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2017 DIGILAW 2234 (RAJ)

Rajpal Jat v. State of Rajasthan

2017-10-24

SANDEEP MEHTA

body2017
JUDGMENT : Sandeep Mehta, J. 1. These two appeals are directed against the judgment dated 23.12.2011 passed by the learned Special Judge, NDPS Act Cases, Chittorgarh in Sessions Case No. 38/2009 whereby, the appellants were convicted and sentenced as follow:- Rajpal 8/15 (C) of the NDPS Act-18 years' R.I. and a fine of Rs. 1,80,000/- in default of payment of fine to further undergo 2 years' R.I. Kaluram 8/15 (C) of the NDPS Act-18 years' R.I. and a fine of Rs. 1,80,000/- in default of payment of fine to further undergo 2 years' R.I. 8/25 of the NDPS Act-18 years' R.I. and a fine of Rs. 1,80,000/- in default of payment of fine to further undergo 2 years' R.I. All the sentences were directed to run concurrently. 2. The appellant Rajpal has remained in custody for more than 8 years whereas the appellant Kalu Ram has reportedly suffered custodial period of about 6 years 4 months. Both the appellants herein were apprehended by the SHO Police Station Nimbahera on 25.03.2009 while allegedly transporting contraband poppy straw weighing 18 quintals in a mini truck No. RJ-23-G-2705. After trial, they were convicted and sentenced as above. 3. Learned counsel representing the appellants have raised a solitary ground to challenge conviction of the appellants urging that the seized Muddamaal was not proved by the prosecution at the trial. On this aspect, the learned Trial Court made the following observation at para No. 29 of the impugned judgment which is reproduced for sake of ready reference:- ^^bl ekeysa esa U;k;ky; ds le{k Ánf'kZr vkfVZdy&1 lEiw.kZ eky 66 cksjksa esa ls ÁR;sd cksjs esa ls 100&100 xzke dqy 6 fdyksa 600 xzke voS/k MksMkpwjk esa ls 500&500 xzke ds nks uewus fy;s tkus ds ckn 'ks"k feDl lsEiy 5 fdyks 600 xzke dk iSdsV vkfVZdy&1 gS] vkfVZdy&2 dUVªksy lsEiy o vkfVZdy&3 uewuk lsEiy tks fof/k foKku Á;ksx'kkyk ls ckn tkap is'k gqvk gS] cjken'kqnk 66 cksjs U;k;ky; esa is'k fd;s x;s gSA vkfVZdy 1] 2 o 3 lHkh ij xokgksa ds o eqyfteku ds nLr[kr gSA mijksDr foospukuqlkj mDr 66 cksjksa esa 18 fDoaVy voS/k MksMkpwjk bl Ádj.k esa eqyfteku ds dCts ls tCr fd;k tkuk Áekf.kr gksrk gSA** 4. From a bare perusal of the above mentioned observation made by the Trial Court, it is apparent that the prosecution did not exhibit the seized Muddamaal in the self same condition because the seizure officer Ramniwas (PW-17) admitted in his cross-examination that 66 gunny bags, which were produced by him in the court, did not bear any chits or identifying marks so as to connect or link them with the recovery and seizure allegedly effected from the accused in the case at hand. Apparently thus, the accused cannot be convicted for the alleged recovery of 18 quintals poppy straw effected by SHO Ramniwas from 66 gunny bags while being plied by the accused in a mini truck No. RJ-23-G-2705. While drawing samples, the SHO collected 100 gms. of the suspected contraband from each gunny bag. Thus, total 6 Kgs. 600 gms of the substance seized was forwarded to the FSL from where a report adverse to the accused was received only. These samples weigh 6 Kgs. 600 gms. poppy straw only were proved in an intact condition by the seizure officer and bore chits and seals with signatures of all concerned including the accused persons. 5. Admittedly, the seizure officer or the investigating officer did not follow the procedure of Section 52A of the NDPS Act and no process of preparing samples and taking photographs of the seized muddamaal was conducted thereunder so as to give alternate evidence of the seized goods. Thus considered in light of the ratio of Supreme Court judgments in the cases of Jitendra and Others vs. State of Madhya Pradesh, 2003-04 (Supp) Cr.L.R. (SC) 699, Ashok alias Dangra Jaiswal vs. State of M.P. AIR 2011 SC 1335 and Vijay Jain vs. State of M.P. 2013 (14) SCC 527 , the evidence of the seizure officer cannot be accepted for the entire seized contraband i.e. 18 quintals of poppy straw. The reason for reaching this conclusion, as mentioned above, is that the prosecution did not give any primary evidence of the seized goods by exhibiting the same at the trial. However, there is cogent evidence on record to satisfy the Court regarding recovery of 6 Kgs. 600 Gms. poppy straw in form of samples collected by the seizure officer because the samples were exhibited and proved by the I.O. beyond all manner of doubt. However, there is cogent evidence on record to satisfy the Court regarding recovery of 6 Kgs. 600 Gms. poppy straw in form of samples collected by the seizure officer because the samples were exhibited and proved by the I.O. beyond all manner of doubt. Thus, at best, conviction of the accused can be upheld for recovery of 6 Kgs. 600 Gms. poppy straw which weighs below commercial quantity. Their conviction cannot be sustained for recovery of poppy straw weighing 18 quintals as recorded by the trial court. 6. The appeals thus deserve to be allowed in part. The impugned judgment 23.12.2011 passed by the learned Special Judge, NDPS Act Cases, Chittorgarh is set aside to the extent, the conviction of the appellants was recorded for the offence under Section 8/15(C) of the NDPS Act and instead, their conviction is converted to one under Section 8/15(B) of the NDPS Act i.e. for possession of inflationary quantity of contraband poppy straw as well as for the offence under Section 8/25 of the NDPS Act for transporting the said quantity of poppy straw. 7. At the same time, the conviction of the appellant Kalu Ram cannot be sustained for the offence under Section 8/25 of the NDPS Act because the said provision postulates culpability of the owner or occupier of a house, enclosure, space, place or conveyance when such owner or occupier, permits the space/conveyance to be used for commission by any other person of an offence punishable under any provision of this Act. In the case at hand, it is the positive case of prosecution that appellant Kalu Ram being a registered owner was himself present in the car and was actively transporting the poppy straw. Thus, the situation is not one where the appellant Kalu Ram being the owner of the offending vehicle, permitted his vehicle to be used by any other person for committing an offence punishable under the NDPS Act. The case is admittedly one where the registered owner himself used the vehicle for transportation of contraband poppy straw and hence the charge under Section 8/25 of the NDPS Act is ex-facie untenable. Thus, the conviction of the appellant Kalu Ram cannot be sustained for the offence under Section 8/25 of the NDPS Act and he is acquitted of the said charge. 8. Resultantly, the appeals are accepted in part. Thus, the conviction of the appellant Kalu Ram cannot be sustained for the offence under Section 8/25 of the NDPS Act and he is acquitted of the said charge. 8. Resultantly, the appeals are accepted in part. The impugned judgment dated 23.12.2011 passed by the learned Special Judge, NDPS Act Cases, Chittorgarh is modified as below. 9. Conviction of both the appellants is altered from the offence under Section 8/15(C) of the NDPS Act to one under Section 8/15(B) of the NDPS Act. The appellant Kalu Ram is acquitted from the offence under Section 8/25 of the NDPS Act. As mentioned above, the appellant Kalu Ram has remained in custody for a period exceeding 6 years whereas the appellant Rajpal has remained in custody for a period exceeding 8 years. Thus, the substantive sentence of the appellants for the offence under Section 8/15(B) of the NDPS Act deserves to be reduced to the period already undergone by them. The fine imposed upon each of the appellants is reduced to Rs. 10,000/- and in the event of non-payment of fine, each appellant shall further undergo two months' simple imprisonment. The appellant Rajpal is in custody. He shall be released upon depositing the amount of fine if not wanted in any other case. The appellant Kalu Ram is on bail. He is given two months' time to deposit the fine. If fine is deposited by Kalu Ram within two months, his bail bonds shall stand discharged. If he fails to do so, the trial court shall take steps to recover the fine amount as per law. 10. The appeals are partly allowed in the above terms. 11. Record be returned to the trial court. A copy of this order be placed in each file.