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Rajasthan High Court · body

2005 DIGILAW 1371 (RAJ)

Kaka Ram v. State of Rajasthan

2005-05-09

H.R.PANWAR

body2005
Judgment H.R. Panwar, J.-By this criminal jail appeal, appellant has challenged the Judgment and order dated 210.2004 passed by the Special Judge, N.D.P.S. Act Cases, Bikaner (for short, "the trial Court" hereinafter), by which the appellant has been convicted for the offence punishable under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, "the NDPS Act") and sentenced to rigorous imprisonment for forty months and a fine of Rs. 10,000/-and in default of payment of fine further to undergo five months rigorous imprisonment. 2. The facts of the case, in a nut shell, are that on 07.04.2003, when PW. 1 Ram Narain, S.H.O., G.R.P. PoliceStation, Bikaner, alongwith police constables PW. 3 Prem Chand and PW. 5 Radhey Shyam were performing patrolling duty in between platforms No. 2 and 3 of Bikaner Railway Station, they saw accused-appellant drinking water on the water-hut situated between these platforms. At that time, the shirt of the appellant became upward and they noticed tieing something in a cloth on his stomach, which created a suspicion, on which the appellant was stopped. The smell of opium was emitting from that cloth tied on the stomach of the appellant. On this, PW. 3 was sent to call witnesses PW. 2 Tara Chand and PW. 4 Chhotu Lal and the photographer was also called by telephone. The appellant expressed his consent for being searched by PW. 1 Ram Narain and on a search being made, 250 grams of opium was found tied in that cloth. The samples were taken out of that opium and on chemical examination by the FSL, it was found to be the opium. After investigation, the police filed challan against the appellant for the offence punishable under Section 8/18 of the NDPS Act. After appreciating the evidence on record and hearing the arguments advanced by the learned Counsel for the parties, the trial Court, vide impugned Judgment and order dated 210.2004, convicted and sentenced the appellant for the aforesaid offence, as noticed-above. 3. I have heard learned Amicus Curiae for the appellant and the Public Prosecutor for the State. Perused the impugned Judgment and order, as also the record of the case. 4. 3. I have heard learned Amicus Curiae for the appellant and the Public Prosecutor for the State. Perused the impugned Judgment and order, as also the record of the case. 4. It has been contended by the learned Amicus Curiae that the appellant is innocent and the trial Court has erred in law and on facts in convicting and sentencing the appellant on the basis of prosecution witnesses despite the fact that no independent witnesses have been produced to support the prosecution case. 5. PW. 1 Ram Narain, S.H.O., Police Station, G.R.P., Bikaner, has stated that has stated that when he, alongwith police constables PW. 3 Prem Chand and PW. 5 Radhey Shyam was on patrolling duty, they saw the appellant drinking water on the water-hut at the railway station and when the shirt of the appellant got upward, they saw something tied in a cloth wrapped on the stomach of the appellant, which created suspicion. He has stated that the appellant was stopped and it was noticed that some smell of opium was emitting from the cloth tied on the stomach of the appellant. He sent PW. 3 Prem Chand alongwith memo Exhibit P/12, whereupon PW. 3 Prem Chand called two Motbir witnesses, viz. PW. 2 Tara Chand and PW. 4 Chhotu Lal, who, vide Exhibit P/12, became ready to be witnesses. He has further stated that one photographer was called and a photograph Exhibit P/9 of the appellant and the cloth tied on his stomach was taken. Thereafter, the appellant was brought to the police station and he was given notice Exhibit P/3 under Section 50 of the Act and was asked whether he wanted to be searched before a Magistrate or a Gazetted Officer, whereupon he expressed his desire to be searched by PW. 1 Ram Narain, SHO. On being searched, 250 grams of solid material was found, which on being smelled and tasted, was found to be opium. He took two samples of 30 grams each out of the recovered opium and sealed the same. He has further stated that on checking of the pocket of pant of the appellant, railway ticket Exhibit P/9 from Nagaur to Patiala was found. The sealed articles were handed over to PW. 6 Ram Singh, Head Constable, who deposited the same in the Malkhana after making entry Exhibit P/18 to this effect. Thereafter, this witnesses registered FIR Exhibit P/20. He has further stated that on checking of the pocket of pant of the appellant, railway ticket Exhibit P/9 from Nagaur to Patiala was found. The sealed articles were handed over to PW. 6 Ram Singh, Head Constable, who deposited the same in the Malkhana after making entry Exhibit P/18 to this effect. Thereafter, this witnesses registered FIR Exhibit P/20. He has also stated that a factual report Exhibit P/14 was sent to the Superintendent of Police, Jodhpur as also to the Deputy Superintendent of Police, Bikaner. 6. PW. 2 Tara Chand has stated that PW. 3 Prem Chand called him and PW. 4 Chhotu Giri and took them to the water-hut situated at the plat-form of railway station, Bikaner. He has stated that PW.3 Prem Chand told them that a suspicion has arisen on a person who was drinking water at the platform and he has identified the appellant as the person on whom the police had a suspicion. This witnesses was declared hostile. However, in his cross-examination, admitted his signatures on the search memo and further admitted that he was present when the search was being taken and the appellant was arrested. He has also admitted the contents of his police statement Exhibit P/22. He has further admitted that he was also asked to smell the recovered articles and on being smelled, he found that to be the opium. 7. PW. 3 Prem Chand and PW. 5 Radhey Shyam have supported the statement of PW. 1 Ram Narain. These witnesses have stated that they, along with PW. 1 Ram Narain were on patrolling duty. They have fully supported the prosecution case that at the time of drinking water at the platform, they noticed something tied on the stomach of the appellant and on being smelled and tasted, it was found to be opium. They have also stated that the appellant gave his consent for search being made by PW. 1 Ram Narain, SHO. 8. PW. 4 Chhotu Lal is the Motbir witness who was called by PW. 3 Prem Chand. He was declared hostile but on being cross-examined by the police, he has stated that on being searched, opium was recovered from the possession of the appellant. He has admitted the contents of his police statement Exhibit P/23. He has further stated that the opium was weighed, seized and sealed in his presence. 9. PW. 3 Prem Chand. He was declared hostile but on being cross-examined by the police, he has stated that on being searched, opium was recovered from the possession of the appellant. He has admitted the contents of his police statement Exhibit P/23. He has further stated that the opium was weighed, seized and sealed in his presence. 9. PW. 6 Ram Singh, Head Consttable, was the then Malkhana Incharge of G.R.P. Police Station, Bikaner and has supported the prosecution case. He has stated that the sealed articles were handed over to him and after making entry in the Malkhana Register, he has deposited the same in the Malkhana. He has stated that he handed over the sealed articles to Ajit Singh for handing over the same to FSL, Jodhpur for chemical examination. He has stated that till then, the sealed on the articles remained intact. 10. PW. 7 Pancha Ram has stated that he handed over the factual report at the office of the Superintendent of Police and handed over to PW. 8 Mahendra Singh. PW. 8 Mahendra Singh has stated that the factual report was received by him. PW. 9 Rajendra Singh is the police constable, who handed over the sealed articles at FSL and stated that till then, the seals on the articles remained intact. PW. 10 Ajit Singh, Head Constable, has stated that he handed over the relevant papers and samples to the Office of the Superintendent of Police, Jodhpur for sending the same to FSL, Jaipur. 11. PW. 11 Raj Kishore Kishania, Deputy Superintendent of Police, G.R.P., Bikaner is the Investigating Officer, he has conducted the investigation, recorded the statement of witnesses and sent the samples for FSL examination. 12. Thus, there is sufficient evidence on record to connect the appellant with the crime. The learned trial Court, after considering the evidence on record and hearing the arguments, by an elaborate and well reasoned Judgment , convicted and sentenced the appellant for offence under Section 8/18 of the NDPS Act, as noticed-above. After careful scrutiny, analysis and scanning of the evidence, I do not find any illegality, error or perversity in the impugned Judgment and order which may require interference in the impugned Judgment . 13. After careful scrutiny, analysis and scanning of the evidence, I do not find any illegality, error or perversity in the impugned Judgment and order which may require interference in the impugned Judgment . 13. The next contention raised by the learned Amicus Curiae is that the appellant is a very poor person aged about 61 years; the opium recovered from is only 250 grams, which is slightly higher than the small quantity by much less than the commercial quantity; no previous conviction stands to the credit of the appellant and since the date of arrest, he is in jail and, therefore, the sentence awarded to him may be reduced to the period of imprisonment already undergone by him. 14. Considering the above facts and keeping in view the fact that since the date of arrest, i.e. 07.04.2003, the appellant is in jail and he has already undergone the imprisonment for two years, one month and two days, i.e. more than 25 months, I am of the view that the ends of justice would be met if the substantive sentence of forty months rigorous imprisonment awarded by the trial Court is reduced to the period of imprisonment already undergone by the appellant. 15. Consequently, the jail appeal against the conviction is dismissed. Conviction of the appellant for the offence under Section 8/18 of the NDPS Act is hereby maintained. However, the substantive sentence of imprisonment awarded to the appellant is reduced to the period of imprisonment already undergone by him. The sentence of fine is also reduced from Rs. 10,000/-to Rs. 5,000/-and in default of payment of fine, the appellant shall undergo imprisonment for fifteen days. The appellant is in jail. On depositing the amount of fine of Rs. 5,000/-, he be set at liberty, if not required in any other case.