Rajasthan High Court - Jodhpur
Puran Ram vs State on 25 June, 2019
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 161/2016
Puran Ram son of Shri Nand Ram, by caste Nayak, resident of
Bolawali, Sangaria Police Station, District Hanumangarh
----Appellant
Versus
The State of Rajasthan
----Respondent
For Appellant(s) : Mr. B. Ray Bishnoi
For Respondent(s) : Mr. Mahipal Bishnoi, P.P.
HON'BLE MR. JUSTICE SANDEEP MEHTA
Order 25/06/2019 The appellant Puran Ram has preferred the instant appeal under Section 374 (2) CrPC being aggrieved of the judgment dated 21.01.2016 passed by the learned Special Judge (NDPS Cases), Hanumangarh in Sessions Case No.25/2012, whereby he has been convicted for the offence under Section 8/25 of the NDPS Act and sentenced to undergo rigorous imprisonment for a period of 12 years alongwith a fine of Rs.1,00,000/- and in default of payment of fine, further to undergo rigorous imprisonment for a period of 1 year.
Brief facts relevant and essential for disposal of the appeal are noted hereinbelow. The prosecution case is based on the allegation that Shri Saurabh Tiwari (P.W.11), SHO, Police Station Pallu was conducting a Nakabandi on the Arjunsar T- crossing in the night intervening 06.08.2011 and 07.08.2011. At (Downloaded on 27/06/2019 at 09:58:37 PM) (2 of 7) [CRLA-161/2016] about 01.00 a.m., a blue coloured car was seen coming from towards Sardarshahar. The police team (SHO and the other members of the police station) signaled the driver to stop the car, in which two persons were sitting. However, on noticing the presence of the police party, the car driver tried to take the car away towards Pallu. The car was pursued by the police team. At about 02.00 a.m., when they reached the Johad Payatan Rohi Gulabgarh, the car was seen stalled in the rain water. Its number plate was broken. It was bearing Registration No.HR12-F-6716. The car model was Scoda Octavia. No one was seen inside the car. Search was made for the suspects in the vicinity, but nobody could be found. The car was searched in presence of motbirs and it was found that 8 plastic bags containing poppy straw like substance were concealed therein. All the bags were emptied on a tarpaulin and the contraband was weighed. The gross weight thereof came to be 2 quintal 65 kg. The suspected contraband which was stored in separate bags was mixed up and two samples of 500 gms. each were taken out therefrom. Seizure and sampling procedure was completed. The car and the contraband were taken to the Police Station Pallu, where FIR No.130/2011 was registered for the offence under Section 8/15 of the NDPS Act. The registered owner of the vehicle, namely, Balraj Singh, was given a notice under Section 133 of the Motor Vehicle Act. He divulged that he had sold the vehicle to the appellant herein, whereupon the appellant was arrested and charge-sheet was filed against him in the competent court for the offence under Section 8/15 of the NDPS act. The trial court framed charges against the accused for the offences under Section 8/15 and 25 of the NDPS Act, who pleaded not guilty and claimed trial. The prosecution (Downloaded on 27/06/2019 at 09:58:37 PM) (3 of 7) [CRLA-161/2016] examined as many as 26 witnesses and exhibited 40 documents in support of its case. Upon being questioned under Section 313 CrPC, the appellant did not dispute the fact that he had purchased the car in question, but he claimed that the car was not in his possession on 06.08.2011 and 07.08.2011 and that he had no connection with the poppy straw seized therefrom. He stated that his known person Sukha Singh had taken the car on the premise that he wanted to visit his relatives. No evidence was led in defence.
Upon conclusion of the trial, the learned trial Judge proceeded to hold that the prosecution did not lead sufficient evidence to prove that the appellant was present in the car when the seizure was effected. The car which was being used to transport the contraband poppy straw was owned by the appellant. Thus, the appellant was acquitted of the charge under Section 8/15 of the NDPS Act by extending him the benefit of doubt. However, the appellant was held to be the owner of the offending vehicle and while raising the presumption under Section 35 read with Section 54 of the NDPS Act, the learned trial court convicted and sentenced him as above for the offence under Section 8/25 of the NDPS Act. Hence, this appeal.
Mr. B. Ray Bishnoi, learned counsel representing the appellant, advanced the following arguments for assailing the conviction of the appellant :-
1. That the sampling procedure adopted by the seizure officer Shri Saurabh Tiwari is faulty because instead of taking out separate samples from each bag containing the suspected contraband, the seizure officer mixed the contents of all the bags and collected only two samples from the entire material. He, (Downloaded on 27/06/2019 at 09:58:37 PM) (4 of 7) [CRLA-161/2016] thus, urges that no inference can be drawn that all the bags seized from the offending vehicle were containing contraband poppy straw. In support of this contention, learned counsel relied upon the judgment of this court in the case of Netram Vs. State of Rajasthan reported in 2014 (2) R.Cr.D. 94 (Raj.).
2. He further contended that the prosecution could not prove the fact that the appellant was the owner or person in control of the vehicle in question, but when confronted with the admission made by the appellant in his statement under Section 313 CrPC to this effect, he gave up this contention and instead, submitted that in order to convict a person for the charge under Section 8/25 of the NDPS Act, the prosecution has to lead positive evidence to establish that the accused knowingly allowed the vehicle to be used by some other person for transportation of the contraband narcotic. He urged that no such evidence was led by the prosecution during the trial and hence, the conviction of the appellant for the offence under Section 8/25 of the NDPS act cannot be sustained. In support of this contention, learned counsel relied upon the Supreme Court judgment in the case of Balwinder Singh Vs. Asstt. Commr., Customs and Central Excise reported in (2005) 4 SCC 146.
On these submissions, he urged that the impugned judgment is bad on facts as well as in law and hence, the same deserves to be set aside and the appellant is entitled to be acquitted of the charge.
Per contra, learned Public Prosecutor vehemently and fervently opposed the submissions advanced by the learned counsel for the appellant. He urged that the sampling procedure (Downloaded on 27/06/2019 at 09:58:37 PM) (5 of 7) [CRLA-161/2016] adopted by the seizure officer does not lack sanctity and thus, no flaw can be found therein. He further submitted that when questioned under Section 313 CrPC, the appellant admitted ownership of the vehicle in question and offered a frivolous explanation that the car was given to one Sukha Singh on the fateful day. He submitted that if at all the appellant was desirous to prove this defence, then he should have produced evidence to this effect in his defence. As per the learned Public Prosecutor, the only onus upon the prosecution in a case involving the charge under Section 8/25 of the NDPS Act is to establish the fact that the accused was owner of the vehicle, whereafter as per Section 35 read with Section 54 of the NDPS Act, the burden would shift on to disprove that the vehicle was not being used for transporting the narcotics once seizure had been made therefrom. He, thus, sought dismissal of the appeal.
I have given my thoughtful consideration to the arguments advanced at bar and have thoroughly gone through the judgment as well as the record of the case. Upon a careful perusal of the seizure memo (Ex.P/15) and the evidence of the seizure officer Shri Saurabh Tiwari (P.W.11), it is clear that as many as 8 gunny bags were discovered in the offending vehicle in which the suspected contraband was stored. The requirement of procedure as approved by this court in the case of Netram (supra) relied upon by the learned counsel for the appellant is that the seizure officer should collect individual samples from each bag and the procedure of mixing the contents of separate bags and collecting common sample from the mixture is not correct way of sampling in a case involving seizure of narcotics. Thus, the (Downloaded on 27/06/2019 at 09:58:37 PM) (6 of 7) [CRLA-161/2016] prosecution case suffers from an admitted infirmity regarding the manner in which the samples were collected.
The second contention of the defence counsel was regarding there being no material on record so as to justify the conviction of the accused under Section 25 of the NDPS Act. Section 25 of the NDPS Act reads as below:-
25. Punishment for allowing premises, etc., to be used for commission of an offence.-- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.
From a bare reading of the language of the statutory provision, it is clear that for proving this charge, the prosecution would have to lead evidence to satisfy the court that the owner or the person in control of the offending vehicle used or knowingly permitted the offending vehicle to be used by any other person for commission of an offence punishable under the provisions of the Act. Mere allegation that the contraband was recovered from inside the vehicle would not absolve the prosecution of its burden in this regard. The question of raising presumption under Section 35 of the NDPS Act would only arise once the prosecution discharges the initial burden cast upon it by the penal provision, i.e. Section 25 of the NDPS Act. Having examined the entire evidence of the prosecution, this court is duly satisfied that there is no material whatsoever on the record of the case by which the court can be persuaded to believe that the appellant knowingly permitted or allow the offending vehicle to be used by another (Downloaded on 27/06/2019 at 09:58:37 PM) (7 of 7) [CRLA-161/2016] person for transportation of the contraband poppy straw. Thus, the ratio of the Supreme Court judgment in the case of Balwinder Singh (supra) relied upon by the learned counsel fully applies to the case at hand and the conviction of the appellant as recorded by the trial court for the above offence cannot be sustained.
Accordingly, the appeal deserves acceptance and is hereby allowed. The impugned judgment dated 21.01.2016 passed by the learned Special Judge (NDPS Cases), Hanumangarh in Sessions Case No.25/2012 is set aside to the extent of conviction of the appellant, who is acquitted from the charge under Section 8/25 of the NDPS Act. However, the conclusion of the trial court that the offending vehicle should be confiscated has not been challenged and furthermore, admittedly, the contraband was recovered being plied therein, thus, the said direction is affirmed.
The appellant is in custody. He shall be released forthwith, if not wanted in any other case.
However, keeping in view the provisions of Section 437-A CrPC, the accused appellant is directed to furnish a personal bond in the sum of Rs.15,000/- and a surety bond in the like amount before the learned trial court, which shall be effective for a period of six months to the effect that in the event of filing of an appeal against the present judgment on receipt of notice thereof, the appellant shall appear before the High Court.
(SANDEEP MEHTA),J Pramod/-
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