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2005 DIGILAW 1918 (RAJ)

Shamsher Singh v. State of Rajasthan

2005-07-27

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-This appeal under Section 374 of the Criminal Procedure Code has been directed against Judgment and order dated 27.03.2002 passed by the learned Special Judge (NDPS Cases), Hanumangarh in Sessions Case No.21/2000 -State vs. Shamsher Singh & Ors., whereby the accused-appellants Shamsher Singh, Jagjeet Singh, Baljinder Singh and Daljeet Singh have been convicted under Section 8/18(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced each of them for 10 years rigorous imprisonment and a fine of Rs. 1 Lac, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Briefly stated, the facts giving rise to the present case are that on 08.08.2000 at 8:15 AM SHO, Police Station, Pallu Abdul Qayyum alongwith Head Constable Mahendra Singh and Foot Constables Munshiram, Madansingh, Antram and Prithviram started in Govt. Jeep No. RJ 13-C-0701 from the Police Station and reached Hanumangarh. During Nakabandi, one white colour Maruti car bearing Registration No. PB-10H-7172 coming from Sardarsahar was stopped and checked. On Checking, near the steering wheel in the car, a polythene bag containing black wet material was found, which on opening gave smell of opium. The four accused persons Shamsher Singh, Jagjeet Singh, Baljinder Singh and Daljeet Singh were asked to show licence for keeping opium if they had, however they could not produce any such and showed their inability. The opium on weight was found to be 7 kgs. Out of that opium, 50 grams was taken separately in a polythene bag as sample and was sealed then and there marking on sample packet A. The rest opium was also sealed in a cloth bag and marked B. The registration certificate of the car and one road atlas found in car alongwith the car were seized and the accused persons were arrested. Site-plan and site-inspection note were prepared and after return to the police station, on the basis of recovery memos, First Information Report No. 48/2000 was chalked out. The recovered material alongwith sample was deposited in the malkhana of police station and a detailed report through wireless was sent to the Superintendent of Police and the Circle Inspector of the area. A detailed report by post was also forwarded to the Superintendent of Police. The recovered material alongwith sample was deposited in the malkhana of police station and a detailed report through wireless was sent to the Superintendent of Police and the Circle Inspector of the area. A detailed report by post was also forwarded to the Superintendent of Police. After getting issued the forwarding letter, the sample was sent for examination to the FSL from where the report was received. Statements of the witnesses were recorded and on completion of investigation, challan against the accused-appellants was filed in the Court. 3. The learned trial Court framed charge under Section 8/18 of the Act and read over the same to the accused-appellants, who denied the charge and claimed trial. 4. In support of its case, prosecution examined 8 witnesses and tendered documents in evidence. After close of the prosecution evidence, in the statement recorded under Section 313 CrPC, the accused denied the prosecution evidence and accused Jagjeet Singh stated that he had gone to the side of Pallu Rawatsar in order to purchase some land and Gogi had told him to leave the car at residence. At Pallu when he was drinking tea, at that time seeing the numberplate of car bearing numbers of Punjab, two constables came there and taken him to the police station where he was kept for 2-3 days and there he was made to sign on many papers but he did not know what was written in those papers as he did not know Hindi. Shamsher was also detained at the police station against whom a false case has been made. The other accused persons Baljinder Singh, Daljeet Singh and Shamsher stated that they had come to see some land and after that they were standing near Paplu Pump waiting for the bus, there one police constable talking in Punjabi taken them to the police station and made them to sit there. After two hours Jagjeet Singh was also brought to the police station and thereafter for 2-3 days they were kept at the police station. They also took the stand that in the police station their signatures were taken and as they did not know Hindi they did not know what was written therein. They also stated that false case was foisted against them. In defence, Gogi alias Iqbal Singh (DW. 1) and Som Prakash (DW. 2) were got examined. 5. They also took the stand that in the police station their signatures were taken and as they did not know Hindi they did not know what was written therein. They also stated that false case was foisted against them. In defence, Gogi alias Iqbal Singh (DW. 1) and Som Prakash (DW. 2) were got examined. 5. The learned trial Judge, after hearing both sides, vide Judgment and order dated 27.03.2002 convicted and sentenced the accused as stated hereinabove. Aggrieved, the present appeal has been filed by the accused appellants. 6. The learned Counsel for the appellant contended that in this case the prosecution has not been able to prove its case as the same is not reliable and the link evidence is missing. It was further submitted that the memo of alleged sample seal prepared was not sent alongwith the sample of contraband to the FSL, which is fatal to the prosecution. According to him, PW. 5 Giga Ram is said to be the Malkhana Incharge, who was the custodian of the contraband material recovered from the possession of the accused and who had entered the articles received from PW. 7 in the Malkhana Register, is not a trustworthy witness because in his statement he says that Exhibit D/1 was reduced in writing by him whereas PW. 7 Abdul Quayyum says that the statement was recorded by him. It has further been submitted that there is overwriting in Exhibit P/15. The entry made in the Malkhana Register was interpolated and figure 9 was made as 8. The learned Counsel submitted further that the statement of PW. 8 Sita Ram goes to show that he received the contraband material in a packet from one Mahendra Singh, said to be the Malkhana Incharge, on 16.08.2002. This witness Sitaram was to deposit the packet in sealed condition in the FSL Jaipur and he went to S.P. Office Hanumangarh but as the S.P. was not there he came back and in the sealed condition he deposited the sample with Mahendra Singh. According to learned Counsel how Mahendra Singh could be the Malkhana Incharge on 16.08.2000 when Giga Ram PW. 5 says that he was the Malkhana Incharge from 8.2000 to 25.08.2000. According to learned Counsel how Mahendra Singh could be the Malkhana Incharge on 16.08.2000 when Giga Ram PW. 5 says that he was the Malkhana Incharge from 8.2000 to 25.08.2000. The learned Counsel submitted that nothing has been brought on record to prove that the sealed packet was taken out of Malkhana by making entry in that behalf in the Malkhana Register and when it could not be deposited in the FSL again it was redeposited in the Malkhana. The learned Counsel submitted further that in the instant case the alleged recovered opium, said to be 7 kgs, was never produced in the Court. According to him, this itself is sufficient to disbelieve the case of the prosecution. In the last it was submitted that motbirs in this case have turned hostile and the other evidence in the case is also not reliable therefore the finding of guilt recorded by the learned trial Court deserves to be set aside. 7. The learned Public Prosecutor has supported the impugned Judgment of the learned trial Court. 8. I have considered the rival submissions made before me. 9. In this case, the point for consideration is as to whether the trial Court has correctly convicted and sentenced the accused appellant or not. 10. PW. 1 Constable Devilal has been produced to prove that while he was posted in S.P. Office, Hanumangarh, he issued a forwarding letter and gave it to PW. 2 Kishore Kumar, who had brought the sealed packet for getting the forwarding letter issued by the S.P. Office. This witness in the cross examination has admitted this fact that there is no reference regarding any paper being annexed or sent to the FSL. PW. 2 Kishore Kumar has stated that while he was posted as Constable at Police Station Pallu, he received one sealed packet marked ‘A’ for depositing the same in the FSL, Jaipur after getting forwarding letter from S.P. Office, Hanumangarh. He has stated that after receiving the sealed packet on 25.08.2000 he obtained the letter and deposited the sealed packet in FSL on 26.08.2000 and thereafter submitted receipt Exhibit P/2 in the police station. He has proved one entry in Rojnamcha Aam Exhibit P/3 and another entry in Rojnamcha Aam Exhibit P/4 which were in relation to his leaving the police station and arriving back at the police station after depositing the sample. He has proved one entry in Rojnamcha Aam Exhibit P/3 and another entry in Rojnamcha Aam Exhibit P/4 which were in relation to his leaving the police station and arriving back at the police station after depositing the sample. In the cross-examination he has stated that in Exhibit P/2 there is no mention of any other papers being taken by him. 11. PW. 3 Ajay Kumar Soni and PW. 4 Lakkhu Singh are the motbir witnesses, have completely denied the prosecution case and their evidence is of no assistance to the prosecution. 12. PW. 5 is said to be the Malkhana Incharge, Giga Ram. He has stated that on 08.08.2000 he was Malkhana Incharge in Pallu Police Station and he received two sealed packets from the Investigating Officer of Case No.14/2000 alongwith a Road Atlas and Registration Certificate of Maruti Car which was seized by the police. He has proved the entries in the Malkhana register Exhibit P/15. The witness has also stated that on 25.08.2000 the sealed packet was handed over to Kishore Kumar for depositing the same in the FSL, Jaipur and he deposited the same and submitted receipt thereof on 27.08.2000. This witness in reply to the Court question has stated that in his police statement Exhibit D/1 the date of deposit of sealed packets of the present case is 9.8.2000 whereas in the statement he has stated that the articles were deposited by him on 08.08.2000. He has stated that whatever he has stated in the Court is correct. He has denied the suggestion that on 08.08.2000 he was not on duty and stated that Exhibit D/1 was in his hand writing. In the cross examination, he has admitted an important aspect of the case that from 08.08.2000 to 25.08.2000 he was on duty at Police Station Pallu. The statement of this witness does not appear to be reliable for the reason that Exhibit D/2 to D/7 are the documents which are the copies of Rojnamcha Aam of PS Pallu. There is a mention in Exhibit D/2 to D/7 that he was on leave from 09.08.2000 to 15.08.2000. If he was on leave how could he be on duty. Further his statement appears to be not reliable for the reason that PW. There is a mention in Exhibit D/2 to D/7 that he was on leave from 09.08.2000 to 15.08.2000. If he was on leave how could he be on duty. Further his statement appears to be not reliable for the reason that PW. 8 Sita Ram says that he received one packet of the present case from Malkhana Incharge Mahendra Singh for depositing the same in the FSL Jaipur but as the forwarding letter could not be issued as when he went to the S.P. Office Hanumangarh it was told that forwarding letter will not be issued in the absence of S.P. If that is so then two persons at the same time cannot be Malkhana Incharge. It further appears that if the sealed packet was taken out from Malkhana then entry should have been made in the Malkhana Register. No such document has been produced to show firstly that the charge of Malkhana was handed over to Shri Mahendra Singh which was previously with PW. 5 Giga Ram and secondly after making proper entries the sealed packet marked A was handed over to PW. 8 and the same when could not be deposited in the absence of issuance of forwarding letter from the S.P. Office, then the sealed packet in intact condition was deposited in Malkhana and kept in sealed condition till it was handed over to PW. 2 for depositing the same in the FSL, Jaipur. No evidence has been produced in this regard. Further Mahendra Singh has also not been produced. 13. PW. 7 was the SHO of the Police Station and has proved Exhibit D/2 to D/7 and admitted that Giga Ram was Malkhana incharge on the dates mention in Exhibit D/2 to D/7. Further the statement of this witness does not appear to be reliable for the reason that Exhibit P/2 is a document which is in relation to the opium recovered from the possession of the accused contains overwriting to make a change in the date. The date 9 has been made as 8 to fill up the lacuna appearing in the evidence of PW. 5 and PW. 6. PW. 5 says that Exhibit D/1 his police statement was reduced in writing by him whereas PW. 7 Abdul Karim says that he recorded the statement Exhibit D/1. In view of above, the statement of this witness does not appear to be reliable. 14. PW. 5 and PW. 6. PW. 5 says that Exhibit D/1 his police statement was reduced in writing by him whereas PW. 7 Abdul Karim says that he recorded the statement Exhibit D/1. In view of above, the statement of this witness does not appear to be reliable. 14. PW. 6 is another police witness. He was alongwith raiding party and he has stated that on the date of incident the accused persons were arrested as 7 kgs opium was found in the car. 15. PW. 7 is Abdul Qayyum. He has stated that on 08.08.2000 while he was SHO, Pallu he started in a jeep from police station and reached Hanumangarh alongwith other police officials. During the course of Naka Bandi, a car which was coming from Sardarsahar and going towards Hanumangarh was stopped at about 10 AM and accused persons four in number were found in the car and on search of the car near the steering wheel in a hidden place opium was found. He has stated about the manner in which the recovery was got effected. The weight of the opium found in the polythene bag was 7 kgs. A sample of 50 grms was taken from the recovered opium and separately it was sealed. After completing formalities at the spot, case No.48/2000 was registered in the police station. He has proved FIR Exhibit P/20. In the cross examination, he has admitted that memo of sample was not prepared separately by him. This witness has been cross-examined at length regarding the evidence of PW. 8. 16. As discussed above, motbir witnesses have turned hostile and there is variance in the statements of PW. 2, PW. 7 and PW. 8. The link evidence in the case is also missing and the prosecution has failed to prove that the contraband material was kept in a sealed condition in the Malkhana and on two occasions it was taken out for depositing the same in FSL as per the statement of PW. 2 and PW. 5 and further proper entries were made in the Malkhana Register. In such circumstances, whether the Judgment of conviction of the accused-appellants is liable to be uphled. 17. The Hon’ble Supreme Court in Jitendra and Anr. 2 and PW. 5 and further proper entries were made in the Malkhana Register. In such circumstances, whether the Judgment of conviction of the accused-appellants is liable to be uphled. 17. The Hon’ble Supreme Court in Jitendra and Anr. vs. State of M.P. (2004 SCC (Cri.) 2028) in Para 5 has observed as under:-“The evidence to prove that charas and ganja were recovered from the possession of the accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW. 7), Angad Singh (PW. 8) and Sub-Inspector D.J. Rai (PW. 6), there is no independent witness as to the recovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial Court, so as to connect them with the sample sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the drugs seized from the possession of the accused. Although the High Court noticed the fact that the charas and ganja alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, “non-production of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be produced”. The High Court relied on Section 465 CrPC to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused.” 18. The defence also did not insist during the trial that these commodities should be produced”. The High Court relied on Section 465 CrPC to hold that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused.” 18. In yet another case reported in 2005 (1) Apex Criminal Judgment s 521 - State of Rajasthan vs. Gurmail Singh, the Hon’ble Apex Court has observed as under: “We have perused the Judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW. 6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband.” 19. The principles laid down in the above authorities indicate that the contraband material recovered from the possession of accused is required to be produced in the Court and non-production of the same is fatal to the prosecution. In the present case also this position is not disputed that the alleged contraband material recovered from the possession of the accused was not produced in the Court, therefore, on this count alone conviction recorded against accused appellant is not liable to be maintained. 20. Another aspect of the matter is that no convincing evidence has been produced regarding keeping intact in sealed condition the sample of opium till it was deposited in the FSL, Jaipur as discussed hereinabove. PW . 2 Kishore Singh’s evidence is not trustworthy. There is variance in the evidence of PW . 5 and PW . 8. No separate memo of seal was prepared and sent to FSL for comparison before examining the sample. PW . 2 Kishore Singh’s evidence is not trustworthy. There is variance in the evidence of PW . 5 and PW . 8. No separate memo of seal was prepared and sent to FSL for comparison before examining the sample. Therefore, again it is fatal to the prosecution in view of decision of the Hon’ble Apex Court in the case of Gurmail Singh, (supra) wherein it has been observed that the sample sent to FSL could not be compared for want of the sample of the seal and this aspect was considered to be fatal to the prosecution. 21. The learned trial Court has not properly appreciated the evidence produced in the matter and has erred in recording the guilt of the accused-appellants. 22. In view of above, I am of the opinion that in the instant case the investigation has not been properly conducted. The link evidence in relation to the seized contraband material has been withheld. The conviction of the accused-appellants recorded by the learned trial Court in the above discussed circumstances deserves to be set aside and the accused are liable to be acquitted by extending benefit of doubt. 23. In view of forgoing discussions, appeal of accused-appellants is allowed. The Judgment of conviction and order of sentence passed by learned trial Court in Sessions Case No.21/2000 dated 27.03.2002 is hereby set aside and the accused-appellants are acquitted of the charge under Section 8/18(B) of the NDPS Act. The accused-appellants are in jail. They be set at liberty forthwith if not required in any other case.