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2004 DIGILAW 598 (RAJ)

Krishan Kumar v. State of Rajasthan

2004-04-16

O.P.BISHNOI

body2004
JUDGMENT 1. - This appeal has been filed by the accused-persons Kishan Kumar and Jile Singh, who both were found guilty for the offence punishable under Section 8/15 of the N.D.P.S. Act by the learned Special Judge, N.D.PS. Cases, Rajgarh District Churu vide judgment dated 27.3.2002. 2. According to the prosecution story, PW11 Bhanwar Lal, S.H.O. Police Station, Rajgarh on 14.6.1995 at 1.10 P.M. received a secret information from some informer to the effect that two vehicles bearing No. HR-17/0381 and WB-19- TC/008 were coming from Jhunjhunu with crushed poppy capsules 1 loaded in them and were likely to cross-over to Haryana. The said S.H.O. recorded a Memo Ex.Pel 7 and also made an entry Ex.P/26A in the 'Rajnarricha' of the police station to that effect and thereafter proceeded with other police personnel on Berasar-Binjawas road and conducted a s 'Naka-bandr near village Berasar. At about 6 P.M., the two trucks came, which were stopped. The appellants Krishan Kumar and Jile Singh were found in the Truck bearing No. HR-17/0381. Thereafter the search was conducted, which yielded crushed poppy capsules in bags weighing 15 ant. 95 Kgs. The samples weighing 100 grams each were separated from each bag and were sealed on the spot. The two appellants were arrested and taken to the police station where a case was registered. During investigation, two more accused-persons Het Ram and Subhash were found involved in the matter for the offences punishable under Section 27 and 29 of the N.D.P.S. Act. One Rohitash and M/s. Moolchand & party were found involved for the is offences under Section 26-B and 27 of the N.D.P.S. Act. However, by the time, the investigation was completed, the said Rohitash and M/s. Moolchand & party were found innocent and report under Section 179 was filed in respect of both of them. After completion of investigation, the two appellants were challaned for the offences punishable under Section 8/15 of the N.D.PS. Act. 2s) The accused Het Ram and Subhash were challenged for the offences punishable under Section 27 and 29 of the N.D.P.S. Act. The learned trial court discharged the accused Het Ram vide order dated 5.5.99. The accused Subhash was discharged for the offences punishable under Section 27 and 29 of the said Act. However he was charged for the offence punishable under Section 8/27 of the said Act. The learned trial court discharged the accused Het Ram vide order dated 5.5.99. The accused Subhash was discharged for the offences punishable under Section 27 and 29 of the said Act. However he was charged for the offence punishable under Section 8/27 of the said Act. All the three pleaded not guilty for the said charges. Eleven witnesses were examined by the prosecution and none was examined in defence. Arguments were then heard by the learned trial court and the judgment was delivered on 27.3.2002. The accused Subhash was acquitted. Both the appellants were found guilty as stated supra and each one has been awarded R.I. for 10 years and a fine of Rs. 1 lac. On account of non-payment of fine, additional R.l. for 2 years has been ordered. 3. I have heard the learned counsel for the appellants as well as the learned Public Prosecutor for the State. I find that the conclusions drawn by the learned trial court against the appellants in respect of the finding of guilt are unsustainable and the appeal deserves to be allowed. 4. PW 3 Zile Singe, (Head Constable), PW9 Panne Lal (Head Constable), PW6 Mohar Singh (Constable), PW4 Mahaveer Prasad (ASO and PW11 Bhanwar Singh (SHO) have all deposed to the effect that after the secret information from the informer, they proceeded to the place 4e Indicated by the informer and during 'Naka-bandr, the truck in question was stopped and the appellants were sitting in the same. Subsequently, when the truck was searched, it yielded the crushed poppy capsules stuffed in bags. 5. PW1 Doongar Singh and PW 2 Sher Mohammed were examined to provide the required independent corroboration. Both denied that they were taken to any place or any recovery was effected in their presence. They both stated that they are rickshaw pullers and both were lifted by the police and were made to sign and thumb mark on the various papers. In this way, there Is no independent corroboration so far as the story of the alleged recovery is so concerned. The contention of the learned counsel for the appellants is to the effect that there has been no compliance of the mandatory provisions of Section 42, 55 and 57 of the N.D.PS. Act in this case and consequently, the appeal deserves to be allowed. 6. The contention of the learned counsel for the appellants is to the effect that there has been no compliance of the mandatory provisions of Section 42, 55 and 57 of the N.D.PS. Act in this case and consequently, the appeal deserves to be allowed. 6. On the other hand, the learned Public Prosecutor has argued that the compliance of Section 42 of the N.D.PS. Act stands proved from the deposition of PW11 Bhanwar Lal, SHO and compliance of Secs. 55 and 57 of the said Act not being mandatory, the non-compliance is of no consequence. 7. It is not in dispute that the secret information, according to the prosecution story, was recorded by the SHO PW 11 Bhanwar Lal. The 'Rojnamcha' entry Ex.P/26A and memo Ex.P/17 have been produced in this 10 respect. PW11 Bhanwar Lal, during his deposition has stated that a copy of confidential information received from the informer was transmitted to the Superintendent of Police vide Ex.13/19 through some special messenger. I find that there is no acceptable evidence to believe that actually Ex.P/19 was sent to the Superintendent of Police. It appears that compliance of Section 42(2) of the N.D.P.S. Act was not at all effected by the said S.H.O. and possibly, after learning about the deficiency, the document Ex.P/19 was prepared subsequently and has been inserted in the prosecution papers at the time of filing the challan. There is no mention either in Ex.P/17 or in Ex.P/26A to the effect that the secret information so received was forwarded to any higher police officer. During cross-examination, PW11 attempted to say that in the case diary, there is a mention regarding the compliance of Section 42(2) of the said Act. However, no such entry in the case diary has been tendered in evidence. After perusing the case diary, the SHO Bhanwar Lal said that the information was sent to the Superintendent of Police through a Constable. However, he was not able to disclose the name of the constable with whom the report was allegedly sent. No dispatch register of the police station was produced in the court to show that any such information was actually dispatched with any constable nor there is evidence of any receipt from the Superintendent of Police showing that the document in question was delivered at that end. No dispatch register of the police station was produced in the court to show that any such information was actually dispatched with any constable nor there is evidence of any receipt from the Superintendent of Police showing that the document in question was delivered at that end. PW11 Bhanwar Lal had to admit that the 'Rajnamcha' of the police station has no entry to the effect that any constable left the police station to deliver the said document nor there is any entry of his return after the needful. Bhanwar Lal, SHO has specifically admitted that so far as the Circle Officer of the area is concerned, no such information was sent to him. 8. In the light of what has been said above, it is mere than clear that actually, no compliance of Section 42(2) of the N.D.P.S. Act was made and Ex.P/11 is nothing but a subsequent creation, possibly on the legal advise tendered by some prosecutor. The accused-persons are entitled to acquittal on this count alone. 9. So far as the compliance of Section 55 of the said Act is concerned, there is no evidence to the effect that the sealed material was re-sealed by the seal of the police station at the time of its deposit in the 'Maikhana'. PW11 Bhanwar Lal has produced Ex.P/21 as compliance of Section 57 of the said Act. However, like Ex.P/19, there is no evidence to suggest that it was actually sent to the Superintendent of Police or to any other Police Officer. In this way, it is not proved that the provisions of Secs. 55 and 57 of the N.D.P.S. Act were properly complied with. 10. Consequently, the appeal is allowed. The judgment under appeal is set aside. Both the appellants are acquitted of the charges. They shall be released forthwith if not needed in any other case.Appeal Allowed - Conviction Set Aside. *******