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2003 DIGILAW 1569 (RAJ)

Mumtaz v. State of Rajasthan

2003-11-19

O.P.BISHNOI

body2003
JUDGMENT 1. - This appeal has been filed by the accused Mumtaj S/o Noor Mohammad, resident of Village Kulwana under Police Station Pratapgarh, District Chittorgarh against a judgment dated 18.12003 passed by the learned Special Judge, NDPS Cases, Udaipur whereby the appellant has been found guilty for the offence punishable under Section 8/18 of the NDPS Act and a sentence of rigorous imprisonment for 10 years with a fine of Rs. 1 lac has been awarded. For non-payment of fine, additional rigorous imprisonment for one year has been awarded. 2. The prosecution story against the appellant is to the effect that on 10 9.8.2000 at about 9 p.m., a bus belonging to the Rajasthan State Roadways Transport Corporation bearing No. RJ-27P/2719 was approaching the bus stand, Udaipur. The bus was stopped by the officers of the Narcotics Bureau. The passengers sitting in the bus were directed to remain seated in the bus and the driver and conductor of the bus were requested to act as independent 'motbirs' of the proposed search of the said bus. They agreed to the proposal and thereafter PW/1 Dharam Singh, Inspector of the Narcotics Bureau, Udaipur searched the bus with the independent 'motbirs'. According to the prosecution story, the appellant was found sitting on seat No. 29 with a 'ragzine bag' placed in his lap, he appeared to be quite tense and hence on the basis of suspicion he was asked to come down from the bus and thereafter, a search was made and the 'ragzine bag' allegedly yielded opium weighing 3 kgs. Two samples weighing 25 Grams each were separated and sealed on the spot. The necessary documents were prepared and an FIR Ex.P/11 was registered. The accused was arrested and the samples were sent for chemical examination. As per the Chemical Examination Report Ex.P/17, the material sent for examination was found to be opium with morphine content of 7.13% in it. Ultimately, the accused-appellant was put to trial. He pleaded not guilty to the charge. 3. Seven witnesses were examined by the prosecution and none was examined by defence. The accused pleaded that nothing was recovered from him and he was implicated falsely. The arguments were then heard and the to judgment was delivered on 18.1,2002 and hence, this appeal. 4. Ultimately, the accused-appellant was put to trial. He pleaded not guilty to the charge. 3. Seven witnesses were examined by the prosecution and none was examined by defence. The accused pleaded that nothing was recovered from him and he was implicated falsely. The arguments were then heard and the to judgment was delivered on 18.1,2002 and hence, this appeal. 4. I have heard the learned Amicus Curiae for the appellant as well as learned Public Prosecutor for the State and have gone through the record of the case. 5. PW1 Dhararn Singh Inspector, PW2 Heera Lal Constable and PW5 Madan Lal Meena, Superintendent of Narcotics Department have tried to support the prosecution version regarding the recovery of the contraband from the bag allegedly lying in the lap of the appellant. PW3 Hari Shankar has stated that the samples, in a sealed condition, were taken by him to the Government factory for chemical examination. PW6 Sultan Nath, Driver and PW7 Awn Vyas, Conductor of the bus have been examined as independent witnesses and both have tried to support the prosecution version. 6. After hearing the two sides and going through the record of the case, I find that the story does not inspire confidence and the appeal reserves to be allowed At the out-set, it may be stated that the evidence regarding the conscious possession of the appellant over the contraband-n-question is unnatural and unbelievable. 7. As pointed oat earlier, according to the prosecution story the bus was stopped by the personnel of the Narcotics Department and the passengers were ordered not to leave their seats. Thereafter, the driver and conductor of the bus were requested to act as independent 'motbirs' of the search and after the two consented, PW1 Dhararn Singh entered the bus. During all this time, according to the prosecution, the accused continued to keep the bag-in- question in his lap and made no attempt to get rid of the same. This version of the prosecution story is simply unbelievable. In the ease of Biharilal v. State of Rajasthan (S.B. Criminal Appeal No. 255/95) decided on 7.1.2002 , the facts were almost similar and the prosecution story regarding the possession of the contraband was not believed by the Court. This version of the prosecution story is simply unbelievable. In the ease of Biharilal v. State of Rajasthan (S.B. Criminal Appeal No. 255/95) decided on 7.1.2002 , the facts were almost similar and the prosecution story regarding the possession of the contraband was not believed by the Court. The observations made in this respect may be reproduced as under:- "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 v. Union of India, reported in 1998-99 (Supp.) Cr LR (Raj.) 122 , the facts were similar and this court found the story unbelievable and highly suspect." 8. Needless to say that the facts in this case are identical to the aforesaid case and it is not believable that the bag was lying in the lap of the appellant at the time of the search. In this connection, the testimony of the witnesses is not harmonious. According to Dharam Singh, Heera Lal and Madan Lal, who are departmental witnesses, the accused was found in a tense condition and on the basis of suspicion, he was made to come out of the bus and the search took place. According to these witnesses, all the other passengers continued to sit inside the bus. On the contrary, PW7 Arun Vyas has stated that when the bag was found, it was lying in the lap of the to appellant. All the other passengers were made to alight from the bus and the appellant alone was left in the bus and thereafter a notice Ex.P1 under Section 50 of the NOPS Act was given to the appellant and thereafter the recovery was effected. According to Dharam Singh, Heera Lal and Madan Lal, only one person of the department (Dharam Singh) entered the bus. According to Dharam Singh, Heera Lal and Madan Lal, only one person of the department (Dharam Singh) entered the bus. However, according to Arun Vyas, 4-5 persons of the Narcotics Department entered the bus and carried out the search. In these circumstances, I find that the prosecution evidence regarding the conscious possession of the contraband does not inspire confidence and is unbelievable. Arun Vyas does not say that any bag was found lying placed in the lap of the appellant. Regarding the compliance of the mandatory provisions of the Act, it is argued that after the alleged recovery, it was the bounden duty of the officers of the Narcotics Department to prepare and send a detailed report about the recovery to Higher Officers of the department. In this connection, Ex.P11 has been produced and PW1 Dharam Singh has stated that it was handed over by him to Madan Lal Meena (PW5). I find that there is no proper compliance of the provisions of Section 57 of the Act. 9. As pointed out earlier, Madan Lal Meena was a member of the search party and the notice Ex.P1 purported to have been given under Section 50 of the Act contains an endorsement to the effect that the appellant agreed to be searched in the presence of Madan Lal Meena. There was, thus, no use of sending Ex.P11 to Madan Lal Meena, who was a member of search party and it is evident that a detailed report was not transmitted to the other Higher Officers of the department. 10. In the light of the discussion made above, the appeal deserves to be allowed. 11. In the result, the appeal is allowed. The impugned judgment dated 18.1.2003 is set-aside. The appellant is acquitted of the charge. He shall be released forthwith, if not needed in connection with any other case.Appeal Allowed - Conviction Set Aside. *******