Rajasthan High Court - Jodhpur
Nagu Singh vs State on 10 May, 2016
Author: Sandeep Mehta
Bench: Sandeep Mehta
1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
JUDGMENT
S.B.CRIMINAL APPEAL NO.931/2015 Nagu Singh Vs. State of Rajasthan Date of order : 10.5.2016 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr.BS Rathore, for the appellant.
Mr.Rajesh Bhati, P.P. <><><> The appellant Nagu Singh has approached this Court being by way of this appeal assailing the judgment dated 30.6.2015 passed by the learned Special Judge (NDPS Act Cases), Pratapgarh in Special Sessions Case No.36/2006 convicting him for the offence under Section 8/15 of the NDPS Act and sentencing him to suffer 11 years' R.I. and a fine of Rs.1 lac each, in default of payment of fine, to further undergo six months' additional R.I. Facts essential and necessary for the disposal of the instant appeal are noted hereinbelow.
The SHO Police Station Choti Sadri Shri Rajiv Joshi, acting on the basis of a prior information, claims to have conducted 2 the search of a house allegedly owned by the appellant at the village Charliya, District Pratapgarh on 26.4.2006. It is alleged that from inside a small room located in the house of the accused appellant, the key whereof, was supplied by him, contraband poppy straw having gross weight of 200 kgs. was recovered lying packed in five separate gunny bags. The accused could not provide any licence or permit for possession of the poppy straw. The Seizure Officer collected 500 gms. of contraband from every bag. He prepared two representative samples of 500 gms. each and packed them in plastic bags. The remaining 1.500 kgs. of the representative contraband collected from the five gunny bags was also packed in a separate bag. The samples and the remainant of the representative contraband were given marks A, B and C. The left over contraband after collecting the representative samples was repacked in the same gunny bags which were given marking "1 to 5". The SHO thereafter returned to the Police Station Choti Sadri and registered FIR No.110/2006 against the appellant herein for the offence under Section 3 8/15 of the NDPS Act. After investigation, a charge-sheet was filed against the appellant for the offence under Section 8/15 of the NDPS Act.
The trial Court framed charge against the appellant for the above offence. He pleaded not guilty and claimed trial. The prosecution examined as many as 19 witnesses in support of its case. The accused in his statement recorded under Section 313 Cr.P.C. denied the prosecution allegations and claimed that the house from where, the recovery was effected, was neither owned by him nor was in his possession. He was residing at the village Dhamniya with his wife Rukmani. He was not having any property in the village Charliya. The Police Officers, forcibly, planted the recovery against his name. One witness was examined in defence. The trial Court at the conclusion of the trial proceeded to discard the defence of the appellant and convicted and sentenced him as above. Hence, this appeal.
Shri B.S.Rathore, learned counsel representing the appellant, challenged the judgment of conviction on 4 numerous grounds which are noted hereinbelow:
(i) The Seizure Officer, did not collect any evidence to show that the house from which, the recovery was effected, belonged to the appellant. Thus, he urged that as the prosecution failed to prove that the exclusive possession of the appellant on the premises from which the recovery was effected, he deserves to be acquitted;
(ii) The muddamal allegedly seized by the Seizure Officer Rajiv Joshi was not produced and exhibited in the court under the pretext that it had been destroyed beyond identifiable state owning to exposure by elements. Thus, he contended that as the muddamal was not produced in the court, it has to be presumed that no evidence was given of the seizure at all.
(iii) The prosecution failed to comply with the mandatory requirements of Section 52A of the NDPS Act, inasmuch as, no inventory, specimen samples and photographs of the seized goods were prepared by the Seizure Officer and as a consequence, the prosecution failed to lead primary evidence of the seizure. Thus, as per him, the appellant is entitled to be 5 acquitted of the charge.
Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellant and urged that the appellant Nagu Singh himself was present in the premises when seizure was effected. The key of the small room from which, the contraband poppy straw was recovered, was supplied by the appellant to the Seizure Officer. The Seizure Officer had no animus against the appellant and thus, the defence plea that the appellant had been falsely implicated in this case is per se untenable. As regards, the argument advanced by Shri Rathore regarding the non-exhibition of the muddamal in the court, learned Public Prosecutor candidly conceded that the muddamal could not be produced in the court because the same was destroyed by flooding as it was lying in an underground godown in the old Police Station. He urged that the specimen samples and the remainant of the contraband collected by the Seizure Officer during the sampling procedure were duly proved at the trial and consequently, the inability of the prosecution to exhibit 6 the muddamal is of no consequence whatsoever as no prejudice was caused to the appellant thereby.
I have heard the arguments advanced by the learned counsel for the parties and have carefully perused the impugned judgment and re-appreciated the entire material available on record including the evidence led by the prosecution and the defence.
Since, the learned counsel for the appellant restricted his challenge to the conviction of the appellant on limited grounds, the only material piece of evidence for appreciating the said arguments is that of the Seizure Officer P.W.19 Rajiv Joshi. As is usual, the independent witnesses associated with the recovery namely Amar Singh P.W.2 and Kesu Ram P.W.3 did not support the prosecution story at the trial and were declared hostile.
The first argument advanced by Shri Rathore that no recovery was effected from the house owned by the appellant and that the appellant was not having conscious possession over the recovered contraband is not with force. The Seizure 7 Officer P.W.19 Rajiv Joshi, in his evidence, testified that upon receiving the secret information regarding concealment of poppy straw in the appellant's house at the village Charliya, he formed a raid party. They reached the village Charliya and knocked the door of the house. The appellant opened the gate and let them in. Thereafter, the appellant provided the key of the room from which, the seizure was effected.
The following documents were prepared by the Seizure Officer in totality at the time of the seizure:-
Ex.P3 Notice to the accused under Section 50 of the NDPS Act.
Ex.P4 Seizure Memo Ex.P5 Specimen memo of seal Ex.P6 Memo for destruction of the seal Ex.P7 Notice under Section 52 of the NDPS Act given to the accused before arresting him. Ex.P8 Arrest memo of the accused.
In none of these documents, is it mentioned that the house from which the recovery was made, was opened by the 8 accused appellant or that he provided the key to the lock of the room from which recovery was made.
The narration recorded in the seizure memos (Ex.P4 and Ex.P19) is reproduced hereinbelow for the sake of ready reference:
Ex.P/4 "11. Circumstances/grounds for seizure ( ) .
200 kg.
13. The following properties were packed and/or sealed and the signature of the above said witnesses obtained thereon or on the body of the property.
Sl.No. Property Indicate whether signature . . obtained on the packet or on the body of the property 1 2 3 A B 9
-C Ex.P19 Attachment to item 10 of Property Search & Seizure Form. 10 Details of Narcotics drugs recovered/seizued:
/ ण:
District P.S ( Year( )2006 FIR No.( . . . .)110/06 Date( )26/4/06
Sl.No. Name No.of Weight Description of the Method of Estimated
of packets (k.g.- packing and marking, concealment value (in
drug gms) if any Rs.)
1 2 3 4 5 6 7
5 (1) A 500 20000/-
ABC Gms
200 Kg (2) B 500
Gms
(3) 1.5 kg
C
Whether the notice under Section 50 of NDPS Act served on the person?
. . . . 50 ?
yes/no
/
Whether the Laboratory analysis form filled on the spot? yes/no
ण ? /
G H
Witness-1
-1
E SHO F
Signature Signature of Magistrate Signature of Investigating Officer
(when present)/Gazetted Officer
( )/
Sd/-
A B
Witness-2 Name ( ) Name ( )
-2
Signature Court ( ) Rank ( ) SHO P.S.
Sd/-
D"
10
The Investigating Officer was specifically put the
following questions during cross-examination and he failed to offer any explanation for this significant and glaring omissions in the material documents:
"
ण ण ण ण "
11
The claim of the Seizure Officer that the accused provided the key of the room from which the contraband poppy straw was recovered is also falsified because neither the key was taken in possession by the Investigating Officer and nor was it seized.
The trial Court appears to have taken aid of the presumption under Section 35 of the NDPS Act against the accused and held that once seizure was proved, the burden shifted on to the accused to prove his innocence. However, as has been narrated above, the very fact of seizure from the house of the accused has been rendered doubtful in view of the above material omissions and contradictions appearing in the evidence of the seizure officer vis-à-vis the documents of seizure and therefore, the prosecution evidence regarding the alleged seizure has been rendered doubtful and consequently, the presumption under Section 35 of the NDPS Act cannot operate to the prejudice of the accused. Therefore, the prosecution case regarding the manner in which the recovery was effected is highly doubtful and consequently, the accused 12 is entitled to be given the benefit of doubt.
Now coming to the second argument regarding the sanctity of the seizure in absence of the muddamal being exhibited in the court as well as the sampling procedure adopted by the Seizure Officer. Two fold contentions were advanced by Shri Rathore in this regard. The first argument was that the sampling procedure adopted by the SHO Shri Rajiv Joshi was faulty and not as per law. As per Shri Rathore, since, the contraband was packed in 5 separate bags, the Seizure Officer was required to collect separate and distinct samples from each bag. The procedure of taking out small quantities of the goods from each bag, mixing them and then preparing a representative sample, was not the correct way of sampling as per Shri Rathore.
For appreciating this argument, contents of the seizure memos exhibited by the Seizure Officer Rajiv Joshi P.W.9 as Ex.P4 and Ex.P19 need to be gone into. On going through the seizure memo, it is evident that the same are printed proformas in which blanks have been filled in. The detail of 13 the sampling procedure adopted by the Seizure Officer is not narrated in the seizure memos prepared at the time of seizure. All that is mentioned in the seizure memos is that 5 gunny bags containing poppy straw weighing 200 Kgs. were seized from the house of Nagu Singh. Three packets were prepared from the said gunny bags viz. two samples marked 'A' and marked 'B' and the remainant sample marked 'C'. It is nowhere described in this seizure memo that the Seizure Officer collected 500 gms. of poppy straw from each gunny bag and prepared representative samples therefrom. Thus, the evidence of the Seizure Officer as regards the manner of drawing samples comes under a cloud of suspicion. The seizure memo does not even reflect that after collecting the samples the remaining contraband was sealed and chits marked thereupon. The specimen memo of seal was prepared by the Seizure Officer on 26.4.2006 at 1.30 PM. In the said specimen memo, it is narrated that 500 gms. of poppy straw each was collected from the 5 gunny bags and a total of 2500 gms. of poppy straw was mixed. Two samples of 500 gms 14 each was prepared from the mixture and marked as 'A' and 'B'. The remaining 1.500 kgs. admixture was packed in the packet marked 'C'. Numbers "1 to 5" were appended on the gunny bags of poppy straw left behind after collecting the samples. Even in this specimen seal memo, it is not mentioned that the five bags containing the remaining contraband were sealed and chits bearing the signatures of the motbirs, accused and the Seizure Officer were appended thereupon. Thus, from these documents, which are the primary documents of seizure, serious doubt is created as to whether the muddamal contained in 5 gunny bags was even sealed or not. This Court examined the sanctity of the procedure of drawing representative samples from multiple packets of contraband narcotics in the cases of Jagdish Chand Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.) 91and Jasmer @ Bachchi & Ors. Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.) 199 and held that the procedure of collecting small quantity of the contraband narcotics from separate bags mixing them and then preparing samples is not 15 the appropriate procedure to be adopted in such cases. The Seizure Officer should collect and prepare separate samples from each of the separate bags containing the contraband. Thereafter, he should append the seals and affix appropriate identifying chits bearing the signatures of the panchas, the accused and of his own thereupon. Seen in light of the ratio of the abovementioned judgments of this Court in the cases of Jagdish Chand and Jasmer (supra) and keeping in view the flaws noticed by this Court in the prosecution evidence regarding the manner of preparing the samples, this Court is of the opinion that the prosecution miserably failed to prove that appropriate sampling procedure was adopted by the Seizure Officer Shri Rajiv Joshi while conducting the seizure in question. Thus, the FSL report cannot be read in evidence against the accused.
As regards, the non-exhibition of the muddamal in the court, the prosecution has admitted that the muddamal was not produced and exhibited in the court. The note appended by the trial Court in the evidence of Seizure Officer P.W.19 16 Rajiv Joshi fortifies this fact and is reproduced hereinbelow for the sake of ready reference:
" -
ण "
The above note lends force to the contention advanced by the learned counsel for the appellant that the prosecution failed to lead primary evidence of the seizure.
This Court in the case of Aladdin & Anr. Vs. State of Rajasthan (S.B.CRIMINAL APPEAL NO.1050/2015) decided on 19.2.2016 after taking note of various judgments rendered by Hon'ble Supreme Court as well as this Court on the issue of non-production of Muddamal in the court and its effect on the prosecution case during a trial for the offences under the NDPS Act, held that in the cases involving recovery of narcotics, the prosecution is mandated by law to produce and exhibit the Muddamal in the court in the self same condition in which it was seized. The judgments rendered by the Hon'ble Supreme Court in the cases of Noor Agha VS. State of Punjab & Ors. reported in 2008 CrLR (SC) 655, Jitendra & Ors. 17 Vs. State of Madhya Pradesh reported in 2003-04 (Supp) CrLR (SC) 699, Ashok alias Dangra Jaiswal v. State of M.P. reported in AIR 2011 Supreme Court 1335 and Vijay Jain Vs. State of M.P. reported in 2013(14) SCC 527 as well this Court's judgments in the cases of Thakra Ram Vs. State of Rajasthan being S.B.Cr. Appeal No.311/2009 decided on 4.10.2013 and Bhagirath Ram Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.)-117, laying down this proposition and the contrary view of the Supreme Court in the case of Gian Chand Vs. State of Haryana reported in (2013)14 SCC 420, were considered and it was laid down that failure to exhibit the Muddamal in the self same condition is fatal to the prosecution in a case involving recovery of narcotics drugs and psychotropic substances. The only mode by which, the prosecution can avoid this burden is, by exhibiting the photographs, inventory and the representative samples prepared under Section 52A of the NDPS Act. Admittedly, the said procedure was not followed by the prosecution in this case. Non-exhibition of the Muddamal in the court leads to 18 the irrefutable conclusion that the prosecution failed to lead primary evidence of the seizure and thus, the entire evidence of the prosecution regarding the alleged seizure has to be discarded.
In view of the discussion made above, this Court is of the opinion that firstly, the prosecution failed to prove that appropriate sampling procedure was adopted by the Seizure Officer, and secondly, it also failed to lead primary evidence of the seizure.
Thus, the conviction of the appellant as recorded by the trial court vide the impugned judgment cannot be sustained on all the above counts.
Consequently, the appeal deserves to be and is hereby allowed. The impugned judgment dated 30.6.2015 passed by the learned Special Judge (NDPS Act Cases), Pratapgarh convicting and sentencing the appellant for the offence under Section 8/15 of the NDPS Act is declared to be bad on facts as well as on law and is set aside. The accused is acquitted of the charge. He is in custody for the last more than seven years. He 19 shall be set at liberty forthwith if not wanted in any other case.
Record be returned to the trial Court.
(SANDEEP MEHTA), J.
/tarun/