Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 877 (RAJ)

Biram v. State of Rajasthan

2001-05-15

KHEM CHAND SHARMA

body2001
JUDGMENT 1. This criminatiail appeal by accused Biram through Superintendent, Central Jail, Kota is directed against the judgment dated 18.12.1999 passed by the Special Judge, Narcotic Drugs And Psychotropic Substances Act Cases, Jhalawar, thereby convicting the accused appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the "NDPS Act") and sentencing him to 10 years rigorous imprisonment with a fine of Rs. one lac, in default of payment of fine, to further undergo one year's rigorous imprisonment. 2. The prosecution case, in nut shell is that on 29.6.1998, PW 13 Sukhdeva Ram Chaudhary, SHO, Police Station, Aklera received an information on wireless to the effect that one person aged 40 years wearing white Dhoti and Kurta, with artificial leg in place of imputed right leg, having in his possession one white plastic bag containing opium had proceeded in a Roadways bus from Police Station Manohar to Kota. The SHO recorded this information in 'rojnamcha' and sent the information to the Superintendent of Police, Jhalawar through Constable Daya Shanker. Thereafter, the SHO along with police staff proceeded and got the bus stopped near Vilalge Turkadia. The accused was found sitting in the bus on Seat No. 27 and was having one plastic bag in his hand. The accused on being asked by the SHO, disclosed his name. The SHO then got down the accused from the bus and made him aware of his right to be searched in presence of a Magistrate or a Gazeted Officer, but he gave consent for being searched by the SHO himself. Thereafter the SHO took search of the accused in presence of witnesses and found two plastic bags inside the bag containing opium weighing 500 grams and 150 grams, respectively, out of which the police took two samples of 30 grams each from the packets. The samples and remaining opium were sealed and recovery memo was prepared. Thereafter, the police registered a case vide FIR No. 176/98, Ex.P.17 and deposited the recovered opium and samples in Malkhana. The samples were then sent to the Forensic Science Laboratory, Jaipur for chemical analysis. The FSL report Ex.P.27 gave positive test for the presence of chief constituents of coagulated juice of, opium poppy. Thereafter, the police registered a case vide FIR No. 176/98, Ex.P.17 and deposited the recovered opium and samples in Malkhana. The samples were then sent to the Forensic Science Laboratory, Jaipur for chemical analysis. The FSL report Ex.P.27 gave positive test for the presence of chief constituents of coagulated juice of, opium poppy. On interrogation, the accused stated to have purchased the opium from one Onkar Lal, thereupon the police also initiated action against Onkar Lal under Section 8/29 of the Narcotic Drugs And Psychotropic Substances Act. against judgment dated 18.12.99 passed by Shri Kailash Singhal, RHJS, Special Judge, Narcotic Drugs And Psychotropic Substances Act Cases, Jhalawar in Sessions case No.24/98. 3. After completion of all legal formalities, the police submitted a charge sheet against accused Biram for offence under Section 8/18 and against accused Onkar, under Section 8/29 of the Narcotic Drugs And Psychotropic Substances Act. 4. The learned trial court after hearing the arguments and on the basis of material on record, framed charge under Section 8/18 of Narcotic Drugs And Psychotropic Substances Act against appellant Biram and under section 8/29 against accused Onkar. Both the accused pleaded not guilty and claimed to be tried. 5. During trial, the prosecution examined as many as 13 witnesses and got 31 documents exhibited. Thereafter, the trial court examined the accused under section 313 Criminal Procedure Code. The accused did not chose to produce any witness in his defence. On completion of trial, the learned trial Court convicted and sentenced the accused appellant Biram as aforesaid and acquitted accused Onkar of the offence charged with. Hence, this jail appeal by accused Biram. 6. I have heard the learned Amicus Curiae appearing for the accused appellant and the learned Public Prosecutor and perused the judgment under challenge and the record of the case. 7. The only argument canvassed before me by the learned Amicus Curiae is that the samples sent to the Forensic Science Laboratory were not the same which were taken and sealed as there is difference of weight in the samples which reached the FSL as is evident from the report of FSL Ex.P.27, which shows that the substance contained in the packet marked All, A/2 and B/1 and B/2 weighed 28.21, 25.01, 29.22 and 27.47 grams alongwith polythene bag, respectively. In this back-ground, he vehemently argued that there being difference between the samples of 30 grams each taken by the police and the samples which reached the FSL, the possibility of tampering with the seal and sample cannot be ruled out and therefore, the report of FSL cannot be made basis for conviction and the accused appellant deserves to be extended benefit of doubt. In support of his argument, learned counsel has placed reliance on the judgments of this Court in (1) Sushil Sharma v. State of Rajasthan (2000 Cr.L.R. (Raj.) 549) , and in (2) Mangi Lai Vs. State of Rajasthan (SB Cr. Jail Appeal No. 45/96) decided on 24.3.98. 8. On the other hand, the learned Public Prosecutor has submitted that the prosecution has been able to prove guilty against the appellant under Section 8/18 of the Narcotic Drugs And Psychotropic Substances Act and the findings arrived at by the learned trial Court deserve to be approved by this Court. 9. I have considered the rival contentions of the counsel for the parties and perused the impugned judgment and the record of the case. 10. With the assistance of the learned Amicus Curiae and the learned Public Prosecutor, I have scrutinised the record and the evidence with a view to arrive at the definite conclusion as to whether the samples taken and seals affixed by the police remained intact and undisturbed throughout till the same reached the Forensic Science Laboratory for analysis and whether there was tampering with the samples of contraband. 11. A perusal of Ex.P.2 checking and seizure memo shows that on weighing, the opium found from the possession of accused in two plastic packets was 500 grams and 150 grams, respectively, out of which two samples of 30 grams each from each of the packets were taken, seals were affixed and marks A-1, A-2, B-1 and B-2 were put thereon. The remaining opium weighing 440 grams and 90 grams. of both the packets were also sealed in two packets and marks A and B respectively were put. Ex.P.8 is the letter dated 16.7.98 by which the SHO sent the packets of contraband marked A-1, A-2, B-1 and B-2, each weighing 30 grams to the Director Forensic Science Laboratory for chemical examination to find out whether the contraband is the opium and if so, what is the ratio of morphine contained in it. 12. Ex.P.8 is the letter dated 16.7.98 by which the SHO sent the packets of contraband marked A-1, A-2, B-1 and B-2, each weighing 30 grams to the Director Forensic Science Laboratory for chemical examination to find out whether the contraband is the opium and if so, what is the ratio of morphine contained in it. 12. A perusal of Ex. P.27, FSL report shows that on examination the sample packets All, A/2 and B/1 and B/2 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 8.46%, 7.60%, 8.46% and 7.32% morphine, respectively. On getting the samples marked All, A/2, B/1 and B/2 weighed at the Forensic Science Laboratory, it was found that the substance contained in the aforesaid four packets weighted 28.21, 25.01, 29.22 and 27.47 grams along with polythene bag, respectively. 13. It is an admitted case of the prosecution that two samples of 30 grams from each of the packets were taken by the Investigating Officer PW.13 Sukhdeva Ram Choudhary. The samples were sealed in 4 packets and were marked A-1, A-2, B-1 and B-2. Thus, it becomes crystle clear that there is difference as to the weight of samples A-1, A-2, B-1 and B-2 between the two, the samples taken by the SHO and the samples weighed at the Forensic Science Laboratory, which raises serious doubt that the samples of contraband which were handed over to FSL for chemical examination were the same which were sealed by the Investigating Officer. The normal rule is that the samples of contraband taken from an accused must remain intact and undisturbed till the same reaches the Forensic Science Laboratory for chemical examination. In this view of the matter, there being difference in weight, the FSL report, though gave positive test as aforesaid loses its importance and the same cannot be taken use of while arriving at the finding of guilt against an accused. 14. In Sushil Sharma v. State of Rajasthan (supra), the Investigating Officer took the sample of 30 grams of opium, Rajasthan the same was found to be weighing 26 grams along with polythene packet when it was got weighed at the Forensic Science Laboratory. 14. In Sushil Sharma v. State of Rajasthan (supra), the Investigating Officer took the sample of 30 grams of opium, Rajasthan the same was found to be weighing 26 grams along with polythene packet when it was got weighed at the Forensic Science Laboratory. The court observed that the aforesaid circumstances raise doubt, that the Forensic Science Laboratory did not receive the same packet, which was recovered from the accused and on the contrary some other packet was put to test and examined by the Forensic Science Laboratory and therefore, the same packet which was put to test on the basis of Ex.P.1 cannot be connected with the accused. In these circumstances, the Court acquitted the accused extending benefit of doubt. 15. A similar question came for consideration before this court in Mangi Lal v. State of Rajasthan (supra) and this Court after considering the fact that there was difference in the quantity of sample between the sample taken by the Investigating Officer and the sample received by the FSL, held that it create doubt whether the samples sent to the FSL for examination was the same which was taken by the Investigating Officer and therefore, the accused appellant is entitled to be given the benefit of doubt on this ground. 16. The cases referred to above, in my view are fully applicable to the facts and circumstances of the case in hand. 17. The upshot of the above discussion is that the prosecution has failed to prove that the samples of opium weighing 30 grams each taken from the accused appellant by PW-13 Sukhdeva Ram Chaudhary, SHO and marked A/1, A/2, B/1 and B/2 were the same which were sent to the FSL for chemical examination as is evident from the FSI, report, Ex.P.27, which specifically mentions that the substance contained in packets marked All, A/2, B/1 and B/2 weighed 28.21, 20.01,, 29.212 gms and 27.47 alongwith polythene bag respectively. The samples of contraband sent to the FSL for examination, thus not being the same, I am of the considered view that possibility of tampering with the seal and sample cannot be ruled out and therefore, the FSL report cannot be made basis to convict the appellant and the appellant deserves to be given the benefit of doubt. Consequently, the appeal is allowed. Consequently, the appeal is allowed. The conviction of appellant under Section 8/18 of the Narcotic Drugs And Psychotropic Substances Act is set aside and he is acquitted of the offence charged. He is in Jail and he be set free forthwith, if not required in any other case. Appeal allowed. *******