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2005 DIGILAW 2447 (RAJ)

Udailal v. State of Rajathan

2005-09-15

SATYA PRAKASH PATHAK

body2005
Judgment S.P. Pathak, J.-Appellant Udai Lal has been convicted by the learned Special Judge, NDPS Cases, Chittorgarh vide his Judgment and order dated 012.2002 passed in Sessions Case No.58/2001 - State vs. Udai Lal & Anr., under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to 10 years rigorous imprisonment and a fine of Rs. 1 Lac, in default of payment of fine to further undergo simple imprisonment for three months. .2. Briefly stated, the facts giving rise to the prosecution case are that on 19.08.2001 at 3:05 p.m., PW. 10 Himmat Singh, SHO, Police Station Chanderiya, received an information from mukhbir about .transporting illicit liquor in Truck No. RJ 09-G-0604 and acting on that information he alongwith PW. 5 Amar Singh, PW. 6 Udai Singh and PW. 11 Gopal after calling two motbirs PW. 1 Dinesh Khatik and PW. 2 Iqbal, taking with them the necessary articles for investigation, started in Govt. jeep and staged Nakabandi. At 3:15 p.m., as per the information received, Truck bearing Registration No. RJ 09-G-0604 arrived there from the side of Chittor and was got stopped by signalling. When the driver of the truck was asked about his name, he disclosed it to be Udailal Aheer. The truck was covered by tarred canvass. On telling the driver about the search of the truck, he told that there were maize bags loaded in the truck. After removing the canvass from truck when the truck was searched, the back side of bags were found to be of maize and in the rest part of the truck there were gunny bags. While checking the maize bags, smell of narcotic substance was felt and after giving notice to driver Udailal, he was asked about his option to be searched either by a Magistrate or Gazetted Officer or the SHO himself . Whereupon, the driver gave his consent in writing to give search to the SHO. It is further case of the prosecution that in the search of the truck 21 bags of maize and 119 bags of poppy husk were found, which were seized at the spot and out of those seized bags two samples of 500 each were taken out from five bags and sealed and marked then and there. The rest of the material was also seized and sealed. The rest of the material was also seized and sealed. Accused Udailal was arrested and a case against him under Section 8/15 NDPS Act was registered. During investigation, the material was found to be got loaded by one Dalchand Brahmin, as such he was also arrested under Section 8/28 of the Act and investigation in that respect was also done. Challan against both the accused was filed in the Court. 3. The matter came up before the learned Special Judge, NDPS Cases, Chittorgarh and the parties were heard on framing of charge. Charge under Section 8/15 of the Act was framed against accused-appellant while the other accused Dalchand Brahmin was left out for the offence under Section 8/29 of the Act. Accused-appellant denied the charge and claimed trial. 4. The prosecution in support of its case, in oral evidence, examined PW. 1 to PW. 12 and in documentary evidence, got exhibited Exs.P/1 to P/22. 5. After close of the prosecution evidence, in the statement recorded under Section 313 of the Cr.P.C, accused-appellant stated that neither he was driving the truck nor the poppy husk was recovered from him. He was taken from the house of Ramesh Kothari alongwith two others and the driver of the truck was Nandsingh but leaving Nandram he was involved. He claimed himself to be innocent. In defence, accused examined himself as DW. 1 and also examined, DW. 2 Nanu Ram, DW. 3 Bherulal, DW. 4 Narayanlal and DW. 5 Vardichand. 6. The learned trial Court, after hearing both sides, vide its Judgment and order dated 012.2002 convicted the accused-appellant for the offence under Section 8/15 NDPS Act and sentenced him as indicated above. .7. Aggrieved from the abovesaid Judgment and order dated 08.08.2003 passed by the learned Special Judge, NDPS Cases, Jodhpur the accused-appellant has preferred this appeal. 8. I have heard learned counsel for the appellant as well as the learned Public Prosecutor. 9. Learned counsel for the accused-appellant raised the following contentions: (i)that the appellant has not committed the offence for which he has been convicted by the learned trial Judge and the prosecution has miserably failed to establish the charge beyond reasonable doubt against the appellant. I have heard learned counsel for the appellant as well as the learned Public Prosecutor. 9. Learned counsel for the accused-appellant raised the following contentions: (i)that the appellant has not committed the offence for which he has been convicted by the learned trial Judge and the prosecution has miserably failed to establish the charge beyond reasonable doubt against the appellant. (ii)that the trial Court has erred in arriving at the finding of guilt against the appellant as the appellant was not the driver of the truck bearing registration No. RJ-9-G-0604 from which poppy husk is alleged to have been recovered. (iii) that there is evidence on record to substantiate that Nandsingh was the driver of the truck in question and this fact is fortified by a bare perusal of the statement of Ramesh Kothari, the registered owner of the aforementioned truck. .(iv) that thetrial Court overlooked the positive evidence and the defence taken by the appellant. According to him, the link evidence with regard to the sealing of the samples and sending the same for chemical examination to the Forensic Science Laboratory is missing in the case and there are material contradictions in the statements of the prosecution witnesses. .(v) That defence evidence transpires that infact the accused appellant in no manner was connected with the contraband material recovered and the truck seized by the police and he has been entangled in the case falsely. .10. The learned Public Prosecutor, on the other hand, submitted that the prosecution has led reliable evidence and proved its case and as a huge quantity of poppy husk has been recorded in this case, the accused-appellant has rightly been convicted and sentenced. .11. I have considered the rival submissions made before me. .12. The present case is one in which the irregularities on the part of the prosecution are repleat. To name a few, it may be stated that PW. 10 Himmat Singh in his examination in chief has stated to have called two motbirs but in his cross examination has clearly admitted that the motbirs came to the police station after the seizure and signed the proceedings after that. To name a few, it may be stated that PW. 10 Himmat Singh in his examination in chief has stated to have called two motbirs but in his cross examination has clearly admitted that the motbirs came to the police station after the seizure and signed the proceedings after that. Likewise, the SHO has also searched the vehicle without first taking personal search of the appellant which is against the law propounded by Honble Supreme Court in the case of State of Punjab vs. Balbir Singh, 1994 CrLR (SC) 241, in which the Honble Supreme Court has held as under: .“If a police officer, even if he happens to be an “empowered officer while effecting an arrest or search during normal investigation into offences purely under the provisions of CrPC fails to strictly comply with the provisions of Secs.100 and 165 CrPC including the requirement to record reasons, such failure would only amount to an irregularity. The effect of such failure has to be born in mind by the courts while appreciating the evidence in the facts and circumstances of the case.” 13. In this case, according to seizing officer, SHO PW. 10 Himmat Singh, on 29.08.2001 Ex.D/1, a letter for getting the samples examined, was sent to the Superintendent of Police alongwith the samples but the person, with whom the same was sent, was not examined in the Court whereas as per Malkhana Register Ex.P/13, the samples were sent on 31.08.2005. The Malkhana Incharge PW. 6 Udai Singh in his examination-in-chief and cross has accepted to deliver the samples to PW. 8 Rajkumar without giving him any papers relating to that. Likewise, it transpires that in the link evidence there was interpolation in the marking. According to PW. 8 Rajkumar also the papers given to him at the time of delivering him samples were not seen by him but he has stated that the seal affixed on the samples was of SHO Himmatsingh whereas the seal and packet produced in the Court were of PS Chanderiya. It is also doubtful in this case that the SHO himself has made seizure of the contraband material as PW. 5 Amar Singh in his cross examination has admitted that the gunny bags were unloaded from the truck by the labourers and PW. It is also doubtful in this case that the SHO himself has made seizure of the contraband material as PW. 5 Amar Singh in his cross examination has admitted that the gunny bags were unloaded from the truck by the labourers and PW. 6 Udai Singh states that there were 5-6 labourers for unloading the truck and they stocked the bags infront of the police station whereas SHO PW. 10 Himmat Singh in his cross-examination has stated that the truck was unloaded by the raiding party persons and according to him it was wrong to say that at the spot there were labourers. It clearly establishes that the SHO PW. 10 Himmat Singh himself was not available at the spot. This has been fortified by the evidence of PW. 12 Munir Khan, who has not been declared hostile, and, he has stated that it was not in his memory whether at the spot SHO PW. 10 Himmat Singh was available. This witness has also accepted that no driver was there in the truck which belonged to Ramesh Kothari. 14. It has also come on record in this case that out of the total 119 bags recovered, samples were taken out only from five bags and none of the witness could state their exact weights. Articles 14 and 15 produced before the Court were not sealed and the bag marked A produced in the Court was in a torn state. One other bag produced was stitched and was kept in a blue coloured bag. The samples were also in dilapidated conditions. The explanation given was that the rats had bitten the same. Even the 119 bags recovered were not sealed and were kept in open in the police station and this fact has come on record in the cross examination of SHO PW. 10 Himmat Singh. It has also come on record that during investigation the statement of Satyanarayan Jagotia was recorded by investigating officer Bhagwan Singh on 010.2001, wherein the witness has stated that they used to burn the dust/waste of the post granules and on 19.08.2001 he had instructed his manager to burn the same but due to rains that could not be burnt. The reason for not producing 114 bags before the Court is not far to seek. The reason for not producing 114 bags before the Court is not far to seek. All this shows that the 114 recovered gunny bags not produced in the Court were not containing the alleged material poppy husk but only waste. It is also significant to mention here that no samples were drawn out of these 114 bags to find out as to whether there was contraband poppy husk in them. 15. In the instant case, it is apparent that the appellant was not the driver of the truck as is clear from the statements of PW. 4 Ramesh Chandra Kothari and PW. 12 Munir Khan. Munir Khan has not been declared hostile. One more facet of the case, which may be mentioned here, is that from Ex.D/3 it transpires that an application was made by the villagers of Takhatpura and its copies were endorsed to various persons/officers including the Director General of Police, Dy. Director General and the Superintendent of Police stating that the appellant was falsely implicated in the case with the connivance of police and the owner of the truck Ramesh Kothari. It was described therein that in the intervening night of 19th and 20th August 2001, Ramesh Kothari, who was known to Udailal, had come to the village and asked that he was in need of a helper on his truck, and before the villagers on a false pretext of making payment to him at the rate of Rs.1500/- per month with food, took him to the police station and thereafter the villagers came to know that he was falsely implicated and shown as the driver of the truck in a case of poppy husk. They also averred that Udailal was an agriculturist and even did not know how to drive a truck and the truck owner can only say who actually brought the truck, either he himself or some one else. It appears that no action was taken on this application of the villagers because the investigating officer PW. 7 Bhagwan Singh was the subordinate official of seizing officer SHO PW. 10 Himmat Singh. 16. It appears that no action was taken on this application of the villagers because the investigating officer PW. 7 Bhagwan Singh was the subordinate official of seizing officer SHO PW. 10 Himmat Singh. 16. The learned trial Court has not given any reason for not believing the witnesses examined on behalf of the defence and has not taken into account various important aspects of the case and, as such landed in error by holding the appellant guilty of the offences punishable under section 8/18 of the NDPS Act and in convicting and sentencing him. 17. In view of the unsatisfactory analysis of evidence and erroneous approach of the trial Court, taking into account the irregularities committed and the contradictory stands taken by witnesses of the prosecution itself , I am of the firm view that the learned trial Judge has not considered the evidence in a proper way and without noticing the infirmity on material points, as mentioned in the above discussion, has landed in error in recording the finding of conviction against appellant which has resulted in awarding sentence against the appellant. The inevitable conclusion is that the Judgment of the trial Court has no legal sanctity and in that view of the matter, I think, the appellant has to be given the benefit of doubt. 18. After having considered the entire material on record and scrutinizing it carefully, I am of the opinion that the evidence led by the prosecution in this case is not sufficient to bring home the guilt of the accused appellant and the conviction recorded against him deserves to be set aside without any interference in the order passed in respect of disposal of the property by the trial Court. 19. In the result, the appeal is allowed, the impugned Judgment of conviction and order of sentence dated 012.2002 passed by the learned Special Judge, NDPS Cases, Chitorgarh in Sessions Case No.58/2001 - State vs. Udai Lal, and Anr., is set aside and the accused-appellant is acquitted of the charges levelled against him. He be released forthwith, if not required for any other investigation, proceeding or trial.