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2002 DIGILAW 912 (PNJ)

Kaaraka Singh v. State Of Haryana

2002-09-12

ADARSH KUMAR GOEL

body2002
Judgment Adarsh Kumar Goel, J. 1. This appeal has been preferred against the conviction and sentence of the appellant under Section 5 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, `the Act). The appellant has been sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs. one lac and in default of payment of fine, to further undergo rigorous imprisonment for two years. 2. The case of the prosecution is that on 30.3.1998, ASI Babu Ram along with HC Ram Pal and other police officials was proceedings towards village Mayond Kalan for patrol duty and at the bus stand, a secret information was received that huge quantity of poppy husk could be recovered from the possession of the accused. Jagiro, Sarpanch of the village, was joined in the raiding party and on raid, the accused was found sitting on a cot in the court-yard of his house. Notice Ex.PF was served upon the accused to the effect that he could opt for being searched before a Gazetted Officer or a Magistrate and in rely thereto, he made a statement that he wanted to be searched before a Gazetted Officer or a Magistrate. Accordingly, DSP Randhir Singh was called at the spot and in his presence, search of the house was conducted and six bags of poppy husk were recovered from the South Western wall of the verandah of his house lying in a bunker pit. Sample of 200 grams was separated from each bag and the residue, on weighment, was found to be 35 kgs. each. The sample parcels and the residue were sealed with seal `RS of DSP Randhir Singh and `BR of ASI Babu Ram and were taken into possession and seal after use was handed over to HC Ram Pal by ASI Babu Ram, while DSP Randhir Singh retained his seal. Rukka Ex.PJ was sent to the police station, on the basis of the which the FIR Ex. PJ/1 was recorded. Site plan Ex.PK was prepared. The accused was arrested and the case property was deposited with the MHC. 3. In support of its case, the prosecution inter alia examined PW-7 ASI Babu Ram, whose evidence is corroborated by PW-5 DSP Randhir Singh, apart from PW-1 HC Baldev Singh, PW-2 constable Satpal Singh, PW-3 SI Banwari Lal and PW-6 HC Ram Pal. The accused was arrested and the case property was deposited with the MHC. 3. In support of its case, the prosecution inter alia examined PW-7 ASI Babu Ram, whose evidence is corroborated by PW-5 DSP Randhir Singh, apart from PW-1 HC Baldev Singh, PW-2 constable Satpal Singh, PW-3 SI Banwari Lal and PW-6 HC Ram Pal. PW-4 Jagiro, an independent witness did not support the prosecution version. 4. In his statement under Section 313 Cr.P.C., the accused denied the case of the prosecution and stated that he was falsely implicated. 5. On the basis of evidence on record, the trial Court held the case of the prosecution to be proved, and convicted and sentenced the appellant as aforesaid. 6. I have heard learned counsel for the parties and perused the record of the case. 7. Learned counsel for the appellant contended that secret information, which was received by the investigating officer was not recorded into writing and there was violation of Section 42 of the Act; conscious possession of the appellant was not proved as the site was shown to be near the house as per site plan Ex.PK, though the prosecution has taken it to be a part of the house; since the site in question was not a part of the house, the appellant could not be held to be in possession in absence of evidence to show that the appellant was owner of the verandah (court-yard) and the case property produced in Court did not tally with the case property said to have been recovered from the appellant. It was pointed out PW-7 ASI Babu Ram has stated in his cross examination that while at the time of recovery, poppy husk was found to be 35 Kgs in each bag, at the time of production in Court, 2-3 bags contained 7-8 Kgs, 2-3 bags contained 14-15 kgs and the remaining bags contained 20-22 Kgs of poppy husk and no report had been received in the police station regarding reduction of quantity in the case property, which showed that the bags produced in the Court were not the same bags, which were recovered from the appellant. Reliance is also placed on a judgment of the Apex Court in Beckodan Abdul Rahiman v. State of Kerala, 2002(2) Recent Criminal Reports 385, wherein it was held that if there was non-compliance of Section 42 of the Act, conviction will be liable to be set aside. 8. Learned counsel for the State supported the conviction and sentence of the appellant and submitted that the site in question was a part of the house of appellant; the Court had to take a practical view of the requirement of Section 42 of the Act, as the secret information was received when the police party was patrolling the area and immediately on receiving the information, the police party reached the spot and effected the recovery; wireless message was sent to the DSP, who arrived at the spot and recovery was effected in his presence. 9. I have considered the rival submissions. The police party received secret information, while they were on patrol duty and the priority was first to seize the contraband. The DSP, who is a senior officer, was immediately informed on wireless and he reached the spot. It has been held in Abdul Rashid Ibrahim Mansuri v. State of Gujarat, 2000(1) RCR(Crl.) 611 (SC) : AIR 2000 SC 821, where Section 42 of the Act had not been complied with, the trial will not be vitiated, though the seizure may be suspect. In Sajan Abraham v. State of Kerala, 2001(3) RCR(Crl.) 808 (SC) : 2001(6) SCC 692, it was held that the Court had to take a practical view of the situation, while examining the effect of non-compliance of Section 42 of the Act. Judgment in Beckodan Abdual Rahimans case (supra) relied on by counsel for the appellant cannot be said to have laid down any contrary law, as the same has been rendered on its own facts. Having regard to the law laid down by the Apex Court in Abdul Rashid Ibrahim Mansuris case (supra) and Sajan Abrahams case (supra), failure to comply with Section 42 of the Act cannot be said to be fatal to the case of the prosecution. The case of the prosecution is proved beyond reasonable doubt by the evidence of PW-7 ASI Babu Ram and PW-5 DSP Randhir Singh, apart from other evidence of the prosecution. The case of the prosecution is proved beyond reasonable doubt by the evidence of PW-7 ASI Babu Ram and PW-5 DSP Randhir Singh, apart from other evidence of the prosecution. No doubt, the site is said to be near the house, the site plan shows that the site in question is for all practical purposes a part of the house of the accused. 10. I, however, find merit in the submission of counsel for the appellant that the prosecution has not been able to prove identification of the case property, which creates a doubt about the case of the prosecution. While it is the case of the prosecution that each of the bag had 35 Kgs of poppy husk, in evidence it has been admitted that the bags contained 7-8 Kgs, 14-15 Kgs or 20-22 Kgs of poppy husk. No doubt that damage to the case property, if properly explained, may not be fatal to the case of the prosecution, as the ingredient of the offence is recovery of the contraband and if no doubt is cast about the recovery, even non-production of the case property may not be fatal to the case of the prosecution. However, in the facts of the present case, no explanation has been furnished by the prosecution as to why the bags produced in Court did not match with the description of recovery said to have been effected. In absence of such an explanation, a doubt arises about the case of the prosecution that bags contained 35 Kgs of poppy husk each were recovered from the appellants. I, therefore, give benefit of doubt to the appellant. Accordingly, conviction and sentence of the appellant is set aside and he is acquitted.