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2013 DIGILAW 1135 (RAJ)

Mohan Singh v. State of Rajasthan

2013-07-01

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeals have been preferred on behalf of the appellant challenging the judgment dated 14.3.1990 passed by the learned Sessions Judge, Sri Ganganagar in Sessions Case No. 81/1989, whereby, the learned Sessions Judge, Sri Ganganagar convicted the appellant for the offence under Section 8/15 of the N.D.P.S. Act and sentenced him to undergo for ten years R.I. and to pay a fine of rupees one lac and in default of payment of fine to further undergo one year's R.I. 2. Briefly stated the facts necessary for the disposal of these appeals are that on 4.5.1989, at about 11.35 A.M., one Sher Singh, Constable in the RAC conducted the search of Bus No. RNC 8003 going from Sri Ganganagar towards Sadulshahar. It is alleged that four to five passengers were sitting on the roof the bus. It is further alleged that one person was trying to hide something under this clothes. As the act of the person was suspicious, Sher Singh took the person down from the bus. He was carrying a bag in his hands. On enquiry, he revealed his name as Mohan Singh. On the search of the bag being undertaken, poppy straw weighing five kilogram was found in the bag. Accordingly, Sher Singh drew a report and presented the appellant along with the report before the S.H.O., Police Station Sadulshahar, Sri Ganganagar On the basis of the report submitted by Sher Singh, an F.I.R. being F.I.R. No. 97/1989 was registered against the appellant for the offence under Section 8/15 of the N.D.P.S. Act and investigation commenced. 3. The appellant was arrested and the poppy straw being carried by the appellant was seized vide recovery memo Exhibit P-2. The allegation of the prosecution was that on weighing along with the bag, the poppy straw was found to be five kilogram. One sample of 250 gms of poppy straw was taken out from the bag and was allegedly sealed. The sample was forwarded to the F.S.L., from where, a report was received that the sample gave a positive test for the presence of dried crushed capsules of poppy. Accordingly, a charge-sheet was filed against the appellant for the offence under Section 8/15 of the N.D.P.S. Act. The sample was forwarded to the F.S.L., from where, a report was received that the sample gave a positive test for the presence of dried crushed capsules of poppy. Accordingly, a charge-sheet was filed against the appellant for the offence under Section 8/15 of the N.D.P.S. Act. The case was committed to the Court of the learned Sessions Judge, Sri Ganganagar, where, a charge for the offence under Section 8/15 of the N.D.P.S. Act was framed against the appellant. The prosecution examined as many as nine witnesses in support of its case. The appellant pleaded not guilty and claimed trial. The appellant in his statement under Section 313 Cr.P.C. denied the allegations of the prosecution but did not choose to lead any defence. At the conclusion of the trial, the learned Sessions Judge, Sri Ganganagar proceeded to convict and sentence the appellant as stated above. Hence the instant appeals have been preferred by the appellant. One appeal has been preferred by the appellant from jail being S.B. Criminal Jail Appeal No. 108/1990, which is also being decided simultaneously. 4. Learned counsel for the appellant submits that the whole proceedings of search and seizure arc vitiated. The proceedings of search and seizure and apprehension of the accused was conducted by Sher Singh, Constable in the RAC, who was not authorised to do so. Learned counsel submits that no link evidence has been produced in this case four showing that the sample of the poppy straw which was sealed by the S.H.O. remained in the self same condition right from the time of the seizure till it reached the chemical examiner and, thus, the learned trial Court was not justified in convicting and sentencing the appellant for the offence under Section 8/15 of the N.D.P.S. Act. 5. Per contra, learned Public Prosecutor has vehemently opposed the submissions advanced by learned counsel for the appellant and submitted that the appellant was apprehended from a public place and, therefore, the provisions of Section 43 of the N.D.P.S. Act would apply to the case. Meaning thereby that the search and seizure proceedings conducted by the Constable cannot be said to be illegal. He thus prays that the appeals filed on behalf of the appellant deserve to be dismissed. 6. Meaning thereby that the search and seizure proceedings conducted by the Constable cannot be said to be illegal. He thus prays that the appeals filed on behalf of the appellant deserve to be dismissed. 6. Heard and considered the arguments advanced by learned counsel for the parties at the bar, perused the order impugned as well as the record of the case. 7. From a bare perusal of the record, it is evident that the initial search of the appellant was conducted by Sher Singh and Mohan Singh, both Constables in the RAC. Both Sher Singh (PW-4) and Mohan Singh (PW-3) have stated that there were smaller packets inside the gunny bags, which was held by the appellant and the poppy straw was packed inside the smaller packets. The search conducted by Sher Singh and Mohan Singh, who were Constables in the RAC was at a public place, as such, the provisions of Section 43 of the N.D.P.S. Act would apply and, therefore, this Court is of the opinion that the contention advanced by learned counsel for the appellant that the initial search conducted by Sher Singh and Mohan Singh, who were Constables in the RAC was illegal and vitiated the seizure does not appeal to this Court. However, the link evidence, which has been led by the prosecution in this case for proving the safe custody of the sample is far from satisfactory. The seizure memo Exhibit P-2 bears a specimen memo of seal impression on the first page, but, there is no seal impression on the second page of the seizure memo. The seizure memo also does not refer to any fact that a separate slip bearing the specimen seal memo was prepared at the time when the sample was drawn. The Malkhana register has been exhibited at the trial as Exhibit P-4A and the said register also does not refer to any specimen memo of seal having been forwarded to the F.S.L. for comparison. The forwarding letter sent from the Superintendent of Police, Sri Ganganagar has been marked as Exhibit P-13 at the trial and in the said forwarding letter, there is no reference of any separate specimen seal memo having been forwarded to the F.S.L. along with the sample. The forwarding letter sent from the Superintendent of Police, Sri Ganganagar has been marked as Exhibit P-13 at the trial and in the said forwarding letter, there is no reference of any separate specimen seal memo having been forwarded to the F.S.L. along with the sample. The forwarding letter of the S.H.O. has been marked as Exhibit P-12 at the trial and in the said letter also, there is no reference that any such specimen seal memo was separately forwarded to the F.S.L. The carrier of the Sample has been examined as (PW-5) Raghuveer Singh. He too has not stated that he carried any specimen memo impression along with the sample. The in-charge of the Malkhana of the Police Station who handed over the samples to Raghuveer Singh (PW-5) has been examined at the trial as (PW-9) Raghuveer Singh. He too has not stated that any separate specimen memo was forwarded with the sample. The S.H.O. Prem Narayan Bishnoi (PW-8) in his deposition has not stated that any separate specimen seal memo was prepared by him whilst drawing the sample. Thus, in the opinion of this Court, the prosecution has failed to prove by leading cogent evidence that the sample of the seized poppy straw was accompanied with any specimen memo of seal so that the official at the F.S.L. could compare the same with the seal appended on the sample. In view of the aforesaid facts, it is apparent that the prosecution has not produced the proper link evidence on the record of the case for proving that the sample of the seized poppy straw reached the F.S.L. in the self same condition. Thus, this Court is of the opinion that the conviction of the appellant in this case cannot be sustained and is liable to be set aside.Resultantly, these appeals are allowed. The conviction of the appellant Mohan Singh for the offence under Section 8/15 of the N.D.P.S. Act as recorded by the learned Sessions Judge, Sri Ganganagar is set aside. The appellant is acquitted from the charge levelled against him. He is on bail. His bail and surety bonds stand discharged. The appellant-Mohan Singh need not surrender.Appeal allowed. *******