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2002 DIGILAW 549 (RAJ)

State of Rajasthan v. Shanti and Anrs.

2002-03-08

O.P.BISHNOI

body2002
JUDGMENT 1. - This is an appeal filed by the State against the judgment delivered by the Additional Sessions Judge No. 2, Hanumangarh, in sessions case No. 37/89. 2. According to the prosecution story, on 18.1.89 the SHO Police Station, Pilibanga received a secret information which was recorded in Ex.P/8. According to the information, the respondent Smt. Shanti and her son Darshan alongwith her husband Shankar Lal were habitually indulging in the sale and purchase of opium and Smt Shanti was expected to come with opium near Chungi Chowki No. 2. On this information, the SHO alongwith other police personnel reached near the Chungi Chowki No. 2, in the township of Pilibanga. At about 1.45 p.m. Smt. Shanti approached the place with a bag in her hand. She was stopped and searched and the bag yielded opium weighing 10 kgs. A sample weighing 50 gms. was separated and was sealed on the spot. She was arrested and was taken to the police station. She further gave an information to the effect that more opium was placed in her residential house. This information was also recorded and Smt. Shanti produced more opium weighing 20 kgs. Another sample of 50 gms. was taken out the said material and was sealed. Shankar Lal was also arrested in connection with the second recovery of 20 kgs. opium and challan was filed against both the respondents. Shanti was charged for possessing 30 kgs. opium and Shankar Lal was charged for possessing 20 kgs. opium. Both the accused persons pleaded not guilty. 3. PW-1 Mohan Singh, PW-2 Jogendra Singh, PW-3 Likhma Ram, PW-4 Major Singh, PW-5 Bhanwar Singh and PW-6 Kailash Chand were examined by the prosecution in support of its story. The statements of the accused persons were then recorded under section 313 of the Cr.PC. They denied the whole story and contended that the case was false and they were falsely implicated. Arguments were heard and the judgment Was delivered on 5.1.91, whereby both the appellants were acquitted of the charge. The State has come in appeal. 4. I have heard the learned Public Prosecutor and perused the record of the trial court and I find that the appeal has got no merit. 5. So far as the accused Shankar Lal is concerned there is no an of evidence to find him guilty for the said offence. The initial recovery of 10 kgs. 4. I have heard the learned Public Prosecutor and perused the record of the trial court and I find that the appeal has got no merit. 5. So far as the accused Shankar Lal is concerned there is no an of evidence to find him guilty for the said offence. The initial recovery of 10 kgs. opium was made solely from Smt. Shanti Shankar Lal has not been charged for this recovery. For the second recover also, it is the allegation that Smt. Shanti gave the information and she was responsible for recovering the subsequent 20 kgs. opium. There is no evidence that any role was played by the respondent Shankar Lal in the alleged recovery. According to Kailash Chand the respondent Shankar Lal was implicated on the statement of co-accused Shanti and she allegedly told the SHO that Shankar Lal was equally guilty for possessing the said offence. 6. Needless to say that neither the SHO Kailash Chand had any authority to record such a confessional statement nor there is any documentary proof to support the said contention of Kailash Chand. As a matter of fact no witness, other than Kailash Chand, has supported the prosecution story in respect of the recovery of 20 kgs. opium. PW-3 Likhma Ram and PW-4 Major Singh are said to be the independent `Motbirs' but both of them have not corroborated the prosecution story and both have been declared hostile. In respect of the earlier recovery of the 10 kgs. opium also Likhma Ram and Major Singh have not corroborated the story of recovery. PW-2 Jogendra Singh, Head Constable and Kailash Chand SHO are the only persons to support the prosecution story. In a serious case like this in which minimum sentence provided is 10 years rigorous imprisonment and a fine of Rs. 1 lac, it is not safe to convict the accused without slightest independent corroboration. The testimony of Jogendra Singh and Kailash Chand also is not very satisfactory. It is not in dispute that the `Mukhbir' provided the information to the SHO at 1.35 p.m. The SHO, Kailash Chand has stated that it took about 10 minutes to record the information Ex.P/8 of the `Mukhbir'. The testimony of Jogendra Singh and Kailash Chand also is not very satisfactory. It is not in dispute that the `Mukhbir' provided the information to the SHO at 1.35 p.m. The SHO, Kailash Chand has stated that it took about 10 minutes to record the information Ex.P/8 of the `Mukhbir'. According to Kailash Chand he recorded the information Ex.P/8 and thereafter he proceeded towards the Chungi Chowki and he had to wait for a long time at Chungi Chowki No. 2 and after a long wait Smt. Shanti appeared on the scene. However, the recovery memo Ex.D/1 goes to show that the same was prepared at 1.45 p.m. 7. Needless to say that in view of the testimony of Kailash Chand, it was not possible to prepare the Recovery Memo Ex.P/1 at 1.45 p.m. because by the time he completed the first memo Ex.P/8 on the bus stand, it was 1.45 p.m. already because the `Mukhbir' had contacted them at 1.35 p.m. Jogendra Singh stated that after receipt of the information Ex.P/8 it took them about 30 to 45 minutes in reaching the Chungi Chowki No. 2 where the recovery was allegedly made. In this way they could not reach the Chungi Chowki before 2 p.m. or 2.15 p.m. According to Kailash Chand they had to wait for a long time. In these circumstances it does not remain acceptable that the time recorded on Ex.D/1 is correct and it puts the whole story under suspicion. PW-6 Kailash Chand in his examination-in-chief states that the weighing of the opium was done by Satya Narain but in cross - examination he take a somersault and states that he himself weighed the opium. Needless to say that the testimony of Jogendra Singh and Kailash Chand does not inspire any confidence. 8. It is not proved that the opium, which was separated at the place of recovery and which was sent to the FSL for chemical examination reached in an intact condition. According to the oral testimony and the written allegations in the recovery memo, each time a sample weighing 50 gms. was separated, sealed and was sent for chemical examination. However, the Chemical Report Ex. D/3 goes to show that the two packets which were received for chemical examination, each contained 100 gms. opium. No body has explained as to how each packet contained 100 gms. was separated, sealed and was sent for chemical examination. However, the Chemical Report Ex. D/3 goes to show that the two packets which were received for chemical examination, each contained 100 gms. opium. No body has explained as to how each packet contained 100 gms. opium when admittedly 50 gms opium was separated at the time of recovery and was sealed in the packet. This anomaly alone is fatal for the prosecution so far as the respondents are concerned. 9. Learned trial court has recorded that there was no compliance of the mandatory provisions of the NDPS Act. So far as the compliance of Section 42 (2) of the said Act is concerned there is no evidence to the effect that the copy of Ex.P/8 was sent to the higher police officers. Regarding the compliance of section 50 PW-6 Kailash Chand states that after the accused Shanti was stopped, she was given option that she could be searched in the presence of a Magistrate or a Gazetted Officer, if she so desired. However, the Recovery Memo Ex.D/1 does not state that any option of search before a Gazetted Officer was offered to the accused. Ex.D/1 contains a mention that she was offered to be searched in the presence of an Advocate or a Magistrate. In this way the oral evidence of Kailash Chand to the effect that she was given the option of search before a Gazetted Officer is an improvement possibly on legal advice. In this way we find that there was no proper compliance of Section 50 of the said Act. There is no evidence to the effect that the compliance of section 55 of the Act was made by any body. Regarding the compliance of Section 57 Kailash Chand has stated that an information was sent by wireless. However, there is no proof that any wireless was sent. Moreover, sending of the detailed report by wireless is not proper compliance of Section 57. In the cross - examination the witness has changed and has stated that the Dy.SP visited the police station and he was orally informed about the recovery. There is no document to suggest that any such information was actually furnished to the Dy.SP I find that the compliance of Section 57 was not made by the SHO. 10. In the cross - examination the witness has changed and has stated that the Dy.SP visited the police station and he was orally informed about the recovery. There is no document to suggest that any such information was actually furnished to the Dy.SP I find that the compliance of Section 57 was not made by the SHO. 10. In the result I find no force in the appeal and the same is hereby dismissed.Appeal Dismissed. *******