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2006 DIGILAW 460 (RAJ)

Gopal Lal S/o Chunni Lal v. Union of India

2006-02-10

N.K.JAIN

body2006
Judgment Narendra Kumar Jain, J.-This appeal is directed against the Judgment and Order dated 24.03.2000 passed by the Sessions Judge, Tonk, in Sessions Case No. 68/1998 whereby the accused appellant was convicted under Section 8/18 of the NDPS Act, 1985 and sentenced to undergo ten years rigorous imprisonment and fine of Rs. 1,00,000/-; in default of payment of fine, to further undergo two years imprisonment. 2.The Central Narcotics Bureau filed a complaint through Shri D.P. Bhatnagar, Inspector in the office of Narcotics Department at Kota, against the accused appellant that under the leadership of PW 2 K.L. Sharma a raid was organized and Bus No. RJ 14 P 4384 was stopped on the instructions of Shri S.P.S. Sabbarwal, Inspector (PW 4). On checking they saw the accused sitting in a suspicious condition, therefore, a notice was given to him under Section 50, of the NDPS act, 1985 apprising him about his right to get himself searched either before Magistrate or before independent Gazetted Officer. He gave his consent for his search in presence of Gazetted Officer of the Department itself . On search the contraband opium weighing 3.90 kg. was recovered from his custody which was seized vide a recovery memo Exhibit P-2. Two samples of 24 gram each were taken which were sent for analysis. As per analysis report dated 07.09.1998 the sample was found by qualitative and quantitative analysis to be opium within the meaning of NDPS Act, 1985. 3.The learned trial Court framed charge against the accused appellant under Section 8/18 of the NDPS Act, 1985. The accused denied the charge and claimed to be tried. In support of the case the prosecution examined five witnesses and produced documentary evidence Exhibit P-1 to Exhibit P-13. Thereafter the statement of accused was recorded, under Section 313, CrPC wherein he stated that he has falsely been implicated in the case. No evidence was produced in defence. The learned trial Court, after considering the submission of both the parties, convicted and sentenced the accused appellant as mentioned above. Aggrieved with the same the present appeal has been preferred. 4.The learned Counsel for the accused appellant contended that the contraband was recovered on 14.08.1998 at about 10.00 PM and the same was sealed. The learned trial Court, after considering the submission of both the parties, convicted and sentenced the accused appellant as mentioned above. Aggrieved with the same the present appeal has been preferred. 4.The learned Counsel for the accused appellant contended that the contraband was recovered on 14.08.1998 at about 10.00 PM and the same was sealed. The samples were also sealed but from the prosecution evidence it does not appear as to where the contraband as well as the samples were deposited/kept till samples sent to the public analyst on 16.08.1998. He contended that even seal used in the case was not sealed and the same was not handed over to any independent witness. It was a duty of the concerned Inspector to deposit the contraband either in the office of Narcotics Department or at police station. The copy of register or property has not been placed on the record nor any receipt of independent witness or police station has been placed on the record, therefore, the important link evidence is missing in the present case. He further contended that PW 1 Raja Babu was only an independent witness in the present case but he did not support the prosecution case. The other witnesses were only interested witnesses and in view of number of contradictions in their statements as pointed out during the course of arguments, their testimony is liable to be discarded. 5.The learned Counsel for the accused appellant lastly contended that although in view of his above submissions. it is clear that the prosecution has failed to prove the case beyond reasonable doubt against the accused appellant and he is entitled to be acquitted but even if this Court does not agree with the submissions then the sentence of ten years imprisonment awarded by the trial Court in the case may be reduced to a period of 7 years 6 months already undergone by the appellant upto now. 6.The learned Standing Counsel for the Department contended that there is sufficient evidence available on the record to connect the accused with the crime and he has rightly been convicted by the learned trial Court. He referred Exhibit P-11 the statement of the accused recorded by PW 4 SPS Sabbarwal under Section 67, of the NDPS Act, 1985 and contended that this statement is sufficient to convict the accused appellant. He referred Exhibit P-11 the statement of the accused recorded by PW 4 SPS Sabbarwal under Section 67, of the NDPS Act, 1985 and contended that this statement is sufficient to convict the accused appellant. 7.I have considered the rival submissions and examined the impugned Judgment as well as the record of the trial Court. 8.As per the prosecution case the accused appellant was travelling on 14.08.1998 from Bundi to Jaipur and the bus in which he was travelling was checked by Inspectors of the Narcotics Department who suspected the accused and after giving him notice under Section 50, of the NDPS Act, 1985 the contraband was recovered from his possession. PW-4 S.P.S. Sabbarwal, Inspector, admitted in his statement that there were about 25 to 30 passengers in the bus but they did not make any request to any passenger to become independent witness in the case. Two persons, namely, Raja Babu Sharma and Ashok Kumar were requested to become witness to the search and seizure, Raja Babu Sharma, who was the Conductor in the bus, would have been treated as an independent witness but he did not support the prosecution case during trial. He categorically stated that no contraband was recovered in his presence; although he admitted his signature on Exhibit P-1 and Exhibit P-2 but he stated that his signatures were taken by the Inspectors on the blank papers. In his cross-examination on behalf of the department, he further denied that any opium was recovered from the possession of the accused. 9.Another independent witness Ashok Kumar Sharma was not examined in the case on behalf of the prosecution, therefore, it is clear that from the statements of the independent witnesses, recovery of contraband is not proved in the case from the possession of the accused. After scrutiny of evidence, recovery of contraband is not proved in the case from the possession of the accused. After scrutiny of evidence, I further find that soon after recovery of the contraband the seized contraband as well as the samples ought to have been deposited with the in-charge of property of the Department after taking receipt thereof but no such receipt has been placed on the record by the department. It appears that the seal, which was used in the case, was not sealed and the same was not handed over to an independent person. It appears that the seal, which was used in the case, was not sealed and the same was not handed over to an independent person. As per Section 51, of the NDPS Act, 1985 the provisions of CrPC are applicable in respect of search and seizure. As per Sub-section (4) of Section 100, CrPC it was a duty of the searching officer to call upon two independent witnesses but no independent witness was called in the present case except the conductor of the bus. PW 4 S.P.S. Sabbarwal has admitted in his statement that there were 25 to 30 passengers in the bus they did not call to any one. Sub-section (6) of Section 100, of the CrPC provides that the occupant of the place searched, or some person in his behalf , shall, in every instance, be permitted to attend during the search, and a copy of the list prepared under this section signed by the said witnesses, shall be delivered to such occupant or person. The learned standing Counsel does not dispute that there is no documentary evidence available on record to prove that seal, which was used in preparing seizure memo etc., was sealed and it was given to any independent person. The seal used during seizure was not produced in the Court at the time of examination of the prosecution witnesses. The contraband article was also not produced before the Court. From the statement of PW 2 K.L. Sharma, PW 4 SPS Sabbarwal and PW 5 DP Bhatnagar, it is not proved that where the contraband was kept in safe custody during the period from 14 to 16.08.1998. The copy of register of property of the Department or of police station or receipt of an independent person has not been placed on the record to prove that seized article and seale seal were kept in safe custody. 10.So far as the statement of accused recorded under Section 67, of the NDPS Act, 1985 (Exhibit P-11) is concerned, I find that no time has been mentioned on it, therefore, it cannot be presumed that it was recorded before his arrest. 10.So far as the statement of accused recorded under Section 67, of the NDPS Act, 1985 (Exhibit P-11) is concerned, I find that no time has been mentioned on it, therefore, it cannot be presumed that it was recorded before his arrest. From the statements of PW 4 SPS Sabbarwal and PW 5 DP Bhatnagar, it appears that accused was taken into custody immediately after recovery of the contraband and no statement was recorded before it, therefore, it is unsafe to rely upon Exhibit P-11 only, to convict the accused appellant. 11.From the above discussion it is clear that important link evidence in the present case is missing and the prosecution has failed to prove the case by producing complete chain of link evidence against the accused appellant beyond reasonable doubt, and the accused appellant is, therefore, entitled to get the benefit of it. 12.Consequently, I allow this appeal, set aside the impugned Judgment passed by the trial Court and acquit the accused appellant. The accused appellant is in jail, therefore, he may be released forthwith, if his custody is not required in any other case.