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2000 DIGILAW 467 (RAJ)

Azad Singh v. State of Rajasthan

2000-04-18

SHIV KUMAR SHARMA

body2000
Honble SHARMA, J.–The appellants were accused on the file of learned Sessions Judge, Ajmer in Sessions Case No. 4/96. They were convicted for the offence u/s 8/20 and 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short `the NDPS Act, 1985), and sentenced to undergo 10 years imprisonment and a fine of Rs. 1.00 lacs and in default to further undergo additional imprisonment of two years vide Judgment dated August 12th 1998. Against this Judgment that the present action of filing the appeal has been resorted to by the appellants. (2). According to the prosecution story, the SHO Manglyawas (Ajmer) received secret information on April 20, 1996 to which the SHO alongwith the other police constables rushed at the spot where accused-appellants were searched and Charas weighing 950 grams were found from the possession of accused-Azad Singh, whereas Charas weighing 480 grams and Opium weighing 130 grams were recovered from accused Jaipal Singh. (3). Necessary memos were drawn by the investigating officer and after completion of investigation charge sheet was filed. Charges u/S. 8/20 & 8/18 of the NDPS Act were framed against the accused appellants. They denied the charges and claimed trial. (4). The prosecution examined as many as 9 witnesses and thereafter statements u/s 313 Cr. P.C. of the accused-appellants were recorded in which they stated that they were falsely implicated by the police. No defence witness was however produced by the accused-appellants. The learned trial court after hearing rival submissions, convicted accused-appellants as indicated hereinabove. (5). I have reflected over the arguments advanced by the learned counsel for the parties and carefully scanned the material on record. (6). Mr. Resham Bhargava learned counsel appearing for the appellants canvassed that the prosecution has failed to comply with the mandatory provisions contained in Sections 42, 50 and 57 of the NDPS Act. The prosecution case has not been supported by any independent witness. FIR was not marked exhibit and the prosecution case has no legs to stand. The learned counsel further contended that there is a discrepancy in respect of weight of seized charas and opium as well as samples forwarded for chemical examination and this discrepancy have not been explained. The prosecution case has not been supported by any independent witness. FIR was not marked exhibit and the prosecution case has no legs to stand. The learned counsel further contended that there is a discrepancy in respect of weight of seized charas and opium as well as samples forwarded for chemical examination and this discrepancy have not been explained. He further urged that from the statement of PW7 Gumana Ram, it appears that written notices u/s 50 of the NDPS Act were given to accused appellants but from the arrest memos of Azad Singh (Ex. 7) and Jaipal Singh (Ex. 8), no notice was found in their possession. Therefore the provisions contained in Section 50 of the NDPS Act were not complied with. Learned counsel has placed reliance on various Judgment of the Apex Court and the High Courts. (7). On the other hand, Mr. G.S. Rathore learned Public Prosecutor supported the impugned Judgment and contended that the discrepancies pointed out by the learned counsel for the appellants are technical in nature and they should be ignored. He urged that the prosecution has proved the charges u/s 8/18 and 8/20 of the NDPS Act against accused appellants beyond reasonable doubt. (8). A close scrutiny of the material on record demonstrates that in the instant case the prosecution has failed to exhibit the FIR, which is a basic document. The letter of Superintendent of Police alongwith sealed packets forwarded to the Forensic Science Laboratory (FSL), Jaipur was also not exhibited. Receipt slip of the FSL is exhibited as Ex. P-6, which bears letter No. 9679-80 dated 30.05.1996 of the Super intendent of Police, Ajmer but no such letter of SP Ajmer has been exhibited by the prosecution. (9). A look at FSL Report (Ex. P. 11) goes to show that each of the packet marked A to C contained greenish brown coloured solid substance in cylindrical form packed in polythene packet weighing 52 gm. alongwith the polythene packet. The packet marked B contained semi solid, sticky, dark-brown coloured substance with characteristic smell of opium wrapped in polythene weighing 31 gm. alongwith the polythene. But a look at the Seizure-memo (Ex.P1) demonstrates that the packets marked A & C each contained 50 gm of charas whereas packet `B contains 30 gm of opium. alongwith the polythene packet. The packet marked B contained semi solid, sticky, dark-brown coloured substance with characteristic smell of opium wrapped in polythene weighing 31 gm. alongwith the polythene. But a look at the Seizure-memo (Ex.P1) demonstrates that the packets marked A & C each contained 50 gm of charas whereas packet `B contains 30 gm of opium. From the letter of SP Ajmer, it could have been gathered as to whether the specimen of seal was forwarded to FSL or not but in absence of the said letter, the prosecution has failed to establish that specimen of seals was also sent alongwith the packets. These, discrepancies relating to analysis of seized contraband are very material and I hold that the prosecution has failed to establish that the packets which were sent for analysis were properly analysed by the FSL. (10). Now I proceed to consider the arguments advanced on behalf of the appellants regarding the written notices in respect of rights of the accused-appellants provided u/s 50 of the NDPS Act. Exhibits 2 & 3 are the notices, which were served on the accused before their arrest, according to the SHO-Gumana Ram (PW 7). In his examination-in-chief, witness Gumana Ram states that: ^^nksuksa eqyfteku vktkn flag o t;iky flag dks vyx vyx fyf[kr uksfVl /kkjk 50 ,u-Mh-ih-,l-,DV ds rgr fn;kA nksuksa us uksfVl ds tokc esa ;g fy[kdj fn;k fd os esjs ls rykkh djokus ds fy, lger FksA vktkn flag dks fn;k x;k uksfVl iznkZ ih-2 o t;iky flag dks fn;k x;k uksfVl iznkZ ih-3 gS bu nksuksa ij bZ ls ,Q esjs gLrk{kj gSA** (11). But in the arrest-memos (Ex 7&8) of the accused appellants-Azad Singh and Jaipal Singh, notices were not shown to have been recovered from their possession. (12). In Munna Ali vs. State (1), in similar circumstances, Delhi, High Court indicated that where notice u/s 50 of the NDPS Act was given in writing to the accused but after arrest when search was made of the accused, recovery of that notice was not shown and the accused denied receipt of such notice, this factor throws doubt on prosecution version about the service of notice and shows that mandatory provisions of Section 50 were not complied with. In the instant case at the time of recording statements u/s 313 Cr. In the instant case at the time of recording statements u/s 313 Cr. P.C. specific questions in respect of notices u/s 50 of the NDPS Act were asked from the accused but they denied this fact and stated that the said notices were ever served on them. In these circumstances, the only inference that can be drawn is that the written notices were never served on the accused and the statement of Gumana Ram (PW 7) cannot be relied upon. (13). Learned counsel for the accused appellants pointed out other discrepancies also but it is not necessary to discuss them as aforestated infirmities go into the root of the case and I am satisfied that the prosecution has failed to establish the charges u/s 8/20 and 8/18 of the NDPS Act against the accused appellants beyond reasonable doubt. Investigating agency has not followed the procedure as enshrined by the Statute scrupulously and I have no option but to give the accused benefit of doubt. (14). In State of Punjab vs. Baldev Singh (2) their Lordships of the Supreme Court in para 55 of the said Judgment recorded conclusion No.4 as under: ``That there is indeed need to protect society from criminals. The society intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the affect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by section 50 at the trial, would render the trial unfair. (15). Resultantly, the appeal succeeds and stands allowed. The impugned Judgment dated 12.8.1998 of the learned court below is set aside and the accused-appellants-Azad Singh and Jaipal Singh stand acquitted from the charges u/ss. 8/20 and 8/18 of the NDPS Act. They shall be released forthwith, if not required in any other case. Record of the case be sent back forthwith.