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Rajasthan High Court · body

2016 DIGILAW 1451 (RAJ)

State of Rajasthan v. Khinvre Khan, S/o Imam Khan

2016-10-05

NIRMALJIT KAUR

body2016
JUDGMENT : Nirmaljit Kaur, J. This criminal appeal has been filed under Section 373(iii) & (i) of the Cr.P.C. against the judgment and order dated 05.04.1990 passed by learned Sessions Judge, Balotra in Session Case No.28/1988 acquitting the accused-respondent of the offence under Section 17 of the NDPS Act. 2. Brief facts of the case are that on 06.04.1988 at 8:00 p.m., Head Constable Bhar Singh along with Hari Singh, Bhanwar Bharti, and Bhagirath started from Police Chowki Kalya During the Nakabandi, an information was received at about 2 a.m. that one person was coming from Doli Kallan to eastern side along with opium. Accordingly, Bhar Singh, Head Constable along with aforesaid officials reached Doli Nadi at 3 a.m. where they saw the present accused-respondent carrying a bag on his right hand. He told his name as Khinvre Khan. On asking as to what he was carrying in the bag, he did not give any satisfactory reply. On strong suspicion that the accused-respondent was carrying opium in his bag, Bhar Singh brought the accused-respondent to Police Chowki Kalyanpur. Thereafter, Ranchhod Singh, S.H.O., P.S. Mandli was informed on wireless. On information, Ranchhod Singh arrived at Police Chowki Kalyanpur at 7:00 a.m. and the accused was produced before him. Accused-respondent was searched in the presence of two witnesses i.e. Bhar Singh (PW-1) and Mohan Lal (PW-2), Both are police constables. On search of the bag, 2.900 kgs. of opium was recovered. An FIR was registered, investigation commenced and challan was filed against the accused-respondent. 3. During the course of the trial, as many as 5 prosecution witnesses were examined and the statement of the accused-respondent was recorded under Section 313 of the Cr.P.C. After conclusion of the trial, the respondent was acquitted of the charge levelled against him. 4. From the perusal of the judgment, it appears that the accused-respondent has been acquitted on the ground that there was non-compliance of Section 50 of the NDPS Act. Secondly, the accused was neither made aware of his right to be searched before a Gazette Officer or a Magistrate, First Class and nor any option to be searched before an Officer of his choice was given to him. There was also non-compliance of Section 42 of the NDPS Act as no information was sent to senior officer. 5. Learned counsel for the parties were heard. 6. There was also non-compliance of Section 42 of the NDPS Act as no information was sent to senior officer. 5. Learned counsel for the parties were heard. 6. Learned counsel for the appellant-State submitted that the prosecution has proved its case beyond doubt. The accused-respondent was caught red handed while he was in possession of 2.900 kgs. of opium. There are no contradictions in the statements of the prosecution witnesses. 7. Learned counsel for the respondent on the other hand pointed out from the record that the recovery was effected on 06.04.1988 at 2:00 a.m. and a sample of 30 gms. was taken. FIR was registered on the same day at 11:30 a.m. On 06.04.1988, the sample was given to PW-5 Arjun Ram, Malkhana Incharge, by Ranchhor Singh, S.H.O, Police Station Mandli. Arjun Ram (PW-5) handed over one sample (30 gms.) to PW- 2-Vishram Singh, FC of P.S. Mandli, who started his journey to S.P.Office, Barmer on 14.04.1988. PW-2 Vishram Singh reached Barmer at 1:30 P.M. on 14.04.1988 but took it to the office of the S.P. on 15.04.1988 instead of 14.04.1988 itself. As per the evidence on record, PW-2 Vishram Singh handed over the sample to FSL office at Jaipur on 16.04.1988. As per the argument of learned counsel for the accused-respondent, no evidence or explanation is forthcoming as to where the sample was kept in the night of 15.04.1988. Further, the sample was collected from S.P. Office, Barmer on 15.04.1988 itself but it was handed over to the FSL office, Jaipur on 16.04.1988. It is not established as to where the sample was kept by Vishram Singh in the night of 15.04.1988. Thus, the tampering of the sample cannot be ruled out. Secondly, the sample was 30 gms. but as per the FSL report, the sample that was received weighed 47 gms. 8. The finding of the trial court that Section 50 was not complied with is erroneous. The opium was recovered from a bag which was in the hand of the respondent-accused. No doubt, the compliance of Section 50 of the NDPS Act is mandatory, in case, the recovery is from a person. The recovery in the present case is from the bag carrying by the accused. The recovery from a bag held by the accused under no circumstances can be said to be a recovery from the person. No doubt, the compliance of Section 50 of the NDPS Act is mandatory, in case, the recovery is from a person. The recovery in the present case is from the bag carrying by the accused. The recovery from a bag held by the accused under no circumstances can be said to be a recovery from the person. Hence, it was not necessary to comply with the provision of Section 50 of the NDPS Act in the facts of the present case. 9. The next question is with respect to the compliance of Section 42 of the NDPS Act. It is evident from the record that when the information was received by PW-1 Bhar Singh, the same was not reduced in writing. The explanation offered is that he was patrolling when the information was received and he duly informed his immediate senior officer, namely, Ranchhod Singh, S.H.O. through wireless. 10. While dealing with such a situation, the Apex Court in the case of Karnail Singh v. State of Haryana, reported in (2009)8 SCC 539 observed in para 17 that it was mandatory to comply with the statutory provision of Section 42(1) & (2) of the NDPS Act as far as possible and as soon as it is practical. Para 17 of the same reads as under: "17. In conclusion, what is to be noticed is Abdul Rashid did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows: (a) The officer on receiving the information (of the nature referred to in Sub-section (1) of Section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of Clauses (a) to (d) of Section 42(1). (b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per Clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior. (c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency. (d) While total non-compliance of requirements of Subsections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001." 11. In the present case, the sequence of events shows that accused was arrested and taken to the Police Chowki Kalyanpur where they reached at 4:00 a.m. They waited for Ranchood Singh, S.H.O., P.S. Mandli to arrive. He arrived at 7:00 a.m. On his arrival, the bag was searched. From the time the accused arrived in the police station till as such time he was being searched, there was sufficient time for the Head Constable Bhar Singh to reduce the same in writing but the same was admittedly not done. Thereafter, even Ranchhod Singh, S.H.O. could reduce the same in writing and send it to his superior but Ranchhod Singh also did not deem it proper to do so. 12. Thus, in the present case, admittedly there is non-compliance of Section 42 of the NDPS Act. 13. Coming to the evidence and arguments with respect to the absence of any act, explanation regarding the status of the contraband from 14.04.1988 at 1:30 p.m. till the time of deposit in the S.P. Office i.e. on 15.04.1988, this Court may agree with the prosecution that there was no chance of tampering as the seal was intact. However, certain facts give rise to suspicion. PW-2 Vishram Singh on a specific question as to why the sample was not handed over in the office of the S.P. on 14.04.1988 itself as he had reached Barmer at 1:30 on 14.04.1988, replied that 14.04.1988 was a Sunday, whereas, it has been proved before this Court that 14.04.1988 was a Thursday. There was no reason for PW-2 Vishram Singh to lie about the day, in case, there is no malafide. The fact that he did not speak out the truth raises doubt as to whether the sample was the same sample which was deposited or any other sample, especially when coupled with the fact that sample at the time of collection was weighed 30 gms. The fact that he did not speak out the truth raises doubt as to whether the sample was the same sample which was deposited or any other sample, especially when coupled with the fact that sample at the time of collection was weighed 30 gms. but at the time of depositing, it weighed 47 gms. Learned counsel for the State submitted that the sample was weighed along with the container. However, from the FSL report it is not clear as to whether the opium was weighed with container or without container. In case, two view are possible, the benefit has to go to the accused. 14. As per Clause 1.7(a) of the Standing Instruction No.1/88 issued by the Narcotics Control Bureau, one sample in duplicate is to be drawn from one package/container. Admittedly, the same was not done. Sub-clause (a) of Section 1.7 of the Standing Instruction No.1/88 reads as under:- "1.7 Number of samples to be drawn in each seizure case (a) In the case of seizure of a single package/container one sample in duplicate is to be drawn...." 15. In the circumstances, there was no way to crosscheck as to whether the sample received by the FSL was the same sample. The same has caused great prejudice to the accused-respondent. 16. From the facts above, it is evident that (a) there is non-compliance of Section 42(1) & (2) of the NDPS Act; (b) the sample when collected weighed 30 gms. but the sample that was sent to the FSL weighed 47 gms.; and (c) only one sample was drawn from the packet which is in violation of the Standing Instruction No.1/88 issued by the Narcotics Control Bureau. Thus, the prosecution has failed to prove the case beyond doubt. Accordingly, this Court finds no ground to interfere with the judgment and order impugned. The appeal is dismissed being devoid of merit.