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2004 DIGILAW 1015 (RAJ)

Surja Ram v. State of Rajasthan

2004-07-21

SHIV KUMAR SHARMA

body2004
Judgment Shiv Kumar Sharma, J.-Instant appeal arises out of the Judgment dated July 12, 2001 of the learned Special Judge, NDPS Cases Jodhpur rendered in Sessions cases No. 65/1999, whereby the appellant was convicted and sentenced under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short NDPS Act’) to undergo rigorous imprisonment for ten years and fine of Rs. one lac in default to further undergo imprisonment for two and a half years. 2. Theprosecution story is that the SHO of Police Station Luni, Gaje Singh (PW3), received a secret information on August 1, 1999 that Surja Ram resident of Rohicha Kala was involved in the business of Poppy Husk. The SHO, with police party reached at the spot and recovered 32 bags of Poppy Husk from the trolley covered with tripal (cloth of lent). Necessary memos were drawn and after usual investigation charge sheet was filed. Charge under Section 8/15 NDPS Act was framed against the appellant, who denied the charge and claimed trial. The prosecution in support of its case examined as many as eleven witnesses. The appellant in his explanation tinder Section 313 Cr.P.C. claimed innocence, and staled that he was sleeping in the house and the police asked him about the trolley which was punctured and standing on road. The trolley belonged to Lala Ram and Deva Ram left the trolley on the road when the same was punctured. Two witnesses in defence were examined by the appellant. On hearing final submissions, the learned trial Judge convicted and sentenced the appellant as indicated above. 3. I have reflected over the rival submissions and scanned the material on record. 4. From the prosecution evidence it is not established that Poppy Husk was recovered from the possession of the appellant. Joga Ram (PW1) in his cross examination stated that police persons informed him that Poppy Husk belonging to Deva Ram was recovered by them from the way of Rohicha Kalan. Gaje Singh, SHO (PW3), in his deposition stated that on August 1, 1999 at 12.30 A.M. they proceeded from Police Station to the house of Surja Ram. On reaching the house of Surja Ram, they found a trolley standing outside his house and Surja Ram was tying the trolley with the rope. Gaje Singh, SHO (PW3), in his deposition stated that on August 1, 1999 at 12.30 A.M. they proceeded from Police Station to the house of Surja Ram. On reaching the house of Surja Ram, they found a trolley standing outside his house and Surja Ram was tying the trolley with the rope. In his cross-examination, Gaje Singh however deposed that he reached at the house of Surja Ram around 4 A.M. But Recovery Memo was drawn at 8 A.M. It is difficult to believe that even after seeing the police party appellant would have tied the trolley with the rope. 1 find myself unable to accept to the testimony of Gaje Singh. It is improbable and inexplicable. It is established from the evidence that the said trolley owned by one Lala Ram, which was carried by Deva Ram through his tractor. On the way while the trolley was punctured the police party reached and Deva Ram left the trolley and fled away. The police party made attempt to chase Deva Ram and searched his Bara and drew Search Memo Ex.P/1. Ganga Ram (PW5). Constable, Police Station, Luni, admitted in his cross examination that trolley was lying on the way at the distance of 5 to 7 fts. from the residential houses. Prema Ram (PW7) also deposed that the trolley was lying on the public way and it was carried by Deva Ram. The trolley got punctured on the way and Deva Ram fled away on seeing the police party. The police chased Deva Ram but could not catch him. Prema Ram also admitted that Surja was not present near the trolley at that time. There was no tyre mark of the trolley leading to the Dhani of Suraja Ram. This version stood corroborated by Motbir Gautam Chand (PW2) and Narendra (PW6). Mota Ram, 1.0. (PW1 1) also admitted that trolley was lying on the public place. Defence witnesses Ramchandra (DW1) and Pokar Ram (DW2) supported the defence version and their testimony could not be shattered in the cross-examination. 5. There is yet another infirmity in the prosecution case and that relates to non-compliance of provisions contained in Section 42 (2) of the NDPS Act. Gaje Singh (PW3) in his cross examination admitted that in the Memo Ex. P/8 it was not stated that the information of the Mukhbir was sent to superior officials. 5. There is yet another infirmity in the prosecution case and that relates to non-compliance of provisions contained in Section 42 (2) of the NDPS Act. Gaje Singh (PW3) in his cross examination admitted that in the Memo Ex. P/8 it was not stated that the information of the Mukhbir was sent to superior officials. Provisions contained in Sub-section (2) of Section 42 are mandatory in nature and non-compliance thereof creates doubts in the fairness of the prosecution story. 6. Theupshot of the above discussion is that the prosecution has failed to establish that the Poppy Husk was recovered from the possession of the appellant and charge under Secrion 8/15 of the NDPS Act is not proved beyond reasonable doubt. 7. For these reasons, I allow the appeal and set aside the Judgment dated July 12, 2001 passed by the learned Special Judge, NDPS Cases, Jodhpur. I acquit the appellant of the charge under Section 8/15 of the NDPS Act. The appellant, who is in jail, shall be set at liberty forthwith, if not required to be detained in any other case.