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Rajasthan High Court · body

2010 DIGILAW 1558 (RAJ)

Ramavtar & Shambhulal v. State

2010-08-26

RAGHUVENDRA S.RATHORE

body2010
JUDGMENT Hon'ble RATHORE, J.—Both the appeals arises out of the judgment dated 24.1.2003 passed by the learned Single Judge, NDPS Cases, Gangapur City, District Sawai Madhopur and as such they are being decided by this common order. 2. These appeals have been filed by accused Ramavtar, Shambhulal and Mukesh against the judgment dated 24.1.2003 passed by the Special Judge, NDPS Cases, Gangapur City, District Sawai Madhopur in State Case No. 3/2003 (38/2001) whereby they have been convicted and sentenced as under: "(a) under Section 8/20 (b)(2-c) of the NDPS Act, 1985 and sentenced for 10 years R.I., and fine of Rs. One lac, in default of which to further undergo two years and six months R.I., (b) under Section 8/20(B) (2-a) of the Act, and sentenced for 6 months R.I. Both the sentences were ordered to run concurrently." 3. The case of the prosecution is that on 14.6.2001, at about 9.15 a.m., one Jainarain, Constable telephonically informed Police Station GRP, Gangapur City that while he was patrolling in Avadh Express Train, he found three suspicious persons in the General Coach. Further, he stated that he has a strong suspicion that the persons are in possession of narcotics substance. Therefore, he requested to take necessary action. The said information was recorded and the superior officers were informed accordingly. Thereafter, the police party with full preparation for investigation, reached the place, as informed by the Constable. The witnesses were called for conducting a search of the suspicious persons. Thereupon, search of all the three persons was conducted and it was found that accused Mukesh and Shambhoo were in possession of Charas in their bags. All the accused persons failed to produce any licence for possessing Charas. The total weight of Charas found in the bag was 1 kg. Further, contraband was found from the person of co-accused Mukesh and Shambhoo which weighed 5 grams each. The samples were taken and they were sealed. During search of Mukesh, 6 railway tickets from Sawai Madhopur to Bayana and from Bayana to Sawai Madhopur were also found in his pocket. The accused were then arrested and a case under Section 8/20 of the NDPS Act was registered. On conclusion of investigation, the police submitted a charge-sheet against the accused persons for he offences under Section8/20 of the NDPS Act. The accused were then arrested and a case under Section 8/20 of the NDPS Act was registered. On conclusion of investigation, the police submitted a charge-sheet against the accused persons for he offences under Section8/20 of the NDPS Act. On the case having been committed, the learned trial Court framed charges against the accused persons for the aforesaid offences which they had denied and claimed for trial. The prosecution produced 9 witnesses and got exhibited 37 documents which were collected during the course of investigation. Subsequently, the statements of the accused persons were recorded under Section 313 Cr.P.C., wherein the accused persons denied the prosecution case. On conclusion of trial, the learned court below convicted and sentenced the accused persons as aforementioned. 4. The learned counsel for the accused appellants had raised a number of contentions so as to assail the impugned judgment passed by the trial Court. It was submitted that bare consideration of prosecution case goes to show that as if the search was already undertaken and it was known that the accused persons were carrying Charas. Thereafter the entire procedure under the Act, as for instance compliance of Section 42, 50 etc. had been undertaken. In this regard, the learned counsel for the appellants has referred to the Roznamcha (Ex.P/20), the information under Section 42 of the Act (Ex.P/21), information to the higher authorities under Section 42 (Ex.P/22), notice under Section 50 (Ex.P/11), etc. etc. He has also invited the attention of this Court to the statements of the prosecution witnesses Yashpal Singh, (PW/1), Jainarain (PW/4), Madan Pal Singh (PW/8), Prem Singh (PW/9) etc. to substantiate the aforesaid argument. Further, the learned counsel for the accused appellants has submitted that the prosecution has failed to prove the memorandum of information under Section 42 of the NDPS Act (Ex.21) and that it was also recorded in the Roznamcha (Ex.P/23). In this regard, it has also been submitted that the relevant witnesses Kanwar Singh and Sohan Pal have not been examined nor any receipt of the higher officials has been placed on record. He has also submitted that there is non-compliance of Section 50 of the NDPS Act, inasmuch as, no copy of the notice under the said provision has been recovered from the possession of the accused persons. It has been submitted that no separate notice under Section 50 was given to each of the accused-persons. He has also submitted that there is non-compliance of Section 50 of the NDPS Act, inasmuch as, no copy of the notice under the said provision has been recovered from the possession of the accused persons. It has been submitted that no separate notice under Section 50 was given to each of the accused-persons. Giving of joint notice, according to counsel for the appellants, is not a compliance of the relevant provisions of the Act. 5. The learned counsel for the appellants has also contended that though a Magistrate was available at Gangapur City, even then search and seizure was not made before him. He has submitted that when methods more than one are available for complying the statutory procedure, then the best amongst them should be adopted, by making search and seizure in presence of a Magistrate than a policy party. It has further been contended by the counsel for the accused appellants that the seal which was put on the samples of contraband had not been handed over to any independent person. On the contrary, the SHO Madan Pal Singh (PW/8) has admitted that the same remained with him. Even on the seizure memo sent to the higher officers (Ex.P/28), there is no sample of seal affixed on it. The counsel for the accused-appellants has further argued that the entire procedure adopted by the prosecution in respect of seizure and search as rather a formality because the same was done in the presence of Investigation Officer and under his directions. He has referred to the statements of Jainarain (PW/4). It has also been submitted that there had been gross irregularity in taking samples of the contraband because it was incumbent on the part of the Investigating Agency to have taken a separate sample from each of the packets of contraband. In the last, it has been submitted that though the case of he prosecution is that the contraband seized from the bag was in joint possession of all the accused persons, but the same has not been proved by it so as to connect all the accused with the commission f crime. the prosecution has only shown that some articles belonging to different accused persons were lying in the bag which is not sufficient to prove the fact that the contraband seized from the bag, was in joint and conscious possession of all the accused persons. the prosecution has only shown that some articles belonging to different accused persons were lying in the bag which is not sufficient to prove the fact that the contraband seized from the bag, was in joint and conscious possession of all the accused persons. In support of his aforesaid arguments, the learned counsel for the accused appellants has placed reliance on the cases of (1) Jagdish vs. State of Madhya Pradesh AIR 2002 SC 2540 , (2) Asha Ram & Anr. vs. State of Rajasthan 1993 Cr.L.R. (Raj.) 344, (3) Babu Ram vs. Union of India 2002 Cr.L.J. 1034, (4) Jaggan Nath vs. State of Rajasthan 1994 Cr.L.R. (Raj.) 709 = RLW 1994(2) Raj. 34; and (5) Ram Swaroop vs. State of Rajasthan 1996 Cr.L.J. 4059 = RLW 1996(2) Raj. 623. 6. On the other hand, the learned Public Prosecutor has supported the judgment passed by the learned trial Court and rebutted all the contentions raised by the learned counsel for the appellants. He has submitted that merely by saying that Charas of substance of intoxication was probably in possession of the accused persons does not mean that there was prior information of the fact that Charas was in possession of the accused persons. In common parlance, the term Charas is generally used so as to refer to a substance of intoxication. he has also submitted that merely use of the word Charas does not indicate conclusive about the substance, for which the police party was having a doubt, to be in possession of accused persons. he has also submitted that in the instant case, the recovery was in open for which compliance has to be made in accordance to Section 43 of the Act. It has been submitted that the contraband seized from the bag, belonging to all the three persons, was not a one from the person of an accused, so as to strictly comply with the provisions under Section 42 of the Act. In respect of giving of a separate notice under Section 50 of the act, the learned Public Prosecutor has submitted that the same was not at all necessary because the object is to convey to the accused orally about their rights and the method adopted in the instant case was a sufficient compliance. In respect of giving of a separate notice under Section 50 of the act, the learned Public Prosecutor has submitted that the same was not at all necessary because the object is to convey to the accused orally about their rights and the method adopted in the instant case was a sufficient compliance. Similarly, he has submitted hat the relevant provisions of the act is with the purpose to convey the rights and options to the accused in respect of search either by a Gazetted Officers/Senior Officers or by the SHO present. Once the accused was searched by the SHO, then availability of Senior Officer does not amount to any substantial irregularity in the procedure adopted by the prosecution. As regards the contention raised by the counsel for the appellants in respect of the seal having not been given to an independent person etc., the learned Public Prosecutor has submitted hat the seal which was put at the time of seizure was undisputably found to be intact till the sample was received by the laboratory. He has also submitted that there is a finding given by the learned trial Court that the seal on the sample was in the same condition and intact till it reached the FSL. Therefore, he has submitted that no illegality has been committed nor there can be any doubt on the case of the prosecution. The learned principle of law that even the officer who is making the search or seizure of a person can also investigate into the matter. 7. In respect of the contentions raised by the counsel for the accused appellants about the illegal possession of all the accused persons, the learned Public Prosecutor submitted that the principle of law is very clear with regard to possession / conscious possession of the contraband seized under the Act. Such matter is not to be looked from the point of view of physical possession alone. In support of his submissions, the learned Public Prosecutor has placed reliance on the cases of (1) State, NCT of Delhi vs. Malvinder Singh 2007 Cr.L.R. (SC) 504; (2) Narayanswamy Ravishankar vs. Asstt. Such matter is not to be looked from the point of view of physical possession alone. In support of his submissions, the learned Public Prosecutor has placed reliance on the cases of (1) State, NCT of Delhi vs. Malvinder Singh 2007 Cr.L.R. (SC) 504; (2) Narayanswamy Ravishankar vs. Asstt. Director, Directorate of Revenue Intelligence 2002 Cr.L.R. (SC) 892; (3) S. Jeevanntham vs. State through Inspector of Police, TN (2004) Cr.L.R. (SC) 717, (4) Megh Singh vs. State of Punjab AIR 2003 SC 3184 ; (5) Balbir Kaur vs. State of Punjab (2009) 15 SCC 795 ; and (6) Dalel Singh vs. State of Haryana (2010) 1 SCC 149 . The learned Public Prosecutor has, therefore, submitted that there is no substance in these appeals and the impugned judgment passed by the learned trial Court is just and proper and does not call for any interference by this Court in its appellate jurisdiction. 8. I have given my thoughtful consideration to the submissions made by counsel for the rival parties and carefully gone through the evidence on record. 9. The learned counsel for the accused appellants has laid much emphasis and the basis of his argument is that the police officer who had made the seizure, had all throughout mentioned that there was Charas with he accused persons while they ere traveling in the train. This itself shows hat the police personnel was already aware about the narcotics substance possessed by the accused or that he had already made the search and the procedure under the relevant Act was adopted subsequently, only for the sake of formality. On careful perusal been mentioned that the suspicious persons were jointly in possession of a bag, raising doubt that it contained illegal Charas and narcotics substance. Similarly, in the notice under Section 2 of the NDPS Act, it has been mentioned that Madan Pal Singh, SHO had a doubt that the bag possessed jointly by the suspicious persons was containing illegal Charas and narcotic substance. In the notice under Section 42 of the Act (Ex.P/21), as well as in the notice under Section 50 (Ex.P/11), it has also been mentioned that the bag which was found to be in joint possession of the suspicious persons contained illegal Charas and narcotics substance. In the notice under Section 42 of the Act (Ex.P/21), as well as in the notice under Section 50 (Ex.P/11), it has also been mentioned that the bag which was found to be in joint possession of the suspicious persons contained illegal Charas and narcotics substance. Taking into consideration the manner in which the terminology has been used by the police personnel and the circumstances which existed at that time, it cannot be inferred that the word Charas used was conclusively referring to a particular item of contraband. In fact, the words narcotic substance was being used alongwith the word Charas. As regards the submissions made by the counsel for the accused appellants that the information under section 42 of the Act was not duly proved, I am in agreement with the submissions made by the learned Public Prosecutor hat in the facts and circumstances of the case, the relevant provisions applicable are the one under Section 43 of the Act because undisputably, the contraband was not searched/seized from the person of the accused and it was from a bag which was jointly possessed by all the three accused persons. 10. Coming to the contention raised by the learned counsel for the accused appellants that the illegality has been committed on account of the fact that a separate notice under Section 50 was not given to each of the accused persons and a joint notice, according to the counsel for the appellants, cannot be said to be a compliance of Section 50 of the Act, I am of the view that the very object of the said notice is to convey to the accused person and make him aware about his rights. If it is sufficiently shown by the prosecution orally, by way of separate or joint notice, that the accused persons had been made known about their rights, it would be sufficient compliance of provisions of the Act. Likewise, the options given to the accused persons with regard to their search could be made in presence of higher officers/gazetted officers/police personnel present and selection of either of the option would be sufficient for the purpose of procedure given under the relevant Act. Likewise, the options given to the accused persons with regard to their search could be made in presence of higher officers/gazetted officers/police personnel present and selection of either of the option would be sufficient for the purpose of procedure given under the relevant Act. In case of other option also been available, it cannot be said that the proceedings taken in accordance to the one opted by the accused, any illegality or material irregularity has been committed by the prosecution so as to say that its case deserves to be thrown out on that count alone. So far as the contention raised by the learned counsel for the accused appellants in respect of seal not having been given to an independent person, not being put on some of the documents prepared during the investigation etc. etc., in my considered opinion it would not amount to any lacunae in the procedure adopted by the prosecution because it is not the case of the accused appellants that the seal affixed was not intact till the packets of the sample had reached the laboratory. The learned trial Court has very categorically arrived to the finding that the seal on the sample had reached the laboratory intact and as it was put at the time of seizure. 11. The learned Public Prosecutor has rightly submitted that it is settled principle that in a given case, even if the officer making search or seizure of the article can be the Investigating Officer. This has been laid down by the Hon'ble Supreme Court in the case of S. Jeevanntham (supra) wherein in para 3, it has been held as under : "In the instant case, PW 8 conducted the search and recovered the contraband article and registered the case and the article seized from the appellant was narcotic drug and the counsel for the appellant could not point out any circumstances by which the investigation caused prejudice or was biased against the appellant. PW-8 in his official capacity gave the information, registered the case and as part of his official duty and later investigated the case and filed charge-sheet. He was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation." 12. PW-8 in his official capacity gave the information, registered the case and as part of his official duty and later investigated the case and filed charge-sheet. He was not in any way personally interested in the case. We are unable to find any sort of bias in the process of investigation." 12. For the aforesaid reasons, I am of the considered opinion that the prosecution has complied with the provisions of the Act of 1985 and has proved its case beyond reasonable doubt. The learned trial Court has thoroughly considered each and every circumstance as well as the evidence on record produced by the prosecution. However, one important aspect which is required to be noted is that it is the case of the prosecution itself that the contraband Charas seized from the bag was having a total weight of 1 kg. The said weight included the weight of Bardana (packing material) and in such a situation, it cannot be said that in the instant case, the quantity involved is a commercial one because as per Entry No. 23 given in the table of the notice, small quantity is 100 Gram and commercial quantity is 1 Kg. Admittedly, the weight of 1 Kg. taken by the prosecution included the weight of Bardana (packing material), and therefore, the inevitable conclusion is that net weight of the contraband was less than 1 Kg., and as such it falls between the small and commercial quantity. 13. Consequently, the instant case does not fall within the provisions of sub-clause (c) of Section 20 of the Act of 1985 and it attracts the provisions of clause (b) of Section (20-b) of the Act of 1985. Therefore, taking into consideration the facts and circumstances of the case and the quantity of contraband involved, I am of the considered opinion that the ends of justice would be served if the accused appellants are sentenced for a period of 7 years R.I. Consequently, both the appeals are partly allowed. The conviction awarded to the accused-appellants Ramavtar, Shambhulal and Mukesh is modified to one under Section 8/20 (b)(ii-B) of the NDPS Act. They are sentenced for 7 years R.I., each and a fine of Rs. 1 lac, in default of which to further undergo 3 months R.I. Further, the conviction and sentence of accused Mukesh and Shambhulal under Section 8/20(b)(ii-A), is maintained. The substantive sentences shall run concurrently. They are sentenced for 7 years R.I., each and a fine of Rs. 1 lac, in default of which to further undergo 3 months R.I. Further, the conviction and sentence of accused Mukesh and Shambhulal under Section 8/20(b)(ii-A), is maintained. The substantive sentences shall run concurrently. Accordingly, the impugned judgment dated 24.1.2003 passed by Special Judge, N.D.P.S. Cases, Gangapur City stands modified.