Rajasthan High Court - Jaipur
State Of Rajasthan vs Shanker Lal on 7 November, 2001
Equivalent citations: RLW2003(1)RAJ320, 2002(4)WLN561
JUDGMENT Garg, J.
1. This appeal has been filed by the State of Rajasthan against the judgment and order of acquittal dated 16.11.1991 passed by the learned Sessions Judge, Jalore in Session Case No. 25/87 by which he acquitted the accused respondent of the charges for the offence under Section 17 and 18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as the 'NDPS Act').
2. The facts giving rise to this appeal, in short, are as follows:-
On 24.2.1987, PW 8 Jeevan Ram, SHO, Police Station Bhinrnal lodged a report in the Rojnamcha of that Police Station stating inter-alia that he received a secret information from mukhbir to the effect that Shankerlal (present accused respondent) was illegally doing the business of heroin and he was having heroin and on receiving that information from mukhbir, he alongwith CO, Bhinmal, Sl Madho Singh, Head Constable Megh Singh (PW 7) and other police officials and two motbirs PW 4 jaggararn and PW 5 Jodha proceeded towards the house of the accused respondent situated at Talbi Road, Bhinmal and when they reached the house of the accused respondent Shank-erlal they found accused appellant Shankarlal there and another accused Ramesh Kumar was also found there and seeing the police, the accused Ramesh tried to run away, but he was apprehended by the police party and at that time, he was having one bag and on opening that bag, light yellow colour substance was found in it and on being asked, the accused Ramesh told that it was heroin. On being weighed, it weight was found to be 1 kg., out of which samples were taken for the purpose of chemical analysis and sealed separately on the spot. Similarly, after being interrogation from the accused respondent Shankerlal, he got recovered two of bags of heroin from his residential house beneath his bed for which he was not having any valid license to keep that heroin. On being weighed, 1kg. heroin was found in each bag and from each bag, two samples of 30 grms. each were taken and sealed separately on the sport and marked as A and B. The fard of search and seizure was prepared on the spot by PW 8 Jeevan Ram and the same is Ex.P/2. Through Ex.P/3, the accused respondent was arrested. The FIR, which was lodged by PW 8 Jeevan Ram, is Ex.P/6. PW8 Jeevan Ram handed over the seized articles to PW 7 Megh Singh, Head Constable and he gave samples to PW 2 Vardaram for depositing them in FSL for chemical analysis and PW 2 Vardaram gave the samples to PW 1 Parbat Singh, who was working in the SP Office, Jalore and PW 1 Parbat Singh handed over the samples to PW 6 Dilip Singh, who deposited the same in FSL, Jaipur on 6.3.1987 and obtained receipt Ex.P/1. The FSL report is Ex.P/7.
After usual investigation, police submitted challan against the accused responent Shankarlal and accused Ramesh for the offence under Sections 17,18,21 and 24 of the NDPS Act in the Court of Magistrate, from where the case was committed to the Court of Session.
The learned Sessions Judge, Jalore through his order dated 3rd June, 1987 discharged the accused Ramesh for the offence under Section 17,18,21 & 24 of the NDPS act, but framed charges for the offence under Section 17 & 18 of the NDPS Act against the accused respondent Shankar Lal. The charges were read over and explained to the accused respondent. The accused respondent denied the charges and claimed trial.
During trial, the prosecution in support of its case examined as many as 8 witnesses and got exhibited some documents. Thereafter, statement of the accused respondent under Section 313 Cr.P.C. was recorded. In defence, two witnesses were produced by the accused respondent and some documents were also got exhibited by the accused respondent.
3. After conclusion of trial, the learned Sessions Judge, Jalore through his judgment and order of acquittal dated 16.11.1991 acquitted the accused respondent of the charges for the offence under Section 17 and 18 of the NDPS Act holding inter- alia:-
1. That prosecution has failed to prove that the heroin alleged to have been recovered from the house of the accused respondent, was in exclusive possession of the accused respondent.,
2. That in the present case, there is lack of link evidence, as prosecution has failed to prove as to in whose custody the recovered articles remained from 24.2.1987 to 2.3.1987.
3. That in this case, PW 8 Jeevan Ram received secret information from mukhbir to the effect that the accused respondent was illegally doing the business of heroin in his house and, therefore, compliance of mandatory Section 2 of the NDPS Act was necessary and the same has not been made from both points of view:-
(i) that the prosecution has failed to prove the fact that the secret information which was received by PW 8 Jeevan Ram from mukhbir, has been reduced into writing,; and
(ii) that the copy of the secret information was not sent by PW 8 Jeevan Ram to his immediate official superior.
Aggrieved from the said judgment and order of acquittal dt. 16.11.1991 passed by the learned Sessions Judge, Jalore, this appeal has been filed by the State of Rajasthan.
4. In this appeal, the main submission of the learned Public Prosecutor is that the findings of acquittal recorded by the learned Sessions Judge are erroneous one, as the prosecution by producing cogent and reliable evidence has proved its case beyond all reasonable doubts against the accused respondent for the offence under Section 17 and 18 of the NDPS Act. Hence, it was prayed that this appeal be allowed and the accused respondent be convicted and sentenced for the offence under Section 17 and 18 of the NDPS Act.
5. On the other hand, the learned counsel appearing for the accused respondent supported the impugned judgment and order of acquittal passed by the learned Sessions Judge, Jalore. He has submitted that the findings of acquittal recorded by the learned Sessions Judge are based on correct appreciation of evidence and they do not call for any interference by this Court.
6. I have heard the learned Public Prosecutor and the learned counsel appearing for the respondent and perused the record of the case.
7. It may be stated here that motbirs of the fard of search and seizure Ex.P/2 are PW 4 Jaggaram and PW5 Jodha and both of them have been declared hostile.
8. The main witness in this case is PW 8 Jeevan Ram, who conducted the search and seizure in the house of accused respondent and prepared the fard of search and seizure Ex.P/2.
9. PW 8 Jeevan Ram states in his statement recorded in Court that he received secret information from mukhbir to the effect that accused respondent was illegally doing the business of heroin in his house. In cross-examination, this witness admits that the information, which was received by him from mukhbir, was reduced into writing in Rojnamcha, but he did not prepare any separate fard of that information.
10. From the statement of PW 8 Jeevan Ram, it is very much clear that he first received the secret information from mukhbir that the accused respondent was illegaly doing the business of heroin and on receiving that information, he alongwith police officials proceeded towards the house of the accused respondent. In these circumstances, the provisions of Section 42 of the NDPS Act would be applicable in the present case as the provisions of Section 42 of the NDPS Act are applicable in the cases in which building, conveyance or enclosed place is to be entered into and searched.
11. It may be stated here that the provisions of Section 42 of the NDPS Act would be only applicable when search, seizure and arrest have to be effected without warrant or authorisation in any building, conveyance or enclosed place. If such places are not to be entered into and searched, the provisions of Section 42 of the NDPS Act apply when there is a prior information about the presence of the contraband article in any building, conveyance or enclosed place, while Section 43 applies when information as such is not about the presence of a contraband article at any of such places, but such article is likely to be brought in any public place.
12. Section 42 of the NDPS Act has two aspects:-
(1) That if the officer has reason to believe from personal knowledge or information given by any person, he shall take down that information in writing;
(2) That for making compliance of Section 32(2), such officer, after taking down that information in writing or recording grounds for his belief under the provision to above Section, shall forthwith send a copy thereof to his immediate official superior.
13. From the statement of PW8 Jeevan Ram, it clearly appears that he received secret information from mukhbir to the effect that accused respondent was illegally doing the business of heroin in his house and he reduced that information into writing in Rojnamcha, but that Rojnamcha has not been produced in this case and in absence of production of Rojnamcha, it cannot be held that he reduced the secret information into writing. Thus, compliance of Section 42(1) of the NDPS Act has not been made by PW8 Jeevan Ram.
14. Similarly, there is no evidence on record to prove the fact that copy of the secret information was sent by PW 8 Jeevan Ram to his immediate official superior. Hence, compliance of Section 42(2) of the NDPS Act has also not been made by PW 8 Jeevan Rani.
15. Hence, it is a clear cut case of breach of mandatory provisions of Section 42 of the NDPS Act and the findings of the learned Sessions Judge that compliance of mandatory provisions of Section 42 of the NDPS Act has not been made in the present case are liable to be confirmed, as they are based on correct appreciation of evidence and on this ground alone, the case of the prosecution can be thrown out.
16. So far as the findings of the learned Sessions Judge that thee is lack of link evidence in the present case are concerned, the same also appear to be correct one as from the statements of PW7 Megh Singh, who was at the relevant time Malkhana Incharge and PW 8 Jeevan Ram, who conducted the search and seizure, it is well established that after 24.2.87 the recovered articles were sent to Customs Department, but it has not been proved by the prosecution as to with whom they were sent to Customs Department and when they were returned by the Customs Department to PW 7 Megh Singh and moreover, Malkhana Register has not been produce in this case. In these circumstances, it cannot be reasonably be inferred or gathered that the articles and samples remained in proper custody and proper from and the possibility of tampering with the samples and articles cannot be ruled out. Hence, the findings of the learned Sessions Judge that there is lack of link evidence are liable to be confirmed.
17. The third point is with regard to exclusive possession.
18. The site plan which was prepared by PW8 Jeevan Ram is Ex.P/8 and in that site plan, place-A is shown from where the alleged heroin was recovered from the accused respondent and from this site plan Ex.P/8, it appears that form that place, on north and east side, there is a field of high school and on south side, there is a road and on west side, there is a factory. The prosecution has filed patta (Ex.P/4) of the house of the accused respondent, but in that patta Ex.P/4, on north side, a public way is shown, on south side, house of Bhanwi Shobha is shown, on east side, house of Bhanwi Modiya is shown and on west side, land of Sagarji, Taraji is shown and after seeing both site plan Ex.P/8 as well as Patta Ex.P/4, learned Sessions Judge came to the conclusion that since the boundaries shown in Ex.P/4 Patta did not tally with the boundaries shown in the site plan Ex.P/8, therefore, to hold that the house in question from which alleged heroin was recovered, belonged to the accused respondent, is doubtful and thus, he gave benefit of doubt to the accused respondent holding that the prosecution has failed to prove beyond reasonable doubt that the house in question from where the alleged heroin was recovered, was in exclusive possession of the accused respondent. These findings of the learned Sessions Judge are based on correct appreciation of evidence and, therefore, they do not call for any interference and the same are liable to be confirmed.
19. For the reasons stated above, it is held that the prosecution has not been able to prove its case beyond all reasonable doubts against the accused respondent and thus, the findings of acquittal recorded by the learned Sessions Judge are liable to be confirmed as they are based on correct appreciation of evidence on record and this appeal deserves to be dismissed.
Accordingly, the appeal filed by the State of Rajasthan is dismissed, after confirming the judgment and order of acquittal dated 16.11.1991 passed by the learned Sessions Judge, Jalore.