Research › Search › Judgment

Rajasthan High Court · body

2019 DIGILAW 2485 (RAJ)

Rekha Ram v. State of Rajasthan

2019-09-16

PUSHPENDRA SINGH BHATI

body2019
ORDER : Dr. Pushpendra Singh Bhati, J. 1. On 26.07.2019 this Court had passed the following order:- "1. The petitioner has been arrested in connection with FIR No. 193/2018 of Balotra Police Station, District Barmer for the offences punishable under Sections 8/15 and 29 of NDPS Act. He has preferred this bail application under Section 439 Cr.P.C. 2. Brief facts of this case as noticed by this Court, are that the Police Officials of Balotra Police Station, District Barmer during the course of patrolling/nakabandi, recovered 150 Kg. Poppy husk/straw from the premises of petitioner-Rekha Ram, who was neither having any valid license nor permit to possess the same. The FIR was registered at Balotra Police Station, District Barmer for the offences under Section 8/15 of NDPS Act and the petitioner was arrested on 18.05.2018. The earlier bail application of the petitioner was rejected with liberty to file fresh bail application after recording of the statements of Seizure Officer and other witnesses. 3. Learned counsel for the petitioner has shown to this Court the evidence rendered by the Seizure Officer on 28.06.219. The relevant portion of the evidence rendered by the Seizure Officer, reads as follows:- ^^js[kkjke dk ;g d`R; 8@18 ,uMhih,l ,DV dk tqeZ gksus ls bu dVVksa esa Hkjs MksMk iksLRk tehu ij [kkyh dj mUgsa feykdj muesa ls uewuk lSEiy gsrq 500 xkze iksLRk MksMk lQsn diMs dh FkSyh esa rFkk 500 xzke MksMk daVªksy lSEiy gsrq ,d nwljh lQsn diMs dh FkSyh esa Mkydj bUgsa lhy psik dj bu ij ekdZ ,1 o ,1 vafdr fd;k RkFkk 'ks"k cps iksLRk MksMk dks mUgha dVVks esa okfil Hkjdj dVVks ds eqag dks lhydj mu ij ekdZ , ch lh Mh bZ ,Q vafdr fd;sA^^ 4. Learned counsel for the petitioner submits that in similar cases where the concerned Seizure Officer has taken the poppy-husk from each bag and then mixed the said poppy husk and thereafter, sent the sample, has been found to be not meeting with the necessary requirements of law. 5. Learned counsel for the petitioner also submits that the investigating officer has not stated that the test by the U.N. Kit was carried out on each bag before taking small quantity of poppy-husk for sample. 6. Learned counsel for the petitioner has placed reliance on the decision of this Hon'ble Court rendered in the case of Netram Vs. 5. Learned counsel for the petitioner also submits that the investigating officer has not stated that the test by the U.N. Kit was carried out on each bag before taking small quantity of poppy-husk for sample. 6. Learned counsel for the petitioner has placed reliance on the decision of this Hon'ble Court rendered in the case of Netram Vs. State of Rajasthan, reported in 2014 (1) Cr.L.R. (Raj.) 163. The said judgment reads as under:- "1. The instant appeal has been preferred by the appellant Netram against the judgment dt. 29.08.2008 passed by the learned Special Judge, NDPS Act Cases, Hanumangarh in Sessions Case No. 56/2005 whereby he was convicted for the offence under Sec. 8/15(c) of the NDPS Act and was sentenced to undergo eleven years' rigorous imprisonment and a fine of Rs. 1,00,000/-. In default of payment of fine, he was further directed to undergo two years & six months' simple imprisonment. Succinctly stated, the facts of the case are that Mahendra Dutt PW8 posted as the S.H.O. at the P.S. Bhirani, was on patrolling duty on 11.10.2005. He received an information at about 4:00 P.M. that the appellant was indulged in illegal trade of contraband poppy straw. The informant reported that the appellant had concealed two bags of poppy straw in his house and was on the look out to sell the same. The information was taken down in writing and a copy thereof was sent to the Circle Officer, Nohar. Thereafter, the S.H.O. summoned two motbirs and proceeded to the house allegedly owned by the appellant in the Village Gandhi Badi. It is said that a person was seen standing in front of the house. On asking his name, he revealed his identity as Netram S/o. Om Prakash R/o. Gandhi Badi, the appellant herein. He was informed about the source information and after taking his consent, the S.H.O. entered the house. It is alleged that a room/store was seen on the terrace of the house. The approach door of the terrace was locked. The appellant allegedly provided the key of the lock. Two jute bags full of some material were seen lying in the room. The bags were opened and on tasting and smelling the material, it gave poppy straw like flavour. The appellant could not show any license or permit etc. for being in possession of the contraband. The appellant allegedly provided the key of the lock. Two jute bags full of some material were seen lying in the room. The bags were opened and on tasting and smelling the material, it gave poppy straw like flavour. The appellant could not show any license or permit etc. for being in possession of the contraband. On the personal search of the accused being conducted, a live cartridge was found in his pocket. The accused was arrested. The gunny bags were weighed by a spring balance and each bag was found to be weighing 40 kgs. including the weight of the packing material. The S.H.O. thereafter mixed the contents of both the bags on the terrace and collected two samples of 500 grams each from the admixture. After taking out the samples, the contraband poppy straw was re-packed in the same bags and the samples as well as contraband were sealed. On the basis of the recovery, an FIR No. 181/05 for the offence under Sec. 8/15 of the NDPS Act was registered against the appellant and investigation commenced. After completion of investigation, the police filed a charge sheet against the appellant for the aforesaid offence. 2. The trial Court framed charge against the appellant for the offence under Sec. 8/15 of the N.D.P.S. Act. The appellant pleaded not guilty and claimed trial. The prosecution examined nine witnesses in support of its case. The appellant, in his statement under Sec. 313 Cr.P.C., denied the prosecution story. The learned trial Judge at the conclusion of the trial proceeded to hold the appellant guilty of the offence under Sec. 8/15(c) of the NDPS Act and sentenced him as above. Hence this appeal. 3. Shri R.K. Charan, learned counsel for the appellant, has limited his arguments to two points for challenging the impugned judgment. He submitted that: (i) the procedure of sampling adopted by the S.H.O. was illegal, improper & impermissible and thus, the appellant's conviction is vitiated. He submitted that the recovered material was found packed in two separate gunny bags weighing 40 kgs. each. He submitted that: (i) the procedure of sampling adopted by the S.H.O. was illegal, improper & impermissible and thus, the appellant's conviction is vitiated. He submitted that the recovered material was found packed in two separate gunny bags weighing 40 kgs. each. He contended that rather than taking out exclusive samples from each gunny bag, the Seizure Officer mixed the material packed in the two gunny bags and then collected the samples which were forwarded to the F.S.L. Learned counsel urged that by the procedure adopted, it would not be possible to arrive at a satisfaction that both the gunny bags' contained contraband poppy straw. 4. He submitted that for the purpose of proving that the article packed in each of the gunny bags was poppy straw, the Seizure Officer was required to collect separate individual samples from each gunny bag and forward the same to the F.S.L. He submitted that failure to collect exclusive samples from both the gunny bags caused great deal of prejudice to the accused and he is entitled to claim that both the gunny bags were not having poppy straw. In support of his submissions, learned counsel for the appellant placed reliance on the decision rendered by the Hon'ble Apex Court in the case of Union of India, vs. Bal Mukund and Ors., reported in : 2009 Cri.L.J. 2407 and on the decision rendered by this Court in the case of Ghewar Ram. vs. State of Rajasthan, reported in : 2007 (2) Cr.L.R. (Raj.) 1695. (ii) The second limb of his argument was regarding the house from where the recovery was effected not being in the exclusive possession of the accused. Learned counsel for the appellant submitted that the Investigating Officer PW9 Narendra, Circle Officer, admitted in his cross examination that the house from which the recovery was effected was jointly occupied by the accused, his parents, his brothers and sister. He submitted that the prosecution has failed to prove that the recovery was effected from the premises in exclusive possession of the accused. He thus submitted that the accused is entitled to acquittal because the prosecution could not prove that the recovery was effected from a place in the exclusive and conscious possession of the accused. 5. Thus, it was prayed that the appellant deserves to be acquitted in this case. 6. He thus submitted that the accused is entitled to acquittal because the prosecution could not prove that the recovery was effected from a place in the exclusive and conscious possession of the accused. 5. Thus, it was prayed that the appellant deserves to be acquitted in this case. 6. The learned Public Prosecutor on the other hand vehemently opposed the submissions advanced by the learned counsel for the appellant. He contended that the Investigating Officer acted fairly in mixing the contraband packed in two gunny bags and thereafter in taking the samples. He submitted that by adopting the said procedure, representative sample from whole of the seized material was collected and forwarded to F.S.L. and thus, no prejudice was caused to the accused. He further submitted that the key of the room/store from which contraband was recovered was provided by the accused and thus, the accused cannot claim that the place of recovery was not in his exclusive possession. Thus, he submitted that the appeal deserves to be rejected. 7. Heard and considered the arguments advanced at the bar and perused the impugned judgment as well as the record of the case. 8. In my opinion, the appeal filed by the appellant can be decided on the first argument alone. It is the admitted case as per the Seizure memo Ex. P/1 and the testimony of the Seizure Officer PW8 Mahendra Dutt that two gunny bags weighing 40 kgs. each were recovered from the store on the first floor of the house of the accused. 9. Though no procedure is prescribed either in the N.D.P.S. Act or in the N.D.P.S. Rules regarding the manner in which the samples are to be drawn but a Standing Instruction No. 1/88 has been issued by the Narcotics Control Bureau, New Delhi in this regard. Instruction 1.7 prescribes the manner in which the samples are to be drawn in each seizure case. Instruction 1.7 reads as under:- 1.7. Number of samples to be drawn in each seizure case-(a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Instruction 1.7 reads as under:- 1.7. Number of samples to be drawn in each seizure case-(a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. (b) However, when the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respect/the packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. (emphasis supplied) (c) Whereafter making such lots, in the case of Hashine and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. (d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers. (e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. From a perusal of Instruction 1.7(a), it is evident that it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Instruction 1.7(b) provides an exception to Instruction 1.7(a). It has been provided in Instruction 1.7(b) that where the package/containers seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N. Kit, conclusively indicating that the packages are identical in all respects then the packages/container may be carefully bunched in lots of 10 packages/containers. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn. Thus, in the aforesaid situations, a representative sample can be drawn after bunching together the contents of numerous packages. The essential requirement before such an action of drawing a representative sample can be undertaken is that the contents of each package have to be subjected to colour test by U.N. drug testing Kit. Once the test is conducted and the result indicates that all the packages are identical in all respects, then a representative sample can be taken out after bunching the packages. Admittedly, in this case, no such colour test by U.N. Kit was conducted on the two packages/gunny bags by the Seizure Officer before collecting the representative sample. 10. Hence, the Investigating Officer was under an obligation to collect separate samples from each of the gunny bags so that the analysis of the contents of each of the gunny bag could be performed individually. As the Seizure Officer before drawing the samples, proceeded to mix the contents of the gunny bags without subjecting them to the test by the U.N. Kit, the accused has a right to contend that one of the gunny bags might not have contained contraband poppy straw. If at all the prosecution desired to prove that both the gunny bags contained poppy straw, then it was essential for the samples to have been collected and analysed individually from both the gunny bags or else, the test by U.N. Kit should have been carried out on the material present in both the bags. The Hon'ble Apex Court considered a similar issue in the case of Gaunter Edwin Kircher vs. State of Goa, reported in AIR 1993 SC 1456 and observed as below:- 5. we shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W. 1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. from this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms. also contained Charas. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W. 1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms. from this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W. 1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned Authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable in a given case, to send the entire quantity then sufficient quantity by way of samples from each of the packets of pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law. 11. This Hon'ble Court also in the case of Ghewar Ram (supra) held that the procedure adopted by the Seizure Officer in mixing the articles contained in different bags and collecting a single sample from the same and having it analysed by the F.S.L., was defective and caused prejudice to the accused. In view of the aforesaid factual scenario, this Court is of the opinion that the highest case which the prosecution has been able to prove is that one of the bags seized by the Seizure Officer in this case contained poppy straw. It cannot be held affirmatively that both the seized bags contained contraband poppy straw. 12. Each of the bag was allegedly weighing 40 kgs. Thus, the accused at best can be held liable for being found in possession of 40 kgs. of contraband poppy straw and nothing beyond that. It cannot be held affirmatively that both the seized bags contained contraband poppy straw. 12. Each of the bag was allegedly weighing 40 kgs. Thus, the accused at best can be held liable for being found in possession of 40 kgs. of contraband poppy straw and nothing beyond that. The act of the Seizure Officer in not drawing exclusive samples from both the gunny bags, entitles the accused to raise the issue regarding one of the bags not containing poppy straw and the argument has to be accepted. 13. In this view of the matter, this Court is of the opinion that the appellant's conviction as recorded by the learned trial Judge under Sec. 8/15 of the NDPS Act for being found in possession of commercial quantity of poppy straw cannot be sustained and instead, the appellant deserves to be convicted for the offence under Sec. 8/15(b) of the NDPS Act for being found in possession of a non-commercial quantity i.e. 40 kgs. of poppy straw. The appellant suffered some custodial period during investigation and at the trial and thereafter, he is in continuous custody from the date of his conviction. Thus, he has suffered imprisonment well in excess of five years As such, this Court is of the opinion that the sentence already suffered by the appellant till date shall serve the ends of justice. As a result of the aforesaid discussion, the appeal succeeds in part. The appellant's conviction for the offence under Sec. 8/15 of the N.D.P.S. Act as recorded by the learned Special Judge, NDPS Act Cases, Hanumangarh by the judgment dt. 29.08.2008 is altered to the offence under Sec. 8/15(b) of the NDPS Act. He is sentenced to the period already undergone by him. The sentence of fine is reduced to Rs. 5,000/- only. On default of payment of fine, he shall further undergo one month's imprisonment. The appellant is in custody. He shall be set at liberty forthwith upon depositing the fine, if not wanted in any other case." 7. Learned Public Prosecutor has opposed the bail application. 8. The sentence of fine is reduced to Rs. 5,000/- only. On default of payment of fine, he shall further undergo one month's imprisonment. The appellant is in custody. He shall be set at liberty forthwith upon depositing the fine, if not wanted in any other case." 7. Learned Public Prosecutor has opposed the bail application. 8. Having considered the overall facts and circumstances of the case and the grounds taken in this bail application, as also taking into consideration the judgment passed by this Court in Netram's case (supra), this Court is of the opinion that there are rare chances of petitioner's conviction, and the trial of the case is likely to take time, and therefore, this Court is inclined to grant bail to the present petitioner under Section 439 Cr.P.C. 9. Accordingly, this bail application filed under Section 439 Cr.P.C. is allowed and it is directed that petitioner Rekha Ram S/o. Shri Bhera Ram shall be released on bail in connection with FIR No. 193/2018 of Balotra Police Station, District Barmer provided he executes a personal bond in a sum of Rs. 50,000/- with two sound and solvent sureties of Rs. 25,000/- each to the satisfaction of learned trial court for his appearance before that court on each and every date of hearing and whenever called upon to do so till the completion of the trial. 10. However, though the bail has been granted, but this Court is shocked at the response of the respondent and its officers in dealing with the sample in causing conditions of bail to the persons committing such serious offences as that of NDPS Act. This Court is very seriously concerned as to in what circumstances, the officers of the Rajasthan Police do not understand that Standing Instruction No. 1/88 issued by the Narcotics Control Bureau, New Delhi, particularly, Instruction No. 1.7 required them to collect and test the sample by the U.N. Kit and such sample has to be taken into account proportionately from each bag containing the contraband. 11. Learned Public Prosecutor has submitted that on 17.07.2019 they have written a letter to the Director General of Police, Rajasthan and learned Public Prosecutor has assured that appropriate steps shall be taken but this Court is not satisfied with such explanation because the judgment of Netram (supra) is of 2014 and the instruction of Narcotics Control Bureau, New Delhi is of 1988. This Court fails to understand that once the NDPS law has been made so strict by the legislature to safeguard the interest of the society and particularly the younger generation which as reported by the media are rampantly being affected by such availability of drugs in the society then how such a lacunae is being permitted to exist. 12. This Court, thus, deems it appropriate to direct the Director General of Police, Rajasthan to file a detailed affidavit as to in what circumstances, the direction given by this Hon'ble Court in Netram (supra) are not being followed by the officers of Rajasthan Police and also directs the Director General of Police, Rajasthan to explain in his affidavit as to why the standing instruction No. 1.88 of Narcotics Control Bureau, New Delhi particularly, Instruction No. 1.7, which is a critical instruction to the collection of sample, is not being followed strictly. The Director General of Police, Rajasthan shall categorically come out with the steps taken by him to ensure compliance of the order of Netram (supra) strictly in future. Needless to say that such proposed effective compliance shall be required to be reflected in the affidavit. 13. However, in case this Court is not satisfied by the affidavit filed by the Director General of Police or if the affidavit is not filed by the next date, this Court shall contemplate calling the Director General of Police, Rajasthan personally to explain the issue in question to this Court. 14. List on 16.09.2019." 2. Upon such order, the Director General of Police, Rajasthan has furnished a compliance report, relevant part of which reads as under:- "4. That in first instance it is respectfully submitted that the humble deponent in compliance of the Hon'ble court has taken up the matter with utmost sincerity to which a Circular dt. 09.08.2019 S.No. CID/CB/NDPS ACT/2293-2350 has been issued, laying down the procedure for taking samples from the illegal contraband, so seized during the investigation, under the provision of the NDPS, Act. 09.08.2019 S.No. CID/CB/NDPS ACT/2293-2350 has been issued, laying down the procedure for taking samples from the illegal contraband, so seized during the investigation, under the provision of the NDPS, Act. It is further submitted that the said circular, has been circulated through various departmental channels across the state of Rajasthan, for the strict compliance of the same with the direction that, if any such police official or authority found flouting and has acted in complete derogation of the mandate of law and procedure so established in that regard then, in those set of circumstances a disciplinary proceeding will be initiated against such erring official. 5. That the humble deponent further submits that earlier in light of the various judgments so passed by the Hon'ble Court, as stated below:- i. S.B. Criminal Appeal No. 673/2008. Netram Vs. State of Rajasthan Judgment dt. 18th October, 2013. ii. S.B. Criminal Appeal No. 28/2018. Bhagirath Vs. State of Rajasthan Judgment dt. 18th October 2013. iii. S.B. Criminal Appeal No. 931/2015. Nagu Singh Vs. State of Rajasthan judgment dt. 10th May, 2016. iv. S.B. Criminal 2nd Bail Application No. 11194/2017. Jev Ram Vs. State of Rajasthan Judgment dt. 20th December, 2017, Has forwarded the copies of the aforesaid judgments passed by the Hon'ble Court dealing with the procedure to be undertaken while collecting the separate samples from each seized contraband bag so recovered during the investigation, coupled-with the letter dt. 25.04.2018 to the respective police commissioners Jodhpur and Jaipur; to all I.G. Ranges across the State of Rajasthan including the GRP and to all Superintendents of Police, across the state including the GRP Ajmer and Jodhpur, for the compliance of the same and to give necessary direction and to sensitize their subordinates. 6. The humble deponent assures the Hon'ble Court that henceforth, if any dereliction of duty found or that the officer concerned has adopted a lackadaisical approach in complying the necessary direction so passed in this regard, then adverting to the prevailing set of circumstances a departmental proceedings will be initiated against that erring officer forthwith." 3. Learned Public Prosecutor has also shown the circular passed by the respondents on 09.08.2019. 4. In light of the compliance report and the circular, this Court closes the issue with a direction to the respondents to ensure strict compliance of assurance given in para No. 6 by the Director General of Police Rajasthan. Learned Public Prosecutor has also shown the circular passed by the respondents on 09.08.2019. 4. In light of the compliance report and the circular, this Court closes the issue with a direction to the respondents to ensure strict compliance of assurance given in para No. 6 by the Director General of Police Rajasthan. All necessary steps for complying with the assurance shall be taken by the respondents. It is further directed that after 16.09.2019 any officer taking samples and not following the proper process in accordance with the circular dated 09.08.2019 shall be liable to face disciplinary proceedings strictly in accordance with law. Any Government advocate of Rajasthan High Court coming across the breach of such circular shall be free to inform the concerned superior officer to initiate the necessary disciplinary proceeding against the erring officer for aforesaid violation.