Research › Search › Judgment

Rajasthan High Court · body

2000 DIGILAW 269 (RAJ)

Banwari Lal v. State of Rajasthan

2000-02-29

SHIV KUMAR SHARMA

body2000
JUDGMENT 1. - The appellant was accused in Sessions Case (Special) No. 41 of 94 on the file of learned Special Judge, NDPS Cases and Additional Sessions Judge No.1 Kota. He was found guilty under Section 8/21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short the NDPS Act), convicted thereunder and sentenced to 10 years Rigorous imprisonment and fine of Rs. 1,00,000/- (in default to further undergo sentence of 2 years Rigorous imprisonment). 2. Aggrieved by the conviction and sentence the action for filing the instant appeal has been resorted to. I have reflected over the rival submissions and carefully scanned the material on record. 3. On the fateful day of 31.5.94, at about 3.00 p.m. the accused appellant (in short the accused) was arrested under Section 8/21 of the NDPS Act. The allegation was that the accused was in illegal possession of 133 gms of 'Smack', Charge-sheet was filed, the accused denied the charge and claimed trial. Prosecution examined as many as 11 witnesses. In the statement recorded under Section 313 Cr.RC. the accused stated that the witnesses deposed against him on account of malice. However, no witnesses was examined on behalf of the accused. Learned trial court after hearing the arguments convicted the accused as indicated hereinabove. 4. Before proceeding further following undisputed facts need be noticed. (a) In Criminal Case No. 123/94 under Section 8/21 of the NDPS Act, accused Ramesh Chand informed sub-inspector A.U. Siddique on May 30, 1994 that he purchased the Smake weighing 7 gms from Banwari Lal son of Ramdhan Meena of Bapawar. Banwari Lal was involved in the business of Smack and he can show the house of Banwari Lal. This information was recorded and information memo was exhibited. (b) Shri Prem Prakash Tak, Dy. S.R recorded report No. 1018 in the 'Rojnamcha Aam' at 6.25 a.m. on May 31, 1994 and proceeded towards the house of Banwari Lal alongwith accused Ramesh Chand, A.U. Siddique S.I. and other constables. Before proceeding Prem Prakash Tak directed constable Ram Narayan to procure two independent witnesses before him. Another report was lodged thereafter to the effect that no independent person was ready to become witness, therefore, Bhora Ram S.I. and Ram Head Constable were nominated as independent witnesses. Before proceeding Prem Prakash Tak directed constable Ram Narayan to procure two independent witnesses before him. Another report was lodged thereafter to the effect that no independent person was ready to become witness, therefore, Bhora Ram S.I. and Ram Head Constable were nominated as independent witnesses. (c) Alleged house of Banwari Lal was searched in the presence of Bhora Ram and Ram Kumar at 7.00 a.m. and Smack weighing 133 gms was recovered from a bag, hanging on a wall in a room. Memo of recovery was drawn and Banwari Lal was arrested. Thereafter some utensils were also recovered. 5. The plain and apparent object of the Act is to prevent by a rigid control of the possession of the narcotic drugs and Psychotropic Substances, the danger of public health, and to guard society against the social evils which an uncontrolled traffic in drugs in bound to generate. But with a view to achieve the object of the Act interest of innocent citizen has to be protected from illegal or irregular invasions of his liberties by the authorities. The interest of the State cannot be magnified by the authorities by vanishing the safeguards provided in the Act for the protection of citizen and by adopting irregular methods. 6. In the light of afore-quoted object of the Act, I now proceed to examine the testimony of the prosecution witness. A.U. Siddique PW 1, in his cross-examination admits that at the time of search of house of Banwari Lal, inhabitants from locality were gathered and the house of Banwari Lal was situated in a busy area. Ram Kumar PW 2, states in his cross-examination that at the time of search, few other persons were also present in the room. Altaf Hussan PW 3, states that Dy. S.R did not call the persons who were gathered there. Boma Ram PW 5, states that when they went-out after making search there was a crowd out side the house. Kishan Lal PW 6, also states that there was a crowd at the time of search outside the house. Mohan Lal Yogi PW 10, in his cross-examination admits that in the house where Banwari Lal lives, his mother, father and brother were also residing. He also admits that he did not enter into the room where the Smack was found. Kishan Lal PW 6, also states that there was a crowd at the time of search outside the house. Mohan Lal Yogi PW 10, in his cross-examination admits that in the house where Banwari Lal lives, his mother, father and brother were also residing. He also admits that he did not enter into the room where the Smack was found. Prem Prakash PW 11, in his cross-examination admits that at the time of search the persons were coming and going. He requested them to become witness but they declined. He also admits that family of Banwari Lal was present at the time of search. 7. Section 51 of the NDPS Act makes applicable the provisions of the Code of Criminal Procedure, 1973, in so far as they are not inconsistent with the provisions of the Act, to all warrants issued and arrests, searches and seizures made under the Act. The expression "in so far as they are not inconsistent with the provisions of this Act" clearly indicates that whenever provisions have been made in the Act with respect to such matters, recourse can not be had to the provisions of the Code of Criminal Procedure. It may be noted that specific provisions have been enacted in section 41 of the Act to deal with the circumstances in which, warrants or authorisation for arrest, search or seizure can be issued. The rules regarding searches by police officer are contained in section 165 and 166 of the Code of Criminal Procedure. Rules of 6.24 of the Rajasthan Police Rules, 1965 provides that search list under section 103(2) Cr.RC. shall be prepared in Forms No. 6.24 (1)(B) and 6.24 (1) (C) respectively. 8. In the instant case the house of the accused was situated in busy area and it was incumbent upon the investigating officer Prem Prakash Tak to make search in the presence of independent witnesses of the locality. The provision made under section 100(4) Cr.RC. is a salutary safeguard to ensure the sanctity of the search conducted by the police officers. The mere statement by the Investigating Officer that he tried to associate some respectables of the locality but none was available cannot suffice as a convenient bypass to the said provision. As already stated crowd was gathered near the house of the accused but not a single independent person was associated with the search. The mere statement by the Investigating Officer that he tried to associate some respectables of the locality but none was available cannot suffice as a convenient bypass to the said provision. As already stated crowd was gathered near the house of the accused but not a single independent person was associated with the search. There Lordships of the Supreme Court in State of Punjab v. Baldev Singh ( 1999 (6) SCC 172 ) indicated that if there is no strict compliance with the provisions of Cr.RC. then search would not per e be illegal and would not vitiate the trial. The effect of such failure has to be borne in mind while appreciating the evidence. A close scrutiny of the prosecution evidence leads. me to the conclusion that the recovery of Smack, as alleged, is not free from' doubt. 9. There is yet another infirmity in the investigation. Information given by accused Ramesh Chand, was not forwarded to the immediate Superior Officer under sub- section (2) of section 42 of the NDPS Act and this mandatory provision has been flouted. The prosecution has also failed to establish that the room from where the Smack is alleged to have been recovered, was in exclusive possession of the accused. As per statements of the prosecution witnesses the accused was living in the house with his mother, father and brother. The I.O. has failed to justify as to why he only implicated the accused and not others. Lord Justice Parker in Lockver v. Gibb (1967(2) QB 243 at Page 248 (DC)) said, "In my Judgment it is quite clear that a person can not be said to be in possession of some article which he or she does not realise, is for example in her handbag, in her room or in some other place over which she has control. That I should have thought is elementary, if something were slipped into your basket and you had not the vaguest notion, if was there at all you could not possibly be said to be in possession of it." The prosecution in my opinion has failed to prove that bag of Smack was in the exclusive possession of the accused, therefore, lingering doubt does arise regarding genuineness of the recovery of the Smack from the possession of accused. The learned lower court has not properly appreciated the evidence of the prosecution witnesses. 10. The learned lower court has not properly appreciated the evidence of the prosecution witnesses. 10. Resultantly, the appeal stands allowed and the judgment dated February 20, 1996 of the court below is set-aside and the accused-appellant shall stand acquitted from the charge under section 8/21 of the NDPS Act, 1985. The accused appellant shall be released forthwith if not required in any other case. The record of the case be sent back.Appeal allowed. *******