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2005 DIGILAW 942 (RAJ)

Hajari Mal v. State of Rajasthan

2005-03-30

SATYA PRAKASH PATHAK

body2005
Judgment Satya Prakash Pathak, J.-This appeal under Section 374 CrPC is directed against the Judgment of the learned Additional Sessions Judge No. 2, Udaipur dated 212.1987 in Sessions Case No. 52/1986 (State vs. Hajari Mal) whereby the accused appellant has been convicted under Section 8(c)/15 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred as the NDPS Act) and sentenced to ten years rigorous imprisonment and a fine of Rs. 1,00,000/-; in default of payment of fine to further undergo six months rigorous imprisonment. 2. Briefly stated the prosecution case is that PW. 6 Bakshi Singh, SHO, Police Station Dhan Mandi, Udaipur, while on patrolling duty on 05.05.1986 along with Head Constable Surajmal, Head Constable Sohan Singh, Constable Onkarlal and Foot Constable Paras Mal at about 9.30 p.m. reached at Lakhara Chowk, Udaipur they saw accused carrying a bag (Bori) on his head. On seeing the police party, the accused appellant became nervous and it gave rise to suspicion, as such he was stopped and was asked to disclose his identity. The accused disclosed his name Hajari Mal son of Kaluram resident of Surpura, Tehsil Kapasan. The bag found in the possession of the accused when opened, crushed pieces of poppy straw (Afeem Ke Kuchale Huve Dode) were found therein. The accused was asked for license/permit for the possession of the contraband material in his possession on which the accused denied of having any license/permit to carry the contraband item. The total weight of the recovered contraband with the bag was found to be 21 Kgs. out of which 250 gms. was taken out for chemical examination. The sample so taken was sealed. The remaining poppy straw was also sealed at the spot separately. Recovery memo Exhibit-P/1, arrest memo Exhibit-P/2 and inspection note/site plan Exhibit-P/4 were prepared in presence of Motbirs PW. 1 Dinesh Kumar and PW. 5 Shantilal. After reaching the Police Station, FIR Exhibit-P/5 was lodged in the Police Station and a case No. 43/86 under Section 4/9 of the Opium Act was registered against the accused by Parcha Kayami Exhibit-P/6. The sealed sample packet was sent for chemical examination in the Forensic Science Laboratory, Jaipur. The FSL Report is Exhibit-P/9. The sample on examination showed presence of Opium which was dried crushed capsules of poppy. 3. The sealed sample packet was sent for chemical examination in the Forensic Science Laboratory, Jaipur. The FSL Report is Exhibit-P/9. The sample on examination showed presence of Opium which was dried crushed capsules of poppy. 3. After usual investigation, challan was filed in the Court of Judicial Magistrate, Udaipur (North) and on committal the matter was tried by learned Additional Sessions Judge No. 2, Udaipur. A charge under Section 8(c)/15 read with Section 17 of the NDPS Act was framed against the accused appellant on 23.1987. The accused denied the charge and claimed trial. The prosecution in support of its case examined six witnesses (PW.1 to PW. 6). After close of the prosecution evidence, statement of accused was recorded on 111.1987, wherein accused denied the charge and stated that he has falsely been implicated and infact one of Motbirs of the case Dinesh Kumar was a shop-keeper and a dispute arose between the accused appellant and PW. 1 Dinesh Kumar as Dinesh Kumar did not make payment of 25 kgs. of cotton to him. In defence, two witnesses have been examined. The trial Court after hearing both sides convicted and sentenced the accused appellant as indicated hereinabove. Aggrieved by the Judgment and order dated 212.1987 passed by learned Additional Sessions Judge No. 2, Udaipur, the present appeal has been filed. 4. I have heard learned Counsel for accused appellant and learned Public Prosecutor and carefully perused the material available on the record. 5. Learned Counsel appearing for the accused appellant has contended that the learned trial Court has not scrutinized the prosecution evidence in the light of checks available on record and also ignored the inherent possibilities appearing in the evidence. It has further been contended that no evidence has been led by the prosecution to show that the seal on the sample remained intact till it reached the Forensic Science Laboratory for examination. Learned Counsel has further contended that it is doubtful as to whether the sample was taken of 250 gms. or 500 gms., because there is variance in the testimony on the witnesses on this point as well as in the documents prepared by the prosecution. According to learned Counsel, no compliance of Section 50 of the NDPS Act has been made in the present matter. 6. or 500 gms., because there is variance in the testimony on the witnesses on this point as well as in the documents prepared by the prosecution. According to learned Counsel, no compliance of Section 50 of the NDPS Act has been made in the present matter. 6. On the other hand, it has been contended by learned Public Prosecutor that the trial Court has correctly appreciated the matter and has rightly convicted and sentenced the accused appellant. 7. I have carefully considered the rival submissions made before me and perused the impugned Judgment carefully. 8. The learned trial Court found the infirmities in the prosecution case of minor nature, and came to the conclusion that the accused was in possession of the contraband material, therefore, he was liable for conviction and sentence. 9. The above finding of learned trial Court is to be examined in the light of the submissions made before me. 10. Exhibit-P/1 is recovery memo, which was prepared in the presence of Dinesh Kumar and Shantilal. This memo was prepared at 9.30 p.m. There is a cutting at place I to J wherein it appears that regarding weight of sample some correction has been made and by over-writing it has been made 250 gms. PW. 6 Bakshi Singh, who is the investigating officer of the case has stated in the cross-examination that he did not know who has done this over-writing. Nobody from the prosecution side has come forward to say that the correction was made by him. On the contrary, when a question was put to PW. 6 Bakshi Singh that infact when his statement was recorded in the Court on 110.1987, he took the Court file and made over-writing. The witness has denied this factum but the Court has made a note that the witness after taking file had seen file before recording his statement. Again, there is over-writing on inspection note and site plan Exhibit-P/4. This is said to have been prepared as per the version of PW. 6 Bakshi Singh on 5.1986 whereas this bears date 6.5.1986. It appears that 5 has been made as 6. In Exhibit-P/8, which is copy of Rojnamcha, the weight of the sample has been mentioned as 250 gms. The oral evidence in this behalf of PW. 6 Bakshi Singh is that sample was taken of 250 gms. Another witness in this regard is PW. 2 Surajmal. It appears that 5 has been made as 6. In Exhibit-P/8, which is copy of Rojnamcha, the weight of the sample has been mentioned as 250 gms. The oral evidence in this behalf of PW. 6 Bakshi Singh is that sample was taken of 250 gms. Another witness in this regard is PW. 2 Surajmal. This witness has stated that sample of 250 gms. was sealed of poppy straw. PW. 4 Sohan Singh, Head Constable, has stated that he was with the patrolling party. The accused was caught at the time of patrolling on 5.1986 and a sample from the recovered contraband of 500 gms. was taken. PW. 5 Shantilal is an independent witness. He has been declared hostile. Thus, it appears that in oral testimony of the witnesses there is material differences in relation to the weight of sample. Some of the witnesses have stated that sample was of 250 gms. and some of witnesses stated that it was of 500 gms. The documents exhibited in the case referred to above also show variance. FSL Report Exhibit-P/9 shows that the sample sent was of 550 gms. 11. The learned trial Court though has not considered the variance in weight of sample to be of much significance while taking into consideration the documents and evidence. The above finding of the trial Court when appreciated from any angle cannot be said to be legal, just and proper. If there is doubt about the weight of the sample collected and sent for chemical examination, then, in my considered opinion this completely demolishes the prosecution case and such an infirmity cannot be said to be of minor nature. The prosecution in the matters arising out of the provisions of the NDPS Act, where the punishment provided is of grave nature, then, it is required to adduce unimpeachable evidence regarding taking of sample of contraband article, weighing of sample properly and keeping intact in sealed condition in Malkana till it reaches the Forensic Science Laboratory for chemical examination. 12. In the instant case, as discussed above, when it is doubtful that as to whether the sample of contraband article taken was of 250 gms. or 500 gms., then, to connect the accused with the recoveries made in the present matter cannot be considered to be proper. 12. In the instant case, as discussed above, when it is doubtful that as to whether the sample of contraband article taken was of 250 gms. or 500 gms., then, to connect the accused with the recoveries made in the present matter cannot be considered to be proper. In the instant case, so far as Motbir witnesses are concerned, they have turned hostile or have not corroborated the prosecution case in its substance. As discussed above there is variance in the statement of the police witnesses also in relation to weight of sample. Thus, the accused cannot be held guilty of the charges levelled against him under the provisions of the NDPS Act. 13. As regards other arguments of the accused that it was necessary to have given option regarding search to be made by the Magistrate or the Gazetted Officer under Section 50 of the NDPS Act, it is suffice to say that at the time of patrolling the police official apprehended the accused at a public place, therefore, no compliance of Section 50 of the NDPS Act, was necessary. 14. In absence of reliable evidence regarding the weight of sample taken of the contraband material alleged to have been recovered from the possession of accused, the impugned order of conviction and sentence requires to be set aside and the appeal of the appellant deserves to be allowed. 15. In the result, the appeal is allowed and the impugned Judgment of conviction dated 212.1987 and the order of sentence awarded by learned Additional Sessions Judge No. 2, Udaipur in Sessions Case No. 52/1986 against the accused appellant is hereby set aside. He is acquitted of the charges framed against him by extending the benefit of doubt. The accused appellant is on bail. His bail bonds stands discharged.