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2004 DIGILAW 504 (RAJ)

Bhaiyan @ Shiv Murti v. State of Rajasthan

2004-04-05

KHEM CHAND SHARMA

body2004
JUDGMENT : 1. - This criminal appeal by accused-appellant Bhaiyan @ Shiv Murti arises out of the judgment and order dated 20.11.1999 passed by the Special Judge, NDPS Cases (Additional Sessions Judge), Ramganjmandi, Kota, whereby the learned Special Judge has found the accused-appellant guilty of having committed offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter to be referred as "the Act") and accordingly, convicted him for the said offence and sentenced him to undergo rigorous imprisonment for 10 years with a fine of Rs. one lac, in default thereof, to further undergo simple imprisonment for two years. 2. The facts relevant for the purpose of disposal of this appeal may be summarised as under:- PW5 Jodha Ram, SHO, Police Station, Modak received information from one Vinay Kumar, an accused in police custody in a case under the Narcotic Drugs And Psychotropic Substances Act, to the effect that he had purchased opium recovered from him from Bhaiyan @ Shiv Murti (appellant herein), resident of village Modak and for that purpose he had given him a half gold biscuit. The SHO recorded this information in the Rojnamcha and sent copies thereof to the higher officials. Thereafter, the SHO along with police party left for the house of appellant and reached there. The appellant came out of the house and introduced himself to be police personnel. Before proceeding to search the house of the appellant, the SHO informed the appellant of his legal right to have the search of his house conducted either in the presence of a Magistrate or in the presence of a Gazetted Officer. The appellant, in turn, consented for search to be conducted by the SHO. 3-4. In the course of search of the house of appellant, a gold biscuit weighing 57.5 grams was recovered from a box lying in the house. On searching verandah of the house, on the right corner, a heap of cow dung cake was found lying. Behind the heap, a manual weighing scale was found lying and next to it a yellow coloured polythene bag was also found. On opening the same, it was found to be contained with opium weighing 2 Kgs. The SHO then took two samples of 50 grams each and sealed the samples and remaining opium in separate packets. Behind the heap, a manual weighing scale was found lying and next to it a yellow coloured polythene bag was also found. On opening the same, it was found to be contained with opium weighing 2 Kgs. The SHO then took two samples of 50 grams each and sealed the samples and remaining opium in separate packets. Search and seizure memo Ex.P.6 was prepared and a case vide FIR Ex.P12 was registered under Section 8/18 of the Act and the accused was arrested.5. Having completed entire formalities as to the investigation, a charge-sheet was submitted against the appellant. The learned trial Judge, on the basis of evidence and material collected during investigation and placed before it, framed charge against the appellant under Section 8/18 of the Act. The appellants denied the charge and claimed trial.6. In order to prove its case, the prosecution examined as many as 8 witnesses and also exhibited some documents. After the prosecution evidence was over, the appellant was examined under Section 313 Criminal Procedure Code In his explanation, the appellant stated that on the day of incident, the police personnel visited his house in his absence and after the alleged search, the police party took with them his daughter Mst. Durga Bai. He came to know of the incident only after he returned home and thereafter he went to the police station and was arrested. The appellant in his defence, examined DW1 Devi Lal, DW2 Durga Bai and DW3 Ramkesh.7. At the conclusion of trial, the learned Special Judge found the prosecution case as alleged, proved and accordingly convicted and sentenced the appellants as aforementioned. Hence, the present appeal against conviction.8. I have heard learned counsel for the parties and perused the judgment under appeal and the evidence and material on record.9. In assailing the conviction, the first argument advanced by Mr. Bajwa, learned counsel for the appellant is that the prosecution has utterly failed to prove beyond reasonable doubt that the samples taken by the SHO remained intact right from the time of its seizure till the same reached the Forensic Science Laboratory for chemical examination. In assailing the conviction, the first argument advanced by Mr. Bajwa, learned counsel for the appellant is that the prosecution has utterly failed to prove beyond reasonable doubt that the samples taken by the SHO remained intact right from the time of its seizure till the same reached the Forensic Science Laboratory for chemical examination. He argued that unless it is proved beyond reasonable doubt it cannot be inferred that the samples sent to the Forensic Science Laboratory were the same which were taken out of the contraband alleged to have been recovered from the house of the appellant in the course of search and seizure. Referring the oral and documentary evidence, learned counsel argued that undisputedly, two samples of 50 grams each were taken by the raiding party. However, when the samples reached the FSL and were got weighed, the same were found to be weighing 28.690 grams and 27.066 grams respectively along with the polythene packets. Thus there was huge difference in the weight of samples when taken and got weighed at the FSL. This serious discrepancy in weight of the samples completely demolishes the probative value of link evidence. In support of his argument, learned counsel has relied upon three judgments of this court in Sushil Sharma v. State of Rajasthan, 2000 Cr.L.R (Raj.) 549 , Harpal Singh and another v. State of Rajasthan, 2000 WLC (Raj.) UC 280 and Smt. Chandi v. State of Rajasthan, 1998(1) RCC 403. I have given my anxious consideration to the above argument and have gone through the case laws cited at the bar. A glance at the memo Ex.P6 shows that two samples of 50 gms each of the net opium were taken from the recovered opium and were kept in two separate polythene packets. The samples were sealed at the spot and were marked as A1 and A2. These two packets marked A1 and A2 were sent to the FSL for examination. The exhibited FSL report is available on record, but the prosecution failed to tender the said report in evidence. The question as to the consequence of failure on the part of prosecution to tender the FSL report in evidence, though available on record, was considered by this court in Jassa Ram v. State of Rajasthan, 1994(2) RLR 653 and it was held as under : ".....Thereafter during trial, none of the prosecution witnesses proved the said report. The question as to the consequence of failure on the part of prosecution to tender the FSL report in evidence, though available on record, was considered by this court in Jassa Ram v. State of Rajasthan, 1994(2) RLR 653 and it was held as under : ".....Thereafter during trial, none of the prosecution witnesses proved the said report. Again, the learned trial Magistrate did not put any question regarding the contents of the FSL report to the petitioner while recording his plea under Section 313 Criminal Procedure Code in such circumstances, the FSL report was neither admitted in evidence nor the contents thereof were put to the petitioner under Section 313 Criminal Procedure Code still then the lower courts have relied upon the FSL report. Since the petitioner was not confronted with the contents of the FSL report, a great prejudice has been caused to him and this is a serious infirmity, which is fatal to the prosecution case. In such circumstances, the contents of the FSL report cannot be read against the petitioner." 10. In the case at hand, it appears from the record that FSL report was very much available on record with the prosecution at the time when trial of the case was in progress, but still the prosecution has miserably failed to tender in evidence the FSL report. It is true that questions with respect to the contents of the FSL reports were put to the appellant in the course of his examination under Section 313 Criminal Procedure Code, but the questions put to the appellant in respect of a document which has not been produced in evidence, in my considered view, has no relevance and is of no help to the prosecution. To my mind, non-production of FSL report in evidence is a serious infirmity which is fatal to the prosecution case and further, it has caused serious prejudice to the appellant.11. That apart, the exhibited FSL report does not tally with the weight of the samples of contraband taken at the time of search and seizure. The description of the articles sent for chemical examination may be quoted below : "Each of the packet marked A1 & A2 contained dark brown coloured almost solid substance having characteristic smell packed in respective polythene bag which was repacked in cigarette case. The description of the articles sent for chemical examination may be quoted below : "Each of the packet marked A1 & A2 contained dark brown coloured almost solid substance having characteristic smell packed in respective polythene bag which was repacked in cigarette case. The substance contained in packet marked A1 and A2 weighed 28.690 gms and 27.066 gms along with polythene bag, respectively." 12. Admittedly, as per the prosecution case two samples of 50 gms. each were kept in two polythene packets, while the samples received by the FSL as per the FSL report weighed 28.690 gms and 27.066 gms alongwith polythene bag. The above discrepancy in weight of the samples, in my considered view creates reasonable doubt as to the samples of opium collected at the time of search and seizure having remained intact till the same reached the FSL for examination. It is thus crystal clear that the prosecution has not been able to explain the above discrepancy and in this view of the matter, the FSL report cannot be said to be related to the samples which were taken from the opium recovered from the possession of the appellant. I am fortified in my view by the judgments cited by the counsel for the appellant. The ratio of the judgment is that difference in weight of the samples of contraband taken at the time of search and the same sent to the FSL for examination creates serious doubt and it cannot be said that the samples remained intact right from seizure till the same reached the FSL. The learned trial Judge, in my considered view, has conveniently ignored this material infirmity in the prosecution case. Thus, for both the reasons, firstly, the non-production of FSL report in evidence and, secondly, the difference between the weight of samples taken at the time of seizure and the weight got done when deposited with the FSL, it cannot be said that the samples of contraband sent to FSL for examination were the same which were taken at the time of recovery and hence the alleged recovery of contraband cannot be connected with the appellant.13. It is next contended by the learned counsel for the appellant that there is no independent witness to the search and seizure. It is next contended by the learned counsel for the appellant that there is no independent witness to the search and seizure. According to him the house of the appellant was situated in a thickly populated area and there were a number of persons available at Chechat Tiraha but no efforts whatsoever were made by the SHO to join two independent witnesses. Referring the statements of PW4 Nand Lal and PW7 Murari Lal, both police employees and members of the raiding party, learned counsel submitted that despite there being presence of a number of persons at Chechat Tiraha, the police personnel were made motbirs, which was merely an eye-wash exercise. In this background, learned counsel argued that the alleged recovery of contraband in the absence of motbirs is highly doubtful. In support of his argument, learned counsel has relied upon two decisions of this Court in Nadeem v. State of Rajasthan, 1998 Cr.L.R (Raj.) 392 and Saudan and another v. State of Rajasthan, 2003(1) Cr.LR (Raj.) 483. 14. I have considered the above argument and have carefully gone through the case laws cited at the bar. Undisputedly, the search was not effected in the presence of independent witnesses. As per the prosecution case, an attempt to search for the independent witnesses was made but could not find the independent witnesses. The house of the appellant is situated in a thickly populated area and a number of persons were available not only in the nearby houses but also at Chechat Tiraha. It is also an undisputed fact that search of the house of appellant was conducted by the SHO in the presence of PW4 Nand Lal and PW5 Murari Lal both police witnesses.15. In Nadeem's case (supra) this court while dealing with similar question considered the aims and object of Drug Control Legislation and after relying upon a decision of Delhi High Court in Ratan Lal v. State, 1987(2) Crimes 29 (Delhi) which took into consideration the provisions of Section 100 Criminal Procedure Code, observed that when prosecution comes with a case that accused did not exercise option of being searched in the presence of Gazetted Officer or Magistrate but volunteered to be searched by the police officer, then the search must be conducted in the presence of independent witness unless it was unreasonable and impracticable to procure the presence of such witnesses. The investigating agency cannot be permitted to make casual statement that witnesses were not available or they declined to cooperate.16. After elaborate discussion of the provisions of Section 100 Criminal Procedure Code, in the light of the provisions of Section 51 of the Act, this court held as under : "As already stated the accused was nabbed in a busy area as per the statement of witness Mahendra Singh Constable (PW5) but another constable Radha Kishan (PW1) stated that he attempted to make search of independent witnesses but found none. I am not prepared to believe that in the afternoon no witness was present in a busy area. Calling of independent witness of the locality for witnessing the search was not an idle formality. The provisions made in Section 100(4) Criminal Procedure Code is a salutary safeguard to ensure the sanctity of the search conducted by the Police Officers. The mere statement by the Investigating Officer that he tried to associate some respectable of the locality but none was available cannot suffice as a convenient bypass to the said provisions. Mahendra Singh Constable (PW5) categorically stated in his cross-examination that C.I. did not stop the persons from the place of incident which was a busy area. This shows that witnesses were available but they were not associated with the search. All this leads me to the conclusion that the recovery of smack, as alleged, is not free from doubt." 17. Again in Saudan and another v. State of Rajasthan (supra), this court while considering the effect of non-compliance of the provisions of Code of Criminal Procedure and after relying upon a judgment of the Apex Court in State of Punjab v. Balbir Singh, 1994(3) SCC 299 , observed as under : "It, therefore, emerges that non-compliance of the provisions of Sections 100 and 165 Criminal Procedure Code would amount to an irregularity and the effect of the same on the main case depends upon the facts and circumstances of each case. In such a situation it has to be considered whether any prejudice has been caused to the accused and also to examine the evidence in respect of search in the light of the face that these provisions have not been complied with. In such a situation it has to be considered whether any prejudice has been caused to the accused and also to examine the evidence in respect of search in the light of the face that these provisions have not been complied with. It is well settled that the testimony of a witness is not to be doubted or discarded merely on the ground that he happens to be an official but as a rule of caution and depending upon the circumstances of the case, the Courts look for independent corroboration. This again depends on the question whether the official has deliberately failed to comply with these provisions or failure was due to lack of time and opportunity to associate some independent witnesses with the search and strictly comply with these provisions." 18. The provisions of Section 51 of the Act provides that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizure made under this Act.19. Sub-clause (4) of Section 100 of the Code of Criminal Procedure provides that before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. Thus, the provisions of Sections 100 and 165 of the Code of Criminal Procedure are not inconsistent with the provisions of Narcotic Drugs And Psychotropic Substances Act and, therefore, they are applicable for effecting search, seizure or arrest under the Narcotic Drugs And Psychotropic Substances Act also. The words 'in so far as they are inconsistent with the provisions of this Act' occurring in Section 51 of the Narcotic Drugs And Psychotropic Substances Act are significant.20. The words 'in so far as they are inconsistent with the provisions of this Act' occurring in Section 51 of the Narcotic Drugs And Psychotropic Substances Act are significant.20. In the light of above settled position, it has to be seen whether in the present case the course adopted by PW5 Jodha Ram while conducting search and seizure was sufficient to meet out the requirements of the provisions of Section 100 Criminal Procedure Code It has also to be seen whether the failure on the part of PW5 Jodha Ram, SHO to procure independent witnesses was deliberate or due to lack of time. For deciding the controversy, it would be profitable to refer to the relevant evidence.21. PW4 Nand Lal, Constable, a witness to the search and seizure has deposed that after reaching Chechat Tiraha of village Modak, the SHO gave requisition to PW3 Kalyan Singh, Head Constable to procure two independent witnesses. On this requisition, Kalyan Singh informed that none was prepared to witness the proceedings. In cross-examination, the witnesses categorically stated that PW5 Jodha Ram, SHO did not ask any of the shopkeepers of nearby area or the passengers waiting for the bus, at the said Tiraha to become the witness. The witness further stated that there were numerous residential houses nearby the house of accused and the persons were residing therein. According to him, number of persons had collected near the house of accused, but having seen the police, they returned back. The persons collected there stopped for 4-5 minutes. He admitted that the SHO did not request any one out of the crowd collected at the spot.22. PW7 Murarilal Meena, another witness to the search and seizure has deposed in his cross-examination that Jodha Ramji did not contact the persons already present at the scene nor did he contact the visiting persons. He also did not request any person to become a witness. This witness has supported the statement of PW4 Nand Lal that there were residential houses near the house of accused and persons were residing therein. In the later part of his cross- examination, the witness further clarified that Thanedar did not request any person to become independent witness.23. PW5 Jodha Ram has deposed in his statement that he gave a requisition to Kalyan Singh to procure independent witnesses. In the later part of his cross- examination, the witness further clarified that Thanedar did not request any person to become independent witness.23. PW5 Jodha Ram has deposed in his statement that he gave a requisition to Kalyan Singh to procure independent witnesses. Kalyan Singh came back and reported that he contacted a number of persons but none was prepared to witness the proceedings.24. Thus, from the evidence discussed above, it is evident that PW5 Jodha Ram, SHO never tried to procure independent witness at the time of conducting search and seizure. It is crystal clear from the prosecution evidence that PW5 Jodha Ram simply observed formality by giving a requisition to PW3 Kalyan Singh to procure independent witnesses. There is nothing in the prosecution evidence to show that who were the persons contacted and who refused to become witnesses to the search and seizure, except the bald statement that independent witnesses were not available. The place where search was conducted was undisputedly a busy area approaching bus stand, where there was frequent visit of the public at large and a number of persons were already present at the bus stand as has been admitted by PW4 Nand Lal and PW7 Murarilal Meena in their cross-examination. It must, therefore, be held that PW5 Jodha Ram, SHO has deliberately failed to comply with these provisions, despite having sufficient time and opportunity, which has caused serious prejudice to the accused-appellant. It must also be held that in the absence of independent witnesses, the testimony of Nand Lal and Murarilal Meena, both police personnel, who were the witnesses of search and seizure does not inspire confidence and hence, the recovery of opium alleged to be made from the house of appellant becomes doubtful.25. Lastly, it has been contended by Mr. Bajwa, appearing for the appellant that the entire exercise done by PW5 Jodha Ram SHO while carrying out the alleged search of the house of appellant and seizure of opium is highly suspicious. Referring the ocular as well as documentary evidence, Mr. Bajwa argued that the timing mentioned in various memos prepared by the SHO do not tally with each other and all these memos appear to have been made subsequent to the search of the house of the appellant. Referring the ocular as well as documentary evidence, Mr. Bajwa argued that the timing mentioned in various memos prepared by the SHO do not tally with each other and all these memos appear to have been made subsequent to the search of the house of the appellant. The seizure memo, Ex.P6 reflects that the raiding party reached the house of the appellant at 4.10 P.M. and then came into action to search the house of the appellant, whereas, the memo Ex.P11 in respect of search of motbirs at Chechat Tiraha mentions the time as 4.45 P.M. Likewise the notice Ex.P10 shows that it was prepared at 4.20 P.M. Learned counsel further argued that there was overwriting on the arrest memo Ex.P7. The time of arrest of accused has been changed from 4.10 P.M. to 6.00 P.M. and no explanation has been offered. Even the prosecution witnesses have admitted the cutting and overwriting on the arrest memo. In this background, learned counsel argued with vehemence that there being serious discrepancies in the search and seizure of contraband, the prosecution has failed to prove its case beyond all reasonable doubts against the appellant.26. I have considered the above argument and have scrutinised the relevant evidence. The SHO received information Ex.P18 at 3.30 P.M. and he alongwith police party left the police station at 3.35 P.M. as has been admitted by PW3 Kalyan Singh, Head Constable and PW4 Nand Lal, Constable. PW3 Kalyan Singh stated that the police party took 10-20 minutes to cover the distance from police station to village Modak. The SHO received information Ex.P18 at 3.30 P.M. and he alongwith police party left the police station at 3.35 P.M. as has been admitted by PW3 Kalyan Singh, Head Constable and PW4 Nand Lal, Constable. PW3 Kalyan Singh stated that the police party took 10-20 minutes to cover the distance from police station to village Modak. A glance at the search and seizure memo Ex.P6 shows that it was prepared at 4.10 P.M. The requisition Ex.P.10 given to Murarilal Meena and Nand Lal, Constables to become motbirs mentions the time as 4.20 P.M. The memo Ex.P11 in respect of search of two motbirs indicates that they were searched at 4.45 P.M. Surprisingly enough, the notice given to the appellant as required by Section 50 of the Act before the SHO intended to search his house was given at 5.00 P.M. It is thus evident that search of the house of appellant and the alleged recovery of opium therefrom was made even prior to giving requisition to the police witnesses to witness the search and seizure and even much prior to the search of these two motbirs by the SHO and the notice under Section 50 of the Act given to the appellant. The prosecution has not been able to explain all these discrepancies beyond all reasonable doubt.27. That apart, a glance at the arrest memo, Ex.P7 shows that there was overwriting on the time of arrest of appellant mentioned in it. PW3 Kalyan Singh, Head Constable has stated in his cross-examination that it is wrong to say that time in the arrest memo was changed from 4.10 P.M. to 6.00 P.M. by cutting. However, he admitted that there was overwriting on the time mentioned in the arrest memo. PW4 Nand Lal, Constable in his cross-examination has admitted in specific terms that there was overwriting in the time mentioned in the arrest memo, Ex.P7. The specific statement of the witness may be quoted below : "YAH SAHI HAI KI PRADARSH P.7 FARD GIRAFTARI PER SAMAY MEIN SANSODHAN KAR 4.10 KE STHAN PER 6 BAJE KIYA HUA HAI." 28. This goes to show that the Investigating Officer has changed the time of arrest from 4.10 P.M. to 6.00 P.M. in the arrest memo.29. The specific statement of the witness may be quoted below : "YAH SAHI HAI KI PRADARSH P.7 FARD GIRAFTARI PER SAMAY MEIN SANSODHAN KAR 4.10 KE STHAN PER 6 BAJE KIYA HUA HAI." 28. This goes to show that the Investigating Officer has changed the time of arrest from 4.10 P.M. to 6.00 P.M. in the arrest memo.29. The above discrepancies in the prosecution case including overwriting in the time of arrest of accused, which remained unexplained, in my considered view go to the route of the case and adversely affect the prosecution case. The appellant cannot be made to suffer on prosecution's failure to prove such discrepancies and the overwriting made in the arrest memo, Ex.P7 as regards time of arrest of the appellant.30. The net upshot of the above discussion is that this appeal must succeed and is accordingly allowed. The conviction of appellant Bhaiyan @ Shiv Murti under Section 8/18 of the Narcotic Drugs And Psychotropic Substances 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. *******