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2002 DIGILAW 528 (RAJ)

Bheru Lal v. State of Rajasthan

2002-03-05

KHEM CHAND SHARMA

body2002
Honble SHARMA, J.–This criminal appeal by accused appellant Bheru Lal has been preferred against the judgment and order dated March 16, 1999 passed by the learned Special Judge, NDPS Cases and Additional Sessions Judge, Ramganj-Mandi, District Kota by which he has convicted the accused appellant under Section 8/18 of the Narcotic Drugs and Pshychotropic Substances Act, 1985 (hereinafter to be referred as `the Act) and sentencing him to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/-, in default of payment of fine, to further undergo 2 & 1/2 years simple imprisonment. (2). Succinctly stated the contextual facts of the case are that on March 18, 1998 at 4.00 PM, a Preventive Party under the leadership of PW.4 Suresh Kishnani, Assistant Commissioner, Narcotics, Kota reached village, Bholu for the purpose of getting preliminary weight of the opium produced by the cultivators for the crop year 1997-98. During process, accused Bheru Lal produced opium weighing 4 kg cultivated and harvested under the licence bearing No. 32 issued in the name of his wife Nandu Bai. The Assistant Commissioner, Narcotics informed Bheru Lal that the weight of opium is less as compared to the land cultivated, which was 17 `Aaries. Accordingly, he directed the accused appellant that if he has concealed the opium, then he should also get the concealed opium weighed. Bheru Lal hesitatingly denied the possession of any opium with him. Found the answer of the appellant being suspicious, the Assistant Commissioner, Narcotics alongwith the members of the preventive party and witnesses, namely, PW.2 Bheru Lal and PW.1 Bhojraj, proceeded to the house of accused. Accused pointed out his house. PW.3 P.C. Dhyani, Inspector, Narcotics Department informed the accused about his suspicion and by notice Ex.P1 made him aware of his legal right under Sec. 50 of the Act to get his house searched either in the presence of a Magistrate or a Gazetted Officer. Accused consented for the search of his house by the Inspector himself. During search of house, opium weighing 6 kgs was recovered vide memo Ex.P.2. It is stated in the memo, Ex.P.2 that since the object behind concealing opium out of the opium cultivated/produced was to make embezzlement and then to smuggle embezzled opium and, therefore, the opium was seized under the provisions of Section 8/18 for contravention of the provisions of Section 8/19 of the Act. It is stated in the memo, Ex.P.2 that since the object behind concealing opium out of the opium cultivated/produced was to make embezzlement and then to smuggle embezzled opium and, therefore, the opium was seized under the provisions of Section 8/18 for contravention of the provisions of Section 8/19 of the Act. P.C. Dyani prepared site plan, Ex.P.3, seized the opium weighing 4 kgs. produced under the licence, vide memo Ex.P6 and also seized the paper of a register, Ex.P.8 showing daily accounts of the opium collected, vide seizure memo Ex.P.7. On completion of necessary formalities including arrest of the appellant, Shri P.C. Dyani submitted a First Information Report Ex.P.14 to the Superintendent, Narcotics Bureau, Kota. (3). The Superintendent, Central Bureau of narcotics vide letter Ex.P.15 sent the sample of opium to the Government Opium and Alkaloid Works, Neemuch through one Sharif Mohd., Sepoy of his office. The Analysis report, Ex.P.19 shows that the each of the sample was found of opium within the meaning of NDPS Act, 1985. (4). On competition of investigation, a charge sheet was submitted against the appellant in the court of learned Special Judge, NDPS Cases Ramganjmandi, Kota. The learned Special Judge, after hearing arguments of both the parties, framed charge against the appellant under Sec. 8/18 of the Act. The accused denied the charge and claimed trial. (5). The prosecution, in support of its case examined as many as 8 witnesses and exhibited some documents. Thereafter, accused appellant was examined under Section 313 Cr.P.C. In his explanation, the accused stated that during course of taking preliminary weight, the persons of the department had entered into the temple with shoes, which was objected by his son and the residents of the village and for that reason the departmental personnels became annoyed and concocted a false case. The accused further stated that since he failed to fulfil the demand of Rs. 20000/- raised by the departmental personnels, they have falsely involved him. (6). At the conclusion of trial, the learned Special Judge found the prosecution case as alleged, proved and according held the accused appellant guilty of having committed offence under Sec. 8/18 of the Act and convicted and sentenced him as aforesaid. (7). Feeling aggrieved by the judgment of conviction and sentence, the appellant has preferred this appeal. (8). (6). At the conclusion of trial, the learned Special Judge found the prosecution case as alleged, proved and according held the accused appellant guilty of having committed offence under Sec. 8/18 of the Act and convicted and sentenced him as aforesaid. (7). Feeling aggrieved by the judgment of conviction and sentence, the appellant has preferred this appeal. (8). I have heard learned counsel for the parties and carefully perused the impugned judgment and the evidence and material on record. (9). At the out-set, it may be noted that it is an admitted position that Preventive party reached village Bholu for the purpose of preliminary weighment of opium cultivated by cultivators under the licences issued under Rule 8 of the Narcotic Drugs and Psychotropic Substances Rules, 1985 (hereinafter to be referred as ``the Rules) Similarly, it is also an admitted fact that Nandu Bai wife of accused is also a licensee for cultivation of opium and her licence No. is 32. (10). Before proceeding further, it would be necessary to first understand the procedure with respect to preliminary weighment. The procedure with regard to preliminary weighment is provided under Rule 13 of the Rules, which is reproduced as under : ``13. Procedure with regard to preliminary weighment- (1) The cultivator weighment-(1) The cultivator shall, during the course of harvesting, produce daily before the Lambardar, each days collection of opium from his crop for weighment. (2) The Lambardar shall make arrangements to weigh such opium and make necessary entries in the records to be maintained by him as may be specified by the Narcotics Commissioner in this behalf. (3) The cultivator and the Lambardar shall attest the entries made in such records under their signature/thumb impression with date, showing the quantity of opium weighed on a particular day. (4) The proper officer shall conduct check weighment of the opium collected by the cultivators, with reference to the entries in the Lambardars record and indicate his finding therein which shall be attested by him and the Lambardar under their signature with date. (5) The variations between the quantity of opium produced by the cultivator indicated in the Lambardars record and as found by the proper officer during his check, shall be inquired into by the proper officer in order to ascertain the liability of the cultivator for punishment under Section 19 of the Act. (11). (5) The variations between the quantity of opium produced by the cultivator indicated in the Lambardars record and as found by the proper officer during his check, shall be inquired into by the proper officer in order to ascertain the liability of the cultivator for punishment under Section 19 of the Act. (11). It seems that preventive party headed by Assistant Commissioner, Narcotics conducted check weighment of the opium collected by the cultivators with reference to the entries in the Lamberdars record in accordance with Sub clause (4) of Section 13 of the Rules. (12). Rule 14 of the Rules prescribes that all opium, the produced of land cultivated with opium poppy, shall be delivered to District Opium officer or any other duly authorised officer in this behalf by the Narcotics Commissioner at a place as may be specified by such officer. (13). A combined reading of Rules 13 & 14 of the Rules makes it abundantly clear that after preliminary weighment of opium, the same is entrusted to the cultivator himself, who is to deliver all the opium harvested during the crop year to the authorised officer. (14). Now I shall proceed to consider the prosecution evidence to establish whether the factual position stands to the test of the provisions of the Rules. (15). PW-1 Bhojraj (Lambardar appointed for the previous crop year) has admitted in cross examination that persons of the department had come on the relevant day for preliminary weighment. The final weighment of the opium is to be done after two months of the preliminary weighment. After the preliminary weighment, the opium is entrusted to the cultivator himself. (16). PW-2 Bherulal (Lambardar appointed for the year in question) has stated that after preliminary weighment and making entry in the register, the opium is again handed over to the cultivator. If there is some deficiency or increase at the time of preliminary weighment, the cultivator can make it complete at the time of final weighment. (17). PW-3 Prakash Chand Dhyani, Inspector has stated in his statement that as per the practice prevalent in their department, the preliminary and final weighment is being done by them. He admitted that it is true that under the notification issued by their department, the period fixed for final weighment was between 3rd and 8th May. (18). (17). PW-3 Prakash Chand Dhyani, Inspector has stated in his statement that as per the practice prevalent in their department, the preliminary and final weighment is being done by them. He admitted that it is true that under the notification issued by their department, the period fixed for final weighment was between 3rd and 8th May. (18). PW-4 Suresh Kishnani, Assistant Commissioner, Narcotics has stated that this year the preliminary weighment was started from 5th March. He further stated that the cultivator used to entrust entire opium to the department, whether it is less or in excess in whatever quantity at the time of final weighment. He stated that the opium remains with the cultivator till final weighment. (19). PW.5 D.P. Bhatnagar has admitted in his statement that it is true that opium is weighed in two ways, namely, preliminary and final. The final weighment is being started either in the last week of April or in the first week of May. He also stated that it is true that the cultivator deliver the entire opium to the department at the time of final weighment. The opium is again entrusted to the cultivator after the entry of the weight is made at the time of preliminary weighment. (20). From the prosecution evidence discussed above, the following factual position has emerged: (i) Preventive party under the leadership of PW4 Suresh Kishnani, Assistant Commissioner, Narcotics reached Village, Bholu for the purposes of conducting check weighment of the opium cultivated by the cultivators under the licences issued with reference to the entries in the lamberdars record and during the process, accused appellant delivered opium weighing 4 kgs. (ii) Nandu Bai, wife of accused appellant Bheru Lal was granted licence No. 32 under Rule 8 of Rules 1985 to cultivate opium and as such she was a licensee for the year in question and the above said opium which appellant delivered for preliminary weighment was undisputedly cultivated and harvested under the licence issued to Nandu Bai. (iii) Suresh Kishnani after preliminary weighment of opium brought by appellant informed about his suspicion to the appellant that comparative weight of opium is less than the land cultivated and accordingly directed him to deposit remaining opium if any in his possession. But Bheru Lal gave negative answer, which resulted into seizure of 6 kg opium from the house of Bheru Lal. But Bheru Lal gave negative answer, which resulted into seizure of 6 kg opium from the house of Bheru Lal. (iv) Undisputedly, 6 kgs opium recovered from the house of the appellant was also cultivated under the licence issued to Nandu Bai, as it was seized for contravention of Section 19 of the Act. (v) Cultivator of opium, under the licence, is required to deliver all the opium harvested during the crop years to the authorised officer at the time of final weighment. (21). For the conclusions recorded above, it is established that the factual position in terms of the requirements of the of the legal position stands admitted. (22). To convict a person under Sec. 18 of the Act, prosecution is obliged to prove that the accused in contravention of any provisions of the Act or any rule or order made or condition of licence granted thereunder had cultivated or possessed opium poppy. (23). Section 8 of the Act and Rule 5 of the Rules permits cultivation of opium poppy in accordance with the terms and conditions contained in the licence. In the case at hand, the opium seized from the house of appellant, admittedly, was cultivated under the licence issued in the name of Nandu Bai w/o of the appellant and opium was in possession in accordance with the terms and conditions of the licence for the simple reason that as per the provisions of the rules referred to above the cultivator is required to deliver all opium harvested during crop year the District opium Officer or any other officer duly authorised in this behalf only at the time of final weighment, otherwise the opium harvested in kept in possession by the cultivator till final weighment is made. In these circumstances, the opium seized from the house of the accused appellant cannot be termed as contraband. (24). A some what similar dispute came up before this court in Jagdish and another vs. State of Rajasthan (1), wherein, father of the accused was a licensed opium grower and he deposited the opium with Lamberdar through his son, the accused. It was alleged that 400 grams of opium found in the house was contraband opium. (24). A some what similar dispute came up before this court in Jagdish and another vs. State of Rajasthan (1), wherein, father of the accused was a licensed opium grower and he deposited the opium with Lamberdar through his son, the accused. It was alleged that 400 grams of opium found in the house was contraband opium. In this circumstances, this court held that as per the notification issued by the Deputy Commissioner, Narcotic the opium growers were required to deposit their entire produce by the period from 3rd may to 8.05.1994 and therefore, there is not an iota of evidence to show that 400 grams of opium was indeed contraband opium and hence order of framing charge against the accused was set aside and the accused was discharged. (25). In the instant case, the accused appellant was charge sheeted under Section 8/18 for contravention of the provisions of Sec. 8/19 of the Act. Section 19 of the Act provides punishment for embezzlement of opium by cultivator. If Section 19 of the Act is read with Rules 13 and 14 of the Rules it becomes clear that if the cultivator of opium after depositing the opium at the time of final weighment conceals some opium, he can be held liable for punishment under Section 19 of the Act for embezzlement of opium. Therefore, in my considered view the opium in question could not be seized under Sec. 18 of the Act for contravention of Section 19 of the Act. The seized opium which was cultivated under the licence and was found in possession before the final weighment cannot at all be termed as contravand. It is therefore, held that the conviction of the accused appellant under Section 8/18 of the Act is not legally sustainable. (26). There are some other infirmities in the prosecution case, which need to be taken note of. (27). PW.1 Bhoj Raj and PW.2 Bheru Lal, in whose presence the alleged recovery of opium was made have not supported the prosecution case, but still they have not been declared hostile. Therefore, their statements cannot be disbelieved. Both these prosecution witnesses have categorically stated that no opium was recovered from the house of the accused appellant in their presence. (28). That apart, accused in his statement under Sec. 313 Cr.P.C. has disclosed that officials of the department entered into the temple with their shoes. Therefore, their statements cannot be disbelieved. Both these prosecution witnesses have categorically stated that no opium was recovered from the house of the accused appellant in their presence. (28). That apart, accused in his statement under Sec. 313 Cr.P.C. has disclosed that officials of the department entered into the temple with their shoes. His son and other villagers objected to it, which led to annoyance of the officials of the department and because of annoyance, they concocted a false case. The fact disclosed by the accused appellant is admitted by PW.1 Bhojraj and PW.2 Bherulal in their cross examination. (29). Further, the fact that preliminary weighment was done at village temple finds support from Ex.P.2. PW.4 Suresh Kishnani in his statement has admitted that on 23.3.1998 a case was registered against them at Police Station Chechet. However, the witness further stated that after investigation FR was submitted by the Police. (30). From the prosecution evidence, it is not proved beyond doubt that seals of samples remained intact right from inception of the proceedings under the Act till the same was sent to Government Opium and Alkaloid Works, Neemuch. It is admitted by the official witnesses that seal of the department was used to seal the samples. PW.6 Sharif Mohd. received the samples marked A1 and B1 on 19.3.1998 to deposit the same in the Government Opium and Alkaloid Works Neemuch. He handed over the samples to the Chemical Analyser on 20.3.1998, but he returned the samples with objection that envelop of samples are not properly sealed. Again on 23.3.1998 Shri PC Dhyani, PW.3 deposited the samples after he removed the objection. However, it is not clear that as to how he rectified the defect. In the circumstances therefore, it can be concluded that prosecution has not been able to prove beyond reasonable doubt that the samples remained intact right from the time of seizure till the same reached the concerned department for chemical examination. (31). Lastly, it may be noted that from the statements of prosecution witnesses it has come out on record that the house in question belonged to the parents of the wife of accused and the accused resides in that house alongwith his wife, son and daughters. Therefore, the house cannot be said to be in exclusive possession of the accused appellant. Lastly, it may be noted that from the statements of prosecution witnesses it has come out on record that the house in question belonged to the parents of the wife of accused and the accused resides in that house alongwith his wife, son and daughters. Therefore, the house cannot be said to be in exclusive possession of the accused appellant. Therefore, the opium if any recovered, cannot be said to be in exclusive and conscious possession of the appellant. (32). For the reasons aforesaid, the appeal of the appellant is allowed. The judgment of the trial court convicting the appellant under Sec. 8/18 of the Act and sentencing him to undergo imprisonment for 10 years is set aside and the appellant is acquitted of the offence charged with. The appellant is in jail and he be set free forthwith, if not wanted in any other case.