Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 694 (RAJ)

Ram Lal v. State of Rajasthan

2006-02-28

N.K.JAIN

body2006
Judgment N.K. Jain, J.-Since, both the appeals, on behalf of accused appellants, Ram Lal and Shyam Lal, arise out of the common Judgment , dated 07.02.2002, of the Special Judge (N.D.P.S. Cases), Jhalawar, in Sessions Case No. 18/2001, they are being disposed by this common Judgment . 2. The trial Court convicted and sentenced the accused appellants in the following manner:- Name of Accused Under Section Sentence Ram Lal8/18 of the NDPS Act To Four years R.I. and fine of Rs. 50,000/-; in default of payment of fine, to further undergo additional one year R.I. Shyam Lal 8/18 of the NDPS Act To Ten years RI and fine of Rs. 1,00,000/-; in default of payment of fine, to further undergo additional two years R.I. 3. The relevant facts, in brief , for disposal of these appeals are that PW. 9 Madan Lal, the SHO., Police Station Mishroli, received a secret information on 08.01.2001 from one informer that two persons standing behind the Veterinary Hospital, Mishroli, are keeping ready themselves to sale contraband. The information, Exhibit P-15, was reduced in writing, and it was sent to the superior officer i.e., Superintendent of Police, Jhalawar, vide Exhibit P-16. Thereafter he went at the spot and found the accused persons; they tried to fled but he stopped them and asked their names. One person disclosed his name as Ram Lal and another as Shyam Lal. Thereafter vide memo Exhibit P-1, he directed Constable Daulat Ram to bring two local inhabitants to witness the search and seizure. Daulat Ram came back and intimated him that no inhabitant is willing to witness the search and seizure against accused persons. On this Madan Lal (PW. 9) directed Constables Parmanand and Mohan Lal to witness the search and seizure. Thereafter, he called the Circle Officer (PW. 8) and accused Shyam Lal was searched by Constable Parmanand and another accused Ram Lal by Constable Mohan Lal, in the presence of the PW. 9 Madan Lal and PW. 8 Circle Officer. The contraband opium weighing 3 kg. was recovered from the possession of accused Shyam Lal and 1 kg. 200 grams from accused Ram Lal. Two samples of 30 gram each were taken from both the packets of contrabands and remaining contraband opium packets were sealed separately. The accused persons were arrested. Vide Exhibit P-11, both the samples were sent to Forensic Science Laboratory (for short, FSL). was recovered from the possession of accused Shyam Lal and 1 kg. 200 grams from accused Ram Lal. Two samples of 30 gram each were taken from both the packets of contrabands and remaining contraband opium packets were sealed separately. The accused persons were arrested. Vide Exhibit P-11, both the samples were sent to Forensic Science Laboratory (for short, FSL). The FSL report (Exhibit P-14) was received. After completion of investigation the prosecution filed a charge-sheet against both the accused persons Shyam Lal and Ram Lal. 4. The trial Court framed charge against both the accused persons under Section 8/18 of the NDPS Act, 1985 (for short, the Act). The accused persons denied the charge and claimed to be tried. In support of its case, the prosecution examined nine witnesses and also produced documentary evidence Exhibit P-1 to P-17. Thereafter, statements of accused persons were recorded under Section 313 of the Code of Criminal Procedure. In defence, the accused appellants did not produce any oral evidence but only one document Exhibit D-1was produced. The trial Court, after hearing both the parties, convicted and sentenced the accused appellants, as indicated above, under the impugned Judgment . Being aggrieved with the same, the accused persons filed two separate appeals, as stated above. 5. The learned Counsel for the accused appellants contended that in the present case the search was made by Constables Parmanand (PW. 2) and Mohan Lal (PW. 3), who were not authorized to do so as per Section 42 of the Act, therefore, this is a case of violation of the provisions of Sections 42 and 50 of the Act. He further contended that independent and respectable inhabitants of the concerned locality were not called by recovery officer to witness the search and seizure. PW. 2 Parmanand and PW. 3 Mohan Lal were made witnesses to search but both were Constables subordinate to the Investigating Officer Madan Lal (PW. 9). No efforts were made by PW. 9 Madan Lal, the SHO., to bring impendent witnesses in the matter. It has been further contended that the seal used while preparing the recovery memo of the contrabands was not sealed separately and handed over to independent person. The said seal used was not sent alongwith the samples for chemical examination to the FSL, therefore, the said samples could not be tallied by the FSL. It has been further contended that the seal used while preparing the recovery memo of the contrabands was not sealed separately and handed over to independent person. The said seal used was not sent alongwith the samples for chemical examination to the FSL, therefore, the said samples could not be tallied by the FSL. He further contended that from the recovery memo, Exhibit P-4, it is clear that the samples of contrabands weighing 30 gram each, were taken from the packets of contrabands recovered from both the accused persons whereas the FSL report, Exhibit P-14, shows that one sample marked A-1 received in the FSL was weighing 26.435 gram and another sample was weighing 28.427 gram. The weights of samples sent to FSL were not corroborated with the weigh of samples taken from the contrabands recovered from the accused appellants and, therefore, in view of variance of weigh in samples sealed in presence of accused and witnesses and samples sent to FSL, it cannot be said that the same samples were sent for chemical examination to the FSL. 6. Learned Counsel for the accused appellants lastly contended that although in view of his aforesaid submissions the accused appellants are entitled to get the benefit of doubt, but if this Court does not agree with his submissions then at-least, in view of the fact that large quantity of contraband was not recovered in the case, their cases for reduction of sentence of imprisonment to the period of imprisonment already undergone by them, may be considered. The accused appellants were arrested on 08.01.2001. Five years and one-and-half month period has already expired from their arrest. The accused Ram Lal, who was awarded sentence of four years rigorous imprisonment and fine of Rs. 50,000/-; in default of payment of fine, to further undergo additional one years rigorous imprisonment, has already completed his substantive sentence of imprisonment as well as imprisonment in lieu of default of payment of fine, and might have been released, whereas accused Shyam Lal is in judicial custody and has already undergone the sentence of imprisonment for about five years and one-and-half months. In the submission of the learned Counsel for the accused appellants, the ends of justice will be met if the sentence of imprisonment of accused appellant Shyam Lal is reduced to the period of sentence of imprisonment already undergone by him. 7. In the submission of the learned Counsel for the accused appellants, the ends of justice will be met if the sentence of imprisonment of accused appellant Shyam Lal is reduced to the period of sentence of imprisonment already undergone by him. 7. Learned Public Prosecutor, on the other hand, contended that the learned trial Court has rightly convicted and sentenced the accused appellants. There was sufficient evidence available on the record to connect both the accused persons to the crime, therefore, he prayed that both the appeals may be dismissed and the sentence awarded by the learned trial Court may be maintained. 8. I have considered the rival submissions, examined the Judgment , impugned in these appeals, and record of the trial Court. 9. From the record of the trial Court I find that PW. 9 Madan Lal, SHO, received a secret information of possessing opium by the accused appellants and thereafter, he proceeded to recover the contrabands thereform. PW. 9 Madan Lal, the S.H.O., vide Exhibit P-1 directed PW. 1 Daulat Ram to bring two inpendent and respectable inhabitants of the concerned locality, to attend and witness the search and seizure. Exhibit P-1 was issued on 08.01.2001 at 8.55 PM. PW. 1 Daulat Ram gave his report on the same day at about 9.05 PM to the effect that he went to concerned locality to bring two independent witnesses but no one was willing to be a witness to the search against these smugglers. Thereafter, the S.H.O. Madan Lal (PW. 9) did not make any effort in this regard and directed his own subordinate Constables Parmanand (PW. 2) and Mohan Lal (PW. 3) to attend and witness the search and seizure. Daulat Ram was examined in the case as PW. 1 and he, in his cross-examination, admitted that he could not remember the names of persons to whom he requested to attend and witness the search and seizure. He admitted that the place, in dispute, was a very crowded area and number of houses and shops were situated there. He further admitted that he did not request any person of the locality to become witness to search and seizure in the present case. The relevant line of his statement is reproduced as under:- “Aas Paas Ke Rahane Waale Vyaktiyon Se Gawaha Banane Ke Liye Nahi Kaha Tha.” .10. Document Exhibit P-1 shows that PW. He further admitted that he did not request any person of the locality to become witness to search and seizure in the present case. The relevant line of his statement is reproduced as under:- “Aas Paas Ke Rahane Waale Vyaktiyon Se Gawaha Banane Ke Liye Nahi Kaha Tha.” .10. Document Exhibit P-1 shows that PW. 9 Madan Lal, the S.H.O., wrote a letter to Daulat Ram (PW. 1) at 8.55 PM to bring two independent and respectable inhabitants of the concerned locality or any other locality to attend and witness the search and seizure, and Daulat Ram (PW. 1) gave his report at 9.05 PM of his failure to bring the inhabitants to attend and witness the search and seizure, .meaning there by the report was given within ten minutes and from this fact itself it is clear that Daulat Ram (PW. 1) did not make any effort to bring independent witnesses in the matter and his report given at 9.05 PM itself does not inspire confidence of the Court. The report of PW. 1 Daulat Ram made on Exhibit P-1 further shows that he has not mentioned name of a single person to whom he requested to become witness to the search and seizure in the matter and who refused him to do so. Exhibit P-1 further shows that after receipt of the report by Daulat Ram (PW. 1) at 9.05 PM, PW. 9 Madan Lal, the S.H.O., did not make any effort to issue an order in writing to any local inhabitant or person to attend and witness the search and seizure. In view of the above factual background of the present case I find that this is a case of violation of mandatory provisions of Section 50 of the Act. .11. The Honble Supreme Court in State of Punjab vs. Balbir Singh, AIR 1994 SC 1872 has considered the provisions of Section 50 of the Act and therein their Lordships of the Honble Supreme Court held, that the provisions of Section50 of the Act are mandatory in nature. The violation of Section 50 of the Act read with Section 100 of the CrPC, is apparent. The violation of Section 50 of the Act read with Section 100 of the CrPC, is apparent. For ready reference, Sub-Section (5) of Section 50 of the Act is reproduced as under:- .“(5) When an offence duly authorised under Section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under Section 100 of the Code of Criminal Procedure, 1973” 12. In view of the above provisions of Sub-section (5) of Section 50 of the Act, it was necessary for PW. 9 Madan Lal, the S.H.O, to proceed to search the accused in accordance with the provisions of Section 100 of the Code of Criminal Procedure, 1973. 13. For ready reference, Sub-sections (4) and (8) of Section 100 of the CrPC, are reproduced are reproduced as under:-“(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do. (8) Any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code (45 of 1860)” 14. A bare perusal of above referred provisions clearly show that it was the duty of PW. 9 Madan Lal, the SHO., to call upon two or more independent and respectable inhabitants of the locality before making a search to attend and witness the search and required to issue an order in writing to them or any of them so to do. From Exhibit P-1 it is clear that PW. 9 Madan Lal, the SHO., to call upon two or more independent and respectable inhabitants of the locality before making a search to attend and witness the search and required to issue an order in writing to them or any of them so to do. From Exhibit P-1 it is clear that PW. 9 Madan Lal, the S.H.O., did not call upon any independent and respectable inhabitant of the locality in which the place to be searched is situate or of any other locality, if no such inhabitant of the said locality was available or was willing to be a witness to the search. Exhibit P-1 shows that PW. 9 Madan Lal, the S.H.O., directed PW. 1 Daulat Ram to bring two independent witnesses at 8.55 PM and PW. 1 Daulat Ram reported on the same order i.e., Exhibit P-1 at 9.05 PM, within ten minutes itself that no one is willing to become witness against these smugglers; thereafter no efforts were made in this regard by PW. 9 Madan Lal, the S.H.O. No order in writing was issued to any person of the locality. The prosecution witnesses clearly admitted that it was a crowded area where search was made and not only houses but shops were also situated. The time was only 8.55 PM and it cannot be said that no one was available there. The S.H..O., for the reasons best known to him, did not consider it fit and proper to issue an order in writing to any inhabitant of the locality or any other locality to show that he made sincere efforts in this regard. If he would have issued an order in writing to any inhabitant of the locality or any other locality then the said inhabitant would not have refused or neglected to attend and witness the search. There is specific provision in Sub-section (8) of Section 100 of the CrPC, that in case any person who, without reasonable cause, refuses or neglects to attend and witness a search under this section, when called upon to do so by an order in writing, delivered or tendered to him, shall be deemed to have committed an offence under Section 187 of the Indian Penal Code. 15. In view of the above discussions it cannot be said that there was any independent local witness to the search and seizure in the present case. PW . 15. In view of the above discussions it cannot be said that there was any independent local witness to the search and seizure in the present case. PW . 2 Parmanand and PW . 3 Mohan Lal, both, were the Constables subordinate to PW . 9 Madan Lal, the S.H.O., and they cannot be said to be independent witnesses, therefore, it cannot be said that the provisions of Section 50 of the Act read with Section 100 of the CrPC were complied with in the present case. In these circumstances the recovery of the contrabands in the present case cannot be said to be proved beyond reasonable doubt and the accused persons are entitled to get the benefit of doubt. This point has been considered by me in detail in the case of Abid Khan vs. The State of Rajasthan, S.B. Criminal Appeal No. 722/2000 decided on 31.01.2006 and in that case I also considered the Judgment s of this Court in Nadeem vs. State of Rajasthan, 1998 CrLR 392 (Raj.) and Saudan & Anr. vs. State of Rajasthan, 2003 (1) RCC 501. This Court in Saudans case (Supra), also considered the Judgment of the Honble Supreme Court in State of Punjab vs. Balbir Singh (Supra). 16. In view of the above discussions, I am of the view that the recovery of contrabands in the present case cannot be said to be proved from all reasonable doubts and the accused persons are entitled to get the benefit thereof . 17. Since, both the appeals deserves acceptance only on the point stated above, I do not intend to deal with other submissions of the learned Counsel for the accused appellants. 18. Consequently both the appeals are allowed. The Judgment , dated 07.02.2002, impugned in both the appeals, of the learned Special Judge, NDPS Cases, Jhalwar, in Sessions Case No. 18/2001, is set aside. Both the appellants are acquitted. Accused Shyam Lal is in judicial custody. Accordingly I direct that accused Ram Lal, if already not released, and Shyam Lal, both be set at liberty forthwith, if their custody is not required in any other case.