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2002 DIGILAW 22 (RAJ)

Bihari Lal v. State of Rajasthan

2002-01-07

O.P.BISHNOI

body2002
Judgment O.P. Bishnoi, J.-This appeal has been filed against the Judgment dated 24-5-1995 of the Special Judge, N.D.P.S. Case, Udaipur whereby the accused-appellant Bihari Lal was found guilty under Section 8/18 of the Narcotic Drugs and Psychotropic Sub-stances Act, 1985 (for short “the N.D.P.S. Act”) and was awarded a sentence of 10 years’ R. I. and a fine of Rs. One Lac. In default, he has been ordered to further undergo R.I. for a period of two years. 2. Thefacts, in brief , are that the personnel of the Central Narcotics Bureau, Udaipur were given some secret information and on the basis of the said information, a bus bearing No. RJ 14-P/2284 coming from Chittorgarh was stopped at Karanpura cross-roads at 10.30 a.m. The driver and the conductor of the bus were requested to act as “Motbirs” and thereafter, a search was made, during which, the accused-appellant Biharilal, who was travelling on seat No. 29 was searched. He allegedly was carrying a bag which was found in his lap and the bag yielded 4 Kg. opium. Two samples weighing 24 grams each were separated and sealed on the spot and the recovery memo and other documents were prepared. The accused-appellant was arrested and the F.I.R. was registered. 3. It is not in dispute that during search of the said bus, a recovery of illicit opium was made from four other passengers also and in all, five persons were arrested and challans were filed separately against all of , them. The appellant was charged under Section 8/18 of the N.D.P.S. Act and he pleaded not guilty. P.W. 1 Kalyan Singh (Conductor of the Bus), P.W. 2 Rakesh Bhargava (Sub-Inspector, Narcotics Bureau), P.W. 3 Satya Narain (Driver of the bus), P.W. 4 Prem Raj Rathore (Sub-Inspector, Narcotics Bureau), P.W. 5 Roshan Lal Sharma (Superintendent, Narcotics Bureau), P.W. 6 Deep Singh (Constable, Narcotics Bureau), P.W. 7 Durga Lal Sharma (Constable, Narcotics Bureau) P.W. 8 N. L. Mitoulia (Inspector, Narcotics Bureau) and P.W. 9 Satish Kumar were examined by the prosecution. No defence was led by the accused-appellant. Learned trial Court then heard the arguments and delivered the Judgment on 24-5-95 whereby the accused-appellant was found guilty and sentenced in the aforementioned manner. 4. I have heard both the sides and have perused the record of the learned trial Court. 5. No defence was led by the accused-appellant. Learned trial Court then heard the arguments and delivered the Judgment on 24-5-95 whereby the accused-appellant was found guilty and sentenced in the aforementioned manner. 4. I have heard both the sides and have perused the record of the learned trial Court. 5. It is argued by the learned Counsel for the appellant that the whole story is suspicious and it is not at all believable that the appellant could keep the contraband in his lap knowing fully while the bus was stopped by the Narcotics people to conduct the search. It is further argued that according to the prosecution story, the Narcotics people left their office to conduct the search in the said bus on a secret tip off but still no compliance of Section 42 of the NDPS Act was made and the secret information received prior to the search was never sent to the higher officers. Similarly, it is argued that there is no legal compliance of Sections 50, 55 and 57 of the NDPS Act. It is contended that there is no independent corroboration of the prosecution story and independent motbir-witnesses P.W. 1 Kalyan Singh and P.W. 3 Satya Narain both were declared hostile. Learned Counsel appearing on behalf of the Union of India has supported the conclusions of the learned trial Court and has argued that the charge has been proved to he hilt and the appeal requires to be dismissed. 6. P.W. 2 Rakesh Bargava, P.W. 4 Prem Raj Rathore and P.W. 5 Roshanlal Sharma are the departmental witnesses who have deposed to the effect that after the information from the ‘Mukhbir’ they proceeded on the spot, stopped the bus and conducted the search, which yielding 4 Kg. opium from the bag lying in the lap of the appellant. P.W. 6 Deep Singh is a Constable who has also stated that the recovery was made from the appellant and the material was weighed with the help of the scales which he borrowed from a Tea’ shop. P.W. 7 Durga Lal Sharma is the Courier, who allegedly took the sealed packet on 13-7-93 to the Opium Factory at Neemach for chemical examination. P.W. 8 N. L. Mitoulia, Inspector, Narcotics Bureau has stated that subsequently the investigation was handed-over to him and he recorded the statements of the witnesses and prepared the site-map Ex. P-8 during the investigation. P.W. 7 Durga Lal Sharma is the Courier, who allegedly took the sealed packet on 13-7-93 to the Opium Factory at Neemach for chemical examination. P.W. 8 N. L. Mitoulia, Inspector, Narcotics Bureau has stated that subsequently the investigation was handed-over to him and he recorded the statements of the witnesses and prepared the site-map Ex. P-8 during the investigation. P.W. 9 Satish Kumar is the ‘Tea Vendor’ from whose shop, the scales were borrowed for weighing the opium. As mentioned above, the prosecution case is to the effect that the bus was stopped by the Narcotics people and thereafter, the search started. It is unusual and unbelievable that in such a situation, the culprit would continue to keep the contraband in his lap to facilitate the recovery and would not try to get rid of the material. Usually, it is not expected that a criminal would keep the material in his lap. In a situation like this, either the material is placed below the seat or in the over-head shelf , so that, if there is a search, the culprit is not connected with the contraband. In the case of Raj Mal vs. Union of India, reported in 1998-99 (Supp) Cr. L.R. (Raj) 122, the facts were similar and this Court found the story unbelievable and highly suspect. 7. Aspointed out earlier, there is no independent corroboration of the alleged recovery. The driver as well as the conductor of the bus have denied that any recovery was effected from the accused. The prosecution did not examine any independent passenger from the bus to support its story. In a serious case like this, in which, the minimum sentence is 10 years R.I. and a fine of Rs. One lac. It is not safe to find a person guilty without slightest independent corroboration. 8. The record of the case further goes to show that necessary compliance of the mandatory provisions of the N.D.P.S. Act wasnot made in this case. Admittedly, there was a secret information, on the basis of which, the search was made. In such circumstances, it was necessary to send a copy of the secret information under Section 42(2) of the N.D.P.S. Act to the higher officers but no such information was forwarded to the nearest superior officials. 9. Admittedly, there was a secret information, on the basis of which, the search was made. In such circumstances, it was necessary to send a copy of the secret information under Section 42(2) of the N.D.P.S. Act to the higher officers but no such information was forwarded to the nearest superior officials. 9. So far as the compliance of Section 50 of the N.D.P.S. Act is concerned, the prosecution case is to the effect that the appellant was given an option to the effect that if he desires the search can be effected in the presence of a Magistrate or a Gazetted Officer. There is no documentary proof that a notice under Section 50 of the said Act was delivered to the appellant. The prosecution case is that the option was given orally. After considering the evidence, I find that the evidence is not satisfactory to establish that actually any option was given to the appellant. P.W. 6 Deep Singh has deposed that the opium was recovered from the accused Biharilal and the same was weighed by him. But he does not say that any option under Section 50 of the N.D.P.S. Act wasever given to the appellant. The seizure report Ex. P-13 which allegedly was sent to the higher officers, makes no mention that any such op-jtion was actually given. The recovery memo Ex. P-i is to the effect that option was given to the accused but this memo is aspect in the sense that time of preparation is where recorded in it. The contention of the defence is to the effect that no documents were re-pared on the spot and all the documents were prepared in the office at Udaipur. It is argued on behalf of the prosecution that there is no reason to believe the testimony of the departmental witnesses who have stated that the documents were prepared on the spot. I find that the oral testimony in respect of preparation of the documents is most irresponsible and does not inspire any confidence. Rakesh Bhargava has stated, on oath, that the documents marked Ex. P-i to Ex. P-8, all were prepared on the spot at the time of recovery on 11-7-93. I find that the site plan Ex. P-8 was actually prepared on 12-8-93 by the Investigating Officer P.W. 8 N. L. Mitoulia. Ex. P-6 is the confessional statement which was recorded by P.W. 2 Rakesh Bhargava. P-i to Ex. P-8, all were prepared on the spot at the time of recovery on 11-7-93. I find that the site plan Ex. P-8 was actually prepared on 12-8-93 by the Investigating Officer P.W. 8 N. L. Mitoulia. Ex. P-6 is the confessional statement which was recorded by P.W. 2 Rakesh Bhargava. The time of recording Ex. P-6 has not been mentioned but Rakesh Bhargava, in his cross-examination has stated that the accused was taken to Udaipur and his statement Ex. P-6 was recorded there in the office at 7.00 p.m. Ex. P-S is the statement of Kalyan Singh and Ex. P-7 is the statement of Rakesh Bhargava which were subsequently recorded by the Investigating Officer N. L, Mitoulia on 29-9-93 and 9-8-93 respectively. Thus, the depoition of Rakesh Bhargava to the effect that all the documents which have been marked Ex. P-i to Ex. P-8 were prepare on the spot at the time of recovery, is clearly false and no presumption can be raised in favour of the prosecution. 10. In a case of recovery of contraband, Section 55 of the NDPS Act provides that the material is first sealed at the place of recovery and subsequently it is to be re-sealed by another seal when it is put in the ‘Malkhana’ prior to its despatch to the public analyst. However, there is no evidence to the effect that the material was re-sealed when it was placed in the office. 11. There is no evidence to the effect that any detailed report of the recovery was sent to the higher officers as provided under Section 57 of the NDPS Act. The case of the prosecution is to the effect that a telegram was sent to the higher ups after the alleged recovery. Needless to say that sending a wireless message is not proper compliance of Section 57 of the NDPS Act. There is no evidence and there is nobody examined to say that any detailed report was actually sent to the senior officers of the Narcotic Department. 12. In the result, the appeal requires to be allowed and the same is allowed. The Judgment dated 24-5-95 finding the accused-appellant guilty is set aside and the accused-appellant is acquitted of the charge. The amount of fine, if deposited by him, shall be refunded.