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2017 DIGILAW 638 (RAJ)

MOHAN RAM v. STATE OF RAJASTHAN

2017-02-27

DINESH CHANDRA SOMANI

body2017
JUDGMENT : DINESH CHANDRA SOMANI, J. 1. The instant SB Criminal Appeals under section 374 (2) of Code of Criminal Procedure, 1973 have been preferred by the accused/appellants against the judgment dated 14/01/2009 passed by learned Special Judge (NDPS Cases), Jhalawar in Sessions Case No. 16/2006 State v. Mohan Ram & Anr., whereby, the learned trial Court has convicted the accused/appellant Mohan Ram and Ramesh Chand for offence under Section 8/15 (c) of NDPS Act and sentenced each of them with 10 years' rigorous imprisonment and a fine of Rs. 1,00,000/-, and in default of payment of fine, to further undergo one year's rigorous imprisonment. 2. Brief facts of the case, are that on 29/09/2005, SHO, Police Station Aklera, District Jhalawar Shri Khemraj (PW-4) along with police party, was on patrolling on the Harnawada Road near brick kilns, where he saw two persons loaded with one sack each on their back and one sack was lying on the earth. When asked about contents of the sacks, they threw the sacks and tried to escape, then the police party caught them. When asked about their names and addresses, one of them introduced himself as Mohan Ram son of Surta Ram Jat and another one introduced him as Ramesh son of Shivram Lodha. On suspicion of being contraband in the sacks, constable Parmanand (PW-6) amongst the police party, was sent to call independent witness, who came back with Ghanshyam (PW-3) and Ram Bharosh @ Bhuria, who consented to be independent witnesses. The accused/appellants were served with notice under section 50 of the NDPS Act, that they have a right of being searched in presence of any Gazetted Officer or Magistrate, but the appellants gave their consent in writing for search by the SHO himself. Thereafter, mouth of the sacks were opened and seen, smelt & tasted, then "doda chura" (poppy straw) of Narcotic Drug Opium was found. When asked about license for the possession of the contraband, both the appellants denied having any license. Weighing machine was brought by Constable Kailash Chand. All the three sacks were weighted. Weight of sack containing "doda chura" (poppy straw) with the appellant Mohan was found to be 24Kg 500gms and weight of sack with Ramesh was 19Kg and 400gms and the weight of sack lying on the earth was 8Kg 900gms. Samples of 500gms from each of the sacks were taken. All the three sacks were weighted. Weight of sack containing "doda chura" (poppy straw) with the appellant Mohan was found to be 24Kg 500gms and weight of sack with Ramesh was 19Kg and 400gms and the weight of sack lying on the earth was 8Kg 900gms. Samples of 500gms from each of the sacks were taken. Samples were sealed and marked on the spot. Sacks of remaining "doda chura" (poppy straw) were also sealed on the spot and marked. Recovery memo and memo of sample seals were prepared on the spot. The accused persons were arrested. On return at Police Station, FIR No. 251/2005 under Section 8/15 of NDPS Act was registered and the investigation was handed over to Circle Officer, Aklera and the sacks containing the contraband, were resealed in Police Station. 3. After completion of investigation, police filed charge-sheet against the accused/appellants before the learned trial Court for offence under Section 8/15 of NDPS Act. 4. Learned trial Court framed charge under Section 8/15 of the NDPS Act, 1985. Charge was read over and explained to the accused/appellants separately, who pleaded not guilty and sought to be tried. 5. In order to support its case, prosecution examined 8 witnesses and exhibited 24 documents. Thereafter, learned trial Court put oral evidence and documentary evidence produced by the prosecution to the appellants. In reply to the prosecution evidence, the appellants denied the prosecution evidence and stated that no any contraband was recovered from them and they have been falsely implicated. Appellant Mohan Ram also stated that he was standing in the mob at the place of occurrence and he is innocent. Appellant Ramesh Chand also stated that he was working on his field and the police forcefully brought him at the police station and falsely implicated in the case. 6. After completion of trial, learned trial Court convicted accused/appellants for the offence under Section 8/15 (c) of the NDPS Act and sentenced them as indicated here in above. 7. Being aggrieved with the judgment of conviction and order of sentence awarded by the learned trial Court, the accused/appellants have preferred these appeals against the impugned judgment dated 14/01/2009. 8. Vide order dated 07/04/2016, Coordinate Bench of this Court, suspended the sentence awarded by the learned trial Court, to the accused/appellant Ramesh Chand, on furnishing personal bond of Rs. 50,000/- and two surety bonds of Rs. 8. Vide order dated 07/04/2016, Coordinate Bench of this Court, suspended the sentence awarded by the learned trial Court, to the accused/appellant Ramesh Chand, on furnishing personal bond of Rs. 50,000/- and two surety bonds of Rs. 25,000/- each, to the satisfaction of learned trial Court. 9. Learned counsel for the appellants, Mr. V.D. Agnihotri and Mr. R. K. Sharma jointly contended that the provisions of section 50 of the NDPS Act are not complied with by the police, which are mandatory in nature. Section 50 provides search of the accused persons to be conducted before a Gazetted Officer or Magistrate, whereas, the police has not followed the provisions. Therefore, search conducted in violation of Section 50 of the Act, vitiated the search. 10. Learned counsel for the appellants also contended that it is alleged that the appellant Mohan Ram was having sack of "doda chura" of opium weighing 24Kg 500gms and appellant Ramesh Chand was having sack weighing 19Kg 400gms. The said quantity is alleged to have been recovered separately from the appellants, which is however less than the commercial quantity. Learned counsel further contended that the quantity in sacks having with each of the appellant, cannot be counted together to declare the alleged quantity to be more than the commercial quantity. 11. Learned counsel for the appellants also contended that the place of incident is said to be near brick kilns, where, the labours remain for all the times but no such person has been made witness of the alleged search and recovery of the contraband from the appellants, therefore, the alleged search and recovery became doubtful. In support of their contentions, learned counsel for the appellants placed reliance on :- 2000 CRI.L.J. 817 (Supreme Court) Kalayath Nassar v. State of Kerala. 12. Per contra, learned Public Prosecutor Mr. R.R. Singh has supported the impugned judgment and submitted that the learned trial Court has rightly convicted the accused/appellants on the basis of cogent and reliable evidence, which proved their guilt beyond reasonable doubt. Learned Public Prosecutor also submitted that compliance of the requirement of Section 50 of the NDPS, Act has been done in letter and spirit and the learned trial Court has rightly held the same to have been done. 13. Learned Public Prosecutor also submitted that compliance of the requirement of Section 50 of the NDPS, Act has been done in letter and spirit and the learned trial Court has rightly held the same to have been done. 13. Learned Public Prosecutor further contended that the prosecution has proved that both the appellants were loaded with one sack each on their back and one sack was lying on the earth. All the three sacks were weighed. Weight of sack with appellant Mohan was found to be 24 Kg 500 gms, weight of sack with appellant Ramesh Chand was found to be 19 Kg 400 gms and the weight of sack lying on the earth was 8Kg 900gms, thus, total 52Kg 800gms "doda chura" was found with the appellants. 14. Therefore, it is proved that contraband 52Kg 800gms of "doda chura" (poppy straw) was recovered from the conscious possession of the appellants. Learned Public Prosecutor also submitted that there is nothing on record to suggest that the independent witness Ghanshyam (PW-3) and Ram Bharosh are interested witnesses or stock witnesses of the police. Moreover, no such suggestion was given to the witness Ghanshyam (PW-3), thus, there is no reason to disbelieve on the deposition of independent witness Ghanshyam. Therefore, not calling any witness from the brick kilns situated near the place of incident, is of no consequence. 15. We gave anxious consideration to the rival contentions of the learned counsel for the appellants and learned Public Prosecutor for the State and perused the record of the case. 16. Khemraj (PW-4), SHO, Police Station Aklera has stated that on 29.09.2005 at 4.00 PM, he along with driver Kailash Chand, Phool Singh LC and Parmanand LC, was on patrolling on the Harnawada Road near brick kilns, where, he saw two persons loaded with one sack each on their back and one sack was on the earth. Investigation box was with him. When asked about contents of the sacks, then they did not reply. When asked about their names, one of them introduced himself as Mohan Ram and another one introduced himself as Ramesh Lodha. On suspicion of being contraband in the sacks, Constable Parmanand LC was sent to call independent witness. Kailash Chand, driver of the jeep was sent to bring weighing machine. Parmanand LC came back with independent witness Ram Bharosh and Ghanshyam, who consented to be independent witness. On suspicion of being contraband in the sacks, Constable Parmanand LC was sent to call independent witness. Kailash Chand, driver of the jeep was sent to bring weighing machine. Parmanand LC came back with independent witness Ram Bharosh and Ghanshyam, who consented to be independent witness. In the meantime, Kailash Chand brought weighing machine on the spot. In presence of independent witnesses, Ramesh and Mohan Ram were served with separate notices under section 50 of the NDPS Act, informing them that they have a right of being searched in presence of any Magistrate or Gazetted Officer or myself SHO. Whereupon, both the persons gave their consent in writing for search by the witness himself. Thereafter, sack with Mohan Ram was checked, then "doda chura" was found. The sack was weighed and found to be 24 Kg 500 gms. Second sack with Ramesh was weighed, then the weight of illegal "doda chura" was found to be 19. Kg 400 gms. Third sack lying on the earth was also checked and weighed, then illegal "doda chura" was found to be 8 Kg 900 gms. When asked about license, both the persons denied having any license. Thereafter, samples of 500 gms from each of the sacks were taken and sealed and marked A-1, B-1 and C-1. Remaining sacks were marked A, B and C, which were sealed on the spot with his private seal. Both were arrested on the spot. Seal used on the spot was destroyed. After smelling and tasting by himself and witnesses, it was found to be "doda chura". Recovery memo Ex. P-3 was prepared and signatures of accused persons and witnesses were obtained thereon. Memo of sample seal Ex. P-4 was prepared and signatures of accused persons and witnesses were obtained thereon. Mohan Ram and Ramesh Chand were arrested vide Ex. P-5 and Ex. P-6 respectively. The witness also proved memo of appointing witness Ex. P-8, memo of consent given by accused persons Ex.P-9 and Ex.p-10, notice of summoning independent witnesses Ex.P-11, memo of bringing weighing machine Ex.P-12, notice given to accused Mohan Ram Ex.P-13, notice given to accused Ramesh Ex.P-14, memo of appointing Ghanshyam and Ram Bharosh to be witness vide Ex. P-15 and Ex. P-16, memo of resealing in police station Ex.P-17. P-8, memo of consent given by accused persons Ex.P-9 and Ex.p-10, notice of summoning independent witnesses Ex.P-11, memo of bringing weighing machine Ex.P-12, notice given to accused Mohan Ram Ex.P-13, notice given to accused Ramesh Ex.P-14, memo of appointing Ghanshyam and Ram Bharosh to be witness vide Ex. P-15 and Ex. P-16, memo of resealing in police station Ex.P-17. The witness also proved Ex.P-1, whereby, information was given to Superintendent of Police under Section 57, forwarding letter Ex.P18 sent by Police Station to FSL and receipt Ex.P19 obtained from FSL. The witness also marked exhibits on articles received from FSL. The witness also marked FSL report to be Ex.P-20. The witness further proved entries of general diary of police station Ex.P-21 and Ex.P-22 and entries in Maalkhana Register Ex.P-23. 17. PW-3 Ghanshyam has been examined by the prosecution as independent witness, who gave almost similar statement, as given by PW-4 Khemraj and supported the prosecution case. 18. PW-6 Parmanand, Police Constable has stated that on 29/09/2005, he went with Khemraj C.I. and driver Phool Singh on Harnawada Road near brick kilns, where two persons loaded with one sack each on their back and one sack lying on the earth, were seen. The witness also deposed that when asked about their names and address, one of them introduced himself as Mohan Ram and another one as Ramesh. The witness also stated that when asked about contents of the sack, they said to be "doda chura". The witness further stated that he was asked to bring two witnesses, then he went to the market and brought witness Ghanshyam and Ram Bharosh. The witness gave almost similar statement as given by PW-4 Khemraj with regard to opening and weighing of sacks, taking samples from each sack, sealing samples and rest of the contraband, arrest of the accused persons, preparation of memos on the spot and resealing of the sealed goods, in police Station. 19. PW-8 Phool Chand, Head Constable also gave similar statement as given by PW-4 Khemraj and proved seizure memo Ex.P-3, memo of resealing the goods vide Ex.P-7, site plan Ex.P-2 and thereby corroborated the evidence given by Khemraj (PW-4). 20. 19. PW-8 Phool Chand, Head Constable also gave similar statement as given by PW-4 Khemraj and proved seizure memo Ex.P-3, memo of resealing the goods vide Ex.P-7, site plan Ex.P-2 and thereby corroborated the evidence given by Khemraj (PW-4). 20. PW-2 Narayan Lal, Investigation Officer has stated that he prepared site plan Ex.P-2, recorded statements of the witnesses and after completion of investigation, he found the offence proved against the accused/appellants Mohan Ram and Ramesh, and handed over the file to SHO. 21. PW-5 Mazid Khan gave evidence that on 29/09/2005, he was Maalkhana In-charge of Police Station Aklera. On that day, six sealed packets were given to him, to be deposited in Maalkhana. He deposited the goods in Maalkhana and made entry to this effect in Maalkhana Register Ex.P-23. The witness also stated that on 05/10/2005, he sent three packets to FSL for analysis, with Constable Jitendra, who deposited the same on 06/10/2005 and produced the receipt. 22. PW-1 Smt. Ummed has stated that on 01/10/2005, she was constable in Police Station Aklera. On that day, C.I. gave her a sealed envelope to be given to Superintendent of Police, which she handed over to the Superintendent of Police. The witness proved signatures of Superintendent of Police on Ex.P-1 and stated that she gave the same to C.I. 23. PW-7 Jitendra Singh constable gave evidence with regard to obtaining forwarding letter Ex.P-24 from the office of Superintendent of Police, Jhalawar and to deposit the same in FSL with three sealed packets, against receipt Ex.P-19. 24. First Contention of learned counsel for the appellants is that section 50 of the NDPS Act was not complied with, which is mandatory in nature. We have carefully gone through the evidence of PW-4 Khemraj, PW-3 Ghanshyam and PW-8 Phool Chand, in this regard. 25. PW-4 Khemraj, who conducted the search and seizure, has stated that in presence of independent witnesses, he served separate notices under section 50 of NDPS Act to Ramesh and Mohan Ram, asking them that they have a right of being searched by any Magistrate or Gazetted Officer or myself SHO. Then, both the persons gave their consent in writing for search by the SHO himself. The witness proved the signatures of his own, of accused/appellants and independent witnesses, on consent memo Ex.P-9 & Ex.P-10 of accused Mohan Ram and Ramesh respectively. 26. Then, both the persons gave their consent in writing for search by the SHO himself. The witness proved the signatures of his own, of accused/appellants and independent witnesses, on consent memo Ex.P-9 & Ex.P-10 of accused Mohan Ram and Ramesh respectively. 26. PW-3 Ghanshyam, an independent witness also proved his signatures on consent memo Ex.P-9 and Ex.P-10. 27. PW-8 Phool Chand, a member of police party, has stated that Mohan Ram and Ramesh Chand were served with separate notices under section 50 of the NDPS Act, whereby, SHO gave them option that if they wish, search can be made by any Gazetted Officer or a Magistrate or by SHO himself. Then, accused persons gave consent to be searched by SHO himself. 28. In view of above, it is found that the offer to search the accused/appellants was given to them in writing and on their giving consent, they were accordingly searched. Therefore, the learned trial Court was right in upholding that the procedure was followed by Khemraj (PW-4) for ensuring compliance of section 50 of the NDPS Act. I find no ground to take a different view, than the one taken by the learned trial Court and accordingly I uphold the finding of the learned trial Court on this issue against the appellants. 29. In Kalayath Nassar v. State of Kerala (supra), it was admitted by PW-1 that appellant was not informed that he has a right of being searched in the presence of a Gazetted Officer or a Magistrate. When PW-1 was confronted with this aspect, he said that appellant did not make a demand that search should be conducted in the presence of a Gazetted Officer or a Magistrate. Hon'ble Apex Court held that in a case, where, the Searching Officer failed to communicate to the accused, who was subjected to search, that he has a right to be searched in the presence of a Gazetted Officer or a Magistrate, there would be non-compliance with the requirement of Section 50. Merely for the reason that the accused did not make a request to the Searching Officer on his own that the search should be conducted in the presence of such officer, it cannot be held that there was no need to inform him of that right. Merely for the reason that the accused did not make a request to the Searching Officer on his own that the search should be conducted in the presence of such officer, it cannot be held that there was no need to inform him of that right. Facts of the case, relied upon by the learned counsel for the appellants, being distinguishable from the facts of the instant case, therefore, is of no help to the appellants. 30. Second contention of the learned counsel for the appellants is that according to prosecution, the appellant Mohan was having "doda chura" of opium (poppy straw) weighing 24 Kg 500 gms and the appellant Ramesh Chand was having 19 Kg 400 gms, which have been recovered separately, which is less than commercial quantity, but the learned trial Court has committed grave error in counting together the quantity of all the three sacks, to declare the alleged quantity to be more than the commercial quantity. 31. From the statement of Khemraj (PW-4) and other witnesses of the search and recovery, it is proved that both the appellants were together and loaded with one sack each on their back and one sack was lying on the earth. During search and seizure, none of the appellants has stated that he has no concern with the remaining two sacks. It is pertinent to note that the appellants Mohan Ram and Ramesh were served with separate notices under section 50 of the NDPS Act, for search of the sacks containing illegal contraband in their possession vide Ex.P-13 & Ex.P-14 respectively. Thereafter, the appellants gave their consent for search by the SHO himself. In this process, any of the appellants nowhere stated that he is possessing only one sack. 32. In view of above, it is proved that all the three sacks containing "doda chura" (poppy straw) were in joint possession of both the appellants. As the total quantity of "doda chura" (poppy straw) recovered from possession of the appellants is 52 Kg 800 gms, which is commercial quantity, therefore, the contention of the learned counsel for the appellants, cannot be accepted. 33. Third and last contention of the learned counsel for the appellants is that independent witnesses were not called from nearby area of the place of incident, whereas, several brick kilns were there and labours remain for all the times there. 33. Third and last contention of the learned counsel for the appellants is that independent witnesses were not called from nearby area of the place of incident, whereas, several brick kilns were there and labours remain for all the times there. It has come in cross-examination of the prosecution witnesses that several brick kilns and Ganesh Temple are there on the alleged place of recovery and the place is situated on Harnawada Road, and movement of vehicles on the road remain all the time. It has also come on record that Constable Parmanand (PW-6) amongst the police party, was sent to call independent witness, who came with Ghanshyam (PW-3) and Ram Bharosh @ Bhuriya from the market of Aklera. This is not the case of the appellants that at the time of search and seizure, independent witnesses were not called by the Searching Officer or the witness Ghanshyam (PW-3) and Ram Bharosh are not independent witnesses. Therefore, not calling the witness from among the labours working on brick kilns, is of no consequence. There is nothing on record to suggest that Ghanshyam (PW-3) and Ram Bharosh have enmity with the appellants or were interested in police personals or were under the influence of Searching Officer Khemraj (PW-4). Therefore, it cannot be said that Ghanshyam (PW-3) and Ram Bharosh are not independent witnesses and deposition of Ghanshyam is not reliable. 34. For the above reasons, we see no infirmity in the impugned judgment. The learned trial Court was fully justified in convicting the appellants. There is no merit in the submissions raised on behalf of the accused/appellants. There is no scope to interfere in the impugned judgment of conviction and order of sentence passed by the learned trial Court. 35. Resultantly, the appeals are dismissed. As the accused/appellant Ramesh Chand is on bail vide order passed by Coordinate Bench on 07/04/2016, his bail bonds are cancelled and he is directed to surrender forthwith before the learned trial Court to undergo the remaining sentence awarded to him. If he fails to do so, the learned trial Court shall take necessary steps including issuance of non-bailable warrant for his production before the Court, so as to serve the sentence awarded to him.