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Rajasthan High Court · body

2001 DIGILAW 1441 (RAJ)

Rajendra Singh v. State of Rajasthan

2001-09-11

SUNIL KUMAR GARG

body2001
Honble GARG, J.–This appeal has bee filed by the accused appellant against the judgment and order dated 17.2.1997 passed by the learned Special Judge, NDPS Cases, Rajgarh District Churu in Sessions Case No. 79/96, by which he convicted the accused appellant for the offence under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act) and sentenced him to undergo ten years Rigorous Imprisonment and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo two years R.I. (2). It arises in the following circumstances:- On 13.8.1996 at about 10.00 AM, PW 10 Jai Singh, SHO, Police Station Rajgarh lodged FIR Ex.P/16 with the Police Station Rajgarh District Churu stating inter-alia that on 13.8.1996 at about 6.30 AM, PW 10 Jai Singh alongwith PW 6 Diwan Singh, PW3 Mohar Singh, PW 1 Kailash Chandra and PW 5 Ram Kishan proceeded in a Government Jeep for the purpose of checking and at about 7.00 AM near the village Radwa they saw one person and that person, after seeing the police party, tried to hide himself in the bushes, but he was apprehended by the police and on being asked, he told his name as Rajendra Singh (Present accused appellant) and PW 10 jai Singh found the shirt of the accused appellant uplifting from his chest and when PW 10 Jai Singh touched that portion, he found that there was some substance behind it and on being asked what did it contain, the accused appellant did not reply and, thereafter, PW 10 Jai Singh prepared the fard Ex.P/15 under the provisions of Sec. 42 of the NDPS Act and, two motbir witnesses, namely, PW2 Phularam and PW 7 Kasiram were called for and notice was also given to them to become motbirs and the same is ex.P/7 and they gave their consent to become motbirs. Thereafter, PW 10 Jai Singh told accused appellant that he had contraband opium with him and therefore, he gave notice Ex.P/8 to the accused appellant 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, accused appellant gave his consent that he could be searched by PW 10 Jai Singh and the fard to consent of accused appellant is Ex.P/9. Thereafter, accused appellant was searched and on search, a Tagri was recovered from him and it was opened and four polythene bags containing liquid solid substance were found in it and on seeing, it was assessed that it was opium and the accused appellant was not having any valid license to keep that opium. Thereafter, it was weighed and its weight was found to be 750 grms. including four polythene bags and out of which, two samples of 50 grms. each were taken and sealed separately on the spot and marked as A1 and A2 and rest opium was also sealed on the spot separately and marked as A. The fard of search and seizure prepared by PW 10 Jai Singh on the spot is Ex.P/1. The site plan is Ex.P/3. The information which was sent y PW 10 Jai Singh to the superior officers is Ex.P/19. PW 10 Jai Singh handed over the recovered articles and samples to Malkhana Incharge PW 6 Diwan Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/5A. Thereafter, PW 6 Diwan Singh gave one sample to PW8 Jagdish Prasad, who took it with forwarding letter Ex.P/20 to SP office, Churu and after obtaining a fresh forwarding letter Ex.P/4 from SP Office from PW4 Yasin Khan, who was working in the SP Office, Churu, PW 8 Jagdish deposited the sample in the FSL, Jaipur on 19.8.1996 and obtained receipt Ex.P/6. The report of the FSL, jaipur is Ex.P/21, where it was reported that the sample contained in the packet marked A-1 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 2.47% (Two point four seven percent) Morphine. After usual investigation, the police Submitted challan against the accused appellant in the Court. On 1.10.1996, the learned Special Judge, NDPS Cases, Rajgarh Distt. Churu framed charge against the accused appellant for the offence under section 8/18 of the NDPS Act. The charge was read over and explained to the accused appellant. The accused appellant pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 10 witnesses and got exhibited several documents. Thereafter, the statement of accused appellant under section 313 Cr.P.C. was recorded. In defence, no evidence was produced by the accused appellant. The accused appellant pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 10 witnesses and got exhibited several documents. Thereafter, the statement of accused appellant under section 313 Cr.P.C. was recorded. In defence, no evidence was produced by the accused appellant. After conclusion of trial, the learned Special Judge, NDPS Cases, Rajgarh District Churu through his judgment and order dated 17.2.1997 convicted the accused appellant for the offence under Sec. 8/18 of the NDPS Act and sentenced him 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 Section 8/18 of the NDPS Act. Aggrieved from the said judgment and order dated 17.2.1997 passed by the learned Special Judge, NDPS Case, Rajgarh Distt. Churu, the accused appellant has preferred this appeal. (3). In this appeal, the learned counsel for the accused appellant has raised the following contentions:- 1. That compliance of Sec. 50 of the NDPS Act has not been made by PW 10 Jai Singh as the accused appellant was not informed about his right to be searched and mere asking whether the wanted to be searched before the Magistrate or Gazetted officer is not sufficient. (2) That since both the motbir witnesses, namely, PW2 Phularam and PW 7 Kasiram have been declared hostile, therefore, the prosecution case should not be held to be proved beyond all reasonable doubts. (3). That since there is prosecution evidence itself on the point that one set of witnesses says that two samples of 50 grms. each were taken on the spot and anther set of witnesses says that initially samples of 50 grms. each were taken, but when they were re-packed and weighed, their weight was found to be 65 grms. each, though FSL report Ex.P/21 shows that the weight of the sample which was received in the FSL was 50 grms. alongwith the polythene packed and hence, there is difference in weight of the samples taken on the spot and in these circumstances, the case of the prosecution comes under the shadow of doubt and on this ground alone, the accused appellant is entitled to acquittal, after giving benefit of doubt. Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. (4). Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him. (4). On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Rajgarh District Churu. (5). 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 (6). The point No. 1 relates to compliance of Sec. 50 of the NDPS Act. (7). 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. (8). Whether the 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. (9). The notice, which was given by PW 10 jai Singh to the accused appellant under the provisions of Sec. 50 of the NDPS Act, is Ex.P/8 and from that notice, it appears that PW 10 Jai Singh asked the accused appellant whether he wanted to be searched before the Gazetted Officer of Magistrate. The fard of consent of accused appellant was prepared separately by PW 10 Jai Singh and the same is Ex.P/9, which shows that accused appellant gave consent that he could be searched by PW 10 Jai Singh himself. (10). The prosecution witnesses apart from PW 10 Jai Singh, PW 1 Kailash Chandra, PW 3 Mohar Singh and PW 6 Diwan Singh have supported the case of the prosecution on the point that PW 10 Jai Singh gave option to the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer. (11). Thus, it is amply proved that option was given by PW 10 Jai Singh to the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer. (12). (11). Thus, it is amply proved that option was given by PW 10 Jai Singh to the accused appellant whether he wanted to be searched before the Magistrate or Gazetted Officer. (12). The main contention of the learned counsel for the accused appellant is that in this case, the accused appellant was simply given option, but he was not informed about his right, therefore, it should be treated that it is a case of non-compliance of Sec. 50 of the NDPS Act. (13). In my considered opinion, the above argument does not carry any weight in view of the decision of the Honble Supreme Court in Joseph Fernande vs. State of Goa (1), where accused was informed whether he wished he could be searched before the Magistrate or Gazetted Officer and in these circumstances, it was held by the Honble Supreme Court that substantial compliance of Sec. 50 of the NDPS Act has been made and the accused and informed about his right. In the present case also, by uttering the words in the notice Ex.P/8 that if accused appellant wanted, he could be searched before the Magistrate or Gazetted Officer, substantial compliance of Sec. 50 of the NDPS Act has been made and the accused appellant was informed about his right by PW 10 Jai Singh. (14). Hence, it is held that in the present case, compliance of mandatory provisions of Sec. 50 of the NDPS Act has been made and the first argument stands rejected. Point No. 2 (15). So far as point no.2 is concerned, no doubt both the motbir witnesses, namely, PW 2 Phularam and PW 7 Kasiram have been declared hostile and out of these two motbir witnesses, PW 2 Phularam was an illiterate person, who put his thumb impression on the fards and PW 7 Kasiram has admitted his signatures on the fard of search and seizure Ex.P/1. (16). In my considered opinion, since the prosecution case on the point of search and seizure stands well proved by the statements of prosecution witnesses, namely, PW 1 Kailash Chandra, PW 3 Mohar Singh, PW 6 Diwan Singh, therefore, if both the motbir witnesses, namely, PW 2 Phularam and PW 7 Kasiram have been declared hostile, it would not affect the case of the prosecution. Thus, argument No. 2 would also not be helpful to the accused appellant. Point No. 3 (17). Thus, argument No. 2 would also not be helpful to the accused appellant. Point No. 3 (17). Before discussing this point, procedure for taking, sealing and sending samples for chemical analysis may be stated here. (18). For getting an offender contravening provision of the NDPS Act and rules made thereunder punished, it is very essential to establish that the article alleged to have been recovered or seized and in relation to which the offender is sought to be punished, is narcotic drug or psychotropic substance. To show that such article is narcotic during or psychotropic substance, chemical examination of such article is necessary. It is further necessary to show that sample sent for chemical examination was the same which has been taken from the article recovered or seized and that the same sample reached the Chemical Examiner and it was not tampered with during the period between the time of taking of the sample and its reaching the hands of the Chemical Examiner. This can be done by establishing that the sample was sealed properly and by leading evidence of the persons by whom the sample came to be handled after its having been taken and its delivery to the Chemical Examiner. (19). For showing that sample was not tampered with after it was taken and till it reached the hands of the Chemical Examiner, it is necessary for the prosecution to produce evidence as to where the sample was kept after it was taken, by whom it was handled in the malkhana, by whom it was taken to th Chemical Examiner. Persons handling the sample in malkhana and carrying the same to the chemical examiner should be examined as witnesses in the court. Any possibility of tampering with the sample has to be excluded. Failure to rule out possibility of its being tampered with may be fatal to the prosecution case. (20). In the present case, the prosecution case is that out of the opium recovered from the accused appellant, two samples of 50 grms. each was taken and sealed separately on the spot and for that, statements of PW 3Mohar Singh, PW 6 Diwan Singh, PW10 Jai Singh and PW 5 Ram Kishan may be referred to. (21). There is no dispute that PW 3 Mohar Singh, PW 6 Diwan Singh and PW 10 Jai Singh have stated that two samples of 50 grms. each was taken and sealed separately on the spot and for that, statements of PW 3Mohar Singh, PW 6 Diwan Singh, PW10 Jai Singh and PW 5 Ram Kishan may be referred to. (21). There is no dispute that PW 3 Mohar Singh, PW 6 Diwan Singh and PW 10 Jai Singh have stated that two samples of 50 grms. each were taken on the spot, but on re-weighing, weight of each sample was found to be 65 grms. but PW5 Ram Kishan does not say like this and he simply says that samples of 50 grms. each were taken. (22). In this respect, other witness is PW 6 Diwan Singh, who was at the relevant time Malkhana Incharge. He has proved the relevant entries made in the Malkhana Register Ex.P/5A. (23). From the Malkhana Register Ex.P/5A, it appears that two samples were deposited by PW 10 Jai Sing in the malkhana and they were received by PW 6 Diwan Singh, who made entries in the malkhana Register and the weight of each sample was shown to be 50 grms. (24). Similarly, form the statement of PW8 jagdish Prasad, it is also very well proved that he took one sample from PW 6 Diwan Singh alongwith letter Ex.P/20 and from the statement of PW 4 Yasin Khan, it is further proved that he gave another letter Ex.P/4 to PW 8 jagdish Prasad, who deposited the sample in FSL, Jaipur on 19.8.11996 and obtained receipt Ex.P/6. (25). The FSL report Ex.P/21 shows that one sample marked A-1was received in the FSL and it was packed in polythene packet and repacked in a piece of polythene and its weight was 50 grms. alongwith the polythene packet. (26). Thus, there is no dispute on the point that sample was packed and repacked, as stated by PW 3 Mohar Singh, PW6 Diwan Singh and PW 10 Jai Singh. But, difference in weight is coming and in my considered opinion, this difference has become immaterial in this case because in malkhana Register Ex.P/5A, there is clear cut entry that samples of 50 grms. each were deposited and from the FSL report Ex.P/21 also, it is very much clear that the sample which was received by FSL was packed and re-packed, meaning thereby, the same sample, which was re-packed by PW-10 jai Singh was sent to FSL, but its weight was 50 grms. (27). each were deposited and from the FSL report Ex.P/21 also, it is very much clear that the sample which was received by FSL was packed and re-packed, meaning thereby, the same sample, which was re-packed by PW-10 jai Singh was sent to FSL, but its weight was 50 grms. (27). Therefore, thought PW 1 Mohar Singh, PW6 Diwan Singh and PW 10 Jai Singh have stated that the weight of the samples was found 65 grms. on re-packing, but from this, looking to the entire evidence on record, it cannot be inferred or gathered that the samples were tampered with and apart from this, the difference in weight might be ]due to some minor defect in weight measures and mistake in re-packing. There is positive evidence on record showing that the samples were not tampered with after they were taken and till it reached the hands of the Chemical Examiner. From the evidence on record, it can be reasonably concluded that the seals on the articles and sample from the date of seizure till sample reached the hands of the Chemical Examiner remained in tact. (28). So far as the argument that fard of specimen impression of seal has not been prepared and has not been sent to FSL alongwith samples is concerned, this court in so many cases have held that it is a mere irregularity, which does not vitiate the entire trial, if there is evidence that in sealed condition the samples were deposited in FSL, in other words, seal of samples from the date of seizure till it reached the hands of the Chemical Examiner remained intact. In the present case, as already stated above, there is positive evidence showing that the seal of the samples from the date of seizure till it reached the hands of the Chemical Examiner remained intact and there is no possibility of tampering with the samples. (29). The decisions relied upon by the learned counsel for the accused appellant in Harnek Singh vs. State of Rajasthan (2), Prithvi Raj vs. State (3) and Bhoma Ram vs. Union of India (4), have no application to the facts of the present case and thus, they would not be helpful to the accused appellant. (30). (29). The decisions relied upon by the learned counsel for the accused appellant in Harnek Singh vs. State of Rajasthan (2), Prithvi Raj vs. State (3) and Bhoma Ram vs. Union of India (4), have no application to the facts of the present case and thus, they would not be helpful to the accused appellant. (30). For the reasons stated above, it is held that the prosecution has proved its case beyond all reasonable doubts against the accused appellant for the offence under Sec. 8/18 of the NDPS Act and thus, the findings of conviction recorded by the learned Special Judge against the accused appellant for the said offence are liable to be confirmed and this appeal is liable to be dismissed. Accordingly, this appeal filed by the accused appellant Rajendra Singh is dismissed, after confirming the judgment and order dated 17.2.1997 passed by the learned Special Judge, NDPS Cases, Rajgarh District Churu.