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2016 DIGILAW 576 (RAJ)

Babu Lal v. Union of India through NCB

2016-04-26

SANDEEP MEHTA

body2016
JUDGMENT : Hon'ble MEHTA, J.—By way of this appeal, the appellant Babu Lal has approached this Court being aggrieved of the judgment dated 1.2.2014 passed by the learned Special Judge (NDPS Act Cases) No.1, Chittorgarh in Sessions Case No.23/2008 whereby the trial Court, while acquitting the appellant from the charge under Section 8/25 of the NDPS Act, convicted him for the offence under Section 8/18 of the NDPS Act and sentenced him to suffer 10 years’ R.I. and a fine of Rs.1 lac, in default of payment of fine, to further undergo one year’s additional R.I. 2. Succinctly stated the facts relevant and necessary for disposal of appeal are noted hereinbelow. 3. Shri Rajendra Singh Baghel, Radio Technician, Narcotics Control Bureau, Unit Jodhpur received a source information that two persons named Babu Lal Bishnoi and Bansi Lal Bishnoi, would be smuggling illicit opium weighing 35 Kgs. in a truck bearing registration No.RJ19-1G-5268 from Chittorgarh-Bhilwara Highway. Shri Rajendra Singh took the information down in writing and presented it before the Regional Director of the Bureau. The Regional Director formed a preventive team of the officials of NCB under the leadership of Sunil Kumar Gupta, Intelligence Officer. The preventive team reached the Chittorgarh Bhilwara National Highway at the village Gangrar and summoned two persons namely Rajendra Kumar Sharma and Ashok Kumar Porwal to associate in the proceedings as Panchas. Nakabandi was started at the toll tax barrier. At about 8 O’clock, the truck No.RJ19-1G-5268 of which the information was received came from towards Chittorgarh. Two persons were sitting therein. The truck was intercepted and its driver was signaled to stop upon which he tried to escape by putting the truck into reverse gear. One person fell down from the truck, which was persued and stopped. The driver disclosed his name to be Babu Lal and other person gave out his name to be Bansi Lal. They were apprised of the source information upon which they confessed that two cement bags containing illicit opium were concealed in the cabin of the truck. Looking to the heavy traffic flow on the highway and in order to ensure security and sanctity of the proceedings, the truck alongwith both the suspects was taken to the Police Station Gangrar where search and seizure proceedings were initiated after giving notice to both the suspects under Section 50 of the NDPS Act. Looking to the heavy traffic flow on the highway and in order to ensure security and sanctity of the proceedings, the truck alongwith both the suspects was taken to the Police Station Gangrar where search and seizure proceedings were initiated after giving notice to both the suspects under Section 50 of the NDPS Act. The gunny bags concealed in the cabin of the truck were taken down. In one of the gunny bags, four plastic bags and in the other, 9 plastic bags contain opium were packed. The gross weight of the plastic bags and the contraband came to be 35 kgs. From every plastic bag, two samples each of 25 gms. were taken out. The samples as well as the remaining contraband were packed and sealed and chits bearing signatures of the members of the preventive team, panchas and the accused were appended thereupon. Upon inquiry being made from Babu Lal, he disclosed that the opium had been purchased from one Manohar Lal and was to be supplied to Har Lal Vishnoi at Jodhpur. He also divulged that he and Banshi Lal had purchased the vehicle in partnership. The statements of both the suspects were recorded under Section 67 of the NDPS Act and thereafter, they were arrested. Essential documents of seizure viz. panchnama, specimen memo of seal, site inspection plan, etc. were prepared at the Police Station and the signatures of all concerned were taken thereupon. The intelligence officer, Shri Sunil Kumar submitted a report under Section 57 of the NDPS Act to the Regional Director. The seized vehicle, muddamal and the samples were deposited in the malkhana. A test memo was prepared and 9 samples in sealed condition were forwarded to the Government Opium and Alkaloid Works, Opium Factory, Neemuch (M.P.). After investigation, a complaint was filed in the Court of Special Judge, NDPS Act Cases No.1, Chittorgarh against the appellant Babu Lal and the co-accused Banshi Lal for the offences under Sections 8/18, 25 and 29 of the NDPS Act. Investigation was kept open against Har Lal and Manohar Lal under Section 173(8) of the Cr.P.C. Banshi Lal absconded during trial upon which, trial of the appellant herein was separated. The trial Court framed charge against the appellant Babu Lal for the offences under Sections 8/18 and 8/25 of the NDPS Act. He pleaded not guilty and claimed trial. Investigation was kept open against Har Lal and Manohar Lal under Section 173(8) of the Cr.P.C. Banshi Lal absconded during trial upon which, trial of the appellant herein was separated. The trial Court framed charge against the appellant Babu Lal for the offences under Sections 8/18 and 8/25 of the NDPS Act. He pleaded not guilty and claimed trial. The prosecution examined as many as 10 witnesses in support of its case. The accused, in his statement under Section 313 Cr.P.C., denied the prosecution allegations and examined three witnesses in defence. The trial Court, at the conclusion of the trial, by its judgment dated 1.12.2014 acquitted the appellant of the charge under Section 8/25 of the Act and convicted and sentenced him as above for the offence under Section 8/18 of the NDPS Act. Hence, this appeal. 4. Shri Ramniwas Bishnoi, learned counsel representing the appellant challenged the conviction of the appellant on the following grounds: (i) The independent Panchas associated with the recovery namely Ashok Kumar PW.3 and Rajendra Kumar PW.4 did not support the prosecution and were declare hostile. (ii) Relying on the Hon'ble Supreme Court Judgment in the case of Makhan Singh vs. State of Haryana reported in 2015 Cr.L.R. (SC) 556, he urged that the conviction of the appellant in this case cannot be sustained only on the evidence of partisan and interested officers of the NCB. (iii) The seized contraband was deposited in the malkhana after almost six days. No explanation was offered by the prosecution witnesses regarding the state of the malkhana articles for these six days and thus, the entire recovery is vitiated. (iv) The investigation was unfair. (v) The Director of the NCB Shri Sandeep Mittal to whom, the information under Section 42 of the NDPS Act was submitted, was not examined as a witness. (vi) Neither the muddamal in its original identifiable state nor the inventory and the photographs allegedly prepared under Section 52A of the NDPS Act were submitted and exhibited and proved before the trial court thereby vitiating the entire recovery and thus, the accused is entitled to be acquitted. (vii) The statement of the accused appellant recorded by the intelligence officer of NCB under Section 67 of the NDPS Act cannot be read against him because such statement was recorded at the Police Station under threat, coercion and duress. (vii) The statement of the accused appellant recorded by the intelligence officer of NCB under Section 67 of the NDPS Act cannot be read against him because such statement was recorded at the Police Station under threat, coercion and duress. (viii) The appellant was tortured before recording his statements under Section 67 of the NDPS Act. He was not present at the spot of recovery. He was beaten black and blue and was forcibly made to sign the documents. (ix) Dr.Rakesh Bhatnagar, who conducted the medical examination of the appellant, was examined at the trial and he proved the injury report of the appellant. As per the injury report, the appellant was having three injuries on his person, which indicates that the appellant was tortured by the officers of the NCB. 5. On the strength of these contentions and while relying on the Hon'ble Supreme Court Judgment in the case of Ashok @ Dangra Jaiswal vs. State of M.P. reported in 2011 Cr.L.R. (SC) 363 and this Court’s judgment in the case of Mohan Singh vs. State of Rajasthan reported in 2013(3) Cr.L.R. (Raj.) 1440, Shri Bishnoi urged that the appellant is entitled to be acquitted of the charges. 6. Per contra, Shri M.R.Pareek, learned Special Public Prosecutor representing the complainant Narcotics Control Bureau, vehemently opposed the submissions advanced by the learned counsel for the appellant. He contended that merely because the Panchas turned hostile at the trial, the evidence of independent officers of the NCB regarding the seizure, cannot be discarded. He submitted that the Officers of the NCB had no animus against the appellant and thus, there was no occasion for them to have falsely implicated him in a case involving recovery of huge quantity of opium weighing 35 kgs. However, on the issue of non-production of the muddamal and the samples in the court, Shri Pareek candidly conceded that the muddamal was not produced in the court in the selfsame condition. However, he tried to argue that an inventory u/Sec. 52A of the NDPS Act was prepared by the Investigating Officer and is available on his file. Nonetheless, the fact that the inventory and photographs allegedly prepared under Sec. 52A of the NDPS Act were not produced and proved at the trial, was admitted by Shri Pareek. 7. However, he tried to argue that an inventory u/Sec. 52A of the NDPS Act was prepared by the Investigating Officer and is available on his file. Nonetheless, the fact that the inventory and photographs allegedly prepared under Sec. 52A of the NDPS Act were not produced and proved at the trial, was admitted by Shri Pareek. 7. I have considered the rival arguments advanced by the learned counsel for the parties and have gone through the impugned judgment and the record. 8. The contention advanced by the learned counsel for the appellant that the evidence of the officers of NCB should be discarded because the indepen-dent Panchas did not support the recovery proceedings is noted just to be rejected. It is trite knowledge that the independent witnesses associated with recoveries of narcotics in our country generally turn hostile at the trial. Merely because the panchas turned hostile, the evidence of the independent officers of the NCB associated with the recovery cannot be doubted because they had no animus against the accused. Thus, this argument does not persuade this Court to raise any suspicion on the evidence of the officers of the NCB. 9. Now coming to the second limb of the arguments questioning the prosecution evidence regarding sanctity of the muddamal and the samples. The relevant witnesses for appreciating this argument are PW.1 Pradeep Kumar (the malkhana incharge), PW.2 Sunil Kumar (the Seizure Officer), PW.5 Sampat Raj Dadhich and PW.7 Shivraj (the carriers of the samples to the FSL) and PW.8 Yogesh Kumar Sharma (the malkhana incharge). 10. PW.1 Pradeep Kumar, in his testimony stated that the seizure in question was effected by Sunil Kumar PW.2 on 13.12.2007. Sunil Kumar, presented two bags of the seized contraband and 18 sample packets as well as the offending truck to him on 15.12.2007. Therefore, there is an apparent gap of 2 days during which, the samples, the seals and the muddamal remained with Sunil Kumar Intelligence Officer cum the Seizure Officer. The witness handed over 9 packets of samples to Shri S.R.Taylor for onwards transmission of the same to the Chemical Examiner. Significantly enough, in cross-examination, the witness stated that the muddamal was deposited with him on 19.12.2007. On the contrary, Sunil Kumar PW.2 stated that he deposited the seized goods and the samples with Pradeep Kumar on 15.12.2007. The witness handed over 9 packets of samples to Shri S.R.Taylor for onwards transmission of the same to the Chemical Examiner. Significantly enough, in cross-examination, the witness stated that the muddamal was deposited with him on 19.12.2007. On the contrary, Sunil Kumar PW.2 stated that he deposited the seized goods and the samples with Pradeep Kumar on 15.12.2007. Thus, there is an apparent discrepancy in the statements of these two witnesses regarding the date of deposition of the muddamal in the malkhana. PW.2 Sunil Kumar in his testimony, proved the receipt of deposit of the muddamal as Ex.P5. The receipt bears the date 15.12.2007. It refers to 34.550 kgs. opium in two packets being deposited with the malkhana incharge. The samples were deposited vide receipt Ex.P7 on 15.12.2007. In cross-examination, the witness admitted that the muddamal as well as the seal remained with him between 13th to 15th of March. No justification was offered by the witness for the reason of not depositing the seized goods in the malkhana immediately after the seizure. He also did not state anything about the safekeeping of the seized goods and the samples during this period. In view of the above, there is an apparent discrepancy regarding the state of the muddamal in between 13.12.2007 to 19.12.2007 and the samples in between 13.12.2007 to 15.12.2007. The muddamal of the case was produced in the court on 1.4.2009 by the Seizure Officer PW.2 Shri Sunil Kumar. In view of the above, there is an apparent discrepancy regarding the state of the muddamal in between 13.12.2007 to 19.12.2007 and the samples in between 13.12.2007 to 15.12.2007. The muddamal of the case was produced in the court on 1.4.2009 by the Seizure Officer PW.2 Shri Sunil Kumar. The relevant portion of his testimony is reproduced hereinbelow for the sake of ready reference: ^^uksV%& izdj.k esa tIr'kqnk vkVhZdYi nks cM+s iSfdV esa is'k gq, xokg us tkfgj fd;k fd ,y-1 esa pkj iSfdV o ,y-2 esa ikap iSfdV gS] ,y-1 esa flykbZ ij piM+h dh fly yxh gqbZ diM+k rjQ ls QVk gqvk gS ftlesa ls IykfLVd dÍk ¼cSx½ utj vk jgk gS] ,y-2 ds diM+s dh FkSyh ij piM+h dh flys flykbZ ij yxh gqbZ gSA fizUVsM 9 fyQkQs gSa tks daVªksy lsEiy gSa] ftu ij piM+h dh flys yxh gqbZ gSA ckcwyky o ca'khyky dh O;fäxr ryk'kh esa feys lkeku ds iSfdV gS ftu ij piM+h dh flys yxh gqbZ gSaA uksV%& iz;ksx'kkyk ls ckn tkap fyQkQs tks izkIr gq, oks [kkdh fyQkQs esa flycan gkyr esa piM+h dh fly ls flYM gS] ftls vkt U;k;ky; esa [kksyk x;kA ftlesa 9 fyQkQs fudys tks eqag ls dVs gq, gks vUnj IykfLVd dh FkSyh vQhe ls luh gqbZ fyQkQks esa j[kh gqbZ gS] o vUnj lQsn ekdkZ fpV j[kh gqbZ] ftuesa pkj ,y-1 ekdZ o ikap ,y- 2 ekdZ gSaA mä lHkh vkVhZdYl U;k;ky; esa Jh ok;- ds- 'kekZ vklwpuk vf/kdkjh ,u-lh-ch- tks/kiqj us U;k;ky; esa is'k fd;sA lsEiy tks QSDVªh ls ckn tkap izkIr gq, gS oks vkVhZdy ,d yxk;r 9 gS] daVªksy lsEiy vkVhZdy 10 yxk;r 18 gSa] O;fäxr ryk'kh ckcwyky vkVhZdy 19 o ca'khyky ls izkir lkeku dk iSfdV vkVhZdy ,d yxk;r 18 ij Øe'k% , ls ch esjs gLrk{kj gS] vkVhZdy ,d yxk;r 18 ij Øe'k% lh ls Vh ckcwyky] bZ ls ,Q ca'khyky] th ls ,p o vk; ls ts ekSrfcj jktsUnz o v'kksd ds gLrk{kj gS] vkVhZdy ua-19 ij lh ls Mh ckcwyky] th ls ,p o vk; ls ts ekSrfcjku~ ds gLrk{kj gS] vkVhZdy ua-20 ij lh ls Mh ca'khyky o th ls ,p o vk; ls ts ekSrfcjku ds gLrk{kj gSA iSfdV cMk ekdZ ,y-1 vkVhZdy 21 gSa] o ekdZ ,y-2 vkVhZdy ua-22 gS] ftu ij diM+s dh FkSyh ij xokg us crk;k fd iw.kZ fooj.k fy[kk gqvk gS] ysfdu vHkh i<+us esa ugha vk jgk gSaA** [Emphasis supplied] From the above portion of the testimony of the witness, it is evident that when the muddamal (Article L1 & Article L2) was produced in the Court during the testimony of the witness, the Presiding Officer did not notice any identifying marks thereupon. The note recorded by the learned trial Judge clearly reflects that no chits bearing the signatures of the Seizure Officer, the Panchas or the accused were noticeable on the muddamal so as to link the goods exhibited with the recovery allegedly made in the case from the accused. The prosecution appears to have made an endeavour to prepare an inventory under Section 52A of the NDPS Act. This fact was stated by the witness Yogesh Kumar Sharma PW.8, who alleged that he submitted an application for verification of the muddamal weighing 35 kgs. to the Chief Judicial Magistrate, Jodhpur on 17.11.2008. The muddamal was allegedly produced before the learned Magistrate and inventory and other documents under Section 52Aof the NDPS Act were prepared. However, the inventory alleged to have been so prepared was not exhibited and proved by the witness during his testimony. The learned trial Judge appended the following note while recording his statement:- ^^uksV%& uequs vkSj bZUosUVªh vkt miyC/k u gksus ls ,l-ih-ih- ds fuosnu ij lk{kh dk ijh{k.k LFkfxr fd;k x;kA eq[; ijh{kk fnukad 2-2-2010 ls vkxs 'kiFk fnykbZ xbZ uksV%& uequs vkSj bUosUVªh ,l-ih-ih- us lk{kh ls iznf'kZr ugha djokus pkgsA /kkjk 52, dh dk;Zokgh eSaus eky[kkuk fuLrkj.k ds mís'; ls djokbZ FkhA eSaus bl izdj.k esa foHkkxh; vkns'k ds vuqlkj 28-5-2008 dks ifjokn is'k fd;k FkkA eSaus dksbZ foospuk dk;Z ugha fd;k FkkA ftjg ckcqyky dh vksj ls Jh ds-lh- pkS[kM+k%& /kkjk 52, dh dk;Zokgh djus ds ckn vQhe dks geus vQhe QSDVªh uhep esa tek djok fn;k FkkA ;g lgh gS fd uhep QSDVªh fpÙkkSM+x<+ ds fudV gSA ;g dguk xyr gS fd 52, ds dk;Zokgh ds mijkUr vQhe dks u"V fd;k tkuk vko';d gks cfYd mldks tek fd;k tkuk vko';d gSA ;g dguk xyr gS fd eSaus tc 52, dh dk;Zokgh djokbZ rc uequs vkSj eqís eky lhy phV u gks vkSj eSaus lHkh dk;Zokgh xyr djokbZ gksA ;g dguk xyr gS fd eSa tkucw>dj eky U;k;ky; esa is'k ugha djuk pkg jgk gksÅ blfy, 52, dh dk;Zokgh dh gksA ;g dguk xyr gS fd eSaus eky dks uhep QSDVªh tek djokus dh jlhn is'k ugha dh gksA** [Emphasis supplied] From the above-quoted portion of the testimony of PW.8 Yogesh Kumar Sharma, it is evident that the prosecution intentionally withheld the inventory, photographs and specimen samples prepared u/Sec. 52A. From the statement of this witness, it is further reflected that after the proceedings u/Sec. 52A of the NDPS Act had been conducted, the muddamal was deposited in the Govt. Opium Factory, Neemuch. The witness of course did not give out the date of depositing the muddamal but it has to be assumed that such action must have followed immediately after the proceedings under Sec. 52A were carried out. If at all, there is an iota of truth in the testimony of the witness Yogesh Kumar Sharma PW.8, then it is indeed a matter of surprise, as to how PW.2 Sunil Kumar could produce the muddamal in the court during his testimony on 1.4.2009 because by that time, the muddamal had already been deposited in the Opium Factory and the witness could not have had any access thereto. Thus, there is a huge vacuum in the prosecution evidence regarding the condition and safekeeping of the muddamal allegedly seized from the accused by Sunil Kumar. The muddamal was exhibited and proved in an identifiable state to the satisfaction of the Court. Rather it bore no identifying marks at all. The prosecution deliberately did not produce and prove the inventory, photographs and samples prepared u/Sec. 52A of the NDPS Act. Thus, the prosecution failed to lead primary evidence of the seized goods. 11. This Court, in the case of Aladdin & Anr. vs. 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 vs. State of Punjab & Ors. reported in 2008 Cr.L.R. (SC) 655, Jitendra & Ors. The judgments rendered by the Hon'ble Supreme Court in the cases of Noor Agha vs. State of Punjab & Ors. reported in 2008 Cr.L.R. (SC) 655, Jitendra & Ors. vs. State of Madhya Pradesh reported in 2003-04 (Supp) Cr.L.R. (SC) 699, Ashok alias Dangra Jaiswal vs. State of M.P. reported in AIR 2011 Supreme Court 1335 and Vijay Jain vs. State of M.P. reported in 2013(14) SCC 527 as well this Court’s judgments in the cases of Thakra Ram vs. State of Rajasthan being S.B.Cr. Appeal No.311/2009 decided on 4.10.2013 and Bhagirath Ram vs. 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 vs. State of Haryana reported in (2013) 14 SCC 420 , were considered and it was held 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. 12. As has been noted above, the prosecution deliberately withheld the photography, inventory and the samples prepared under Section 52A of the NDPS Act. Thus, adverse inference is required to be drawn against the prosecution in this case. Non-production of the muddamal in the court in the selfsame and identifiable condition is fatal to the prosecution case. 13. Now coming to the argument that the statement of the accused recorded under Section 67 of the NDPS Act is inadmissible and cannot be read in evidence as being hit by Section 26 of the Evidence Act. Sunil Kumar Intelligence Officer, who recorded the statement of the accused, admitted in his cross-examination as below:- ^^ge vfHk;qäksa dks Hkh idM+dj Fkkus ij ysdj x;s FksA Fkkus esa gekjs ikl esa fcBk;k j[kk FkkA muds fy;s pk; ogha ij eaxk nh FkhA os ckgj ugha x;s FksA ;g ckr lgh gS fd os Fkkuk ifjlj ls ckgj tkus ds fy;s Lora= ugha FksA /kkjk 67 dk uksfVl eSaus gh fn;k FkkA vfHk;qäksa dks ;g uksfVl Fkkuk ifjlj esa gh fn;k Fkk vkSj ogh ij mifLFkr gksus ds fy;s fn;k FkkA ;g dguk xyr gS fd vfHk;qäksa dks dksbZ uksfVl ugha fn;k gks vkSj tcjnLrh ls muds gLrk{kj djk;s gksA** 14. Thus, the accused was taken to the Police Station and was confined there before recording his statement under Section 67 of the NDPS Act. As such, definitely and without any doubt, the statement of the appellant recorded by Sunil Kumar Intelligence Officer under Section 67 of the Act is hit by Section 26 of the Evidence Act and cannot be read against him. 15. As a consequence of the above discussion, this court is of the opinion that the conviction of the appellant Babu Lal as recorded by the learned trial Court in this case is totally contrary to the material available on record, unjust and illegal and cannot be sustained. 16. Resultantly, the appeal deserves to be and is hereby allowed. The impugned judgment dated 1.2.2014 passed by the learned Special Judge (NDPS Act Cases) No.1, Chittorgarh convicting and sentencing the appellant for the offence under Section 8/18 of the NDPS Act is hereby quashed and set aside. The accused is acquitted of the charge. He is in custody. He shall be at liberty forthwith if not wanted in any other case. Record be returned to the trial Court.