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2001 DIGILAW 1325 (RAJ)

Girdhari @ Gordhan v. State of Rajasthan

2001-08-23

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This appeal has been filed by the accused appellant from jail against the judgment and order dated 25.8.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 46/98 by which he convicted the accused appellant for the offence under Sec. 8/15, of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as `the NDPS Act) and sentenced him to undergo RI for ten years and to pay fine of Rs. one lac, in default of payment of fine, to further undergo RI for six months. (2). Since nobody was representing accused appellant as this appeal has been preferred from jail, therefore, this Court vide order dated 17.7.2001 appointed Shri Amitab Acharya, Advocate as Amicus Curiae to argue the case on behalf of the accused appellant and he has argued the same. (3). The facts giving rise to this appeal, in short, are as follows:- On 29.8.1998 at about 2.30 PM, PW 8 Jagdish Prasad, SHO, Police Station Kotdi District Bhilwara prepared a Parchakayami (Ex.P/11) stating inter-alia that on that day at about 11.15 AM, he received a secret information from mukhbir to the effect that one person, who was wearing kurta and dhoti and whose name was Girdhari, was coming on Atlas cycle from the side of Aakola and on the back of his cycle, there was a katta containing opium (poppy husk) and he would sale that opium on the village. That information was reduced into writing in the form of Ex.P/1 and he also made entries in the Rojnamcha Ex.P/18 of that information Govind Singh and PW 2 Onkarlal and police officials including PW 4 Roop Singh, PW 6 Lal Singh and others proceeded towards the spot in a Government Jeep at about 11.40 AM and reached Aakola Chouraya at about 12.05 PM and they found the person coming on cycle, as per the secret mukhbir information and he was stopped and on being asked, he told his name as Girdhari @ Gordhan (present accused appellant) and he was informed about the secret information and he was given notice Ex.P/2 under the provisions of Sec. 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and Upon this, he gave his consent that he could be searched by PW 8 Jagdish Prasad. Thereafter, search was conducted and on search, a katta was recovered and it was opened and opium poppy husk was found in it and he was not having a valid license to keep that contraband article. It was weighed on the spot and its weight was found to be 20kg. 600 grms., out of which, two samples of 500 grms. each were taken for the purpose of chemical analysis and sealed separately on the spot and marked as A and B and rest opium poppy husk was also sealed separately on the spot and marked as C. The fard of search and seizure prepared on the spot by PW 8 Jagdish Prasad is Ex.P/3. The accused appellant was arrested through arrest memo Ex.P/4. The site plan is Ex.P/5. On this parchakayami Ex.P/11, PW 8 Jagdish Prasad chalked out regular FIR Ex.P/12. A detailed report about search and seizure under Sec. 57 of the NDPS act was sent by PW 8 Jagdish Prasad to SP Bhilwara and the same is Ex.P/14. The seized articles were handed over by PW 8 Jagdish Prasad to the Malkhana Incharge PW 9 Kanhaiyalal, who deposited the same in the nalkhana and made entries in the malkhana Register Ex.P/16. Thereafter, PW 9 Kanhaiyalal gave sample to PW 5 Bhanwar Singh through letter Ex.P/8 first carried the sample to SP Office, Bhilwara and after obtaining a forwarding letter Ex.P/9 from PW 7 Bhagwati Lal, who was working in the SP Office, he deposited the same in the FSL, Jaipur and obtained receipt Ex.P/10. The FSL report is ex.P/21, where it was reported that the sample contained in packet marked A gave positive tests for major chemical constituents of coagulated juice of opium poppy hence sample of powdered parts of opium poppy from which juice has been extracted. After usual investigation, police submitted challan against the accused appellant in the Court. On 7.11.1998, the learned Special Judge, NDPS Cases, Bhilwara framed charge for the offence under Sec. 8/15 of the NDPS Act against the accused appellant. The charge was read over and explained to the accused appellant. The accused appellant denied the charge and claimed trial. During trial, the prosecution in support of its case examined as many as 9 witnesses and got exhibited several documents. Thereafter, statement of the accused appellate under Sec. 313 Cr.P.C. was recorded. No evidence was led in defence by the accused appellant. The accused appellant denied the charge and claimed trial. During trial, the prosecution in support of its case examined as many as 9 witnesses and got exhibited several documents. Thereafter, statement of the accused appellate under Sec. 313 Cr.P.C. was recorded. No evidence was led in defence by the accused appellant. After conclusion of the trial, the learned Special Judge, NDPS Cases, Bhilwara through his judgment and order dated 25.8.1999 convicted and sentenced the accused appellant in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubt against the accused appellant for the offence under Sec. 8/15 of the NDPS Act. Aggrieved from the said judgment and order dated 25.8.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara, this appeal has been filed by the accused appellant from jail. (4). In this appeal, the following submissions have been made by the learned counsel appearing for the accused appellant: (1) That compliance of Sec. 42(2) of the NDPS Act has not been made in this case as Banshi, who gave the copy of secret information Ex.P/1 to the higher officers, has not been produced. (2) That compliance of Sec. 50 of the NDPS Act has not been made in this case. (3) That both motbir witnesses have been declared hostile and since they are not supported the prosecution case, therefore, it creates doubt on the prosecution story. (4) That link evidence is missing in this case as when the articles 1 to 3 were produced in the court at the time of examination of PW 8 Jagdish Prasad, the seal was found broken. Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. (5). On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Bhilwara. (6). I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. Point No. 1 (7). (5). On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Bhilwara. (6). I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case. Point No. 1 (7). On point No.1, the case of the learned counsel for the accused appellant is that since the person, namely, Banshi, who gave the copy of the secret information Ex.P/1 to the higher officers, has not been produced, therefore, it can reasonably be inferred that compliance of mandatory provisions of Sec. 42(2) of the NDPS Act has not been made and thus, the whole trial stands vitiated. (8). There is no dispute on the point that provisions of Sec. 42 of the NDPS Act, if they are applicable in any case, are mandatory. For that the decisions of the Honble Supreme Court in State of Punjab vs. Balbir Singh (1), Mohinder Kumar vs. The State, Panaji Goa (2), State of Punjab vs. Baldev Singh (3) and Abdul Rashid Ibrahim Mansuri vs. State of Gujarat (4) may be seen. (9). To see whether compliance of Sec. 42 of the NDPS Act has been made in this case or not, the evidence and documents produced by the prosecution have to be looked into. (10). In the present case, there is no dispute that Ex.P/1 is the fard of mukhbir information which was reduced into writing by PW 8 Jagdish Prasad and thus, compliance of Sec. 42(1) of the NDPS Act has been made in this case. (11). There is also no dispute that Bansi, who took the copy of the information Ex.P/1 to the office of SP or Dy. SP, has not been produced. But, PW 3 Vinay Kumar Gupta, Dy.SP has been produced. (12). PW 3 Vinay Kumar Gupta states in his statement that on 29.9.1998 he was Dy.SP and copy of Ex.P/1 was given to him by one Bansi and he gave his signatures on the back of Ex.P/1, which were marked G to H. (13). Thus, there is clear evidence in the statement of PW 3 Vinay Kumar Gupta that he received copy of the secret information Ex.P/1 from Bansi and he himself gave signatures on the back of Ex.P/1 showing that he received it. Thus, there is clear evidence in the statement of PW 3 Vinay Kumar Gupta that he received copy of the secret information Ex.P/1 from Bansi and he himself gave signatures on the back of Ex.P/1 showing that he received it. In these circumstances, if Bansi is not produced, it would not affect the prosecution case as the receiver of copy of information Ex.P/1, namely, PW 3 Vinay Kumar Gupta, Dy.SP has been produced and he has admitted that copy of information Ex.P/1 was given to him by Bansi. (14). Hence, it is held that compliance of Sec. 42 (1) and (2) of the NDPS Act has been made in this Case and the argument No.1 is rejected. Point No. 2 (15). This point No. 2 relates to Sec. 50 of the NDPS Act has not been made in this case. (16). The Honble Supreme Court in so many cases has held that the provisions of Sec.50 of the NDPS Act are mandatory in nature and violation of these provisions would per se be fatal to the prosecution case or in other words, non-compliance of these provisions would have the effect of vitiating the entire trial. (17). Whether compliance of mandatory provisions of Sec. 50 of the NDPS Act has been made or not is a question of fact and for that evidence has to be looked into. (18). The so balled notice, which was given by PW 8 Jagdish Prasad to the accused appellant under the provisions of Sec. 50 of the NDPS Act is Ex.P/2 and in that notice, there is a clear mention of the fact that PW 8 Jagdish Prasad put question to him whether he wanted to be searched before the Magistrate or Gazetted Officer and upon this, he gave his consent in writing that the could be searched by him and the same is marked I to J and the signatures of the accused appellant are marked K to L and they have been proved by the statement of PW 8 Jagdish Prasad and other witnesses. (19). Thus, it can be concluded that compliance of Sec. 50 of the NDPS Act has been made in this case, as before making search, option was give to the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer and after obtaining his consent, search was conducted. (20). (19). Thus, it can be concluded that compliance of Sec. 50 of the NDPS Act has been made in this case, as before making search, option was give to the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer and after obtaining his consent, search was conducted. (20). So far as the decision relied upon by the learned counsel for the accused appellant in T. Hamza vs. State of Kerala (5), is concerned, it would not be helpful to the accused appellant as in that case Police Officer did not ask accused before effecting search that whether he should be searched in presence of Gazetted Officer, but in the present case, position is otherwise and option of Gazetted Officer and Magistrate was given by PW 8 Jagdish Prasad to the accused appellant. (21). Hence, argument No. 2 also stands rejected. Point No.3 (22). On this point, the case of the learned counsel for the accused appellant is that both motbir witnesses have been declared hostile and since they are not supporting the prosecution, therefore, prosecution case becomes doubtful. (23). Though both the motbir witnesses, namely, PW 1 Govind Singh and PW 2 Onkarlal have been declared hostile, but they have admitted their signatures on relevant fards. Therefore, it they have been declared hostile, the case of the prosecution is not affected, rather since they have admitted their signatures on the relevant documents, it should be held that these documents were executed in their presence and they are not telling truth in the Court. Point No.4 (24). On this point, the case of the learned counsel for the accused appellants that when the articles 1 to 3 were produced in Court at the time of examination of PW 8 Jagdish Prasad, the seal was found broken and thus it can be inferred that articles and samples were not kept in proper custody and proper form and link evidence is missing in this case. (25). (25). From the statement of PW 9 Kanhaiyalal, who was at the relevant time Malkhana Incharge, it is well proved that seized articles and samples were deposited in the Malkhana is a sealed condition and in sealed condition, the sample was given by him to PW 5 Bhanwar Singh, who first carried the sample through letter Ex.P/8 to the SP Office, Bhilwara and after obtaining a fresh forwarding letter Ex.P/9 from PW 7 Bhagwati Lal, who was at the relevant time working in the SP Office, bhilwara, He deposited the sample is sealed condition in FSL, Jaipur and obtained receipt Ex.P/10. (26). Thus, there is ample evidence that the seized articles and samples were kept in proper form and proper custody and that the seals put on the articles and samples remained intact from the date of seizure till the sample reached the hands of the Chemical Examiner. (27). In these circumstances, if the seal on the articles produced in Court is found broken, it would not affect the prosecution case as there is evidence that the sample reached the hands of the Chemical Examiner in a sealed condition. in this respect, the decision of the Honble Supreme Court in Rangiram vs. State of Haryana (6), may be referred to where it was held that if there is evidence that sample sent to Chemical Examiner was in proper forum, the fact that seal was found broken in Court would not conclude that material was substituted. (28). So far as the decision of this Court in Madan vs. The State of Rajasthan (7), is concerned, it would not be helpful to the accused appellant as in the present case, there is evidence that seals on the seized articles and samples from the date of seizure till sample reached the hands of the Chemical Examiner remained intact and they were not tampered with Apart from this, in that case, articles were not produced in Court and from this point of view, the prosecution case was not found proved beyond reasonable doubt, while in the present case, the articles have been produced in Court. (29). For the reasons stated above, the findings of the learned Special Judge convicting the accused appellant for the offence under Sec. 8/15 of the NDPS Act are liable to be confirmed and this appeal is liable to be dismissed. (29). For the reasons stated above, the findings of the learned Special Judge convicting the accused appellant for the offence under Sec. 8/15 of the NDPS Act are liable to be confirmed and this appeal is liable to be dismissed. Accordingly, the appeal filed by accused appellant Girdhari @ Gordhan from jail is dismissed, after confirming the judgment and order dated 25.8.1999 passed by the learned Special Judge, NDPS Cases, Bhilwara.