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2022 DIGILAW 1992 (RAJ)

Union Of India v. Magga Ram

2022-07-11

PUSHPENDRA SINGH BHATI

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JUDGMENT 1. This criminal appeal under Section 378 Cr.P.C. has been preferred by the appellant-Union of India against the judgment dated 01.07.1989 passed by the learned Additional Sessions Judge No.1, Sriganganagar ('trial court') in Sessions Case No.21/88, whereby the accused-respondent was acquitted of the charges against him under Sections 8/17 & 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'Act of 1985'). 2. Mr. Mukesh Rajpurohit, learned A.S.G. appearing on behalf of the appellant-Union of India submits that on 23.11.1987, the then Inspector, Central Excise and Customs Division, Sriganganagar had filed a complaint before the learned Additional Chief Judicial Magistrate, Hanumangarh. In the complaint, it was alleged that on 06.11.1987, upon an information being received from a mukhbir, he brought to the knowledge of the then Superintendent, Customs and Central Excise Division, Sriganganagar, the fact that Magha Ram (accused-respondent herein) was involved in the business of buying and selling of huge quantity of opium and ganja, in an unauthorized and illegal manner; whereupon he obtained a search warrant under Section 41 of the Act of 1985 against the accused- respondent. After obtaining such warrant, the then Inspector, alongwith his team, departed for Hanumangarh town to conduct the necessary raid; they were also accompanied by Motbiran - Subhashchandra, Bhagaram. They all went to the shop (alleged to have been used to sell the contraband unauthorizedly) of the accused-respondent at Hanumangarh and made the search. 2.1 He further submits that during the course of the said search, the officials recovered packets containing the contraband identified as opium and ganja; one plastic bag containing the contraband was also recovered from a corner of the shop. Upon being weighed, the contraband came out to 8.120 kilograms (opium) and 23 kilograms (ganja), and the same was seized, while completing the procedural formalities, as provided under the law. 2.2 He also submits that upon the matter being reported, the learned Additional Chief Judicial Magistrate, Hanumangarh, while taking cognizance against the accused-respondent, committed the matter to the learned District & Sessions Judge, whereupon the case was transferred to the learned trial court for the necessary adjudication; thereafter, the accused-respondent was charged under Sections 17 & 20 of the Act of 1985, and upon such charges being denied, the accused-respondent was made to stand the trial. Learned A.S.G however submits that after conclusion of the trial, the learned trial court acquitted the accused-respondent, as above. 2.3 Learned A.S.G. also submits that the contraband in question was recovered and seized in the presence of senior officers of the department as well as the accused-respondent, who was in the sole and exclusive possession of the shop in question. He also submits that all the formalities, following the seizure, were made, strictly in accordance with law. 2.4 Learned A.S.G. further submits that a huge quantity of the contraband in question has been recovered from the possession of the accused-respondent, and the said fact has been completely substantiated by the testimonies of the prosecution witnesses and other evidences placed on record by the prosecution before the learned trial court. 2.5 Learned A.S.G. also submits that the learned trial court, while passing the impugned judgment of acquittal in favour of the accused-respondent, fell into error in disbelieving the panchnama, despite the fact that the same was prepared, while adhering to the provisions of law, coupled with completion of due formalities, as required. 2.6 Learned A.S.G. further submits that the learned trial court has not taken into due consideration the aforesaid factual matrix, more particularly, the fact that apart from completion of the due procedural formalities, the huge quantity of the contraband in question was recovered and seized in presence of the accused- respondent, at the relevant time, from his shop. 2.7 Learned A.S.G. also submits that as revealed from the testimonies of the prosecution witnesses and other evidences placed on record before the learned trial court, the prosecution has clearly established before the learned trial court that the case against the accused-respondent was not that of false implication, more particularly, when no defence was produced by the accused- respondent before the learned trial court, which could establish that the accused-respondent was arrayed in this case, falsely. 2.8 Learned A.S.G. thus submits that from the aforesaid backdrop, it is clear that the learned trial court, while passing the impugned judgment of acquittal in favour of the accused- respondent, has not taken into due consideration the overall facts and circumstances of the case and also not duly appreciated the evidence placed on record before it by the prosecution; hence, the impugned judgment of acquittal passed by the learned trial court is not sustainable in the eye of law. 3. 3. On the other hand, learned counsel for the accused- respondent, while supporting the impugned judgment, submits that the learned trial court, has rightly noted the discrepancies and irregularities on the part of the investigating team, while framing the case against the accused-respondent. 3.1 Learned counsel further submits that the so called independent witnesses to recovery, namely, PW-2 Subhashchandra and PW-3 Bhagaram have been declared hostile by the prosecution itself and did not support the prosecution version; the said witnesses however, deposed that to their knowledge, no contraband was recovered in the presence of the accused- respondent, at the relevant time. 3.2 Learned counsel also submits that the learned trial court after threadbare examination of the evidence - both oral as well as documentary - rightly noticed that PW-5 M.R. Loyal, the then Inspector, had clearly made incorrect averments in the complaint, regarding recovery of the contraband in question from the possession of the respondent; while noticing such incorrect averments, the learned trial court had even gone to the extent of holding, as to why for his irresponsbile conduct, the then Inspector may not be subjected to legal action under Section 193 Cr.P.C., and rightly so. 3.3 As per learned trial court, in the aforesaid backdrop, the learned trial court has rightly passed the impugned judgment of acquittal in favour of the respondent, while taking into due consideration the overall facts and circumstances of the case as also duly appreciating the evidence placed on record before it. 3.4 Learned counsel also supported the impugned judgment on the ground that the illegalities and irregularities, as noticed by the learned trial court, in conducting the investigation, were very serious, and therefore, the learned trial court has rightly held that the prosecution has miserably failed to prove its case against the respondent, beyond all reasonable doubts. He thus submits that the impugned judgment does not warrant any interference by this Court. 4. Heard learned counsel for the parties as well as perused the record of the case. 5. This Court, while hearing the present appeal, has also kept into due consideration, the following observations made by the learned trial court, while passing the impugned judgment: 5.1 From the testimonies of the relevant prosecution witnesses, it is clear that the complete investigation has been made in an irresponsible manner, without following the due process of law. 5. This Court, while hearing the present appeal, has also kept into due consideration, the following observations made by the learned trial court, while passing the impugned judgment: 5.1 From the testimonies of the relevant prosecution witnesses, it is clear that the complete investigation has been made in an irresponsible manner, without following the due process of law. 5.2 The panchnama in question clearly bears the date of its preparation as 07.11.1987, and the signatories thereof also mentioned the same date in the panchnama, whereas Mr. M.R. Loyal, the then Inspector, has made a deposition before the court that the raid was conducted on 06.11.1987, which apparently, falsifies the deposition made by him before the court. 5.3 If the search warrant was obtained on 06.11.1987, then why the same was not on record, nor there was any document on record pertaining to the operation of raid, as alleged to have been conducted. 5.4 Mr. M.R. Loyal, the then Inspector, also failed to explain before the learned trial court, as to why the immediate arrest of the accused-respondent was not made, even when the alleged recovery of contraband was made in presence of the accused; though he deposed before the learned trial court that such arrest could not have been made on count of instructions from the higher authorities, but the said officer has denied to disclose the necessary particulars/credentials in this regard. Such an irresponsible conduct on the part of the said officer casts a serious doubt upon the case of the prosecution, more particularly, as to the presence of the accused-respondent at the time of alleged recovery and seizure of the contraband in question. 5.5 The independent and impartial witnesses to the recovery, namely, PW-2 Subhash Chandra and PW-3 Bhagram were declared hostile by the prosecution itself, and that, they have not extended any support to the prosecution version. 5.6 PW-1 Anup Alexander deposed that he did not know as to who sealed the contraband, who put the necessary signature, who deposited the contraband article in maalkhana and that no contraband was kept in maalkhana in his presence. 5.6 PW-1 Anup Alexander deposed that he did not know as to who sealed the contraband, who put the necessary signature, who deposited the contraband article in maalkhana and that no contraband was kept in maalkhana in his presence. 5.7 PW-4 J.L. Lekhi, the then Superintendent, made a deposition that he did not deposit the contraband, in sealed condition, in the maalkhana; the inspector had deposited the same; PW-4 did not know as to on which date, the contraband was kept in maalkhana; nor he had any knowledge about any document on record in that regard; he also deposed that he did not even know as to who weighed the contraband after recovery and seizure and he did not prepare any site report in regard to such recovery. Such an irresponsible conduct on the part of a senior officer, like the said witness, cannot be expected. 5.8 No copy of the letter, through which the contraband was allegedly sent for FSL analysis, was placed on record by the prosecution, nor any receipt issued by the FSL Neemach was placed on record, which also casts a serious doubt upon the prosecution case. 6. This Court finds that the aforementioned observations made by the learned trial court make it clear that the learned trial court has thoroughly examined the evidence - both oral and documentary - as placed on record before it. 7. The illegalities and irregularities, as noted by the learned trial court, are clearly detrimental to the case of the prosecution, and goes in favour of the accused-respondent, as observed by the learned trial court. 8. The record clearly reveals that the investigation in the present case has been conducted in an inappropriate manner, nor while doing so, the concerned officer, has made strict adherence to the provisions of law. 9. Thus, this Court finds that the learned trial court has not committed any error - neither in law nor on facts - in holding that the prosecution has clearly failed to prove its case against the accused-respondent, beyond all reasonable doubts. 10. In light of the aforesaid observations, this Court does not find it a fit case, so as to warrant any interference in a well reasoned speaking judgment impugned herein. 11. Consequently, the present appeal is dismissed. All pending applications stand disposed of. The record of the learned court below be sent back forthwith.