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2011 DIGILAW 2067 (RAJ)

Harpal Singh @ Banti v. State of Rajasthan

2011-09-23

NISHA GUPTA

body2011
JUDGMENT 1. - This appeal has been filed against the judgment dated 30.8.2003 whereby the present appellant has been convicted for the offence under Section 8/18 of the N.D.P.S. Act and has been sentenced for 10 years' rigorous imprisonment together with a fine of Rs. 1,00,000/-, in default whereof to further undergo one years' simple imprisonment. 2. The brief facts of the case are that on 3.7.2000, an information was received by the Addl. S.P. Bhilwara that Harpal Singh, present appellant, has concealed contraband opium in his house near Mahila Ashram and it is in, process of taking it out. The said information was considered to be correct and since there was emergency, reasons under Section 42 of the N.D.P.S. Act were recorded and parcha was prepared: After that Shivlal Joshi rand other police personnels went to the scene of occurrence. Since no independent motbir was available near the house, therefore, Ramprasad Upadhyay was sent to bring the independent witnesses, who brought Ashok Jain PW-13 and Laxmilal jaiswal PW-1 as independent witnesses. Thereafter, the police party, with the independent witnesses, entered into the porch of the house, door was closed and the same was knocked and opened by the appellant. A notice was given to the present appellant under Section 50 of the N.D.P.S. Act. Nothing was found in the room and chowk etc. but there were two rooms in the open chowk, one of which was locked. The appellant gave key of the locked room, which was opened and inside the room, in an iron box 6 packets and in an iron tin 3 packets were found containing opium. Samples were taken out of every packet, which were properly sealed. Remaining opium was also sealed and after the requisite proceedings, seizure memo was prepared. In total, 38 kg 850 gm. opium was seized. The appellant was arrested and after investigation challan was, filed. 3. Charges were framed against the present appellant for the offence under Section 8/18 of the N.D.P.S. Act. The prosecution examined as many as 14 witnesses. The statement of the accused under Section 313 Cr.P.C. was recorded, wherein he denied the allegations levelled against him and in defence he examined three witnesses. After conclusion of trial, the present appellant has been convicted and sentenced as aforesaid. 4. Heard learned counsel for the petitioner and the learned Public Prosecutor and perused the record of the case. 5. The statement of the accused under Section 313 Cr.P.C. was recorded, wherein he denied the allegations levelled against him and in defence he examined three witnesses. After conclusion of trial, the present appellant has been convicted and sentenced as aforesaid. 4. Heard learned counsel for the petitioner and the learned Public Prosecutor and perused the record of the case. 5. PW-5 Shivlal Joshi, the recovery officer, has categorically stated the incident as is narrated above and his statement is also corroborated by the evidence of PW-9 Ram Prasad and PW-10 Sobhagya Singh, who are the police personnels who were accompanying Shivlal Joshi. PW-1 Laxmilal Jaiswal, motbir witness, has not supported the prosecution story and he was declared hostile. At the same time, another motbir witness PW-13 Ashok Jain was also declared hostile but he has partially corroborated the story of the prosecution and he specifically stated that the opium was recovered from the house near the Mahila Ashram Road and the accused was present there. He has also endorsed that all the relevant papers are having his signatures. 6. The first contention of the present appellant is that the prosecution has not complied with the provisions of Section 42 of the N.D.P.S. Act and no report has been prepared by the Seizure Officer as it was obligatory for him to record the ground of his belief that a search warrant cannot be obtained without affording opportunity of concealment of evidence or facility for the escape of an offender. 7. In this regard, PW-5 Shiv Lal Joshi has specifically stated that he has recorded the information which was given to him and he has also prepared Ex.P- 21, reason of his belief. PW-11 Kalu Singh has categorically stated that he had taker Ex.P-21 to the S.P., Bhilwara. These two witnesses have been cross-examined on this point hut nothing negative could be brought by their cross-examinations. Hence, there is no doubt about it that Section 42 of the N.D.P.S. Act has been complied with by the prosecution. 8. The next contention of the appellant is that the present appellant is not the occupier of the house from where the opium has been alleged to be recovered. Hence, there is no doubt about it that Section 42 of the N.D.P.S. Act has been complied with by the prosecution. 8. The next contention of the appellant is that the present appellant is not the occupier of the house from where the opium has been alleged to be recovered. In defence, he has also produced three witnesses including himself who have stated that the appellant is residing at Arya Samaj Mandir and he has nothing to do with the house from where the opium has been recovered. Learned counsel for the appellant has also placed reliance on Ex.D-4, wherein SHO, City Kotwali has also recorded at 'C' to D', the statement that the present appellant is residing near Arya Samaj Mandir. 9. In this regard PW-5 Shivlal Joshi has categorically stated that when they reached to the said house, the appellant was in the house and after knocking, the door was opened by the present appellant. The key of the room, from where the opium was recovered, was also with the accused-appellant. Hence, there was no suspicion on the fact that the present appellant was the occupier of the house from where the opium was recovered. The contention of the present appellant is that the I.O. has not taken any document on record regarding the ownership of the house. The ownership is not a relevant factor for the offence under Section 8/18 of the N.D.P.S. Act. When the house was in possession of the appellant and the opium has been recovered from the conscious possession of the present appellant, this contention of the present appellant is not sustainable. 10. It has also been stated that PW-5 Shivlal Joshi has categorically stated that the key and lock were sealed at the time of seizure but when they were produced before the Court, they were not sealed. Learned PP has submitted in this regard that according to Ex P/2, it is clear that the key and lock were only seized. There is no mention in the Ex.P-2 that they were ever sealed. Hence, there is no discrepancy in the prosecution evidence. Key and lock otherwise are not directly connected with the seizure of the contraband article. Hence, there sealing at the spot was not necessary. Same argument has been advanced in relation to the seized iron box and iron tin. There is no mention in the Ex.P-2 that they were ever sealed. Hence, there is no discrepancy in the prosecution evidence. Key and lock otherwise are not directly connected with the seizure of the contraband article. Hence, there sealing at the spot was not necessary. Same argument has been advanced in relation to the seized iron box and iron tin. PW-2 Rajkumar has specifically stated that opium was recovered from different 9 packets and they were sealed at the spot. In the light of the above, iron box and iron tin were also not directly connected with the seizure of the opium and if they were not sealed at the spot, this will not put any suspicion on the seizure of opium. Learned trial Court has also specifically held that the opium was sealed at the spot and PW-14 Prem Singh has also specifically stated about re-sealing of the contraband opium. 11. PW-2 Rajkumar and PW-4 Bharoo Lal are the witnesses who have corroborated the process of re-sealing. At the same time, PW-8 Sirazuddin who is malkhana in-charge and PW-7 Bhagwatilal, have also corroborated that he had taken the sample to the F.S.L. These two witnesses have categorically stated that samples were remained in their custody intact. Hence, there is no infirmity in connecting evidence and F.S.L. Report was also presented before the trial Court. 12. The next contention of the present appellant is that the samples of contraband have not been seized at the spot and they were tempered with. This is the admitted case of the prosecution that case number was never appended on these packets at the spot but packets produced during the trial are having F.I.R. numbers. Hence, this goes to show that the samples have been tempered with. 13. In this regard, PW-5 Shivlal Joshi stated ' that the F.I.R. was not registered till the time of seizure, hence case number could not be put on the samples but at the same time PW-14 Prem Singh has specifically stated that after registration of F.I.R., the case number has been put on the seated packets of opium and he resealed the packets. Hence, there is no infirmity in the evidence produced by the prosecution. The seized articles were sealed at the spot and they remained intact up to the reaching of the laboratory has been proved beyond doubt. 14. Hence, there is no infirmity in the evidence produced by the prosecution. The seized articles were sealed at the spot and they remained intact up to the reaching of the laboratory has been proved beyond doubt. 14. Learned counsel for the appellant has placed reliance on Ashok @ Dangra Jaiswal v. State of Madhya Pradesh, (2011) 2 SCC (Cri.) 547 . The facts of this case are quite different from the present one in hand. There seized articles were never produced before the trial Court and no explanation for non-production was tendered. Here, there is no such infirmity. 15. It has also been stated that the present appellant was tortured in the police custody and application for his medical examination was presented before the trial Court and injury report Ex.P-8 was also placed on record. The counsel for the appellant has submitted that no recovery has been made from his possession and he has been subjected to beating just to involve him in the present case. 16. There is no dispute about the fact that the present appellant was arrested on 3.7.2000 and Ex.D-7, application has been presented after 11 days on 14.7.2000. Hence, it could not be gathered from the fact above that the recovery, which was done on 3.7.2000, was at all connected in any manner with the injuries of the appellant. The memo of arrest Ex.P-9 goes to show that there was no injury on the person of the present appellant at the time of arrest. Hence, it discards all the possibilities of procuring the seizure by force. 17. The prosecution has categorically proved that the opium has been recovered from the house which was in exclusive possession of the present appellant. The trial Court was right in its reasoning and conclusion and does not require any interference in the appeal. 18. Hence, looking at the above, there is no force in the appeal. The same is hereby dismissed.Appeal dismissed. *******