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2001 DIGILAW 887 (RAJ)

Satya Narayan v. Union of India

2001-05-16

KHEM CHAND SHARMA

body2001
JUDGMENT 1. - This appeal is directed against the judgment dated 26.9.1998 passed by the Additional Sessions Judge, Behror convicting the accused-appellant under section 8/20(i)(ii) of the Narcotic Drugs & Psychotropic Substances Act, 1985 and sentencing him to 10 years rigorous imprisonment with a fine of rupees one lac, in default thereof, to further undergo one years' imprisonment. 2. Briefly stated the facts of the case are that PW 4 Laxman Kataria, Sub-Inspector, Central Narcotics Bureau, Jaipur received a secret information on 19.3.1998, which he recorded in Ex.P /13. Acting upon this specific information, the joint preventive party of Control Room, Kota and Jaipur Cell under the leadership of PW 13 Vijay Singh Meena, Superintendent, Narcotic Department, Kota proceeded to Neemrana and reached there at 10.30 a.m. on 20.3.1998. PW 4 Laxman Kataria called two witnesses, namely PW 1 Ram Swaroop and PW 2 Hajari Lal to witness the proceedings. Thereafter, he called accused-Satya Narain, who opened the door of the house. Laxman Kataria informed him that on the basis of secret information he intends to take search of his house. He informed of his right to be searched in presence of a Magistrate or a Gazetted Officer vide Ex.P / 7, but he consented for search by Shri Kataria himself. Thereafter, they entered the house and found Charas and Ganja in a plastic bag and a fertilizer bag, weighing 1.300 grams and 15.300 grams, respectively. Shri Kataria took two samples of Charas each weighing 25-25 grams and two samples of Ganja each weighing 500-500 grams and sealed them. Remaining Charas and Ganja were also sealed by him. He prepared seizure memo, Ex.P/6, Site Plan Ex.P/5 and memo of specimen seal, Ex.P/4. After completion of above legal formalities, he recorded the statement Ex.P/4 of Satya Narayan. There-after, he arrested Satya Narayan vide arrest memo Ex.P / 3. He then submitted First Information Report, Ex.P/ 9 to the Superintendent (Prevention), Central Narcotics Bureau Kota, Camp, Jaipur. After completion of investigation, a complaint under section 8 r /w Section 20(i)(ii) of the Narcotic Drugs and Psycotropic Substances Act (hereinafter to be referred as "the NDPS Act") was submitted in the Court of Additional Sessions Judge (Special Judge, NDPS Act Cases), Behror. 3. After completion of investigation, a complaint under section 8 r /w Section 20(i)(ii) of the Narcotic Drugs and Psycotropic Substances Act (hereinafter to be referred as "the NDPS Act") was submitted in the Court of Additional Sessions Judge (Special Judge, NDPS Act Cases), Behror. 3. The learned trial Court, on the basis of the material on record and after hearing the arguments of the counsel for the parties, framed charge against the accused-appellant under section 8/20(i)(ii) NDPS Act. The charges was read over to the accused, to which he pleaded not guilty and claimed trial. During trial, the prosecution, in support of its case, examined as many as 7 witnesses and exhibited some documents. The accused in his defence examined himself as DW 1, Rohitash DW 2 and Radhey Shyam DW 3. 4. After completion of trial, the learned trial Court found the accused-appellant guilty of the offence charged with and convicted and sentenced him as aforesaid. Hence the present appeal. 5. The first argument in assailing the conviction, advanced by the learned counsel appearing on behalf of the accused-appellant is that there was complete non-compliance of the provisions of Section 42 of the NDPS Act. He submitted that PW 4 Laxman Kataria, who received the secret information has failed to discharge its obligation inasmuch as he failed to send a copy of the information to his immediate official superior as required under section 42(2) of the NDPS Act and therefore, conviction of the appellant on this ground is unsustainable. 6. I have considered the above argument. Under the provisions of Section 42 of the NDPS Act, it is imperative that that the information must be taken down in writing and copy thereof must be sent to immediate official superior and failure to comply with these conditions would render action of searching officer suspect. 7. Section 42 of the NDPS Act has been held to be mandatory by the Apex Court in series of cases. In State of Punjab v. Balbir Singh, AIR 1994 SC 1872 their Lordships of the Supreme Court have observed that under section 42(2) such empowered officer who takes down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent it is mandatory. 8. If there is total non-compliance of this provision, the same affects the prosecution case. To that extent it is mandatory. 8. In Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) Crimes 187 (SC) , the Apex Court considering Balbir Sirigh's case and a decision of the Constitutional Bench of the Apex Court in State of Punjab v. Baldev Singh, (1996) 6 SCC 172 , has observed as under : 9. If the officer has reason to believe from personal knowledge or prior information received from any person that any narcotic drug or psychotropic substance (in respect of which an offence has been committed) is kept or concealed in any building, conveyance or enclosed place, it is imperative that the officer should take it down in writing and he shall forthwith send a copy thereof to his immediate official superior. The action of the officer, who claims to have exercised on the strength of such unrecorded information would become suspect, though the trial may not vitiate on that score alone. Nonetheless the resultant position would be one of causing prejudice to the accused. 10. In the present case, PW 4 Shri Laxman Kataria, Sub-Inspector received information on 19.3.1998 about Charas and Ganja lying in the house of appellant Satya Narayan. He reduced this information to writing in Ex.P/13. PW 3 Shri Vijay Singh Meena in the immediate official superior to him. Shri Vijay Singh Meena has no where stated in his statement that a copy of the information was sent to him or that he received the same. A perusal of record shows that Ex.P/ 13 is merely a carbon copy of the information recorded by Shri Laxman Kataria and the original has not been produced on record. The information received and reduced to writing is a basic document so as to ascertain the extent of involvement of a suspect and that the value of such information which is the earliest in point of time is of a high degree as the entire case proceeds on such information. 11. The information received and reduced to writing is a basic document so as to ascertain the extent of involvement of a suspect and that the value of such information which is the earliest in point of time is of a high degree as the entire case proceeds on such information. 11. In view of above discussion and in the law laid down by the Apex Court, I have no hesitation in holding that there was a complete non-compliance of the provisions of Section 42 of the NDPS Act, inasmuch as there was failure on the part of PW 4 Laxman Kataria to send a copy of the information reduced to writing to his immediate official superior as required under section 42(2) of the NDPS Act, which has resulted in causing prejudice to the accused. 12. The second contention raised by the learned counsel for the accused-appellant is that the prosecution has failed to establish exclusive and conscious possession of the contraband. Referring to the prosecution evidence and the evidence adduced in defence, the counsel submitted that the respondent has failed to prove beyond reasonable doubt that the house which was searched and from where the contrabands were recovered, belonged to the appellant and he was residing in that house. On the contrary, the defence of the appellant from the very beginning has been that he was residing in some different house at a different place and that he has no concern whatsoever with the house from where the raiding party has recovered Charas and Ganja and, therefore, it cannot be said that the charas and ganja recovered was in exclusive possession of the accused. He has placed reliance on the decisions of this Court Banwari Lal v. State of Rajasthan, 2000(1) RCC 699 and Hanna Lal v. State of Rajasthan, 2000(1) RCC 455 and a decision of Andhra Pradesh High Court in Singarasu Venkayam v. State, Excise Inspector, (Cr. Appeal No. 889/96, decided on 2.4.1999 . 13. On the other hand, learned counsel appearing on behalf of Union of India has vehemently contended that the only fact that in pursuance of the secret information, the raiding party visited Neemrana and reached the house and on knocking the door, accused- appellant himself opened the door of the house is sufficient to believe that appellant was residing there and the recovered contrabands were in his exclusive possession. 14. 14. I have considered the rival submissions. The trial Court has recorded a finding that the bags containing charas and Ganja were recovered from the exclusive and conscious possession of the accused-appellant relying upon the testimony of witnesses who were members of the raiding party. To decide whether the recovery of contraband was from the exclusive and conscious possession of the accused-appellant, it would be necessary to look at the statements of witnesses relevant in the context 15. The defence of the accused-appellant from the very beginning has been that he along with his wife and children is residing in a house near Panchayat Samiti since 1992 and the house from where Charas and Ganja were recovered, belonged to Smt. Shakuntala Devi and Mool Chand. PW 1 Ram Swaroop is a neighbour of the house from where contrabands have been recovered. He has stated in his cross-examination that accused-Satya Narain along with his family resides in his own house ahead of Panchayat Samiti near the house of Ramji Lal Khati. His mother and younger brother reside separately. PW 3 Vijay Singh and PW 4 Laxman Kataria are the witnesses of the department. They had never visited Neemrana prior to the raid in question and, therefore, they cannot be said to have personal knowledge as to whom this house belongs. PW 4 Laxman Kataria has stated in his statement that neither he called the neighbourers nor enquired as to whom this house belongs. PW 6 Prakash Chand Dhyani is also a witness of the department. He has stated that Satya Narain came out of the house on the call of Laxman Kataria. In cross-examination he has stated that he does not know whether the house of accused shown in the site plan Ex.P/5 belongs to Shakuntala Devi or not. He further stated that he has not set the papers regarding ownership of the house. 16. Thus the evidence led by the department does not at all prove the possession of appellant over Charas and Ganja since the house shown in Ex.P/5 from where the Charas and Ganja have been recovered has not been proved by the department to be belonging to accused-Satya Narain. Simply because accused opened the door of the house on the call of PW 4 Laxman Kataria is not at all sufficient to conclude that this house belonged to accused and he has residing there. Simply because accused opened the door of the house on the call of PW 4 Laxman Kataria is not at all sufficient to conclude that this house belonged to accused and he has residing there. On the contrary, there is no reason to disbelieve the defence story. If the statements of defence witnesses and the documents Ex.D/1 and D/2 are read with the statements of the prosecution witnesses referred to above, it becomes crystal clear that the house in question belongs to Smt. Shakuntala Devi and Mool Chand and that the accused was not at all residing in that house. Thus the only modicum of evidence that was available against the accused- appellant was that he was present in the house, opened the door of the house when called by PW 4 Laxman Kataria, Sub-Inspector and thereafter two bags of charas and ganja were seized. It appears to me that it was per chance that he was present in that house at the relevant time and he opened the door when called by PW 4 Laxman Kataria. 17. There is no statutory provision for drawing any presumption that a person who was present at any particular place shall be presumed to be in possession of narcotic or Psychotropic substance. Therefore, in such circumstances, I am of the considered opinion that the prosecution has failed to establish the exclusive and conscious possession of the accused-appellant of the contraband items at the time of search. 18. The trial Court, therefore, has erred in not relying upon the evidence led by the accused-appellant in his defence witnesses, as in my opinion there cannot be two yardsticks for believing or discarding the prosecution evidence and the defence evidence. The trial Court on conclusion of trial must have applied same standard in evaluating both the evidence, led by the prosecution to prove the charge and that of defence to prove the innocence while arriving at a definite conclusion as to the guilt or innocence of the accused. The department having failed to establish beyond reasonable doubt the exclusive and conscious possession of accused over Charas and Ganja, the accused must get benefit. 19. In view of above, it is not necessary to refer to the case laws cited on the point. The department having failed to establish beyond reasonable doubt the exclusive and conscious possession of accused over Charas and Ganja, the accused must get benefit. 19. In view of above, it is not necessary to refer to the case laws cited on the point. Suffice it to say that the Andhra Pradesh High Court and this Court in the cases relied upon from the side of defence have held that the prosecution having failed to establish exclusive and conscious possession of the contraband items, the accused must get benefit of the same. 20. The last argument canvassed by the learned counsel for the accused-appellant is that the statement recorded under section 67 of the NDPS Act after the person is named as an accused cannot be read against him because of bar created by Art. 20(3) of the Constitution of India. 21. I have considered the aforesaid submissions. The learned trial Court has relied upon the statement of the accused Ex.P/14 recorded by PW 4 Shri Laxman Kataria on 20.3.1998. This is the confessional statement. Section 67 of the NDPS Act empowers the officer referred to in Section 42 of the Act to examine any person acquainted with the fact and circumstances of the case during the course of any enquiry in connection with the contravention of any provisions of the Act. It may be noticed here that the statement Ex.P/14 was recorded by Shri Laxman Kataria on 20.3.1998 at 2.00 p.m. After seizure of contraband items, a memo of specimen seal Ex.P /4 was prepared at 11.30 a.m. on 20.3.1998. A perusal of the memo shows that as against column No. 4 Satya Narayan has been described as an accused. In the site plan Ex.P/5 which was prepared at 11.30 a.m. on 20.3.1998, Satya Narayan has been shown to be an accused. Likewise, in the seizure memo Ex.P /6 he has been described as an accused. The FIR Ex.P /9 specifically mentions that statement of the accused was recorded after completion of entire formalities. If the statement under section 67 of the Act is recorded after the person is named as an accused, such statement cannot be read against that person because of the bar created by Art. 20(3) of the Constitution of India. In the present case the appellant was named as an accused before his statement under section 67 of the Act was recorded. In the present case the appellant was named as an accused before his statement under section 67 of the Act was recorded. That being so the statement Ex.P / 14 could not be pressed into service. The trial has thus erred in using the statement against the appellant. 22. In the case of Kingsley & Anr. v. State of Rajasthan, 1996 (3) Crimes 370 , this Court dealing with the provision of the 67 of the Act held that the statement recorded after the accused was arrested cannot be read against him because of the bar created by Art. 20(3) of the Constitution of India. 23. In the case of Veera Ibrahim v. State of Maharashtra, AIR 1976 SC 1161 , while discussing substantial question of law relating to the admissibility of confessional statement of the accused as per Sections 108 & 135 of the Customs Act, held that when the statement of the appellant was recorded by the Customs Officer under section 108, the appellant was not a person accused of any offence under the Customs Act, 1962. An acquisition which would stamp him with the character of such a person was levelled only when the complaint was filed against him by the Assistant Collector of Customs complaining of the commission of offence under section 135(a) and Section 135(b) of the Customs Act. 24. This Court also in Paramjeet Singh v. State of Rajasthan, 2000(3) Crimes 279 , relying upon Veera Ibrahim case, has held that the statement recorded by the Investigating Officer of the accused under section 67 of the Act are not admissible in evidence being hit by Art. 20(3) of the Constitution of India. 25. In R.B. Shah v. D.K. Guha, AIR 1973 SC 1196 , their lordships of the Supreme Court while taking into consideration the expression "person accused of an offence within the meaning of Art. 20(3) held that he cannot be compelled to be a witness against him and is entitled to the protection u/ Art. 20(3) Constitution of India. 26. 25. In R.B. Shah v. D.K. Guha, AIR 1973 SC 1196 , their lordships of the Supreme Court while taking into consideration the expression "person accused of an offence within the meaning of Art. 20(3) held that he cannot be compelled to be a witness against him and is entitled to the protection u/ Art. 20(3) Constitution of India. 26. This Court also in Narcotic Control Bureau v. Gani Khan, 1994 Cr.L.R. (Raj.) 355 , dealing with the same controversy as that involved in the present case, held that statement under section 67 of the NDPS Act cannot be read against him if the accused is already mentioned as an accused, in view of the bar created by Art. 20(3) of the Constitution of India. 27. In the present case, the suspect (accused-appellant) was described as an accused from very inception of the proceedings as discussed hereinabove and, therefore, the statement recorded under section 67 of the NDPS Act cannot be read against him because of the bar created by Art. 20(3) of the Constitution of India. 28. For the reasons aforesaid, the appeal is allowed. Consequently, the judgment dated 26.9.1998 convicting and sentencing the accused-appellant is set aside and the accused- appellant is acquitted of the offence charged with. He is in jail and be released forthwith if not required in any other case.Appeal allowed. *******