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Rajasthan High Court · body

2006 DIGILAW 529 (RAJ)

Panna v. State of Rajasthan

2006-02-15

H.R.PANWAR

body2006
Judgment H.R. Panwar, J.- This criminal appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (for short, “the Code” hereinafter) is directed against the Judgment and order dated 14.02.2003 passed by the Special Judge, NDPS Cases, Chittorgarh (for short, “the trial Court” hereinafter) in Sessions Case No. 1/2001, whereby the trial Court convicted the appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, “the NDPS Act” hereinafter) and sentenced him to undergo ten years rigorous imprisonment and a fine of Rs. 1,00,000/-in default of payment of fine further to undergo three months rigorous imprisonment. Aggrieved by the Judgment and order impugned, the appellant has filed the instant appeal. 2. Briefly stated, the facts of the case, to the extent they are relevant and necessary for the decision of this appeal, are that PW. 12 Ganpat Singh, Station House Officer, Police Station, Begun, district Chittorgarh, received a secret information that two persons are coming from Meghniwas to Balwantnagar-Ladpura on a Kaccha way having opium with them. The information was found to be reliable and reduced to writing. After recording the information in the Roznamcha as envisaged under Section 42 (2) of the NDPS Act, the same was sent to the higher officer. He, alongwith other police officials, went to the place disclosed in the secret information, held the Nakabandi and noticed that two persons were coming from Meghniwas, who were surrounded by the police officials. On being inquired, they disclosed their names as appellant Panna and co-accused Pratap. They were served with a notice under Section 50 of the NDPS Act. The appellant had a bag in his hand. On search, the bag was found containing 4 kgs of opium. Two samples of 30 grams each were taken. The samples and the remaining opium were sealed on the spot. The appellant was apprised of the case against him and arrested. After usual investigation, the police filed Challan against the appellant and co-accused Pratap. The prosecution adduced evidence by producing as many as 12 witnesses and the documents Annexure P-1 to Annexure P-23. The appellant made statement under Section 313 of the Code and denied the allegation. So also, co-accused Pratap made statement under Section 313 of the Code and denied the allegation. However, no evidence was led in defence. The prosecution adduced evidence by producing as many as 12 witnesses and the documents Annexure P-1 to Annexure P-23. The appellant made statement under Section 313 of the Code and denied the allegation. So also, co-accused Pratap made statement under Section 313 of the Code and denied the allegation. However, no evidence was led in defence. The trial Court, on appreciation of the evidence produced by the prosecution, came to the conclusion that the prosecution has been able to establish the case against the appellant and co-accused Pratap beyond reasonable doubt and convicted and sentenced the appellant as noticed above. So far as co-accused Pratap is concerned, he was convicted for the offence under Section 8/18 of the NDPS Act, however, keeping in view the quantity of contraband opium recovered from him i.e., one kilogram, the trial Court took a lenient view and awarded him the sentence of the period of imprisonment already undergone by him, i.e., one year 4 months and 8 days with a fine of Rs. 500/-. 3. I have heard learned Counsel for the appellant and the Public Prosecutor for the State. Carefully gone through the impugned Judgment and order as also the record of the trial Court. 4. It is contended by the learned Counsel for the appellant that in the Malkhana Register wherefrom the samples were taken to the office of the Superintendent of Police for onward transmission to the State Forensic Science Laboratory, there is no signature of any person who carried the samples. According to the learned Counsel, PW. 7 Bheru Lal carried the samples from the Malkhana to the Office of the Superintendent of Police and after getting the forwarding letter prepared from the Office of the Superintendent of Police, to the State Forensic Science Laboratory, Jaipur. On these premises, learned Counsel submits that there is missing link evidence. It has further been contended that the memo of specimen seal was not sent to the FSL with the sample and, therefore, the conviction of the appellant vitiates. It was further submitted that the recovery of the opium is doubtful on the ground that it was effected in the night and according to the statement of PW. 5 Shamsher Khan, at the place of effecting the search and seizure, there was no light and, therefore, it cannot be said that the contraband opium was seized from the present appellant. 5 Shamsher Khan, at the place of effecting the search and seizure, there was no light and, therefore, it cannot be said that the contraband opium was seized from the present appellant. Learned Counsel further submits that in the seizure memo, it has not been mentioned that the search and seizure were carried out in the light of torch and the headlights of the jeep, therefore, there being dark at the place where the alleged seizure was made, in the dark the search and seizure cannot be possible. According to the learned Counsel, the entire proceedings have been drawn at the police station. He further made an attempt to contend that one of the prosecution witnesses stated that the search and seizure took about 3 ½ hours whereas one prosecution witness has stated that the entire proceedings were completed within one hour. Thus, according to the learned Counsel, this contradictory statement demolishes the prosecution case. 5. Learned Public Prosecutor appearing for the State has supported the impugned Judgment and order and contended that the secret information was received by PW. 12 Ganpat Singh in respect of the appellant and co-accused Pratap that they were carrying contraband opium, which was recorded in the Roznamcha by reducing to writing. The information was reliable. It was conveyed to the higher officer. Therefore, the provisions of Section 42(2) of the NDPS Act have been complied with. Though a notice under Section 50 of the NDPS Act was not required for the reason that the opium was not recovered from the personal search of the appellant but from the bag which the appellant was having in his hand, still a notice under Section 50 of the NDPS Act was served on the appellant. Learned Public Prosecutor further submits that there is consistent evidence right from the search and seizure that the contraband recovered from the appellant and the samples were sealed on the spot and the seals thereon remained intact till the sample reached the FSL. Learned Public Prosecutor contended that the specimen seal was also sent alongwith the same to the FSL, which is evident from the report of the Chemical Analyst, Jaipur dated 012.2001, wherein it has been clearly mentioned that the samples sent were properly sealed bearing impression which tallies with the specimen seal forwarded and the seals remained intact. Learned Public Prosecutor contended that the specimen seal was also sent alongwith the same to the FSL, which is evident from the report of the Chemical Analyst, Jaipur dated 012.2001, wherein it has been clearly mentioned that the samples sent were properly sealed bearing impression which tallies with the specimen seal forwarded and the seals remained intact. According to the learned Public Prosecutor, the FSL report Exhibit P-23 is admissible in evidence under Section 294 of the Code and has not been challenged by the appellant during trial of the case. Thus, according to the learned Public Prosecutor, the prosecution has fully proved the case against the appellant beyond reasonable doubt. 6. I have given my thoughtful consideration to the rival submissions made by the learned Counsel for the parties. 7. PW. 12 Ganpat Singh is the seizure officer, who, at the relevant time, was posted as the Station House Officer, Police Station, Begun. He stated that on 010.2000, he was the Station House Officer, Police Station, Begun. He received a secret information at 12:05 AM vide Exhibit P-4 that two persons are coming from village Meghniwas and going towards Balwantnagar Ladpura on Kaccha way. The information was found to be reliable and it was reducing to writing in the Roznamcha vide Exhibit P-4, which was sent to the higher officer i.e., the Deputy Superintendent of Police alongwith PW. 10 Manna Lal Constable vide Exhibit P-13A, which was received by the higher officer on 010.2000 at 12:20 AM. Thereafter he, alongwith other police officials, went to the place disclosed in the secret information near the bus stand. From the bus stand, two Motbirs PW. 1 Ratan Lal and PW. 2 Om Prakash were contacted; they were given the notice to become the Motbirs and both of them gave consent to become Motbirs vide Ex. P/1 and Ex. P/11 respectively. Alongwith the Motbirs, he went on the Kaccha way and held the Nakabandi. At about 2:00 AM in the night, as disclosed by the secret information, two persons came. They were surrounded by him and the other police officials. On asking, one of those persons disclosed his name as appellant Panna and the other as co-accused Pratap. P/11 respectively. Alongwith the Motbirs, he went on the Kaccha way and held the Nakabandi. At about 2:00 AM in the night, as disclosed by the secret information, two persons came. They were surrounded by him and the other police officials. On asking, one of those persons disclosed his name as appellant Panna and the other as co-accused Pratap. He gave his introduction and thereafter notices under Section 50 of the NDPS Act were served on the appellant and co-accused Pratap apprising them of their right to be searched in the presence of a Magistrate, gazetted officer or himself vide notice Exhibit P-2 and Exhibit P-3 respectively. Both consented that their search, including the search of the bags they were carried in their respective hands, be carried out by PW. 12 Ganpat Singh, the Circle Inspector. Thereafter the search was carried out. On being searched, the appellant was found having a bag in his hand containing opium weighing 4 kgs. Two samples of 30 grams each were taken. The samples and the remaining opium were sealed on the spot and the sample was marked as “A.1”, the controlled sample as “A.2”. The remaining opium as mark “A”. The remaining opium 3.940 kg was separately sealed and marked as “A”. On being asked, the appellant failed to show any licence or permit to possess and carry the contraband opium. The appellant was apprised of the ground on which he was sought to be arrested. The appellant was arrested vide Exhibit P-7. The specimen seal was prepared on the spot vide Exhibit P-5. Thereafter Parcha-Crime Exhibit P-17 was prepared and registered at the police station on reaching there. He has proved the Chak FIR Exhibit P-18. He deposited the contraband opium seized and the samples with PW. 8 Narsingh Lal, the Malkhana in-charge, vide Exhibit P-14. Thereafter the investigation was handed over to PW. 11 Sita Ram, Sub-Inspector. A detailed report in compliance of Section 57 of the NDPS Act was sent to the Deputy Superintendent of Police vide Exhibit P-19. The samples were sent for chemical analysis through PW. 8 Narsingh Lal, the Malkhana in-charge, vide Exhibit P-14. Thereafter the investigation was handed over to PW. 11 Sita Ram, Sub-Inspector. A detailed report in compliance of Section 57 of the NDPS Act was sent to the Deputy Superintendent of Police vide Exhibit P-19. The samples were sent for chemical analysis through PW. 7 Bheru Lal on 110.2000 to the Office of the Superintendent of Police for getting the forwarding letter prepared vide Exhibit P-20; however the samples were not sent to the FSL as the concerned clerk in the Office of the Superintendent of Police was not available and the samples was brought back and deposited in the Malkhana. The samples were again taken by PW. 7 Bheru Lal on 20.10.2000 and deposited in the FSL on 210.2000. He has proved the specimen seal memo Exhibit P-21. He has also proved Article 2 the controlled sample marked A-2, Article 3 the opium marked A, Article 4 the sample marked B which came after chemical examination by the FSL. He has also proved the Articles 6 marked B the Roznamcha Exhibit P-22. 8. PW.1 Ratan Lal and PW. 2 Om Prakash, the Motbir witnesses, have not supported the prosecution case. 9. PW. 5 Shamsher Khan and PW. 6 Prahlad Singh are the members of the raiding party who accompanied PW. 12 Ganpat Singh for conducting the Nakabandi. Both these witnesses made the statements similar to that of PW. 12 Ganpat Singh. PW. 5 Shamsheer Khan and PW. 6 Prahlad Singh have stated that on 010.2000, at about 12:00 AM, PW 12 Ganpat Singh received a secret information, which was reduced to writing vide Exhibit P-13. Thereafter they accompanied PW. 12 to the place disclosed in the secret information. From the bus stand, two Motbirs PW. 1 Ratan Lal and PW. 2 Om Prakash were taken and they were served with a notice to become the Motbris, on which they gave their consent. At 2:00 AM in the night, two persons were seen coming. They were surrounded by them. On being inquired, they disclosed their names as appellant Panna and co-accused Pratap. Notices under Section 50 of NDPS Act were served on them. They exercised their option to be searched by the SHO PW. 12 Ganpat Singh. At 2:00 AM in the night, two persons were seen coming. They were surrounded by them. On being inquired, they disclosed their names as appellant Panna and co-accused Pratap. Notices under Section 50 of NDPS Act were served on them. They exercised their option to be searched by the SHO PW. 12 Ganpat Singh. On search, 4 kgs opium was recovered from the bag carried by the appellant in his hand and 1 kg opium was recovered from the bag carried by co-accused Pratap. Two samples of 30 grams each were taken from each of the bags carried by the appellant and the co-accused. The samples and the remaining contraband opiums were sealed on the spot. These witnesses have proved the various memos which PW. 12 Ganpat Singh has proved as these witnesses were also the signatories to those memos. In the cross-examination, a question was put to PW. 5 Shamsher Khan that it was a night and there was dark and there was no source of light. In cross-examionation, PW. 6 Prahlad Singh has stated that at the place of the occurrence, they stayed for an hour and thereafter the Furds were prepared on the spot; however, the case was registered at the police station. 10. PW. 7 Bheru Lal is the person who took the samples to the FSL and stated that on 20.10.2000, he took the samples from the Malkhana to the Office of the Superintendent of Police, got the forwarding letter prepared and thereafter on 210.2000, deposited the samples with the FSL at Jaipur. He categorically stated that the seals on the samples remained intact right from taking the same from the Malkhana till they reached the FSL. He has proved the receipt Exhibit P-15, by which the samples were deposited with the FSL and the forwarding letter Exhibit P-16. In cross-examination, he also stated that it is correct that he received the samples from H.M. on 17th and the same were deposited to Malkhana on the same day. He further stated that on 110.2000, he did not give the samples of this case. 11. PW. 8 Narsingh Lal is the Malkhana Incharge, who stated that on 010.2000 at 5:00 AM, PW. He further stated that on 110.2000, he did not give the samples of this case. 11. PW. 8 Narsingh Lal is the Malkhana Incharge, who stated that on 010.2000 at 5:00 AM, PW. 12 Ganpat Singh deposited the contraband relating to Case No. 547 i.e., the opium packet marked “A”, two samples marked “A.1” and “A. 2” and the opium marked B, B1 and B2 in the sealed-chit condition which were deposited in the Malkhana on 110.2000. The samples marked A1 and B1 were given to PW. 7 Bheru Lal for getting the forwarding letter prepared from the Office of the Superintendent of Police. The concerned clerk at the Office of the Superintendent of Police was out of the station on duty, therefore, in the evening, PW. 7 Bheru Lal brought the samples back and the same again remained in the Malkhana. He handed over the samples to PW. 7 Bheru Lal having the seals intact thereon and when they were brought back, the seals thereon were intact. Again on 20.10.2000, he gave the samples A1 and B1 in the sealed-chit condition to PW. 7 Bheru Lal, who deposited the samples with the FSL and came back on 210.2000. He has proved the Malkhana Register Exhibit D-3A and Exhibit P-14 a Furd prepared in compliance of Section 57 of the NDPS Act. In cross-examination, he stated that the constable came back from the Office of the Superintendent of Police without there being any forwarding letter and orally informed him and thereafter the samples were deposited in the Malkhana again. Thereafter again the samples were sent to the Office of the Superintendent of Police for onward transmission to the FSL. On earlier occasion, the concerned clerk in the Office of the Superintendent of Police was on leave. He has proved that the seals on the sample throughout remained intact. He categorically denied that there was any objection from the Office of the Superintendent of Police regarding improper sealing of the samples. He categorically stated that both the times, the samples were taken by PW. 7 Bheru Lal. 12. PW. 9 Shrawan Kumar is the official in the Office of the Superintendent of Police dealing with the samples to be forwarded to the FSL. He specifically stated that on 20.10.2000, he was Sub-Inspector of Police (Reader). PW. 7 Bheru Lal brought the samples relating to Case No. 547/2000. 7 Bheru Lal. 12. PW. 9 Shrawan Kumar is the official in the Office of the Superintendent of Police dealing with the samples to be forwarded to the FSL. He specifically stated that on 20.10.2000, he was Sub-Inspector of Police (Reader). PW. 7 Bheru Lal brought the samples relating to Case No. 547/2000. Both the samples were properly sealed. A forwarding letter was prepared vide Exhibit P-16. 13. PW. 10 Manna Lal is the person who carried the secret information to the Deputy Superintendent of Police vide Exhibit P-13A. PW. 11 Sita Ram is the person who conducted the subsequent investigation and filed the Challan. 14. The appellant made statement under Section 313 of the Code and simply denied the allegation. No plausible explanation showing his possession of the contraband opium was given by him. 15. On close scrutiny of the statements of the prosecution witnesses noticed above, it has been proved beyond reasonable doubt that a secret information was received by PW. 12 Ganpat Singh, which was recorded in the Roznamcha as required under Section 42(2) of the NDPS Act and it was forwarded to the higher officer i.e., the Deputy Superintendent of Police, the Circle Officer, Begun, who received the same. It has been proved from the statement of PW. 11 Manna Lal that he carried the information to the Deputy Superintendent of Police, the Circle Officer Begun. Though the contraband opium was recovered from the bag carried in the hand of the appellant and the provisions of Section 50 of the NDPS Act are not attracted as it was not a personal search of the appellant, yet a notice under Section 50 of the NDPS Act was served on the appellant and has been proved. The appellant was given option to be searched by the nearest Magistrate, a gazetted officer or the seizure officer and he exercised his option to be searched by the seizure officer PW. 12 Ganpat Singh. Section 52 of the NDPS Act has also been complied with as soon after search and seizure, the appellant was taken to the nearest police station i.e., Police Station, Begun. A detailed report, as envisaged under Section 57 of the NDPS Act was sent to the Superintendent of Police, Chittorgarh after arrest, seizure etc. On perusal of the Malkhana Register, it is more than clear that the samples were given to PW. 7 Bheru Lal. A detailed report, as envisaged under Section 57 of the NDPS Act was sent to the Superintendent of Police, Chittorgarh after arrest, seizure etc. On perusal of the Malkhana Register, it is more than clear that the samples were given to PW. 7 Bheru Lal. His name is mentioned therein. PW. 7 Bheru Lal, PW. 8 Narsingh Lal, the Malkhana Incharge and PW. 12 Ganpat Singh proved that it was PW. 7 Bheru Lal who took the samples from the Malkhana to the Office of the Superintendent of Police and thereafter to the FSL. All these witnesses stated that the seals on the samples till they reached the FSL, remained intact, which is also evident from the report of the FSL, Exhibit P-23 which clearly shows that the samples were properly sealed, bearing the impression which tally with the specimen seal impression forwarded and the seals on the samples were intact. This clearly shows that the specimen seal was forwarded to the FSL alongwith the sample, which tallied with the seals on the sample. In view of this unimpeachable evidence, the contention of the learned Counsel for the appellant that the memo of specimen seal was not sent to the FSL, is not acceptable. 16. So far as the recovery effect in the night is concerned, PW . 12 Ganpat Singh, the seizure officer, categorically stated that the search and seizure were made in the headlights of the jeep and torch which they had with them and, therefore, the search and seizure were effected in the headlights of the jeep and torch and it cannot be said that the search and seizure were not made from the appellant. The appellant was caught on the spot. Merely because it was a night, it cannot create any doubt in view of the unimpeachable evidence of the seizure officer PW . 12 Ganpat Singh. 17. So far as variance with regard to the time consumed at the place of search and seizure is concerned, it has absolutely no relevance and it cannot be said to be fatal if any witness says that it took one hour and the another witness says that it took three and half hours. The time taken in search and seizure is not material. What the question to be examined is whether the search and seizure have been proved as stated by the prosecution witnesses. The time taken in search and seizure is not material. What the question to be examined is whether the search and seizure have been proved as stated by the prosecution witnesses. In my view, there is consistent evidence in respect of search and seizure which creates no doubt. 18. On being chemically examined by the FSL, vide FSL report Exhibit P-23, the sample contained in each of the packets marked A1 and B1 gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 9.03% morphine in each. 19. Thus, on close scrutiny of the statements of the prosecution witnesses and the documentary evidence on record, I am of the opinion that the prosecution has proved the case against the appellant beyond reasonable doubt. There is absolutely no ground to say that the link evidence is missing. On the contrary, every chain of evidence has been proved by the prosecution by a reliable and convincing evidence. In the circumstances, therefore, the trial Court was justified in convicting and sentencing the appellant for the offence noticed above. I do not find any error in the Judgment and order impugned. 20. Consequently, the appeal fails and is hereby dismissed. The Judgment and order impugned dated 14.02.2003 passed by the Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 1/2001 convicting and sentencing the appellant for the offence under Section 8/18 of the NDPS Act is hereby affirmed.