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2017 DIGILAW 2167 (RAJ)

Banwari v. State Of Rajasthan

2017-10-09

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. All these appeals are directed against the common judgment dated 22.04.2011 passed by the learned Special Judge, NDPS Act Cases, Chittorgarh in Sessions Case No. 29/2009 whereby, the learned trial court acquitted the accused Basant from the charge under Section 8/18 read with Section 25 of the NDPS Act, the accused Kishanlal and Narayan from the charge under Section 8/29 of the NDPS Act and at the same time, convicted the appellant Banwari Lal for the offence under Section 8/18 of the NDPS Act, appellant Bhairu Lal for the offence under Section 8 read with Section 29 of the NDPS Act and appellant Shankar Lal for the offence under Section 8/28 of the NDPS Act and sentenced each convicted accused to 10 years R.I. and a fine of Rs. 1,00,000/- in default of payment of fine to further undergo 1 year's R.I. 2. Whilst the three convicted accused Banwari Lal, Bhairul Lal and Shankar Lal have preferred three separate appeals challenging their conviction recorded by the trial court and the sentences awarded to them in the above terms; the Central Bureau of Narcotics has approached this Court by way of an appeal for assailing the acquittal of Basant, Narayan and Kishanlal. 3. I have heard and considered the arguments advanced by the learned counsel representing the convicted as well as acquitted accused and Shri N.K. Rai, Special Public Prosecutor representing the Central Bureau of Narcotics in all the cases and have minutely appreciated the evidence available on record. 4. Facts in brief are that Vijay Singh Meena, the District Opium Officer, Chittorgarh allegedly received a source information on 24.12.2008 which was taken down into writing and forwarded to the Narcotics Commissioner and Deputy Narcotics Commissioner, Kota. By way of follow up action, a preventive team of CBN officers was formed on 25.12.2008 and Nakabandi was laid opposite the Sainik School on the Chittorgarh Bhilwara Road. Two independent motbirs Rajendra Singh and Kalulal were associated in the proceedings. At about 08.30 am., a Maruti Omni Car bearing registration plate No.RJ09-U-0562 came around near the place where Nakabandi was laid. It was flagged down to stop. The accused Basant was driving the vehicle whereas Radheyshyam and Banwari were sitting on the middle seat. A white coloured manure bag was lying on the rear seat which was weighed and was found to contain 9.700 Kgs. of suspected opium. It was flagged down to stop. The accused Basant was driving the vehicle whereas Radheyshyam and Banwari were sitting on the middle seat. A white coloured manure bag was lying on the rear seat which was weighed and was found to contain 9.700 Kgs. of suspected opium. The requisite proceedings of sampling, seizure, etc. were conducted on spot. The accused Banwari, Basant and Radheyshyam were interrogated under Section 67 of the NDPS Act and upon their complicity in the crime being established, they were arrested. The samples collected from the seized contraband were forwarded for examination to the Government Opium and Alkaloid Factory, Neemuch from where a report was received to the effect that the samples were of opium. During course of investigation, it came to light that the accused Bhairu Lal misappropriated 5.00 Kgs. opium from his licenced opium cultivation and provided the same to the principal accused persons through Kishanlal. The accused Basant permitted the vehicle owned by him to be used for transportation of illicit opium. The opium was to be supplied to the accused Shankar Lal but was detected and seized during transportation and thus, Shankar Lal could not succeed in laying hands thereupon. A complaint was filed in the court concerned against the seven accused named with these allegations. The trial court framed charges against the accused on 26.10.2009. All the accused pleaded not guilty and claimed trial. The prosecution examined as many as 9 witnesses in support of its case. The accused persons, upon being questioned under Section 313 Cr.P.C., 1973 denied the prosecution allegations but did not lead any evidence in defence. Upon conclusion of proceedings, the trial court proceeded to decide the case in the above mentioned manner and hence these appeals. 5. Learned counsel Sarva Shri B.R. Bishnoi, Manish Pitaliya, K.S. Lodha and Mahaveer Bishnoi representing the respective convicted accused appellants, vehemently urged that the conviction of the appellants as recorded by the trial court is bad in eye of law. They urged that in order to prove the recovery of 9.700 Kgs. of opium from the car, the prosecution was required to physically present in the court and prove by exhibiting the recovered contraband so as to give substantive evidence of the seizure. They urged that the prosecution attempted to prove the seized articles during the testimony of Shivjirao Panwar (PW-4). of opium from the car, the prosecution was required to physically present in the court and prove by exhibiting the recovered contraband so as to give substantive evidence of the seizure. They urged that the prosecution attempted to prove the seized articles during the testimony of Shivjirao Panwar (PW-4). The witness proved the control as well as the samples received back after examination from the Forensic Science Laboratory in the court as Articles 1 and 2 respectively. The allegedly seized Muddamaal was produced in court in a carton of ghee which the court noticed had been destroyed by termites. The witness categorically stated that the most of carton had been decayed/ destroyed because of termite infestation and the names of the accused were barely visible thereupon. The witness exhibited the seized muddamaal as Article 3 claiming that it bore his own and the signatures of motbirs. However, the witness did not state that even the case number was not mentioned on the Muddamaal. They further urged that the Muddamaal was not having the case number mentions on it. The signatures of the accused were missing thereupon and the prosecution also failed to prove compliance of the procedure provided under Section 52A of the NDPS Act. As per them, there is no escape from the only possible conclusion that the prosecution failed to lead substantive evidence of the Muddamaal and hence the conviction of the appellants cannot be sustained. They placed reliance on the following judgment in support of their contentions and urged that the appeals preferred by the convicted accused deserve to be accepted while the appeal preferred by the Central Bureau of Narcotics against acquittal should be dismissed: (1) Aladdin & Anr. v. State of Rajathan, (S.B. Criminal Appeal No. 1050/2015) decided on 19.02.2015. 6. Per contra, learned Special Public Prosecutor Shri N.K. Rai vehemently opposed the submissions advanced by the appellants' counsel. He urged that huge quantity of opium weighing nearly 10 Kgs. was recovered from the possession of the accused Banwari and Radheshyam who were transporting the same in the Omni vehicle. They failed to provide any valid licence or permit for transporting the commercial quantity of opium. All the accused persons were examined under Section 67 of the NDPS Act and they admitted their complicity in the crime. was recovered from the possession of the accused Banwari and Radheshyam who were transporting the same in the Omni vehicle. They failed to provide any valid licence or permit for transporting the commercial quantity of opium. All the accused persons were examined under Section 67 of the NDPS Act and they admitted their complicity in the crime. As per Shri Rai, non-exhibiting of the Muddamaal would loose significance as, the other evidence available on record is sufficient to bring home the guilt of the accused persons. However, Shri Rai had no option but to agree that the prosecution failed to exhibit the Muddamaal in the self same condition as, the cartoon in which the gunny bag containing the seized opium was placed neither bore signatures of the accused nor the case number was mentioned thereupon. Evidently thus, the prosecution failed to lead substantive evidence of the seized article. Admittedly, neither any inventory was prepared under Section 52A of the NDPS Act nor was the same proved so as to discharge the prosecution from the burden of exhibiting the muddamaal in the court. 7. Having appreciated the arguments advanced by the learned counsel for the parties and considering the admitted position spelt out from the record that the Muddamaal was not produced and exhibited in the court in the self same condition and as, the prosecution failed to follow the procedure prescribed under Section 52A of the NDPS Act so as to lead alternate evidence of the seized goods, there is no escape from the conclusion that no evidence was given of the seized muddamaal by exhibiting it in self same condition in the court. The Hon'ble Supreme Court and this Court have time and again held that exhibiting the Muddamaal in the self same condition or proving the inventory and photographs prepared under Section 52A of the NDPS Act is an indispensable requirement so as to accept the evidence of seizure and hold the accused guilty of the charge under the NDPS Act. Failure to do so would deprive the court of verifying truthfulness of the alleged seizure. Failure to do so would deprive the court of verifying truthfulness of the alleged seizure. The legislature has provided a wholesome alternative mechanism to the investigating agency of preparing inventory/memorandum and photographs of the recovered articles under Section 52A of the NDPS Act which can be proved in the court by way of admissible substantive evidence of the seized articles rather than adopting the cumbersome procedure of producing and exhibiting the muddamal in the court. As has been observed above, the prosecution failed to undertake and prove compliance of this procedure as well. Hence, the impugned judgment of conviction is grossly illegal and cannot be sustained. 8. Thus, whilst accepting the conviction appeals No. 136/2014, 305/2011 and 548/2011, the accused appellants Banwari, Shanker Lal and Bhairu Lal are acquitted of all the charges. Simultaneously and for the same reasoning, the appeal No. 412/2014 preferred by the Central Bureau of Narcotic against acquittal of Basant, Narayan and Kishanlal is dismissed as being devoid of merit. The impugned judgment dated 22.04.2011 passed by the learned Special Judge, NDPS Act Cases, Chittorgarh is quashed and set aside to the extent it records conviction of the accused Banwari, Shanker Lal and Bhairu Lal and the same is upheld to the extent, the accused Basant, Narayan and Kishanlal were acquitted of the charges. The appellants Shanker Lal and Bhairu Lal are on bail. They need not surrender. Their bail bonds are discharged. The appellant Banwari is in jail. He shall be released from custody forthwith if not wanted in any other case. 9. Record be returned to the court below.