Rajasthan High Court - Jodhpur
Kishna Ram Gujar vs State on 1 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:26971]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 247/1995
Kishnaram Gurjar S/o Sawai, by caste Gujar, R/o Village Nagelav
P.S. Pisangan, Distt. Ajmer.
(At Present lodged at Central Jail, Udaipur)
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Suresh Kumbhat
For Respondent(s) : Mr. Sharwan Singh Rathore, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
ORDER RESERVED ON : 09.05.2025
ORDER PRONOUNCED ON : 01.07.2025
BY THE COURT:-
1. By way of filing the instant appeal, challenge has been made to the judgment dated 16.05.1995 passed by the learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No.47/1994 whereby the appellant was convicted for committing an offence under Section 8/18 of NDPS Act and he was sentenced to suffer ten years' rigorous imprisonment alongwith a fine of Rs. 1,00,000/- and six months' further sentence if default in payment of fine is committed.
2. Briefly stated the facts of the case are that upon receipt of information on 04.06.1993 regarding illicit transportation of contraband by an unknown person in a Roadways bus, the Police Officer went to the spot and stopped the bus. Upon checking as per the allegation, the appellant was having bag in his hand (Downloaded on 03/07/2025 at 09:31:00 PM) [2025:RJ-JD:26971] (2 of 5) [CRLA-247/1995] was apprehended for having in possession 2 kilo 300 gram opium. It is claimed that two samples were taken from the content filled in the bag and the rest of the article alongwith the samples were sealed and seized. After usual investigation, the appellant was charge-sheeted and the trial was commenced. Twelve witnesses were examined and reliance was placed on 12 documents to substantiate the charge. The accused was examined under Section 313 of Cr.P.C. and he claimed innocence. After hearing the learned counsel for the parties, the learned trial Court convicted him as mentioned above.
3. I have heard the learned counsel for the appellant, the learned Public Prosecutor and also gone through the record of the case. P.W. - 8 (Mool Singh) received the information as he claimed and whereupon forwarded the information to Azad Sharma, Police Officer to effect seizure and further proceeding. Neither the information was reduced into writing nor the same was forwarded to Superior Police Officers, nor any attempt was made to obtain a warrant from the Superintendent of Police or from a Court. Exact compliance of Section 42 of NDPS Act has not been made. The witness claims supplying a notice of Section 50 of the NDPS Act to the appellant which is tendered into evidence and marked as Ex.- P/1, however, a perusal of which revealing defect in the notice (Ex.P/1). It is mentioned in the notice that the Seizing Officer was a gazetted Officer and, therefore, the accused was given an option to get searched by a Judicial Magistrate. The option has been limited by insertion of the word "Judicial" since the law requires right of the accused to ask for his search before a Magistrate which may be an Executive Magistrate. Further the purport of (Downloaded on 03/07/2025 at 09:31:00 PM) [2025:RJ-JD:26971] (3 of 5) [CRLA-247/1995] notice under Section 50 of NDPS Act would be to make the search either before a gazetted Officer or before a Magistrate but certainly not by the Gazetted Officer or by the Magistrate. Putting restraint or limiting right by unnecessarily putting foreign word "Judicial Magistrate" instead of a Magistrate has certainly made the document Ex.-P/1 erroneous and not in consonance with the law as well. Ex.P/4 is the memo of arrest prepared by the Seizing Officer on 04.06.1993 at 02:15 PM but the same does not have mentioning of any notice under Section 50 of the NDPS Act allegedly given to the accused. If the notice dated 04.06.1993 at 01:55 PM was there, then where it vanished thereafter. Had the notice Ex.P./1 been given to the accused at 01.55 P.M., then certainly its availability should be with the accused when he was arrested and personally searched at 02.15 P.M. vide Ex.-P/4. Certainly the above mentioned aspects are fatal to the prosecution.
4. Another glaring defect this Court notices is the missing links and absence of proper connecting evidence. The seizure was made on 04.06.1993 and the articles were deposited in the Malkhana by making entries No.93 which is evident from Ex.-P/7. This document reflects that on 25.06.1993, the Malkhana In-charge had handed over the samples marked ABC to Constable - Laxmi Narain to produce it before Superintendent of Police for the purpose of sending the same to FSL. Ex.P/8 is the forwarding letter through which the samples were handed over to Constable - Laxmi Narain by the SHO. The samples were received by the Superintendent of Police, Bhilwara on 06.07.1993 which is very much evident from ex. P/10. There is serious missing link as to (Downloaded on 03/07/2025 at 09:31:00 PM) [2025:RJ-JD:26971] (4 of 5) [CRLA-247/1995] where the samples had remained in between 25.06.1993 to 06.07.1993 so also whether in the mean period the samples remained intact. The prosecution's case is silent on this aspect since no oral or documentary evidence has been placed on record and no explanation has been furnished in this regard. Ex.P/11 recognizes receipt of samples by the FSL, Jaipur on 07.07.1993. The specimen seal was required to be sent alongwith the forwarding letter but nowhere in the record its presence is available.
4.1 NDPS Act is sometimes called a draconian law because of its stringent provision of punishment and, therefore, Hon'ble the Supreme Court has time and again, through plethora of judicial pronouncements has propounded strict compliance of mandatory provisions. A defect in notice under Section 50 of NDPS Act certainly vitiates the recovery. Further more, the absence of evidence about keeping the samples intact till its reaching to FSL further puts a serious dent on the case of prosecution and the things above are indeed fatal to the case of prosecution. The jurisprudential aspect that "grave the charge greater has to be the standard of proof and so also the best evidence must be produced" cannot be ignored. It is the duty of the prosecution to prove its case beyond every shadow of reasonable doubt and in this process, it would require to bring forth cogent and clinching evidence to assert that right from the very inception when the samples were taken and till its reaching to FSL, the same were remained intact, nor tempered with. In absence of missing links in the chain of evidence, a cloud of doubt certainly enters in the matter. It is not proved that the samples were taken properly and (Downloaded on 03/07/2025 at 09:31:00 PM) [2025:RJ-JD:26971] (5 of 5) [CRLA-247/1995] kept safe till its reaching to chemical examiner and in this view of the matter, the report of FSL bears no value. Since there is a gap and links are missing in the evidence of prosecution, therefore, the report of FSL does not connect the accused so as to bring home his guilt.
5. In this view of the matter, the instant appeal succeeds and the same is allowed. The judgment dated 16.05.1995 passed by the learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No.47/1994 is set aside. The appellant is acquitted from the charges. He is on bail. His bail bonds are discharged. He is not required to surrender.
6. The record be sent back forthwith.
(FARJAND ALI),J 23-divya/-
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