sitting on the roof of the cabin of truck and 137 packets of charas in four bags were under their seat. They were 137 kg. in weight. Then the petitioner and other persons were arrested and case was registered. After investigation challan was submitted and the petitioner and others were charged for the offences under Sections 13 and 14 of the Act. The petitioner denied his indictment and claimed trial. Prosecution examined eight witnesses in support of its case. The petitioner was examined under Section 313 Cr. P.C. He did not produce any witness in defence. It is further stated that it were Sitaram and Ratanlal who purchased the contraband and driver Mohan Nath and Khalasi Muknaram were transporting the same. It was Thekedar Gopi Kishan through whom the deal was finalised. All of them were prosecuted and charged. After trial Ratanlal, Sitaram and Mukna Ram were acquitted. Mohan Nath, Mehardeen and Gopi Kishan are said to have expired during trial. It was accused petitioner Kutabdeen who was convicted and sentenced as stated above. (4). Learned counsel for the petitioner submitted that the petitioner was a passenger in the truck and that he did not know whether the drug was lying on the roof of the cabin, as such there was no conscious possession of the petitioner. It was accused petitioner Kutabdeen who was convicted and sentenced as stated above. (4). Learned counsel for the petitioner submitted that the petitioner was a passenger in the truck and that he did not know whether the drug was lying on the roof of the cabin, as such there was no conscious possession of the petitioner. He also submitted that the procedure laid down in the Act has not been followed by the Investigating Agency and, therefore, the petitioner could not have been convicted by both the courts below. It has also been submitted that malkhana register in which entry was made has not been proved and it cannot be said that the sample which was sent to the laboratory reached in the same condition in which it was taken. (5). On the other hand learned Public Prosecutor has tried to support the judgment of both the courts below. (6). We start from the initiation of the case. The case of the prosecution is that on 1.4.1975 Station House Officer, Shergarh received an information that drug will be taken from Jaisalmer side to Jodhpur side in a truck. He, therefore, went alongwith staff on the Phalodi road where checking was done. At about 10.30 A.M. on 2.4.1975 truck No. RJQ-9619 came from the Jaisalmer side which was checked and on the roof of the cabin the petitioner was found sitting over the bags which contained 137 kg. of charas which was seized. One kilogram of drug was sent for chemical examination and on analysis it was found to be charas. (7). The law is that the evidence which has already been appreciated by the courts below cannot be further appreciated. In State of Kerala vs. Puttumana Illath Jathavedan Namboodiri etc.,(1), it has been held that the High Court while hearing revisions does not work as an appellate court and will not reappreciate the evidence unless some glaring feature is pointed out which may show that injustice has been done. The counsel stated that he was pointing out glaring features. It has been submitted by the learned counsel that the case of the petitioner right from the very beginning was that he was a passenger in the truck and cross examination to this effect was made to the witnesses. The counsel stated that he was pointing out glaring features. It has been submitted by the learned counsel that the case of the petitioner right from the very beginning was that he was a passenger in the truck and cross examination to this effect was made to the witnesses. As such his contention is that the petitioner was not having conscious possession of the drug and hence he could not have been convicted. There is no other evidence except the evidence of PW-7 Awad Dan who did the checking and to whom the petitioner told that he was travelling as a passenger in the truck as he had purchased some goats at Jodhpur and was going to fetch them. He admitted in the cross examination that the village of the petitioner was about 1-1/2 or 2 kms. away from the main road. Thus admittedly the petitioner belongs to village Bhaguga. Therefore, when the cross examination was done on this point and the witness admitted that village Bhaguga was near the road leading from Jaisalmer to Jodhpur, it cannot be said that the defence of the accused petitioner was after thought. Learned trial Magistrate and appellate Judge did not consider the defence of the petitioner at all and came to the conclusion on the basis of evidence of Awad Dan alone that it was the petitioner who was in possession of the drug. In all probability the defence of the petitioner is correct. (8). One of the considerations why the petitioner was suspected was that the drug was wrapped in newspapers of Urdu language and PW-7 Awad Dan thought that Urdu language is the language of petitioner, therefore, he considered that the drug was being brought by the petitioner. He did not see as to the place from where news papers were published. Urdu may be a language of Pakistan but he was not correct in presuming that the petitioner committed offence because VIIIth Schedule of the Constitution of India recognizes Urdu as an official language. It is not a language of any particular community of India. There are many newspapers which are published in India in Urdu language and it cannot be presumed that since drug was wrapped in a newspaper of Urdu language, it belonged to the petitioner. Urdu is definitely language of Indians and is so recognized under the Constitution. It is not a language of any particular community of India. There are many newspapers which are published in India in Urdu language and it cannot be presumed that since drug was wrapped in a newspaper of Urdu language, it belonged to the petitioner. Urdu is definitely language of Indians and is so recognized under the Constitution. PW-7 Awad Dan proceeded on wrong premise that since the newspaper in which drug was wrapped was in Urdu language (without verifying its place of publication), therefore, the drug belonged to the petitioner. It is to be stated that Urdu language is a language which reveals the composite culture of India. It is a language of all Indians and is so recognized in the Constitution. It is not only one community who speak, read and write the language but persons from all communities do so. In India there have been a number of Urdu scholars of all communities. To name some writers and poets of them, Munshi Prem Chand, Brij Narain Chakbast, Ratan Nath Sharsar, Raghupati Sahai Firaq, Kanwar Mahendra Singh Bedi, Jagannath Azad, Kanhaiya Lal Kapoor are of world fame. (9). Learned appellate Judge stated on page No. 4 of his judgment that PW-7 Awad Dan stated in the cross examination that driver Mohan Nath told him that the bags were put in the truck by the petitioner. It may be stated that evidence of Mohan Nath was not valid as he was a co-accused in this case. Evidence of one accused cannot be read against other. Therefore, the conclusion drawn by the appellate Judge on the basis of statement of Mohan Nath to PW-7 Awad Dan is wrong. So it is proved that the drug was not in conscious possession of the petitioner and he was simply a passenger travelling in the truck and the drug did not belong to him. (10). Besides PW-7 Awad Dan, who is Investigating Officer, committed illegalities in this case. PW-7 Awad Dan stated that it was he who reported the matter to the police station and FIR No. 14/74 was recorded on his report. It is he who has himself investigated the whole case and his attention was drawn in the cross examination to this fact to which he replied that he had requested the Dy. S.P. and the S.P. to change the investigation from him to other Investigating Officer. It is he who has himself investigated the whole case and his attention was drawn in the cross examination to this fact to which he replied that he had requested the Dy. S.P. and the S.P. to change the investigation from him to other Investigating Officer. It means that he knew that he should not have conducted the investigation in the case when he had himself lodged F.I.R. The papers of investigation in this case show that it was PW-7 Awad Dan himself who conducted investigation in the case. Papers of the diary of investigation are available on record which show that it was he who not only made recovery and arrested the petitioner but further investigated the case. The investigation was conducted by him even on 7.4.1975, 8.4.1975 and thereafter. It is he who has investigated the entire case. In Megha Singh vs. State of Haryana (2), the Supreme Court held that in such a case the investigation was illegal and consequently trial was vitiated. PW-7 Awad Dan himself states that he had requested the Dy. S.P. and S.P. to change the Investigating Officer but his prayer was not accepted, shows that the attention of higher officers of police was drawn to illegality which they allowed to continue. It in view of above said Supreme Court citation vitiates the trial. (11). Another glaring feature in this case is found that malkhana register has not been proved in the court. PW-7 Awad Dan stated that he deposited sealed articles in the malkhana which was under the chargemanship of Head Constable Bheru Singh. Bheru Singh has expired. The learned Magistrate inspected the articles lying in police malkhana. The malkhana articles left in the malkhana were in dilapidated condition and the bags were not found sealed. The sample packet which was sent to the laboratory about which report Ex.P/13 is available on record was sent back to the S.P. concerned and the report mentions that remanant of the exhibit is being returned separately in the same container and cover alongwith the label as received affixed on it, duly sealed with the seal impression. The same has not been produced or exhibited in the court neither there is positive evidence to the effect that sealed packet was kept in the malkhana before it was sent to the laboratory. Malkhana register has not been produced. The same has not been produced or exhibited in the court neither there is positive evidence to the effect that sealed packet was kept in the malkhana before it was sent to the laboratory. Malkhana register has not been produced. It was the bounden duty of the prosecution to prove the entries in the malkhana register and if the malkhana incharge had expired the entries could be proved according to the provisions of Indian Evidence Act in such cases. It has not been done and it goes to the very root of the case as it cannot be ruled out that the packet did not reach the laboratory in the same condition in which it was sealed at the time of its seizure. Possibility of tampering with cannot be ruled out. (12). In view of above discussion I find that the glaring features of the case which have been discussed above entitle the petitioner for acquittal. (13). Consequently, the revision petition is allowed and the petitioner is hereby acquitted from the charges levelled against him. Bail bonds of the petitioner are cancelled.