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2012 DIGILAW 157 (RAJ)

Raju @ Rajendra v. State of Rajasthan

2012-01-13

BELA M.TRIVEDI

body2012
Hon'ble TRIVEDI, J.—The present appeal was directed to be registered on the basis of the letter written by the accused-appellant Raju @ Rajendra, forwarded through the Superintendent of Central Jail, Bharatpur. 2. The accused-appellant has been convicted by the learned Special Judge (NDPS Cases), Sessions Court Bharatpur (hereinafter referred to as the 'trial court') in Sessions Case No.10/2004, for the offence under section 8 read with Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter reffered as the 'said Act'), and sentenced to undergo rigorous imprisonment for a period of 12 years and to pay fine of Rs.1,00,000/- and in default thereof to further undergo rigorous imprisonment for a period of one year. 3. The case as unfolded by the prosecution and accepted by the trial court is that on 4.11.2003 at about 1.30 PM, the SHO Shri Rameshwar Prasad of Atalband Police Station received a secret information, which was forwarded to his superior oficer under Sec. 42(2) of the said Act. On the basis of the said information, the said SHO Shri Rameshwar Prasad, after folliwng the other formalities, went to the Heeradas Bus Stand, with his team members. In the meantime, the said superior officer, the Circle Officer Shri Satyendra Pal Singh also, arrived there. As indicated in the said secret information, they found one person present,near the booking window of the said bus stand. On being asked, the said person told his name to be Raju @ Rajendra son of Shri Jankidash Bairagi resident of Pandi Sheopur (MP).After giving the requisite notice under section 50 of the said Act, his personal search was conducted, and he was found to have possessed three bars(cakes) of contraband substance wrapped in a shawl, which was kept in a bag carried by him in his hands. The said substance was suspected to be 'Charas'. The said three bars were weighed with the scale and the total weight of the same was found to be 1.505 Kg. Out of the said three bars, 50 gms of substance was taken as sample and packed, sealed and marked as Mark-A/1, and another quantity of 50 gms was taken as control sample which was also packed, sealed and marked as A/2. Out of the said three bars, 50 gms of substance was taken as sample and packed, sealed and marked as Mark-A/1, and another quantity of 50 gms was taken as control sample which was also packed, sealed and marked as A/2. The rest of the quantity weighing 1.405 Kg was also packed, sealed and marked as Mark-A. After following the due procedure, the said accused alongwith the seized articles was taken to the police station and arrested for the offence under section 8/20 of the said Act. The FIR was also lodged against him and was registered as C.R. No.172/2003 at Police Station, Atalband, for the offence under section 8/20 of the said Act. The seized articles and other documents were handed over to the SHO, Police Station, Mathura Gate,Bharatpur, who deposited the sealed articles in the Malkhana. The packets of the sample mark A/1 deposited with the Malkhana in sealed condition was sent to the FSL for examination, and the chemical analyser after examining the same had opined that the sample contained in the packet Mark-A/1 was found to be of 'Charas'. 4. The investigating Officer after carrying out necessary investigation submitted the chargesheet before the trial court, which was registered as the Sessions Case 10/2004 against the accused. The prosecution examined as many as 12 witnesses and also produced number of documentary evidence in support of its case. The statement of the accused was also recorded under section 313 Cr.P.C wherein he denied allegations levelled against him and further stated that he was falsely implicated in the case. The trial court after appreciating the evidence on record, convicted and sentenced the accused as stated hereinabove. Being aggrieved by the said judgment and order passed by the trial court, the accused has preferred the present appeal through jail. 5. Learned counsel Mr. Sushil Pujari, appointed by the court as Amicus Curiae on behalf of the appellant,taking the court to the evidence recorded by the trial court submitted that there were number of discrepancies found in the evidence of witnesses examined by the prosecution and that the story of prosecution was not believable. He further submitted that the mandatory provisions of the said Act were not complied with by the trap lying officer. According to Mr. He further submitted that the mandatory provisions of the said Act were not complied with by the trap lying officer. According to Mr. Pujari, the trap laying officer should have weighed the three bars of substance allegedly found from the accused, separately and should have taken sample from each of such bars. He also submitted that if all the three bars were weighed separately and samples from each bar were sent to the FSL, it was possible that all the bars might not have been found to be 'Charas' and the accused would have got the benefit of the provisions contained in section 20 (b) (ii) (A) or 20 (b) (ii) (B) of the said Act. Mr. Pujari also submitted the two independent witnesses PW-3 and PW-4 had turned hostile, and that the conviction could not have been made on the basis of the testimonies of the police witnesses only. According to him, the documents relied upon by the prosecution in support of the trap were also not prepared on the spot and were prepared at the police chauki near the bus stand which also created a doubt as regards the genuineness of the alleged incident. Lastly, he submitted that the prosecution having failed to prove the charges against the accused beyond reasonable doubt, appellant accused should be acquitted giving him benefit of doubt or in the alternative he should be awarded lesser punishment. 6. However, learned Public Prosecutor Ms. Alka Bhatnagar for the State supporting the judgment of conviction and sentence passed by the trial court submitted that the police party had complied with all the mandatory provisions contained in the said Act while making search of the accused and seizure of the contraband substance from the accused. She also submitted that all the three bars of the contraband substance seized from the accused were apparently same and found to be 'Charas' by the police party, and there-fore they were weighed together and thereafter sample of 50 gms. was taken therefrom for examination. She also submitted that all the three bars of the contraband substance seized from the accused were apparently same and found to be 'Charas' by the police party, and there-fore they were weighed together and thereafter sample of 50 gms. was taken therefrom for examination. Relying upon the decision of the Apex court in the case of Dehal Singh vs. State of Himachal Pradesh ( 2010(9) SCC 85 = 2010(4) RLW 3406 (SC)), she submitted that the accused having been found to have possessed the contraband substance, a presumption under Section 35 read with Section 54 of the said Act was required to be drawn against him and that non taking of the sample from the each of the said three bars would not be fatal to the case of the prosecution, more particularly when the prosecution had proved its case by leading cogent evidence that the packet containing the sample was deposited in the F.S.L. in sealed condition and the chemical analyser had also opined the said sample contained in the said packet to be of 'Charas'. Lastly, she submitted that considering the seriousness and gravity of the offence, no lenient view should be taken in the matter as regards the sentence. 7. Now, if the Submissions made by learned counsel for the parties are appreciated in the light of the evidence adduced by the prosecution before the trial court, it transpires that in order to prove the proceedings of search,seizure, arrest etc., carried out by the trapping party,the prosecution had examined 12 witnesses and adduced the requisite documentary evidence prepared during and after the trap proceedings. Out of the witnesses examined by the prosecution, PW-1 Shri Pratap Singh Chandan Singh, who happened to be the Head Constable of Police Chauki, Heeradas Bus Stand, Atalbandh Police Station at the relevant time, was examined to prove that he had called two independent witnesses as per the instructions given by the SHO Shri Rameshwar Prasad. He was also present during the course of trap proceedings. He, in his evidence, had narrated about the compliance of section 50 of the said Act, about the seizure of the contraband substance from the appellant-accused,about the sealing of the said articles and about the arrest of the said accused. He was also present during the course of trap proceedings. He, in his evidence, had narrated about the compliance of section 50 of the said Act, about the seizure of the contraband substance from the appellant-accused,about the sealing of the said articles and about the arrest of the said accused. PW-2 Shri Arun Kumar Raj Singh, who happened to be the SI of Atalband Police Station, was also the member of the raiding party, and he also had narrated in his evidence about the trap proceedings in detail. PW-3 Shri Kanchan Kundan, and PW-4 Shri Randhir Ramdayal were the Panch witnesses in whose presence trap proceedings were allegedly carried out. However, both the said witnesses had not supported the case of the prosecution in their respective evidence before the court and had stated that their signatures were obtained by the Police on the blank papers. PW-5 Shri Keshav Singh Ramkishan, was the Constable at the Atalband Police Station, who had carried the envelop containing the information for being handed over to the Superintendent of Police, Bharatpur, as per the instructions of HM, PS, Atalband. According to him, he had made the relevant entry in the daily register as per the Ex.P-10 and Ex.P-11. PW-6 Harilal Paramsukh, who happened to be the Malkhana Incharge at the Atalband Police Station, was examined to prove that SHO Shri Rameshwar Prasad had handed over four packets in sealed condition marked as Mark-A, A-1, A-2 and B for being deposited in the Malkhana and that he had deposited the same by making entry in the Malkhana register as per the Ex.P-12. He had also stated in his evidence that out of the said packets, he had given one packet marked as A-1 in a sealed condition to the Constable Bhagwan Singh on 10.11.2003 for being depoisted in the FSL. PW-7 Bhagwan Singh Agniram, who happened to be Constable of Atalband Police Station, had stated in his evidence that on 10.11.203, he had deposited the packet marked as A-1 in sealed condition in the FSL as per the despatch note Ex.P-14 and that after obtaining the receipt Ex.-13 from the FSL, he had made entry in the register on 11.11.2003 as per Ex.P-15. He had also stated that he had recived packet in sealed condition from the Malkhana and had deposited in the same sealed condition in the FSL. He had also stated that he had recived packet in sealed condition from the Malkhana and had deposited in the same sealed condition in the FSL. The prosecution had examined PW-8 Surendra Sharma, who happened to be SHO of Mathura Gate Police Station and who had carried out the investigation of the case registered as C.R. No.172/2003. He had stated in his evidence that he had recorded the statements of witnesses who were the members of the raiding prty and also Panch witnesses, and had prepared the map of scene of occurrence which was as Ex.P-3. PW-9 Satyendra Pal Singh Ramhet Chandrapal who happened to be the Circle Officer, Bharatpur City, was also examined and he had stated in his evidence interalia that on receiving the information under section 42(2) the said Act at about 1.55 PM through Constable Keshav Singh of Atalband Police Station, he had left his office for the Heeradas Bus Stand, where he had reached at about 2.15 PM. He had also stated that when he reached at the said place, the CI Shri Rameshwar Prasad of Atalband Police Station along with other team members were present and one person as indicated in the secret information was also present. He had also stated in detail about the proceedings carried out thereafter as regards the search, seizure and arrest of the accused. PW-10 Dharm Singh Vijay Ram, who happened to be the ASI of Atalband Police Station, has been examined as he was also the member of the trap laying party and he had prepared the arrest memo as per the Ex.P-6. PW-11 Uchchhav Lal Heera Lal who was the Addl. Superintendent of Police, Bharatpur, had prepared the letter Ex.P-16 for sending the packet as mentioned therein to the FSL, Jaipur. PW-12 Rameshwar Prasad Hanuman Sahay, who happened to be the SHO of Police Station-Atalband and who had carried out the entire trap proceedings, in presence of his higher officer Shri Satyendra Pal and other members of raiding party, was also examined by the prosecution. PW-12 Rameshwar Prasad Hanuman Sahay, who happened to be the SHO of Police Station-Atalband and who had carried out the entire trap proceedings, in presence of his higher officer Shri Satyendra Pal and other members of raiding party, was also examined by the prosecution. He had also stated in detail about the receipt of secret information, which was reduced into writing and forwarded to his superior officer as per the provisions of section 42(2) of the said Act, about his finding the concerned person near the Heeradas Bus Stand as per the said information, about the calling of two witnesses, about the giving of notice to the accused under section 50 of the said Act, about the search of the accused having been carried out in presence of the Circle Officer and other members of raiding party, about the seizure of substance 'Charas', found in one plastic bag wrapped in a shawl and kept in the bag carried by him in his right hand, about the weight the said substance, about the taking of samples from the said seized articles for examination and about sealing the same on the spot. He had also stated that the accused Raju @ Rajendra was thereafter arrested for the offences under section 20 read with section 8 of the said Act, after informing him about the said charge and also stated about other proceedings carried out thereafter. 8. All the witnesses examined by the prosecution were thoroughly cross examined by the learned counsel for the appellant/ accused, however, no substantative defence was taken by him in the cross examination. The further statement of the appellant- accused was also recorded under section 313 Cr.P.C by the trial court, however except denying the allegations levelled against him, he has not stated anything further.It is settled legal position that the purpose of recording the statement of the accused under section 313 of the Cr.P.C is that the accused should be given a reasonable opporutnity to explain about the incriminating evidence on record brought by the prosecution. In the instant case, the accused had not given any explanation in his defence. 9. In the instant case, the accused had not given any explanation in his defence. 9. Having regard to the oral as well as documentary evidence adduced by the prosecution, it is evident that the prosecution had successfully proved that on the receipt of the secret information, the SHO Rameshwar Prasad of Atalband Police Station, had forwarded the said information to his superior officer, the C.O. Shri Satyendra Pal (PW-9), and thereafter had left for the place of the information at Heeradas Bus Stand, where he had found the accused present. After the said Circle Officer Satyendra Pal arrived at the spot, the accused was given the notice as required under Section 50 of the said Act for conducting his personal search. The said notice was placed on record as Ex.21 and the signature of the accused was obtained on the copy of the said notice Ex.P/22. It was also established by the prosecution that on the search of accused having been made, the contraband substance in the shape of three bars was found in the plastic bag wrapped in a shawl, kept in the bag carried by the accused in his right hand. The said substance was suspected to be 'Charas'. The said three bars having been weighed, the total weight was found to be 1.505 Kg. The sample of 50 gms. was also taken from the said three bars and was kept in a cloth bag which was sealed and marked as Mark-A-1. The other sample of 50 gms. was also taken from the said bars and sealed and marked as A-2. The rest of the substance was also sealed and marked as mark-A and the bag and shawl were also seized, sealed and marked as Mark-B. 10. The prosecution by examing the concerned witnesses had also proved that the said packets in sealed conditions were handed over to the Malkhana Incharge by the said SHO Rameshwar Prasad and that the packet containing the sample Mark-A-1 was also deposited with the FSL in a sealed condition by the Constable Bhagwan Singh. From the report of FSL as Ex.P-28 also, it was established that the said packet marked A-1 had reached in the sealed condition. In the said report Ex.P.28, it was opined that on the microscopic and chemical examination, the sample contained in the packet Mark-A-1 was found to be of 'Charas'. From the report of FSL as Ex.P-28 also, it was established that the said packet marked A-1 had reached in the sealed condition. In the said report Ex.P.28, it was opined that on the microscopic and chemical examination, the sample contained in the packet Mark-A-1 was found to be of 'Charas'. Thus, having regard to the totality of the evidence, it clearly transpires that the prosecution had established beyond reasonable doubt that the contraband substance 'Charas' wighing 1.505 Kg was found from the possession of the appellant accused, as per the charge levelled against him, and that there was no violation of any mandatory provision contained in the said Act. 11. The bone of contention raised by the learned counsel for the appellant was that the three bars found as a result of the search of the accused, were not separately weighed and therefore the accused was deprived of raising the contention of small quantity or the quantity in between small and commercial. There is no substance whatsoever in the said submission made by learned counsel for the appellant inasmuch as there was no illegality or irregularity committed by the trap laying officer in not weighing the three bars separately, the said contraband substance in the shape of three bars being apparently the same. There is also no requirement under the Act or the Rules to weigh the substance separately, more particularly when the said substance was found from one plastic bag wrapped in the shawl and kept in the bag carried by the accused in his right hand. 12. On the contrary, from such submissions, it is required to be construed that the accused had admitted to have possessed the said suspected substance with him. That apart, the prosecution by examining the concerned witnesses had also duly proved that the said supected substance, which ultimately was found to be 'Charas' by the FSL, was possessed by the accused at the time of alleged incident. At this juncture, it is required to be noted that as per section 54 of the said Act, it could be presumed, unless and untill the contrary is proved, that the accused had committed the offence under the Act in respect of the contraband substance for the possession of which he had failed to account satisfactorily. At this juncture, it is required to be noted that as per section 54 of the said Act, it could be presumed, unless and untill the contrary is proved, that the accused had committed the offence under the Act in respect of the contraband substance for the possession of which he had failed to account satisfactorily. Section 35 of the said Act also permits a presumption of 'culpable mental state' of the accused to be raised, with respect to the act charged by the prosecution. It is also settled legal position that once the possession is established by the prosecution, the court can presume that the accused had culpable mental state, meaning thereby conscious possession and that unless the accused fails to account satisfac-torily about the conscious possession of the contraband, he is presumed to have committed the offence. A beneficial reference of the judgments of the Apex Court in the case of Madan Lal and Another vs. State of H.P. 2003(7) SCC 465 and in the case of Dehal Singh (supra), is requried to be made in this regard.In the instant case, the prosecution having duly established that the appellant accused was in conscious possession of the contraband and the accused having failed to account satisfactorily about the said possession,it has been rightly held by the trial court that the appellant accused had committed the alleged offences under the said Act. Merely because the substance contained in the apparently similar bars were not separately weighed, the same could not be said to be fatal to the case of prosecution. 13. It is true that two independent Panch witnesses in whose presence the alleged trap proceedings were conducted have turned hositle. However, the appellant/accused had also failed to place any material on record to discredit the evidence of the official witnesses. There being no material discrepancies or contradictions pointed out by the learned counsel for the appellant from the evidence of the official witnesses, and the said witnesses having duly proved the case of the prosecution, the panch witnesses turning hostile could not be said to be fatal to the case of the prosecution. This view is also fortified by the decision of the Apex court in the case of State of Haryana vs. Mai Ram 2008(8) SCC 292 . 14. This view is also fortified by the decision of the Apex court in the case of State of Haryana vs. Mai Ram 2008(8) SCC 292 . 14. It was also sought to be submitted by learned counsel for the appellant that documents allegedly prepared during the trap proceedings were not prepared on the spot at the Heeradas Bus Stand but were prepared at the Police Chauki, Heeradas Bus Stand. There is also no substance in the said submission inasmuch as it has emerged from the evidence of the witnesses more particularly PW-9 Satyendra Pal Singh and PW-12 Rameshwar Prasad that the Police Chauki was situated at the Heeradas Bus Stand only, and many people and vehicles being there at the scene of offence, the documents were prepared at the said police Chauki. Hence, merely because the documents were prepared at the Police Chauki which was situated at the Bus Stand only it could not be said that the trapping party had committed any illegality. The trial court had rightly held that the appellant-accused had committed the offences charged against him. There being no infirmity or perversity in the judgment and order passed by the trial court, the present appeal being devoid of merits, deserves to be dismissed and is accordingly dismissed.