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2004 DIGILAW 319 (RAJ)

Ram Swaroop v. State of Rajasthan

2004-03-04

KHEM CHAND SHARMA

body2004
JUDGMENT 1. - This criminal appeal by appellant Ram Swaroop arises out of the - judgment and order dated 3.8.1999 passed by the Special Judge (Addl. Sessions Judge) NDPS Act Cases, Ramganjmandi, Kota thereby convicting the accused appellant for offence under Section 8/18 of Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as "the Act") and sentencing him to undergo 10 years rigorous imprisonment with a fine of Rs. 1 lac, in default thereof, to further undergo two years simple imprisonment. 2. The prosecution case, in nutshell is that on 25.10.95, PW 2 Abdul Wahid Head Constable, Out-post Darra submitted a written report at Police Station Morak alleging therein that he received information that one Mool Chand will purchase opium from the appellant. The SHO accompanied by police party left the Police Station at 8.40 PM and reached village Darra. Hans Raj and Ran Singh Constables who were already present there informed that Mool Chand had gone towards the house of appellant for buying opium, but had not returned and that they were waiting for him. Having felt satisfied as to the correctness of the information, the SHO called two independent witnesses before proceeding for search and seizure and thereafter the SHO along with independent witnesses reached the house of appellant and after observing necessary formalities searched the house of the appellant. in the course of search, one polythene bag lying over an iron drum was seized. The polythene bag contained opium weighing 670 gms. The SHO then took two samples of grams each, sealed the samples and remaining opium in separate packets. In these circumstances, a case under Section 8/18 of the Act was registered and appellant was arrested. After completion of entire formalities as to the investigation, a charge sheet was submitted against the appellant. 3. The learned trial Judge, on the basis of evidence and material collected during investigation and placed before it, framed charge against the accused under Section 8/18 of the Act. The accused pleaded not guilty and claimed trial. 4. In order to establish its case, the prosecution examined as many as witnesses and got exhibited some documents. After the prosecution evidence was over, the accused was examined under Section 313 Cr.P.C. 5. At the conclusion of trial, the learned trial court found the charge duly established beyond doubt and accordingly convicted and sentenced the appellant in the manner stated above. After the prosecution evidence was over, the accused was examined under Section 313 Cr.P.C. 5. At the conclusion of trial, the learned trial court found the charge duly established beyond doubt and accordingly convicted and sentenced the appellant in the manner stated above. Hence this appeal against conviction. 6. I have heard learned counsel for the parties and perused the impugned judgment of conviction and the evidence and material on record. 7. In assailing the conviction, learned counsel for the accused appellant has confined his arguments mainly to the extent of non-compliance of the requirement of Section 42 of the NDPS Act. He has vehemently argued that under the provisions of sub-section (2) of the Act it is incumbent upon the officer who receives information through informer to record that he had reason to believe that the accused committed an offence punishable under Chapter IV of the Act and to forthwith send a copy thereof to his immediate superior officer. Learned counsel argued that in the instant case there was complete non-compliance of the requirements of Sub-section 2 of Section 42 of the Act, inasmuch as there is no evidence either documentary or oral to show that copy of the information was sent to the Superintendent of Police or the Circle Officer. In this back-ground learned counsel submitted that non-compliance of Section 42(2) of the Act completely vitiates the proceedings against the appellant and the learned trial court has conveniently ignored this important aspect of the matter. The conviction of the appellant, therefore, deserves to be set aside only on this ground. 8. On the other hand, learned Public Prosecutor has supported the findings arrived at by the learned trial judge on the point of compliance of Section 42(2) of the Act. He submitted that it is not at all necessary to establish beyond all reasonable doubt every fact concerning the procedure. 9. I have considered the rival submissions. Sub-section 2 of Section 42 of the Act gives mandate to the authorised officer after writing down the information under Sub- section (1) of Section 42 to forthwith send a copy thereof to his immediate official superior. To decide the controversy as regards the compliance of Sub-section 2 of Section 42 of the Act, I have gone through the evidence on record. To decide the controversy as regards the compliance of Sub-section 2 of Section 42 of the Act, I have gone through the evidence on record. It is evident from the record that on 25.10.1995 at 7 AM, Abdul Wahid, Head Constable (PW 2), Out-post Darra recorded information (Ex.P.18) of the informant and in turn, he informed Gordhan Lal S.H.O. vide letter Ex.P.19. The S.H.O. recorded the information of Abdul Wahid in Ex P.3 and also made an entry in Rojnarncha, Ex.P.11 at serial No. 1008 at 8.40 PM. In the Rojnamcha, the SHO mentioned that a copy of the information has also been sent to the Superintendent of Police through Constable Prabhudayal and to the Circle Officer through Girraj. Strangely enough, the two constables, namely Prabhudayal and Girraj, with whom the SHO claims to have sent the copy of information received by him to the Superintendent of Police, Kota and Circle Officer have not been examined in evidence to prove this fact. The best evidence could have been the dispatch register and the receipts, but neither the dispatch register nor any receipt showing that the information has been received by the superior officers have been produced in evidence. Thus, evidently there is no evidence either ocular or documentary to show that the information reduced to writing as required by sub-section (1) of Section 42 of the Act was forthwith transmitted to the superior officers as required by sub-section (2) of Section 42 of the Act. This lacuna in the prosecution case is sufficient to infer that there was failure on the part of the prosecution to comply with the requirements of sub-section (2) of Section 42 of the Act. Thus, it is difficult to sustain the conviction and sentence of the appellant. I find support from the following observations of their lordships of the Supreme Court in State of Punjab v. Balbir Singh, AIR 1994 SC 1872 : "Under Section 42(2) such empowered officer who taken down any information in writing or records the grounds under proviso to Section 42(1) should forthwith send a copy thereof to his immediate official superior. It there is total non compliance of this provision the same affects the prosecution case. To that extent it is mandatory." 10. It there is total non compliance of this provision the same affects the prosecution case. To that extent it is mandatory." 10. Their Lordships of the Apex Court were further of the view that the object of the NDPS Act is to make stringent provisions for control and regulation of operations relating to those drugs and substances. At the same time, to avoid hardship to innocent persons and to avoid abuse of the provisions by the officers, certain safe-guards are provided which in the context have to be observed strictly. The Apex Court concluded that therefore, these provisions make it obligatory that such of those officers mentioned therein, on receiving information, should reduce the same to writing and also record reasons for the belief while carrying out arrest or search as provided under the proviso to S.42(1). To that extent they are mandatory. Consequently, the failure to comply with these requirements thus affects the prosecution case and therefore, vitiates the trial. 11. In Kallua alias Laxman v. State of Rajasthan, 2001 WLC (Raj.) UC 564 , and Ram Bharosi v. State of Rajasthan, 2001 (2) RLR 182 this court, after relying upon Balbir Singh's case (supra) concluded that there was no evidence to show that the SHO forthwith sent the information to the superior officer and this lacuna in the prosecution case is sufficient to inter that there was failure on the part of the prosecution to comply with the requirements of sub-section (2) of Section 42 of the Act. Thus it is difficult to sustain the conviction and sentence of the appellant. 12. There is yet another serious infirmity in the prosecution case. From the evidence on record it has not been proved that the sample of contraband sent to the FSL. was the same which was taken at the time of search and seizure of the house of appellant. PW2 Abdul Wahid, Head Constable, a member of the search team has stated in his cross examination that the sample was kept in a match box. He further stated that no separate specimen seal chit was prepared. On the contrary, a glance at the FSL report indicates that it received semi solid, sticky, dark brown coloured substance with characteristic smell of opium wrapped in polythene, packed in cigarette packet and cloth packet weighing 32 gms. He further stated that no separate specimen seal chit was prepared. On the contrary, a glance at the FSL report indicates that it received semi solid, sticky, dark brown coloured substance with characteristic smell of opium wrapped in polythene, packed in cigarette packet and cloth packet weighing 32 gms. along with polythene wrapper.Thus the evidence available on record creates serious doubt as to whether the sample of contraband sent to the FSL for examination was the same which was taken at the time of search and seizure. 13. Thus, the prosecution having failed to establish compliance of the provisions of sub-section (2) of Section 42 of the Act, as also its failure to is prove that the sample of contraband sent to the FSL for examination was the same which was taken at the time of search and seizure, it is difficult to sustain the conviction and sentence of the appellant. 14. In the result, this appeal is allowed. The conviction of appellant Ram Swaroop S/o Lakha under Section 8/18 of the Act is set aside and he is acquitted of the charge. The appellant is in jail and he be released forthwith, if not required in any other case.Appeal Allowed - Conviction Set Aside. *******