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2005 DIGILAW 2672 (RAJ)

Bhanwarlal v. State of Rajasthan

2005-10-17

S.P.PATHAK

body2005
Judgment S.P. Pathak, J.-This appeal, in its second inning before this Court, is directed against the Judgment of conviction and order of sentence dated 24.07.2001 passed by learned Special Judge, NDPS Cases, Hanumangarh in Sessions Case No.02/2001, whereby the accused-appellant has been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act) and sentenced to 10 years rigorous imprisonment and a fine of Rs.1 lac, in default of payment to further undergo one years rigorous imprisonment. 2. Briefly stated, the facts of the case are that on 011.2000 at 6 PM, PW. 10 Ramniwas, SHO Police Station, Pilibhanga, received an information through Mukhbir to the effect that one Bhanwarlal, who was involved in smuggling of opium, was standing at bus-stand Pilibhanga having opium in a black colour attaché and there he was waiting for some transportation to go for its selling. The information so received from the Mukhbir was recorded as Ex. P/18 and a report Ex P/10 to this effect was sent to the Superintendent of Police, Hanumangarh with PW. 6 Satpal. Thereafter, PW. 10 Ramniwas, the SHO, Police Station, Pilibhanga, acting on the information, alongwith Mukhbir and other police personnel started in Government Jeep from the police station and the witnesses PW. 2 Jagdish and PW. 3 Babulal at Railway Crossing, Rawatsar Road, were informed about the information received from Mukhbir and after obtaining their consent to become witness to the proceedings by giving them notice and taking them together reached at the bus-stand, Pilibhanga at 7.10 PM. The Mukhbir gestured towards a person standing on the corner of a park. The accused was covered by the raiding party forming a circle around him. At that time he was having an attaché in his hand of black colour. Accused was given notice under Section 50 of the Act for his search and he after having been informed about the information told that there being information of opium in the attache, search was to be undertaken and he was informed about his right to be searched in the presence of a Magistrate or gazetted officer or to the police officials. The accused in his turn showed his willingness to give search to the SHO. The accused in his turn showed his willingness to give search to the SHO. Thereafter, in the presence of witnesses, when the attaché was searched, one woolen coverlet was found therein and in its layers there was a polythene bag which was containing some liquid material. The polythene bag was closed by white thread. When the liquid material was tasted and smelt, it was found to be opium, for which the accused was not having any licence or permit. The weight of opium with polythene bag was 5 kgs. Out of that material, 100 grams was taken out as sample and sealed then and there. This sample was marked ‘A’ and the rest of material in the polythene bag again kept in the attaché covering it with the woolen coverlet and marked the attaché ‘B’. The seal used in sealing the samples and recovered material was also sealed and marked ‘C’. A memo of recovery Ex. P/1 was prepared at the spot and the accused was arrested vide memo Ex. P/3, which bears the signatures of the persons available on the spot. On returning the police station, First Information Report Ex. P/21, was lodged and case No. 361/2000 was registered against the accused and the material seized and sealed was deposited in the Malkhana of the Police station. 3. During investigation, sample was got examined, the report of Foreinsic Science Llaboratory Ex. P/25 was received which gave positive test for the presence of chief constituents of coagulated juice of opium poppy having 3.89% morphine. Site-plan Ex. P/23 was prepared and statements of the witnesses were recorded. 4. After completion of investigation, challan was filed against accused Bhanwarlal in the Court of Special Judge, NDPS Cases, Hanumangarh, where on 09.02.2001 parties were heard on framing of charge and charge against accused was framed under Section 8/18 NDPS Act. The accused denied the charge and claimed trial. 5. The prosecution examined as many as 10 witnesses in support of its case and tendered a number of documents in documentary evidence. 6. After close of prosecution evidence, accused was examined under Section 313 CrPC, who in his statement stated that he was a neighbour of SHO Ramniwas in Bikaner and was earning his livlihood by keeping cattle and selling milk. Ramniwas had encroached upon a part of his plot and that resulted in altercation between them. 6. After close of prosecution evidence, accused was examined under Section 313 CrPC, who in his statement stated that he was a neighbour of SHO Ramniwas in Bikaner and was earning his livlihood by keeping cattle and selling milk. Ramniwas had encroached upon a part of his plot and that resulted in altercation between them. Thereafter, Ramniwas got him beated and on complaining in the police station, no response was given to him. On complaint being made to the higher authorities, enquiry was conducted against Ramniwas but in that also he was not heard. He further stated that on 210.2000 he had come to work with Maniram s/o Laloo Ram, resident of Chak Thirajwala and on 011.2000 when he was in the agricultural field, Ramniwas took him to the police station and there after beating him a false case was registered. He denied recovery of opium from him and also denied to have been arrested on 011.2000 in Pilibhanga near park at about 7 PM. He claimed to have been implicated falsely. In defence, DW. 1 Mani Ram and DW. 2 Dharam Pal Singh have been examined. 7. After completion of the trial, the learned Special Judge, NDPS Cases, Hanumangarh convicted and sentenced the accused-appellant as indicated hereinabove. 8. Aggrieved by the aforesaid Judgment of conviction and order of sentence accused Bhanwarlal approched this Court by filing the present appeal and this Court vide its Judgment dated 010.2001 acquitted the accused holding that mandatory provisions of Section 50 have not been complied with in the present case which vitiated the trial. 9. Against acquittal of accused Bhanwarlal, State of Rajasthan filed Criminal Appeal No. 375/2003 before the Honble Supreme Court and ultimately the matter was decided by a larger Bench on 08.04.2005 alongwith one other matter viz., Criminal Appeal No. 222/97 State of Himachal Pradesh vs. Pawan Kumar, and the matter has been remitted to this Court for a fresh decision on merits in accordance with law. While deciding the two matters, the Hon’ble Supereme Court has interpreted the meaning of ‘person’ and dealt with various provisions of law including Section 50 of the Act. .10. While deciding the two matters, the Hon’ble Supereme Court has interpreted the meaning of ‘person’ and dealt with various provisions of law including Section 50 of the Act. .10. It has been contended by the learned Counsel for the appellant that in the present case no compliance of Section 42 of the Act has been made as the secret information received was not sent immediately to the superior officer, therefore, the conviction recorded against the accused appellant deserves to be quashed and set aside. On the other hand, it has been submitted that there has been proper compliance of Section 42 of the Act in view of evidence led by the prosecution in this case. .11. I have considered the submissions made before me. 12. It is to be seen that PW. 10 Ram Niwas, SHO PS Pilibhanga received a secret information Ex. P/18 and the same after reducing into writing sent through LHC PW. 6 Satpal to S.P. Hanumangarh. PW. 10 in his statement has stated that he after receipt of secret information before starting for staging Nakaband, he sent the information to the S.P., Hanumangarh. PW. 6 Satpal has stated that on 011.2000 while he was posted as LHC in Police Station, Pilibhanga, at 6 PM in the evening, PW. 10 gave him the information which was to be delivered to S.P., Hanumangarh. He has further stated that after taking tehrirs, he reached at the Govt. residential accommodation of S.P., Hanumangarh and there he delivered the original information to the S.P., and obtained signatures on the carbon copy. He has proved Ex. P/10 in this regard. This witness has further proved the entry made in relation to leaving the police station in the Rojnamcha and also the entries made in relation to coming back to the police station. The two entries Ex. P/11 and P/12 are in this regard. In view of statements of PW. 10 and PW. 6, it stands established that secret information received in the police station on 011.2000 was sent to S.P., Hanumangarh to the effect that accused was with an attaché in his hand waiting at the bus-stand, Pilibhanga and was about to leave that place and was also involved in smuggling of opium. In view of statements of PW. 10 and PW. 6, it stands established that secret information received in the police station on 011.2000 was sent to S.P., Hanumangarh to the effect that accused was with an attaché in his hand waiting at the bus-stand, Pilibhanga and was about to leave that place and was also involved in smuggling of opium. Thus, I do not find any substance in the contention of the learned Counsel that in the present case no compliance of the provisions of Section 42 of the NDPS has been made by the prosecution. .13. The another contention of the learned Counsel is that in the present case compliance of Section 57 of the Act has not been made, the provisions being mandatory in nature, the accused is required to be acquitted. On the other hand, it has been submitted that proper compliance of Section 57 of the Act has been made. .14. I have considered the submissions made before me. 15. In this case, PW. 10 Ramniwas is the seizing officer and he has prepared Ex. P/1 the Recovery Memo at the spot and after returning to the police station, FIR Ex. P/21 was lodged. PW. 10 has stated that he sent a detailed information to the S.P., Hanumangarh Ex. P/7. The witness has also stated that after seizure and other spot proceedings, the seized contraband material was deposited in the Malkhana of the Police Station. Ex. P/7 is a detailed description of the incident which was sent to S.P. Hanumangarh and this contains his signatures at place A to B. PW. 5 Dharamveer Singh FC of the Police Station, Pilibhanga has stated that on 011.2000 the SHO PW. 10 had given him the detailed information about the incident in relation to Case No. 361/2000 which was to be given to S.P. Hanumangarh. He has proved Ex. P/7, the detailed information report, and has also stated that he thereafter making entry in Rojnamcha i.e. Ex. P/8 started for the residence of S.P., Hanumangarh and there he delivered Ex. P/7. The witness has further stated that Ex. P/9 entry has been made in Rojnamcha on his return from the S.P.s residence. In view of statement of PW. 10 and PW. 5 this further stands proved that the detailed information was sent to S.P., Hanumangarh. P/8 started for the residence of S.P., Hanumangarh and there he delivered Ex. P/7. The witness has further stated that Ex. P/9 entry has been made in Rojnamcha on his return from the S.P.s residence. In view of statement of PW. 10 and PW. 5 this further stands proved that the detailed information was sent to S.P., Hanumangarh. The position of law is also clear that as far as Section 57 of the Act is concerned, this provision has been held to be not mandatory in nature but at the same time complete non-compliance of the provision will require consideration while appreciating the evidence. In the instant case, as has been stated by PW. 10 SHO Ramniwas, the Seizing Officer and also the witness PW. 5 that SHO Pilibhanga gave him detailed information which was meant for S.P. Hanumangarh and he after making entires in the Rojnamcha reached the residence of S.P., Hanumangarh and there delivered the same and on carbon copy obtained his signatures. In view of above, I do not find any merit in the contention of the learned Counsel and same is hereby rejected. 16. It has next been contended that in the instant case link evidence is absolutely missing and that vitiates the trial. The learned Public Prosecutor, on the other hand, submitted that there has been proper compliance and the learned trial Court has properly appreciated the matter, therefore, the conviction recorded of the accused requires to be upheld. I have considered the submissions. It is to be seen that at Page 8 of the impugned Judgment in Para 2, it has been admitted by the learned trial Court that since the representative sample has been produced in the Court and the Court intended to ignore the FSL report, therefore, it would not be fatal to the prosecution even if the opium/attaché recovered is not produced before the Court. The learned trial Court further mentioned in Para 3 of the impugned Judgment at Page 8 that the Court is required to see that the sample drawn at the spot should reach FSL intact. At Page 9 in the bottom of the impugned Judgment , it has been mentioned that PW. 9 Bhagirath in his statement has stated that he received sample from Malkhana Incharge Narain Singh and Narain Singh has not been produced, therefore, the Court was not dependent on the FSL report. At Page 9 in the bottom of the impugned Judgment , it has been mentioned that PW. 9 Bhagirath in his statement has stated that he received sample from Malkhana Incharge Narain Singh and Narain Singh has not been produced, therefore, the Court was not dependent on the FSL report. It has further been admitted by the learned trial Court that the contention of the learned Counsel for the defence is correct that in the present case the link evidence is missing. At Page 11 Para 2 of the impugned Judgment , it has been observed that in such state of affairs and looking to the statement of PW. 8 Jai Singh, even if his evidence regarding recovery is ignored, then also in view of the reliable evidence recorded of other witnesses of raiding party namely Inder Chand, Prahlad, Khadam Ali and the SHO of Police Station, it stands established that the prosecution has proved the case against the accused to the extent that contraband material was recovered from his possession and a recovery memo Ex. P/1 was prepared at the spot. The learned trial Court again at Page 14 of the impugned Judgment has mentioned that this is correct that no credence can be given to FSL report Ex. P/25 for the reason that in Ex. P/24 i.e. a letter written by the SHO, Police Station to the S.P. Hanumangarh for issuance of forwarding letter for depositing the sample to the FSL, in which it has not been stated that sample marked A was sent for examination to the FSL. The learned trial Court has further mentioned that though there is variance in Ex. P/13A and Ex. P/13, but still in view of evidence of other witnesses, the case of the prosecution stands proved. Ex. P/13 and P/13A are the documents in relation to entries made in the Malkhana Register regarding depositing the sealed contraband material in the police station and thereafter sending the same in the FSL. There is a substantial variance in these two documents. In this connection, PW. 8 Jai Singh in his statement has stated that on 011.2000 while he was posted in the Police Station as Head Constable, he accompanied the raiding party and he signed Memo Ex. P/1 of recovery of the contraband material. There is a substantial variance in these two documents. In this connection, PW. 8 Jai Singh in his statement has stated that on 011.2000 while he was posted in the Police Station as Head Constable, he accompanied the raiding party and he signed Memo Ex. P/1 of recovery of the contraband material. He has stated at Page 2 of his statement that he was the Malkhana Incharge on that day and the SHO PW. 10 gave him three sealed packets for making entries in the Malkhana Register of their depositing in sealed condition. He has stated that entries in this regard in the Malkhana Register are Ex. P/13 and carbon copy thereof is 13A. He in his cross examination has stated that Ex. P/13 and 13A when seen, it appears that there is variance. He has further stated that in Ex. P/13 there is no signatures of PW. 10 SHO Ramniwas. He has also stated in cross examination at Page 3 that the entries made at place O to P are not available in copy Ex. P/13A. He has further stated that in between the period from 011.2000 to 111.2000, he had been away from the police station for some Govt. work. His statement when seen with the statement of PW. 9 Bhagirath then it appears that infact PW. 8 was not Malkhana Incharge on 11.2000. 17. PW. 9 is Bhagirath. He has stated that on 111.2000, he was posted in the Police Station, Pilibhanga as Constable and he took the sample of Case No.361/2000 for depositing the same in the FSL. He has stated that in sealed condition the packet was handedover to him by Head Constable Malkhana Incharge and Malkhana Incharge was Narain Singh. Shri Narain Singh has not been produced in evidence Thus, it is also doubtful as to who was the Malkhana Incharge on 011.2000 because PW. 9 Bhagirath says that Malkhana Incharge was Narain Singh and Narain Singh has not been produced. PW. 8 says that he was Malkhana Incharge. There is variance in the entries made in the Malkhana Register Ex. P/13 and Ex. P/13A of substantial nature, which also creates doubt in prosecution case. This position is also doubtful. Again, another important aspect of the matter is that PW. 10 in his statement has stated that no memo regarding sample was made. There is variance in the entries made in the Malkhana Register Ex. P/13 and Ex. P/13A of substantial nature, which also creates doubt in prosecution case. This position is also doubtful. Again, another important aspect of the matter is that PW. 10 in his statement has stated that no memo regarding sample was made. This he states at Page 14 of the handwritten statement in the cross-examination that it is correct that no separate memo regarding seal was prepared. He has also stated that seal impression is not available on the photocopy of Ex. 13 i.e. the entires made in the Malkhana Register whereas in the original it is available. The other witnesses of the raiding party have stated that sample seal was prepared. The seizing officer denies this in the cross-examination. 18. Again an important aspect of the matter is that the seal used at the spot as per the statement of PW. 10 Ramniwas was sealed. At page 4 of the statement of PW. 10 Ramniwas, Seizing officer, it has come that “the seal was separately kept in a packet and the packet was sealed”. The rest of the witnesses do not say about this and no seal has been produced in the Court. If the seal was sealed at the spot and kept in a sealed envelope then how the impression of the seal could have come on the entires made in the Malkhana Register. 19. In view of the evidence discussed hereinabove, it appears that the prosecution case is doubtful in relation to deposit of the contraband material in the Malkhana. The entries in the Malkhana register Ex. P/13 and 13A are having variance of substantial nature. According to the witnesses, Narain Singh was Malkhana Incharge and he has not been produced. Jai Singh says that he was the Malkhana Incharge. Regarding seal, PW. 10 says that it was sealed but no such seal was either sent to the FSL or produced in the Court. If the seal was sealed then how impression of that seal could come on the Malkhana Register? The learned trial Court has also admitted in the Judgment that it is correct that link evidence is missing in the case but in view of statements of the members of raiding party, prosecution case stands proved. If the seal was sealed then how impression of that seal could come on the Malkhana Register? The learned trial Court has also admitted in the Judgment that it is correct that link evidence is missing in the case but in view of statements of the members of raiding party, prosecution case stands proved. In my considered opinion, this cannot be a correct approach while appreciating the evidence particlarly in the cases under the NDPS Act where punishment awarded is of severe nature and it is required of prosecution to prove the case on the basis of satisfactory reliable evidence. The position of law is almost settled on the point that in the absence of link evidence, accused cannot be held guilty unless it is shown that the contraband material recovered from the possession of the accused were kept in the Malkhana in intact position and the same remained intact till it reached the destination. In the instant case, even the trial Court has not found that the prosecution has led satisfactory link evidence in this case. If that is so then to hold accused guilty for the offence under the NDPS Act, in my considered opinion, is not legally sustainable. 20. In the defence evidence and also in the statement recorded under Section 313 Cr.P.C., the accused has stated about the enmity aspect with PW. 10, SHO Police Station, Pilibanga. He has stated that there was some dispute in connection with some plot and he has stated that he was arrested from some other place. Be that as it may, it is not necessary to discuss the defence evidence in detail because the prosecution in this case has not led satisfactory evidence in relation to link evidence. The Motbir witnesses have turned hostile and they have not supported the prosecution case. The rest of the witnesses are police witnesses and there are material contradictions in their testimony, which makes the prosecution case doubtful. 21. In view of foregoing discussions, I am of the opinion that the accused is entitled to be given benefit of doubt and is required to be acquitted of the charges framed against him. The impugned Judgment passed by the learned trial Court holding the accused appellant guilty of the charges framed against him under the NDPS Act is liable to be set aside. 22. The impugned Judgment passed by the learned trial Court holding the accused appellant guilty of the charges framed against him under the NDPS Act is liable to be set aside. 22. In the result, the appeal is allowed giving benefit of doubt, the Judgment of conviction and order of sentence dated 24.07.2001 passed by learned Special Judge, NDPS Cases, Hanumangarh, in Sessions Case No.02/2001 is hereby set aside and the accused is acquitted of the charges framed against him. Accused-appellant is in jail. He be set at liberty forthwith if not required in any other case.