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2018 DIGILAW 1813 (RAJ)

Pradhanram v. State of Rajasthan

2018-08-30

PANKAJ BHANDARI

body2018
JUDGMENT : 1. Appellants-Pradhanaram and Dharmaram have preferred Appeal No. 1316/2011 and appellant-Govindram has preferred Appeal No. 16/2012 aggrieved by judgment and order dated 3.12.2011 passed by Special Judge (NDPS Cases), Beawar, District Ajmer in Sessions Case No. 06/2006, FIR No.247/2005 Police Station Beawar Sadar, Ajmer whereby appellants have been convicted for offence under Section 8/15 of NDPS Act and have been sentenced to ten years rigorous imprisonment and fine of Rs. 1,00,000/- and on non payment of fine to further undergone one year rigorous imprisonment. 2. In brief the factual matrix of the case are that on 5.7.2005 an information was received by Police Station Beawar Sadar, Ajmer at 9.00 a.m. that a dark green colored Mahindra vehicle bearing registration No.RJ-J01-G-7037 which is being driven by Dharmaram tried to hit Harshraj Singh, SHO Police Station, Vijay Nagar, Ajmer and that the vehicle is going towards Beawar. On this information S.I. Bhanwar Singh with ASI-Gangaram, ASI-Ladu Singh and other Constables did barricading at 9.30 a.m. at 9.50 a.m. a dark green coloured pick-up bearing registration No. RJ-J01-G-7037 was seen approaching the barricade. On seeing the barricading, the driver turned the vehicle. The vehicle was being chased and was found abandoned in the forest behind Krishna Dharamkanta. 3. On search the vehicle was found to be containing 10 bags of poppy husk weighing 476 Kg. hence, Police registered FIR Ex.P21. After due investigation charge-sheet was submitted against Govind Ram, Pradhanaram and Dharmaram. 4. All accused were charged under Section 8/15 of NDPS Act. Accused denied the charges and sought trial, whereupon as many as 24 witnesses were examined on behalf of the prosecution and as many as 22 documents were exhibited. Accused were examined under Section 313 Cr.P.C. No witness was produced in defence. Three documents, statements under Section 161 Cr.P.C. of Vishram Meena, Bhawani Shankar and Bhanwar Singh were exhibited as Ex.D1. 5. Trial Court after hearing the arguments convicted and sentenced the appellant as mentioned hereinabove, aggrieved by which, the present appeals have been preferred. 6. It is contended by counsel for the appellants that it is not established that pick-up was being driven by the appellants as no one in the police party saw the persons in the vehicle. 5. Trial Court after hearing the arguments convicted and sentenced the appellant as mentioned hereinabove, aggrieved by which, the present appeals have been preferred. 6. It is contended by counsel for the appellants that it is not established that pick-up was being driven by the appellants as no one in the police party saw the persons in the vehicle. It is also contended that the report about vehicle trying to hit SHO Harshraj Singh mentions the name of Dharmaram and Pradhanaram and that they were identified by Rajesh and Karan Singh. It is contended that Harshraj Singh PW18 has admitted in his cross-examination that he did not know the appellants and that staff Rajesh and Karan Singh recognized them. It is contended that Rajesh and Karan Singh have not been examined as prosecution witnesses to establish that appellants were in the vehicle. It is contended that though Vishram Meena has named Pradhanaram and Dharmaram as the persons, who were in the vehicle but in his cross-examination he has admitted that he has not mentioned the name of Pradhanaram and Dharmaram in Ex.D1 i.e. his statement under Section 161 Cr.P.C. 7. It is also contended that Bhanwar Singh is Sub-Inspector and not SHO Police Station, hence, he was not authorized to conduct the search and seizure under Section 42 of NDPS Act. It is argued that though information does not disclose about vehicle carrying contraband, but Bhanwar Singh PW24 in his examination-in-chief has deposed that he received information about vehicle approaching Beawar loaded with poppy husk. It is also contended that PW11-Vishram Meena has also mentioned in his examination-in-chief that there was information that there is possibility of vehicle carrying poppy husk. It is argued that since there is evidence to the effect that the police party was having information about vehicle carrying contraband, Section 42 of NDPS would be applicable and in view of the Notification No. F1 (3) FD/EX/85-1 dated October 16, 1986 whereby the State Government in exercise of power under Section 42 of NDPS Act has authorized all Inspectors of Police, and Sub-Inspectors of Police posted as Station House Officers, to exercise the powers mentioned in Section 42 of said Act. 8. Counsel for the appellant has placed reliance on Bherulal Vs. State of Rajasthan [2004(2) R.Cr.D. (Raj.) 292], Raju Munim Vs. State of Rajasthan [2005(3) WLC (Raj.) 392] and Roy V.D. Vs. 8. Counsel for the appellant has placed reliance on Bherulal Vs. State of Rajasthan [2004(2) R.Cr.D. (Raj.) 292], Raju Munim Vs. State of Rajasthan [2005(3) WLC (Raj.) 392] and Roy V.D. Vs. State of Kerala [ 2001 CrLJ 165 ]. 9. It is contended that PW-13 Suresh Kumar Mehraniya was the SHO at Police Station Beawar Sadar, Ajmer on 5.7.2005 as deposed by him before the Court. It is contended that no order has been produced to establish that Bhanwar Singh was handed over the charge of SHO and when Suresh Kumar PW13 admits that he was SHO at the Police Station at 10-11 a.m. in morning on 5.7.2005, it is clear that he was the SHO at the time when the search and seizure was made. 10. It is also contended that search and seizure was made on 5.7.2005 at 12.30 p.m. vide Ex.P3 but the seized articles were deposited on 6.7.2005, as to where the seized articles were kept for a day is not disclosed in the statement of the witnesses. It is argued that non-deposition of recovered) articles casts doubt on the recovery. 11. It is also contended that there is variance in the number of vehicle as mentioned in the information and the vehicle which is seized. It is also contended that the independent witnesses have not supported the recovery and have turned hostile. 12. Learned Public Prosecutor has opposed the appeals. His contention is that the case would fall under Section 43 of NDPS Act as it was a chance recovery from a public place. It is also contended that any officer of any of the department mentioned in Section 42 of NDPS Act is empowered to seize and arrest in any public place or in transit, any narcotic drug or psychotropic o substance or controlled substance in respect of which he has reason to believe that an offence punishable under this Act has been committed. It is argued that Section 42 of the Act would not be applicable in the case of chance recovery as the information which was received at Police Station Beawar was with regard to vehicle trying to hit the SHO Harshraj Singh and was not with regard to vehicle loaded with contraband. 13. It is argued that Section 42 of the Act would not be applicable in the case of chance recovery as the information which was received at Police Station Beawar was with regard to vehicle trying to hit the SHO Harshraj Singh and was not with regard to vehicle loaded with contraband. 13. With regard to appellants being in the vehicle, learned Public Prosecutor has drawn my attention towards the statement of PW18 - Harshraj Singh who has mentioned that Pradhanaram and Dharmaram were in the vehicle and Pradhanaram was driving the vehicle as per information given to him by his staff. It is also contended that appellants have given information under Section 27 of the Evidence Act with regard to the place where they have abandoned the vehicle and the place from where they have loaded the contraband. It is also contended that there is no reason why police would falsely implicate the accused and accused have not given any explanation in their examination Section 313 Cr.P.C. It is also contended that merely because recovery witnesses have turned hostile, appellants cannot be acquitted as other evidence point towards the guilt of the accused and the Court below has dealt with the entire evidence and has not committed any illegality in convicting the appellants. 14. I have considered the contentions and have perused the record and statement of the witnesses. 15. Pradhanaram was the owner of pick-up vehicle who has expired and his death certificate has been produced on record. In view of the same, to his extent Appeal No. 1316/2011 abates. As to whether Dharmaram and Govindram were in the vehicle when it was carrying contraband is a fact which was to be proved by the prosecution. Prosecution has not produced Rajesh and Karan Singh who are said to have recognized Dharamaram and Pradhanaram at the time when the vehicle tried to hit Harshraj Singh. Admittedly, Harshraj Singh was not knowing the appellants and at the time when the vehicle was seized no one was found in the vehicle in fact none of the prosecution witnesses has seen the accused in the vehicle. Therefore, presence of appellants in the vehicle has not been proved beyond reasonable doubt. Admittedly, Harshraj Singh was not knowing the appellants and at the time when the vehicle was seized no one was found in the vehicle in fact none of the prosecution witnesses has seen the accused in the vehicle. Therefore, presence of appellants in the vehicle has not been proved beyond reasonable doubt. There is not an iota of evidence to the effect that appellants were in the vehicle at the time when they tried to run over Harshraj Singh or at the time when it was abandoned in the forest. 16. With regard to notification issued by the State Government authorizing all Inspectors of Police, and Sub-Inspectors of Police posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act is concerned, this Court is required to weigh the evidence with regard to the information received and the statement of Bhanwar Singh to come to the conclusion whether the case falls under Section 42 or 43 of NDPS Act. Information Ex.P21 merely mentions that a green coloured Mahindra Pick-up vehicle bearing registration No. RJ-J01-G7037 has tried to hit SHO Harshraj Singh, there is no mention about vehicle carrying contraband. However, PW-24 Bhanwar Singh in his examination-in-chief has stated that at 9.00 a.m. he received an information from Harshraj Singh SHO Vijay Nagar that a green coloured pick-up is carrying contraband and has hit police personnel and is approaching Beawar. In his cross-examination he has denied the fact that he received information only about vehicle hitting SHO He has specifically stated that the information which he received was that the vehicle was carrying poppy husk. PW-11 Vishram Meena has also mentioned that they have received information about a vehicle approaching Beawar with poppy husk. Since PW24-Bhanwar Singh was the one, who has conducted search and seizure, his statement ought to have been given weightage. Accordingly, this case would fall under Section 42 of NDPS Act. Bhanwar Singh was a Sub-Inspector and not SHO, hence, in view of Notification No. F1(3)FD/EX/85-1 dated October 16, 1986 he was not authorized under Section 42 of NDPS Act. PW24-Bhanwar Singh in his examination-in-chief has mentioned that he was holding charge of SHO, which fact stands disproved from the statement of SHO PW13-Suresh Kumar Meharaniya, who 30 has stated that he was SHO and was in the Police Station at 10-11 a.m. on 5.7.2005. 17. Bherulal Vs. PW24-Bhanwar Singh in his examination-in-chief has mentioned that he was holding charge of SHO, which fact stands disproved from the statement of SHO PW13-Suresh Kumar Meharaniya, who 30 has stated that he was SHO and was in the Police Station at 10-11 a.m. on 5.7.2005. 17. Bherulal Vs. State of Rajasthan (supra) was a case where Sub-Inspector was not posted as SHO and he was temporarily holding the charge of Police Station. Recovery memo was drawn at 8.00 p.m. after the charge of police station was assumed by the SHO High Court held that the object of NDPS Act is to make stringent provisions, the same has to be observed with safeguards to avoid abuse of the provisions by the Officers. 18. Similar is the view taken by this Court in Raju Munim Vs. State of Rajasthan (supra). 19. In addition to the above, it is also pertinent to note that the recovery witnesses PW16 - Om Singh and PW17 - Sumer Singh have turned hostile. The chances of false implication cannot be ruled out as the allegation in the report was that the driver had tried to hit the police officers. In the explanation given by the appellants they have mentioned that the police has lodged false complaint due to enmity. 20. Yet another discrepancy which goes to the root of the matter is that the recovered contraband was not deposited” in Malkhana on the same day and there is no explanation whatsoever as to where the recovered articles were kept for a day and in whose possession they remained. 21. In view of the discussions made hereinabove, this Court is of the considered view that the trial Court has committed grave error in convicting the accused. The appeals, therefore, deserve to be allowed. 22. In the result, appeal filed by appellant-Pradhanaram son of Hariram is abated as he has expired and appeals filed by appellants-Dharmaram son of Hariram and Govindram @ Lalaram are allowed. The judgment and order dated 3.12.2011 passed by Special Judge (NDPS Act Cases) Beawar, District Ajmer in Sessions Case No. 06/2006 qua-appellant-Dharmaram and Govindram is quashed and set aside. The appellants-Dharmaram son of Hariram & Govindram @ Lalaram S/o Nandram are acquitted of the charges levelled against them. Appellant-Dharamaram is in jail and, he be set at liberty forthwith, if not required in any other case or for any other purpose. The appellants-Dharmaram son of Hariram & Govindram @ Lalaram S/o Nandram are acquitted of the charges levelled against them. Appellant-Dharamaram is in jail and, he be set at liberty forthwith, if not required in any other case or for any other purpose. Appellant-Govindram @ Lalaram S/o Nandram Jat is on bail, his bail bonds are cancelled. 23. Appellants Dharamaram son of Hariram and Govindram @ Lalaram son of Nandram Jat are directed to furnish personal bond in the sum of Rs.50,000/-, and a surety bond in the like amount in accordance with Section 437-A of Cr.P.C. before the Deputy Registrar (Judicial) within two weeks from the date of release to the effect that in the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellant, on receipt of notice thereof, shall appear before the Supreme Court. The bail bond will be effective for a period of six months. 24. Copy of this judgment be placed in the connected file.