Roshan Singh vs State Of Rajasthan Through Pp on 9 June, 2017

[Cites 8, Cited by 1]

Rajasthan High Court - Jaipur

Roshan Singh vs State Of Rajasthan Through Pp on 9 June, 2017

1. Appellants Taufiq Ali @ Naresh, Roshan Singh, Sandeep Singh @ Dharmendra Singh and Joginder @ Jasvinder Singh have preferred separate appeals aggrieved by judgment and order dated 24.06.2016 passed by Special Judge, NDPS Cases, Jaipur Metropolitan in Sessions Case No.30/2011 (CIS No.0000008/2014) whereby all accused-appellants have been convicted under Section 8/15 of the NDPS Act and sentence ten years of rigorous imprisonment and fine of Rs.one lac has been imposed on each of them. On non payment of fine, the appellants have been directed to undergo additional one year rigorous imprisonment. Accused-appellants Sandeep Singh @ Dharmendra Singh, Joginder @ Jasvinder Singh and Taufiq Ali @ Naresh each has also been convicted under Sections 471 and 474 IPC and sentence for two years and fine of Rs.2,000/- has been imposed for each of the offences under the Indian Penal Code. On non payment of fine, the appellants have been directed to undergo additional two months simple imprisonment.

2. State has also preferred Criminal Appeal aggrieved by the judgment and order and only prayer made in the appeal is that the sentence imposed be enhanced.

3. S.B.Criminal Misc.Petition No.945/2017 has been preferred by Taufiq Ali @ Naresh aggrieved by order dated 24.1.2017 passed by Special Judge, NDPS Act Cases, Jaipur whereby the Court below has directed that vehicle Fortuner Car bearing registration No.DL-1T-AD 3976 be confiscated and auctioned.

(4 of 23) [ CRLA-715/]

4. Factual matrix of the case are that on 16.6.2011 SOG received secret information at 7.30 that Gangster-Anand Pal Singh is coming from Bharatpur to Jaipur. A team consisting of C.I.-Sayar Singh, C.I.-Kailash Choudhary, Sub-Inspector-Phool Chand, S.I.-Sunil Gupta, S.I.-Jai Singh, Head Constable-Vinod Kumar and Constables- Nathulal, Dodi Ram, Narendra and Sompal along with driver-Krishna Kumar and Amar Singh was constituted. Barricading was done at 7.50 a.m. at a distance of 7 Kms from SOG Police Station on the route in between Jagatpura and Jaipur Agra National Highway near RSEB Office.

5. As per the prosecution version at 11.35 a.m. Fortuner Car bearing registration No.DL-1T-AD 3976 came from Agra side. On seeing the police party the driver-Roshan Singh signaled to a Mini Truck bearing registration No. PB-29-H-9056 which was following the Fortuner Car bearing registration No.DL-1T-AD 3976 to return back. Mini Truck bearing registration No. PB-29-H-9056 was stopped, vehicle Fortuner Car bearing registration No.DL-1T-AD 3976 was being driven by Roshan Singh, the Mini Truck bearing registration No. PB-29-H- 9056 was being driven by Sandeep Singh @ Dharmendra Singh, Joginder @ Jasvinder Singh and Taufiq Ali @ Naresh were sitting in the Mini Truck bearing registration No. PB-29-H-9056. It is alleged that 99 bags of poppy husk were seized from the Mini Truck bearing registration No. PB-29-H-9056 and one bag was seized from the Fortuner Car bearing registration No.DL-1T-AD 3976. Out of 100 bags, (5 of 23) [ CRLA-715/] two bags were containing 20 Kg. each of Poppy Straw and remaining 98 bags were containing 40 Kg each of poppy husk. 500 Gms. of material was drawn from each bag, same was mixed and sample and control sample were drawn. The team returned at 7.20 p.m. and lodged FIR.

6. Police after investigation submitted charge-sheet against the accused-appellants. The trial Court framed charges against the appellants. As many as 34 witnesses were examined on behalf of the prosecution and Ex.P-1 to P-316 were exhibited. In defence Ex.D1 to D18 were exhibited. Ex.C-1 to C-11 call details were exhibited by the Court. DW-1 to DW-3 were produced as defence witnesses by the accused-appellants. The Court below after hearing the arguments convicted the appellants as hereinabove mentioned.

7. It is contended by the counsel for the appellants that the entire recovery and proceedings are fabricated. To buttress this argument, counsel for the appellants has argued that there are five vehicles which are involved in the entire incident.

8. Vehicle-Fortuner Car bearing registration No.DL-1T-AD 3976 which belongs to Taufiq Ali @ Naresh never crossed the toll- naka and as such this vehicle was not coming from Agra side, which fact according to the counsel for the appellants, is established from Ex.D12-Report of the toll-naka.

9. Vehicle Swift Dzire bearing registration No.RJ-32-CA-1222 was being used by Sayar Singh C.I. and he has admitted that the car (6 of 23) [ CRLA-715/] belonged to his friend and he used it. My attention was drawn to Ex.D- 1 to Ex.D-9 wherein this vehicle is shown parked at the residence of Sayar Singh SHO Reengus . It is contended that as per Ex. D-12 this vehicle came from Agra side towards Jaipur at 8.43 a.m. No toll fare was paid for the vehicle on the ground that it was on police duty.

10. Vehicle Mini Truck bearing registration No. PB-29-H-9056 as per Ex.D-12 passed the toll naka at 8.40 a.m. and this Mini Truck bearing registration No. PB-29-H-9056 was coming from Agra toward Jaipur. No toll fare was paid for this Mini Truck bearing registration No. PB-20-H-9056 on the ground that it was on police duty.

11. Vehicle Bolero bearing registration No.RJ-14-UB-5330 as per log book was with Kailash Chaudhary-CI it crossed the toll-naka at 9.15 a.m. and went from Jaipur to Mahua. No toll fare was paid for this vehicle as it was on police duty.

12. Vehicle Tavera bearing registration No. RJ-14-UB-9384 was with Sayar Singh-CI.

13. It is contended by the counsel for the appellants that the Mini Truck bearing registration No. PB-29-H-9056 from which the contraband is alleged to have been recovered was being escorted by the police and crossed the toll-naka at the same time when C.I.Sayar Singh crossed the toll in Swift Dzire bearing registration No.RJ-32-CA- 1222. The incident made up by the prosecution is thus entirely fake and fabricated. In support of the above argument, counsel for the appellants has drawn my attention to Ex.D-12 report of the toll-naka.

(7 of 23) [ CRLA-715/]

14. My attention has been drawn towards the call details of few of the officers, who were members of the Special Team. As per Ex.C-5-Sunil Gupta's mobile location is at Jhalana Office at 12.26 p.m. on 16.6.2011. Jai Singh's mobile location as per Ex.C-6 was at Dausa at 8.30 a.m. Similarly, Constable Ramswaroop's location was at Dausa between 7.00 a.m. to 2.30 p.m. as per Ex.C-8 and Constable Santosh was at Bassi at 10.00 a.m. as per Ex.C-9. Constable Nathulal was at Bassi as per Ex.C-10 and Krishna Kumar driver of vehicle Tavera bearing registration No.RJ-14-UB-9384 was at Dausa from 12.30 to 15.57 p.m. as per Ex.C-11. It is thus contended that the members of the Special Team were not at the spot as indicated in the FIR.

15. It is contended that as per call details of Taufiq Ali @ Naresh owner of Fortuter, Taufiq was at Jaipur at the time when the alleged search and seizure is said to have taken place.

16. My attention was drawn to Ex.P-72, Ex.P-73 and Ex.P-76 documents produced by the prosecution wherein Taufiq Ali @ Naresh is shown as talking to Sandeep Singh @ Dharmendra Singh from 9.43 a.m. to 10.30 a.m. As per counsel for the appellants if Taufiq Ali @ Naresh was talking to Sandeep Singh @ Dharmendra Singh from Jaipur in the morning, there is no possibility of his being in the Mini Truck bearing registration No. PB-29-H-9056 coming from Agra and if Sandeep Singh @ Dharmendra Singh and Taufiq Ali @ Naresh both were in the Mini Truck bearing registration No. PB-29-H-9056, there is no reason why they would talk on a mobile.

(8 of 23) [ CRLA-715/]

17. It is contended by the counsel for the appellants that to expose the SOG appellants demanded production of the call details of the members of the special team which application was allowed by the Court below. The appeal preferred by the State before the High Court was rejected and the leave to appeal preferred to Supreme Court resulted in same fate. It is contended that the SOG purposely did not produce the relevant call details tempered with it and produced edited record.

18. It is contended that as per log book of the police vehicles, police vehicle Bolero bearing registration No.RJ-14-UB-5330 covered a distance of 112 Kms. The distance from SOG Police Station to the place where the barricading was done was only 7 Kms and as per the statements of the witnesses if this vehicle once returned to the SOG Police Station then the maximum distance which was covered was only 28 Kms. With regard to vehicle Tavera bearing registration No.RJ-14- UB-9384, it is contended that this vehicle remained at the barricading point and as such the maximum distance that it could have covered was 14 Kms. As per log book Ex.D2 vehicle Bolero bearing registration No.RJ-14-UB-5330 was with Shri Kailash Choudhary-C.I. from 7.30 a.m. to 12.30 p.m. and covered a distance of 112 Kms. Vehicle Tavera bearing registration No.RJ-14-UB-9384 was with Sayar Singh-C.I. from 7.30 a.m. till 7.30 p.m. on 16.6.2011 and covered a distance of 74 Kms.

(9 of 23) [ CRLA-715/]

19. It is also pointed out by the counsel for the appellants that as per the Malkhana Register the contraband was checked and kept in Malkhana at 5.50 p.m. by I.O. Dan Chand Sharma whereas as per the case of the prosecution the FIR itself was lodged at 7.40 p.m., and after receipt of information IO was appointed.

20. It is also contended that the seizure was not in accordance with NDPS Act. Samples were not drawn from each bag, which is evident from the statement of PW-29 Shakti Singh Magistrate, who has admitted that some of the bags containing contraband were machine stitched. Attention in this regard has been drawn towards Ex.P-101, 107, 113, 123, 133, 137, 141, 153, 161, 169, 175, 185, 197, 201, 205, 207 and 225.

21. Arguing miscellaneous petition, it is contended by counsel for the petitioner-Taufiq Ali that since this is a case of false implication, the order of the Court below vide which the Court has directed that the vehicle Fortuner Car bearing registration No.DL-1T-AD 3976 be confiscated and sold in auction be quashed and set aside.

22. Public Prosecutor has opposed the appeals and the miscellaneous petition. It is contended that commercial quantity of poppy husk has been recovered from the accused and the accused were apprehended from the spot. It is contended that there is no evidence to the effect that there was any enmity between the team constituted by the SOG and the accused-appellants. It is also contended that the Court below has dealt with the entire aspects of (10 of 23) [ CRLA-715/] the case and the contentions of the appellants and have passed a detailed judgment.

23. It is contended that the contraband in question was produced before the Magistrate, who complied with the provisions of Section 52-A of the Act. The samples sent to the FSL were found to be of poppy husk. It is also contended that Taufiq Ali is an offender dealing in Psychotropic substances and a case under NDPS Act is pending against him.

24. With regard to noting in the log book of the vehicles as to number of kilometers covered on that particular date, it is contended that the raiding party under the team constituted was waiting for Gangster-Anand Pal Singh and it might be possible that they were patrolling to and fro on Agra Road.

25. I have considered the contentions.

26. To decide the present appeals this Court is required to see whether the prosecution version is true and conviction is justified.

27. The FIR begins with a note that an information was received from an informant at 7.30 a.m. about movement of Gangster- Anand Pal Singh in a luxury vehicle from Bharatpur towards Jagatpura, Jaipur. As per PW-32 Sayar Singh on 16.6.2011 when he was posted as C.I., SOG he received an information at 7.30 a.m. from SHO, SOG Police Station that wanted-Gangster Anand Pal Singh is coming from Bharatpur towards Jagatpura, Jaipur. SHO, SOG Girdhari Daka has been examined as PW-10. He has not stated anything about receipt (11 of 23) [ CRLA-715/] of information and about conveying of information to Sayar Singh. PW- 34 Kailash Chaudhary has stated that on 16.6.2011 at 7.30 a.m. Sayar Singh received an information that Anand Pal Singh, who has a prize of one lac, is coming in a luxury vehicle from Bharatpur towards Jaipur and that Sayar Singh informed him about the information. The information noted down in the Rojnamcha was exhibited by PW-32 Sayar Singh, Rojnamcha Ex.P-135-A merely mentions that an information has been received from a Mukhbir about movement of Anand Pal Singh from Bharatpur to Jaipur, as to who received the information and who recorded it the Rojnamcha is silent. No one has appeared before the Court to prove as to who has written down this information and who has received this information. As per Sayar Singh this information was received by SHO but SHO has not stated before the Court that he received the information. As per Kailash Chaudhary the information was received from Mukhbir by Sayar Singh, but Sayar Singh does not say so, PW-10 SHO, SOG Police Station in his cross- examination has admitted that alongwith the FIR he was not given the report of the Mukhbir, hence, the receipt of information at 7.30 a.m. about movement of Anand Pal Singh itself is under a shadow of doubt.

28. The second fact mentioned in the FIR and asserted by prosecution witnesses is that the team consisting of C.I.-Sayar Singh, C.I.-Kailash Choudhary, Sub-Inspector-Phool Chand, S.I.-Sunil Gupta, S.I.-Jai Singh, Head Constable-Vinod Kumar and Constables-Nathulal, Dodi Ram, Narendra and Sompal started from the SOG Police Station (12 of 23) [ CRLA-715/] at 7.30 a.m. in two vehicles and reached barricading spot near RSEB Office at 7.50 a.m. It is pertinent to note that the accused-appellants in this case approached the trial Court and pleaded that the call details of the officers of the Special Team constituted be summoned from the service provider so as to establish that the proceedings were fake. Application filed in this respect on behalf of the accused was allowed by the trial Court. State, instead of bringing the facts before the Court, preferred a revision petition before the High Court which was rejected. Leave to appeal preferred by the State was also rejected by the Apex Court. Thereafter edited call details of the officers were produced and were exhibited by the Court as Ex.C-1 to Ex.C-11. Call details of the members of the team do not establish that they started from the SOG Police Station towards barricading spot. From perusal of the call details it is apparent that the same has been manipulated and call details of Sayar Singh, who is the person who has lodged the FIR has been given only from 9.00 p.m. to 9.45 p.m.on 16.6.2011. His call details from morning till evening has purposely been retained by the prosecution. Similarly, call details of Phool Chand-S.I. has also been given from 8.50 p.m. till 9.15 p.m. for 16.6.2011 and call details has purposely been edited by the prosecution. As regards other persons of the special team are concerned, Kailash Choudhary-C.I. as per mobile tower location Ex.C-2 was not in Jaipur for the entire day right from morning 9.35 a.m. till 7.57 p.m. and was at Dausa and Bassi Sunil Gupta-S.I. as per call details Ex.C-5 from 12.26 p.m. till 8.10 p.m. was at Malviya Nagar, Jaipur. Jai Singh-S.I. was at Dausa from 7.15 a.m. till (13 of 23) [ CRLA-715/] 8.29 a.m. and thereafter from 1.55 p.m. till 11.09 p.m. he was at Malviya Nagar, Sector 4, Jaipur and was at Gaurav Tower, Malviya Nagar from 5.17 p.m. till 5.28 p.m. as per call details Ex.C-6. Shailendra-Constable was at Ajmer from 4.50 p.m. in the evening till 5.08 p.m. as per call details Ex.C-7. Ramswaroop-Constable from 7.17 a.m. in the morning till 2.27 p.m. was at Dausa as per call details Ex.C-8. Santosh-Constable was at Malviya Marg, Jaipur at 8.25 a.m. then his movement is to Jawahar Nagar, Adarsh Nagar, Transport Nagar, Sethi Colony, Jaipur. Thereafter he went to Bassi, Benad, Chawandiya from 9.40 to 10.04 a.m. and returned to Malviya Nagar Industrial Area, Jaipur 11.40 a.m. and was there till late night 11.24 p.m. as per call details Ex.C-9, Nathulal-Constable from 8.34 a.m. till 10.28 a.m. was at Khatipura Road, C-Scheme, M.I.Road, Adarsh Nagar, Sethi Colony. From 3.07 p.m. till 4.35 p.m. he was at Bassi, as per call details Ex.C-10. Krishna Kumar-Constable-Driver of Tavera bearing registration No.RJ-14-UB-9384 from 12.32 p.m. till 3.57 p.m. was at Dausa as per call details Ex.C-11.. It is thus abundantly clear that the members of the special team did not start from the police station at 7.30 a.m. in the morning and were not present at the barricading spot as alleged in the FIR.

29. The next fact alleged in the FIR is regarding a vehicle- Fortuner Car bearing registration No.DL-1T-AD 3976 coming from Agra towards Jaipur and of a Mini Truck bearing registration No. PB-29-H- 9056 following it at 11.35 a.m.. The Mini Truck bearing registration No. (14 of 23) [ CRLA-715/] PB-29-H-9056 in question passed the toll-naka at 8.40 a.m. and was escorted by the police and was recorded in the toll-naka register as on police duty. The Fortuner Car Car bearing registration No.DL-1T-AD 3976 never crossed the toll naka from Mahua towards Jaipur. Ex.D12 is the report of toll naka according to which the Mini Truck bearing registration No. PB-29-H-9056 crossed the Rajadhok toll naka near Bassi at 8.40 a.m. and was on police duty and, therefore, no toll fare was paid. A car Swift Dzire bearing registration No.RJ-32-CA-1222 Ex.D-2 also crossed the same toll naka at 8.43 a.m. it was also on police duty. This vehicle Swift Dzire bearing registration No.RJ-32-CA- 1222 was with Sayar Singh C.I. He has admitted in his evidence that the car belongs to his friend and he was using it. From Ex.D-8 and Ex.D-9 it is apparent that this vehicle was parked at the residence of Sayar Singh. These two vehicles crossed the toll naka and were coming from Mahua towards Jaipur. Vehicle Fortuner Car bearing registration No.DL-1T-AD 3976 did not cross the toll naka on 16.6.2011. The Mini Truck bearing registration No. PB-29-H-9056 was being escorted by the police in a private vehicle Swift Dzire bearing registration No.RJ-32-CA-1222 and no toll fare was paid for this vehicle also on the ground that it was on police duty. If the vehicle Mini Truck bearing registration No. PB-29-H-9056 was being escorted by the police in a private vehicle and no toll fare was paid for the Mini Truck bearing registration No. PB-29-H-9056 on the ground that it was on police duty. It is apparent that fake barricading has been done to implant the accused-appellants. Fortuner Car bearing registration (15 of 23) [ CRLA-715/] No.DL-1T-AD 3976 in question belongs to Taufiq Ali @ Naresh as per the call details which have been relied upon by the prosecution Ex.P- 73 and Ex.P-76 Taufiq Ali @ Naresh was at Jaipur from 9.43 a.m. to 10.30 a.m.

30. The other fact asserted by the prosecution in the FIR as well as in the evidence is that Roshan Singh was driving the Fortuner Car bearing registration No.DL-1T-AD 3976, Mini Truck bearing registration No. PB-29-H-9056 was being driven by Sandeep Singh alias Dharmendra Singh and Taufiq Ali alias Naresh and Joginder alias Jasvinder Singh were sitting in the Mini Truck bearing registration No. PB-29-H-9056 at 11.35 a.m. when the vehicles were stopped. PW25- Manish Kumar Sharma has stated in his examination-in-chief that Mobile No.9779628385 recovered from Sandeep Singh @ Dharmendra Singh was at location Jain Temple, Chulgiri, Jaipur at 10.46 a.m. on 16.6.2011. Mobiles No.9779714179 and Mobile No.9928399283 were recovered from Taufiq Ali @ Naresh. As per call location at 10.39 the location was Seedling College behind RTO Office, Jagatpura, Jaipur. If as per Sandeep Singh's call details his location was near Jain Temple, Chulgiri, Jaipur, it is impossible for him to be in the Mini Truck bearing registration No. PB-29-H-9056 when the Mini Truck bearing registration No. PB-29-H-9056 is shown as coming from Agra towards Jaipur. Similarly, if Taufiq Ali's location was near RTO Office Jaipur at 10.39 a.m. it is not possible for him to be in the Mini Truck bearing registration No. PB-29-H-9056 which was coming from Agra to Jaipur (16 of 23) [ CRLA-715/] further as per the call details of Taufiq Ali, he was at Jaipur from 9.43 a.m. to 10.30 a.m. His being in the Mini Truck bearing registration No. PB-29-H-9056 coming from Agra to Jaipur is, therefore, not possible. Since the Mini Truck bearing registration No. PB-29-H-9056 in question did not pay the toll fare on account of being on police duty and since the same was escorted by Swift Dzire bearing registration No.RJ-32- CA-1222 which according to Sayar Singh was being used by him and which crossed the toll naka at the same time and no toll fare was paid for Swift Dzire bearing registration No.RJ-32-CA-1222, it is apparent that the Mini Truck bearing registration No. PB-29-H-9056 was being escorted by the police and was coming in police custody towards Jaipur. Since the call location of Taufiq Ali and Sandeep Singh @ Dharmendra Singh at around 10.40 a.m. is near Jain Temple, Chulgiri, Jaipur the case of the prosecution that they were coming in the Mini Truck bearing registration No. PB-29-H-9056 from Agra towards Jaipur at 11.35 a.m. is at the face of it false. Sandeep Singh was driving the Mini Truck bearing registration No. PB-29-H-9056 at 11.35 a.m. is falsified from Ex.P-72. Call details of Sandeep Singh @ Dharmendra Singh at 9.56 a.m. wherein he made a call to Taufiq and from 10.21 a.m. to 10.46 he made calls to Taufiq Ali and at that time his location is at Jain Temple, Chulgiri, Jaipur. The call location of Taufiq Ali at the relevant time when he talked to Sandeep Singh @ Dharmendra Singh as per Ex.P-73 was at Jaipur. Thus, Sandeep Singh neither came from Agra towards Jaipur at 11.35 a.m. on 16.6.2011 nor was Taufiq Ali with him in the Mini Truck bearing registration No. PB-29-H-9056.

(17 of 23) [ CRLA-715/] Since the location of Sandeep Singh at 10.21 a.m. is Jain Temple, Chulgiri, Jaipur the defence of Taufiq Ali that he was called by the police by asking Sandeep Singh to make a call to him appears to be correct. Presence of Roshan Singh in the Fortuner Car bearing registration No.DL-1T-AD 3976 at 11.35 a.m. is also falsified from the very fact that Roshan Singh was driving the Fortuner Car bearing registration No.DL-1T-AD 3976 and this vehicle did not come from Rajadhok toll naka towards Jagatpura, Jaipur. The call details of the members of the team as detailed out in the preceding para also point out that members of the team were not present at the barricading spot at 11.35 a.m. and were not there from 7.50 a.m. till 7.20 p.m.

31. The other fact borne out from the FIR and evidence is with regard to the movement of the special team in Bolero bearing registration No.RJ-14-UB-5330 and Tavera bearing registration No.RJ- 14-UB-9384, as per the prosecution in the Rojnamcha Ex.P 24-A the exit from Police Station SOG is shown at 7.30 a.m. and the inward entry is at 7.40 p.m. PW-32 Sayar Singh in his cross-examination has stated that he reached the site at 7.50 a.m. and left for the police station at 6-6.30 p.m. With regard to the two vehicles in which the police party went to the barricading spot this witness has admitted that Tavera bearing registration No.RJ-14-UB-9384 went from SOG Police Station to the site and then returned to the Police Station and there was no other movement of this vehicle. With relation to vehicle Bolero bearing registration No.RJ-14-UB-5330 this witness has stated (18 of 23) [ CRLA-715/] that it came in the morning from SOG Police Station to the site and then returned to Police Station at 12.10 p.m. to bring the weighing scale and investigation box and returned at site at 1.15 p.m. then it returned to the SOG Police Station in the evening. As per this witness there was no other movement of this vehicle. As per prosecution case Bolero bearing registration No.RJ-14-UB-5330 should have covered 28 Kms. As it once went to SOG Police Station to bring weighing equipments and investigation box and Tavera bearing registration No.RJ-14-UB-9384 should have covered 14 Kms. as its movement was only from SOG Police Station to barricading site and return to SOG Thana, but as per Ex.D-12 it is revealed that Bolero bearing registration No.RJ-14-UB-5330 crossed the Rajadhok toll naka at 9.15 a.m. and went from Jaipur towards Mahua. No toll fare was paid for this vehicle as it was on police duty and it is for this reason that the log book shows the running of vehicle as 112 kms. Which facts has been concealed by the witnesses before the Court. As to how Tavera bearing registration No.RJ-14-UB-9384 covered 78 Kms is also not explained.

32. The other fact asserted in the FIR is regarding drawing of material from each bag. This fact stands disproved by the statement of Shakti Singh, Magistrate PW-29 who has in his cross-examination admitted that Ex.P-101, 107, 113, 123, 137, 133, 141, 153, 161, 169, 175, 185, 197, 201, 205, 207 and 225 were stitched by machines which goes to show that the machine stitching was not opened to (19 of 23) [ CRLA-715/] draw sample from these bags. Thus, the contention that material was drawn from each bag is also a false fact asserted in the FIR.

33. The other fact for which evidence adduced is with regard to the recovery of 100 bags of poppy husk, 99 bags from the Mini Truck bearing registration No. PB-29-H-9056 and one bag from vehicle-Fortuner Car bearing registration No.DL-1T-AD 3976. As discussed hereinabove, this Court has come to the conclusion that the Mini Truck bearing registration No. PB-29-H-9056 was being escorted by the police and the Fortuner Car bearing registration No.DL-1T-AD 3976 never came from the side of Agra towards Jaipur. The only possibility which remans is that one bag of poppy husk was planted in the Fortuner Car bearing registration No.DL-1T-AD 3976 to implicate the driver and owner of the vehicle.

34. The other fact asserted is that the investigation was handed over to Deputy Superintendent of Police-Dan Chand Sharma at 7.40 p.m. As Rojnamcha Ex.136-A the inward entry of the team with contraband and vehicles is at 7.40 p.m. From the call details of Dan Chand Sharma which has been exhibited as Ex.C-1 it is apparent that on 16.6.2011 at 7.00 p.m. Dan Chand Sharma was at Gaurav Tower, Jaipur. As per Ex.P-24A the seized material was deposited in the Malkhana on 16.6.2011 at 5.50 p.m. by Dan Chand Sharma. As per his call detail at 4.30 p.m. he was at Vidhyadhar Nagar, Jaipur. His depositing the samples in Malkhana at 5.50 p.m. and that too before he was appointed as Investigating Officer in this case is at the face of (20 of 23) [ CRLA-715/] it a false assertion. As from the FIR is it evident that he was appointed as an Investigating Officer at 7.40 p.m. The deposit of material at 5.50 p.m. in capacity of I.O. do not tally with the Rojnamcha Ex.A-316 A. Dan Chand Sharma who has been examined as PW-30 has admitted that the portion marked as C to D in Malkhana register Ex. P-24A is in his own handwriting and the time mentioned therein is correct. Thus, as per this witness the contraband and the samples were deposited in the Malkhana at 5.50 p.m. on 16.6.2011 and he checked the seals and the seals were intact.

35. From the discussion made hereinabove, it is abundantly clear that there is no iota of truth in the prosecution version as asserted in the FIR and the contents of FIR are a bundle of false facts sewn together to falsely implicate the appellants. The Court below has not endeavoured to minutely deal with the movement of the vehicle and the call details of the accused and the Special Team to ascertain the truth. It has also not considered the fact that Mini Truck bearing registration No. PB-29-H-9056 at 8.40 a.m. on 16.6.2016 was on police duty when it crossed the toll Naka and Fortuner Car bearing registration No.DL-1T-AD 3976 was not escorting it. In view of the above, the judgment of conviction and sentence order passed against the appellants cannot be sustained. Even otherwise the recovery of contraband and taking of sample was not in accordance with law. Sample was not drawn from each of the bag and was not separately (21 of 23) [ CRLA-715/] sent to the FSL for examination and on that ground alone the accused were entitled to acquittal.

36. The appeals preferred by the appellants deserve to be and are accordingly allowed. The judgment of conviction and order of sentence 24.06.2016 in Sessions Case No. 30/2011 (C.I.S. No.0000008/2014) passed by the Special Judge, (NDPS Act Cases), Jaipur Metropolitan is quashed and set aside. The appellants-Taufiq Ali @ Naresh son of Shri Salim, Roshan Singh son of Shri Ummed Singh, Sandeep Singh @ Dharmendra Singh son of Shri Avtar Singh and Joginder @ Jasvinder Singh son of Shri Sadik Singh are acquitted of the charges levelled against them. Appellants are directed to furnish personal bond and surety of Rs.25,000/- before the trial Court within two months to the effect that they will appear before the Supreme Court as and when Supreme Court issues notices in respect of any appeal or petition filed against this judgment. On furnishing of the requisite bail bond and surety, the appellants be released forthwith if not wanted in any other case. Record of the trial Court be returned forthwith.

37. Since this Court has come to the conclusion that the FIR and the entire proceedings were fabricated, the State-Appeal for enhancement of sentence is dismissed.

38. As far as S.B. Criminal Misc.Petition No.945/2017 is concerned, the order vide which the Court below has confiscated the vehicle Fortuner Car bearing registration No.DL-1T-AD 3976 and (22 of 23) [ CRLA-715/] directed for auction of the vehicle is also quashed and set aside. The seized vehicle-Fortuner Car bearing registration No.DL-1T-AD 3976 be returned to its owner.

39. After having come to the conclusion that false evidence has been fabricated with intent to procure conviction of the appellants and a false charge has been levelled with intend to cause injury to the appellants. This Court is of the opinion that it is expedient in the interest of justice that an inquiry should be made with regard to commission of offence referred to in sub-clause (b) of clause (1) of Section 195 of Cr.P.C. which appears to this Court to have been committed in relation to the proceedings before the Special Judge, NDPS Cases, Jaipur Metropolitan. This Court is however of the view that as the documents and the evidence produced point out towards false implication, no preliminary inquiry is required to be conducted by this Court. This Court therefore record the finding that Sayar Singh-CI, Kailash Chaudhary-CI, Phool Chand-SI, Sunil Gupta-SI, Vinod Kumar- Head Constable, Shailendra Kumar-Constable, Ramswaroop-Constable, Santosh-Constable, Nathu Lal-Constable Dudi Ram-Constable have given false evidence with intend to procure conviction and Sayar Singh has instituted a false case against the appellant.

40. I, therefore, direct the Deputy Registrar (Judicial) to make a complaint in writing against the aforesaid officers and send the same to the Special Judge, NDPS Act Cases, Jaipur Metropolitan. The complaint should be signed by the Deputy Registrar (Judicial) and (23 of 23) [ CRLA-715/] copy of this judgment along with the record of the case be sent forthwith to the Special Judge, NDPS Act Cases, Jaipur Metropolitan to proceed in accordance with law.

41. Copy of this judgment be placed in each of the files.

(PANKAJ BHANDARI), J.

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Rajasthan High Court - Jaipur