Research › Search › Judgment

Rajasthan High Court · body

2016 DIGILAW 329 (RAJ)

Ashok v. State of Rajasthan

2016-02-26

SANDEEP MEHTA

body2016
JUDGMENT : Sandeep Mehta, J. These three appeals are directed against the judgment dated 16.5.2014 passed by the Special Judge, NDPS Act Cases No.1, Chittorgarh in Sessions Case No.48/2009 whereby the appellants were convicted and sentenced as below:- Accused/Appellants Conviction for offence under Section Sentence Lekhraj Singh 8/15 of NDPS Act 10 years’ R.I. with a fine of Rs. 1 lac in default of payment of fine, to further undergo 1 year’s additional R.I. Ghewar @ Ghewar Ram 8/15 of NDPS Act 10 years’ R.I. with a fine of Rs. 1 lac in default of payment of fine, to further undergo 1 year’s additional R.I. Ashok 8/15 of NDPS Act 10 years’ R.I. with a fine of Rs. 1 lac in default of payment of fine, to further undergo 1 year’s additional R.I. 8/25 of NDPS Act 10 years’ R.I. with a fine of Rs. 1 lac in default of payment of fine, to further undergo 1 year’s additional R.I. Facts necessary and relevant for the disposal of the appeal are herein below. 2. Shri Sukhraj Singh posted as SHO Police Station Vijaypur received a source information on 22.4.2009 to the effect that a Mahindra passenger jeep No.RJ01-TA-1115 in which three persons were sitting was likely to come from towards Gwalior M.P. and would be proceeding towards Ajmer. It was suspected that bags full of poppy were being smuggled in the jeep. The information being reliable was taken down into writing and a copy thereof was forwarded to the superior officers through a special messenger as per the requirement of Section 42(2) of the NDPS Act. The SHO formed a team of Police personnel and proceeded to Bus Stand Vijaypur. Two private persons namely Prakash and Vinod were summoned to associate with the proposed proceedings of search and seizure. The Police party put up a cordon at the Gwalior turn village Vijaypur. At about 8 AM, the suspected Mahindra jeep was seen coming from towards Gwalior. The driver was signaled to stop the jeep but he broke through the Police cordon and drove the vehicle away at a great speed towards village Bassi. Pursuit was given. The suspects turned the vehicle towards Gopalpura road and just ahead of the village Arjunpura, the vehicle was stopped in an agricultural field and three persons fled away therefrom. Two occupants of the jeep were apprehended after pursuit but one managed to escape. 3. Pursuit was given. The suspects turned the vehicle towards Gopalpura road and just ahead of the village Arjunpura, the vehicle was stopped in an agricultural field and three persons fled away therefrom. Two occupants of the jeep were apprehended after pursuit but one managed to escape. 3. On inquiry, the apprehended persons disclosed their names to be Lekhraj Singh and Ashok. They feigned ignorance about the identity of the third man, who had escaped. The accused were given notice under Section 50 of the NDPS Act. They gave consent to be searched by the SHO. On search of the Mahindra Jeep No.RJ01-TA-1115 being taken, 8 bags full of poppy straw weighing 138 Kgs. were recovered. Two samples of 500 Gms. were taken out from each of the bags. The samples and the remaining contraband were sealed and chits with signatures of the Seizure Officer, the Motbirs and the accused were appended thereupon. Seizure memo was prepared at the spot. The offending vehicle was seized. The accused were arrested. Specimen memo of seal was also prepared at the spot. Thereafter, the SHO returned to the Police Station Vijaypur where, FIR No.32/2009 was registered against the accused for the offence under Section 8/15 of the NDPS Act. 4. The seized contraband and the samples etc. were deposited with the Malkhana Incharge in the Malkhana of the Police Station in a sealed condition. During investigation, the two apprehended accused Lekhraj and Ashok allegedly gave informations under Section 27 of the Evidence Act disclosing the name of the third accused, who had escaped, to be Ghewar @ Ghewar Ram. He too was arrayed as an accused in the case. The samples collected from the contraband were forwarded to the FSL for examination. During course of investigation, evidence was collected to the effect that the offending vehicle was in control and possession of Ashok being the son of the registered owner of the offending vehicle. 5. After initial investigation, a charge-sheet was filed against the accused Lekhraj Singh for the offence under Section 8/15 of the NDPS Act and against the accused Ashok for the offences under Sections 8/15 and 25 of the NDPS Act. Investigation was kept pending under Section 173(8) Cr.P.C. against Ghewar @ Ghewar Ram. 5. After initial investigation, a charge-sheet was filed against the accused Lekhraj Singh for the offence under Section 8/15 of the NDPS Act and against the accused Ashok for the offences under Sections 8/15 and 25 of the NDPS Act. Investigation was kept pending under Section 173(8) Cr.P.C. against Ghewar @ Ghewar Ram. It came to light that Ghewar Ram was in custody at Madhya Pradesh in another case of narcotics and thus, he was arrested in this case on 30.5.2011 through a production warrant. It is alleged that he, gave an information to the Investigating Officer under Section 27 of the Evidence Act and the spot verification of the place of recovery was carried out in pursuance thereof. Supplementary charge-sheet was filed against the accused Ghewar @ Ghewar Ram on 10.8.2011 for the offence under Section 8/15 of the NDPS Act and both the charge-sheets were consolidated. 6. Charges were framed against the accused appellants for the above offences. The accused pleaded not guilty and claimed trial. The prosecution examined a total of 25 witnesses in support of its case. The accused, in their statements denied the prosecution allegations and claimed that they had been falsely implicated. One witness Parthu Gurjar was examined in defence. A specific plea was raised on behalf of the accused before the trial Court that the prosecution failed to prove the seized contraband by exhibiting it in the court and thus, the prosecution failed to lead primary evidence of the alleged seizure. A plea was taken on behalf of the accused Ghewar Ram that other than the statements of the co-accused given to the Police Officers, which are inadmissible in evidence, there was no evidence worth the name on the record of the case so as to connect him with the alleged offence. A plea was taken on behalf of the accused Ashok that he was not the registered owner of the vehicle in question and thus, his prosecution for the offence under Section 8/25 of the NDPS Act was unjustified. It was also pleaded that two independent Motbirs PW.4 Prakash and PW.5 Vinod did not support the prosecution story and thus, the accused were not liable to be convicted on the strength of the evidence of Police witnesses only. 7. It was also pleaded that two independent Motbirs PW.4 Prakash and PW.5 Vinod did not support the prosecution story and thus, the accused were not liable to be convicted on the strength of the evidence of Police witnesses only. 7. The learned trial Judge dealt with the argument regarding the Muddamal not being produced in the court and its effect on the prosecution case as below:- ^^39- cgl ds nkSjku vfHk;qDrx.k ds vf/koDrk us tkfgj fd;k fd bl izdj.k esa tks rFkkdfFkr voS/k MksMkpwjk cjken fd;k tkuk crk;k gS og eky lk{; esa izLrqr ugha fd;k x;k gSA bl izdj.k esa tks lsEiy vkfVZdy&1 o vkfVZdy&2 lk{; ds nkSjku izLrqr fd;s x;s gS os lsEiy bl izdj.k ls lacaf/kr gks] ,slk Hkh lkfcr ugha gS D;ksafd lsEiy ij dksbZ uewuk fpV ugha gSA tCrh vf/kdkjh lq[kjktflag us viuh izfrijh{kk esa ;g Lohdkj fd;k gS fd mlus vkfVZdy&1 ij ,slk dksbZ lcwr ugha gS fd ;s bl izdj.k ls lacaf/kr gksA tCr'kqnk MksMkpwjk ds ckjs lk{; esa izLrqr ugha fd;s x;s gSA vfHk;kstu i{k }kjk ek= ;g izkFkZuk i= izLrqr dj nsus ls fd eky [kqys esa iM+s gksus ls lM+ xy x;k] lkfcr ugha gksrk gS D;ksafd bl izdkj dh dksbZ jkstukeapk jiV ;k QksVksxzkQ~l izLrqr ugha fd;s x;s gS rFkk bl izdj.k esa tCrh vf/kdkjh us lsEiy dh dk;Zokgh ds nkSjku fof/k ds izko/kkuksa dh ikyuk ugha dh gS mlus izR;sd cksjs ls vyx&vyx lsEiy ugha fudkys gS] mlus FkksM+k&FkksM+k MksMkpwjk fudky dj tks fefJr lsEiy fy;s gSa og vf/kfu;e ds izko/kkuksa ds vuqlkj fof/k vuqlkj lgh ugha gS] lHkh cksjksa esa MksMkpwjk gks ;g rF; bl lsEiy dh dk;Zokgh ls lkfcr ugha gksrk gSA vfHk;qDrx.k ds vf/koDrk us cgl ds nkSjku ;g Hkh tkfgj fd;k gS fd bl izdj.k esa iz;qDr lhy dks lqjf{kr ugha j[kk x;k gS] ftlls Hkh vfHk;kstu dgkuh lansgkLin gksrh gSA vius rdksZa ds leFkZu esa vfHk;qDrx.k ds vf/koDrk us fuEuksaDr U;kf;d n`"Vkar izLrqr fd;s gS%& 1- 2004 vkjålhålhå ist 270 ftrsUnz o vU; cuke e/; izns'k jkT; 2- 2008 lhåvkjå,yåvkjå ¼,llh½ ist 655 uwjvkxk cuke iatkc jkT; 3- 2007¼2½ lhåvkjå,yåvkjå ¼jkt½ ist 1695 ?ksojjke cuke jktLFkku jkT; 4- 2014¼1½ lhåvkjå,yåvkjå ¼jkt½ ist 199 t'kesj o vU; cuke jktLFkku jkT; 5- 2014¼1½ lhåvkjå,yåvkjå ¼jkt½ ist 163 usrjke cuke jktLFkku jkT; 40- fof'k"V yksd vfHk;kstd us cgl ds nkSjku tkfgj fd;k fd bl izdj.k esa tCrh vf/kdkjh ihåMå 21 lq[kjktflag dh lk{; ds nkSjku vfHk;qDrx.k ds dCts ls cjken fd;s x;s MksMkpwjk ds lsEiy vkfVZdy&1 o vkfVZdy&2 dks lk{; esa izLrqr fd;k x;k gSA ;g izdj.k o"kZ 2009 dk gS rFkk tCrh vf/kdkjh dh lk{; o"kZ 2014 esa gqbZ gSA MksMkpwjk lacaf/kr Fkkus esa j[k j[kko dh mfpr O;oLFkk ugha gksus ds dkj.k [kqys esa iM+k jgus ls lM+ xy tkus ls lk{; esa izLrqr ugha fd;k tk ldrk Fkk] bl laca/k esa vfHk;kstu i{k dh vksj ls izkFkZuk i= izLrqr fd;k x;k gS rFkk vkfVZdy&1 ,Q,l,y ls izkIr uewuk gS ftl ij ,Qå,lå,yå dh lhy yxh gqbZ gS rFkk vkfVZdy&2 dh fpV QV tkus ls dksbZ foijhr izHkko ugha iM+rk gS D;ksafd bl izdj.k esa ,Qå,lå,yå fjiksVZ fnukad izn'kZ ih&36 i=koyh ij gS ftlds vuqlkj uewuk vkfVZdy&1 ls dh xbZ tkap esa MksMkpwjk gksuk ik;k x;k gS rFkk tCrh vf/kdkjh us leLr cksjksa esa ls FkksM+k&FkksM+k MksMkpwjk fudky dj fefJr dj lsEiy fy;s x;s gS ftlesa fdlh izdkj dh dksbZ vfu;ferrk ugha gSA iz;qDr lhy Fkkus dh tujy lhy Fkk ftldk dksbZ nq:i;ksx ugha fd;k x;k gSA vfHk;qDrx.k dh vksj ls tks U;kf;d n`"Vkar izLrqr fd;s x;s gSa os rF;ksa dh fHkUurk ds dkj.k vfHk;qDrx.k dh dksbZ enn ugha djrs gSA 41- mHk;i{k ds rdksZa ij euu fd;k x;k ,oa i=koyh dk voyksdu fd;k x;kA i=koyh ds voyksdu ls ;g Li"V gS fd bl izdj.k esa tCrh vf/kdkjh ihåMå 21 lq[kjktflag us fnukad 22-04-2009 dks vfHk;qDrx.k dks fu;ekuqlkj uksfVl nsdj muds okgu dh ryk'kh ysus ij mlesa j[ks 08 cksjksa esa Hkjk dqy 138 fdyksxzke voS/k MksMkpwjk cjken fd;k FkkA ftlesa ls izR;sd cksjs esa ls 500&500 xzke ds lsEiy fudkydj mUgsa fefJr dj 04&04 fdyksxzke ds nks lsEiy vkfVZdy&1 o vkfVZdy&2 fudkys x;s FksA vkfVZdy&1 fof/k foKku iz;ksx'kkyk esa tkWap gsrq Hkstk x;k ftldh ,Qå,lå,yå tkap fjiksVZ izn'kZ ih&36 i=koyh ij gSA vkfVZdy&1 ij ,Qå,lå,yå dh eksgj yxh gksuk lk{; ls lkfcr djk;k x;k gSA vkfVZdy&2 dh fpV Qy tkus ds dkj.k izLrqr ugha dh xbZ gSA rFkk tCrlqnk eky Fkkus esa [kqys LFkku ij iM+s jgus ds dkj.k lM+ xy tkuk crk;k x;k gSA bl laca/k esa vfHk;kstu i{k dh vksj ls izkFkZuk i= izLrqr fd;k x;k gS rFkk bl dkj.k ls tCr'kqnk voS/k MksMkpwjk ds ckjs lk{; esa izLrqr ugha fd;s tk lds gS rFkk bl rF; dksbZ ykHk vfHk;qDrx.k dks izkIr ugha gksrk gSA ekuuh; jktLFkku mPp U;k;ky; us vius fu.kZ; ,låchå fdzfeuy vihy uEcj 653@2008 'kSrkuflag cuke jktLFkku jkT; esa ;g vfHkfu/kkZfjr fd;k gS fd vfHk;kstu i{k }kjk izLrqr lk{; ls ;g lkfcr djk fn;k tkrk gS fd vfHk;qDrx.k ds dCts ls rFkkdfFkr lkeku cjken gqvk gS ,oa vfHk;kstu i{k }kjk izkFkZuk i= izLrqr dj ml lkeku dks izLrqr ugha fd;s tkus dk mfpr dkj.k izLrqr dj fn;k tkrk gS rks bldk dksbZ ykHk vfHk;qDrx.k dks ugha fn;k tk ldrk gSA tks U;kf;d n`"Vkar vfHk;qDrx.k dh vksj ls izLrqr fd;s x;s gS os rF;ksa dh fHkUurk ds dkj.k vfHk;qDrx.k dh dksbZ enn ugha djrs gSA vr% bl izdj.k esa tCrlqnk eky lk{; esa iznf'kZr ugha djk;s tkus dk dksbZ ykHk vfHk;qDrx.k dks ugha fn;k tk ldrk gSA bl izdj.k esa tks ekSds ij lhy iz;qDr dh xbZ gS og Fkkus dh tujy lhy Fkh ftldk dksbZ nq:i;ksx fd;k tkuk lkfcr ugha gqvk gSA** 8. Despite finding that the prosecution failed to exhibit the Muddamal and the samples, the learned trial Judge observing that the prosecution gave significant oral and documentary evidence to prove the factum of recovery of contraband poppy straw weighing 138 Kgs. from the two accused Lekhraj Singh and Ashok. The evidence given by the prosecution for proving the power of attorney executed by Ram Lal in favour of Ashok regarding the offending vehicle was considered to be sufficient so as to establish the guilt of the accused Ashok for the offence under Section 8/25 of the NDPS Act. The learned trial Judge further held that the prosecution gave evidence to the effect that the accused Lekhraj Singh, Ghewar @ Ghewar Ram and Ashok were sitting in the offending jeep at the relevant time. Ghewar Ram managed to escape but the other two were apprehended at the spot. The prosecution proved compliance of all the mandatory provisions of NDPS Act and thereby, the accused were held guilty of the above offences and were convicted and sentenced as above. Hence, this appeal. 9. Sarva Shri RK Charan, KR Bhati, Mahaveer Bishnoi, learned counsel representing the accused appellants vehemently contended that their conviction in this case is absolutely unjustified. Drawing attention of the Court to the statement of the Seizure Officer Sukhraj Singh PW.21 and the above quoted findings in the trial Court’s judgment, learned counsel contended that admittedly the prosecution failed to lead primary evidence of the seizure because the Muddamal was not produced and exhibited in the court. The Seizure Officer also did not comply with the procedure provided under Section 52A of the NDPS Act. No inventory, photographs or representative samples were prepared and proved at the trial. 10. The samples which were exhibited in the court after allegedly being received back from the FSL did not bear any identifying marks. Thus, they contended that the conviction of the appellants in this case is absolutely illegal and cannot be sustained. Shri KR Bhati, learned counsel representing the accused Ghewar @ Ghewar Ram contended that so far as his client is concerned, there is no evidence whatsoever on the record of the case so as to justify his conviction. Admittedly, he could not be identified at the time of the recovery. Shri KR Bhati, learned counsel representing the accused Ghewar @ Ghewar Ram contended that so far as his client is concerned, there is no evidence whatsoever on the record of the case so as to justify his conviction. Admittedly, he could not be identified at the time of the recovery. He contended that as against the accused Ghewar @ Ghewar Ram, the only evidence, which the prosecution proposed, was by way of the confessional statements of the co-accused given to the Investigating Officer during course of the investigation. 11. Such statements being confessional in nature are inadmissible in evidence as being hit by Sections 25 and 26 of the Evidence Act. Thus, learned counsel representing the accused vehemently urged that the impugned judgment of conviction cannot be sustained being bad in facts as well as in law and the accused are entitled to be acquitted of all the charges. 12. Per contra, the learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellants and supported the judgment passed by the learned trial Court. However, he too does not dispute the fact that from the evidence of the Seizure Officer Sukhraj Singh PW. 21, the assertion of the learned counsel for the appellants regarding the Muddamal not being exhibited in the court and the samples which were exhibited not having any identifying marks, cannot be controverted. 13. Heard and considered the arguments advanced by the learned counsel for the appellants, learned Public Prosecutor and perused the entire record. 14. Since the judgment as passed by the learned trial Court has been assailed on two grounds only, the entire prosecution evidence need not be discussed. However, it may be noted that the two independent Motbirs PW. 4 Prakash and PW. 5 Vinod, who were associated with the recovery did not support the prosecution case at the trial. 15. This Court in the case of Aladdin & Anr. However, it may be noted that the two independent Motbirs PW. 4 Prakash and PW. 5 Vinod, who were associated with the recovery did not support the prosecution case at the trial. 15. This Court in the case of Aladdin & Anr. v. State of Rajasthan (S.B. Criminal Appeal No. 1050/2015) decided on 19.2.2016 after taking note of various judgments rendered by Hon'ble Supreme Court as well as this Court on the issue of non-production of Muddamal in the court and its effect on the prosecution case during a trial for the offences under the NDPS Act, held that in the cases involving recovery of narcotics, the prosecution is under an obligation to produce and exhibit the Muddamal in the court in the self same condition in which it was seized. The judgments rendered by the Hon'ble Supreme Court in the cases of Noor Agha v. State of Punjab & Ors. reported in 2008 Cr. LR (SC) 655, Jitendra & Ors. v. State of Madhya Pradesh reported in 2003-04 (Supp) Cr. LR (SC) 699, Ashok alias Dangra Jaiswal v. State of M.P. reported in AIR 2011 Supreme Court 1335 and Vijay Jain v. State of M.P. reported in 2013(14) SCC 527 as well this Court’s judgments in the cases of Thakra Ram v. State of Rajasthan being S.B.Cr. Appeal No.311/2009 decided on 4.10.2013 and Bhagirath Ram v. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.) 117, laying down this proposition and the contrary view in the case of Gian Chand v. State of Haryana reported in (2013) 14 SCC 420 , were considered and it was laid down that failure to exhibit the Muddamal in the self same condition is fatal to the prosecution in a case involving recovery of narcotics drugs and psychotropic substances. The only mode by which, the prosecution can avoid this burden is, by exhibiting the photographs, inventory and the representative samples prepared under Section 52A of the NDPS Act. Admittedly, the said procedure was not followed by the prosecution in this case. Non-exhibition of the Muddamal in the court leads to the irrefutable conclusion that the prosecution failed to lead primary evidence of the seizure and thus, the entire evidence of the prosecution regarding the alleged seizure has to be discarded. Admittedly, the said procedure was not followed by the prosecution in this case. Non-exhibition of the Muddamal in the court leads to the irrefutable conclusion that the prosecution failed to lead primary evidence of the seizure and thus, the entire evidence of the prosecution regarding the alleged seizure has to be discarded. The learned trial Judge in total abhorrence of the principle of stare decisis, bypassed this argument, which was based on the law as laid down by the Hon'ble Supreme Court by relying on a Single Bench Judgment rendered by this Court in the case of Shaitan Singh. The approach of the learned trial Judge in this regard deserves to be deprecated. 16. So far as the accused Ghewar @ Ghewar Ram is concerned, the so-called material available to the prosecution so as to prove his involvement in the case, was in the form of the confessional statements given by the co-accused to the Investigating Officer and the spot verification memo prepared in pursuance of the information given by the accused to the Investigating Officer under Section 27 of the Evidence Act. It cannot be gainsaid that a confessional statement of an accused recorded by a Police Officer is totally inadmissible in evidence as the same would be hit by Sections 25 and 26 of the Evidence Act. So far as the spot verification memo prepared by the Investigating Officer at the instance of the accused Ghewar Ram is concerned, the said document is also inadmissible in evidence as the place of recovery was already in the knowledge of the Investigating Officer. 17. In view of the above discussion, this Court is of the opinion that the impugned judgment passed by the learned trial Court convicting and sentencing the appellants for the offences under Sections 8/15 and 25 of the NDPS Act is grossly bad in facts as well as in law and cannot be sustained. The appeals thus deserve to be and are hereby allowed. 18. The impugned judgment dated 16.5.2014 passed by the Special Judge, NDPS Act Cases No.1, Chittorgarh is hereby set aside. The accused appellants are acquitted of the charges. 19. They are in custody and shall be released forthwith if not wanted in any other case. 20. Record be sent back. 21. A copy of this order be placed in each file.