Rajasthan High Court - Jaipur
Roland Markas Goonthar S/O Helmet vs State Of Rajasthan on 11 August, 1988
Equivalent citations: 1988WLN(UC)453
JUDGMENT D.L. Mehta, J.
1. This appeal is directed against the judgment dated 24th May, 1988.
2. Learned Additional Sessions Judge, No. 2, Ajmer, convicted the present appellant under Section 20B of the Narcotic Drugs and Psychotropic Substances Act (here in after referred to as 'the Act').
3. Prosecution story unfolded during the trial is that 160 grams of Charas was recovered from the person of the present appellant. Hanuman Singh, PW 8 received the information that a foreigner is selling the drugs and he is sitting near by the Gujaron-ka-Shamsan. He proceeded with the Police party consisting of PW 2 Guman Singh, PW 3 Jagdish Prasad, PW 4 Mooldan PW 5 Jagdish Prasad son of Radha Kishan, PW 6 Banshidhar and PW 7 Madan Singh. It is alleged that tearch of the present appellant was taken in the presence of Gurcharan Singh, PW 1. Seizure memo Ex.P 1 was prepared on the spot and the accused-appellant was arrested. The First Information Report of the occurrence was lodged at the Police Station just within an hour. The articles seized were also deposited in Malkhana and Ex.P 3 has been produced to show that Charas which was seized has been deposited in the Malkhana. It is alleged that the same forwarded to the Forensic Science Laboratory through messanger, PW 6 Banshidhar. The packet containing the sample was examined by the Forensic Science Laboratory and the report Ex.P 6 was forwarded to the Investigating Agency. The Forensic Science Laboratory found the article as 'Charas'.
4. After examining 8 prosecution witnesses learned Additional Sessions Judge examined accused-appellant under Section 313, Cr PC. Accused appellant tried to explain by stating that he was sitting out side Pushkar and his legs were on the foot path. He has stated that one man came, he leaned against his leg and fell down, on this altercation took place. The man who fell down took him away at the Police Station and he was arrested. He has further stated that the man who had the altercation, was later found to be the Station House Officer, Police Station.
5. Mr. Dhankhar, learned Counsel appearing on behalf of the accused appellant has assailed the judgment of the court below on the following grounds:
[1] That no independent witness has been produced to corroborate the testimony of the Police Officers;
[2] That the prosecution has failed to prove the identity of the sample which was forwarded to the Forensic Science Laboratory;
[3] It was also submitted by Mr. Dhankhar that the prosecution has come with a case that 160 grams of Charas was recovered and out of that 30 grams of Charas was taken for the purpose of sample. He submits that from the perusal of the report of the Forensic Science Laboratory it can only be said that 25 grams of Charas was sent for chemical examination, thereby he wants to make a case that the identity of the article seized and the articles sent to the Forensic Science Laboratory might have changed during the intervening period.
6. Mr. Dhankhar further submitted that Guman Singh was not at an eye-witness of the occurrence and the court below has also accepted this part of his submission in Para No. 14 of the judgment. A person who has been examined was the incharge of the Malkhana and, as such, the whole proceedings including the investigation stands vitiated.
7. Mr. Dhankhar has also invited my attention to other inconsistencies in the statements of the prosecution witnesses.
8. Learned Public Prosecutor appearing on behalf of the State supported the judgment of the court below. He submitted that the presumption should be drawn under Section 54 of the Act of 1985. He further submits that the article was seized at about 2 p.m. on 15th March, 1987 and it was deposited on the same day at about 3 p.m. He further submitted that there is no reason why the evidence of the Police Officer should not be accepted.
9. I have heard the rival contentions of both the parties and perused the record of the case.
10. There is a chequered history of the legislation from 19th Century to the present day Legislature enacted the laws but the object could not be achieved and one after another legislation was enacted, The problem of drug addicts is international and the Mafia is working throughout the world. It is a crime against the society and it has to be dealt with iron hands. At the same time the courts will have to safeguard the life and liberty of the innocent persons, so that they may not be the victims of the crime which they have not committed. The Police Officers are the citizens and the public servants. Generally, it is expected that they perform their duties faithfully and sincerely. A presumption under Section 114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business faithfully and sincerely. Their evidence cannot be discarded only on the ground that they are Police Officers. How ever, a note of caution will always have to be kept in mind looking to the law of the land; particularly Section 25 of the Evidence Act and Section 161, Cr.PC. It will not be out of place here to mention that the statements which are recorded under Section 161 Cr.PC should not be on loose papers, but should ordingrily be in the Police diary. There may not be any grievance in the matter of information recorded by them. I will not deal with this point as it is not necessary to be dealt with here.
11. Ex. P. 3 is the abstract of the Malkhana entry. Part of the entry has been shown as dated 15th March, 1987. In this part in Ex. P, 3 it has been mentioned that sealed packet was delivered to Banshidhar, Constable, PW 6. The entry C to D in Ex. 3 bears the signature of Guman Singh. There is no date on which the article was delivered to Banshidhar. In Ex P 6 there is a reference that the Superintendent of Police, Ajmer, forwarded the sample on 19th March, 1987 vide his letter No. 3922-23. There is also a reference that sample was received on 23rd March, 1987. The mode of receipt has been shown that it was received through the messenger Banshidhar, PW 6.
12. Ex. P. 4 is the receipt obtained by the Constable. In this receipt also it has been specifically mentioned that the sample has been forwarded by the S.P., Ajmer, vide his letter dated 19th March, 1987. There is nothing on record to show that what his happened in the intervening period of 4 days. There is a drive of about 3 hours from Ajmer to Jaipur and the sample could have been delivered even on the sample day or, in any case, on the next day. PW 5, Banshidhar has appeared in the witness box. He has stated that he obtained the sample packet on 21st and deposited on the same day in the Office of Forensic Science Laboratory. He further states that he obtained the receipt for the same. He has further stated that it is wrong that he deposited the sample on 23rd March, 1987, Thus, this witness emphatically states that the sample was deposited on 21st in the office of Forensic Science Laboratory. This statement together with the fact that Guman Singh, PW 2, has not mentioned the date of delivery of the sample in the abstract, Ex. P. 3, is sufficient to create doubt about the identity of the sample.
13. PW 2, Guman Sinah has been disbelieved by the Court below in para 14 of the judgment, court below has rightly disbelieved him. It was the duty of the Public Prosecutor appearing in the lower court to produce the Rojnamcha Entry to find out the truth whether Gumansingh, accompanied Hanuman Singh, PW 8 or not. PW 8 Hanuman Singh has specifically stated that Guman Singh accompanied him. PW 3, Jagdish Prasad has specifically stated that Guman Singh and Harji Ram did not accompany them.
14. It will not be out of place here to mention that Hanumansingh PW 8, has stated that he has recorded the statements of all the witnesses under Sections 161 Cr.PC on the same day. How ever, the statement of Guman Singh was recorded on 4th Aptil, 1987. Thus, it creates a doubt about the presence of Gumansingh on the spot. Gumansingh was throughout on duty in the same Police Station and, why his statement could not be recorded for 19 days after the occurrence. There is no explanation on this point. A person who handles the Malkhana is expected to act in a normal way so that it could be presumed that he is performing his duty in the ordinary course of business. Ordinarily, I presume that the Officer/Public Servant performs his duty faithfully and sincerely in the normal way. There is an abnormality in the case of Gumansingh that he has not mentioned the date on which the sample was delivered. Apart from that he has stated in his cross-examination that every incident is recorded in the Malkhana register date-wise. He further submits that no date has been mentioned about the delivery of article which was deposited in the Malkhana. He has fnrther stated that entry is made in the Malkhana tegister of the incoming and out going articles and the date is shown. However, in the instant case, no date has been shown. This is sufficient to create suspicion that the article which was seized and the article which was forwarded for chemical examination might not be the same.
15. PW 8, Hanumansingh, has stated in his cross-examination that the search of the room where the accused was staying, was taken. How ever, in the subsequent part of the statement he states that he is not in a position to say whether the search was taken or not. Ordinarily, the search memos are prepared of the place where the search is taken, it is not necessary that some incriminating articles should be recovered from there. There is an allegation against the present appellant that he was selling the drugs to the people. Normally, it is expacted from the Investigating Agency that it will take the search of the place where he was staying and prepare the search memos and, it is not necessary that there should be a seizure. This is also a reason which creates suspicion in the mind of the Court. Investigating Agency should normally be different from the person who appears as a witness. Hanuman Singh has stated that he seized the articles, he lodged the First Information Report and he deposited the same at the Police Station. There is no prohibition under the law which debars Hanuman Singh from Investigating the case further. However, it is expected that in such a case there should be investigation by any other agency, may be of superior rank. I am not inclined also to accept the defence version. Normally there should be some injury on the person of the accused which is missing. In a fight there is likelihood that there may be some tear or wear of the clothes or any other things. I accordingly extend the benefit of doubt in favour of the accused-appellant only on the point of identity of the sample.
16. It the result, the appeal is accepted. Accused appellant is acquitted of the charge levelled against him the judgment of the court below is set aside. Accused-appellant be released forthwith if not required in any other case. Articles other than the drugs be returned to the accused-appellant.