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2019 DIGILAW 2996 (RAJ)

Raju v. State of Rajasthan

2019-12-13

I.MAHANTY

body2019
JUDGMENT : I. Mahanty, J. 1. Since the appellant No.1 Raju @ Rajesh Kumar has died during the pendency of the appeal, the appeal so far as it relates to appellant No. 1 stands abated as is evident from the order dated 22.1.2018. Thus, learned counsel for the appellant presses the appeal of appellant No. 2 only. 2. The present appeal has been filed against the order of conviction dated 21.8.2014 convicting the present appellant No. 2 under Section 8 of the NDPS Act, 1985 and imposing punishment under Section 25 to undergo 10 years rigorous imprisonment and to pay a fine of Rs. one lac, in default of payment of fine to further undergo one year additional RI. 3. The brief facts leading to the aforesaid challenge is that on 25.11.2008, an officer of the Rawatsar Police Station District Hanumangarh while conducting nakabandi stopped vehicle bearing No. MP 09 CD 1444 and at such time one of the occupants of the vehicle ran away from the same and made good his escape. But the police officer caught-hold of the driver, who disclosed his name as Raju @ Rajesh Kumar (appellant No. 1 since deceased) and on search of the vehicle, recovered 42 kg. opium in total 6 plastic carry-bags and on the failure of the said Raju @ Rajesh Kumar from producing any valid license for the possession and transportation of the said opium, the said Raju @ Rajesh Kumar was arrested. In course of his investigation, the Investigating Officer Gajje Singh (PW9) recorded that the deceased-appellant No. 1 disclosed that the name of the person, who escaped from the vehicle was one Bhagwati Lal and he further disclosed that the vehicle was owned by the said Bhagwati Lal. 4. Pursuant to such incident, an FIR No. 433/08 was registered on the same day i.e. 25.11.2008 at the Rawatsar Police Station District Hanumangarh for offences under Sections 8 and 60 of the NPDS Act and the investigation was handed over to PW9 Gajje Singh, who had recorded the statement of Raju @ Rajesh Kumar against Bhagwati Lal as the owner of the vehicle. 5. It appears that after one and half year, PW10 Ranveer Singh (subsequent Investigating Officer) continued with the investigation and received from one Mangi Lal, father of Bhagwati Lal, a "sale agreement" pertaining to the offending vehicle purportedly dated 26.7.2010, which is Ex. P/29. 6. 5. It appears that after one and half year, PW10 Ranveer Singh (subsequent Investigating Officer) continued with the investigation and received from one Mangi Lal, father of Bhagwati Lal, a "sale agreement" pertaining to the offending vehicle purportedly dated 26.7.2010, which is Ex. P/29. 6. In view of the purported sale agreement produced by Mangi Lal before PW10 Ranveer Singh (second IO) the present appellant No. 2, namely, Ajay Kumar was implicated as an accused as the ostensible owner of the offending vehicle on the basis of the purported sale agreement. 7. Learned counsel for the appellant No. 2 Ajay Kumar submitted that the appellant No. 2 was never found on the spot when the vehicle was detained at the time of the alleged occurrence. He further submitted that the name of the appellant No. 2 was also never disclosed by the deceased-appellant No. 1 Raju @ Rajesh Kumar at the time of the alleged detention/recovery and instead, the appellant No. 1 had implicated one Bhagwati Lal as the person who had escaped from the vehicle at the time of its detention and had also stated that the said Bhagwati Lal was the owner of the vehicle in question. 8. Learned counsel for the appellant No. 2 submits that the original Investigating Officer, namely, PW9 Gajje Singh had not recorded any allegation against the present appellant No. 2 i.e. Ajay Kumar and the subsequent Investigating Officer, namely, PW10 Ranveer Singh purportedly received a "agreement to sell" dated 26.7.2010 (Ex. P/29) and on the basis of the said agreement to sell, purportedly received by PW10-Ranveer Singh from one Mangi Lal, the present appellant No. 2 Ajay Kumar came to be implicated and charge-sheeted, as well as held guilty by the trial court. 9. Learned counsel for the appellant No. 2 strenuously urges that the purported sale agreement i.e. Ex. P/29 was never proved by the prosecution, inasmuch as although the registered owner of the vehicle was Bhagwati Lal S/o. Mangi Lal, the purported sale agreement dated 26.7.2010 was never proved, either by producing Mangi Lal or his son Bhagwati Lal as prosecution witness. It is further submitted on behalf of the appellant No. 2 that merely based on the said sale agreement Ex. P/29 charges were framed against the appellant No. 2 and he was found guilty and sentenced. 10. It is further submitted on behalf of the appellant No. 2 that merely based on the said sale agreement Ex. P/29 charges were framed against the appellant No. 2 and he was found guilty and sentenced. 10. Learned counsel for the appellant No. 2 strenuously urges that in the absence of any evidence to substantiate Ex. P/29 no charge far less any conviction under the NDPS Act could have been sustained. It is further submitted that it was essential on the part of the trial court to record a finding that, the appellant (assuming without admitting was the ostensible owner of the vehicle) had knowledge that the vehicle in question was being used and/or permitted to be used for the purpose of an illegal act under the NDPS Act. He further submits that in absence of any finding vis-à-vis the actual knowledge of the appellant, no conviction on this score could have also been arrived at. 11. It is submitted that the appellant No. 2 had been falsely implicated solely on the basis of an alleged sale agreement (which was never proved in accordance with law) and he highlighted the fact that the prosecution had failed to examine the registered owner of the vehicle, namely, Bhagwati Lal who allegedly ran away from the site of apprehension and such sale agreement was never produced by Bhagwati Lal before the police officer, instead, purportedly by his father Mangi Lal who also was never produced by the prosecution to establish or prove the sale agreement before the court and consequently, in the absence of the above the appellant No. 2 could not be connected with the alleged offence. 12. It is further submitted that PW15 Kamlesh Kumar, purported witness to the sale agreement though examined by the prosecution did not support the prosecution case and was declared hostile and PW12 Hastimal, who was the Notary Public of the purported sale agreement has clearly stated before the Court that he did not know the appellant No. 2 in person as purchaser, from which it would be clear that the link connecting the appellant No. 2 with the vehicle in question on the basis of the purported sale agreement has not been proved by the prosecution. It is further submitted that the independent witness PW14 Babu Lal has also not supported the prosecution case and has been declared hostile. 13. It is further submitted that the independent witness PW14 Babu Lal has also not supported the prosecution case and has been declared hostile. 13. Apart from the above, it is submitted on behalf of the appellant No. 2 that the recovery of the alleged contraband was not from the possession of the appellant No. 2 and there exists no documentary or oral evidence connecting the appellant No. 2 either with the vehicle in question nor with the contraband seized. 14. Learned counsel for the State on the other hand while supporting the impugned judgment of conviction when queried as to whether the prosecution had proved Ex. P/29 the purported sale agreement in Court, in response pointed to the evidence of PW10 Ranveer Singh (second Investigating Officer) and also affirmed the fact that though the said IO claimed to have received the purported sale agreement from Mangi Lal, father of Bhagwati Lal, yet, the prosecution had not named either Mangi Lal nor Bhagwati Lal as prosecution witnesses. Learned counsel for the State also submitted that the learned trial court concluded about the involvement of the appellant No. 2 in the present occurrence solely based on Ex. P/29 purported agreement to sell. 15. When the learned counsel for the State was called upon by the Court to point out as to whether the trial court had come to a finding that the appellant No. 2 (even assuming that he was the owner of the vehicle) had "knowledge" of the fact that the vehicle in question would be utilized for the purpose of committing offence under the NDPS Act? To such a query learned counsel for the State fairly admitted that, the trial court on the one hand came to the conclusion that the prosecution has not adduced any evidence to establish the case against the appellant No. 2 for the offence under section 25 of the NDPS Act and on the other hand, held him held of the said charge. The relevant findings of the trial court in para 25 at page 29 of the impugned judgment are quoted below:- ^^25- ;gka ;g mYys[kuh; gS fd gLrxr izdj.k esa vuqla/kku ,tsUlh }kjk tks vkjksi i= is'k fd;k x;k Fkk og /kkjk 25 vf/kfu;e] 1985 ds rgr is'k ugha fd;k x;k Fkk vkSj u gh ml le; U;k;ky; }kjk /kkjk 25 vf/kfu;e] 1985 dk vkjksi fojfpr fd;k x;k FkkA i=koyh ij ekStwn lkexzh ls vfHk;qDr vt; dqekj ds f[kykQ /kkjk 25 dk vijk/k izFke n`"V;k curk gSA blfy, fnukad 27-5-2014 dks bl U;k;ky; }kjk vfHk;qDr vt; dqekj ds f[kykQ /kkjk 25 vf/kfu;e] 1985 dk vkjksi fojfpr fd;k x;k gS vkSj /kkjk 25 vf/kfu;e] 1985 dk vkjksi yxkus ds i'pkr~ vfHk;kstu i{k vkSj cpko i{k nksuksa dks viuh lk{; izLrqr djus gsrq volj iznku fd;k x;k Fkk fdUrq vfHk;kstu i{k o cpko i{k nksuksa us gh volj izkIr gksus ds i'pkr~ Hkh dksbZ lk{; izLrqr ugha dhA^^ 16. After hearing learned counsel for the respective parties and perusing the evidence on record and also perusing the oral evidence recorded in course of the trial and in particular examining Ex. P/29 purported sale agreement, I am of the considered view that the prosecution has miserably failed in establishing the fact that the purported sale agreement was entered in between the appellant No. 2 and the registered owner Bhagwati Lal and the mere production of said sale agreement by his father Mangi Lal before PW10 Ranveer Singh (second IO) could not and cannot form the sole basis for concluding that the appellant No. 2 Ajay Kumar was the owner of the vehicle in question. Admittedly, the vehicle was registered in the name of one Bhagwati Lal S/o. Mangi Lal and the onus lay on the prosecution to establish that the appellant No. 2 Ajay Kumar had become ostensible owner by virtue of the said agreement to sell. This would be further so, since neither Bhagwati Lal, registered owner of the vehicle nor his father Mangi Lal, who allegedly produced the sale agreement, were produced by the prosecution in course of the investigation. What is equally most relevant is that PW15 Kamlesh Kumar, purported witness to the sale agreement though produced by the prosecution to prove the said sale agreement did not support the prosecution and was declared hostile. What is equally most relevant is that PW15 Kamlesh Kumar, purported witness to the sale agreement though produced by the prosecution to prove the said sale agreement did not support the prosecution and was declared hostile. Further, the Notary Public PW12 Hastimal, who has signed in the purported sale agreement clearly admitted in the course of trial that he did not know the appellant No. 2 in person as the purchaser of the vehicle. 17. Consequently, this Court is of the clear view that the prosecution has failed to establish the link or chain between the present appellant No. 2 and the so-called sale agreement Ex. P/29 and having so failed to prove the said transaction, the prosecution has miserably failed in establishing any connection of the appellant No. 2 with the offence at hand. 18. Before parting with this case, I would like to note of the manner in which the investigations were carried out by the Investigating Officers in the present case. The first Investigating Officer (PW9 Gajje Singh) recorded the statement of the deceased-appellant No. 1 i.e. the driver of the vehicle in question, who stated that the vehicle was owned by Bhagwati Lal and further that it was the said Bhagwati Lal who had run away from the vehicle at the time of the detention of the vehicle on 25.11.2008. It is indeed surprising that after one and half year, the second IO, namely, Ranveer Singh, PW10 receives a purported sale agreement (Ex. P/29) from Mangi Lal and proceeds to implicate the appellant No. 2 as an accused in this case. Mangi Lal is said to be the father of Bhagwati Lal and said Bhagwati Lal was implicated by the deceased-appellant No. 1 as a co-occupant of the vehicle who escaped from the vehicle at the time of seizure as well as the owner of the vehicle. It is indeed shocking and surprising that the said Bhagwati Lal was never implicated as an accused in this case and instead based on the purported agreement to sell i.e. Ex. P/29, the present appellant No. 2 was implicated, prosecuted and also convicted in this matter. 19. This Court thus has no hesitation in holding that the prosecution has failed to prove any link of the appellant No. 2 with the offence or with the contraband seized in the present case. 20. P/29, the present appellant No. 2 was implicated, prosecuted and also convicted in this matter. 19. This Court thus has no hesitation in holding that the prosecution has failed to prove any link of the appellant No. 2 with the offence or with the contraband seized in the present case. 20. In this respect, reliance is placed on the judgment rendered by the Hon'ble Supreme Court in Balwinder Singh V/s. Asstt. Commr. Customs and Central Excise reported in (2005) 4 SCC 146. In the said judgment, the Hon'ble Supreme Court held that the appellant in the said case had come to be convicted solely for the reason that he was registered owner of the vehicle whereas there was no evidence to prove that "he knowingly allowed any person to use the vehicle for any illegal purpose". The Hon'ble Supreme Court further found that there was no evidence in the said case to prove the conspiracy set up by the prosecution. 21. In the light of the aforesaid judgment, in the present case the appellant No. 2 is admittedly not the registered owner of the vehicle. The agreement to sell Ex. P/29 is held not to have been proved and consequently, there is no evidence brought out in the course of the trial that the appellant No. 2 being the ostensible owner of the vehicle had knowingly allowed any person to use the vehicle for any illegal purpose. 22. After coming to the findings and conclusions recorded hereinabove, this Court finds the appellant No. 2 not guilty of the offence under Section 8 R/w 25 of the NDPS Act and consequently, directs his acquittal. The appellant No. 2 be released forthwith, if not required in any other case. The record of the trial court be remitted back. 23. The appeal of appellant No. 2 Ajay Kumar stands allowed accordingly. The registry is directed to forthwith communicate this order to the trial court, which shall forthwith send a copy thereof to the concerned jail authorities for compliance.