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2000 DIGILAW 264 (RAJ)

Chunni Lal v. State of Rajasthan

2000-02-29

S.C.MITAL

body2000
Judgment S.C. Mital, J.-This appeal filed by the accused in Sessions Case No. 117/97 of the Court of Special Judge, Narcotic Drugs and Psychotropic Substances Cases, Rajsamand, is directed against the Judgment and order of conviction and sentence under Section 8 read with Section 18, Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the NDPS Act’) and sentence often years rigorous imprisonment and a fine of Rs. one lac; in default one year rigorous imprisonment. 2. The charge against the appellant was that on 22-8-1997 at 11.25 pm. he was found in possession of 1 Kg. contraband opium at the Sati Crossing, Raja Ji Bavji Ka Sthan, Railmagra, in violation of the provisions of the NDPS Act and thereby he committed an offence punishable under Section 8 read with Section 18 of the NDPS Act. 3. The case of the prosecution shortly stated is that the S.H.O. Police Station Railmagra having received information that accused will come to Sati Crossing, Rajaji Bavji Ka than at Railmagra and will proceed to Udaipur and from there to Gujarat with opium in his possession, went along with A.S.I. Bhanwar Singh, H.C. Chandan Singh and constable Narbada Shanker, Manoharlal and Bhagwan Lal in a jeep driven by Gani Mohd driver to the scene of occurrence. A trap was laid down and the accused when came there, was stopped and on inquiry he disclosed his name as Chunnilal. Alter making compliance of the provisions of Section 50 NDPS Act, search was taken and 1 Kg. opium in the polythene bag was found wrapped in a cloth on the belly and after completing the usual and necessary procedure it was seized after taking and sealing the sample for chemical analysis. The sample which was sent for chemical analysis gave positive test for the presence of the chief constituents of coagulated juice of opium poppy having 2.5% morphine. 4. Theaccused denied the charge and claimed trial. The prosecution examined 11 witnesses. PW 1 Shyam Sunder, PW 5 Bhagwanlal Constable, PW 9 Chandan Singh H.C. PW 11 Bhanwar Singh A.S.I. are witnesses to the search and seizure of contraband opium from the possession of the accused. Badri Lal PW 3, Nathulal PW 4, Kishanlal PW 6 and Narayanlal PW 7, who have been declared hostile, are motbir witnesses. PW 1 Shyam Sunder, PW 5 Bhagwanlal Constable, PW 9 Chandan Singh H.C. PW 11 Bhanwar Singh A.S.I. are witnesses to the search and seizure of contraband opium from the possession of the accused. Badri Lal PW 3, Nathulal PW 4, Kishanlal PW 6 and Narayanlal PW 7, who have been declared hostile, are motbir witnesses. Parbat Singh PW 8 Head Constable has deposed about the articles kept in sealed condition in the Malkhana, Haraklal PW 2 took the samples in sealed and intact condition to the Forensic Science Laboratory, Jaipur for chemical examination and produced receipt Ex. P16. Naryana Singh PW 10 is the Investigating Officer. The accused in his examination under Section 313, Cr.P.C. denied the fact of recovery of contraband opium from his possession and said that he has been falsely implicated in this case. He did not examine any witness in defence, but got exhibited the statements under Section 161, Cr.P.C. of Bhagwanlal and Chandan Singh as Ex. Dl and Ex. D2. The learned trial Court on the entire appraisal of the evidence on record came to the conclusion that contraband opium was recovered from the possession of the accused and the accused was held guilty and sentenced as stated above. 5. Themain thrust of the arguments of the appellant’s-Counsel is that the learned trial Court has erred in placing reliance on the recovery of contraband opium from the appellant since the mandatory requirements prescribed under Sections 42 and 50 of the NDPS Act have not been followed by the Police Officer before making the search which led to the seizure of the articles. In support of his contention, learned Counsel for the appellant placed reliance on 1999 CriLJ 4059: AIR 1999 SC 2966 , T. Hamza v. State of Kerala 1999 CriLJ 4516(MP), (Sushil Kumar v. State of M.P.), 1999 CriLJ 4677(Allahabad), (State of U.P. v. Pramod Kumar), 1999 CriLJ 4746 (Ker), (Rasheed v. State of Kerala) and 1999 CriLJ 4817 (Andh Pra), (Purushothama Das v. State of A.P.). The learned Public Prosecutor has supported the impugned Judgment arguing that the aforesaid mandatory provisions have been complied with and the trial against the appellant is not vitiated. The learned Public Prosecutor in support of his contention cited 1995 CriLJ 772 (Raj) (Rewant Ram v. State of Rajasthan) and 1999 CriLR (SC) 443: (1999 CriLJ 3663), (Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras). The learned Public Prosecutor in support of his contention cited 1995 CriLJ 772 (Raj) (Rewant Ram v. State of Rajasthan) and 1999 CriLR (SC) 443: (1999 CriLJ 3663), (Pon Adithan v. Deputy Director, Narcotics Control Bureau, Madras). It was also argued that the provisions of Section 42 are not attracted in the facts and circumstances of this case, and, therefore, even if a non-compliance, it is not fatal to the prosecution case. He relied upon 1999 CriLR (Raj) 1, (Karnail Singh v. State of Rajasthan with Billaur Singh v. State of Rajasthan) and 1999 Cri LR 64 (SC) : (1998 CriLJ 4589), (Sayar Pun v. State of Rajasthan). 6. Thereforethe question that arises for consideration in this appeal is ‘whether the mandatory procedure prescribed under Sections 42 and 50 of the NDPS Act has been followed before taking search and seizure of the articles.’ 7. In this case, the search of the appellant was taken at the Sati Crossing, Railmagra, which is a public place. I am inclined to agree with the learned Public Prosecutor that it was not incumbent on the part of the Police Officer to comply with the procedure contained in Section 42 of the NDPS Act. This contention is supported by Karnail Singh v. State of Rajasthan (1999 CriLR 1 (Raj) and Sayar Pun v. State of Rajasthan (1998 CriLJ 4589) (supra). In the case Sayar Pun v. State of Rajasthan, the accused was found sitting on a Bench on the Mandiya Road, a public road. It was held by the Hon’ble Supreme Court, neither the procedure under Section 42(2) of the NDPS Act was required to be followed nor a site plan was required to be prepared. The mandatory provision of Section 42 is applicable in a case where the recovery is made from a building, conveyance or enclosed place. However, in this case the oral and documentary evidence go to prove that the compliance of the provisions of Section 42 NDPS Act have been made by the Police Officer S.H.O. P.W. 1 Shyam Sunder. The information by the Mukhbir has been reduced into writing Ex. P1 and it has been proved by Shyam Sunder S.H.O. P.W. 1. This information has been further recorded in the Rojnamcha Aam Ex. P2 and a copy was sent to the Dy. S.P. as mentioned in Ex. P3 through Narayan Singh, Constable and also entered in Rojnamcha Aam Ex. The information by the Mukhbir has been reduced into writing Ex. P1 and it has been proved by Shyam Sunder S.H.O. P.W. 1. This information has been further recorded in the Rojnamcha Aam Ex. P2 and a copy was sent to the Dy. S.P. as mentioned in Ex. P3 through Narayan Singh, Constable and also entered in Rojnamcha Aam Ex. P4. Narayan Singh, Constable has not been examined by the prosecution, but no adverse inference can be drawn because there is no cogent reason to disbelieve the statements of Shyam Sunder, Bhagwanlal, Chandan Singh and Bhanwar Singh and the aforesaid documents. Therefore, I have no hesitation to hold that even if it is considered that the provisions of Section 42 were required to be followed then the same have been followed in this case by the police officer. 8. A compliance of the mandatory provision of Section 50 has also been proved by the above named witnesses i.e. Shyam Sunder P.W. 1, Bhagwanlal P.W. 5, Chandan Singh P.W. 9 and Bhanwar Singh P.W. 11. I have perused the cross-examination made by the defence and there is no reason to discard their testimony. It has been held in Pon Adithan v. Deputy Director, Narcotics Control Bureau (1999 CriLJ 3663) (supra) that the compliance of Section 50, NDPS Act can be proved even by an oral testimony which does not suffer from any infirmity or there is no good reason for not accepting the same. In the instant case, besides the oral evidence the prosecution has proved the compliance of Section 50 by proving the memo Ex. P6 prepared in this regard. It is contended on behalf of the learned Counsel that the service of the notice Ex. P6 regarding the compliance of Section 50 of the NDPS Act is not mentioned in the recovery memo Ex. P7 which leads to the inference that compliance has not been made and the documents have been prepared lateron. I am unable to agree with this contention because this fact has been mentioned in F.I.R. Exs. PLO and P11. In view of the above discussion, the contention about the non-compliance of Section 50 of the NDPS Act is untenable. 9. It is further argued that the prosecution has not proved by link evidence that the sample was kept intact and sealed till it was sent to the Forensic Science Laboratory. PLO and P11. In view of the above discussion, the contention about the non-compliance of Section 50 of the NDPS Act is untenable. 9. It is further argued that the prosecution has not proved by link evidence that the sample was kept intact and sealed till it was sent to the Forensic Science Laboratory. I have carefully considered this contention with reference to the oral and documentary evidence on record. Specimen seal memo Ex. P8 was prepared by the police officer, which bears the signatures of the motbirs. The seals have been also affixed on the recovery memo Ex. P7 which has been signed by the motbir witnesses and the accused. Ex. P14 is the letter which was sent by S.H.O., Railmagra to S.P., Rajsamand requesting him to forward the sample for chemical examination to Forensic Science Laboratory. The specimen seal memo was also enclosed with the other documents with this letter. Ex. P15 is the letter addressed by S.P., Rajsamand to the Director, Forensic Science Laboratory, Jaipur wherein also the list of enclosed documents have been given which includes the specimen seal impression. The Forensic Science Laboratory Report Ex. P22 recites that the sample was properly sealed bearing impression which tallied the specimen seal impression forwarded and the seals were intact. The receipt Ex. P16 has also been produced by the prosecution. 10. Thelearned Counsel argued that there is no mention in this receipt that specimen seal impression was also received along with the letter in the Forensic Science Laboratory. But this contention only needs to be mentioned to be rejected because letter was sent along with the sample, with all the enclosed documents mentioned therein including the specimen seal memo. Ex. P17 is the copy of the entry in the Malkhana which mentions that the sample in the sealed and intact condition was given to the courier Harak Lal P.W. 2. It is true that separate entries have not been made about the delivery of the sample on 27-8-1997 and the date on which the receipt was submitted by Harak lal to the Malkhana Incharge Parbat Singh H.C. But this fact alone does not raise any suspicion or to hold that the samples were in any manner tampered with. Ex. It is true that separate entries have not been made about the delivery of the sample on 27-8-1997 and the date on which the receipt was submitted by Harak lal to the Malkhana Incharge Parbat Singh H.C. But this fact alone does not raise any suspicion or to hold that the samples were in any manner tampered with. Ex. P18 is the specimen seal memo which was forwarded along with the sample, of course it does not bear the signatures of the motbirs, but it has been prepared when the sample was sent. It has the imprint of seal, which has been used for sealing the sample for which a specimen seal memo bearing the signatures of the motbirs Ex. P8 has been prepared at the time of the seizure. The prosecution has proved all these documents by the evidence of Shyam Sunder S.H.O. P.W. 1, Malkhana In-charge Parbat Singh H.C. P.W. 8 and the courier Harak Lal Constable P.W. 2. After going through the cross-examination of the above witnesses, I find no good reason for not accepting their version that the sample was kept intact and sealed throughout till it was deposited in ‘the Forensic Science Laboratory. Therefore, it has been amply proved that the sample was not tampered with and it was received in the Forensic Science Laboratory in properly sealed and intact condition. 11. I, therefore, do not find any infirmity in the impugned Judgment . The prosecution has proved beyond reasonable doubt that contraband opium was recovered from the possession of the appellant. He has been rightly convicted and sentenced under Sections 8/18 of the NDPS Act. 12. Consequently, the appeal is hereby dismissed.