Research › Search › Judgment

Rajasthan High Court · body

2017 DIGILAW 1502 (RAJ)

State Of Rajasthan v. Harphool

2017-07-06

SANDEEP MEHTA

body2017
JUDGMENT Sandeep Mehta, J. - The instant appeal has been preferred by the State of Rajasthan being aggrieved of the judgment dated 8.9.1989 passed by the learned Additional Sessions Judge, Chittorgarh in Sessions Case No.48/1986 whereby, the respondents were acquitted from the charge under Section 8/18 of the NDPS Act. 2. Shri N.K. Rai, learned Spl. P.P. representing the Central Narcotics Bureau appeared and urged that the case was instituted at the instance of the Bureau and thus, he has been authorised to argue the matter. 3. Facts in brief are that Shri Kishan Narayan Saxena Sub Inspector, Opium Department, Central Narcotics Bureau was posted at Division Chittorgarh on 31.5.1986. He allegedly reached the agricultural well of Uda s/o Heera Jat r/o Paroli at the instructions of his seniors. On reaching there, he saw two persons trying to escape. One person wearing a shirt and dhoti was having a green coloured bag in his hand and the other wearing pant and shirt was having a gunny bag in his hand. They were perused by the constables Chotu Singh, Hardayal Singh, Bhikam Singh and Surendra Singh and were apprehended. On search, the bags being held by them were found to be containing opium. Whereas the person wearing pant was identified as Harphool and was allegedly carrying opium weighing 9.100 kgs. and the person wearing dhoti was identified as Satveer and was allegedly carrying opium weighing 6.600 kgs. As per the prevalent procedure, two samples of 25 grams were collected from the recovered contraband, the accused persons were arrested and thereafter, the FIR came to be lodged. The samples collected from the seized contraband were sent to the Govt. Opium and Alkaloid Factory, Neemuch from where a report was received to the effect that the same answered the requisite tests for opium. The concerned officer of the Bureau thereafter proceeded to file a charge sheet against the accused persons for the offence under Section 8/18 of the N.D.P.S. Act. The learned trial Judge, upon conclusion of the trial proceeded to acquit the accused respondents by judgment dated 8.9.1989 whereupon, the instant appeal against acquittal of the respondents has been preferred. 4. Shri N.K. Rai, learned Spl. P.P. urged that the judgment of acquittal recorded by the trial Court is based on perverse findings both factual and legal and hence, the same cannot be sustained and deserves to be set aside. 4. Shri N.K. Rai, learned Spl. P.P. urged that the judgment of acquittal recorded by the trial Court is based on perverse findings both factual and legal and hence, the same cannot be sustained and deserves to be set aside. He submits that the trial Court proceeded on totally flimsy grounds for recording acquittal of the accused even though huge quantity of opium weighing about 15 kgs. was recovered from their possession. Flimsy and hypertechnical approach of the learned trial Judge calls for interference by this Court in this appeal against acquittal. He urged that most significant finding recorded by the trial Court regarding Mudda Maal not having been placed in Malkhana is factually incorrect. He harped upon the evidence of PW7 Kishan Narayan, seizure officer and urged that the witness exhibited the Mudda Maal in the Court and thus, there was no basis for the trial Court to have recorded a finding that Mudda Maal was not deposited in the Malkhana of the prosecuting agency and that the same was not exhibited in the Court properly. He thus contends that the impugned judgment should be quashed and set aside and the accused respondents be convicted and sentenced suitbly for the offence under Section 8/18 of the NDPS Act. 5. Per contra, Shri K.S. Rathore, learned counsel representing the respondents vehemently opposes the submissions advanced by the appellant''s counsel. The Mudda Maal was required to be deposited in the Malkhana of the Bureau which was not done. He further urges that it was incumbent upon the prosecuting agency to have proved the recovered contraband by exhibiting the same in the Court in the same condition in which it was allegedly seized. For this purpose, he drew the Court''s attention to the statement of PW2 Dhanraj Pipal, Malkhana Incharge who admitted in his cross examination that the fact regarding the seized contraband having been deposited in the double lock of the Bureau is not recorded in the Malkhana register Ex.P/6. He further contends that there are grave and serious discrepancies in the testimony of the prosecution witnesses which were rightly considered by the trial Court as being sufficient and material for acquitting the accused respondents. He thus craved for rejection of the instant appeal. 6. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned judgment as well as the original record. He thus craved for rejection of the instant appeal. 6. I have given my thoughtful consideration to the arguments advanced at the Bar and have gone through the impugned judgment as well as the original record. 7. No two views can be expressed on the proposition that the prosecution, in order to bring home the charge of recovery and seizure of contraband narcotics has to prove the factum of recovery by exhibiting the same in the Court so as to lead physical evidence of the seized goods. For this purpose, it has to be first established that the seized article was placed in the malkhana of the seizing agency in the self same condition in which it was seized. Complete link evidence has to be led for proving the sanctity of the recovered articles as well as the samples. The sole document which the prosecution proved before the trial Court for establishing the safe custody of recovered articles in Malkhana was Malkhana register entry no.P/6. Witness Dhanraj Pipal who was posted as District Opium Officer-II on the relevant date proved the said malkhana register in his evidence. In cross examination, he admitted that the entries in the malkhana register were made by Basanti Lal Sharma. However, upon a pertinent question being put by the Court, the witness admitted that when the recovered goods were placed in the double lock, no entry was made thereof in any document whatsoever. The samples allegedly taken out from the seized contraband were carried by PW3 Laxman Lal to the Opium Factory, Neemuch on 6.6.1986. The said witness, in his evidence stated that he collected the samples from Basanti Lal on 6.6.1986. The seizure of the contraband was made on 31.5.1986. Basanti Lal was examined as PW5 at the trial. In his evidence he alleged that two samples of the case at hand were handed over to him on 2.6.1986. He kept the same in double lock and then forwarded them for chemical examination to Laxman Lal on 6.6.1986. Thus obviously, there is a grave discrepancy regarding the safe custody of samples as well as the Mudda Maal. Whilst the seizure officer Shri Kishan Narayan claims to have collected the samples on 31.5.1986, the same were deposited in Malkhana and entered in register Ex.P6 on 2.6.1986. Basanti Lal, in his cross examination stated that the samples were handed over to him on 31.5.1986. Whilst the seizure officer Shri Kishan Narayan claims to have collected the samples on 31.5.1986, the same were deposited in Malkhana and entered in register Ex.P6 on 2.6.1986. Basanti Lal, in his cross examination stated that the samples were handed over to him on 31.5.1986. If that was so, then there was no occasion for not entering the same in the malkhana register on that very same day. The seizure officer Kishan Narayan PW7, in his evidence did not state as to whom the samples and seized articles were handed over. During his evidence, he exhibited the returned samples as Articles 1 & 2 and the contraband Mudda Maal as Articles 3 & 4. Significantly enough, he did not state that these articles bore any signatures, description or identifying marks thereupon. In cross examination, when confronted with the physical appearance of the exhibited articles, the witness candidly agreed that the exhibited articles did not bear any signatures, seals or other identifying marks so as to connect them with the case at hand. The trial Court took note of these glaring discrepancies in the prosecution evidence and proceeded to acquit the accused respondents from the charge. 8. The Hon''ble Supreme Court in the cases of (1) Jitendra and another vs. State of M.P. reported in AIR 2003 SC 4236 , (2) Ashok alias Dangra Jaiswal vs. State of M.P. reported in AIR 2011 SC 1335 and (3) Vijay Jain vs. State of M.P. reported in (2013)14 SCC 527 has clearly propounded that exhibiting the Mudda Maal in original is mandatory in order to prove the recovery and seizure. As noted above, the prosecution miserably failed to prove the Mudda Maal by exhibiting the same in the Court in the self same condition in which they were seized. Not only this, grave breaks in link are noticeable in the prosecution case regarding the sanctity of Mudda Maal as well as the samples from the date of seizure till they were received at the Government Opium Laboratory. 9. As a result of the aforesaid discussion, I am of the opinion that the judgment under challenge does not suffer from any shortcoming either factual or legal so as to require interference by this Court in this appeal against acquittal. 10. Resultantly, the instant State appeal is hereby dismissed whilst confirming the judgment under appeal acquitting the respondents.