Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 729 (RAJ)

Munnalal v. State of Rajasthan

2004-05-07

O.P.BISHNOI

body2004
JUDGMENT 1. - This appeal has been filed by the accused Munnalal against a judgment dated 6.3.2002 by the learned Special Judge, Narcotic Drugs And Psychotropic Substances Act cases, Pratapgarh whereby the appellant has been found guilty for the offence punishable under Section 8/18 of the Narcotic Drugs And Psychotropic Substances Act. Rigorous imprisonment for 10 years and a fine of Rs. 100,000/- has been awarded. On account of non- payment of fine, additional rigorous imprisonment for two and half years has been ordered. 2. According to the prosecution story, the SHO, Police Station, Pratapgarh PW/1 Amar Singh on 19.11.2000 received a confidential information from some informer to the effect that the appellant Munnalal was likely to come from Village 'Morjar' toward 'Machlana' near Hanumanveli with opium. The information was recorded and thereafter, the said SHO conducted a 'Nakabandi' in the presence of independent 'motbirs' PW/3 Mukand and PW/8 Badri Das. At about 11.30 a.m., the accused came from the side of village Morjar with a bag in his hand. He was stopped by the police party. After serving him a notice under Section 50 of the Narcotic Drugs And Psychotropic Substances Act, the bag was searched which yielded opium weighing 4.200 Kgs. The accused was arrested, was taken to the police station and a case was registered. Ultimately, he was put to trial in the said Court. He pleaded not guilty. Ten witnesses were examined by the prosecution and none was examined in defence. The accused in his statement stated that he was lifted from his house by the police and was implicated falsely. The learned trial Court then heard the arguments and delivered the judgment on 6.3.2002 as stated supra. Hence, this appeal. 3. I have heard the learned counsel for the appellant as well as learned Public Prosecutor for the State and have gone through the record of the case, I find that the conclusions drawn by the learned trial court against the appellant are unsustainable and appeal deserves to be allowed. 4. PW/1 Amar Singh, SHO, PW/2 Pratap Singh and PW/6 Jamna Lal both Head Constables, PW/4 Mahendra Singh and PW/5 Laxman Constables have corroborated the prosecution story of the effect that the opium-in-question was recovered from the possession of the appellant. 4. PW/1 Amar Singh, SHO, PW/2 Pratap Singh and PW/6 Jamna Lal both Head Constables, PW/4 Mahendra Singh and PW/5 Laxman Constables have corroborated the prosecution story of the effect that the opium-in-question was recovered from the possession of the appellant. However, there is no independent corroboration of the alleged recovery and PW/3 Mukand as well as PW/8 Badri Das both have denied that any recovery was effected from the appellant in their presence. 5. The contention of the learned counsel for the appellant is to be effect that in the instant case the mandatory provisions contained in Sections 42 and 50 of the Narcotic Drugs And Psychotropic Substances Act have not been properly complied with on that account the appellant deserves to be acquitted. 6. According to the prosecution story, the notice Ex.P/6 was served on the appellant prior to his search by the SHO PW/1 Amar Singh. The contention of the learned Public Prosecutor is to the effect that the same amounted to a proper compliance of Section 50 of the Narcotic Drugs And Psychotropic Substances Act. After perusing the notice Ex.P/6, I find that the notice is defective and the compliance was not proper. Apart from giving the option of search in the presence of a Gazetted Officer or a Magistrate, the notice Ex.P/6 contains a third option to the effect that the accused could be searched by the SHO Amar Singh, if he so liked. Needless to stay that the third option was uncalled for and was capable of misleading the accused. He has been informed that it was his legal right to exercise any of the three options. Under Section 50 of the Narcotic Drugs And Psychotropic Substances Act only the option in respect of a Gazetted Officer or a Magistrate has to be offered. In the instant case PW/1 Amar Singh exceeded the mandate and made the appellant to believe that he was to exercise one of the three options. Consequently, I find that the compliance of Section 50 was improper and the appellant is entitled to acquittal on that, count. 7. Similarly, it is highly suspect that the provisions of Section 42(2) of the Act were complied with in this case properly. In this connection PW/10 Mool Das, Constable has been examined. Consequently, I find that the compliance of Section 50 was improper and the appellant is entitled to acquittal on that, count. 7. Similarly, it is highly suspect that the provisions of Section 42(2) of the Act were complied with in this case properly. In this connection PW/10 Mool Das, Constable has been examined. He has stated that on 19.11.2000, he was given three envelopes under Section 42(2) of the Act and he went to the Dy. Superintendent of Police, Sawai Singh Godara; Addl. Superintendent of Police, Prahalad Rai Meena and Superintendent of Police, Anil Paliwal and delivered the three envelopes and obtained the receipts on Ex.P/2. I find that the deposition of Mool Das does not inspire confidence. The contention of the defence counsel is to the effect that initially no such compliance was made on 19.11.2000 and subsequently when the deficiency was pointed out, the document Ex.P/2 was prepared and was included in the prosecution papers. In this connection PW/10 Mool Das was cross-examined and he has not been able to with stand the cross-examination. According to him, he first went to the office of the Deputy Superintendent of Police and thereafter went to the office of Additional Superintendent of Police and thereafter went to the office of Superintendent of Police. He was put the question as to how far was the office of the Additional Superintendent of Police away from the office of the Deputy Superintendent of Police and how much time he had taken in covering the distance between the two offices. He could not answer the question. In this connection, it may be noted that according to PW/1 Amar Singh, SHO Pratapgarh both the offices were situated within 500 yards from the Police Station. Inability of Mool Das in these circumstances in describing the distance between the two offices goes to suggest that he had no idea as to where the offices were situate and thus was a created witness. He has stated on oath that after visiting the two offices in Pratapgarh, he left Pratapgarh at 10.30 a.m. from Chittorgarh. Inability of Mool Das in these circumstances in describing the distance between the two offices goes to suggest that he had no idea as to where the offices were situate and thus was a created witness. He has stated on oath that after visiting the two offices in Pratapgarh, he left Pratapgarh at 10.30 a.m. from Chittorgarh. In this way, according to Mool Das, he left Pratapgarh from Chittorgarh at 10.30 a.m. Strangely enough Ex.P/2 discloses that the delivery time at the office of the Additional Superintendent of Police was 10.50 a.m. That makes the defence argument acceptable that no exercise, as narrated by Mool Das, was undertaken and Ex.P/2 was subsequently created to fill-up the lacuna in this respect. It, thus, cannot be said that there was a proper compliance of Section 42(2) of the Act. 8. As pointed out earlier, there is no independent corroboration of the alleged recovery by the two independent 'motbirs'. Apart from the five police personnel none else has corroborated the story of the recovery. Even the deposition of police people is not in harmony and contains material contradictions. 9. According to PW/6 Jamna Lal, the appellant was noticed when he was only 15 steps away from the police party. Further, according to him initially the accused was apprehended by him, Pratap Singh and Mahendra Singh and after this other persons came on the spot. Contrary to this, PW/1 Amar Singh has positively stated that he alone ran after the accused and after covering some distance, in this manner, apprehended the accused. According to him, the accused was noticed when he was 100-150 steps away from the police party. According to the prosecution story, the samples weighing 50 grams each were placed in metallic containers and were sealed. However, PW/2 Pratap Singh was positive and deposed that the samples were separated and were placed in plastic containers and not in metallic containers. On account of this contradiction, the learned Additional Public Prosecutor proceeded to re- examine him and he initially stated that the container were specifically noticed by him. Thereafter, he stated that he does not know whether the containers were metallic containers. When he was shown the memo prepared in this respect, he stated that container were definitely metallic containers and it was not correct that the samples were placed in plastic containers. Thereafter, he stated that he does not know whether the containers were metallic containers. When he was shown the memo prepared in this respect, he stated that container were definitely metallic containers and it was not correct that the samples were placed in plastic containers. During further cross-examination when he was asked to explain the contradictions, he came out with the explanation that he was away and somehow felt that the containers were made of plastic. The weight, according to the prosecution story, of the samples was 50 gms. each. At the Forensic Science Laboratory, the weight has been recorded as 71.760 gms alongwith the 'Metallic Dibba'. It is strange that the people at the State Forensic Science Laboratory failed to record the net weight and took the dubious route of recording the weight which included the weight of the metallic container as well. Needless to say that it was their legal duty to record the net weight of the material which was received for examination. This is more so in the light of the fact that earlier this Court has acquitted accused-persons on account of large variation in the weight recorded in the recovery memo and the same found at the Forensic Science Laboratory. In this connection, it may also be noted here that the chemical examination report Ex.C/1 was never tendered in evidence by any witness and the learned trial court was pleaded mark it exhibit suo moto. Needless to say that unless a piece of evidence is tendered in evidence by any witness, the same cannot be taken into consideration. 10. Be that as it may, the accused is entitled to acquittal on account of the discussion made above. 11. Consequently the appeal is allowed. The judgment under appeal 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. *******