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2012 DIGILAW 543 (RAJ)

Mohan Lal v. State of Rajasthan

2012-02-29

NISHA GUPTA

body2012
Hon'ble GUPTA, J.—This appeal has been preferred against the judgment and order dated 27.10.2007 in Sessions Case No. 171/2005 whereby the learned trial court has convicted the accused-appellants under Section 8/18 of the NDPS Act and has sentenced for 10 years' rigorous imprisonment together with a fine of Rs.1,00,000/-, in default whereof, to further undergo one year's simple imprisonment. 2. The brief facts of the case are that on 7.8.2005, at about 11.05 AM, Jodharam Gurjar, SHO, PS Chhipa Baraud was petrolling in his circle with other police personnel, viz., Rajendra Kumar, Nek Mohammed, Badlu Ram, etc. During the course of petrolling, when they reached near Peepal Kheri and on a small bridge, they started checking. At that time, two persons were coming on foot from Rawan Village having one bag each in their hands. After seeing the police party and jeep, they started running and due to suspicion, they were intercepted and they could not assign any good reason for running from there. Anil Kumar, Police Constable was sent to bring independent witnesses but no independent witness was available there and hence in the presence of Rajendra Kumar and Nek Singh, notice under Section 50 of the NDPS Act was given to them. They consented that SHO can take their search. During the course of search, 6 kgm. opium was recovered from the bag, which was carried by the present appellants. Samples were taken according to the procedure and other formalities were completed in compliance of the provisions contained in NDPS Act. On this, FIR was registered and after usual investigation, charge-sheet was filed against the accused-appellants. Charges were framed against the accused-appellants for the offences under Sections 8/18 and 8/29 of the NDPS Act. The prosecution examined as many as 13 witnesses and exhibited 22 documents. The accused-appellant was examined under Section 313 Cr.P.C. No defence witness was produced and exhibited two documents. After considering the material available on record, the learned trial Court acquitted Radheshyam and Bhanwarlal but convicted and sentenced the accused-appellant as aforesaid. Hence, this appeal. 3. The contention of the present appellant is that all the witnesses are interested witnesses and they cannot be relied upon. No independent witness has been produced by the prosecution. There is no link evidence that the samples remained intact till they reached the FSL. Hence, this appeal. 3. The contention of the present appellant is that all the witnesses are interested witnesses and they cannot be relied upon. No independent witness has been produced by the prosecution. There is no link evidence that the samples remained intact till they reached the FSL. There is material difference in the weight of the samples, which were taken at the time of seizure and reached to the FSL. The compliance of the provisions of Section 50 of the NDPS Act was not done and further Bhanwarlal has been acquitted on the same evidence but the present appellant has been convicted, which is against the criminal jurisprudence and hence the present appellant should also be acquitted of the offence. 4. The learned Public Prosecutor has submitted that all the mandatory provisions were complied with by the prosecution. The case is proved beyond reasonable doubt against the present appellant. The difference of weight is negligible and the present appellant has rightly been convicted and sentenced and thus no interference is needed. 5. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the record as well as the impugned judgment. 6. PW.1 Jodhram, who is the seizure officer in the case, has narrated the whole incident that he recovered 6 kgm. opium from the bag which was carried by the present appellant and samples were taken according to the prescribed procedure and were sent to the FSL. Other police personnel, who were the members of the team, have also corroborated the statement of Jodharam. In cross-examination of PW.1, it has been asked that the present appellant has dropped the bas, which was taken by the police party, hence, the custody of the bag has been admitted by the appellant and hence cross-examination of PW.1 Jodharam corroborates the story of the prosecution that the present appellant was having a bag from which 6 kgm. opium was recovered. 7. The first contention of the present appellant is that compliance of the provisions of Section 50 of the NDPs Act has not been made. PW.1 Jodharam has stated that option was given to the present appellant that whether he wants to be searched from Magistrate or any gazetted officer. opium was recovered. 7. The first contention of the present appellant is that compliance of the provisions of Section 50 of the NDPs Act has not been made. PW.1 Jodharam has stated that option was given to the present appellant that whether he wants to be searched from Magistrate or any gazetted officer. The memo under Section 50 of the NDPS Act was prepared, which has been placed on record as Ex.P/4 and the present appellant has opted that he wants to be searched from Jodharam- seizure officer. It has been submitted that no such option was given to the appellant that he can be searched by seizure officer- Jodharam. Section 50 of the NDPS Act reads as under:- "50. Conditions under which search of persons shall be conducted.-(1) When any officer duly authorised under Section 42 is about to search any person under the provisions of Section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct the search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer 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. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior." 8. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy two hours send a copy thereof to his immediate official superior." 8. A bare reading of Section 50 of the NDPS Act goes to show that according to Section 50, two options should be given to the accused that whether he wants to be searched from a Magistrate or any Gazetted Officer and if the accused does not opt for these two options by virtue of Section 42 of the NDPS Act, authorised officer is competent to search and there is no need to give such option according to Section 50 of the NDPS Act. 9. Furthermore, the prosecution has submitted that the present appellant has not been searched in person and opium has been recovered from the bag, which was carried by the present appellant and hence when person has not been searched, provisions of Section 50 of the NDPS Act will not attracted. 10. Learned counsel for the appellant has submitted that the bag was carried by the present appellant and in spite of the fact that the bag was searched, provisions of Section 50 of the NDPS Act will apply and he has relied upon the decision rendered in the case of Shoukat vs. Central Narcotic Bureau, Nimach (M.P.) (2003(2) R.Cr.D. 238 (Raj.), wherein the bag, which was lying between the legs of the accused, was searched and the court has held that provisions of Section 50 of the NDPS Act are attracted. 11. Per contra, learned Public Prosecutor has relied upon the decision rendered in State of Haryana vs. Mai Ram (2008) 8 SCC 292 ), wherein it has been held that where the opium was recovered from a bag of accused at a public place not being a personal search, non-compliance of Section 50 of the NDPS Act will not vitiate the recovery. 12. Hence, looking at the above, when the bag was searched and no personal search was made, the requirement of giving notice in terms of Section 50 of the NDPS Act was not attracted. At the same time, the trial court has recorded a categorical finding that the requisite procedure given under Section 50 of the NDPS Act was followed and thus plea of the appellant is not sustainable. 13. At the same time, the trial court has recorded a categorical finding that the requisite procedure given under Section 50 of the NDPS Act was followed and thus plea of the appellant is not sustainable. 13. Learned counsel for the appellant has also relied upon the decision rendered in Suresh Chandra vs. State of Rajasthan (2001(3) R.Cr.D. 302 (Raj.) = RLW 2002(1) Raj. 25 wherein in notice under Section 50 of the NDPS Act, the option was given only for police gazetted officer and it was found that it is not compliance of the provisions of Section 50 of the NDPS Act. 14. Here, in the case in hand, according to Ex. P/4, straightway option was given to the appellant to get himself searched by the Magistrate or any other gazetted officer and he has also been apprised of his rights to be searched in the said manner. 15.The learned Public Prosecutor has relied upon the decision rendered in Dehal Singh vs. State of Himachal Pradesh (2010) 9 SCC 85 ), wherein it has been held as under:- "Further the authorised officer is to apprise the person about to be searched to be taken to the nearest gazetted officer or to the Magistrate, if the person about to be searched so requires. Such an option was given to the appellants and, in our opinion, it is nothing but apprising them of their right. Option to choose is given to an accused when he has the right to choose. It is communication of the right either to accept or reject. Therefore, in our opinion giving the appellants option to be searched satisfied the requirement of Section 50 of the Act." 16. Seeing the present case in the light of the above, it has been categorically established by the prosecution that the option has been given to the appellant that he has a right to choose and the appellant has communicated that he wants to be searched by the seizure officer and looking at the above, the requirement of Section 50 of the NDPS Act has been fully complied with. Thus, there is no force in the submission of the appellant that the provisions of Section 50 of the NDPS Act has not been complied with. 17. Thus, there is no force in the submission of the appellant that the provisions of Section 50 of the NDPS Act has not been complied with. 17. The other contention of the present appellant is that no independent witness has been produced to establish the prosecution case and only police personnel have stated about the recovery and hence the prosecution story is doubtful and he has relied upon the decision rendered in Bhaiyan @ Shiv Murti vs. The State of Rajasthan (2004 WLC (Raj.) UC 416) and Krishan Kumar & Anr. vs. State of Rajasthan (2004 WLC (Raj.) UC 762), wherein it has been held that where recovery is not corroborated by an independent witness, search only with the aid of police department becomes doubtful. 18. Per contra, the learned Public Prosecutor has submitted that it is not necessary that independent witnesses should be produced by the prosecution. The evidence of the prosecution witnesses shows that an attempt was made to find out private person from public but none was available. PW.1 Jodha Ram has stated that he sent Anil Kumar, FC to bring independent witness but no independent witness was available near the vicinity. PW.10 Anil Kumar has also stated that he searched for independent witness but he could not be succeeded and in these circumstances, the search was made in presence of Rajendra and Nek Mohd. , who are the police personnel. The learned Public Prosecutor has placed reliance on the judgment delivered in the case of State of Haryana vs. Mai Ram (2009) 8 SCC 292), wherein it has been held as under:- "So far as the examination of only official witnesses is concerned, it is to be noted that the only independent witness who was examined to speak about the seizure did not support the prosecution version. No material was brought on record by the defence to discredit the evidence of the official witnesses. The ultimate question is whether the evidence of the official witness suffers from any infirmity. In the instant case nothing of the nature could be pointed out. Further, PW1 and 2 categorically stated that no other person was willing to depose as witness. Therefore, the High Court was clearly in error in holding that the prosecution version became vulnerable for non-examination of persons who were not official witnesses." 19. In the instant case nothing of the nature could be pointed out. Further, PW1 and 2 categorically stated that no other person was willing to depose as witness. Therefore, the High Court was clearly in error in holding that the prosecution version became vulnerable for non-examination of persons who were not official witnesses." 19. In the light of the above, in the present case PW.1 and 10 have categorically stated that no other person was available there to act as independent witness, the non-examination of independent witness could not be held vulnerable. Nothing has been shown that the evidence of the official witnesses is in any way unreliable or untrustworthy. Hence, non-examination of independent witnesses did not render the case of prosecution vulnerable. 20. The next contention of the present appellant is that the link evidence has not been produced and he has relied upon the judgment delivered in the case of Daul @ Daulat Giri vs. State of Rajasthan (2002(2) R.Cr.D. 117 (Raj.). It is not in dispute that to prove a case under the NDPS Act, it is necessary that all the links starting from seizure of sample till it reaches the office of public analyst should be established. In the present case, Jodharam seized the contraband and samples were taken and he handed over the contraband to the malkhana incharge. Malkhana incharge has been produced as PW.3 and he has stated that Jodharam handed over him the samples and samples were further sent for chemical examination to the FSL through career PW.13 Pavinder Singh and FSL report has been placed on record as Ex.P/13 and des-cription of packets has been stated in Ex.P/13 that packets, two in numbers, marked A/1 and A/2, were properly sealed and bearing impression which tally with the specimen seal impression forwarded. The seal was also intact. 21. The seal was also intact. 21. The judgment relied upon by the counsel for the appellant delivered in the case of Daulat Giri (supra), has been over-ruled and the learned Public Prosecutor has relied upon the judgment delivered in the case of State of Rajasthan vs. Daul @ Daulat Giri (2009) 14 SCC 387 ), by which the judgment cited by the learned counsel for the appellant has been over-ruled, wherein it has been held as under:- "The High Court came to an attempt (sic abrupt) an unsustainable conclusion that because Jamnalal was not examined `possibility of the sample having been tempered with could not be ruled out.' The conclusion is unsustainable in view of the FSL Report which clearly stated that the seals were intact and matched with the specimen seals." 22. In the present case, link evidence suffers no impunity and the FSL Report clearly states that seals were intact and matched with the specimen seal. Hence, the contention of the appellant that samples were tempered with during the transit period is unsustainable. 23. The next contention of the appellant is that according to the prosecution, samples taken were of 50 gms., whereas as per the FSL Report, samples, which reached to the FSL, were of 54.150 gms. and 49.100 gms. and there is material difference between the weight of the samples taken at the spot and reached to the FSL and it castes shadow on the reliability of the prosecution evidence. 24. It has been categorically concluded by the trial court and re-appreciated by this court that the samples were reached the laboratory intact and FSL Report also goes to show that the packets were bearing seals which were intact and they were tallying with the specimen seal impression. Hence, there is no basis for the doubt that the samples reached to the FSL did not remain intact and it cannot be concluded that there is any tempering with the samples. The learned Public Prosecutor has submitted that at the spot, there was only basic weighting machine but in the laboratories, there are much more improved and sensitive machines are available and hence this may be the reason of the difference. Hence, this minor difference between the weight does not caste any shadow on the prosecution story. 25. The learned Public Prosecutor has submitted that at the spot, there was only basic weighting machine but in the laboratories, there are much more improved and sensitive machines are available and hence this may be the reason of the difference. Hence, this minor difference between the weight does not caste any shadow on the prosecution story. 25. Lastly, the learned counsel for the appellant has submitted that on the same evidence, co-accused Bhanwarlal has been acquitted, whereas the present appellant has been convicted and hence the inconsistent judgment should not be sustained. 26. The learned trial Court has given reasons for giving benefit of doubt to co-accused Bhanwarlal and it was found that at the instance of the present appellant, co-accused Bhanwarlal was carrying the bag, which was also containing opium. The learned Public Prosecutor has submitted that the case of Bhanwarlal is not in issue in the present appeal and when the prosecution has proved the recovery of the opium from the present appellant, he could not be acquitted only on the ground that other co-accused has been acquitted. 27. It is not in dispute that Bhanwarlal has been acquitted after giving benefit of doubt and reasons have been assigned by the trial Court. The acquittal of co-accused Bhanwarlal is not in issue in this appeal and hence no consideration can be made on those reasons but when the prosecution has proved its case beyond reasonable doubt and the recovery of opium is established from the present appellant, his case cannot be found similar to that of Bhanwarlal and thus the contention of the present appellant is of no force. 28. Hence, looking at the above, there is no infirmity in the conclusion and reasoning arrived at by the trial Court. There is no force in this appeal and the same is hereby dismissed.