Rajasthan High Court - Jodhpur
Babu Lal @ Babu Ram vs U.O.I on 5 October, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 163 / 2010
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----Appellant
Versus
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----Respondent
Connected With
S.B. Criminal Appeal No. 103 / 2010
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----Appellant
Versus
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----Respondent
S.B. Criminal Appeal No. 114 / 2010
Prabhulal @ Dilip @ subhash s/o Bhanwarlal by caste mewara
resident of Naya Darwaja, in front of Khadi Gramodhyog Vikas
Mandal, Bhilwara Road Devgarh District Rajsamand.
----Appellant
Versus
Union of India, through Central Narcotics Bureau.
----Respondent
_____________________________________________________
For Appellant(s) : Mr.M.L.Bishnoi, Mr.R.K.Charan.
For Respondent(s) : Mr.N.K.Rai, Special Public Prosecutor.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order (2 of 11) [ CRLA-163/2010] Date of Pronouncement : 05/10/2017 These three appeals are preferred on behalf of the appellants accused herein for assailing the judgment dated 16.2.2010 passed by the learned Special Judge, N.D.P.S. Act Cases, Chittorgarh in Sessions Case No.16/2007 whereby, the learned Special Judge proceeded to convict and sentence the appellants as below:
Prabhu Lal @ Dilip for offence under 10 Years' R.I. with @ Subhash Section 8/18 of the fine of Rs.1 lac, in N.D.P.S. Act. default to further undergo one year's additional imprisonment.
Shambhu Lal for offence under 10 Years' R.I. with & Section 8/29 of the fine of Rs.1 lac, in N.D.P.S. Act. default to further Babu Lal @ Baburam undergo one year's additional imprisonment.
Succinctly stated factual matrix of the case is that Sushil Kumar Verma, Inspector posted in the Office of the Dy.Commissioner, Narcotics, C.B.N., Neemuch allegedly received a source information on 5.12.2006, which was taken down into writing. By way of follow up action, a raid party associated by two independent persons as Panchas was formed under the leadership of Shri Verma and a Nakabandi was laid at the Pandawaon Ka Kuan on the Begun-Bichhore-Bhilwara Road. At about 11 O'clock, the suspected Hero Honda motorcycle bearing registration No.RJ30-3M-5775 was seen coming and was flagged down to stop. Upon inquiry, the person driving the motorcycle identified himself to be Prabhu Lal @ Dilip @ Subhash. He was given the (3 of 11) [ CRLA-163/2010] option as per law and then search of Prabhu Lal as well as of the motorcycle was taken. A canvas bag was seen hanging on the left side of the motorcycle. Inside the canvas bag, there was a gunny bag in which two polythene bags containing 4.650 kgs. and 5.250 kgs. (total 9.900 kgs.) of suspected opium were concealed. Samples were taken out from the seized contraband as per the prescribed procedure and were forwarded to the Govt. Alkaloid Works, Neemuch and upon analysis, the same tested positive for the essential ingredients of opium. Statement of Prabhu Lal was recorded under Section 67 of the N.D.P.S. Act and thereafter, he was arrested. Prabhu Lal allegedly informed that he had purchased the opium from Shambhu Lal. Accordingly, he was taken to Katunda Mod where he allegedly pointed out and identified Shambhu Lal. Notice under Section 67 of the N.D.P.S. Act was allegedly given to Shambhu Lal and his statement was also recorded under Section 67 of the N.D.P.S. Act and thereafter, he too was arrested in the case. As a follow up of the informations received from Prabhu Lal and Shambhu Lal, the officers of C.B.N. reached Sojat City Bus Stand and gave a notice under Section 67 of the N.D.P.S. Act to Babu Lal and recorded his statement under Section 67 of the N.D.P.S. Act wherein he admitted that the seized opium was to be supplied to him. Thereafter, Babu Lal was also arrested and finally, a complaint came to be lodged against all the three accused persons in the court of the learned Special Judge, N.D.P.S. Act Cases, Chittorgarh. The learned trial court framed charges against the accused persons who pleaded innocence and (4 of 11) [ CRLA-163/2010] claimed trial. The prosecution examined as many as 11 witnesses in support of its case and exhibited 31 documents and 7 articles. Upon being questioned under Section 313 Cr.P.C., the accused denied the prosecution allegations and claimed that they had been falsely implicated. However, no evidence was led in defence. The learned trial court, upon conclusion of trial, proceeded to accept the evidence of recovery given by the prosecution witnesses and the confessional statements of the accused persons recorded under Section 67 of the N.D.P.S. Act wherefrom, it was divulged that the opium was procured by Prabhu Lal from Shambhu Lal @ Rs.10,000/- per kg. and was being transported to be supplied to the accused Babu Lal. Accordingly, the trial court convicted and sentenced the accused appellants as above vide the judgment dated 16.2.2010 which is under challenge in these appeals.
Learned counsel Sarva Shri R.K.Charan and M.L.Bishnoi representing the accused appellants vehemently contended that the conviction of the accused as recorded by the trial court is bad on facts as well as in law.
Arguing the appeal on behalf of the appellant Prabhu Lal, Shri M.L.Bishnoi raised a solitary contention that the prosecution failed to lead the requisite link evidence essential to prove that the samples taken out from the contraband opium reached the FSL in the selfsame secure condition. He urged that the Seizure Officer Shri Sushil Verma and the Investigating Officer Shri C.L.Verma have given contradictory evidence regarding forwarding of the specimen memo of seal alongwith the samples when the same (5 of 11) [ CRLA-163/2010] were transmitted to the chemical examiner. He urged that the specimen memo of seal was proved as Ex.P4 by Shri Sushil Verma and the same bears signatures of the accused. However, as per Shri Bishnoi, the document Ex.P4 was created subsequently. In this regard, he drew the Court's attention to the seizure memo (Ex.P3) wherein it is recorded that the seal which was used to seal the Muddamal and the samples etc was marked on the column of the seizure memo. However, the seizure memo actually does not bear any seal impression. Shri Bishnoi further urged that the test memo (Ex.P10) which was forwarded to the FSL was not prepared at the spot because it does not bear signatures of the accused. He contended that the FSL report cannot be read in evidence against the accused because the specimen memo of seal was never forwarded to the FSL for comparison. Regarding the accused appellant Babu Lal and Shambhu Lal, who were convicted solely on the basis of the statements of the accused recorded under Section 67 of the N.D.P.S. Act, Shri Bishnoi and Shri Charan vehemently urged that the trial court committed grave error in placing reliance and admitting in evidence Ex.P26 & Ex.P30, statements of Shambhu Lal and Babu Lal respectively, allegedly recorded by the officers of CBN under Section 67 of the NDPS Act. They urged that these statements were recorded after arresting the accused because the notice Ex.P13 given to the accused Babu Lal and the notice Ex.P25 given to the accused Shambhu Lal as well as the statement of Babu Lal Ex.P30 and that of Shambhulal Ex.P26 recorded under Section 67 of the N.D.P.S. Act do not bear (6 of 11) [ CRLA-163/2010] the time of recording. They thus urged that conviction of these two appellants which were based solely on their confessional statements recorded by Aditya Ranjan Inspector, CBN cannot be sustained because such statements are inadmissible in evidence as they were recorded after arresting the accused. In support of this contention, Shri Bishnoi relied upon the decision rendered by Hon'ble Punjab and Haryana High Court in the case of Dharam Pal Vs. Union Territory, Chandigarh reported in 2008 Cri.L.J. 1716. Learned defence counsel thus craved acceptance of all the appeals.
Per contra, Shri N.K.Rai learned Special Public Prosecutor representing the respondent Central Narcotics Bureau vehemently opposed the submissions advanced by the appellants' counsel. He urged that factum of recovery of contraband opium weighing 9.900 kgs. from the conscious possession of Prabhu Lal stands proved beyond all manner of doubt. He further urged that upon inquiry made from Prabhu Lal under Section 67 of the N.D.P.S. Act, he divulged that the opium had been procured from Shambhu Lal and that it was to be supplied to Babu Lal. During follow up action, both Shambhu Lal and Babu Lal were examined under Section 67 of the N.D.P.S. Act. They candidly admitted their involvement in the offence. As per Shri Rai, the statements of both these persons i.e. Shambhu Lal and Babu Lal were recorded under Section 67 of the Act before arresting them and hence, there is no legal hurdle in admitting the same in evidence and reading them as legally enforceable admissions particularly more (7 of 11) [ CRLA-163/2010] so as the accused never retracted the confessional statements after being produced in the Court. In support of his contention, Shri Rai relied upon the Hon'ble Supreme Court decision in the case of Ram Singh Vs. CBN reported in AIR 2011 SC 2490.
I have given my thoughtful consideration to the arguments advanced at the bar and have gone through the impugned judgment as well as the record.
So far as the accused appellant Prabhu Lal is concerned, there is ample evidence available on record against him in form of the seizure memo, the attending documents and the statement of the seizure officer. All these material pieces of evidence duly prove and corroborate the factum of recovery of opium weighing 9.900 kgs. while being plied by Prabhu Lal on the motorcycle. The sole argument advanced by Shri Bishnoi in Prabhu Lal's appeal as regarding the specimen memo of seal not having been forwarded to the chemical examiner alongwith the sample is not fit to be accepted. Though it is true that the seizure memo (Ex.P3) bears a remark at the end that the seal appended on the Muddamal was also affixed on the column of the panchnama which does not indicate the presence of such seal impression but the discrepancy is totally trivial and insignificant. The panchnama bears the signatures of the accused, the seizure officer and the panch witnesses on all three leaves and thus, there is no reason to doubt the genuineness thereof. The seizure officer prepared a separate specimen seal memo (Ex.P4) right at the time of the seizure and appended the official seal thereupon. Thereafter, test memo (8 of 11) [ CRLA-163/2010] (Ex.P10) was prepared and was forwarded to the FSL for comparison. The seal appended on the test memo and the specimen seal memo is one and the same. Appropriate oral and documentary link evidence was given by the prosecution to prove safe custody of the samples right from the date of seizure till they were received at the Govt. Chemical Laboratory. Thus, the argument advanced by Shri Bishnoi regarding the specimen memo of seal not having been forwarded to the Chemical Examiner alongwith the sample is not fit to be accepted. No other submission was made to assail conviction of the appellant Prabhu Lal and hence, his appeal fails.
Now coming to the appeals filed on behalf of the accused Babu Lal and Shambhu Lal. Admittedly, no contraband was recovered from possession of both these appellants and their conviction is based solely on the statements of the accused persons recorded under Section 67 of the N.D.P.S. Act. The veracity of these statements was challenged by Shri Bishnoi and Shri Charan contending that the same were recorded after the arrest of the accused and are thus hit by Article 20 of the Constitution of India and cannot be read in evidence A specific suggestion to this effect was given to Inspector Shri Aditya Ranjan P.W.11 during his cross-examination that no time was mentioned on the notices given to the accused Prabhu Lal (Ex.P13) and Shambhu Lal (Ex.P25) under Section 67 of the N.D.P.S. Act and the statements of both these persons recorded under Section 67 of the N.D.P.S. Act as well. The witness admitted this fact in his (9 of 11) [ CRLA-163/2010] cross-examination and offered an explanation that the time of arrest is mentioned on the arrest memo. It is relevant to mention here that the accused Shambhu Lal was arrested vide arrest memo (Ex.P17) whilst the accused Babu Lal was arrested vide arrest memo (Ex.P14). As per the prosecution case, the arrest memo was preceded by issuance of a written notice to these these persons under Section 67 of the N.D.P.S. Act whereafter their statements were recorded by Shri Aditya Ranjan. On the basis of such statements, the complicity of both these accused was established and hence they were arrested. Admittedly, both the notices (Ex.P13 and Ex.P25) and the statements (Ex.P26 & Ex.P30) do not bear any time of recording. Evidently, if any such notice in writing had been given to both these appellants before arresting them, then while conducting their personal search, the notices were bound to be found on their person. The description of articles recovered during personal search of the accused made before arresting them is mentioned in the arrest panchnamas but significantly, the articles recovered do not include the notice given to the accused under Section 67 of the N.D.P.S. Act. It is further relevant to mention here that the arrest memos do not disclose any reason as to why the accused were being arrested apart from a bare recital that the accused were apprised about the reasons of their arrest and then the arrest memos were prepared. Thus, the argument advanced by learned counsel Shri Charan and Shri Bishnoi that the statements of these two accused appellants i.e. Shambhu Lal and Babu Lal which were treated by the trial court to (10 of 11) [ CRLA-163/2010] be incriminating confessional statements admissible under Section 67 of the N.D.P.S. Act were recorded after their arrest is indeed forceful. There was no reason as to why the Investigating Officer Aditya Ranjan did not append the time of serving the notice on the accused and time of recording their statements under Section 67 of the Act on the respective documents. The non-discovery of the notice under Section 67 of the Act on the person of the accused when they were searched before arresting them makes it clear that the proceedings under Section 67 of the NDPS Act were undertaken after the accused had been arrested. This Court is of the firm opinion that as statements of these two accused persons were recorded under Section 67 of the N.D.P.S. Act after they had been arrested, the same cannot be read in evidence because they are hit by the embargo contained in Section 24 of the Evidence Act and Article 20 of the Constitution of India. The Supreme Court Judgment cited by Special Public Prosecutor Shri Rai has no application to the case at hand as it is totally distinguishable on facts. Since no other evidence apart from the confessional statements of both the accused is available on record so as to connect them with the crime and as the statements have been held to be inadmissible in evidence, there is no option but to discard the same and acquit the appellants Babu Lal and appellant Shambhu Lal from the charge under Section 8/29 of the N.D.P.S. Act.
As an upshot of above discussion, the appeal preferred on behalf of the appellant Prabhu Lal fails and is hereby dismissed as (11 of 11) [ CRLA-163/2010] being devoid of merit. The appeals preferred on behalf of the appellants Babu Lal and Shambhu Lal are hereby allowed. The judgment dated 16.2.2010 passed by the learned Special Judge, N.D.P.S. Act Cases, Chittorgarh is quashed and set aside to the extent of the appellants Babu Lal and Shambhu Lal. They are acquitted of the charge under Section 8/29 of the N.D.P.S. Act. The appellant Babu Lal is on bail. His bail bonds are discharged. The accused Prabhu Lal is also on bail. His bail bonds are cancelled. He shall be taken back into custody forthwith to serve out the sentences. The appellant Shambhu Lal is in custody. He shall be released forthwith if not wanted in any other case.
Record be returned to the trial court forthwith.
(SANDEEP MEHTA)J. /tarun goyal/