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Rajasthan High Court · body

2017 DIGILAW 2081 (RAJ)

Mahendra @ Banti v. State of Rajasthan

2017-09-18

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. 1. By way of this appeal the appellant Mahendra @ Banti seeks to assail legality and validity of the judgment dated 12.12.2015 passed by learned Special Judge, N.D.P.S. Cases, Jodhpur in Sessions Case No. 21/2009 whereby the learned Special Judge convicted him for the offence under Section 8/18 of the N.D.P.S. Act and sentenced him to 12 years R.I. and a fine of Rs. 1,00,000/- in default of payment of fine, the accused appellant was further directed to undergo additional rigorous imprisonment for one year. 2. Briefly stated the facts relevant and essential for decision of the appeal are noted herein below:- As per the prosecution case, the appellant herein had been taken in custody by officers of Police Station Chopasni Housing Board, Jodhpur on 11.12.2008 in connection with F.I.R. No. 336 dated 10.12.2008 registered for the offence under Section 489A, 489C IPC and 3/25 of the Arms Act. He allegedly gave an information to the Circle Officer Mr. Pushpendra Singh, P.W.4 that he had placed opium weighing 7.5 Kgs. in two poly bags packed in one bag in a room at the first floor of his house situated on the road going from HUDCO T Crossing to Blind School. The said information was treated to be reliable and a gist thereof was forwarded to the Supdt. of Police, Jodhpur as per Section 42 of the N.D.P.S. Act. The Circle Officer thereafter took the appellant to the Police Station Pratap Nagar; formed a team of police officers and proceeded to the house where the opium was allegedly concealed. Two independent Motbirs viz. Chetan Ram and Prem Singh were summoned to associate in the search. The Police Party led by the Circle Officer reached the House No. 29 located above Jumbh Sagar Dairy. The door of the house was opened and the accused allegedly led the police party to a room on the first floor thereof. An almirah placed in the room was opened on pointing out of the accused who took out a millitary patterned bag concealed therein under a quilt and presented it to the C.O. The bag was opened and searched in presence of the Panch witnesses and it was found to contain two plastic bags in which thick blackish substance was packed which tasted and smelt like opium milk. Upon weighing, the two poly bags were found to contain 3.220 Kgs. Upon weighing, the two poly bags were found to contain 3.220 Kgs. and 4.280 Kgs. of contraband opium milk respectively. The accused could not produce any licence or permit for possessing the opium. Two samples of 30gms. each were taken out from the poly bags containing suspected contraband opium and were sealed and Chits appended thereupon. The remainant contraband was tied up in the same plastic bags and placed in the military coloured bag which was sealed inside a white coloured cloth bag. The C.O., along with the police party and the accused thereafter proceeded to P.S. Pratap Nagar where F.I.R. No. 437/2008 was registered for the offence under Section 8/18 of the N.D.P.S. Act. During the course of investigation, Bhanwar Lal and Mohan Lal being the brothers of the appellant herein who were also present at the place of recovery when the seizure was made were also arrested. After investigation, charge-sheet was filed against the three accused persons i.e. Mahendra @ Banti, Bhanwar Lal and Mohan Lal. The trial court proceeded to frame the following charge against the accused appellant:- ^^fnukad 11-02-2008 dks o`rkf/kdkjh o`r izrkiuxj tks/kiqj Jh iq"isUnzflag dks vfHk;ksx la[;k 336@08 ih,l pkSikluh gkmflax cksMZ] tks/kiqj esa iwNrkN ds nkSjku vki }kjk nh xbZ lwpukuqlkj gwMdks frjkgk ls va/k fo/;ky; tkus okyh jksM+ ij tEHk lkxj Ms;jh ds ikl dk njoktk [kqyokdj Åij okys dejs ij igaqpsA dejs esa vkids HkkbZ Hkaojyky o eksguyky Hkh Fks vkSj bUgksaus vkids lkFk la;qDr :i ls bl dejs esa jguk crk;kA vkius dejs esa j[kh vyekjh esa j[kh jtkbZ ds uhps ls ,d feyVªh dyj dh fMtkbZu okyk diMs dk cSx fudkydj is'k fd;k ftldh fu;ekuqlkj ryk'kh yh rks cSx ds vanj ,d IykfLVd ds dVVs ds vanj nks iksfyFkhu dh FkSfy;ksa esa dqy 7-500 fdyksxzke vQhe nw/k cjken gqvk ftldks dCts esa j[kus dk vkids ikl dksbZ oS/k ykbZlsal vFkok ijehV ugha FkkA bl izdkj vkius mDr voS/k vQhe nw/k dks dCts esa j[kdj /kkjk 8@18 ,uŒMhŒihŒ,lŒ ,DV ds rgr n.Muh; vijk/k gS tks esjs izlaKku esa gSaA U;k;k/kh'k ,uŒMhŒihŒ,lŒ ,DV dSlst] tks/kiqjA** 3. Exactly identical charge with change of names was framed against the co-accused Bhanwar Lal and Mohan Lal. Exactly identical charge with change of names was framed against the co-accused Bhanwar Lal and Mohan Lal. The most significant fact spelt out from the language of the charge is that all the three brothers including the appellant herein were specifically alleged to be in joint possession of the room from which the bag containing opium was recovered. 4. Be that as it may. The accused denied the charges and claimed trial. The prosecution examined as many as 16 witnesses in support of its case. The accused, upon being questioned under Section 313 Cr.P.C., 1973 controverted the prosecution allegations and claimed to have been falsely implicated by the police officers for oblique motives. One witness Navratan was examined in defence. Upon conclusion of the case, the learned trial Judge proceeded to acquit the co-accused Bhanwar Lal and Mohan Lal from the charges vide the impugned judgment dated 12.12.2015. However, the appellant herein was convicted for the offence under Section 8/18 of the N.D.P.S. Act and was sentenced as above. Hence this appeal. 5. Mr. Vineet Jain, learned counsel representing the appellant vehemently contended that the appellant's conviction as recorded by the trial court is grossly bad in facts as well as in law. He submitted that though the Seizure Officer Pushpendra Singh claims to have received the information (Ex.P-9) from the accused appellant Mahendra during his interrogation in connection with the previous F.I.R. No. 336 dated 10.12.2008 registered at P.S. Chopasni Housing Board but no documents apart from the information itself were exhibited or brought on record of the instant case. 6. He urged that in case the information provided by the accused to the C.O. Pushpendra Singh is treated as one given under Section 27 of the Evidence Act, then the prosecution was under an obligation to prove the arrest of the accused appellant in the other case by documentary evidence i.e. the arrest memo but it failed to do so. Without prejudice to this argument, he urged that the information Ex.P-9 does not indicate that the same was recorded under Section 27 of the Evidence Act and contrarily, the Seizure Officer projected the information to be a source information (u/s. 42(1) of the Act) which could lead to possible recovery. Mr. Without prejudice to this argument, he urged that the information Ex.P-9 does not indicate that the same was recorded under Section 27 of the Evidence Act and contrarily, the Seizure Officer projected the information to be a source information (u/s. 42(1) of the Act) which could lead to possible recovery. Mr. Jain urged that in such a situation, it was essential for the Seizure Officer to have forwarded the copy as such of the information to his superior officer. Preparing a gist of the information and forwarding the same to the superior officer would not amount to faithful compliance of Section 42(2) of the N.D.P.S. Act. He further urged that it is virtually an admitted position on the record that the house in question from which recovery was effected was not in the exclusive or conscious possession of the accused appellant because the prosecution filed charge-sheet against the co-accused Mohan Lal and Bhawnar Lal with the specific allegation that, all three were joint and conscious possession of the house and the room from where the contraband opium was recovered. He urged that in such a situation, acquittal of the co-accused persons is by itself, sufficient to out rightly reject the prosecution case against the appellant as well. He urged that the biased and dubious conduct of the Seizure Officer is ex-facie apparent from a bare perusal of the seizure memo wherein the names of the co-accused Mohan Lal and Bhanwar Lal were intentionally omitted despite they being present in the very same room from which the recovery was effected. He also pointed out that numerous prosecution witnesses admitted that apart from the two co-accused Bhanwarlal & Mohanlal, a number of ladies and children were also present in the house at the time of recovery. However, their names and identity was deliberately withheld by the prosecution. In support of his contentions, Mr. Jain relied upon the decision rendered by the Hon'ble Supreme Court in the case of Mohd. Alam Khan v. Narcotics Control Bureau reported in AIR 1996 SC 3033 and urged that conviction of the appellant recorded by the trial court is bad in facts as well as law and deserves to be set aside and he is entitled to be acquitted of the charge. 7. Per contra learned Public Prosecutor opposed the submissions advanced by the appellant's counsel. 7. Per contra learned Public Prosecutor opposed the submissions advanced by the appellant's counsel. He submitted that the accused appellant was admittedly in custody at P.S. Chopasni Housing Board in connection with F.I.R. No. 336. He gave an information to the C.O. Pushpendra Singh under Section 27 of the Evidence Act and in pursuance thereof huge quantity of, contraband opium milk weighing 7.500 Kgs. was recovered concealed under a quilt from an almirah in the room which was in exclusive and conscious possession of the appellant. Learned P.P. urged that the opium was concealed in such a manner that it could not have been known to anyone other than the accused himself who brought out the packet from the almirah. However, upon a pertinent query being put to the learned P.P., he had no option but to concede that the co-accused Bhanwar Lal and Mohan Lal were also present in the very same room from where recovery was effected. He also could not dispute that no documents pertaining to arrest of the appellant in the F.I.R. No. 336 P.S. Chopasni Housing Board, Jodhpur were proved at the trial. 8. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the appellant and the learned P.P. and have gone through the record. 9. From the facts narrated above, it is apparent that the prosecution has projected two theories for proving the facts preceding the alleged recovery of contraband opium made by Mr. Pushpendra Singh C.O. who was examined as P.W. 4 at the trial. On one hand it was claimed that Ex.P-9 the information supplied by the accused appellant Mahendra to the C.O. Pushpendra Singh was an information given under Section 27 of the Evidence Act which was followed by recovery at the instance of the accused and on the other hand, the information was also claimed to be one under Section 42(1) of the N.D.P.S. Act. The information itself would have a material bearing on the fate of the case and is reproduced herein below for the sake of ready reference:- QnZ bfRryk /kkjk & fxjrkj lqnk eqyfte egsUnz mQZ cUVh mQZ eksgu iq= Hkk[kjjke tkfr fo'uksbZ fuoklh tkysyh vkghpk ihŒ,lŒ Mkaxh;kokl tks/kiqj gky IyksV uaEcj 29 pku.kk Hkk[kj tEc lkxj Ms;jh ihŒ,lŒ izrkiuxj tks/kiqjA eqŒuaŒ 336 fnukad 10-12-2008 /kkjk 489,] 489lh] vkbZŒihŒlhŒ o 3@25 vkElZ ,DV ihŒ,lŒ pkSŒgkŒ cksMZ tks/kiqj 'kgjA fnuakd & 11-12-2008 le; 10%00 ,Œ,eŒ bl le; nkSjkus iwNrkN eqŒuaŒ 336 fnuakd 10-12-2008 /kkjk 489,] 489lh] vkbZŒihŒlhŒ o 3@25 vkElZ ,DV ihŒ,lŒ pkSŒgkŒ cksMZ esa fxj] lqnk eqyfte egsUnz mQZ cUVh mQZ eksgu mDr us eq>s lhŒvksŒ iq"isUnzflag vkjŒihŒ,lŒ o`rkf/kdkjh izrkiuxj dks lwpuk nh fd esjk ,d edku gqMdks frjkgk ls vU/kfo/kky; tkus okyh jksM+ ij tEc lkxj Ms;jh QkeZ nqdku okyk gSA ftl edku ds Åijh dejk esjs Lo;a ds mi;ksx o dCts esa ftl dejs esa eSaus ,d cSx esa nks IykfLVd dh FkSyh;ksa esa dqy feykdj 7 fdyksŒ 500 xzke vQhe dk nw/k j[k j[kk gSA vr% QnZ lqpuk eqrhZc dh xbZA lhŒvksŒ izrkiuxj tks/kiqj 'kgj dSEi&Fkkuk pkSŒgkŒ cksMZ tks/kiqj 'kgjA 10. On a bare perusal of the said information, it is apparent that the recovery officer C.O. Pushpendra Singh did not mention in the memorandum that the same was being recorded as an informer under Section 27 of the Evidence Act or that the accused could get the opium recovered in furtherance of such information. On the face of it the information was intentionally recorded in a couched manner but manifestly, it does not convey that the same was being recorded under any provision of Evidence Act or that it was a source information. 11. The Seizure Officer Pushpendra Singh P.W.4, upon being examined on oath as P.W. 4 stated that the accused gave him the questioned information under Section 27 of the Evidence Act. He took down the information in writing and forwarded it to the Superintendent of Police, Jodhpur with a constable. In cross examination, the witness admitted that he did not forward the copy as such of the information Ex.P-9 to his superior officer but rather prepared a separate memo and forwarded it to the S.P. At point no. He took down the information in writing and forwarded it to the Superintendent of Police, Jodhpur with a constable. In cross examination, the witness admitted that he did not forward the copy as such of the information Ex.P-9 to his superior officer but rather prepared a separate memo and forwarded it to the S.P. At point no. 16 of the cross examination, the witness admitted that he did not mention in the memorandum Ex.P-9 that the information was provided by the accused under the Evidence Act. Upon a pertinent question being put at point no. 29 of cross examination, the witness stated that he could not say that the two co-accused Mohanlal and Bhanwarlal were present on the terrace of the questioned house or not. He further admitted at point no. 38 of the cross examination that presence of no one other than the accused appellant was recorded in the seizure memo Ex.P-4. These admissions made by the seizure officer in his cross examination clearly indicate that he gave vacillating and evasive replies to pertinent questions materially effecting the recovery proceeding. His conduct brings the entire search and seizure procedure under a shadow of doubt. 12. Even if for arguments sake, the information Ex.P-9 is treated to be one under Section 27 of the Evidence Act, then apparently the prosecution would be required to prove that the accused was in custody before the information was recorded. Though the information mentions that the accused was under arrest in connection with F.I.R. No. 336 P.S. Chopasni Housing Board but no attempt was made by the prosecution to tender or prove the arrest memo of the accused appellant in the said case during its evidence. Looking in a different perspective, if the information Ex.P-9 is not treated as one recorded under Section 27 of the Evidence Act, then it simply amounts to confessional statement of an accused in custody of a police officer and would be hit by Section 25 of the Evidence Act. If by adding another interpretation, the information is treated to be one under Section 42 of the N.D.P.S. Act then also the same would be inadmissible because the identity of the person giving the information that is the appellant herein was disclosed and he made to sign the same. If by adding another interpretation, the information is treated to be one under Section 42 of the N.D.P.S. Act then also the same would be inadmissible because the identity of the person giving the information that is the appellant herein was disclosed and he made to sign the same. In case, the appellant is considered to be the source informer then apparently he could not be made an accused on the basis of the information provided by him. 13. In any event, it is clear that failure of the prosecution to prove the factum of arrest of the accused appellant before recording the information Ex.P-9 leads to an irrefutable conclusion that same cannot be admitted to be an information under Section 27 of the Evidence Act and rather the document is simply the confession of accused recorded by the police officer and is not admissible in evidence. Taking an extreme view in favour of the prosecution by splitting up the information Ex.P-9 and excluding the inculpatory part stated by the accused then, at best the information can be treated as conveying that the Seizure Officer Pushpendra Singh received an information regarding concealment of opium in the disputed house. 14. The language of the seizure memo Ex.P-4 regarding the manner in which the recovery was effected brings the entire search and seizure proceedings under grave doubt. Firstly, as has been noticed above, despite presence of the co-accused persons Mohan Lal and Bhanwar Lal in the very same room from where the contraband was recovered neither their names nor their presence was recorded in the seizure memo or any other corresponding document. The sequence of recovery was mentioned in the seizure memo Ex.P-4 as below:- izn'kZ ihŒ 4 eqyŒ dh fu'kknsgh ls dejs esa j[kh ,d vyekjh esa j[kh jtkbZ ds uhps ls ,d feysDVªh jax dh fMtkbZu okyk diM+s dk cSx fudkydj eqyŒ us j[kkA 15. Contrary to general belief and behaviour, the independent Panch Witnesses associated with the recovery viz. P.W. 1 Chetan Puri and P.W. 2 Prem Singh supported the prosecution case to the hilt. However, both categorically stated that the bag containing opium was taken out by the police officers. Contrary to general belief and behaviour, the independent Panch Witnesses associated with the recovery viz. P.W. 1 Chetan Puri and P.W. 2 Prem Singh supported the prosecution case to the hilt. However, both categorically stated that the bag containing opium was taken out by the police officers. P.W. 3 Manish Suthar another witness to the recovery who at the relevant point of time was posted at P.S. Pratap Nagar also stated that the bag was discovered on searching the almirah which was pointed out by the accused. On the contrary, Pushpendra Singh the Seizure Officer stated that accused went inside the room and took out the bag from under the quilt lying inside the almirah. He did not mention that accused pointed out the place where the bag was concealed. Thus, there is a grave contradiction in the testimony of these witnesses vis-a-vis the seizure memo regarding the manner in which the contraband article was recovered. One version is that the bag was recovered upon pointing out of the accused and the other that the accused himself brought out the contraband and presented it before the I.O. The contradiction is very material and affects the veracity of the search and seizure proceedings. 16. The seizure memo and the admitted prosecution evidence do not indicate that any lock existed on the house or, the room from which recovery was made or even the almirah itself. The evidence led by prosecution is totally silent on the aspect as to who opened the door of the house when the police party reached there. 17. Thus, there is no escape from the conclusion that the alleged recovery of contraband opium from almirah lying in a room on the first floor of the disputed house was not effected at the instance of the accused appellant in furtherance of an information supplied by him because the information by itself is inadmissible in evidence. The evidence of the seizure officer in this regard is highly doubtful and cannot be accepted. 18. The most significant argument advanced by learned defence counsel for challenging the conviction of the appellant was that the prosecution failed to prove that the appellant herein was either in exclusive or conscious possession of the house in question. The evidence of the seizure officer in this regard is highly doubtful and cannot be accepted. 18. The most significant argument advanced by learned defence counsel for challenging the conviction of the appellant was that the prosecution failed to prove that the appellant herein was either in exclusive or conscious possession of the house in question. Learned trial court dealt with this issue from para-38 onwards of the judgment and held that the presence of co-accused Mohanlal and Bhanwarlal at the scene of occurrence was doubtful. The learned trial Judge further held at para no. 39 of the judgment that the names of these two accused were not mentioned in the F.I.R. and in any other document prepared at the time of seizure. The trial court held that simply the presence by itself of these two accused in the house at the time of recovery could not be considered sufficient to attribute them the knowledge of the opium concealed therein and hence acquitted them from the charges. So far as the accused appellant Mahendra is concerned, learned trial Judge concluded that he gave an information to Pushpendra Singh regarding concealment of opium in the house which was forwarded to the superior officer under Section 42 of the N.D.P.S. Act. Thereafter the accused himself got recovered the contraband opium from the almirah lying in the room located on the first floor of the house. I am of the opinion that as the trial court discarded the prosecution story regarding the involvement of co-accused Bhanwarlal and Mohanlal in the case, this circumstance by itself significantly dilutes the prosecution case against the appellant as well. 19. To prove ownership of the house in question, the prosecution examined P.W. 15 Jaswant Singh who stated that during investigation, he collected the document Ex.P-22 from J.D.A., as per which the plot in question stood in the name of Ramu Ram and Rana Ram who are the brothers of Mahendra etc. As has been mentioned above, the prosecution did not lead any evidence to show that the appellant was ever seen in or around the house in question at any point of time before the recovery. Thus, this Court has no hesitation in concluding that the house in question was neither in the ownership nor in the conscious or exclusive possession of the appellant herein. Thus, this Court has no hesitation in concluding that the house in question was neither in the ownership nor in the conscious or exclusive possession of the appellant herein. The seizure was made on 11.12.2008 but surprisingly enough the appellant was arrested in this case vide arrest memo Ex.P-17 dated 22.12.2008. Thus, apparently the information Ex.P-9 cannot be read against the appellant by any stretch of imagination because the same was not proved to have been recorded after his arrest nor does it reflect that it was recorded under section 27 of the Evidence Act so as to make it admissible against the appellant. The documents prepared at the time of seizure were got signed by the appellant without proving his custody or arrest in any case and hence the admissibility of these documents as against the appellant becomes doubtful. Even if the questionable prosecution case led by the testimony of C.O. Pushpendra Singh is accepted by conducting a hair splitting exercise then too all that can be inferred is that the recovery officer seized opium weighing 7.500 Kgs. from the house no. 29 which was owned by Ramu Ram and Rana Ram and that the three brothers Mahendra @ Banti (appellant herein), Mohanlal and Bhanwarlal (acquitted co-accused) were present at the time of recovery. That being the situation, there is no satisfactory evidence on record so as to convince the Court that the recovery was made from the premises within the exclusive and conscious possession of the accused appellant or at his instance. 20. In the case of Mohd. Alam Khan v. Narcotics Control Bureau (supra) relied upon by Mr. Jain, the seizure was made from a house which was allegedly owned by the accused therein. However, the accused denied his signatures on the agreement of purchase of the house. The prosecution did not bother to produce any independent evidence to prove the fact that the appellant was owner of the flat in question by leading evidence and hence Hon'ble Supreme Court acquitted the accused on the ground that the ownership of the flat was not proved to be that of the accused therein. 21. As an upshot of the above discussion, I am of the firm opinion that the evidence led by the prosecution falls well short of the requisite standard of proof beyond all manner of doubt so as to sustain the appellant's conviction. 21. As an upshot of the above discussion, I am of the firm opinion that the evidence led by the prosecution falls well short of the requisite standard of proof beyond all manner of doubt so as to sustain the appellant's conviction. The impugned judgment is not based on a just and proper evaluation of evidence available on record and hence the same is liable to be set aside. 22. Resultantly, the appeal deserves to be and is hereby allowed. The impugned judgment dated 12.12.2015 passed by learned Special Judge, N.D.P.S. Cases, Jodhpur is set aside and the appellant Mahendra @ Banti is acquitted of the charge under section 8/18 of the N.D.P.S. Act. The appellant who is in custody shall be forthwith set at liberty if not wanted in any other case.