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2020 DIGILAW 84 (RAJ)

State v. Baxshish Singh

2020-01-08

SANDEEP MEHTA

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JUDGMENT : Sandeep Mehta, J. 1. The instant appeal has been preferred by the State of Rajasthan under Section 378 (iii) & (i) of the Cr.P.C. against the judgment dated 17.07.1997 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. (177/94) 156/97 whereby, the respondent accused Baxshish Singh has been acquitted of the charge under Section 8/18 of the NDPS Act and accused Kalu Singh has been acquitted of the charge under Section 8/18 read with Section 29 of the NDPS Act. 2. The brief facts relevant and essential for the disposal of the appeal are noted herein below:- Shri Azad Kumar Sharma, Dy. S.P., Circle Officer, Bhilwara (PW/5) along with the police team, was on inspection duty looking out for the anti-social elements at the Roadways Bus Stand, Bhilwara on 29.04.1994. It is alleged that Shri Sharma received an information from a source that a person from Punjab had come out of the roadways bus stand canteen, who was carrying a cream coloured suitcase containing suspected contraband opium. Shri Sharma deployed panch witnesses to assist in the proposed search proceedings. The suspect was found near the canteen of the bus stand. He was carrying a cream coloured suitcase. On seeing the police party, he tried to run away, but was stopped. He gave out his name to be Baxshish Singh S/o. Jagtar Singh Panjabi. The accused was given a notice under Section 50 of the NDPS Act and then, search of the suitcase was taken wherefrom, blackish semi solid substance suspected to be opium was recovered. On weighing the weight thereof came to be 7 kgs. Two samples of 30 gms. each were taken out from the suspected contraband and the seized contraband as well as the samples were sealed. Thereafter, an FIR No. 70/94 came to be registered against the respondents at the Police Station Subhash Nagar, Bhilwara for the offence under Section 8/18 of the NDPS Act. After investigation, a charge sheet was filed against the respondents for the offence under Section 8/18 read with Section 29 of the NDPS Act. The prosecution examined as many as 11 witnesses, exhibited 15 documents and 3 articles to prove its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations. No evidence was led in defence. The prosecution examined as many as 11 witnesses, exhibited 15 documents and 3 articles to prove its case. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations. No evidence was led in defence. At conclusion of trial, the trial court found that the link evidence regarding forwarding of the samples of the contraband to the FSL was not satisfactory and thus, the FSL report could not be read in evidence. On this ground and also on the ground that the prosecution did not ensure compliance of the mandatory requirements of Section 42 (2) of the NDPS Act and that no evidence was led to connect the accused Kalu Singh with the crime, the accused respondents were acquitted of the charges by the impugned judgment dated 17.07.1997. 3. Learned Public Prosecutor has vehemently and fervently contended that the prosecution led complete link evidence to establish the sanctity of the samples forwarded to the FSL and that the view taken by the trial court in this regard is illegal and contrary to the facts. He further submits that as the search was taken from a suitcase being carried by the accused at a public place, the provisions of Section 42 would not apply and thus, the acquittal of the respondents of the charge under Section 8/18 read with Section 29 of the NDPS Act is perverse and hence, the impugned judgment deserves to be set aside. 4. Per contra, Mr. Pradeep Choudhary, learned counsel representing the respondents has vehemently and fervently urged that the Investigating Officer claimed that he forwarded the sample of the sealed contraband to the FSL alongwith a specimen memo of seal, but no such specimen memo of seal was exhibited by the prosecution during its evidence and thus, there is no satisfactory material on the record so as to establish as to what were the seals, with which the comparison was made at the FSL. He further submits that as against the accused Kalu Singh, other than the confession of the co-accused, there is no material which can connect him with the crime. 5. On these grounds, learned counsel Mr. Choudhary urges that the impugned judgment of acquittal does not warrant any interference whatsoever. 6. I have given my thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have re-appreciated the evidence available on record. 7. 5. On these grounds, learned counsel Mr. Choudhary urges that the impugned judgment of acquittal does not warrant any interference whatsoever. 6. I have given my thoughtful consideration to the submissions advanced at bar and have gone through the impugned judgment and have re-appreciated the evidence available on record. 7. Ex facie, the trial court's finding that the prosecution would have to fail because of non-compliance of the procedure prescribed under Section 42 of the NDPS Act is illegal for the simple reason that the search was taken from a package being carried by the accused in his hand at a public place. Thus, the provisions of Section 42 of the NDPS Act would not apply to the search and seizure proceedings. 8. The trial court has also referred to certain contradictions in the evidence of the Seizure Officer Azad Kumar Sharma (P.W.5) regarding summoning of the motbirs and held that these contradictions affect the credibility of the prosecution case. In addition thereto, the trial court also held that the Seizure Officer Azad Kumar Sharma did not prove any document, which could be termed to be the specimen memo of seal. In this regard, I have examined the entire record and have threadbare perused the statements of Mr. Azad Kumar Sharma (P.W.5) and the other prosecution witnesses and find that no document, which could be termed as a specimen memo of seal, was proved by the prosecution during its entire evidence. Thus, there is nothing on record to satisfy the Court as to what were the specimen seal impressions which were allegedly forwarded by the Investigating Officer to the FSL alongwith the samples of the contraband. Hence, the link evidence pertaining to the sanctity of the sample is breached. 9. As against the accused Kalu Singh, other than the confession of the co-accused, there is no evidence whatsoever so as to connect him with the alleged offence. Such a confession is not admissible in evidence for any purpose whatsoever. 10. In wake of the discussion made hereinabove, I am of the view that the impugned judgment of acquittal does not warrant any interference whatsoever. Thus, the appeal against acquittal preferred by the State for assailing the judgment dated 17.07.1997 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. (177/94) 156/97, fails and is hereby dismissed as being devoid of merit. 11. Thus, the appeal against acquittal preferred by the State for assailing the judgment dated 17.07.1997 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. (177/94) 156/97, fails and is hereby dismissed as being devoid of merit. 11. Record be returned to the trial court forthwith.