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2016 DIGILAW 334 (RAJ)

Central Bureau of Narcotics v. Prem Singh Ranawat

2016-02-26

SANDEEP MEHTA

body2016
ORDER : Sandeep Mehta, J. Heard learned counsel for the parties and perused the record. 2. The instant appeal has been preferred by the appellant CBN for assailing the judgment dated 31.10.2014 passed by learned Special Judge, N.D.P.S. Act Cases, Udaipur in Sessions Case No.222/2013 whereby, the accused respondents were acquitted from the charges for the offences under Sections 8/18(B), 8/15(C) & 8/29 of the N.D.P.S. Act. 3. Facts in brief are that Ravikant Prasad, Inspector, CBN claims to have received a source information on 19.2.2013 to the effect that Prem Singh Rajput was indulged in illicit trade of opium and poppy straw and if a raid was conducted at his residence on 20.2.2013, opium and poppy straw could be recovered. The information was allegedly taken down in writing and a copy thereof forwarded to the superior officers. A team consisting of the officers of CBN was constituted to conduct the raid. Two independent motbirs were summoned. The team reached the house allegedly owned by Prem Singh on 20.2.2013 at about 7 O' clock in the morning. Prem Singh was found present in the house. He was informed of the purpose of the team's visit. Thereafter, the members of the team entered inside the house and conducted a search. From inside the house, two steel tins containing 4 kgs. 300 grams of opium, 8 gunny bags of poppy straw powder weighing 249 kgs. 500 grams and 6 gunny bags of poppy straw capsules weighing 162 kgs. 700 grams were recovered. Samples were collected from recovered contraband. Prem Singh allegedly gave information to the Investigating Officer that 1 quintal of poppy straw was provided to him by accused Satyanarayan Keer whereas the remaining poppy straw and opium was provided by Bhagwan Das. These two accused were also arrested. The samples collected from the seized contraband were forwarded to the Government Opium Laboratory, Neemuch from where a report was allegedly received that the samples gave positive test for opium and opium poppy. A complaint was filed against the three accused for the said offences. The trial Court framed charges against Prem Singh for the offences under Sections 8/18(B) and 8/15(C) of the NDPS Act and against Satyanarayan Keer and Bhagwan Das for the offence under Section 8/29 of the NDPS Act. The accused denied the prosecution allegations and claimed trial. A complaint was filed against the three accused for the said offences. The trial Court framed charges against Prem Singh for the offences under Sections 8/18(B) and 8/15(C) of the NDPS Act and against Satyanarayan Keer and Bhagwan Das for the offence under Section 8/29 of the NDPS Act. The accused denied the prosecution allegations and claimed trial. The prosecution examined as many as 7 witnesses in support of its case and exhibited 18 documents. The accused, in their statements under Section 313 Cr.P.C. denied the allegations of the prosecution witnesses but did not choose to lead any defence. 4. The trial Court at the conclusion of the trial found that the prosecution failed to give primary evidence of the seizure because the Mudda Maal was not exhibited during the trial; no link evidence was given to prove the factum that the samples remained in the self same condition from the seizure till they were received by the laboratory ; the independent witnesses associated with the recovery did not support the prosecution case; the evidence led by the department regarding compliance of the mandatory requirements of Section 42(2) of the NDPS Act was found to be doubtful because neither the original source information was exhibited at the trial nor the entry in the despatch register was proved to establish the fact that the information was forwarded to the superior officer; the Deputy Commissioner Narcotics, Kota who allegedly received the information was not examined in evidence; neither any search warrant was procured before searching the house of Prem Singh nor did the seizure officer prepare the memorandum of reasons for not procuring the search warrant. After appreciating the entire evidence led before it, the trial Court held these shortcomings in the prosecution case to be fatal and proceeded to acquit the accused from the charges levelled against them. Hence, this appeal by CBN. 5. Shri N.K. Rai, learned Spl. P.P. vehemently contended that the mudda maal had been deposited in the Court's Maalkhana. The prosecution moved an application in the trial Court on 27.6.2014 requesting that it be allowed to exhibit the Mudda Maal. The trial Court did not pass any order on this application which was not even considered and remain undecided. 5. Shri N.K. Rai, learned Spl. P.P. vehemently contended that the mudda maal had been deposited in the Court's Maalkhana. The prosecution moved an application in the trial Court on 27.6.2014 requesting that it be allowed to exhibit the Mudda Maal. The trial Court did not pass any order on this application which was not even considered and remain undecided. He further submitted that the findings recorded by the trial Court in the impugned judgment regarding the Mudda Maal not having been exhibited at the trial and the alleged non-compliance of the requirement of Section 42 of the NDPS Act are baseless & factually wrong and thus, the impugned judgment should be quashed and set aside and the matter should be remanded to the trial Court for a denovo trial. 6. Per contra, Mr. R.S. Gill, learned counsel appearing for the accused respondents vehemently urged that the findings recorded by the trial Court in the judgment of acquittal are unassailable. The recovery was made from a residential premise pursuant to a source information. Thus, proving compliance of mandatory requirements of Section 42 of the NDPS Act was essential. No search warrant was taken by the seizure officer before conducting the search. The Mudda Maal was not exhibited in the Court. The independent witnesses associated with the recovery did not support the prosecution case. The prosecution did not even care to get the FSL report exhibited at the trial. No proper link evidence was led at the trial to establish that the samples taken out from the seized contraband remained in the self same condition right from the seizure till they reached the chemical examiner. He thus urged that no interference is called for in this appeal filed by the department against the judgment of acquittal of the accused respondents. 7. Heard learned counsel for the parties and perused the record. 8. This Court is of the firm opinion that on the face of record, the prosecutor conducting the trial before the trial Court acted in a grossly negligent fashion and in dereliction of the duties assigned to him. The report of the chemical examiner though available on record, was not exhibited. The learned Presiding Officer of the trial Court also acted negligently in this regard. The report of the chemical examiner though available on record, was not exhibited. The learned Presiding Officer of the trial Court also acted negligently in this regard. The prosecutor representing the CBN before the trial Court did not care to get the statements of the accused recorded under Section 67 of the N.D.P.S. Act marked as exhibits during evidence of the prosecution witnesses. There is a great deal of contradiction in the statements of the witnesses as regards the name of the officer who received the source information. PW5 Janardan Gupta stated that Vijay Singh Meena received the source information. PW6 Vijay Singh Meena stated that PW7 R.K. Prasad received the source information. He claims to have forwarded the information to the Commissioner, CBN, Gwaliar and Dy. Commissioner, CBN, Kota. However, the witness did not state about the mode of forwarding the information. PW7 Ravikant Prasad inspector stated that he received the source information which was taken down in writing and presented before Shri Vijay Singh who had the same transmitted to the superior officers. The original information noted by the witness Ravikant Prasad PW7 was not filed along with the complaint. The witness, during the course of his evidence, attempted to exhibit a carbon copy of the said information but when a pertinent question was put to him about the whereabouts of the original, he failed to offer any explanation. No entry of the dispatch register was proved to establish that the copy of the source information was forwarded to the superior officer so as to prove the compliance of the mandatory requirement of Section 42(2) of the N.D.P.S. Act. Vijay Singh Meena, Superintendent who claims to have forwarded the information to the Deputy Commissioner, Kota did not state about the manner in which the information was transmitted. The carrier of the information was not examined as a witness. The Deputy Narcotic Commissioner, Kota to whom the copy was allegedly forwarded was not examined at the trial. The last prosecution witness being Ravikant Prasad PW7 was examined in the trial Court on 27.6.2014. It is not disputed that Mudda Maal had been deposited in the Court's Maalkhana much before the witness was examined. The learned P.P. made no effort to summon and exhibit the Mudda Maal during the testimony of this witness. The last prosecution witness being Ravikant Prasad PW7 was examined in the trial Court on 27.6.2014. It is not disputed that Mudda Maal had been deposited in the Court's Maalkhana much before the witness was examined. The learned P.P. made no effort to summon and exhibit the Mudda Maal during the testimony of this witness. There was no need whatsoever to move the application seeking the Court's permission to exhibit the Mudda Maal. The source information dated 19.2.2013 revealed that the contraband was concealed in residential premises owned by the accused. Time aplenty was available but neither did the seizure officer make any attempt to procure a search warrant nor any memorandum of reasons for not procuring the search warrant was prepared before conducting the search. 9. The argument advanced by the learned Spl. P.P. Shri N.K. Rai that the trial Court did not deal with the application filed by the prosecution on 27.62014 in which a prayer was made to exhibit the Mudda Maal is correct but the department is to blame for this omission. The Investigating Officer PW7 Ravikant who was a member of the raid party appeared in the witness box on 27.6.2014. As per the complainant department's own case, the Mudda Maal had been deposited in the Court much before that date. Thus, there was nothing to prevent the prosecutor to call for the Mudda Maal from the Court's Maalkhana and to exhibit the same during evidence of Shri Ravikant. Failure to exhibit the Mudda Maal in a case involving recovery of narcotics is fatal to the prosecution as held by the Hon'ble Supreme Court in the cases of Jitendra & Ors. v. State of Madhya Pradesh reported in 2003-04 (Supp) Cr.L.R (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 . 10. The trial Court also appears to have overlooked this important aspect of the matter while recording evidence and should have remained vigilant in this regard. 11. The independent witnesses associated with the recovery did not support the prosecution story. The witnesses examined by the complainant department admitted that other occupants were present in the house from where the recovery was effected. 11. The independent witnesses associated with the recovery did not support the prosecution story. The witnesses examined by the complainant department admitted that other occupants were present in the house from where the recovery was effected. Thus, the prosecution failed to prove the exclusive possession of the accused Prem Singh on the house from where the recovery was effected. 12. The seizure officer PW4 K.C. Nautiyal in his testimony stated that he deposited the seized contraband and samples in the Maalkhana on the very same day vide document Ex.P/10. However, the witness is silent as to with whom the samples were deposited. Significantly enough the witness in his testimony did not state that it was he who carried the samples from the Maalkhana and deposited the same with the Government Opium & Alkaliod Works, Neemuch. PW6 Vijay Singh the Maalkhana Incharge stated that the seizure officer deposited the samples and contraband with him. He thereafter forwarded the same to Government Opium & Alkaloid Works, Neemuch. This witness was absolutely silent in his evidence regarding the person with whom the sample was transmitted or the date on which the samples were so forwarded to the laboratory. The forwarding letter Ex.12 reflects that the seizure officer Shri K.C. Nautiyal carried the sample to the laboratory. However, as noticed above, neither Shri K.C. Nautiyal nor Shri Vijay Singh deposed on oath that the sample was carried to the laboratory in this fashion. Thus, the prosecution miserably failed to lead evidence in order to show that the samples of the seized contraband remained in self same condition right from the date of seizure till they were deposited in the laboratory. 13. In an appropriate case, this Court might have been persuaded to set aside the judgment of acquittal and direct a denovo trial because the trial appears to have been conducted in an absolutely casual manner. However, the prosecution case suffers from too many loop holes which are impossible to plug and thus, even an exercise of retrial would prove futile. 14. In view of the above discussion, this Court is of the opinion that the failure of the trial Court to get exhibited the FSL report and in omitting to decide the application filed by the prosecution for exhibiting Mudda Maal in the Court, indicates that the learned Presiding Officer acted in an absolute casual fashion while concluding the proceedings. 15. In view of the above discussion, this Court is of the opinion that the failure of the trial Court to get exhibited the FSL report and in omitting to decide the application filed by the prosecution for exhibiting Mudda Maal in the Court, indicates that the learned Presiding Officer acted in an absolute casual fashion while concluding the proceedings. 15. However, even if these shortcomings are rectified then too, the acquittal of the respondents accused by the impugned judgment cannot be questioned because the prosecution suffers from hopeless shortcomings noted below :- (i) No evidence was led to show that the house from where the recovery was effected was in conscious and exclusive possession of respondent Prem Singh ; (ii) No link evidence was led to establish that the samples of the seized contraband reached the FSL in the self same condition in which they were seized ; (iii) the statements of the accused recorded by the Investigating Officer were not exhibited at the trial and thus, there is no evidence whatsoever so as to connect the accused Satyanarain and Bhagwan with the recovery; (iv) the independent motbirs associated with the recovery did not support the prosecution story. (v) The compliance of mandatory requirement of Section 42 (2) of the N.D.P.S. Act was not proved by leading proper evidence. 16. In this background, this Court is of the opinion that it is not a case wherein, the Court can reach to a satisfaction that only one view i.e. conviction of the respondent is possible on the basis of the evidence available on record. The Hon'ble Supreme Court has time and again propounded that where two views are possible, the High Court should not interfere in the judgment of acquittal recorded by the trial Court. 17. It is necessary to mention here that the Spl. P.P. who conducted the trial of the case before the trial Court was grossly negligent in conducting the trial of the case and such negligence proved fatal for the prosecution. As a matter of fact, the manner in which the trial was conducted gives rise to a suspicion that learned P.P. was almost trying to get the accused acquitted by hook or crook. The complainant department shall be at liberty to take recourse to appropriate and lawful action in this regard if so desired. 18. As a matter of fact, the manner in which the trial was conducted gives rise to a suspicion that learned P.P. was almost trying to get the accused acquitted by hook or crook. The complainant department shall be at liberty to take recourse to appropriate and lawful action in this regard if so desired. 18. As a consequence of the above discussion, the instant appeal being devoid of any merit is liable to be and is hereby rejected.