Research › Search › Judgment

Rajasthan High Court · body

2012 DIGILAW 259 (RAJ)

State of Rajasthan v. Unkar Singh

2012-02-02

R.S.CHAUHAN

body2012
JUDGMENT 1. - The State is aggrieved by the judgment dated 04.11.2008 passed by the Special Judge, (NDPS Cases) cum District & Sessions Judge, Rajsamand, whereby the learned Judge has acquitted the accused-respondent Nos. 1 to 9 for offences under Sections 8/15, 8/29 and 8/25 of the NDPS Act, ('the Act', for short). 2. Briefly the facts of the case are that on 02.04.2007, the SHO, Police Station Diwar, Mr. Idan Singh (P.W.16), received an information at 12:15 PM, whereby he was informed that a jeep, bearing registration No. RJ 21 GA 0224, is loaded with doda post. The said jeep is being driven by four or five person coming from the side of Gomti. The said information was sent to the higher officer in compliance with the requirement of Section 42(2) of the Act. The said information was sent through constable, Prabhudayal. Subsequently, the SHO had reached Satpaliya Choraha along with Chun Singh (P.W.3) and Mohan Singh (P.W.4), as independent recovery witnesses. Around 2:10 PM, the police party saw a jeep coming from the side of Gomti. The moment the persons travelling in the jeep saw the police party, they turned the jeep around. Out of the six persons sitting in the jeep, five persons managed to escape. But one of the persons was apprehended by the police. He revealed his name as Onkar Singh. When he was asked about the other persons, he informed the police that they are Bhoja @ Bhajanlal, Rahul, Ramvilas, Mahendra Singh. He further informed that the driver of the jeep, who belongs to Vishnoi community, was a resident of village Ranesar. After giving the statutory option, Onkar Singh and the jeep were searched. In the jeep, the police party found two plastic bags along with five gunny bags. All the bags contained doda post powder. From the papers discovered in the jeep, it was revealed that the owner of the jeep was one Bhagirath. The plastic bags and the gunny bags were marked as 'A' to 'G'. A total of 375 Kgs., of doda post powder was discovered. During the course of the investigation, the accused-respondents were arrested. All the bags contained doda post powder. From the papers discovered in the jeep, it was revealed that the owner of the jeep was one Bhagirath. The plastic bags and the gunny bags were marked as 'A' to 'G'. A total of 375 Kgs., of doda post powder was discovered. During the course of the investigation, the accused-respondents were arrested. After completion of the investigation, charge-sheets were filed against, Onkar Singh, Bhoja @ Bhajan Lal, Rahul @ Banshi Lal for offences under Sections 8/15 and 8/29 of the Act; against Shiv Lal @ Andaram, a charge-sheet was filed for offences under Sections 8/15, 8/29 and 8/25 of the Act; against Chagan Lal Gurjar, Shantilal Jat, Bapulal, Tulsiram and Shivlal, the charge-sheet was filed for offence under Section 8/29 of the Act. Thus, in total the police filed charge-sheets against nine accused persons. It also filed a charge-sheet against the driver of the jeep. Against Mahendra Vishnoi, Ramvilas Vishnoi and Hetram, the police kept investigation pending under Section 173(8) Cr.P.C. 3. In order to buttress its case, the prosecution examined thirty-one witnesses and submitted eighty-one documents. However, the defence neither examined any witness, nor submitted any document. After going through the oral and documentary evidence, vide judgment dated 04.11.2008, the learned Judge acquitted all the accused respondents. Hence, this criminal leave to appeal before this Court. 4. Mr. O.P. Singhania, the learned Public Prosecutor, has contended that the learned Judge has failed to appreciate the evidence in proper perspective. According to the prosecution, a large quantity of contraband drugs was recovered from the possession of Onkar Singh. Moreover, the prosecution had proven the involvement of the other co-accused persons in the said case. However, despite the availability of overwhelming evidence, the learned Judge has erring acquitted the accused-respondents. 5. On the other hand, Mr. Farzand Ali, the learned counsel for the accused-respondents, has vehemently contended that the learned Judge has given cogent reasons for acquitting the accused-respondents for the offences under the NDPS Act: firstly, although the prosecution claimed that only seven bags i.e, two plastic bags and five gunny bags, were recovered from the jeep, but the prosecution had submitted fourteen bags before the learned trial court. Therefore, it was unclear as to how the seven bags were converted into fourteen bags. Moreover, the fourteen bags did not contain any seal chit. Therefore, it was unclear as to how the seven bags were converted into fourteen bags. Moreover, the fourteen bags did not contain any seal chit. Further, the learned Judge has noticed the fact that the mandatory provisions of Section 42(1) of the Act were not even followed. Furthermore, the learned Judge has noticed the fact that although the police had raided the houses of Bhoja @ Bhajanlal, Shivlal @ Andaram, Rahul @ Banshilal, Chaganlal Gurjar, Shantilal Jat, Bapulal Jat, Tulsiram Anjana and Shivlal Payak, yet no incriminating evidence was gathered from their houses. Lastly, nothing was recovered from any of the accused-respondents. 6. Heard the learned counsel for the parties and perused the impugned judgment. 7. Needless to say, the prosecution has to prove its case beyond a reasonable doubt. In the present case, it was the duty of the prosecution to prove the fact that 375 Kgs., of doda post powder was, indeed, recovered from the possession of Onkar Singh, that the samples and the remaining drugs were duly sealed and preserved. It was equally the duty of the prosecution to produce the remaining part of the contraband drugs before the learned trial Court. 8. According to the recovery memo (Ex.P/1), the contraband drugs were discovered in seven bags. However, during the course of trial, the prosecution produced fourteen bags before the learned trial Court. The prosecution has tried to explain the discrepancies in the number of bags by claiming that the original bags were eaten by rats. Therefore, they had to transfer the contraband drugs into fourteen bags. The learned Judge has also noticed the fact that even the half-eaten bags were not produced before the learned trial court. Moreover, the prosecution has failed to explain as to how the quantity of contraband drugs had increased so that it could be transferred from seven bags to fourteen bags. Furthermore, the learned Judge has concluded correctly that the contraband drugs allegedly discovered from the possession of the Onkar Singh has been tempered with. 9. Moreover, the learned Judge has noticed the fact that the mandatory provisions of Section 42 were not followed. In case the mandatory provisions of Section 42 have been violated, ordinarily it leads to the acquittal of the accused persons. 10. 9. Moreover, the learned Judge has noticed the fact that the mandatory provisions of Section 42 were not followed. In case the mandatory provisions of Section 42 have been violated, ordinarily it leads to the acquittal of the accused persons. 10. Lastly, the learned Judge has noticed the fact that the investigating agency had claimed that they had searched the houses of houses of Bhoja @ Bhajanlal, Shivlal @ Andaram, Rahul @ Banshilal, Chaganlal Gurjar, Shantilal Jat, Bapulal Jat, Tulsiram Anjana and Shivlal Payak. But nothing incriminating was discovered from their houses. 11. Since the prosecution had failed to prove its case beyond a reasonable doubt, the learned Judge was certainly justified in acquitting the accused respondents. Therefore, this Court does not find any illegality or perversity in the impugned judgment. Hence, this criminal leave to appeal is devoid of any merit; it is, hereby, dismissed.Leave to appeal dismissed. *******