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Rajasthan High Court · body

2013 DIGILAW 1835 (RAJ)

Bhagirath Ram v. State of Rajasthan

2013-10-18

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal has been preferred by the appellant challenging the judgment dated 18.12.2007 passed by the learned Special Judge, N.D.P.S. Cases, Chittorgarh in Sessions Case No. 72/2004 convicting the appellant for the offence under Section 8/15 of the N.D.P.S. Act and sentencing him to 10 years R.I. and a fine of Rupees One Lakh, in default of payment of fine to further undergo one year R.I. 2. Briefly stated the facts of the case are that Ramesh Tiwari, Sub Inspector, Incharge, P.S. Kapasan allegedly received a source information on 22.6.2004 at 10.15 A.M., as per which it was reported that poppy straw had been collected in a truck No. RJ 19G-6315 from the surrounding villages of Chittorgarh and the driver was proceeding to Jodhpur from Chittorgarh via Kapasan, Nathdwara. The source informed that if Nakabandi was conducted around Kapasan, the driver could be apprehended with the contraband poppy straw and the truck. As the information was reliable, the Sub Inspector, In-charge, Police Station Kapasan noted it in the Roznamcha and forwarded a copy thereof to his superiors with constable Vikram Singh in compliance of Section 42 of the N.D.P.S. Act. Thereafter he formed a raid party and reached the Chittorgarh-Nimbahera Highway and laid a blockade near Kapasan at about 10.20 A.M. The truck of which the information was given was seen coming from towards Chittorgarh at 11.10 A.M. and was stopped. The driver of the truck got down and disclosed his name to be Bhagirath Ram S/o Virmaram Vishnoi (the appellant herein). He was given an option under Section 50 of the N.D.P.S. Act before initiating search. The accused consented to have his personal search as well as his truck searched by Sub Inspector Ramesh Tiwari. Accordingly, the Sub Inspector proceeded to search the truck and 64 gunny bags full of contraband styled to be poppy straw were recovered from therein. The accused could not produce any license or permit for possessing and transporting the poppy straw. Accordingly the poppy straw was seized. The gross weight of the 64 gunny bags came to be 2652 kgs. Sixty four samples of one kg. each were taken out of the bags and were sealed in separate packets. The remaining poppy straw was sealed in the same bags and identifying chits were appended thereupon. Accordingly the poppy straw was seized. The gross weight of the 64 gunny bags came to be 2652 kgs. Sixty four samples of one kg. each were taken out of the bags and were sealed in separate packets. The remaining poppy straw was sealed in the same bags and identifying chits were appended thereupon. Seizure documents were prepared and the accused was arrested after giving him a notice under Section 52 of the N.D.P.S. Act. Thereafter the Sub Inspector returned back to the Police Station and registered an F.I.R. No. 200/2004. 3. After completing investigation, a charge sheet was filed against the appellant for the offence under Section 8/15 of the N.D.P.S. Act. The co-accused Suresh and Bhanwarlal were charge-sheeted under Section 8/29 of the N.D.P.S. Act. Investigation was kept open against the absconding co-accused Bhakar Ram And Bhanwarlal. 4. The Trial Court framed charge against the appellant for the offence under Section 8/15 of the N.D.P.S. Act whereas the co-accused Suresh and Bhanwarlal were charged under Section 8/29 of the N.D.P.S. Act. The accused pleaded not guilty and claimed trial. The prosecution examined 32 witnesses in support of its case. The accused, in their statements under Section 313 Cr.P.C. denied the prosecution-allegations but did not lead any evidence in defence. At the conclusion of the trial, the learned trial Judge acquitted the co-accused and convicted and sentenced the appellant as above. Hence, this appeal. 5. Mr. Sunil Mehta, learned counsel for the appellant has challenged the appellant's conviction on a solitary ground. He contended that the prosecution did not produce the material exhibit i.e. Muddamal in the Court during evidence, and thus, it failed to prove that contraband poppy straw weighing 2642 Kgs. was actually recovered from the accused. He referred to the statement of the Seizure Officer PW-30 Ramesh Tiwari and contended that the Seizure Officer did not exhibit the Muddamal in the Court and took the plea that the Muddamal had decayed and disintegrated because of lying in an exposed condition and thus it was not possible to exhibit the same in the Court. 6. He referred to the statement of the Seizure Officer PW-30 Ramesh Tiwari and contended that the Seizure Officer did not exhibit the Muddamal in the Court and took the plea that the Muddamal had decayed and disintegrated because of lying in an exposed condition and thus it was not possible to exhibit the same in the Court. 6. Upon considering the said argument advanced by the learned counsel for the appellant, the Court vide order dated 8.7.2013 directed the learned Public Prosecutor to inform the Court as to whether any entry was made in the Roznamcha Register of the Police Station about the seized poppy straw having been decayed and disintegrated because of lying exposed to nature. 7. The learned Public Prosecutor in compliance of the direction issued by this Court has filed a reply supported by an affidavit of the S.H.O. P.S. Kapasan. It is admitted in the reply that no entry pertaining to the Muddamal of this case having been destroyed or disintegrated was made in the Roznamcha of the Police Station. Learned counsel referring to the situation which is revealed from the reply urged that the appellant cannot be held liable for transporting 2652 kgs. of poppy straw. He submitted that as the Muddamal was not exhibited in the Court and as the explanation given by the prosecution witness i.e. the Seizure Officer Ramesh Tiwari for non production of Muddamal is apparently not creditworthy and is also not supported by documentary evidence, the accused deserves to be acquitted of the charge in this case. 8. Per contra, the learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellant. He urged that the version of the Seizure Officer while deposing in the Court that Muddamal was destroyed and disintegrated by exposure to natural conditions is reliable and should be accepted. He submitted that the seizure memo bears the signatures of the accused, the motbirs and the Seizure Officer and refers to the fact regarding recovery of 2652 kgs. of poppy straw. He further submitted that 64 packets of samples were exhibited by the Seizure Officer while deposing in the Court and thus there is no reason to discard the testimony of the Seizure Officer regarding the recovery of 64 bags full of poppy straw weighing 2652 kgs. from the truck driven by the accused. of poppy straw. He further submitted that 64 packets of samples were exhibited by the Seizure Officer while deposing in the Court and thus there is no reason to discard the testimony of the Seizure Officer regarding the recovery of 64 bags full of poppy straw weighing 2652 kgs. from the truck driven by the accused. He, therefore, urged that the appeal deserves to be rejected. 9. Heard and considered the arguments at the bar. Perused the judgment impugned and the record. Since the challenge to the appellant's conviction has been limited to the solitary ground set out above, this Court need not go into the minute details of the evidence led by the prosecution in this case. From a cursory appreciation of the evidence available on record, this Court is satisfied that the mandatory provisions of the N.D.P.S. Act were followed and complied with before searching the vehicle. Otherwise also, the recovery of contraband having been effected from a truck (Public transport vehicle) being driven by the appellant during transit through a public place, the burden of proof shifted on him by virtue of Section 35 of the N.D.P.S. Act. The provisions of Section 43 of the N.D.P.S. Act would be applicable to the situation and no illegality or irregularity is observed in the seizure proceedings. 10. Be that as it may. In view of the argument advanced before this Court regarding non production of the Muddamal in the Court, this Court has to consider the aspect as to whether the prosecution was able to prove physically that the appellant was carrying 2652 kgs. of poppy straw in his truck. The Hon'ble Apex Court considered this issue exhaustively in the case of Noor Aga v. State of Punjab & Anr., reported in AIR 2009 SC (Supp) 852. and observed as under:- "Non Production of Physical Evidence 111. The prosecution alleged that 1.4 kgs heroin was concealed in a cardboard container for carrying grapes and were recovered from the appellant at Raja Sansi Airport. Essential key items necessary to prove the same were: "(i) The cardboard carton allegedly used;for carrying the heroin to test the veracity. (ii) The bulk, which establishes the quantity recovered. The prosecution alleged that 1.4 kgs heroin was concealed in a cardboard container for carrying grapes and were recovered from the appellant at Raja Sansi Airport. Essential key items necessary to prove the same were: "(i) The cardboard carton allegedly used;for carrying the heroin to test the veracity. (ii) The bulk, which establishes the quantity recovered. (iii) The three homogenous samples of five grams each taken from the bulk amount of heroin, which would be essential in ascertaining whether the substance that the accused was allegedly in possession of was, in fact, heroin." 112. Indisputably, the cardboard carton was not produced in Court being allegedly missing. No convincing explanation was rendered in that behalf. The High Court, in its judgment, stated: "The case set up by the prosecution is that the appellant being a member of a crew party, was in possession of his luggage, which included the cardboard carton, from which the recovery of heroin was allegedly effected. The appellant himself had presented the said carton along with the other luggage for custom clearance. From these facts, at least one thing is clear that the carton which was carrying the contraband, was under his immediate control. The argument advanced by Mr. Guglani is that the luggage which was being carried by the crew members, had no specific identification slips as in the case of an ordinary passenger travelling in an aircraft. So what was being carried in the carton was within the knowledge of the appellant alone and, therefore, the element of possession and control of the contraband qua the appellant is writ large and the presumption of culpable mental state under Sections 35 and 54 of the Act has to be drawn against him." 113. The inference was drawn only on the basis of a mere assertion of the witness that the cardboard carton wherefrom the contraband was allegedly recovered as the one which had been in possession of the appellant without any corroboration as regards the purported "apparent practice of crew members carrying their own luggage" and there being no identification marks on the same. No material in this behalf has been produced by the respondent No. witness has spoken of the purported practice. For all intent and purport another presumption has been raised by the High Court where for no material had been brought on record. No material in this behalf has been produced by the respondent No. witness has spoken of the purported practice. For all intent and purport another presumption has been raised by the High Court where for no material had been brought on record. No explanation has been given as to what happened to the container. Its absence significantly undermines the case of the prosecution. It reduces the evidentiary value of the statements made by the witnesses referring the fact of recovery of the contraband therefrom. 120. Omission on the part of the prosecution to produce evidence in this behalf must be linked with second important piece of physical evidence that the bulk quantity of heroin allegedly recovered indisputably has also not been produced in Court. Respondents contended that the same had been destroyed. However, on what authority it was done is not clear. Law requires that such an authority must flow from an order passed by the Magistrate. Such an order whereupon reliance has been placed is Exhibit PJ; on a bare perusal whereof, it is apparent that at no point of time any prayer had been made for destruction of the said goods or disposal thereof otherwise. What was necessary was a certificate envisaged under Section 110(1B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory etc. The same does not contain within its mandate any direction as regards destruction. What was necessary was a certificate envisaged under Section 110(1B) of the 1962 Act. An order was required to be passed under the aforementioned provision providing for authentication, inventory etc. The same does not contain within its mandate any direction as regards destruction. The only course of action the prosecution should have resorted to is to obtain an order from the competent Court of Magistrate as envisaged under Section 52-A of the Act in terms whereof the officer empowered under Section 53 upon preparation of an inventory of narcotic drugs containing such details relating to their descriptor, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed, country of origin and other particulars as he may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings thereunder make an application for any or all of the following purposes: "(a) Certifying correctness of the inventory so prepared; or (b) Taking, in the presence of such Magistrate, photographs substances and certifying such photographs as true; or (c) Allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn." 121. Sub-section (3) of Section 52-A of the Act provides that as and when such an application is made, the Magistrate may, as soon as may be, allow the application. The reason where for such a provision is made would be evident from sub-section (4) of Section 52-A which reads as under: "52-A. Disposal of seized narcotic drugs and psychotropic substances. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence." 122. Concededly neither any such application was filed nor any such order was passed. Even no notice has been given to the accused before such alleged destruction. 130. Physical evidence of a case of this nature being the property of the Court should have beep, treated to be sacrosanct. Concededly neither any such application was filed nor any such order was passed. Even no notice has been given to the accused before such alleged destruction. 130. Physical evidence of a case of this nature being the property of the Court should have beep, treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant. 131. This aspect of the matter has been considered by this Court in Jitendra v. State of U.P., (2004) 10 SCC 562 , in the following terms: "In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and product ibis of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the N.D.P.S. Act." (Emphasis supplied) 11. The plea taken by the Sub Inspector whilst deposing at the trial was that the Muddamal had been decayed and disintegrated in the rain and by exposure to nature thus it was not possible to produce it in the Court. Had there been a semblance of truth in the said plea, then corroborative evidence was essential to accept the same. An entry to this effect should have been made in the Rojnamcha of the Police Station. Unfortunately, as observed above, no such entry was made in the Rojnamcha of the Police Station. Thus the testimony of the Seizure Officer, PW-30 Ramesh Tiwari that the 64 bags full of Muddamaal poppy straw seized in this case got disintegrated on being exposed to nature cannot be believed and has to be discarded. 12. In view of the above discussion, it is evident that the prosecution failed to prove by material physical evidence that 2652 kgs. 12. In view of the above discussion, it is evident that the prosecution failed to prove by material physical evidence that 2652 kgs. of poppy straw was recovered from the truck being driven by the accused appellant as the Muddamal was not exhibited in the Court. Hon'ble the Apex Court in the case of Jitendra v. State of M.P. (supra) has held such an infirmity to be fatal to the prosecution. Thus, this Court has no hesitation in holding that the prosecution failed to prove that the appellant was transporting 2652 kgs. of poppy straw in the truck No. RJ 19G-6315.However, the question which still looms before the Court is as to whether the appellant is entitled to be acquitted for the reasons mentioned above. Before arriving at any such finding another material aspect of the case needs to be examined. The Seizure Officer mentioned in the seizure memo that 64 samples weighing 1 kg. each were drawn from the 64 gunny bags of poppy straw which were being transported in the truck driven by the appellant. 64 samples packets weighing 1 kg. each were exhibited as Articles A-l to A-64 in the Court by the Seizure Officer PW-30 Ramesh Tiwari during the course of his examination. This aspect of his evidence remained un-controverted and unchallenged. No shortcoming was pointed out regarding this evidence. Thus, material physical evidence regarding 64 kgs. of poppy straw being carried by the appellant in his truck was affirmatively led by the prosecution at the trial. 13. The samples were forwarded to the Forensic Science Laboratory for examination and the State Forensic Science Laboratory vide its report dated 21.5.2008 Ex.P-28 opined that the samples gave positive test for the presence of chief constituents of opium, and accordingly, it was concluded that the samples were of dried crushed capsules of opium poppy from which juice had been extracted. The samples forwarded to the State Forensic Science Laboratory were returned back by the Laboratory after examination and were exhibited by the Seizure Officer as Articles A-l to A-64 in the Court during his evidence. 14. In wake of above discussion, this Court is of the opinion that the prosecution was able to prove beyond all manner of doubt that the appellant was apprehended whilst transporting 64 kgs. of poppy straw in the truck No. RJ 19G-6315. 14. In wake of above discussion, this Court is of the opinion that the prosecution was able to prove beyond all manner of doubt that the appellant was apprehended whilst transporting 64 kgs. of poppy straw in the truck No. RJ 19G-6315. Hence, this Court has no hesitation in holding that the appellant was found in possession of 64 kgs. of contraband poppy straw in this case which is above the commercial quantity (50 kgs) as per the schedule appended to the N.D.P.S. Act. 15. Resultantly, the appellant's conviction for transporting 64 kgs. of poppy straw which is more than commercial quantity deserves to be upheld. The appellant has been in custody right from the date on which he was apprehended i.e. from 22.6.2004. Whilst upholding the conviction and sentences awarded to the appellant for the offence under Section 8/15 of the N.D.P.S. Act, the sentence awarded to him in default of payment of fine deserves to be reduced from a period of one year to three months R.I. 16. Before parting, it is noteworthy that this Court has come across numerous cases wherein the non production of Muddamal has led to the accused otherwise responsible for dealing in narcotics going scat free. Thus, a serious question is posed before this Court as to whether the unwarranted situation where the Court is left helpless and has to acquit the accused because of the failure of the prosecution to discharge its burden of physically proving the Muddamal in the Court can be averted. It is common knowledge that the prosecution shirks from its duty to produce the Muddamal in the Court particularly in the cases involving recovery of huge quantity of contraband due to various practical difficulties. The Police Stations are not equipped with appropriate storage facility. The trials of the cases take a long time. The transportation of the huge quantity of Muddamal apart from being cumbersome and expensive also poses a security risk. The learned Public Prosecutor informed the Court that the disposal of the Malkhana articles particularly of seized narcotics drugs Psychotropic Substances and Controlled Articles is pending in various Police Stations across the State for the last nearly 20 years. This unsavoury situation can be avoided if the meticulous procedure prescribed for disposal of seized narcotics drugs under Section 52-A of the N.D.P.S. Act is followed in its letter and spirit. This unsavoury situation can be avoided if the meticulous procedure prescribed for disposal of seized narcotics drugs under Section 52-A of the N.D.P.S. Act is followed in its letter and spirit. For the sake of convenience, Section 52-A of the Narcotic Drugs and Psychotropic Substances Act is reproduced hereunder:- "52-A. Disposal of seized narcotic drugs and psychotropic substances.- (1) The Central Government may, having regard to the hazardous nature of any narcotic drugs or psychotropic substances, their vulnerability to theft, substitution, constraints of proper storage space or any other relevant considerations, by notification published in the Official Gazette, specify such narcotic drugs or psychotropic substances or class of narcotic drugs or class of psychotropic substances which shall, as soon as may be after their seizure, be disposed of by such officer and in such manner as that Government may from time to time, determine after following the procedure hereinafter specified. (2) Where any narcotic drug or psychotropic substance has been seized and forwarded to the Officer-in-charge of the nearest Police Station or to the officer empowered under Section 53, the officer referred to in sub-section (1) shall prepare an inventory of such narcotic drugs or psychotropic substances containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the narcotic drugs or psychotropic substances or the packing in which they are packed country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the narcotic drugs or psychotropic substances in any proceedings under this Act and make an application, to any Magistrate for the purpose of- (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of such drugs or substances and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (3) Where an application is made under sub-section (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every Court trying an offence under this Act, shall treat the inventory, the photographs of narcotic drugs or psychotropic substances and any list of samples drawn under sub-section (2) and certified by the Magistrate, as primary evidence in respect of such offence." 17. This Court feels, it necessary to direct that the seizing agency should mandatorily comply with the procedure for disposal of the seized narcotic drugs/psychotropic substances/controlled substances as provided under Section 52-A of the N.D.P.S. Act. The section itself provides that the documents certified by the Magistrate concerned under Section 52-A of the N.D.P.S. Act are to be treated as primary evidence at the trial of the case. By adopting this process, the cumbersome and cantankerous exercise of producing and exhibiting the bulky quantity of narcotics drugs in the Court during trial can be avoided and the prosecution would be able to prove the primary evidence of Muddamal in the Court by simply proving the documents prepared and certified by the Magistrate under Section 52-A of the Act.The inaction of the seizing agencies in resorting to the provisions of Section 52 - A of the N.D.P.S. Act is beyond comprehension of this Court. As a matter of fact, Section 52-A of the N.D.P.S. Act is a direction of law to the Officer in-charge of a Police Station. Any person who does not comply with such a direction would be liable to be prosecuted under Section 32 of the N.D.P.S. Act. The inaction virtually amounts to aiding the offenders who commit such serious offences to go scot free in cases where the acquittal is on the ground of non exhibition of Muddamal in the Court. The public servant concerned would virtually be responsible for providing an avenue of acquittal to the accused of such serious offences. In the opinion of this Court, by not complying with the procedure of Section 52-A of the Act, apart from committing gross dereliction of duty, the officer concerned would be liable to be prosecuted for the offence under Section 32 of the Act. In the opinion of this Court, by not complying with the procedure of Section 52-A of the Act, apart from committing gross dereliction of duty, the officer concerned would be liable to be prosecuted for the offence under Section 32 of the Act. The Court which is in seizin of the case can direct such a prosecution in an appropriate case. 18. In order to ensure appropriate compliance of the aforesaid provision, this Court feels necessary to direct all the Special Judges presiding over the Special Courts, N.D.P.S. Act cases in Rajasthan as below:- (i) As soon as a charge sheet for the offence under the N.D.P.S. Act is received by the Court, the Court shall instruct the Public Prosecutor to produce the Forensic Science Laboratory Report forthwith. In cases, where the documents pertaining to the procedure of Section 52-A of the N.D.P.S. Act do not form a part of the charge sheet, the Court shall direct the Prosecutor to instruct the Officer in-charge of the Police Station concerned to adopt appropriate proceedings under Section 52-A of the Act by filing appropriate application before the Magistrate (Executive or Judicial). (ii) The Magistrate concerned shall forthwith associate in the proceedings and the procedure prescribed under Section 52-A of the N.D.P.S. Act shall be carried out in its letter and spirit. The documents prepared during the proceedings shall be filed in the Trial Court as primary evidence of the seized Muddamaal. (iii) In the event of any situation arising regarding the veracity of the F.S.L. report, the accused or the prosecution as the case may be would have an opportunity of having the representative sample re-analysed through appropriate laboratory under the orders of the Court. 19. Accordingly, the appeal is allowed in part as stated above.Appeal partly allowed. *******