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Rajasthan High Court · body

2001 DIGILAW 1790 (RAJ)

Naru : Yusuf v. State of Rajasthan

2001-11-09

SUNIL KUMAR GARG

body2001
JUDGMENT 1. - These two appeals are being decided by this common judgment as both have been preferred against the common judgment and order dated 2.11.1999 passed by the learned Special Judge, NDPS Cases, Pratapgrah in Sessions Case No. 49/99 (old No. 207/94 and 79/97), by which the learned Special Judge acquitted accused-Asraf of the charge for the offence u/s. 8/29 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act'), but convicted the present accused-appellants-Naru and Yusuf for the offence u/s. 8/21 of the NDPS Act and sentenced each of them to undergo rigorous imprisonment for ten years' and to pay fine of Rs. one lac, in default of payment of fine, to further undergo one year RI. 2. The facts giving rise to these two appeals, in short, are as follows:- On 30.7.1994 at about 5.30 p.m., PW-11 Shiv Prasad Sharma, Addl. S.P. Pratapgarh made a Parchakayami Ex.P/10 stating inter alia that on 30.7.194 at about 12.15 p.m. he received a secret information from mukhbir to the effect that accused-Asraf and present accused-appellant-Yusuf had concealed the brown sugar (heroin) beneath ground in front of earthern furnace in the house of accused-appellant-Naru at village Paduni. That secret information was reduced into writing by PW-11 Shiv Prasad Sharma in fard Ex.P/18 and the same was sent to superior officer and for that, endorsement has been made on Ex.P/18 itself. Thereafter, PW-11 Shiv Prasad alongwith PW-12 Chandra Singh, Dy.S.P., Pratagraph proceeded towards the Police Station Arnod, where SHO of that police station Kanhaiyalal (PW-5) was fund and he was informed about the secret information and after taking necessary articles for the purpose of making search and two motbirs PW-6 Kalulal and one Shyam Singh, they reached the house of accused-appellant-Naru, where he was found and on being asked, he told his name as Naru and he was informed about the secret information received from mukhbir and, thereafter, accused-appellant-Naru was given a notice (Ex.P/12) under the provisions of Section 50 of the NDPS Act asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and he gave his consent that he could be searched by PW-11 Shiv Prasad, Addl. SP. SP. Thereafter, search of the house of the accused-appellant-Naru was conducted and during search, plastic bag was recovered and on opening it , two plastic bags containing black and brown colour substance were found and on checking it was found that in one plastic bag, there was heroin and in another plastic bag, there was crude heroin. On weighing, 300 gms. heroin was found in one plastic bag, out of which three samples of 5 grms. each were taken and sealed separately on the spot and marked as A/1, A/2 & A/3 and the remaining heroin was also sealed separately on the spot and marked as A. The weight of crude heroin was found to be 200 grms., out of which three samples of 5 grms. each were taken and sealed separately on the spot and marked as B/1, B/2 and B/3 and the remaining crude heroin was also sealed separately on the spot and marked as B. The fard of search and seizure was prepared on the spot by PW-11 Shiv Prasad and the same is Ex.P/7. PW-11 Shiv Prasad handed over the recovered articles and samples to Malkhana Incharge PW-10 Gopal Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/17-A. On the basis of the said Parchakayami Ex.P/10, FIR Ex.P/11 was chalked out at Police Station Arnod. The further case of the prosecution is that accused-appellant-Yusuf on 6.8.1994 gave an information Ex.P/20 to PW-12 Chandra-Singh, Dy. S.P. to the effect that he had also concealed the crude heroin in his house and he could get it recovered. On that information, PW-12 Chandra Singh alongwith PW-5 Kanhaiyalal, SHO, Police Station Arnod and two motbirs PW-7 Badrilal and PW-8 Ram Chandra reached the house of the accused-appellant-Yusuf. Before making search, a notice Ex.P/14 under the provisions of Section 50 of the NDPS Act was given to the accused-appellant-Yusuf asking him whether he wanted to be searched before the Magistrate or Gazetted Officer and he gave his consent that search could be made by PW-12 Chandra Singh, Dy.SP. Thereafter, search was conducted and during search, 30 grms. crude heroin was recovered, out of which, two samples of 5 grms. Thereafter, search was conducted and during search, 30 grms. crude heroin was recovered, out of which, two samples of 5 grms. each were taken and sealed separately on the spot and marked as C/1 and C/2 and the remaining crude heroin was also sealed separately on the spot and marked as C. The fard of search and seizure was prepared by PW-12 Chandra Singh on the spot and the same is Ex.P/15. The recovered articles and samples were handed over by PW-12 Chandra Singh to Malkhana Incharge Gopal Singh, PW-10, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/17-A. Thereafter, on 10.8.1994 through letter Ex.P/6, PW-10 Gopal Singh handed over the samples marked as A/1, B/1 and C/1 to PW-4 Ashok Kumar for the purpose of depositing the same in FSL, Jaipur for chemical analysis and PW-4 Ashok Kumar first took the samples to SP Office, Chittorgarh and after obtaining a fresh forwarding letter Ex.P/5 dated 11.8.1994 from SP Office, he deposited the samples in FSL, Jaipur on 12.8.1994 and obtained receipt Ex.P/4. The FSL report is Ex.P/21 where it was reported that the sample contained in the packet marked A-1 gave positive test for the presence of Diacetyl morphine (Heroin) in traces, the sample contained in each of the packets marked B/1 and C/1 gave positive test for the presence of Diacetyl morphine alongwith some of the chief opium alkaloids. After usual investigation, police submitted challan against the accused persons in the Court. On 17.7.1996, the learned Sessions Judge, Pratapgrah framed charge for the offence u/s. 8/21 of the NDPS Act against the accused-appellant-Naru and on 18.7.1996, charge for the offence u/s. 8/21 of the NDPS Act was framed against the accused-appellant-Yusuf and against the accused-Asraf, charge for the offence u/s. 8/29 of the NDPS Act was framed. The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 12 witnesses and got exhibited some documents. Thereafter, statements of the accused persons u/s. 313 Cr.P.C. were recorded. In defence, no evidence was produced by the accused persons. The charges were read over and explained to the accused persons. They denied the charges and claimed trial. During trial, the prosecution in support of its case examined as many as 12 witnesses and got exhibited some documents. Thereafter, statements of the accused persons u/s. 313 Cr.P.C. were recorded. In defence, no evidence was produced by the accused persons. After conclusion of trial, the learned Special Judge, NDPS Cases, Pratapgrah through his judgment and order dated 2.11.1999 acquitted the accused-Asraf of the charge for the offence u/s. 8/29 of the NDPS Act, but convicted the present accused-appellants of the charge for the offence u/s. 8/21 of the NDPS Act and sentenced them in the manner as indicated above holding inter alia that the prosecution has proved its case beyond all reasonable doubts against the accused-appellant for the offence u/s. 8/21 of the NDPS Act. Aggrieved from the said judgment and order dated 2.11.1999 passed by the learned Special Judge, NDPS Cases, Pratapgarh, both the accused-appellants have preferred separate appeals and the same were heard together and they are being decided by this common judgment. 3. I have heard the learned counsel appearing for the accused-appellants and the learned Public Prosecutor and perused the record of the case.Appeal of accused-appellant-Nara being No. 1112000 4. It has been submitted by the learned counsel appearing for the accused-appellant-Naru that findings of the learned Special Judge in respect of link evidence is missing and, therefore, accused-appellant-Naru should be acquitted on this ground alone. He has further submitted'that neither separate specimen impression of seal was taken nor it was sent to the. FSL. 5. It has been submitted by the learned counsel appearing for the accused-appellant-Naru that findings of the learned Special Judge in respect of link evidence is missing and, therefore, accused-appellant-Naru should be acquitted on this ground alone. He has further submitted'that neither separate specimen impression of seal was taken nor it was sent to the. FSL. 5. From the statement of PW-11 Shiv Prasad Sharma, it is well established that he handed over the recovered articles and samples from the accused-appellant-Naru to PW-10 Gopal Singh, who was at that time Malkhana Incharge and from the statement of PW-10 Gopal Singh, it is well established that he deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/17-A and thereafter, he handed over samples to PW-4 Ashok Kumar on 10.8.1994 for the purpose of depositing the same in the FSL for chemical analysis and PW-4 first came to the office of SP, Chittorgarh and after obtaining a fresh forwarding letter Ex.P/5 dated 11.8.1994 from SP office, he deposited the samples in the FSL, Jaipur on 12.8.1994 and obtained receipt Ex.P/4 and these entries are found in the Malkhana Register Ex.P/17-A. 6. Thus, there is sufficient link evidence so far as the case against accused-appellant-Naru is concerned and therefore, the first argument of the learned counsel for the accused-appellant-Naru stands rejected. 7. There is no dispute that neither separate specimen impression of seal was taken nor it was sent to FSL. However, it can be regarded as mere irregularity and on this ground alone, the conviction of the accused-appellant-Naru cannot be set aside and thus, second argument would also not be helpful to the accused-appellant. 8. Hence, the findings of the learned Special Judge convicting the accused-appellant-Naru for the offence u/s. 8/21 of the NDPS Act are liable to be confirmed, as they are based on correct appreciation of evidence and the appeal of the accused-appellant-Naru is liable to be dismissed.Appeal of accused-appellant-Yusuf being No. 716/99 9. The learned counsel appearing for the accused-appellant-Yusuf has made the following submissions : (1) That the information Ex.P/20 which was given by accused-appellant-Yusuf u/s. 27 of the Evidence Act on 6.8.1994 to PW-12 Chandra Singh has got no evidentiary value as the prosecution has failed to prove the fact that he was on that day under arrest as arrest memo has not been produced and exhibited. Therefore, the so-called recovery pertaining to the accused-appellant-Yusuf is no recovery in the eye of law and apart from this, so-called recovery is doubtful and from this point of view also, the findings of the learned Special Judge that 30 grms. crude heroin was recovered from the accused-appellant-Yusuf are liable to be set aside and he is entitled to acquittal. (2) That both motbir witnesses of the fard of search and seizure Ex.P/15, namely, PW-7 Badrilal and PW-8 Ram Chandra have been declared hostile and they do not support the case of the prosecution and thus, the so-called recovery is doubtful. (3) That in the fard of search and seizure Ex.P/15 pertaining to accused-appellant-Yusuf, it is mentioned that two samples of 5 grms. each were taken on the spot and marked as C/1 and C/2 and out of them, one sample marked C/1 was sent to FSL, Jaipur for the purpose of chemical analysis. However, in the FSL report Ex.P/21, it is mentioned that weight of the sample marked C/1 was 14.013 grms. alongwith the plastic container. Thus, this is a much difference in weight and it is not a marginal difference and from this point of view also, link evidence so far as the present accused-appellant-Yusuf is concerned, is not sufficient and on this ground alone, the accused-appellant-Yusuf is entitled to acquittal. 10. In this case, there is no dispute on the point that neither arrest memo of the accused-appellant-Yusuf was produced nor it was exhibited. 11. PW-12 Chandra Singh, who conducted the search and seizure of the accused-appellant-Yusuf has stated in his statement recorded in Court that accused-appellant-Yusuf was got arrested by PW-5 Kanhaiyalal and during investigation, accused-appellant-Yusuf gave information Ex.P/20 on 6.8.1994 and earlier to that Parchakayami Ex.P/10 was got prepared by PW-11 Shiv Prasad Sharma and on that basis, FIR Ex.P/11 was chalked out and after making so-called recovery from the accused-appellant-Yusuf, no further Parchakayami was made in the present case. This witness further admits that information Ex.P/20 was not in his writing, but he got that information written through PW-5 Kanhaiyalal. 12. PW-5 Kanhaiyalal states in his statement recorded in Court that though accused-appellant-Yusuf was arrested by him on 3.8.1994, but search of his house was not conducted in his presence. This witness further admits that information Ex.P/20 was not in his writing, but he got that information written through PW-5 Kanhaiyalal. 12. PW-5 Kanhaiyalal states in his statement recorded in Court that though accused-appellant-Yusuf was arrested by him on 3.8.1994, but search of his house was not conducted in his presence. He has further stated that accused-appellant-Yusuf remained in his custody for the period from 3.8.1994 to 6.8.1994, but during that period, he did not give any information nor he made any effort for that. 13. In these circumstances, the information Ex.P/20, which was given by the accused-appellant-Yusuf to PW-12 Chandra Singh on 6.8.1994 becomes suspicious. 14. Since both motbir witnesses of the fard of search and seizure Ex.P/15 pertaining to accused-appellant-Yusuf, namely, PW-7 Badrilal and PW-8 Ramchandra have been declared hostile, therefore, proceedings of search and seizure pertaining to accused-appellant-Yusuf do not inspire confidence. Apart from this, there is difference in weight of the sample taken from the article recovered from the accused-appellant-Yusuf and this difference in weight of the sample also shows that samples were not kept in proper form and custody and thus, the possibility of tampering with the samples taken from the article seized from the accused-appellant-Yusuf cannot be ruled out. The difference in weight also shows that the proceedings of search and seizure of accused-appellant-Yusuf were conducted in a very casual manner, not keeping in mind the provisions of the NDPS Act where severe minimum sentence is provided. In these circumstances, the accused-appellant-Yusuf is entitled to acquittal after giving benefit of doubt. 15. For the reasons stated above, the prosecution has not been able to prove its case beyond all reasonable doubts against the accused-appellant-Yusuf and therefore, the findings of the learned Special Judge convicting the accused-appellant-Yusuf for the offence u/s. 8/21 of the NDPS Act are liable to be set aside and the appeal of the accused-appellant Yusuf deserves to be allowed and he is entitled to acquittal.In the result : (1) The appeal filed by the accused-appellant-Naru being S.B. Criminal Appeal No. 11/2000 is dismissed, after confirming the judgment and order dated 2.11.1999 passed by the learned Special Judge, NDPS Cases, Pratapgarh so far as they relate to him. (2) The appeal filed by the accused-appellant-Yusuf being S.B. Criminal Appeal No, 716/1999 is allowed and the judgment and order dated 2.11.1999 passed by the learned Special Judge, NDPS Cases, Pratapgarh so far as they relate to accused-appellant-Yusuf, are set aside and the accused-appellant-Yusuf is acquitted of the charge for the offence u/s. 8/21 of the NDPS Act. Since accused-appellant-Yusuf is in jail, he be released forth with, if not required in any other case. Appeal No. 11/2000 dismissed and Appeal No. 716/1999 allowed. *******