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2016 DIGILAW 431 (RAJ)

State of Rajasthan v. Ratan Lal

2016-03-17

SANDEEP MEHTA

body2016
JDUGMENT : Sandeep Mehta, J. Heard learned Counsel for the parties and perused the record. 2. The instant Appeal has been preferred by the appellant State of Rajasthan assailing the judgment dated 7.11.2003 passed by learned Special Judge, N.D.P.S. Act Cases, Udaipur in Secessions Case No. 137/2003 whereby, the accused respondent was acquitted from the charge for the offence under Section 8/18 of the N.D.P.S. Act. 3. The State has approached this Court by way of this Appeal prayting for setting aside the Judgment of acquittal and to convict and sentence the accused respondent for the offence under Section 8/18 of the N.D.P.S. Act for the alleged possession of contraband opium weighing 8 kgs. 800 grams. 4. The State of Rajasthan filed an application seeking leave for filing appeal against the impugned judgment. This Court, vide order dated 27.2.2004 rejected the application for leave to appeal. The order passed by this Court was carried by the State to Hon'ble Supreme Court by filing a special leave petition which was allowed by order dated 31.10.2009 and while setting aside this Court's order rejecting the application for leave to appeal, the Hon'ble Supreme Court remanded the matter to this Court for deciding the appeal on merits. 5. Learned Public Prosecutor vehemently contended that the recovery of contraband opium weighing 8 kgs. 800 gms. was effected by the seizure officer whilst the respondent accused Ratanlal was carrying the same in a bag. The opium was not concealed on the person of the accused. The Trial Court acquitted the respondent accused on the solitary ground that the seizure officer did not comply with the mandatory requirement of Section 50 of the N.D.P.S. Act. He relied on the judgments rendered by the Hon'ble Supreme Court in the cases of (1) State of Himachal Pradesh v. Pawan Kumar & Ors. The Trial Court acquitted the respondent accused on the solitary ground that the seizure officer did not comply with the mandatory requirement of Section 50 of the N.D.P.S. Act. He relied on the judgments rendered by the Hon'ble Supreme Court in the cases of (1) State of Himachal Pradesh v. Pawan Kumar & Ors. reported in (2005) 4 SCC 350 and State of Punjab v. Baldev Singh reported in AIR 1999 SC 2378 and urged that as the recovery of opium was effected while being carried by the accused in a bag, it is not a case of recovery upon personal search and provisions of Section 50 of the N.D.P.S. Act do not apply and thus, the impugned judgment is bad in the eye of law and deserves to be set aside and as a consequence, thereof, the accused deserves to be convicted and sentenced for the offence under Section 8/18 of the N.D.P.S. Act. 6. Per contra, Shri Shah learned counsel for the respondent vehemently opposed the submissions advanced by learned Public Prosecutor. Through he candidly conceded that the learned Trial Judge was not justified in extending the benefit of non-compliance of Section 50 of the N.D.P.S. Act to the accused because recovery was effected from a bag being carried by the accused but as per him, the prosecution case has to fail on numerous other grounds also. He submitted that the independent witnesses associated with the recovery namely, P.W.-l Bhagwat Singh, P.W.-2 Ramesh Gurjar and P.W.-3 Jamna Lal did not support the prosecution story and turned hostile. There are grave and severe discrepancies and contradictions in the statements of the prosecution witnesses regarding the manner in which the recovery was effected. He further urged that the prosecution did not lead proper link evidence so as to prove that the sample taken out from the seized contraband remained in the self same condition right from the time of seizure till it was received at the F.S.L. Drawing the Court's attention to the statement of P.W.-4 Narayan Lai, the Malkhana Incharge of P.S. Fatehnagar, he urged that the witness stated that the sample taken out from the seized contraband was forwarded to the F.S.L. on 12.5.2003 through constable Devaram. Devaram P.W.-5 brought the sample back because objections were raised at the S.P. office. The objections were thereafter removed and sample packet was again forwarded to F.S.L. on 16.5.2003. Devaram P.W.-5 brought the sample back because objections were raised at the S.P. office. The objections were thereafter removed and sample packet was again forwarded to F.S.L. on 16.5.2003. He stated that similar statement was given by P.W.-5 Devaram. However, the prosecution deliberately did not disclose the nature of the objections raised at the S.P. office and thus, it has to be assumed that the sample of the seized contraband was not kept in the self same condition right from the seizure till the same reached the F.S.L. He thus urged that the respondent accused is entitled to be acquitted as the prosecution did not lead proper link evidence to prove that the sample of the contraband remained in the self condition till it reached the F.S.L. He further submitted that copy of the report forwarded by the F.S.L. was neither provided to the accused nor the same was proved at the trial. Thus, he submitted that as the accused is entitled to be acquitted albeit on grounds different than the ones applied by the Trial Court, the judgment of acquittal of the respondent as rendered by the Trial Court does not require any interference whatsoever. 7. Learned Public Prosecutor in answer to this contention submitted that the I.O. P.W.-7 Jogendra Singh furnished a proper explanation regarding the objection raised at the S.P. office. The witness clarified that the FIR which was forwarded to the S.P. office was not verified and this precisely was the objection raised at the S.P.'s office. The said objection which was purely formal in nature was rectified and the sample was resent to the F.S.L. in a sealed condition. As per him, the sanctity of the link evidence is not effected in the least by the alleged shortcoming, which is not such as can be considered sufficient to throw out the entire prosecution case. He, however, candidly conceded that no documentary evidence was led at the trial to disclose the precise nature of the objections made at the S.P. office. 8. Heard learned Counsel for the parties and perused the impugned judgment as well as the record. 9. He, however, candidly conceded that no documentary evidence was led at the trial to disclose the precise nature of the objections made at the S.P. office. 8. Heard learned Counsel for the parties and perused the impugned judgment as well as the record. 9. Only two contentions were raised by the learned Counsel for the respondent in order to claim acquittal of the respondent on grounds different from the ones on which, the learned Trial Court acquitted the respondent viz., the breach in the link evidence and the non-exhibiting of the F.S.L. report. So far as rationable of the trial Court's judgment acquitting the respondent from the charge under Section 8/18 of the N.D.P.S. Act on the ground that the mandatory provision of Section 50 was not complied with, Shri Shah candidly conceded that the said finding cannot be approved in view of the Supreme Court judgment in the case of State of Punjab v. Baldev Singh (supra) wherein, the Hon'ble Supreme Court in no unequivocal terms held that when the contraband is carried by the accused in a bag, suitcase etc., the provisions of Section 50 will not apply. The requirement of Section 50 comes into play only when the contraband is discovered during the personal search of the offender. Undisputedly, in the case at hand, while being concealed on his person, the contraband was recovered from a bag being carried by the accused and not during his personal search. Thus, provisions of Section 50 of the N.D.P.S. Act have no application to the case at hand. Therefore, the finding recorded by the Trial Court in its judgment that the prosecution did not comply with the provisions of Section 50 and thereby, acquitting the respondent Ratan Lai from the charge cannot be sustained. However, since this Court is examining the judgment of acquittal of the respondent as rendered by the Trial Court in an appeal, the entire record and evidence can be re-appreciated in order to test the veracity of the prosecution case and the accused can claim acquittal on grounds other than the ones on which the Trial Courts judgment was founded. 10. 10. It is well settled proposition of law that in order to prove the guilt of the offender in a case involving recovery of narcotics, the prosecution is under an obligation to prove by proper and convincing link evidence that the samples taken out from the contraband remained in the self same condition right from the time of seizure till they were received by the chemical examiner. Such assertion has to be fortified by leading proper evidence, oral as well as documentary. Failure to do so would make the chemical examiner's report inadmissible in evidence. In the case at hand, seizure was effected by P.W.-7 Jogendra Singh on 8.4.2003. He claims to have deposited the samples as well as the Muddamaal with the Malkhana Incharge on the very same day in a sealed condition. P.W.-4 Narayan Lal the Malkhana Incharge, in his testimony stated that on 12.4.2003 he handed over the sample to P.W.-5 Devaram for carrying the same to the F.S.L. and an entry to this effect was made in the Maalkhana register. When Devaram carried the sample to the S.P. office, Udaipur, an objection was raised upon which, he brought it back to the Police Station. The witness thereupon redeposited the sample in the Maalkhana. The objection was thereafter rectified and the sample was again handed over to Devaram on 16.5.2003. Devaram then carried and deposited the sample at the F.S.L. The witness, in his cross-examination stated that Devaram did not give any written letter regarding the nature of the objections raised at S.P. office but orally stated that the documents accompanying the sample were not verified. Thereupon, the documents were got verified through the S.H.O. and the sample was again forwarded on 16.5.2003. On the contrary, the carrier Devaram P.W.-5 stated that the objection raised by the S.P. office was noted in a letter. The Trial Court observed that the witness was telling a lie because no such objection letter was available on the file. P.W.-7 Jogendra Singh also stated that objection was raised at the S.P. office, Udaipur regarding the attending documents being not verified, the verification was thereafter carried out and the sample was reforwarded to the F.S.L. 11. From the statements of the above witnesses, it is not in dispute that an objection was raised regarding the samples at S.P. office. The concerned witness from the S.P. office was not examined by the prosecution. From the statements of the above witnesses, it is not in dispute that an objection was raised regarding the samples at S.P. office. The concerned witness from the S.P. office was not examined by the prosecution. P.W.-5 Devaram stated that the objection was noted by the concerned official of the S.P. office on a letter. No such noting was proved by the prosecution so as to satisfy the Court regarding the nature of the objection made at the S.P. office. The relevant entry in maalkhana register was marked Ex.-12A at the trial. There is a noting in the maalkhana register regarding the sample being forwarded to the F.S.L. with Devaram on 12.5.2003 and being returned from the S.P. office owing to objection on documents. However, what precisely was the objection is not clear from the documents available on record. If at all, the prosecution was desirous of satisfying the Court regarding the nature of the objection and to clear the doubt, then it was incumbent for it to have examined the concerned witness from the S.P. office, Udaipur. 12. Another relevant fact which goes to the root of the matter is that no document pertaining to transit of the sample from the Police Station, Fatehnagar to the S.P. office, Udaipur either on 12.5.2003 or on 16.5.2003 was exhibited and proved at the trial. Whenever, an article is taken out from the maalkhana of the Police Station for being transmitted to the F.S.L., the carrier has to be provided with authorisation documents in form of a forwarding letter and a road certificate. No article deposited in the maalkhana can be allowed to leave the precincts of the Police Station without such documents. Failure to prove such documents would lead to an irrefutable inference that the link evidence has been breached. Thus, there is a significant breach in the mandatory link evidence essential to satisfy the Court that the sample of the seized contraband remained in the self same condition right from the time of seizure till the same reached the F.S.L. Consequently, the F.S.L. report cannot be read in evidence. Thus, there is a significant breach in the mandatory link evidence essential to satisfy the Court that the sample of the seized contraband remained in the self same condition right from the time of seizure till the same reached the F.S.L. Consequently, the F.S.L. report cannot be read in evidence. Otherwise also, the learned Public Prosecutor conducting the trial and the Trial Court both failed either to provide a copy of the F.S.L. report to the accused nor was a question put to the accused regarding the F.S.L. report dated 6.10.2003 when he was examined under Section 313 Cr.P.C. Only, a vague suggestion was given to the accused that as per the report received from the F.S.L., the sample gave positive test for opium. However, the report itself was not put to the accused. Failure of the trial Court to put a specific question as regards the F.S.L. report has definitely prejudiced the accused. 13. In view of the above discussion, this Court is of the opinion that while acquittal of the accused by the Trial Court vide impugned judgment dated 7.11.2003 cannot be sustained on the ground on which he was acquitted but he is entitled to be acquitted on the other grounds which have been noted above. 14. Resultantly, the instant appeal being devoid of any merit is liable to be and is hereby rejected.