Research › Search › Judgment

Rajasthan High Court · body

2002 DIGILAW 503 (RAJ)

State of Rajasthan v. Siraj Ahmed

2002-02-27

O.P.BISHNOI

body2002
JUDGMENT 1. - This appeal has been filed by the State against the judgment dated 1.2.91 passed by the Additional Sessions Judge, Chittorgarh. 2. The prosecution story in brief was that on a secret information the SHO Police Station Nimbahera on 27.7.88 went to the house of the respondent Siraj Ahmed in the township of Nimbahera situate in Idgah Masjid area and following recoveries in respect of opium were allegedly made : (i) 4.750 kgs. opium in a bag. (ii) 4 kg. opium in a bucket. (iii) 31 kgs. liquid opium in a Jerrycane. (iv) 21/2 bottles liquid opium (weight not known) 3. The Recovery Memo Ex.P/1 was prepared, the accused was arrested and after investigation the challan was filed under section 8/18 of the NDPS Act in the court of Sessions Judge, Pratapgarh from where the case got transferred to the said trial court. The accused pleaded not guilty to the charge. As many as 10 witnesses were examined by the prosecution in support of its case. DW-1 Ahmed Hussain was examined by the accused in his defence. According to DW-1 Ahmed Hussain the accused was not living in the parental house because his relations with his father were strained and the house in question was in the occupation of a brother of the accused who lived there with his family. The learned trial court then heard the arguments and delivered the judgment of acquittal against which the State has come in appeal. 4. I have heard the learned Public Prosecutor and have perused the evidence on record. I find no reason to draw a different conclusion than the one drawn by the learned trial court. 5. PW-3 Hamid Ali, PW-4 Ziauddin and PW-5 Amir were examined to prove that the house in question was in the possession of the accused but all the three denied the said contention of the prosecution and did not support the version that the house in question belong to the accused or was in his possession. 6. PW-1 Kanhaiya Lal and PW-2 Radhey Shyam were the `Motbir' witnesses in whose presence the recoveries, allegedly, were made. However, none of them supported the prosecution story in respect of the recoveries from the accused. Both of them stated to the effect that they were summoned by the SHO at the Police Station and were made to sign the Recovery Memo Ex.P/1 in the police station. However, none of them supported the prosecution story in respect of the recoveries from the accused. Both of them stated to the effect that they were summoned by the SHO at the Police Station and were made to sign the Recovery Memo Ex.P/1 in the police station. There is, thus, no independent corroboration of the alleged recovery. Needless to say that in a serious case like this in which the accused has to be awarded a minimum sentence of 10 years rigorous imprisonment and a fine of Rs. 1 lac in the eventuality of finding of guilty, it is not safe to base conviction without slightest independent corroboration. 7. PW-6 Laxman Singh Chundawat, ASI and PW-10 Netrapal Singh SHO are the witnesses who have supported the prosecution story but even their testimony does not seem to be of sterling worth. In his statement PW-6 Laxman Singh Chundawat has made a clear mention that Kalu Ram who was with them procured the weighing material. However, PW-8 Kalu Ram does not say that he was present at the time of any recover or the weighing material was procured by him. Non - corroboration by Kalu Ram is a fact which cannot be lost sight of. The testimony of PW-6 Laxman Singh is self contradictory. He states that when they reached the house the accused was present and his permission was sought in respect of the proposed search. The witness states that after this permission from the accused they entered the house and the search took place. However, in the next breath he states that when they entered the house they found that the accused was sitting near the utensils and the process of cooking and preparation of opium was in progress. He further states that one Habib Khan was also present in the house. However PW-10 Netrapal Singh states that other person present was Amir Khan. Apart from the fact that the two statements are contradictory, it becomes important as to who Habib Khan and Amir Khan were? If they were not connected with the crime then they were the best witnesses in support of the prosecution story in respect of the alleged recovery. However, their names do not find place in the calendar of witnesses. If PW-5 Amir Khan was the person in the house, then he does not say that any such recovery was effected. If they were not connected with the crime then they were the best witnesses in support of the prosecution story in respect of the alleged recovery. However, their names do not find place in the calendar of witnesses. If PW-5 Amir Khan was the person in the house, then he does not say that any such recovery was effected. Nor it is the case of the prosecution that PW-5 Amir Khan was present when the search in question was carried out. 8. According to the testimony of Netrapal Singh liquid opium was found in two different utensils and 250 gm each was taken out of them for the purposes of FSL examination. He further states that a sample weighing 50 gms. was taken out of the solid opium. In this way according to Netra Pal Singh three samples only were taken in the manner indicated above. However, according to the FSL report Ex.P/18 four samples were sent for examination. Ex.P/18 further contradicts the statement of Netrapal Singh in respect of the weight/quantity of the material sent for examination. According to Ex.P/18 the packet marked `A/1' contained 85 gms. opium, whereas the packet marked `D/1' contained 120 gms opium. For the liquid opium it is mentioned that each container contained 180 mililiters of liquefied opiurn in them. Thus there is no harmony in respect of the weight of the material which was taken on the spot and which was ultimately sent for examination. It goes to show that the material which was sealed on the spot did not reach the FSL in an intact condition. In this aspect the testimony of PW-8 Kalu Ram and PW-9 Chittarmal is significant. Both these witnesses have stated that on 22.8.88 the samples were sent to the FSL through PW-9 Chittarmal. Both have stated that on account of objections they were returned and were brought back by Chittarmal to Police Station Nimbahera. This goes to show that no faultless procedure was followed in submitting the packets for chemical examination. I further find that in the instant case the concerned police officials failed to comply with the mandatory provisions of the NDPS Act. SHO Netrapal Singh has stated that after the secret information, he recorded the same and a copy, Ex.P/14 was transmitted to the Chief Judicial Magistrate concerned. Ex.P/14 is showing a despatch number 8158 dated 27.7.84 on it. I further find that in the instant case the concerned police officials failed to comply with the mandatory provisions of the NDPS Act. SHO Netrapal Singh has stated that after the secret information, he recorded the same and a copy, Ex.P/14 was transmitted to the Chief Judicial Magistrate concerned. Ex.P/14 is showing a despatch number 8158 dated 27.7.84 on it. However, it is not made clear as to who was the person with whom the report was sent to the Chief Judicial Magistrate. One thing is clear that nothing was sent to the higher officers of the police. Chief Judicial Magistrate was a totally unconcerned authority as neither the challan was to be filed in his court nor the said court was competent even to pass remand orders during investigation. There is, thus, no proper compliance of Section 42 of the NDPS Act. 9. So far as the compliance of section 50 is concerned there is no evidence to suggest that the provisions of section 50 were complied with. PW-10 Netrapal Singh does not say that any option under section 50 was offered to the accused prior to the alleged search. 10. Section 55 provides that the packets shall be sealed with the seal of SHO at the place of the recovery and while depositing the same in the Police `Mai Khana' they will be re - sealed with the seal of the police station. In this case it is not in dispute that no resealing was done when the packets were deposited in the `Mal - Khana' of the police station. 11. Regarding compliance of section 57, Netrapal Singh has deposed that a detailed report the copy of which is Ex.P/16 was despatched to the Superintendent of Police, Chittorgarh. I find that, possibly, there was no despatch of any detailed report under section 57 of the NDPS Act in this case. It appears that on account of some legal advice an attempt has been made subsequently to create evidence. Ex.P/16 does not show that it was ever despatched to anybody. It does not have any date on it. No person is named who allegedly carried the report to the Superintendent of Police. It appears that on account of some legal advice an attempt has been made subsequently to create evidence. Ex.P/16 does not show that it was ever despatched to anybody. It does not have any date on it. No person is named who allegedly carried the report to the Superintendent of Police. It is thus clear that compliance of Section 57 was not made in this case.In view of what has been stated above it is clear that the appeal is without merit, and the same is hereby dismissed.Appeal dismissed. *******