Rajasthan High Court - Jodhpur
Jaipal Singh vs State on 22 August, 2016
Author: Pankaj Bhandari
Bench: Pankaj Bhandari
1 of 133
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
(1) Jaipal Singh Vs. State
S.B. CRIMINAL APPEAL NO.437/2015
(2) Bhagwana Ram Vs. State
S.B. CRIMINAL APPEAL NO. 915/2014
(3) Shambhoo Lal & Anr. Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO.7/2016
(4) Prakash Vs. State
S.B.CRIMINAL APPEAL NO.1017/2015
(5) Tila Ram & Anr.Vs. State
S.B. CRIMINAL APPEAL NO.121/2016
(6) Kuldeep & Anr. Vs. State
(S.B. CRIMINAL APPEAL NO.638/2008)
(7) Deva Ram Vs. State
S.B. CRIMINAL APPEAL NO.47/2016
(8) Mahendra Vs. State
S.B. CRIMINAL APPEAL NO.545/2014
(9) Mahaveer Lal & Anr. Vs. State
S.B. CRIMINAL APPEAL NO.466/2014
(10) Hameed Khan & Anr. Vs. State
S.B. CRIMINAL APPEAL NO.65/2015
(11) Kulwant Singh & Anr. Vs. State
S.B. CRIMINAL APPEAL NO.702/2015
(12) Ganpatlal & Anr. Vs. State
S.B. CRIMINAL APPEAL NO.827/2015
(13) Poona Ram Vs. State
S.B. CRIMINAL APPEAL NO.494/2014
(14) Ratan Lal Vs. State
S.B. CRIMINAL APPEAL NO.570/2014
(15) Prithvi Raj Vs. State
S.B. CRIMINAL APPEAL NO.571/2014
2 of 133
(16) Gopal Vs. State
S.B. CRIMINAL APPEAL NO.1240/2015
(17) Pusha Ram Vs. State
S.B. CRIMINAL APPEAL NO.928/2015
(18) Sodi Singh Vs. State
S.B. CRIMINAL APPEAL NO. 135/2015
(19) Sukhdev Singh Vs. State
S.B. CRIMINAL APPEAL NO. 367/2015
(20) Smt. Geeta Devi Vs. State
S.B. CRIMINAL APPEAL NO. 937/2013
(21) Ratan Lal & Anr. Vs. State
S.B. CRIMINAL APPEAL NO. 916/2014
(22) Panna Lal & Anr. Vs. State
S.B. CRIMINAL APPEAL NO. 36/2015
(23) Paras Ram @ Pappu Vs.The State of Rajasthan
S.B. CRIMINAL APPEAL NO.940/2014
(24) Lehru Lal Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO.169/2014
(25) Varda Vs. State of Rajasthan
S.B. CRIMINAL APPEAL NO.259/2014
(26) Ajiz Khan Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO.80/2014
(27) Om Prakash Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO.81/2014
(28) Jaswant Singh Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO. 695/2015
(29) Bhanwar Lal Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO.422/2016
(30) Thana Ram Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO.1107/2015
(31) Ram lal @ Ramu Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO.193/2016
(32) Suresh Vs. The State of Rajasthan
S.B. CRIMINAL APPEAL NO.568/2009
3 of 133
(33) Gaina Ram Vs. State of Rajasthan
S.B. CRIMINAL APPEAL NO.545/2010
(34) Ramniwas Vs. State
S.B. CRIMINAL APPEAL NO.15/2014
(35) Bhag Chand Vs. Stated
S.B. Criminal Appeal No. 828/2015
Date of judgment : 22.8.2016
HON'BLE MR. PANKAJ BHANDARI, J.
Mr.Sunil Bishnoi )
Mr.M.L.Bishnoi )
Mr.B Ray Bishnoi )
Mr.K.R.Bhati )
Mr.R.K.Charan )
Mr.R.S.Gill )
Mr.Birbal Bishnoi )
Mr.J.S.Choudhary assisted by )
Mr.Pradeep Choudhary )
Mr.D.S.Udawat )
Mr.B.S.Rathore )
Mr. Tarun Dhaka ) for the Appellants.
Mr. Rajendra Charan )
Mr.B.R. Godara )
Mr.O.P.Rathi )
Mr.L.R.Upadyay )
Mr.M.R.Pareek )
Mr.R.K.Bohra ) Public Prosecutor for the State.
JUDGMENT
REPORTABLE
1. In Noor Aga Vs. State of Punjab AIR 2009 SC (Supp.) 852 the Hon'ble Apex Court while allowing the appeal made following observations:-
"Before, however, parting with this judgment, we would like to place emphasis on the necessity of disposal of such cases as quickly as possible. The High Courts should be well advised to device ways and means for stopping recurrence of such a case where a person undergoes entire sentence before he 4 of 133 gets an opportunity of hearing before this Court".
2. That was a case where muddamal/physical evidence as to recovery of bulk quantity of heroin was not produced in the court. Keeping in view the observations made by the Hon'ble Apex Court, the Registry was directed to call for the details of the cases from the Advocates and to list all cases where the `muddamal' (material object) was not produced in the Court and also the cases where the samples were not properly drawn or the seizure officer was not authorized, thirty five of such cases were listed before this Court.
3. Before going into the merits of each case, it would be appropriate to first deal with the various judgments cited by the learned counsel for the appellants and learned Public Prosecutor in these cases.
4. Counsel for the appellants have placed reliance on the judgment of Coordinate Bench of this Court in Aladdin & Anr. Vs. State of Rajasthan 2016 (1) Cr.L.R. (Raj.) 521 wherein the Hon'ble Rajasthan High Court placing reliance on Ashok @ Dangra Jaiswal Vs. State of M.P. AIR 2011 SC 1335 held that during the trial of the case under NDPS Act leading primary evidence by producing and exhibiting the mudammal and the 5 of 133 samples in the Court is essential to prove seizure. The only exception by which the prosecution can avoid this burden is by following the procedure prescribed under Section 52-A of the NDPS Act and by exhibiting the inventory, photographs and the representative samples prepared under the said provision during the trial.
5. Jitendra & Ors. Vs. State of Madhya Pradesh 2003- 2004 Cr. L. Reporter SC (Suppl.) 699 has also been cited before me wherein the Hon'ble Apex Court has held that it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of `charas' and `ganja' were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. Mere oral evidence of piece and production of `Panchnama' does not discharge the heavy burden which lies on the prosecution particularly when the offence is punishable with the stringent sentence under the NDPS Act.
6. Vijay Jain Vs. State of M.P. (2013) 14 SCC 527 has also been cited wherein the Court has held that non production of the brown-sugar before the Court and not offering any explanation for non production of the brown sugar alleged to have been 6 of 133 seized, the conviction cannot be sustained.
7. Union of India Vs. Bal Mukund & Ors. 2009 Cr. L. R. (SC) 590 has also been cited wherein the Court while dealing with the standing instructions No. 1/88 issued under the Act held that following the same was a requirement in law. Taking samples of 25 gms. each from five bags and then mixing them and sending them to laboratory was not considered in conformity with the standing instructions.
8. Ashok @ Dangra Jaiswal Vs. State of M.P. 2011 Cr.L.R. SC 363 has also been cited wherein the Court placing reliance on Jitendra Vs. State of M.P. (2004 ) SCC 10 562 has held that production of 'muddamaal' in Court is essential and if no explanation for its non production is coming forth, the accused is entitled to acquittal.
9. Netram Vs. State of Rajasthan 2014 (1) Cr.L.R. (Raj.) 163 has also been cited wherein separate samples were not drawn from two gunny bags. The Court held that since only one sample has been drawn at best the accused can be held guilty for possessing one gunny bag. The Court, therefore, in that case held that the contraband recovered from the accused appellant was not commercial quantity.
7 of 133
10. Bhagirath Ram Vs. State of Rajasthan 2014 (1) Cr.L.R. (Raj.) 117 was a case where there was recovery of 2652 kg. of poppy straw from 64 bags, 'muddamaal' was not produced in court. 64 samples weighing 1 kg. each was drawn form the 64 gunny bags. The samples gave positive test for the presence of chief constituents of opium. The Court held that the appellants could be held guilty for being in possession of 64 kg. of contraband poppy straw. The same being more than commercial quantity the conviction was upheld.
11. Thakara Ram & Anr. Vs. State of Rajasthan 2014 ( 1) Cr.L.R. (Raj) 134 was a case where there was recovery of 9 gunny bags, the total weighment of which was 158 kg. out of which two samples each weighing 500 gms. were prepared and sealed. The muddamaal produced in the Court was not having any identifying chits appended thereto. The Court held that negative presumption can safely be drawn against the prosecution. The Court held that the appellants at best can be held guilty for having been found to be in possession of 9 kg. of contraband.
12. Reliance has also been placed on Sahiram Vs. State of Rajasthan (SB Criminal Appeal No. 774/2015) decided on 8 of 133 07.4.2016 wherein also co-ordinate Bench of this Court has held that failure to exhibit mudammal in the self same condition, is fatal to the prosecution in a case involving the recovery of narcotic drugs and psychotropic substances. The Court in the facts of that case held that non exhibition of 'muddamaal' in the court leads to the irrefutable conclusion that the prosecution failed to lead primary evidence of seizure and thus, the entire evidence of the prosecution regarding the alleged recovery has to be discarded.
13. In Kalu Ram Vs. State of Rajasthan, S.B. Criminal Appeal No. 356/2015 decided on 17.3.2016, coordinate bench of of this court placing reliance on Noor Agha Vs. State of Punjab AIR 2009 SC (Suppl.) 852, Jitendra & Ors. Vs. State of Madhya Pradesh 2003 Vol.4 (Suppl.) Cr.L.R (SC) 699, Ashok @ Dangra Jaiswal Vs. State of Madhya Pradesh AIR 2011 SC Page 1335 and Vijay Jain Vs. State of Madhya Pradesh 2013 (14) SCC Page 527 held that non-exhibiting of Muddamal in the self same condition is fatal to the prosecution in a case involving recovery of Narcotics Drugs & Psychotropic Substances.
14. Hanwant Singh Vs. State, S.B. Criminal Appeal No. 707/2014 decided on 23.5.2016 by a coordinate bench of this Court has also been placed before me wherein the court has observed that collecting small quantity from each bag then mixing and then 9 of 133 preparing samples is not the right procedure. Officer is required to collect samples from each bag.
15. In State of Rajasthan Vs. Jagraj Singh Cr. Appeal No. 1233/2006 decided on 29.6.2016 was the case where the Hon'ble Apex Court held that if search took place after sunset and before sunrise the proviso to sub section 1 of Section 42 is attracted and if the officer has to carry out a search between sunset and sunrise, he must record the grounds of his belief. If there is total non compliance of this provision, the same affects the prosecution case but if there is a delay whether the same has been explained, or not, will be question of fact in each case. The Hon'ble Apex Court referred to State of Punjab vs. Baldev Singh 1999 (6) SCC 172 wherein it has been laid down that provisions of Section 42 and 50 are mandatory and their non compliance would render the investigation illegal. The Hon'ble Apex Court also referred to the Constitutional Bench judgment of the Hon'ble Apex Court in Karnail Singh Vs. State of Haryana, 2009 (8) SCC 539 wherein the constitutional Bench held that non compliance of Section 42 and Section 50 is impermissible.
16. In ROY V.D. Vs. State of Kerala 2000 AIR SCW 4005 the Apex Court held that entire trial stands vitiated, if search and seizure is made by an officer not empowered under Section 41 (2) of NDPS Act.
10 of 133
17. In 2009 (10) SCC 632 Om Prakash @ Baba Vs. State of Rajasthan, 1996 (9) SCC 462 Mohammed Alam Khan Vs. NCB the Court has held that where there is recovery from a house or flat owned and possessed by the accused in absence of evidence that flat or house was owned and possessed by the accused, the accused would be entitled to acquittal.
18. Per contra, learned Public Prosecutor has placed reliance on Sumit Tomar Vs. State of Punjab 2012 Cr.L.R. (SC) 1114 that was a case where two bags containing Poppy Husk were seized. The sample of the contraband was taken after mixing of the contraband found in two bags, the Court held that there was no irregularity committed in taking samples and the conviction was upheld.
19. Mewa Singh Vs. State of Rajasthan 2011 (2) Cr.L.R. (Raj.) 1194 has also been cited wherein 49 bags were seized, sample of 200 gms. each was taken from the bags. The drawn samples were mixed together and two samples were drawn. The Hon'ble High Court held that since the sample gave positive test for presence of opium, the conviction order was justified.
11 of 133
20. Notification No.1/88 issued by the Narcotics Control Bureau, New Delhi. (hereinafter referred to as Notification 1/88) deals with the number of samples to be drawn in each seizure case. Clause 1.7 of the said notification is reproduced hereunder for ready reference:-
"a) In the case of seizure of a single package/container one sample in duplicate is to be drawn. Normally it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container.
b) However, when the package/container seized together are of identical size and weight, bearing identical markings and the contents of each package give identical results on colour test by U.N.Kit, conclusively indicating that the packages are identical in all respect/the package container may be carefully bunched in lots of 10 packages/containers.
In case of seizure of Ganja and Hashish, the packages/containers may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample in duplicate may be drawn.
c)Where after making such lots, in the case of Hashsh and Ganja, less than 20 packages/containers remain, and in case of other drugs less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn.
d) If it is 5 or more in case of other drugs and substances and 20 or more in case of Ganja and Hashish, one more sample in duplicate may be drawn for such remainder package/containers.
e) While drawing one sample in duplicate from a particular lot, it must be ensured that representative drug in equal quantity is taken from each package/container of that lot and mixed together to make a composite whole form which the samples are 12 of 133 drawn for that lot.
21. Sub clause (b) to (e) is not applicable in any of the case as bags seized were not identical in size and weight bearing identical markings and colour test by U.N. kit was not conducted, they were not bunched in lots of 10 packages thus in all the cases that have come up before me Clause (a) of 1.7 would be applicable, according to which if a single package/container is seized then one sample in duplicate is to be drawn and if more than single package/container is seized one sample in duplicate from each package container should be drawn.
22. Though the language used in Sub-clause (a) of Clause 1.7 is advisory in nature, but as to what would be the consequence if there are more packages and samples of each package is not drawn. The Hon'ble Supreme Court in Sumit Tomar's case (supra) wherein two bags of contraband were recovered, held that merely because two bags have been mixed, it cannot be considered as causing prejudice to the appellant. Similar is the view of a Coordinate Bench of this Court reported in Mewa Singh (Supra) wherein also 200 gms. each of sample was taken from a lot of 49 bags. They were mixed and two samples each of 4.9 kgm. were prepared, sealed separately and samples were 13 of 133 sent to FSL for analysis. The Court held that mixing of the sample has not caused prejudice to the accused and the case cannot be thrown out merely because the samples have been mixed.
23. In both these cases one before the Hon'ble Supreme Court and one before the Coordinate Bench of this Court notification 1/88 was not considered.
24. In Union of India Vs. Balmukund & Ors. 2009 Cr.L.R. (SC) 590 which was a Bench consisting of three judges it was observed that the standing instructions No. 1/88 which has been issued under the Act lays down the procedure for taking samples, in that case before the Apex Court, there was nothing to show that adequate quantity from each bag has been taken, the court held that it was a requirement of law. The Hon'ble Apex Court in Tomar's case and co-ordinate Bench of this Court in Mewa Singh's case has not dealt with the earlier judgment and the earlier judgment delivered by three judges bench would hold ground.
25. With regards to non production of muddamaal in court or failure of prosecution in establishing that the contraband seized were the same which were produced in Court, the Apex Court in 14 of 133 Jitendra & Ors. Vs. State of M.P. (supra), Ashok @ Dangra Jaiswal Vs. State of M.P. (supra), Vijay Jain Vs. State of M.P. (supra) & Kalu Ram Vs. State of Rajasthan has categorically held that producing and exhibiting of 'mudamaal' in court is essential and in case of non-exhibition of 'mudamaal' the conviction cannot be sustained. Co-ordinate Bench of this Court in Alladin's case (supra) relying on judgments of Apex Court held that exhibiting of 'mudamaal' and the samples during trial of cases under NDPS Act is essential to prove the seizure.
26. From the ruling which has been cited before me by learned counsel for the parties, it is amply clear that the production of `muddamal' in self same condition is vital to the prosecution. Drawing of two samples from each bag separately is also requirement of law since the same is spelled out in notification No. 1/88 issued by the Narcotics Control Bureau. If recovery has been effected from a house or flat the ownership and exclusive possession of the accused has to be established. Compliance of Sec. 42 of the NDPS Act is mandatory, but explanation for delay in compliance is a question of fact. If samples have not been drawn in accordance with Notification No. 1/88 and the material has been mixed and then sample has been drawn and the report is positive the accused can be held guilty for being in possession of one bag of contraband.
15 of 133
27. In backdrop of the above this court would be dealing with facts of each appeal.
(1) S.B.CRIMINAL APPEAL NO. 437/2015 JAIPAL SINGH Vs. STATE OF RAJ.
28. The appellant Jaipal Singh has preferred this appeal aggrieved by the judgment and sentence dated 24.4.2015 vide which he has been convicted under Section 8/15 ( c) of the NDPS Act in Sessions Case No. 64/2008. The appellant has been sentenced to undergo imprisonment of 14 years and fine of Rs. 1,40,000/- and on non payment of fine to further undergo imprisonment of one year.
29. The factual matrix of the case are that on 04.6.2008, the appellant was travelling in a Maruti Van bearing registration No. RJ 09 TA 0157 which was being driven by Durga Shankar. On search of this vehicle, 07 bags containing 207 kg. of poppy husk was recovered. Small quantity from each bag was drawn and 2 kg. of material was taken out from these 7 bags and two samples of 1 kg. each were prepared.
30. The contention of learned counsel for the appellant is that two samples each were not drawn from the seven bags and a 16 of 133 representative sample was drawn which is in violation of Notification 01/88 issued by Narcotics Control Bureau. It is also argued before the Court that PW/24 Bhan Singh has produced five bags in the Court but none of the bag was having any seal chit. Out of the bags which were produced before the Court, four bags were of plastic and one bag was a gunny bag. It is argued by learned counsel that when the bags were recovered, they were seven in number and all were gunny bags. The bags produced before the Court were not having any seal chits and the seals were not intact thus it cannot be considered to be the same bags which were recovered at the time of seizure made on 04.6.2008. It is also argued that both the independent witnesses have turned hostile.
31. The relevant portion of the statement of PW/24 Bhan Singh is reproduced hereunder for ready reference:-
"इस पकरण म जप ककय गय ड ड चर क
ब र ज सखय म स थ फट ज न स उनम भर
ड ड चर क द स
! र प च ब र म भरकर आज ल य
गय ह& ।
न ट:- नय य लय कक क ब हर प च ब र म भर
हआ जजनक मह बध हआ ह& थ न प रस ल. द0 र
पस ककय गय जजन पर क ई स3ल च3ट नह. ह&
च र ब र पल जसटक क 0 एक ट ट क ब र ह& ज
17 of 133
आरट6 कल 7 स 11 ह& ।"
32. The contention of learned counsel for the State is that as per the FSL report, Ex. P/36, the extract of sample contained in the packet (marked `A') gave positive test for the presence of constituents of opium hence, the sample was found to be of `dried, crushed capsule of opium and poppy' from which juice has been extracted, thus it is argued that the appellant was found in possession of poppy husk and the conviction, therefore, was justified. With regard to non production of the bags before the trial court, the contention of learned counsel is that due to passage of time, the bags which were seized got decayed so they were replaced, and therefore, the production of five bags before the Court would not give any benefit to the appellant.
33. I have considered the rival contentions of the learned counsel for the parties. Non production of `mudamal' before the Court has been dealt with in the judgments referred above, it has been held that non production of 'muddamal' would be fatal to the prosecution. In the present case from the statement of PW/24 Bhan Singh, it is clear that the bags which were produced in the court were five in number whereas seven bags were seized, they were not having any seal chits, and four bags were plastic bags whereas at the time of seizure all the seven bags were gunny bags. The material thus produced before the Court could not be linked with the seizure as they were not 18 of 133 having any seal chits and were not in the same container/bags in which they were seized.
34. The case of the prosecution that small quantity was drawn from each bag for the purpose of drawing representative sample is clearly in violation of Notification 1/88.
35. If the contention of learned counsel for the State that the sample which was sent for FSL was intact and was found to contain constituents of opium is accepted, at the most as held in Netram's case (supra), it can be deduced that one bag was containing poppy- husk. Since the seizure is of 207 kg which was stored in seven bags at the most, the quantity contained in one bag would be approximately about 30 kg. The appellant thus at the most could be held guilty of carrying 30kg. of poppy-husk which is below commercial quantity.
36. The Court below has accepted the justification of PW/24 Bhan Singh that the bags were not having seal chit because they were shifted to five bags and produced in the Court.
37. To my mind, this finding of the learned trial court cannot be sustained. The `muddamal' is required to be produced in self-same condition because as soon as the challan is filed, the property seized becomes subject matter of the case and no alteration whatsoever can 19 of 133 be done by any person without permission of the Court. In Thakara Ram Vs. State of Rajasthan (Supra) it was observed that the moment the charge-sheet is filed, `muddamal' assumes the character of the case property and any alteration in its physical status or attribute is impermissible and any form of change with the seized contraband amounts to tempering with the property which was "custodia legis"
38. The learned trial court has not taken note of non production of `muddamal' in self same condition before the Court which has been held to be fatal by the Hon'ble Apex Court in judgment referred here-in-above. But since the samples have been found to be the judgment of the trial court, deserves to be modified accordingly.
39. The upshot of the above discussion is that the appellant is held guilty of being in possession of 30 kg of poppy husk the same being below commercial quantity, the instant appeal deserves to be allowed in part. Accordingly, the present appeal is partly allowed. The conviction of the appellants for the offence under Section 8/15 (
c) of the NDPS Act is altered to one under Section 8/15 (b ) of the NDPS Act. The appellants is sentenced to seven years' Rigorous Imprisonment with fine of Rs. 50,000. In default of payment of fine, the appellant shall undergo one year rigorous imprisonment.
20 of 133 (2) S.B. CRIMINAL APPEAL NO. 915/2014 BHAGWANA RAM Vs. STATE OF RAJ.
40. The appellant has preferred this appeal aggrieved by the order dated 15.12.2014 passed by learned Special Judge, NDPS Cases No.2, Chittorgarh Camp Nimbahera in Sessions Case No. 182/2014 whereby the Court has convicted the accused appellant under Section 8/15 of the NDPS Act and awarded sentence of 15 years RI and imposed a fine of Rs. 1,50,000/- and on non payment of fine the appellant was directed to further undergo imprisonment of one year R.I. and under Section 8/25 of NDPS Act, the Court has awarded sentence of 15 years' R.I. and a fine of Rs. 1,50,000/- and in default of payment of fine, the appellant has been directed to further undergo 1 years R.I., under Section 3/25 of Arms Act, the Court has awarded sentence of 3 years RI and a fine of Rs. 3,000/- and in default of payment of fine the appellant was directed to further undergo 3 months RI.
41. The factual matrix of the case are that on 8.6.2005, the appellant was driving a Mahendra pickup, bearing registration No. RJ 21 G 3403. On search of this vehicle, 13 bags containing 520 Kgs. of Poppy-Husk were recovered.
42. The main contention of learned counsel for the appellant is that out of 13 bags seized by the Police, 500gms. is said to have 21 of 133 been drawn from each bag i.e. 6.500 kgs. of poppy husk was drawn from 13 bags and two samples were prepared, one to be sent to FSL and other as control sample. It is argued that the samples were not drawn in accordance with the notification No. 1/88 issued by the Narcotics Control Bureau, New Delhi. It is also argued that the case is covered by the decision given by the Co-ordinate Bench in Netram's case (supra) and at the most, the appellant can be held guilty of being in possession of one bag weighing approximately 40 kg of poppy husk.
43. It has also been argued that muddamal was not produced in the Court. My attention has been drawn to the statement of Investigating Officer Bherulal, who has been examined as PW/14. The relevant portion whereof reads as under:-
"यह ब सह. ह& कक उन ब र पर चचट नह.
लग ए थ,उनक ससल भ3 नह. ककय थ , अजखद
कह कक क0ल कम क रदय थ। यह ब सह. ह&
कक उन ब र क उपर मलजजम न 0 म@ व0र न
क भ3 हस कर नह. कर ए थ। यह ब गल
ह& कक इससलए उन ब र क नय य लय म पश
नह. ककय ह कक 0 मर द0 र जप ह.नह.
ककय गय ह ।"
44. A note was also marked during the evidence of PW/12 which reads as under:-
22 of 133 न ट: पकरण म जप शद द नम!न जजनम समपल म क6 ए. 2 पर थ न कF ब स ससल चपड3 म लग3 हई हH, 0 म क6 ए. 1 पर एफएसल कF ससल लग3 हई हH, थ&ल. म क6 ड3 जजसक मह ध ग स बध हआ हH, आटIकल म क6 ई 0 स3 छ ट.
थ&सलयK म नय य लय म पश हए हH, एक बड3 थ&ल.
ज ब3च म स फट. ह कर ससल. हई हH, जजसम स
रख हआ पद थ6 नय य लय म भ3 बबखर गय हH।
0 पकरण म समबजनध र जनमच फरजन खMन
न. 1138 पसलस थ न ननमब हड न आज
नय य लय म पश ककय।
न ट: एक प थ6न पत म फ6 व0सशषS ल क
असभय जक थ न चधक र. ननमब हड न पश कर
नन0दन ककय कक जप शद ड ड चर! क ब र क
चह
! द0 र क टन स बबखर रह ह& 0र 6 स भ3ग रह
ह& ए0 0 हन क परहय स ह0 ननकल. हई हH, खल
सथ न म पड3 ह न कF चलन समभ0 नह. हH। इस
पर उभय पक क सन गय , ब द ग@र ऐ र ज
सरकक रख हए प थ6न पत क ररक ड6 पर सलय
गय ।"
45. Thus, it is contended that muddamal was not produced in the Court. Learned counsel has placed reliance on Alladin's case (supra) in support of his contention.
46. The contention of learned counsel for the State is that in Sumit Tomar's case (supra), the Court has held that the samples 23 of 133 can be mixed and no irregularity has been caused by mixing of samples. It is also argued that samples were drawn from each of the 13 bags, then mixed, representative sample was drawn and was sent for chemical analysis. As per the report of FSL, Ex. P/38, the sample contained in (marked A1) gave positive test for the presence of chief constituents of opium, hence, the sample was considered to be of "dried, crushed capsule of opium poppy".
47. I have considered the rival contentions of the parties.
48. The fact that the `muddamal' was not produced in the Court in self same condition is evident from the statement of PW/12 Surendra Singh. It is also evident that two samples each were not drawn form each of the 13 bags, which is a contravention of Notification 1/88. But the fact that the sample was sent to FSL and was found to contain poppy husk is also not in dispute. The only fact that remains is that if two samples were not drawn separately from each of the 13 bags, what will be the fate of the case. The present case also falls within the ambit of the judgment passed in Netram's case (supra) and at the most, it can be held that out of the 13 bags recovered from the appellant, one of the bag was containing poppy husk. In the present case, as per the case of the prosecution, 520 kg. of 24 of 133 poppy-husk has been recovered from 13 bags. Thus, each bag was containing approximately 40 kg of poppy-husk. The appellant at the most can thus be convicted for having in his possession 40 kg of poppy-husk which is below commercial quantity.
49. The learned Court below has in cursory manner brushed aside the objection regarding non production of `muddamal' in the Court and simply because the samples were exhibited in the Court, the trial court has come to the conclusion that no adverse inference can be drawn for non production of `muddamal'. In view of the pronouncement of the Hon'ble Apex Court in Ashok Dangra Vs. State of Madhya Pradesh (supra), Jitendra & Ors.Vs. State of M.P. (supra) and co-ordinate Bench of this Court in Alladin Vs. State of Rajasthan and Kalu Ram Vs. State of Raj. the conclusion arrived at by the trial court cannot be sustained.
50. In view of the judgment of Netram (supra), I am convinced that the order of conviction under Section 8/15 ( c ) of NDPS Act deserves to be quashed and the conviction deserves to be converted to one under Section 8/15 (b) of the NDPS Act.
25 of 133
51. Accordingly, the appeal is partly allowed. The conviction of the appellant under Section 8/15 ( c )of the NDPS Act is converted to Section 8/15 (b) of the NDPS Act. Similarly the sentence under Section 8/25 of the NDPS Act is also modified. The sentence of the appellant on both the counts, is therefore, altered and he is now to undergo sentence of 7 years' RI for both the offences and pay fine of Rs. 50,000/- each for both the offences, on non payment of fine, the appellant would further undergo one year RI. As far as offence under Section 3/25 of the Arms Act is concerned, the same has not been challenged before this Court, hence, the conviction and sentence passed in relation to the offence under Section 3/25 of the Arms Act deserves to be upheld. The sentence of imprisonment passed under Section 8/15 ( b) and 8/25 of the NDPS Act would run concurrently.
(3) S.B. CRIMINAL APPEAL NO. 07/2016 SHAMBHOO LAL & ANR. VS. STATE OF RAJ.
52. Appellants have preferred this appeal being aggrieved by the judgment dated 26.11.2015 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 06/2013, vide which the appellants have been convicted under Section 8/15( c ) and have been sentenced to 10 years RI and a fine of 26 of 133 Rs. 1,00,000/-, on non payment of fine the appellants are further sentenced to one year imprisonment.
53. The brief facts of the case are that on 30.8.2012 a `Pajero' was stopped by the Police, Shambhu Lal was driving the vehicle and Sanjay was sitting near him. On search, 14 gunny bags containing 360.500 kgs of poppy husk were recovered.
54. Learned counsel for the appellants has argued that though two 500gms samples from each bag was drawn but no chits were found on Articles 29 to 42 when the goods were produced before the Court. It is also argued that there was no chit on the control sample, therefore, the contention is that it cannot be presumed that the goods produced before the Court were the same as were recovered from Pajero on 30.8.2012. The contention of learned counsel for the appellants is that at the most, 14 samples which were sent for analysis and were marked as A1 to N1,the total weight of which is 7 kg and which on chemical analysis has been found to be a contraband can be considered to be in possession of the accused appellants.
55. Learned counsel for the appellants has placed reliance on Thakra Ram's case (supra) and argued that at the most, the matter can be considered as one of below commercial quantity.
27 of 133
56. Learned counsel has drawn my attention towards the statement of PW/2 Surendra Singh. The relevant portion of which reads as under:-
"म@क पर ज मHन नम!न स&मपल ननक ल थ 0 आज ह जजर अद ल हH ज आटIकल 1 लग य 14 ह& इनक मह पर एफएसएल कF स3ल लग3 हई ह& थ चचट बद ह& । आटIकल 1 लग य 14 पर ऐ स ब3 मर, स3 स ड3 शमभल ! ल क, ई स एफ सजय क, ज3 स एच सरद रससह क, आई स ज र मपस द क स इन हH, एकस सथ न पर नम!न स3ल अकक ह& । म@क पर ज म&न कट ल स&मपल ननक ल थ 0 आज ह जजर अद ल ह& ज आटIकल 15 लग य 28 ह& उनक मह पर 0 ह. स3ल लग3 ह& ज म&न म@क पर लग ई थ3 जजन पर चचट नह. लग3 हई हH। म@क पर ज मHन 14 ब र जप ककए थ ज आज ह जजर अद ल हH ज आटIकल 29 लग य 42 हH जजनक मह पर 0ह. स3ल लग3 ह& ज मHन म@क पर लग ई थ3 ज आज सपषट पSन3य नह. ह& कछ ब रK पर स3ल ट!ट फट गई हH।
आटIकल 29 लग य 42 आज चचट लग3 हई नह.
हH। कछ ब र फट हए ह& जजनम स ड ड चर! ननकल
रह ह& ।"
57. The contention of learned counsel for the State is that two samples of 500 gms. each were taken from 14 bags and the sample which was sent for FSL was drawn from the bag and it was 7 kg. It 28 of 133 is contended that as per the FSL report, Ex. P/41 (marked A1 to N1) was found to contain chief constituents of opium hence was considered to be "dried, crushed capsule of opium poppy".
58. I have considered the rival contentions of the learned counsel for the parties.
59. As per the statement of PW/2, the 14 bags which were seized were produced in the Court, but the seals were not found to be legible and on many bags the seals were found broken. It has also come in evidence that there were no chits on articles 29 to 42 and some of the bags were torn and contents were coming out from those bags.
60. The learned trial court has not gone in the question of `muddamal' not being produced in self-same condition and has only on the basis of the statement of the police witnesses concluded that commercial quantity of contraband in 14 bags was recovered from the accused appellants. The court below has not considered the pronouncement of the Hon'ble Apex Court in Ashok @ Dangra Vs. State of Madhya Pradesh, Jitendra Vs. State of Madhya Pradesh , Alladin Vs. State of Rajasthan, Kalu Ram Vs. State of Rajasthan, the order passed by the court below thus, cannot be sustained in its entirety.
29 of 133
61. I am of the view that the `muddamal' has not been produced in selfsame condition and has not been properly linked with the recovery. Even the control sample which was produced in the Court and were marked as articles 15 to Article 28 were not having chits, thus, to connect them with the recovery would not be justifiable. Since the prosecution has failed to produce the `muddamal' recovered in self same condition and has also failed to establish that the control samples were the same which were recovered from the accused, at the most accused appellants can be held guilty for being in possession of 7kg. of poppy-husk which was sent for chemical analysis and was established to be "dried, crushed capsule of opium poppy" in view of the judgment delivered Bhagirath Ram Vs. State of Rajasthan (supra). Seven kilograms of poppy-husk being less than commercial quantity, the conviction of the accused appellants under Section 8/15 ( c ) of the NDPS Act deserves to be converted to one under Section 8/15 (b) of the NDPS Act.
62. The upshot of the above discussion is that the instant appeal deserves to be allowed in part. The conviction of the appellants for the offence under Section 8/15 (c ) of the NDPS Act is converted to one under Section 8/15 ( b ) of the NDPS Act. The appellants are sentenced to seven years Rigorous Imprisonment with fine of Rs. 50,000/-. In default of payment of fine, the appellants shall undergo one year rigorous imprisonment, the appeal is thus partly allowed.
30 of 133
(4) S.B. CRIMINAL APPEAL NO. 1017/2015
PRAKASH & ANOTHER Vs. STATE
63. The appellants Prakash has preferred this appeal being aggrieved by the judgment dated 01.9.2015 passed by the Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 126/2014 (25/2012) whereby the appellant has been convicted for offence under Section 8/15 ( c ) of NDPS Act and sentenced for a period of 15 years' RI and a fine of Rs. 1,50,000/-, in default of payment of fine, to further undergo one year additional RI.
64. The factual matrix of the case are that on 19.9.2011, driver of Tata Safari bearing registration No. RJ 27 UB 4359 on seeing the Police nakabandi took a `U' turn to move in the opposite direction and stuck the electric poll. On search, 17 gunny bags and three plastic bags containing 402 kgs. of poppy husk were seized. Sagarram is stated to be driver of the vehicle and Prakash was sitting next to the driver seat.
65. Learned counsel for the appellant argued that only two samples of 500/- gms. each were drawn after mixing the contents of the bags. It is contended that the muddamal, which was produced in the Court was not bearing the seal chits and out of 20 bags which were recovered, only seven bags were produced 31 of 133 in the Court.
66. It is also contended by counsel for the accused appellant that the documents Ex.P/5, recovery memo mentions that from each bag small quantity of poppy husk was drawn and then two samples of 500/-gm each was made. Thus, the contention of recovery officer, PW/16 that all the bags were opened and their contents were mixed and then sample was drawn is contrary to the document Ex.P/5.
67. My attention has been drawn towards the statement of Rakesh Joshi (PW/16), who in his examination in chief has stated that:-
"जजसक सभ3 ब र क ख लकर र ड क ककन र एकस र ककय थ इसम स द समपल 500-500 ग म क ए और ब3 म क6 कनट ल समपल 0 नम!न समपल ननक ल गए। सभ3 ब र क प!06 म @लन पर उनक कल 0जन 402 ककल ग म हआ। जजसम स 1 ककल समपल क सलए ननक ल गय , शर ब रK क 0 पस भरकर स3लचचट ककय गय । उक समपल क भ3 स3लचचट ककय गय , जजसम थ न ह ज कF ब स स3ल क पय ग ककय गय ।"
This witness has further stated that:-
" आज नय य लय म बड 7 ब र आय ह& । यह सह. ह& कक ककस3 भ3 ब र पर चचट नह. ह& थ ब र स3लबद 32 of 133 नह. ह& । म@क पर जब ककय स K ब रK पर 0ह पल जसटक क क0र नह. ह& अजखद कह कक खद6-बद6 ह न स नए म ल य गए ह& ।"
68. It is argued that the seizure was of 20 bags but the `muddamal' produced before the Court was in seven bags and they were not containing any chit and were not even sealed. Learned counsel for the appellants has placed reliance on Alladin's case (Supra) in support of his contention.
69. The contention of learned counsel for the State is that small quantity of poppy-husk was drawn from each bag and two representative samples of 500 gms. each were drawn, they were sent for analysis to FSL. As per report of FSL Ex.C/1, "samples tagged in the bag marked A1 was found to contain chief constituent of opium hence, the sample was found to be "dried, crushed capsule opium poppy." It is contended that since the sample was of poppy-husk, the conviction of the appellant should be upheld.
70. I have considered rival contentions.
71. The statement of the recovery officer PW/16 Rakesh Joshi that all the bags were emptied and then their contents were 33 of 133 mixed and then representative sample was drawn is contrary to Ex.P/5, wherein it is mentioned that small quantity of poppy- husk was drawn out from each bag and then two samples of 500 gms. each were made. Admittedly, two samples were not drawn from each bag which is a contravention of Notification 1/88.
72. It is also material to note that out of 17 gunny bags and three plastic bags, only 7 bags were produced in the Court, they were not having the seals thus, it is not established that the material produced before the Court was in self same condition, in which it was recovered from the appellant.
73. The learned trial court has come to the conclusion that the accused should not be given benefit of lapse on part of the prosecuting agency and the Court should infact do justice in a case. The Court below has completely overlooked the non production of `muddamal' in self-same condition. The learned trial court has further erred in holding that Noor Aga Vs. State of Punajb, Jagdish Vs. State of Rajasthan and Netram's case are not applicable as they differ on facts. Non production of `muddamal' in self-same condition was a serious irregularity and the NDPS being a stringent law as held by the Hon'ble Apex Court in Ashok @ Dangra Vs. State of Madhay Pradesh, Alladin Vs. State of Rajasthan, Jitendra & Ors. Vs. State of 34 of 133 Madhya Pradesh Kaluram Vs. State of Rajasthan, Noor Aga Vs. State of Rajasthan (supra) the production of `muddamal' was mandatory. The order, therefore, cannot be sustained in its entirety.
74. The total recovery of poppy-husk was 402 kg. There is variance in evidence and documents as to how the sample was drawn, thus, at most, placing reliance on Netram's case (supra), it can be considered that the sample was drawn only from one bag and the weight of bag was around 20kg. The same being less then commercial quantity, the sentence of appellants deserves to be converted from 8/15 ( c ) of the NDPS Act to that under Section 8/15 (b) of the NDPS Act.
75. The upshot of the above discussion is that the instant appeal deserves to be allowed in part. The conviction of the appellant for the offence under Section 8/15 ( c ) of the NDPS Act is altered to one under Section 8/15 (b ) of the NDPS Act. The appellant is sentenced to seven years Rigorous Imprisonment with fine of Rs. 50,000/-. In default of payment of fine, the appellant shall further undergo one year rigorous imprisonment, the appeal is thus, partly allowed.
35 of 133 (5) S.B. CRIMINAL APPEAL NO. 121/2016 TILA RAM & ANR. Vs. STATE
76. The appellants have preferred this appeal aggrieved by the judgment and order dated 21.01.2016, passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 6/2012, by which they have been convicted for offence under Section 8/15 ( c ) of the NDPS Act and sentenced for a period of 10 years RI and fine of Rs. 1 lac and in default of payment of fine to further undergo one year's R.I.
77. The brief facts of the case are that on 28.7.2011 during nakabandi (barricading), a Bolero bearing registration No. RJ 14 UA 2789 was stopped. The driver on seeing the police ran from the spot. The person sitting on the front seat also tried to flee but was apprehended. On search, the vehicle was found to contain 11 bags of poppy husk. The accused Tila Ram is said to be sitting on the front seat and the accused appellant Purkha Ram is stated to be the driver of the vehicle.
78. It is argued by learned counsel for the appellants that as per the recovery memo, the contents of all the bags were mixed on a `Tirpal (Tarpaulin) and from the mixture two samples of 1- 1 kgs. were drawn. It is argued by learned counsel for the appellants that the accused appellant Tila Ram was arrested on 36 of 133 the spot but the appellant Purkha Ram was not arrested from the spot and no-one has identified him. It is argued on the basis of Netram's case (supra), that mixing of sample was not in accordance with Notification No. 1/88 and, therefore, at the most, it can be considered that only one bag was containing poppy husk. The total quantity being 275 kg., it is argued that the contents of one bag being approximately 25 kg the accused can be held guilty only for being in possession of 25 kg of poppy husk, which is less then commercial quantity.
79. My attention has been drawn towards the statement of PW/10 Sumer Singh which reads as under:-
"एक बतप ल पर ख ल. कर उसक अचछb रह स समकस कर कम न3द र रज स 0जन ककय 275 ककल ग म शत 0जन हआ। ख ल.
ब रद न क 0जन ककय ज गय रह ककल हआ।
उक ड ड कF ढर. म स एक एक ककल क द
स&मपल ननक लकर कपड कF थ&ल. म ड लकर
स3लम हर ककय और ब कF बच हए ड ड प स
क प0 6नस र ब रद न म ड लकर स3लम हर
ककय ।"
80. The contention of learned counsel for the State is that 11 bags of poppy-husk were mixed on Tarpaulin (Tirpal) and two samples of 37 of 133 1kg. each were drawn which cannot be considered to be violation of any provision. It was contended that as per the report of FSL Ex. P/22, the bag marked `A' was found to contain chief constituents of opium "dried crushed capsule of opium poppy" from which juice has been extracted. Therefore, the judgment and sentence deserves to be upheld.
81. I have considered the rival contentions of the parties.
82. The learned Court below has not dealt with the violation of Notification No. 1/88 as the contents of 11 bags were mixed and then two samples of 1 kg each were drawn and two samples were admittedly not drawn from each of the 11 bags in accordance with notification No. 1/88. Thus, the case clearly falls within the purview of Netram's case (supra) and at the most, accused appellants can be held guilty of being in possession of one bag of poppy husk. The total recovery being 275kg from 11 bags, each bag was thus, weighing approximately 25 kg. The appellants herein, therefore, can be held guilty of being in possession of 25 kg of poppy husk, the same being less then commercial quantity, the conviction of the appellants under Section 8/15 ( c ) of the NDPS Act deserves to be converted to Section 8/15 (b) of the NDPS Act.
83. The appellants are accordingly convicted under Section 8/15
(b) of the NDPS Act and are sentenced to undergo rigorous imprisonment of 7 years and fine of Rs. 50,000/- and on non payment 38 of 133 of fine to further undergo RI of one year.
84. The appeals are accordingly partly allowed.
(6) S.B. CRIMINAL APPEAL NO. 638/2008
KULDEEP & ANR. Vs. STATE
85. The appellants have preferred this appeal aggrieved by the judgment and order dated 12.2.2008 passed by the Special Judge, NDPS Cases, Chittorgarh in Sessions Case No. 40/2006 whereby he has convicted both the appellants under Section 8/15 ( c ) of the NDPS Act and awarded 10 years' RI and Rs. 1 lac as fine and in default of payment of fine further RI of one year.
86. In brief facts of the case are that the SHO, Police Station, Kapasan received an information at around 4.30 p.m. on 5.5.2006 that a Maruti Van bearing registration No. RJ 09 T 0271 would be carrying poppy husk and would be going from Venipuriya Tiraha to Lakho ka Beda at around 7 to 8 p.m. Thereafter, at around 7.15 p.m., the vehicle was stopped and on search the vehicle was found to contain four bags, in total containing 139 kg of poppy husk.
39 of 133
87. The main contention of learned counsel for the appellants is that the provision of Section 42 of the NDPS was not followed as the recovery was made between sunset and sunrise. The proviso of Section 42 (1) reads as under:
"Provided further that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief."
Sub-clause 2 of Section 42 reads as under:
"Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy two hours send a copy thereof to his immediate official superior."
88. The only arguments advanced before me is that the proviso and sub-rule 2 of Section 42 has not been followed as the recovery has been made at 8.10 p.m. i.e. after sunset.
89. My attention has been drawn towards the statement of Ex. P/33, which happens to be the `Rojnamcha' containing the information received at 4.30 p.m.
90. The contention of learned counsel is that in the information itself it was mentioned that the vehicle would be 40 of 133 going between 7-8 p.m. i.e. after sunset, therefore, it was mandatory for the officer to have complied with the proviso and sub-rule 2 of Section 42.
91. My attention has also been drawn towards the statement of PW/23 B.S. Goswami SHO. The statement of witness relevant for the purpose is reproduced hereunder;-
"यह ब सह. ह& कक मखबबर कF सच
! न म
य स!चन समल. थ3 कक श म क 7-8 बज आयग,
यह ब सह. ह& कक यह मर धय न म आ गय थ
कक 7-8 बज रदन अस ह ज यग । यह ब सह.
ह& कक 0 हन कF ल श3 8:10 प3एम पर ल. थ3
उस समय स!य6 अस ह गय थ । यह सह. ह& कक
0 हन कF ल श3 क 0 रणट मर प स नह. थ ,
अजखद कह कक ल श3 क 0 रणट प प हन म
समय लग जजसस म ल क खद6 -बद6 ह न कF
प!र. समभ 0न ह न स 0 रणट प प नह. ककय
थ । यह ब सह. ह& कक ऐस3 म&न क ई फद6 नह.
बन ई कक अद ल दर! ह& ल श3 क 0 रणट प प
नह. कर सक थ म&न र बत ल श3 क अलग स
क ई क रण भ3 दज6 नह. ककय थ। यह ब सह. ह&
कक इस पत 0ल. पर मर. खद कलम3 क ई फद6
नह. हH।"
92. The other contention of the learned counsel for the appellants is that the muddamal was not produced in the court. A 41 of 133 note was appended to this effect in the statement of PW/21 Shri B.S. Goswami, that the contraband has become rotten and less in weight.
93. Learned counsel for the appellants has placed reliance on State of Punjab Vs. Balveer Singh 1994 (3) SCC 299 State of Rajasthan Vs. Jag Raj Singh Cr. Appeal No. 1233/2006 decided on 29.6.2016, Karnail Singh Vs. State of Haryana 2009 (8)SCC 539 on the grounds of non-compliance of proviso of Section 42 (1) and Section 42 (2) of the NDPS Act. Reliance has been placed on Alladin and ors. (supra) wherein the courts have held that the protection of `mudamal' is mandatory and if primary evidence is not produced, the accused is entitled to the benefit.
94. The learned Public Prosecutor has argued that four bags were seized, samples were drawn from each bag and were sent separately to the FSL. As per FSL report Ex. P/42, they were found to contain "dried, crushed capsule of opium poppy". Thus, his contention is that since the samples were properly sealed and were sent to the FSL and the FSL report points out towards the sample containing crushed opium, the conviction order passed by the trial court deserves to be upheld.
42 of 133
95. I have considered the contention of learned counsel for the parties.
96. This is a clear case where there is non compliance of the proviso of Section 42 (1) of the NDPS Act. The `Rojnamcha' Ex. P/33 itself points out about the vehicle containing contraband to be coming between 7-8 p.m. i.e. after sunset witness PW/23 B.S. Goswami has admitted that he knew that the search would be conducted after sun-set, he has also admitted that he did not prepare a memo stating reasons for not obtaining the warrants and did not note the reasons for conducting search at night. As per his statement, the vehicle was searched after sun-set at 8.10 p.m. It was mandatory for the officer to have complied with the proviso of sub-rule 2 of Sub- section 42 of the Act which was also not done. The case is thus, clearly covered by the decision of State of Punjab Vs. Balveer (supra) State of Rajasthan Vs. Jagraj Singh (supra).
97. The other important fact in this case is that the `muddamal' has not been produced before the Court. There being total non- compliance of the proviso of sub-section (1) of Section 42 and Section 42 (2) of the Act and non production of `muddamal' in view of the judgment delivered in State Vs. Balveer (supra) State of Raj Vs. Jograj Singh (supra) and 43 of 133 Alladdin & Ors Vs. State (supra), the conviction and sentence of the appellants deserves to be quashed and set aside.
98. The learned trial court has not dealt with the question of non compliance of proviso of Sub-Section 1 of Section 42 and Sub-Section 2 of Section 42. The trial court has also not considered the important fact of non-produciton of `mudamaal' in two perspective.
99. Consequently, this appeal deserves to and is allowed. Conviction and sentence of the appellant under section 8/15 of the NDPS Act is quashed and set aside. The appellants are acquitted they be set at liberty forthwith if not required in any other case. The appellants shall furnish personal bail bonds to the tune of Rs. 50,000/- each and two sureties of Rs. 25,000/- each in compliance of the provisions of Section 437 A Cr.P.C within two months.
(7) S.B. CRIMINAL APPEAL NO. 47/2016 DEVA RAM Vs.STATE
100. The appellant has preferred this appeal aggrieved by the judgment and sentence dated 06.01.2016, passed by the Special Judge, NDPS, Cases, Jodhpur whereby the Court convicted the appellant under Section 8/15 ( c) of the NDPS Act and sentenced 44 of 133 him to undergo imprisonment of 10 years' RI and a fine of Rs. 1 lac, in default of payment of fine to further undergo one year's additional RI and under Section 482 IPC one year's RI and a fine of Rs. 1000/- and in default of payment of fine to further undergo 15 days additional RI.
101. The factual matrix of the case are that on 09.8.2011 when the SHO was on patrol duty, he found a Bolero Mahindra bearing registration No. UA 3541 in an accidented condition lying on the corner of the road. The vehicle was having 12 bags of poppy husk and the total weight of contraband was 282 kg. The contents of all the bags were opened and emptied on a levelled place and thereafter mixed and from the mixed poppy husk two samples of one kg. each were drawn.
102. The contention of learned counsel for the appellant is that separate samples were not drawn from each bag thus, notification No. 1/88 was not followed. It is also contended that the accused appellants have been made accused only on the basis of recovery of mobile from the vehicle. It is argued that the mobile was not produced in the court, therefore, the involvement of the accused in carrying the contraband is not made out. It is argued that since the samples were not drawn in accordance with the notification No. 1/88, at the most, the accused can be held 45 of 133 guilty for being in possession of one bag and since each of the packet was weighing less than 50 kg., the case is not covered under the commercial quantity. Reliance has been placed on Netram's case (supra).
103. Learned Public Prosecutor has opposed the appeal on the ground that the FSL report points out towards the sample containing "dried, crushed opium poppy" and since the bags were mixed before taking the sample, it should be held that the appellant was carrying commercial quantity of poppy husk in the Bolero.
104. I have considered the rival contentions.
105. The learned trial court has erred in holding that it was not a requirement of law to draw two samples from each of the bag separately placing reliance on Sumit Tomar's case (supra).
106. This is a clear case where two samples were not drawn from each of the 12 bags and as per the prosecution, they were emptied, mixed and then two samples were drawn. To my mind, this case is squarely covered by the judgment delivered in Netram's case. The total poppy-husk recovered from the accidental vehicle in this case is 282 kg from 12 bags which 46 of 133 means that each packet was containing approximately 24 kg. At the most, the accused can be held guilty for transporting 24 kg of poppy-husk, which is below commercial quantity.
107. As the sample sent for chemical analysis has been found to be containing " dried, crushed capsule of opium poppy" from which juice has been extracted which is established by Ex. P/25, the conviction of the appellant deserves to be upheld but taking note of the fact that two samples have not been drawn from each of the twelve bags, the accused can be held guilty only for being in possession of one bag of contraband which was weighing approximately 24kg.
108. Accordingly the appeal is partly allowed. The conviction is converted from Section 8/15 ( c ) to 8/15 (b) of the NDPS Act and the accused is sentenced to 7 years RI and a fine of Rs. 50,000/- and on non payment of fine the accused will further undergo one year RI.
(8) S.B. CRIMINAL APPEAL NO. 545/2014
MAHENDRA Vs. STATE OF RAJASTHAN
(9) SB CRIMINAL APPEAL NO. 466/2014
MAHAVEER LAL & ANR. Vs. STATE
OF RAJASTHAN
109. The accused appellants Mahendra and Mahaveer have
preferred separate appeals aggrieved by the judgment and 47 of 133 sentence dated 01.5.2014 passed by the Special Judge NDPS Act, Chittorgarh in Sessions Case No. 01/2014 (37/2009) whereby he has convicted both the appellants for offence under Section 8/15 of the NDPS Act and sentenced to 10 years' RI and fine of Rs. 1 lac and in default of payment of fine to further undergo one year SI. The accused appellant Mahaveer has been convicted under Section 8/15 ( c )and the accused Mahindra has been convicted under Section 8/15( c ) as well as 8/25 and a similar sentence has been awarded for both the offences.
110. The factual matrix of the case are that on 07.4.2009, while the sub-inspector, in-charge, Police Station, Nimbaheda was on patrol duty, a trailor bearing registration No. HR 55 D 8743 came from Nimbahera, it was signaled to stop but it did not stop on apprehension, it was followed and forced to stop, on search, it was found that the Trailor was carrying 13 bags containing poppy husk. 100 gms. from each bag was drawn and two samples of 500 gms each were prepared. The total poppy husk carried in the bag was found to be 98 kg. Mahaveer was driving the trailor and Mahendra was the cleaner. Ajay was also found sitting with the accused. The police after investigation filed challan against the present appellants and did not find any case made out against Ajay Baheti.
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111. The trial court examined as many as 18 witnesses and 35 documents were exhibited on behalf of the prosecution. Statements of the accused appellants were recorded under Section 313 Cr.P.C. In defence, statement of Bhojraj was recorded as DW1. Documents Ex. D/1 to Ex. D/5 were exhibited in defence. The trial court after considering the evidence has held the appellants guilty and have imposed the sentence referred above, aggrieved by which separate appeals have been preferred by the accused appellants.
112. The contention of learned counsel for the appellants is that the samples were not drawn from each bag and were mixed, thus, it was a violation of notification 1/88.
113. My attention has been drawn towards the statement of PW/9 and it is argued that the `muddamal' produced in the Court was not having any seal chits, thus, it was not established before the learned trial court that `muddama'l produced in the court was the same as was recovered from the trailer. The note appended to the statement of PW/9 Subodh Kumar mentions that 13 bags of poppy husk were produced, all the bags were tied with Suthali (twine). The note reads as under:
न ट:- पसलस थ न ननमब हड स जप शद
म ल नय य लय आह म ग ड3 क अदर पश
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ककय जजसम 13 कट म ड ड चर अफFम
ल न ब य गय । आरट6 कल 3 स 15 कट
ड ड चर क ह& ज स ल. स बध हए ह& जजन
पर म.न. 185/09 क अकन ह& ।"
114. In his cross examination, this witness has admitted that the bags produced in the court are not having chit or signatures of the witnesses. The relevant portion of the cross examination which goes to show that the articles were not having any seal chits and were not sealed reads as under:-
"यह सह. ह& कक ब र आरट6 कल 3 लग य 15 पर क ई च3ट य म ब3र न क हस कर नह. ह& ।"
"आरट6 कल 3 स 15 पर 185/09 क अकन थ न पर पहचन क ब द म लख न इच ज6 न ककय थ । यह सह. ह& कक म क पर भ3 हमन इन आरट6 कल पर च3टचसप नह. ककय न ह. स3ल बद ककय थ ।
इनक मह स ल. स ब ध थ ।"
115. Thus, the witness, seizure officer has admitted in his cross examination that the bags produced in the court were not having any seal chit and were tied with twine. However in Ex. P/9, it is mentioned that the seal chit was applied on the bags, thus, the contention of the appellants is that the material which was sealed chit at the spot was the same which was received in the court is not established.
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116. The other contention of the learned counsel for the appellants is that PW/16 Recovery Officer was a sub-Inspector and was not authorized to check and seize the goods since he was not posted as SHO.
117. My attention has been drawn towards the notification dated 16.10.1986 No. F/1 (3) FD/EX/85-1 vide which the Government has authorised the sub-inspector who is posted as SHO to act under the provision of the Act.
118. The learned Public Prosecutor on the other hand has contended that the samples have been found to be containing poppy husk and merely because the seal chit was not available when the articles were produced in the court, it cannot be presumed that the accused is not guilty. His contention is that due to passage of time, the seal chits get destroyed as they were lying in the Malkhana.
119. Learned pubic Prosecutor on the ground of Sub Inspector not being authorized has argued that the Sub-Inspector in absence of the SHO becomes in-charge of the Police Station thus, becomes SHO and is authorized to seize the goods.
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120. I have considered the rival contentions.
121. From the statement of PW/9 Mr. Subodh Kumar, it is evident that the bags produced in the Court were not having chits or signatures of the witnesses and the bags were further tied with twine. It has also come in evidence of Subodh Kumar that the articles were not sealed at the spot. Thus, the statement is contrary to Ex. P/9 wherein it is mentioned that the seal chits were applied on the bag on the spot. The fact that the articles which were produced in Court were not having any seal chits and were tied with twine is sufficient to establish that what seized from the appellant was not produced before the Court in self-same condition. Further it has also come in evidence that 98 kg. of poppy-husk was recovered from 13 bags and two samples were not drawn from each bag. The notification No. 01/88 thus, has not been followed in this case.
122. That apart, in this case, the recovery officer PW/9 was not posted as SHO. The Government vide notification dated 16.10.1996 F/1(3) FD/Ex/85-1 has authorized sub-inspector who is posted as SHO to act under the provisions of the Act.
123. The learned trial court has not properly appreciated the fact of non production of `muddamal' in self same condition, drawing 52 of 133 of small quantity of sample from each of the 13 bags and then preparing two samples and the search being conducted by the sub-inspector who was not authorized to check and seize the goods as he was not posted as SHO.
124. In totality, the prosecution has failed to establish that the material which was seized was the same which was produced in Court. It has also come on record that two samples were not drawn from each bag and Subodh Kumar was not posted as SHO. Thus, the entire prosecution case falls and the accused is entitled to acquittal.
125. Consequently, these appeals are allowed, the impugned judgment is quashed and set aside. The appellants in Appeal No. 545/2014 and appeal No. 466/2014 are acquitted, they be set at liberty if not wanted in any other case. The appellants should furnish personal bonds of Rs. 50,000/- and two sureties of Rs. 25,000/- before the learned trial court within two months in compliance of Section 437 A Cr.P.C.
(10) S.B. CRIMINAL APPEAL NO. 65/2015
HAMEED KHAN & ANR. Vs. STATE OF
RAJASTHAN
126. The appellants have preferred this appeal aggrieved by the 53 of 133 judgment and sentence dated 20.12.2014, passed by the learned Special Judge, NDPS case No. 2, Chittorgarh in Sessions Case No. 101/2014 (17/2011) whereby he has convicted the appellant Hameed Khan for offence under Section 8/15 ( c ) and 8/25 of the NDPS Act and imposed sentence of 15 years and a fine of Rs. 1,60,000/- and in default of payment of fine to further undergo one year additional RI for both the offences, the learned trial Court convicted the appellant Vijay and imposed similar sentence. The sentences were directed to run concurrently.
127. Briefly stated the facts of the case are that on 26.8.2010 at around 4.30 a.m., SHO Darshan Singh received an information from the informant that three persons would be carrying poppy straw in a mini truck bearing registration No. HR 62 2541. The concerned SHO did the requisite Nakabandi (Barricading) and at 6.00 a.m. the aforesaid truck came from the side of Nimbaheda. On stopping the vehicle, one person alighted from the cleaner side and ran away. Thirty nine bags of poppy straw were seized from this vehicle. As per seizure memo, Ex. P/3, 500 gms. of poppy straw was drawn from each bag and then they were put in another bag and from there 1kg. sample and 1 kg. control sample was drawn.
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128. The contention of learned counsel for the appellants is that two samples from each bag was not drawn which is a violation of notification 1/88.
129. It is also argued that the samples drawn form each bag were not properly mixed as the factum of mixing them has not been mentioned in Ex. P/3. It is also argued that the truck was stopped at 6.00 a.m. i.e. before sunrise and since the information was received at 4.30 a.m., it was duty of the SHO to comply with the proviso of Section 42 (1) and provision of Section 42 (2) of the NDPS Act. It is also contended that out of 39 bags of poppy straw, only 10 bags were produced in the Court.
130. My attention has been drawn to the statement of PW/15 Darshan Singh. PW/15 in his statement with regard to recovery has stated as under:
" @ल कMट कF सह य स सभ3 39 ब रK म भर
ड ड चर! क @ल ककय गय कल 0जन 10
कक0नटल 85 ककल ग म मय ब रद न ह न हआ।
उक सभ3 ब रK म भर ड ड चर! म स पतयक ब र
स 500 ग म ड ड चर! ननक ल ज कर उक ननक ल
हय ड ड चर! क एक अनय ब र म भरक समल य
गय ।"
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131. As regards the condition of the bag, this witness has stated as under:-
"यह कहन सह. ह& कक जप शद 40 बर म स
आज कर.ब 10 ब र लकर आय ह&, शर म ल ब र
फटन क क रण और खल ज न क क रण आज
नय य लय म नह. ल य ह& । यह कहन सह. ह& कक
ज 40 ब र जप ककय थ उनह स3लचचट नह. ककय
थ । पहच न क सलय प&न स ब रK पर म क6 ड ल थ।
आज ज ब र नय य लय म शर म ल क ल य गय
ह& उन पर पहच न क व0सशषट चचनह नह. ह& । यह
सह. कक व0सशषट चचनह नह. ह न क क रण यह इस
पकरण स समबजनध ह यह इसस पहच न नह.
ह ह& ।"
132. Thus, the contention of the appellants is that `muddamal' was not produced in the selfsame condition before the Court. Out of 40 bags, only 10 bags have been produced. Reliance has been placed on Ashok Dangra Vs. State of MP (supra), Noor Agha Vs. State of Punjab & Ors. (supra), Jitendra & Ors. (supra) Alladin & Anr. Vs. State of Raj. (supra).
133. The learned pubic Prosecutor on the other hand has contended that the samples were found to be of opium constituent and were "dried, crushed and capsule of opium poppy". The contention of learned counsel for the appellants is 56 of 133 that the samples which were seized were the same as were received in the FSL and, therefore, trial court has not committed any error in convicting the accused.
134. I have considered the rival contentions.
135. From the statement of PW/15 Darshan Singh, it is evident that out of 39 bags recovered, only 10 bags were produced in Court. It is also established that the bags produced in the Court were not having any seal chits and there was no mark so as to link them with the recovery. Even the bag, which was made with the samples drawn from each bag, was not produced before the Court. Non Production of `muddamal' the primary evidence has been viewed as fatal to the prosecution.
136. Further this is a case where PW/15 Darshan Singh, SHO received the secret information at 4.30 a.m. and search was conducted before sunrise, SHO has not complied with the proviso of Section 42 (1) and Section 42 (2) of the Act.
137. The trial court has not considered the non-production of `muddamal' in self same condition in true perspectives, the trial court has also not dealt with the non compliance of proviso of Sub-Sec. (1) of Sec. 42 and Sec. 42(2) of the Act, the trial court 57 of 133 has also not dealt with the non-compliance of Notification No. 1/88.
138. The appeal, thus, deserves to be allowed. The judgment and sentence passed by the trial court quashed and set aside. The appellants are acquitted of the charges, they be set at liberty if not wanted in any other case. The appellants are directed to furnish bonds of Rs. 50,000/- each and surety of Rs. 25,000/- each before the trial court within two months in compliance of Section 437 A Cr.P.C.
(11) S.B. CRIMINAL APPEAL NO. 702/2015 KULWANT SINGH & ANR. Vs. The STATE OF RAJASTHAN
139. The appellants have preferred this appeal aggrieved by the judgment and sentence dated 13.7.2015 passed by the Special Judge NDPS Cases, Hanumangarh whereby he has convicted and sentenced the appellants under Section 8/15 ( c) of the NDPS Act and imposed sentence of 10 years and fine of Rs. 1 lac each and on non payment of fine to further undergo one year's R.I. The appellant Kulwant Singh is said to be the driver of the vehicle and Ranji is said to be the person sitting with the driver at the time of seizure.
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140. The facts of the case are that on 25.3.2011, at 2p.m., while the Sub-Inspector Narayan was on patrol duty, a car bearing registration No. DL 4 DC 1524 tried to speed up, on seeing the polic party. The vehicle was stopped by the Police and three bags of poppy husk were recovered. The total weight of poppy husk was 55 kg. All the three bags were opened and emptied on a Tirpal (Tarpaulin) and then were mixed and two samples were drawn and then the contents were again filled in the bag.
141. The main contention of the learned counsel for the appellants is that bags were emptied on Tirpal ( Tarpaulin) and then samples were drawn, whereas as per notification 1/88, two samples should have been drawn individually from each bag. It is argued that if the samples have been mixed and found to be containing the contraband, at the most, the appellants can be held guilty of carrying one bag of poppy husk, which being less then commercial quantity, the order passed under Section 8/15 ( c ) of the NDPS Act cannot be sustained. PW/1 Narayan Singh. in his statement stated that:-
"यह ब सह. ह& कक मHन 3नK थ&लK म स
अलग अलग स&मपल नह. सलय। बजjक अजखद कह
कक मHन 3नK थ&लK क म ल क एकत ककय कफर
3नK क समशण ककय कफर समशण ककय म ल क
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3नK कट म ड ल कफर उसम स स&मपल अलग
अलग ननक ल । 3नK कटK म स अलग अलग
500-500 ग म नह. सलय बजjक 3नK स स थ ड
थ ड लकर 500-500 ग म क द स&मपल सलय ज
स&मपल म क6 ए 0 ब3 अकक ककय। ज स&मपल 0
कट ल स&मपल ह& ।
142. Yet another contention of learned counsel for the appellant is that the total weight of the poppy husk including the weight of the three bags is stated to be 55 kg in the recovery memo. As the weight of the bag was not specifically mentioned the possibility of the weight of the bags being more than 5 kg cannot be ruled out and if the weight of the contraband is reduced the case would come within the purview of less than commercial quantity.
143. The learned Public Prosecutor has argued that since there were only three bags and they were emptied on a tirpal (tarpaulin) and were mixed notification No. 1/88 would not have any impact as has been held in Sumit Tomar Vs. State of Punjab (supra).
144. I have considered the rival contentions. In the present case, three bags containing 55kg of poppy husk is said to have been recovered from the appellants. As per the case of the prosecution, all the three bags were opened and the contents thereto were emptied on a Tirpal (trauqualin) then they were mixed and two samples of 500 60 of 133 gms each were drawn. The above act of not drawing two samples from each bag is in clear violation of notification 1/88. The samples were sent for chemical analysis. As per FSL report, the samples were found to contain chief constituents of opium, hence the report mentions that the sample is of "dried, crushed capsule of opium poppy". Considering the said report, it is evident that the accused appellants were in possession of poppy husk but since the samples were not drawn from each bags, at the most, the appellants can be held guilty of having possession of one bag of poppy husk.
145. The learned trial court has not considered the factum of non compliance of Notification 1/88 further the trial court has not considered that the total weight of poppy husk including the weight of the bags was 55 kg. The chances of samples being drawn from one bag was also not dealt with by the learned trial court.
146. The learned trial court has also not taken note of non production of `muddamal' before the Court which has been held by the Hon'ble Apex Court in judgment referred here-in-above to be fatal to the prosecution. The judgment of the trial court, therefore, cannot be upheld and has to be modified accordingly.
147. The judgment cited by the learned Public Prosecutor is not applicable in view of the judgment reported in Union of India Vs. Balmukund (supra) wherein the Hon'ble Apex Court has held that 61 of 133 standing order No. 1/88 is required to be followed.
148. The total quantity of poppy husk being 55 kg. each bag was containing approximately 18 kg. The appellants, therefore, can be held guilty of being in possession of one bag that is 18 kg. of poppy husk. Further since the weight of poppy husk along with three bag was 55 kg and the weight of bags was not taken independently of the poppy husk the probability of weight of three bags being more than 5 kg cannot be ruled out and if that is so the total weight of contraband automatically comes below 50 kg.
149. In view of the above, the appeal of the appellants is partly allowed, conviction of the appellants for being in possession of poppy husk under Section 8/15 of the NDPS Act is converted to Section 8/15 (b) of NDPS Act and the accused appellants are sentenced to undergo 7 years RI with fine of Rs. 50,000/-, on non payment of fine to further undergo one year RI.
(12) S.B. CRIMINAL APPEAL NO. 827/2015 GANPAT LAL & ANR. Vs. STATE OF RAJASTHAN
150. The appellants have preferred this appeal aggrieved by the judgment and order dated 18.8.2015 passed by the special Judge No. 2 Chittorgarh whereby he has convicted the appellant Ganpat Lal, Kailash Chandra and Ratan Lal under Section 8/15 of the NDPS Act and awarded 13 years' RI and fine of Rs.
62 of 133 1,30,000/- and in default of payment of fine to further undergo one year's additional RI and accused Ganpat Lal and Kailash have also been convicted under Section 8/25 of the NDPS Act with similar sentence.
151. The factual matrix of the case are that on 16.6.2011, at around 4.15 a.m., sub-inspector Sajjan Singh received a secret information that a Tata Tempo bearing registration No. RJ 09 GA 4070 is coming from Pipli Gujarat. The Tempo is being escorted by a Hero Honda Motor cycle bearing registration No. RJ 09 SP 5406. The police on the basis of the said information did Nakabandi (barricading). As per the information, a motor cycle and a tempo were stopped and on search they were found to be containing 11 gunny bags and one plastic bag. The total weight of the contraband of poppy husk was found to be 359 kg. Small quantity of poppy husk was drawn from each bag and two samples of 500 gms. each were prepared.
152. The main contention of learned counsel for the appellants is that the samples were not properly drawn in accordance with the notification No. 1/88. It is also argued that the search officer was a sub-inspector and as he was not posted as the SHO, he was not authorized to conduct search and seizure of the vehicle. It was also argued by learned counsel for the appellant that it 63 of 133 was not established that the bags produced before the Court were the same which were seized. My attention has been drawn towards the statement of PW/14 Sajjan Singh. The relevant portion of which reads as under:-
"यह कहन सह. ह& कक ब र पर अब ऐस म क6 य चचनह नह. ह& ज इस पकरण स इनह समबजनध रख ह , कयKकक म लख न म बरस क प न3 टपकन स म क6 नह. रह। यह कहन गल ह& कक ककस3 भ3 ब र क हमन स3ल नह. ककय ह । यह कहन सह. ह& कक ब र पर चचट नह. लग ई थ3 म क6 01 स 12 क अकक ककय थ । यह कहन सह. ह& कक ससल ई पर आज स3ल नह. ह& । ज बरस क प न3 स सड-गल चकF ह& । यह कहन गल ह& कक ज ब र म उपर ज ससल ई कर रख3 ह& 0ह सड3-गल. हई नह. ह& ।"
153. The learned Public Prosecutor has supported the judgment.
154. I have considered the rival contentions of the parties.
155. Though in this case, `muddamal' has been produced in the court, but PW/14 Sajjan Singh has admitted that there was no mark on the bags to establish that they were the same which were seized. The prosecution has thus, failed to produce the `muddamal' in self same condition. It is also evident that 12 bags of poppy husk were seized and in contravention of notification 1/88, two samples were not drawn from each of the 64 of 133 12 bags rather, small quantity was drawn from each bag, the same was then mixed and a control sample and sample were drawn. This case is thus, squarely covered by Netram' case and at the most, the accused appellants can be held guilty for being in possession of one bag of poppy husk, The total quantity seized being 359 kg each bag was approximately weighing 30 kg.
156. The learned trial court has not taken note of non production of `muddamal' in self same condition before the Court in true perspective. The learned trial court has further not considered the non-production of `mudamal' in self same condition in true perspective.
157. Since the sample sent to public analyst was found to contain chief constituents of opium and as per the report, the sample was of "dried, crushed capsule of opium poppy" from which juice has been extracted, applying Netram's case the conviction deserves to be upheld with modification.
158. The appeal is partly allowed, quantity recovered being less than commercial quantity, the conviction of the appellants is converted from Section 8/15 ( c ) of NDPS Act to Section 8/15
(b) of the NDPS Act. Each of the accused is sentenced to 65 of 133 undergo 7 years' RI and a fine of Rs. 50,000/- on non payment of the same, the appellants are directed to further undergo one year RI. Similarly conviction of Ganpat Lal and Kailash under Section 8/25 of NDPS Act is also altered to seven years RI and fine of Rs. 50,000/- on non payment of fine appellants Ganpat Lal and kailash would further undergo one year RI. The sentence of imprisonment shall run concurrently.
(13) S.B. CRIMINAL APPEAL NO. 494/2014 POONA RAM Vs. The STATE OF RAJASTHAN
159. The appellant has preferred this appeal against the judgment and sentence dated 20.6.2014, vide which he was convicted under Section 8/15 ( c ) of the NDPS Act and sentenced to 10 years RI and fine of Rs. 1 lac and on non payment of fine to further undergo imprisonment of one year.
160. The factual matrix of the case are that on 12.9.2006, an information was received that a Scorpio bearing registration No. GJ 8F 7788 would be transporting poppy husk. It is stated that `nakabandi' (Barricading) was done and vehicle was asked to stop but the vehicle by hitting the government vehicle bearing registration No. DL 9 CG 1740 fleed after breaking the `nakabandi' (barricade).
161. The contention of learned counsel for the appellant is that 15 bags of poppy husk weighing 359 kg. and 500 gms. were 66 of 133 recovered and 15+15 control samples were drawn from each bag. But the recovered contraband was not produced before the court and that which was produced in the court was not established to be of this case and the statement recorded under Section 67 cannot be read against the accused because beating was done with the accused and the statement was recorded when he was under detention.
162. The learned Public Prosecutor on the other hand contended that the conviction can be based solely on the statement recorded under Section 67 of the NDPS Act. The accused has not retracted from the statement, therefore, conviction by the court below was in accordance with law.
163. PW/2 Naresh Kumar deposed before the Court, the relevant portion reads as under:-
"बर मदशद ड ड च!र क ब र Article-1 लग य Article-15 हH। जजनम Article-1 स Article-9 क व0भ ग3य चपड3 लग3 हय3 ह& ककन चप फट हय ह& । थ Article-10 स Article-15 क व0भ ग3य स3ल 0 चप नह.
लग हय ह& कयKकक ब र फटन स उनह दस ! र ब रK म ड ल गय थ ।"
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164. I have considered the rival contentions of the parties. The learned trial court has come to the conclusion that the contraband produced before the Court was not having the seals and chits but the Court has held that there was a justification for not producing the contraband before the Court.
165. During the course of arguments, learned Public Prosecutor has produced the documents dated 6.3.2007 which was the request made to the Chief Judicial Magistrate for proceeding under Section 52 A (2) of the NDPS Act. As per the documents, it is evident that on 30.12.2009, the poppy-straw seized in this case weighing 352 kg was destroyed. The statement of PW/2 Narendra Kumar Sharma was recorded on 8.1.2008 and he has exhibited the bags as Article 1 to Article 15. Out of the articles produced in the Court, Articles 1 to 9 were having departmental seal but were not having any chits, Articles 10 to 15 were neither having any chits nor were having seals and the explanation given was that the bags have decayed, if that was so, how these bags when produced before the Addl. Chief Judicial Magistrate on 13.1.2009 were in proper order, because as per the proceedings drawn before the Magistrate under Section 52A, all 15 gunny bags were having the departmental seals and chits. They were having the same seals and were having marks B1 to B15 which were affixed at the time of seizure. It is thus, evident that the witness PW/2 Narendra Kumar Sharma has produced fake bags and has wrongly deposed before the Court about decaying of the bags, 68 of 133 thus, it is evident that the witness Narendra Kumar Sharma has not acted in a proper manner and has fabricated evidence to mislead the Court.
166. In Himanshu Singh Sabharwal Vs. State of Madhya Pradesh, 2008 Vol.2 WLC (SC) Cr. 152, the Hon'ble Apex Court observed that the court should not be a bystander to the proceedings. Presiding Judge must cease to be spectator and a mere recording machine by becoming a participant in the trial evincing intelligence, active interest and elicit all relevant materials necessary for reaching the correct conclusion to administer justice with fairness and impartiality both to the parties and the communities it serves.
167. Considering the fact that the witness PW/2 has deposed wrong facts before the Court and has tried to mislead the Court by producing fake bags and stating that the bags have decayed and contraband has been shifted to different bags, which stands disproved by the proceedings drawn under Section 52A of the NDPS Act, copy of which has been supplied by the learned Public Prosecutor before the Court. Also considering the fact that under sub section (4) of Section 52 A the inventory prepared after compliance of Section 52 (A) is primary evidence, I deem it proper to allow the appeal and set aside the judgment and sentence passed against the appellant and remand the case to the trial court.
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168. Consequently the appeal is allowed the matter is remanded to the trial court. The record of the case be sent forthwith to the trial court. The trial court shall permit examination of witness with regard to proceedings drawn under Section 52 A of the Act, afford opportunity to accused to cross examine the witness, seek his explanation under Section 313 Cr.P.C. and pass judgment after affording opportunity to the parties, Naresh Kumar having produced fake bags, I leave it open for the trial court to proceed against Narendra Kumar Sharma in accordance with law.
(14) S.B. CRIMINAL APPEAL NO. 570/2014 RATAN LAL Vs.THE STATE OF RAJ.
(15) S.B. CRIMINAL APPEAL NO.571/2014 PRITHVI RAJ Vs. THE STATE OF RAJASTHAN
169. The appellants have preferred this appeal aggrieved by the judgment dated 30.4.2014 passed by the learned Special Judge, NDPS Cases, Bhilwara in Sessions Case No. 41/2010 whereby he convicted the appellants for offence under Section 8/15 ( c ) of NDPS Act and sentenced the appellants for a period of 10 years' RI and imposed a fine of Rs. 1 lac in default of payment of fine to further undergo one year R.I.
170. The factual matrix of the case are that on 5.4.2010 on the basis of information received by the SHO, a truck bearing registration No. RJ 06 GA 3099 was stopped by the Police. The truck owner on seeing the Police barricade turned the truck towards 70 of 133 Gulabpura. The truck was forced to stop by the Police party, Ratanlal was driving the truck and Prithviraj was sitting in the truck. The truck was found carrying 116 bags of poppy husk. The appellants were not having any valid licence. On weighment 2240 kg. of poppy straw was found in the bags. 500 gms. was drawn from each bag then they were mixed and a sample and a control sample were drawn.
171. The contention of learned counsel for the appellants is that `muddamal' in the court was not established to be the one which was seized from the truck on 5.4.2010.
172. My attention has been drawn towards the statement of PW/15 Ramchandra, SHO. The relevant portion of the statement reads as under:-
"न ट: नय य लय क समक कल 116 ब र ट ट क पस ककए गए हH जजसम ककस3 भ3 ब र पर स3ल लग3 हई नह. हH थ स3लचचट भ3 लग3 ह ई नजर नह.
आ रह. हH और न ह. मकदम नबर इतय रद सलख ह आ
ह& अचधक श ब रK पर ब र सखय सलखकर उस
ग लम क6 ककय गय ह& थ पतयक ब र पर उसक
0जन अकक ककय गय ह& । एक ब र पर असपषट स
4 सलख ह आ नजर आ रह ह& जजसक स मन 14
ककल ग म 0जन अकक ह& । इस3 पक र ब र नबर 31
हर रग स म क6 करक उस ग ल ककय गय ह& थ
इस3 म क6 क उपर पथ
u क स हर प&न स ह. 31 अक
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और सलख नजर आ रह ह& जजसक कक ब द म 3 अक
क 9 ककय गय ह& ज 91 क रप म नजर आ रह
ह& ।"
173. The other contention of learned counsel for the appellants is that the notification 1/88 was not followed and samples of each bag was not sent to the FSL. 500 gms. was drawn from each bag, in total weighing 54 kg. which was not produced in the court and the articles which were produced were not legible as has been admitted by him in his cross examination, which reads as under:
"आरट6 कल 1 स 4 म चचट कछ सथ न स फट. हई ह&
जजस क रण उनह नह. पढ ज सक ह& ।"
174. The other grounds raised by counsel for the appellants is that the sample seal was neither produced in the court nor was it destroyed.
175. My attention has been drawn towards the judgment of the Court wherein the Court has mentioned that article 5 to 150 were produced in the Court and they were not having any seal or chit.
176. The contention of learned Public Prosecutor is that `muddamal' was produced in the Court but the same having been produced after many years got decayed and, therefore, the seal chits were not available on the sample and the learned trial court has 72 of 133 rightly considered the same.
177. I have considered the rival contentions of the parties. From the statement of PW/15 Ramchandra, it is clear that 116 bags which were produced in the court were not carrying any seal or seal chits, they were also not having case number written on them. The bags were only having number written on them in a circle. The prosecution thus has failed to establish that these were the bags which were seized from the truck on 5.4.2010. In Alladin's case (supra) referred here-in-above the courts have held that non production of the `muddamal' which is primary evidence is fatal to the prosecution. If 116 bag were recovered, it was the duty of the prosecution to act under Section 52 A of the Act. The contention that due to passage of time the bags have decayed cannot be given weightage and the court below has clearly erred in accepting the justification of the prosecution to be appropriate.
178. It is relevant to note that article No. 1 & 2 control sample and article Number 3 & 4 sample which were produced in the court by PW/15 Ramchandra were having chits which were not legible as admitted by him in his cross examination. Thus, it was not established that the sample and control sample which were produced in the court were produced in the self-same condition before the trial court. The trial court has also come to the conclusion that the seal was not produced in the Court. Since the `muddamal' has not been 73 of 133 produced before the court in self-same condition and the samples have also not been kept in self-same condition, the seal has also not been produced in the court, the prosecution has utterly failed in bringing home the conviction of the appellants.
179. The learned trial court has not appreciated non production of `muddamal' in self same condition in true perspective. The learned trial court has further not considered the effect of non compliance of procedure prescribed under Section 1/88.
180. Consequently, this appeal deserves to be allowed and the same is hereby allowed. The conviction and sentence of the appellants is quashed and set aside. The accused are acquitted of the charges levelled against them they be set at liberty if not wanted in any other case. The appellants are directed to furnish personal bond to the tune of Rs. 50,000/- with two sureties of Rs. 25,000/- before the learned trial court in compliance of Section 437-A Cr.P.C. within two months.
(16) S.B. CRIMINAL APPEAL NO. 1240/2015
GOPAL Vs. THE STATE OF RAJ.
(17) S.B. CRIMINAL APPEAL NO.928/2015
PUSA RAM Vs. THE STATE OF RAJASTHAN
181. The appellants have preferred separate appeals aggrieved by the judgment and sentence dated 17.9.2015 vide which the 74 of 133 appellants have been convicted under Section 8/15 (c) of NDPS Act and sentenced to undergo 10 years RI and a fine of Rs. 1 lac on non payment of fine to further undergo one year's imprisonment.
182. The factual matrix of the case are that on 13.2.2011, the SHO, Police Station Mandal received an information from that a vehicle bearing registration No. RJ 01 GA 5164 has been seized which is carrying poppy husk. The driver of the vehicle was the appellant Gopal and Phoosaram was accompanying him. The vehicle was containing 33 bags of poppy husk. The total weight of the bags was 503 kg. 33 samples and 33 control samples of 500 gms. each were drawn from the bags.
183. The contention of learned counsel for the appellants is that the bags which were produced before the court were not having seal and chits and some of the bags were open gunny bags.
184. My attention has been drawn towards the statement of PW/9 Heeralal. Relevant portion of the statement reads as under:-
"म@क पर ज 33 ब र जप ककय थ 0ह आज ह जजर अद ल ह& । जजन पर स3ल नह. लग3 ह ई ह& । चचट नह. लग3 ह& । ब र फट हय ह& । जजनस स भर हआ पद थ6 ब हर ननकल रह ह& । कह. ब रK क मह भ3 उपर स खल हय ह& । ज आरट6 कल 33 लग य 65 ह& ।"
In cross examination, this witness has stated that:-
75 of 133 "यह कहन सह. ह& कक आज ह जजर अद ल आरट6 कल 33 लग य 65 पर क ई स3लचचट अकक नह. ह& म क6 अकक ह& । यह कहन सह. ह& कक इन म कw पर क ई हस कर नह. ह& । यह कहन सह. ह& कक ह जजर अद ल आरट6 कल 35 लग य 65 पर अकक म क6 स यह पहच न नह. ह 3 ह& कक यह 0ह. म ल ह& ज मHन म क पर जप ककय थ ।"
185. The other contention of the learned counsel for the appellants is that the seal on the articles was bearing seal of SHO, Police Station Mandal whereas the seal on Ex. P/20 is different. On this count, the contention of learned counsel is that it is not proved that the samples which were sealed were the same which were produced in the Court. The relevant portion of the witness in this regard is as under:-
"यह कहन सह. ह& कक पदश6 प3 20 पर 0 ई
सथ न पर अकक एस एच ओ पसलस थ न म डल कF
ज स3ल ह& 0ह म@क पर &य र कF गई अनय फदw पर
नह. ह& । यह कहन गल ह& कक आरट6 कल 1 लग य
32 0 66 लग य 98 पर एस एच ओ म डल कF स3ल
नह. ह । यह कहन सह. ह& कक 1 लग य 32 0 66
लग य 98 पर जड सथ न पर ज स3ल ह&
"थ न चधक र. प सलस थ न म डल जजल भ3ल0 ड " कF
स3ल ह& । यह कहन सह. ह& कक पदश6 प3 20 म 0ई
सथ न पर अकक स3ल पर इजगलश म एस.एच.ओ.
सलख ह आ ह& । यह सह. ह& कक नय य लय म पस
आरट6 कल पर जड सथ न पर स3ल ह& 0ह पदश6 प3 20
कF 0 ई सथ न कF स3ल स सभनन ह& । 0ह स3ल नह. ह&
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ज आरट6 कल पर लग ई ह& । ग0 ह न कछ कह कक
अनसध न बMकस म द नK स3ल थ3। यह सह. ह& कक
आरट6 कल ए0 आज मर द0 र पदसश6 फदw पर म स
ककस3 पर भ3 पसलस थ न बनड कF स3ल ए0 नम!न
स3ल भ3 अकक नह. ह& ।"
186. The contention of learned Public Prosecutor is that the
samples were separately drawn, they were sent to the FSL and the samples were found by the FSL to be "dried, crushed capsule of poppy."
187. I have considered the rival contentions.
188. It is an admitted position that as per the statement of PW/9 Heera Lal that 33 bags which were produced in the court were not having any seal chits and were only having marks. It is also an admitted fact that the marks were not having any signatures. The witness also admitted that from the mark, it cannot be established that the articles which were produced in the court were the same which were seized from the appellants. This witness has further admitted that the seal which was put on P/20 is different from the seal that was put on the documents prepared by the police at the spot. The witness has also admitted that the articles and the documents which has been exhibited in the court does not bear the seal of Police Station `Mandal'. The prosecution has thus, utterly failed to prove that the bags which were recovered from the accused 77 of 133 appellants were produced in the court in selfsame condition.
189. In the FSL report P49, all the samples marked as A1 to 33A were found to contain chief constituents of opium, hence the report mentions that the same were "dried crushed capsule of opium poppy' from which juice has been extracted.
190. The contention of learned counsel for the appellants that at the most 33 samples which were weighing 500 gms totalling 16.5 kg and the control sample weighing 16.5. kg can be considered to be poppy husk. Thus, the appellants can be held guilty only for being in possession of 33 kg. poppy husk which is less than commercial quantity. To my mind, the contention of learned counsel for the appellants carries weight since the bags which were seized from the appellants have not been produced in selfsame condition. The possibility that the samples were drawn from few of the bags cannot be ruled out, the weight of each bag was approximately 10kg-11kg. and the possibility that they were drawn from two or three bags cannot be ruled out.
191. The learned trial court has not appreciated the fact of non- production of `muddamal' in self-same condition.
192. Consequently placing reliance on Bhagirath Ram Vs. State of Rajasthan (supra), the appellants can be held guilty only for the 78 of 133 quantity which was sent to FSL i.e. 16.5 kg and the control sample which was weighing 16.5 kg. In total the contraband seized from the appellants can thus be considered to be 33 kg. In view of the fact that the same is below commercial quantity, the conviction of the appellants at the most could have been under Section 8/15 (b) of the NDPS Act.
193. Resultantly, the appeals of the appellants are partly allowed. Their conviction under Section 8/15 ( c ) is converted to one under Section 8/15 (b). The appellants are sentenced to imprisonment of 7 years RI with a fine of Rs. 50,000/- on non payment of the same, the appellants to further undergo RI of one year. These appeals are accordingly partly allowed.
(18) S.B. CRIMINAL APPEAL NO. 135/2015 SODI SINGH Vs. THE STATE OF RAJASTHAN (19) S.B. CRIMINAL APPEAL NO. 367/2015 SUKHDEV SINGH Vs. THE STATE OF RAJASTHAN
194. The appellant Sukh Dev has preferred this appeal aggrieved by the judgment and sentence dated 12.1.2015 passed by the Special Judge, NDPS, Cases, Hanumangarh in Sessions Case No. 09/2012 whereby the learned trial court has convicted the appellant under Section 8/15 ( c ) read with section 29 of the NDPS Act and sentenced him to undergo 12 years RI with fine of Rs. 1 lac and on non payment of fine to further undergo one year RI.
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195. Appellant Sodi Singh has preferred this appeal aggrieved by the judgment and sentence dated 12.1.2015 whereby the learned trial court has convicted the appellant Sodhi Singh for offence under Section 8/15 ( c ) of the NDPS Act and sentenced him to undergo 12 years RI and fine of Rs. 1 lac and on non payment of fine to further undergo one year's RI.
196. The facts of the case are that on 09.11.2011 on the basis of an information truck No. HR 38 F 0639 was stopped, Sodhi Singh was driving the vehicle and Sukhdev Singh was sitting by his side. The truck was carrying 300 bags of "Channa Chilka Churi" (husk of gram) and 10 plastic bags weighing 40 kg. each containing poppy husk. 200 gms. of sample was drawn from each packet, they were mixed in one packet and then 250 gms sample from the mixture and 250 gms control sample from the mixture were drawn.
197. The contention of learned counsel for the appellants is that the samples were not drawn separately and were not sent for chemical analysis in accordance with Notification No. 01/88. His contention is that at the most one packet can be said to be containing poppy husk and that being less then commercial quantity, the Court was not justified in convicting the accused under Section 8/15 ( c ) of the NDPS Act. It is also argued that the Excise Inspector was not authorized to seize the contraband. Reliance has been placed on 80 of 133 2000 AIR SCW 1005 ROY VD VS. State of Kerala.
198. Learned Public Prosecutor on the other hand contended that the samples were drawn from each bag and were properly mixed and sent for chemical analysis, therefore, it should be believed that all the 10 bags were containing poppy husk.
199. I have considered the rival contentions of the learned counsel for the parties.
200. The case of the prosecution is that on 09.11.2011, PW/3Arvind Pratap Singh started from his office at 5.15 p.m. in government vehicle with the subordinate staff, during patrolling, they received an information that a truck would be carrying poppy husk. The information Ex. P/13 was received at 5.30 p.m. From the evidence of P/3 Arvind Pratap Singh, it has come on record. The witness has denied sunset taking place at 5.32 p.m. It is stated that on 09.11.2011 sunset was at 5.42p.m. The truck was stopped at 6.50 p.m. and the seizure was made thereafter i.e. after sunset. Admittedly, the proviso of Sub-Sec. (1) of Section 42 and Section 42 (2) were not followed. Thus, taking into view the judgment reported in State Vs. Jagraj Singh (supra) appellants are entitled to benefit. The other contention of learned counsel for the appellants that 200gms. of sample was drawn from each bag they were mixed and from that mixture 250 gms of sample and a control sample were 81 of 133 drawn which is also in violation of Notification No. 1/88 issued by the Central Government.
201. PW/3 has admitted in his cross examination that separate samples were drawn from each of the bag then mixed and then a control sample was drawn.
202. The learned trial court has rightly held that the proviso to sub- section 1 of Section 42 and Section 42 (2) has been complied as PW/3 Arvind Pratap Singh has stated before the Court that it was not possible to obtain warrant, and therefore, the same was entered into Exhibit P/18 and the same was sent to the senior officers.
203. The trial court has further not considered the factum of drawing of small quantity from each bag and then drawing representative sample of 250 gms each in true perspective. The trial court has not considered that the same is in violation of notification No. 1/88. The trial court has placed reliance on Sumit Tomar's case (supra) which as discussed here-in-above would not have applicability as the same was not considered in the earlier judgment of the Hon'ble Apex Court. Hon'ble Apex Court in Union of India Vs. Balmukund (supra) which is the judgment of Bench consisting of three Judges has held that following Notification No. 1/88 is requirement of law, that was also the case where quantity was drawn from each bag. The judgment delivered in Sumit Tomar's case would 82 of 133 thus not have any application in the facts of this case.
204. Since all the bags were containing 40 kg each of poppy husk, the probability that the samples were drawn from one bag cannot be ruled out, the benefit obviously would go to the accused thus at the most, the appellants can be held guilty of carrying one bag of poppy husk, taking into consideration, the law as propounded in Netram's case. The conviction of the appellants under Section 8/15 of the NDPS Act thus deserves to be converted into one of 8/15 (b) of the NDPS Act.
205. Resultantly, the appeals of the appellants are partly allowed. Their conviction under Section 8/15 ( c ) is converted to one under Section 8/15 (b). The appellants are sentenced to imprisonment of 7 years RI with a fine of Rs. 50,000/- on non payment of the same, the appellants to further undergo RI of one year.
(20) S.B. CRIMINAL APPEAL NO. 937/2013 SMT. GEETA DEVI Vs. THE STATE OF RAJ.
206. The appellant has preferred this appeal aggrieved by the judgment and sentence dated 26.10.2013 vide which the appellant has been convicted under Section 8/15 ( c ) of the NDPS Act and has been sentenced to undergo imprisonment of 10 years' RI and fine of Rs. 1 lac and on non payment of fine to further undergo imprisonment of one year additional RI.
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207. The facts of the case are that an information was received that Poppy husk bags are kept at the residence of Smt. Geeta Devi, the present appellant. A search was conducted and on search, three bags of poppy husk were seized. The total weighment of the bags was 140 kg. 500 gms of sample and control sample from each bag were drawn and sent to FSL. They were found to contain poppy husk opium crushed.
208. Learned counsel for the appellant has drawn my attention towards the statement of PW/7 Yashdeep Bhalla who was posted as SHO, Kotri. In his examination in chief, this witness has stated that the articles produced does not have the chit. His statement reads as under:-
मल ! म ल आज ह जजर अद ल ह& ज नमन ! ननक लन क ब द बच थ ज ब र आटIकल 4 लग य आटIकल 6 ह& । मHन इन ब रK पर चचट लग ई थ3 लककन म लख न म रखरख 0 क द@र न आज चचट फट चकF ह& । मलजजम जजसक म@क पर चगरफ र ककय थ 0ह आज ह जजर अद ल ह& । मHन म@क पर इन शर अफFम ड ड प स क ब रK परस3ल और चचट लग ई थ3 0ह आज म@जद ! नह. ह& यह म लख न म रखन क द@र न ट!ट गई ह& ।
209. My attention has also been drawn towards the cross examination of this witness wherein he has admitted that the bags' 84 of 133 opening has been tied with twine and if the twine is opened, the material may come out. He has also admitted that the bags are not having any sign nor remains of the seal. The relevant portion reads as under:-
यह कहन सह. ह& कक ब रK क मह पर बध3 रसस3 ख लन स म ल आज ब हर ननक ल ज सक ह& । यह कहन सह.
ह& कक ब र क मह पर चपड3 क क ई अ0शर आज म@जद ! नह. ह& ।
210. The contention of learned counsel is that it is not established that the bags which were seized were the same bags which were produced in the Court. The other contention of the learned counsel for the appellant is that it is not proved that Smt. Geeta was the owner of the house and that Smt. Geeta was called as witness which is apparent from the statement of PW/2 Heeralal, PW/3 Kanhaiya Lal.
211. My attention has been drawn towards Ex. P/9 which is the notice given to the 'motbir' witness asking them to witness the search and seizure. This is having thumb impression of the present appellant Smt. Geeta, therefore, the contention of the appellant is that the present appellant was with the police party at 4.30 p.m. i.e. much prior to the time when the search and seizure was made i.e. at 7.50 p.m.
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212. The contention of learned counsel for the state is that the court has not committed any error in convicting the appellant, seizure has been made from her residence and she herself pointed out towards the room from where the recovery has been made. It is also argued that there is no enmity of the raiding party with the appellant, therefore, the court below was justified in convicting the appellant.
213. I have considered the rival contention of the parties.
214. The thumb impression of the appellant appearing on the notice issued to the motbirs at 4.30 p.m. speaks about the way search and seizure has been made and the defence that Smt. Geeta was called as a witness cannot be brushed aside lightly. If she was with the raiding party at 4.30 p.m., the entire prosecution case falls and the recovery made thereafter at 7.50 p.m. becomes highly doubtful. Further it has not been established that the bag which was seized form the residence were not produced in selfsame condition. PW/7 Yashdeep Bhalla has admitted that there were no remainants of seals and bags were tied with twine and material could be taken out of the bags.
215. The presence of appellant at 4.30 p.m. with the motbir, her signatures on Ex. P/9 and seizure at 7.30 p.m. creates doubt on prosecution version. Coupled with the fact that it was not established that the articles produced in court were the same which were seized as also the fact that the ownership and exclusive 86 of 133 possession of the house form which material has been recovered was not established to be of appellant. The appeal deserves to be allowed. The trial court has not properly dealt with the above material flaws in the prosecution case.
216. PW/2 Heeralal and PW/3 Kanhaiya both have stated that Geeta was present when the police called the `motbirs' The ownership of the house from where the recovery has been made is also not proved to be belonging exclusively to Geeta rather it has come in evidence that the same was a joint house and there were 8-9 persons who were residing. The seizure in this case has been made from a open Chowk inside the house which cannot be said to be in exclusive possession of the appellant. In totality, the prosecution has utterly failed to establish the recovery from the exclusively possession of the appellant, however, the signatures of the present appellant at 4.30 p.m. on Ex. P/9 and the recovery being made at 5.20 p.m. also establishes that the appellant was with the police prior to the recovery. The bags which have been produced before the Court do not bear any seal and chit, thus, in absence of primary evidence as well as lack of evidence with regard to accused appellant being in exclusive possession of the open `Chowk' is entitled to the benefit of doubt.
217. As has been held in 2009 Vol. 10 SCC 632 (Om Prakash @ Baba Vs. State of Rajasthan) and Mohammed Alam Khan Vs. 87 of 133 NCB 1996 (9) SCC 462 that in absence of evidence that flat or house as owned by the accused he or she cannot be held for being in possession of contraband.
218. The learned trial court has not appreciated the factum of the presence of appellant at 4.30 p.m. With the motbir i.e. Prior to the seizure at 7.30 p.m.. The trial court has further not considered the fact of there being no evidence about the exclusive possession of ownership of the present appellant of the place from which the recovery was effected. The trial court has further not taken note of the fact that `muddamal' was not produced in self-same condition before the court.
219. Consequently, the appeal filed by the appellant is allowed, her conviction and sentence passed by the learned trial court is set aside. The appellant is directed to furnish personal bond to the tune of Rs. 50,000/- with two sureties of Rs. 25,000/- within a period of two months in compliance of Section 437A Cr.P.C.
(21) S.B. CRIMINAL APPEAL NO. 916/2014
RATAN LAL & ANR. Vs. STATE
(22) S.B. CRIMINAL APPEAL NO. 36/2015
PANNA LAL & ANR. Vs. STATE
(23) S.B. CRIMINAL APPEAL NO. 940/2014
PARAS RAM@ PAPPU Vs. STATE
220. The appellants have preferred separate appeals aggrieved by the judgment and sentence dated 11.12.2014 whereby the appellants 88 of 133 Ratanlal and Kaluram in Appeal No. 916/2014 has been convicted for the offence under Section 8/15 (c ) of NDPS Act and sentenced to undergo 14 years RI and fine of Rs. 1,40,000/- and in default of payment of fine to further undergo 1 year RI. The appellants Panna Lal and Bheru Lal in Appeal No. 36/2015 and the appellant Parasram in appeal No. 940/2014 have been convicted under Section 8/15 ( c ) of the NDPS Act and have been sentenced to 7 years RI and fine of Rs. 70,000/- and on non payment of fine to further undergo imprisonment of six months.
221. Briefly stated the facts of the case are that the Assistant Director, Pravartan, Excise Department received an information that in village Samrathpur Kaluram, Ratan Lal, Parashram, Bheru and Panna, kept poppy husk in their respective houses. On search six bags weighing 220 kg were seized from the house of Ratanlal. Six bags weighing 240 kg. were sized from the house of Kaluram. One bag of 35 kg was seized from the residence of Parash Ram and two bags weighing 38 kg. were seized from the residence of Panna and two bags weighing 42 kg. were seized from the residence of Bherulal. In all 17 bags were thus seized from the residence of the accused. The contents of those bags, received from the house of Ratanlal were emptied on a Tirpal ( Tarpaulin) and were mixed and thereafter a sample and a control sample weighing 500 gms. was taken. Similar method was adopted in case of six bags seized from Kalu, two bags seized from Panna and two bags seized from 89 of 133 Bherulal.
222. The contention of learned counsel for the appellants is that the seized bags muddamal were not produced in the Court.
223. The other contention of the learned counsel for the appellant is that the samples were not drawn separately from each bag. Rather they are said to have been emptied on a tirpal (tarpaulin) and then the samples have been drawn, which is violation of notification 1/88 and thus, the conviction under Section 8/15 ( c ) is bad in law. It is also argued that none of the witnesses produced by the prosecution has established that the house belongs to the appellants. Rather the witnesses have admitted that many family members were residing in the houses and they did not try to inquire from the villagers as to who is the owner of the house. The counsel for the appellants has thus argued that no case whatsoever is made out against the appellants and the `muddamal' having not been produced the appellants are entitled to acquittal.
224. The learned Public Prosecutor on the other hand has contended that on a secret information raid was conducted and bags were recovered from each of the appellant's house. Samples were properly drawn and as per the FSL report, the samples have been found to be of poppy husk.
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225. I have considered the arguments advanced by the parties.
226. Admittedly, `muddamal' has not been produced in the court and the fact that the house was in exclusive possession of the appellant is also not established. The samples were also not drawn from each bag.
227. PW/15 Shiv Singh has admitted that in the house there were many males and females, no motbir witness was taken form the village, the statement of neighbours was not taken to ascertain the ownership of the house the photo-graphs of the house were not obtained. The name of persons who have identified the house of the accused is also not available on record. The witness has also admitted that there was no barrier and anyone could come and go from the the place where the recovery has been effected, that being so, the recovery cannot be said to be from the exclusive possession of the appellants.
228. The learned trial court has failed to appreciate non production of muddamal in self same condition. The learned trial court has further failed to appreciate that the exclusive possession and ownership of the respective houses from where search and seizure has been done was not established to be belonging to the accused appellants. The court has also failed to take note of the fact that the place from where recovery was made was accessible to everyone.
91 of 133 The conviction of the appellants was, therefore, bad in law. The court below has also not taken note of the case Om Prakash @ Baba Vs. State of Raj. (supra) and Mohd Alam Khan Vs. NCB (supra).
229. The appeals, therefore, deserves to be allowed and the same are hereby allowed. The conviction of the appellants is quashed and set aside and the appellants are acquitted of the charges levelled against them. The appellants to furnish personal bonds to the tune of Rs. 50,000/- and two sureties of Rs. 25,000/- each to the satisfaction of the trial court. Compliance under Section 437-A be made within two months.
(24) S.B. CRIMINAL APPEAL NO. 169/2014 LEHRU LAL Vs. STATE (25) S.B. CRIMINAL APPEAL NO. 259/2014 VERDA Vs. THE STATE OF RAJ.
230. The appellant Leherulal in Appeal No. 169/2014 has preferred this appeal aggrieved by the judgment and sentence dated 28.1.2014 passed by the learned Special Judge, NDPS Cases No. 1 Chittorgarh in Sessions Case No. 33/2008, whereby the accused appellant has been convicted under Section 8/15 ( c ) of the NDPS Act and has been sentenced to undergo 10 years' RI and a fine of Rs. 1 Lac. In default of payment of fine to further undergo one year RI. The appellant has further been convicted under Section 8/25 of the NDPS Act with similar sentence and fine. The appellant Verda in appeal 92 of 133 No. 259/2014 has also challenged the same order whereby he has been convicted under Section 8/15 of the NDPS Act and has been sentenced to undergo 10 years' RI and fine of Rs. 1 Lac has been imposed, on non payment of fine, the appellant is to further undergo a period of one year RI. Both these appeals arise out of a common order, hence are being dealt with together.
231. In brief, facts of the case are that on 2.5.2008, SHO, Rashmi received a secret information that the accused Verda has kept poppy husk in his Nohra and is about to transport the same in his Bollero bearing registration No. RJ 19 UA 1322. The police party raided the premises and four bags of poppy husk were recovered. The total weight of the contraband was 105 kg and 600 gms. 500 gms. was drawn from each bag, they were mixed and then two samples a sample and a control sample of 300 gms. each were drawn. The vehicle bolero was found to be containing 8 bags. The total weight of the contraband was 139 kg and 700 gms. 500 gm from each bag was drawn, mixed and then a sample and a control sample each of 300 gm was drawn.
232. The contention of learned counsel for the appellants in this case is that the samples were not separately sent for chemical analysis and were mixed thus, it is not established that all the bags were having poppy husk. Placing reliance on Netram's case (supra) the contention is that at most one bag can be considered to be having 93 of 133 poppy husk and the weight being less then 50 kg., the matter does not fall in the category of commercial quantity.
233. The other contention of the learned counsel for the appellant Verda is that it was not proved that the Nohra belongs to the accused. The Nohra was open and admittedly other family members were also residing. The contention of learned counsel for the appellants is that the motbir has been declared hostile and the evidence of Tehsildar, Patwari or neighborers have not been recorded to establish the ownership or the exclusive possession of the appellant on Nohra.
234. The other contention of the appellant is that PW/3 Gopal Das, the Seizure Officer has not produced the control sample in the Court.
235. My attention has also been drawn towards Ex. P/28 `Agreement to Sale' dated 01.4.2008 and Ex. P/4 Seizure Memo of the vehicle. It is contended that the Engine No. and chasis number written in Ex/P/4 is different from that which was written on Ex. P/28, therefore, the recovery from the vehicle cannot be connected with the appellant Lehru Lal. The statement of PW/3 Gopal Das with relation to owner-ship of Nohra is as under:-
"मन न हर क क ई नकश नह. बन य थ स0य न कह कक आईओ न ब य ह ग ।
यह ब सह. ह& कक मन न हर कF
फ ट ग फF नह. कर ई थ3। मन न हर पर
94 of 133
लग ल क जप नह. ककय थ । मर क
प नह. ह& कक ल क@नस3 कमपन3 क
थ लककन उसक रग सफद थ । न हर क
आस-प स म आब द. ह& । 0रद ल. क
अन ररक न हर 0रद क ह न नह.
ब य थ । मन ककस3 पड@स3 क बय न
नह. सलय थ। मन ककस3 पट0 र. य ,
सरपच य 0 ड6पच क म@क पर नह. बल य
थ । मन उस न हर क पड@स क 0 म हjल
क म@ बबर नह. रख।"
236. The contention of learned Public Prosecutor is that the recovery has been made from the premises belonging to the appellant and as per the report of FSL, seized articles have been found to be poppy husk.
237. I have considered the rival contentions of the parties. The recovery in this case is said to be from Verda's house. Admittedly, other family members were also residing. The statement of Patwari and neighbour have not been recorded to establish the ownership or the possession of the appellant on Nohra. From the statement of PW/3 Gopal Das with relation to owner-ship of Nohra, it has come in evidence that the statement of the neighbour, patwari, sarpanch and ward sarpanch was not taken. Neither the site plan of the nohra was prepared nor the photo-state copies of nohra were obtained. The witness also stated that they did not ask anyone about the ownership of the nohra.
95 of 133
238. The provisions of notification No. 1/88 has also not been followed in this case, as many as four bags weighing 105.600 kg is said to have been recovered from nohra. It is stated that 500 gms each was drawn from each bag, they were mixed and two samples of 300 gms. each was drawn. From the car standing in the premises 8 bags in total weighing 139 kg 700 gms have been recovered from that also 500 gms each were drawn form each bag and then two samples of 200 gms. each has been prepared. It is also relevant to note that the control sample has not been produced by the seizure officer before the Court.
239. The learned trial court has not taken note of non production of `muddamal'. The learned trial court has not taken note of non production of muddamal in self same condition. The court below has also not considered the fact that exclusive possession and ownership of Nohra being that of the present appellant was not established and the judgment of the Hon'ble Apex Court in Om Prakash @ Baba Vs. State of Rajasthan (supra) and Mohd Alam Khan Vs. NCB (supra) would therefore apply as the court below has not dealt with the same in true perspective.
240. Since ownership and possession of Nohra has not been established appellants cannot be held guilty for recovery made from Nohra. Similarly the chasis number on agreement to sale and seizure 96 of 133 memo being different ownership and exclusive possession of the vehicle is also not established. The conviction of the appellants is therefore not sustainable.
241. The appeals, therefore, deserves to be allowed and the same are hereby allowed. The conviction of the appellants is quashed and set aside and the appellants are acquitted of the charges levelled against them. The appellants to furnish personal bonds to the tune of Rs. 50,000/- and two sureties of Rs. 25,000/- each to the satisfaction of the trial court. Compliance under Section 437-A be made within two months.
(26) S.B. CRIMINAL APPEAL NO.80/2014 AJIZ KHAN Vs.THE STATE OF RAJ.
(27) S.B. CRIMINAL APPEAL NO.81/2014 OMPRAKASH Vs. The STATE OF RAJ.
242. The appellant Aziz Khan and Om Prakash have preferred this appeal aggrieved by the judgment and sentence dated 21.1.2014 passed by the Special Judge, NDPS Cases, Jodhpur in Sessions Case No. 178/2010 whereby he has convicted the appellant Om Prakash under Section 8/15 NDPS ( c ) Act and has imposed sentence of 10 years' RI and a fine of Rs. 1 lac and in default of payment of fine to further undergo one year RI. The appellant Aziz Khan has been convicted for offence under Section 8/15 ( c ) read with Section 25 of the NDPS Act and has been sentenced to undergo 10 years RI and fine of Rs. 1 lac and in default of payment of fine to further undergo 97 of 133 one year RI.
243. In brief, facts of the case are that on 19.8.2010 at 10.15 P.M. SHO Rajendra Singh along with other police personnels was on patrol duty at 0.30 a.m. On 20.8.2010, a truck bearing registration No. RJ 19 G 6311 was seen coming from Jodhpur, when the driver was signaled to stop the truck, he did not stop and the truck was then chased and was forced to stop. The truck was found to be containing 89 bags of poppy straw. The total weighment of the 89 bags was 20 quintal & 30 kg. All bags were emptied on a Tirpal ( Tarpaulin) and a sample and a control sample of 500 gms each was drawn thereafter all the bags were re-filled. The truck was being driven by Om Prakash. Aziz Khan is stated to be owner of the truck who was not arrested.
244. The prosecution examined as many as 14 witnesses and 29 documents were exhibited no their behalf. The statement of the appellants were recorded under Section 313 Cr.P.C. The appellant Aziz Khan in his statement stated that he has been wrongly implicated and he has sold the vehicle on 02./12.2009 to Mubarak Khan vide `Agreement to Sale' and that he does not know about the truck being used for carrying of contraband. In defence evidence DW/1 Mohan Lal, DW/2 Jusab Khan, DW/3 Mukesh Sirohi and DW/4 Nihaldeen were examined and `Agreement to Sale' Exhibit D/1 was exhibited. The learned trial court after considering the 98 of 133 entire evidence has convicted the accused Om Prakash under Section 8/15 of the NDPS Act and accused Aziz Khan under Section 8/15 read with Section 8/25 of the NDPS Act
245. Aggrieved by which both the appellants have preferred separate appeals. As both the appeals arise out of a common order, the same are being decided together.
246. The main contention of the learned counsel for the appellants is that separate samples were not drawn from each bag and 89 bags is stated to be emptied on a Tirpal (tarpaulin) and only one sample and a control sample have been drawn, therefore, the accused cannot be held guilty for being in possession of commercial quantity. It is also contended that chits on the bags that were produced in the court were not available, therefore, in absence of primary evidence the recovery of contraband has not been established in court.
247. My attention has been drawn towards the statement of PW/11 Rajendra Singh. Relevant portion of which reads as under:-
"ब रK क प ल पर ख ल. कर रहल य -समल य थ
उसम स 500-500 ग म क द स&मपल ननक लकर
सफद कपड कF थ&ल. म ड लकर स3लम हर ककय ।
स&मपलस पर म क6 ए 0 ब3 अकक ककय , ब कF बच
हए ड ड क प!0 6नस र रखकर स3लम हर ककय ।
ब र क 0जन ककय 20 जक0णटल 30 ककल ग म
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हआ । ब ररय पर 01 89 म क6 अकक ककय
।0जज सब ब र पर स3ल लग3 हई ह& लककन चप
नषट ह चक ह& । 0जह सब ब र पर सक&च पन स
म क6 0 स3आर नबर अकक ह& ।यह ब सह. ह& कक
आरट6 कल-03 91 पर आज कF र.ख म चप
अकक नह. हH, मजjजम, मर अथ0 म बबर न क
हस कर भ3 नह. ह& । यह ब सह. ह& कक आरट6 कल-
03 91 पर सक&च पन स अलग स स3आर नबर
अकक करन क ह0 ल नह. ह& । यह ब सह. ह&
कक एफआईआर दज6 ह न क ब द क र जन मच
उपलबध ह& जजसम भ3 ब र पर सक&च पन स स3आर
नबर अकक ककय ह , ऐस ह0 ल नह. ह& । यह ब
सह. ह& कक म लख न रजज. इएकसप3-14 म भ3 सक&च
पन स स3आर नबर अकक ककय, ऐस ह0 ल नह. ह&
।"
248. Contention of learned Public Prosecutor is that the bags were seized from spot and they have been found to be containing "dried crushed capsule of opium poppy" and hence the conviction arrived at by the court below is justified.
249. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties.
250. In all 89 bags were seized from the spot. The contents of the bags were emptied on a `tripal' (tarpaulin) they were mixed and then two samples of 500 gms each were drawn. The poppy husk was then again filled in the bags. The total weight as stated by the prosecution 100 of 133 of the contraband is 20 quintal 30 kg. Admittedly, two samples from each bag was not drawn, empting of 89 bags on a `tirpal' (tarpaulin) weighing 20 quintal mixing them and then drawing sample appears to be an impossibility and mixing of the contents of 89 bags and drawing representative sample of 500 gms each would not show real picture of the contraband. The procedure followed by the raiding party was in clear violation of notification No. 1/88.
251. The bags which were produced in the Court were not having any chits. It was not having the signatures of the accused, the seizure officer and the witnesses. Thus, it was not established that the bags were produced in the self-same condition in which they were seized. This is evident from the statement of PW/11 Rajendra Singh. In absence of the primary evidence i.e. `muddamal' the court below was clearly in error in convicting the present appellants for being in possession of commercial quantity of contraband.
252. The total recovery in this case is said to be 20 quintal 30 kg from 89 bags. PW/11 in his statement has admitted that none of the bag was weighing more than 40 kg, considering the contraband to be recovered from 89 bags and the total weighment being 230 kg. but the average weight per bag comes to around 23 kg. As per the FSL report, P/26 the sample was found to be of "dried, crushed capsule of opium poppy" from which juice has been extracted. In Ex. P/2, it is mentioned that 89 bags were emptied on a `tirpal' (tarpaulin) and 101 of 133 500 gms of poppy husk was taken in white bag. However 500 gms was taken as control sample. It is not mentioned in Exhibit P/2 that the contents of 89 bags weighing 20 quintal was mixed. The possibility of sample being drawn from one bag cannot be ruled out. Applying Netram's case at most, the appellant No.1 herein can be convicted for being in possession of 23 kg of poppy husk.
253. Aziz Khan who is stated to be owner of the vehicle has produced defence witness to establish that he had entered into an `agreement to sale' and has delivered the possession of the vehicle to one Mubarak Khan. The agreement to sale Ex. D/1 has also been produced to establish the contention, I am not inclined to agree with the contention raised by the learned counsel for the appellant that Aziz Khan has sold the vehicle because as per the Motor Vehicle Act, the sale of vehicle is complete only after the vehicle is registered in the name of purchaser. Ex D/1 is a document dated 21.12.2009, the seizure in this case has been effected upon the appellant on 19.8.2010. Therefore, by this agreement, it cannot be inferred that in fact the ownership of the vehicle has been transferred to one Mubarak Khan. Consequently, I do not find any force in this contention of learned counsel for the appellant.
254. The learned trial court has not taken note of non production of `muddamal' in self same condition in true perspective. Non Production of `mudamal' being fatal to the prosecution, the judgment 102 of 133 of the trial court cannot be upheld and needs to be modified.
255. Considering the fact that the recovery was from 89 bags weighing 20 quintal. The appellants can be held guilty for being in possession of approximately 23 kg of poppy husk the same being below commercial quantity the conviction of the appellants deserves to be converted under Section 8/15 (c ) of the NDPS Act.
256. Resultantly, both the appeals are partly allowed. The conviction of the appellant Om Prakash under Section 8/15 ( c ) of the NDPS Act is converted to Section 8/15 ( b) of the NDPS Act and he is sentenced to undergo imprisonment of 7 years RI and a fine of Rs. 50,000/-. On non payment of fine, the appellant shall further undergo imprisonment one year RI. The appeal of the appellant Aziz Khan is also partly allowed. His conviction under Section 8/15 ( c) read with Section 25 of the NDPS Act is converted to one 8/15 ( b) read with Section 25 of the NDPS Act and he is sentenced to undergo imprisonment of 7 years RI and fine of Rs. 50,000/- and on non payment of fine to further undergo one year RI. Both the sentences would run concurrently.
(28) S.B. CRIMINAL APPEAL NO. 695/2015
JASWANT SINGH & ANR. Vs. THE STATE OF
RAJ.
257. The appellants have preferred this appeal aggrieved by the judgment and sentence dated 15.7.2015 passed by the learned 103 of 133 Special Judge, NDPS Act Case, No. 2 Chittorgarh in Sessions Case No. 23/2014 whereby he convicted the appellant Jaswant Singh under Section 8/15 of the NDPS Act and the appellant Smt. Manisha Kanwar under Section 8/25 of the NDPS Act and sentenced both the appellants for 12 years RI and fine of Rs. 1,20,000/- and in default of payment of fine to further undergo one year Addl. RI.
258. The brief facts of the case are that on 8.12.2011, during the course of patrolling, police recovered seven jute bags lying in vehicle in abandoned condition. On weighment jute bags were found to be containing 165 kgs of poppy straw. The contents of bags were emptied on a Tirpal ( Tarpaulin) and 500 gms of sample and 500 gms control sample was drawn.
259. The contention of learned counsel for the appellants is that `muddamal' produced in the court was not the same which was recovered from the abandoned vehicle.
260. My attention has been drawn towards the statement of PW/13 (Rakesh Joshi). The relevant portion of which reads as under:-
"स ब र Seal chit नह. ह& । ब र पर कम क
1 स 7 अकक ह& ।"
261. The other contention of learned counsel is that when the samples were drawn, they were marked as `A' and control sample was marked as `B' whereas the report has been given for packet 104 of 133 marked as A/1.
262. The contention is, thus, that even under Section 313 Cr.P.C., the question regarding A1 was put to the accused whereas in the seizure memo Ex P/3, sample has been marked as `A' thus, the contention is that it has not been established that the sample which reached to the FSL was the same which was taken from the spot. The other contention of the counsel is that the samples were not drawn from each bag separately rather they were emptied and then samples were drawn which is in contravention of notification No. 1/88. The other contention relating to Smt. Manisha Kanwar appellant is that the RC is in the name of Smt. Manisha Kanwar, but this has not been established that the contraband being transported was in her knowledge.
263. Learned Public Prosecutor has contended that the vehicle belong to Smt. Manisha Kanwar, appellant Jaswant Singh happens to be her husband and thus involvement of both the appellants was writ large and merely because the samples were not drawn from each bag the appellant cannot derive any benefit.
264. I have considered the rival contentions of the parties. The total 7 bags containing 165 kg of poppy straw is said to have been recovered. It is clear case of the prosecution that the bags were opened on the Tirpal (Tarpaulin) were mixed and then two samples 105 of 133 of 500 gms. each was drawn. It is also admitted position that the car bearing No. RJ 27-1-C6286 was found in a abandoned condition from where the bags have been recovered. The `muddamal' has not been produced in the Court in selfsame condition. The bags as were produced in the court were not bearing any seal chits thus, it is an admitted case that the `muddamal' seized by the police was not produced in the court in selfsame condition.
265. Yet another point which has bearing on the case is that under Section 313 Cr.P.C. pertaining to mark A-1 a question was put to the accused. The another question which was put to the accused was that the poppy husk sample marked as mark A-1 which was sent to FSL, Jaipur and the report Ex. P/29 exhibits that the same contained poppy husk. From perusal of Ex. P./29 in the description of the bags given in the report, it is mentioned that bag marked `A' was received but in the result, on examination, it is mentioned that mark `A' was found to contain poppy husk of "dried, crushed capsule of opium poppy". As per the seizure memo, Ex P/3, the sample was marked as `A' and the control sample was marked as `B'. The sample which was received by the FSL was marked as A but report pertains to A1. The question which was put to the accused also pertains to A-1. Thus, the accused was having an opportunity to give his explanation resulting to sample A which was actually drawn. To my mind this also has an adverse effect on the case of the prosecution. If sample A was drawn and was sent for FSL how could the report pertains to 106 of 133 A1. The chance that FSL has sent report of some other case cannot be ruled out. The appellants are thus, entitled to benefit of doubt in this case. Since `mudamal' has not been produced in selfsame condition, the samples have not been drawn in accordance with notification No. 1/88. The report sent by FSL pertains to Ex. P/29. The samples which were packed into packet were marked as A1. The conviction of the appellant can be sustained.
266. The learned trial court has not considered the fact of non production of `mudamaal' in self same condition. The trial court has also not considered the fact that there was contravention of notification No. 1/88 and the samples were not drawn separately from each bag however, the learned trial court has not considered the conduct of seeking explanation under Section 313 Cr.P.C. in relation to mark A1. The bags sent for FSL were marked as A, the judgment and sentence passed by the trial court, therefore, cannot be sustained.
267. Consequently, this appeal deserves to be allowed and the same is hereby allowed and the conviction and sentence of the appellant under Section 8/15 ( c) of the NDPS Act deserves to be set aside. The appellant is acquitted of the charges levelled against him. He is directed to furnish a personal bond of Rs. 50,000/- and two sureties of Rs. 25,000/- in compliance of Section 437-A Cr.P.C. Within the period of two months.
107 of 133 (29) S.B. CRIMINAL APPEAL NO. 422/2016 BHANWAR LAL Vs.STATE OF RAJ.
(30) S.B. CRIMINAL APPEAL NO. 1107/2015 THANA RAM VS. STATE OF RAJ.
268. The appellants have preferred separate appeals aggrieved by the judgment and sentence dated 13.10.2015 passed by the Special Judge, NDPS Cases Chittorgarh in Sessions Case No. 63/2008 whereby he has convicted Bhanwar Lal for offence under Section 8/15 NDPS Act and has imposed sentence of 20 years RI and fine of Rs. 1 lac and in default of payment of fine to further undergo 3 years' SI. For offence under Section 3/25 Arms Act, one year R.I. with fine of Rs. 5000/- and in default of payment to further undergo three months SI. For offence under Section 420 IPC- 3 years RI with fine of Rs. 5000/- and in default of payment of fine to further undergo Six months' SI. For offence under Section 467 IPC- 5 years' RI with fine of Rs. 5000/-in default of payment of fine to further undergo six months' SI. For offence under Section 468 IPC 5 years' RI with fine of Rs. 5000/- and in default of payment of fine to further undergo 6 months' SI. The appellant Thanaram has been convicted for offence under Section 8/25 of NDPS Act and has been sentenced to 20 years RI and fine of Rs. 1 lac and in default of payment of fine to further undergo 3 years' SI.
108 of 133
269. The factual matrix of the case are that on 01.6.2008 at 1.15 a.m. the SHO Madan Singh Chundawat police Station Gangrar received an information that a Mahendra Pick-UP bearing registration No. R06G- 0609 would be going towards Bhilwara. The Police barricaded the high-way at 2.50 a.m., the pick-up was seen coming from the side of Bassi. On signaling to stop the vehicle, the same did not stop. It was chased by the police party on which the driver of the pick-up lost control and collided with a Babool tree.
270. The person sitting on the cleaner side ran away and the driver was found stuck between the staring and seat, he was sent to hospital. The vehicle was carrying 18 bags and total weight of the bags was six quintal and seven Kg. The bags were than emptied on the road and a sample and a control sample of 500/- gms each was drawn.
271. The contention of learned counsel for the appellants is that a search and seizure was done after sunset and before sunrise but the provisions of Section 42 and proviso of Section 42 (2) were not followed. It is also contended that the seized contraband (poppy husk) was not produced in the Court. In this regard, my attention has been drawn towards the statement of PW/14 Madan Singh. The relevant portion is reproduced hereunder:-
न ट:- थ न गगर र स थ न चधक र. न 0 हन 0
109 of 133
ड ड चर नय य लय म ल न म असमथ6 ज रहर
कर ब य कक ड ड चर क ब र सड गल गय 0
0 हन क फF समय स 0 हन पड ह न स नय य लय
म ल न कF जसथन म नह. ह& । ड ड चर 0 0 हन क
प थ6न पत क स थ फ ट ग फ पश ककय ह& 0
र जन मच कF सतयपन भ3 पश कF गई। 0 हन
पस नह. ककय ज न क सबध म म&कननक ररप ट6
भ3 पश कF ह& ।"
272. The other contention of learned counsel for the appellants is that the samples were not drawn from each bag independently but were mixed and then samples were taken which is in contravention of the notification 1/88. The other contention of learned counsel for the appellant is that PW/14 SHO Madan Singh in court pointed out towards Chandrabhan and stated that he was appellant Bhanwar lal. The other contention is that the information under Section 41 (2 ) of the Act was not produced in the Court. The relevant portion of the statement of PW/14 in this regard is reproduced hereunder:-
"यह सह. ह& कक ध र -42 (1) कF सच
! न
पत 0ल. पर नह. ह& । मझ ज मखव0र कF
स!चन समल. उसक र जन मच क अल 0
अलग स क गज पर नह. सलख थ ।"
273. The other contention of learned counsel for the appellants is that the recovery memo Ex. P/2 does not bear the signature of the accused thus, the Court has utterly failed in convicting the accused appellants. With regard to the accused appellant Thana Ram, it is 110 of 133 argued that it is not proved that vehicle which was seized and was bearing registration No. R6 G 0609 was actually vehicle bearing registration No. RJ 21 G 1876 of which Thanaram was the owner. It is also contended that Motbir in this case has turned hostile and there was no justified reason in convicting the accused.
274. The learned Public Prosecutor on the other hand contended that the accused Bhanwar Lal was arrested from the site and minor discrepancies cannot be taken note of for acquitting the accused. It is argued that as many as 24 witnesses have been examined by the prosecution and the factum of recovery of contraband has been established.
275. I have considered the rival contentions of the parties. From the statement of PW/14, it is evident in the note appended thereto that the poppy husk was not produced in the Court. It is also evident that the information was received in the mid-night at 1.15a.m. and the recovery was effected at 3.30am. in the night i.e. before sunrise. The proviso of Section 42 (1) and Sec. 42 (2) has admittedly not been complied in this case. Yet another important aspect of this case is that the investigating officer identified the accused of other case to be the appellant Bhanwar Lal of this case.
276. The notification No. 1/88 has also not been followed. Two samples each were not drawn from 18 bags, as per the prosecution, 111 of 133 the bags were emptied and mixed and then samples were drawn. As far as offence of cheating is concerned, the allegation in the case is that the pick-up was being run with fake number. The prosecution has failed to produce the owner of the pick up. No information from the RTO office has been gathered in relation to the vehicle which has been recovered. The proof of ownership of the vehicle bearing registration No. RJ 06 G 0609 has also not been produced. Thanaram the owner of the pick-up was also not produced. Thus, the prosecution has utterly failed to prove the commission of offence under Sections 420, 467 and 468 IPC.
277. As far as recovery of two live cartridge and a revolver from the pick up which was driven by Bhanwar Lal is concerned, the same has been established by the evidence of witness, therefore, the conviction of the appellant Bhanwar Lal under Section 3/25 of the Arms Act calls for no interference. There being clear violation of proviso of Section 42 (1) and the Section 42 (2) non-production of Muddamal, in compliance of notification No. 1/88, the conviction of the appellants under NDPS Act and for offence under Section 420, 467 and 468 deserves to be set aside.
278. Consequently, appeal No. 422/2016 is partly allowed. The conviction of the appellant Bhanwar lal under Section 8/15 ( c ) of the NDPS Act and under Sections 420,467, 468 IPC is quashed and set aside. The conviction of the appellant Bhanwar lal under Section 112 of 133 3/25 of the Arms Act is upheld.
279. Appeal No. 1107/2015 is allowed. The conviction of appellant Thanaram under Section 8/25 of the NDPS Act is quashed and set aside. The appellant Thanaram is directed to furnish personal bail bond of Rs. 50,000/- each with two sureties of Rs. 25,000/- to the satisfaction of learned trial court in compliance of Section 437-A Cr.P.C. within the period of two months.
( 31) S B CRIMINAL APPEAL NO. 193/2016 RAM LAL REGAR @ RAMU Vs. STATE OF RAJ.
280. The appellant has preferred this appeal aggrieved by the judgment and sentence dated 08.2.2016 passed by the learned Special Judge, NDPS Cases, Jodhpur whereby he has convicted the appellant under Section 8/15 ( c ) of the NDPS Act and has sentenced him to undergo imprisonment of 10 years and imposed a fine of Rs. 1 lac and on non payment of which to further undergo RI of one year. The appellant has also been convicted under Section 482 IPC
281. The factual matrix of the case are that on 14.7.2012 at 7.15 a.m. SHO Sitaram, Police Station Rohat received a secret information that a white scorpio bearing registration No. RJ 14 UA 8969 will be carrying contraband from Pali to Jodhpur. The vehicle was forced to stop, which was driven by Ramlal and from the 113 of 133 vehicle 18 bags of poppy straw were recovered. The total weight of the bags along with the contents was 385 kg. separate samples from each bag was drawn.
282. The police after investigation filed the charge-sheet against the present appellant. The Court framed the charge under Section 8/15 ( c ) and 8(15) read with Section 29 of the NDPS Act and Section 482 IPC. As many as 14 witnesses have been examined on behalf of the prosecution and 35 documents were exhibited. The statement of the accused was recorded under Section 313 Cr.P.C. In defence Smt. Santosh was produced as DW/1. The learned Court after hearing the arguments has convicted the appellant under Section 8/15 ( c )of the NDPS Act and has imposed a sentence of 10 years RI and fine of Rs. 1 lac on non payment of fine the appellant has been directed to further undergo one year RI and appellant has been directed to further undergo 15 days RI. The appellant was further convicted under Section 482 IPC and has been sentenced to one year RI and a fine of Rs. 1000/- on non payment of fine to further undergo 15 days RI. Aggrieved by this, the appellant has preferred this appeal.
283. The main contention of learned counsel for the appellant is that the muddamal which was produced in the court were not having seal chits thus, it was not established that muddamal produced in the court was the same which was seized from the vehicle. My attention has been drawn from the statement of PW/8 Sitaram Khoja. The 114 of 133 relevant portion of which is reproduced hereunder:-
"पतयक 0जह सब! आरट6 कल 37 स 54 पर
म क6र स म. न. अकक ह& । समय अचधक
ह न स 0 ब ररश क म@सम ह न स सड-गल
गए ह& । समय अचधक ह न स ब रK पर स
चप फट गई।"
"यह कहन सह. ह& कक 0जह सब! मल ज
आज नय य लय म पश हआ ह& उस पर चचट
चप 0 स3ल नह. ह& । अजखद कह कक फट
गए ह& यह कहन सह. ह& कक चप लगन क
ननश न ब ररयK पर नह. ह& कय कक भ3गन
क ब द समट चक ह& ।"
"यह कहन सह. ह& कक आरट6 कल 37 स 54
पर मर, म@ ब3रK 0 मलजजम क हस कर
नह. ह& । अजखद कह कक हस कर चपK पर
कर0 ए थ ज अब फट चक ह& । यह कहन
सह. ह& कक आरट6 कल 37 स 54 क पर
म क6 सपषट अकक नह. रदख रह ह& ।"
284. The other contention of counsel for the appellant is that
article No. 1 to 27 were not having any chit. The relevant portion of the statement with relation to Article No. 1 to 27 is reproduced hereunder:-
"यह कहन सह. ह& कक आरट6 कल न. 1 स 27
115 of 133 क द नK ओर स स3ल. हई ह& उन ससल ई पर क ई चचट लग3 हई नह. ह& न ह. ससल ई पर चप लग हआ ह& ।"
285. With regard to article 36 & 54 it is stated that the articles 36 & 54 material may be taken out and may be filled. The relevant portion is reproduced hereunder:.
"यह कहन सह. ह& कक 0जह सब! आरट6 कल
न. 37 स 54 क आज कF जसथन म
ख लकर म ल ननक ल भ3 ज सक ह& और
भर भ3 ज सक ह& ।"
286. It is also contended by the learned counsel that it has not been established that the scorpion was a stolen vehicle.
287. The learned Public Prosecutor contended that due to passage of time, the seal chits got destroyed and since the samples have been found to be containing poppy straw merely because the seal chit on the bag has been destroyed, it cannot be inferred that the accused appellant is not guilty.
288. I have considered the rival contentions of the parties and has perused the evidence and documents. It is an admitted position that Muddamal produced in the Court was not having seal chits. It has
116 of 133 also come in evidence that the bags in which the material was produced was not having any signs of putting of seals. It is an admitted position that 18 bags were not having signatures of the accused, witness and the seizure officer. This witness has further admitted that from article 37 to 54 contents can be withdrawn and refilled. Thus, it is established that the material seized was not produced before the court and selfsame condition.
289. Article 1 to 27, the sample was also not having any chits and there was no seal on the stitching. The control sample which was produced in the court was not having proper seals and chits as admitted by PW/8 but the fact that the samples were sent for FSL and as per report Ex. P/22 (A to 4) were found to contain chief constituents of opium as well as the samples were found to be of `Dried, crushed capsule of opium Poppy" is not disputed. All the 18 samples which were sent for chemical analysis to the FSL were approximately weighing 500 gms. The total weight of poppy husk which was sent for chemical analysis was thus 9 kg.
290. Since muddamal has not been produced in the court but separate samples have been drawn the possibility of samples being drawn from one bag cannot be ruled out. The total consignment which was recovered was 385 kg thus, on an average each bag was carrying around 22 kg of poppy husk. Since there is an possibility of sample being drawn from one packet and since the prosecution has 117 of 133 failed to produce `Muddamal' in selfsame condition in court, at the most, the appellant can be held guilty for being in possession of 22 kg. of poppy husk.
291. The learned trial court has not taken note of non production of `mudamal' before the Court in its true perspective. The learned trial court has also not considered the factum of control sample not having proper seals and chits, the judgment and sentence passed by the trial court cannot be sustained in its entirety.
292. Consequently, the appeals deserves to be and is partly allowed. The conviction of the appellant under Section 8/15 ( c ) of the NDPS Act for being in possession of commercial quantity of poppy husk is converted to Section 8/15 ( b) of the NDPS Act for being in possession of about 22 kg of poppy husk. The same being less than commercial quantity, the appellant is sentenced to 7 years RI and a fine of Rs. 50,000/-, on non payment of fine the appellants are directed to further undergo imprisonment of one year RI. As far as the conviction of appellant under Section 482 IPC is concerned the Scorpio from which recovery has been effected is a stolen vehicle and the number of the vehicle has been changed. Since the vehicle was carrying fake number, the conviction of the appellant under Section 482 IPC does not call for any interference. The conviction of the appellant under Section 482 IPC is thus confirmed.
118 of 133 (32) S.B. CRIMINAL APPEAL NO. 568/09 SURESH Vs. STATE OF RAJ (33) S.B. CRIMINAL APPEAL NO. 545/2010 GAINA RAM Vs. STATE OF RAJ.
293. The appellants have preferred separate appeals aggrieved by the judgment dated 27.6.2009 passed by the learned Special Judge, NDPS cases, Chittorgarh in Sessions Case No. 70/2004 whereby he has convicted the appellants for offence under Section 8/15 ( c )of NDPS Act and sentenced him for a period of 12 years' RI and fine of Rs. 1,50,000/- and in default of payment of fine to further undergo 1 ½ year RI.
294. Briefly stated the facts of the case are that on 19.6.2004, Pooran Singh received a secret information that the accused Suresh would be transporting 20 bags of poppy husk in truck No. RJ19 G 9871. The police barricaded the rode and stop the truck bearing registration No. RJ19 G 9871. The truck was being driven by Gena Ram and Suresh was sitting by his side. The truck was found to be containing 20 bags. The total weight of the contraband was 522 kg. One sample of 300 gms was drawn from each gunny bag but no control sample was drawn.
295. The police after investigation filed the charge-sheet against the present appellants. The accused Suresh and Gaina Ram were charged under Section 8/15 ( c ) of the NDPS Act and denied the 119 of 133 charge on which prosecution examined as many as 20 witnesses and exhibited as many as 51 documents and articles 1 to 10 were also exhibited before the Court. The statements of the accused appellants were recorded under Section 313 Cr.P.C. DW/1 Hanuman was produced as defence witness on behalf of the appellant. Document Exhibit D/1 was also exhibited on behalf of the defence. The Court after hearing the final arguments has convicted both the appellants under Section 8/15 (c ) of the NDPS Act for being in possession of commercial quantity of poppy husk and has imposed a sentence of 12 years RI and a fine of Rs. 1,50,000/- and on non payment of fine to further undergo imprisonment of 1 ½ years RI, aggrieved by which both the appellants have preferred separate appeals. As both the appeals arise by a common judgment, they are decided together.
296. The contention of learned counsel for the appellant is that not drawing of the control sample has a serious effect on the prosecution case, the same is in violation of notification No. 1/88 and has caused prejudice to the valuable rights of the accused.
297. The other contention of the learned counsel for the appellant is that out of 20 bags seized by the Police, only 9 bags were produced in the court.
298. My attention has been drawn towards the statement of PW/16 Shri pooran Singh Bhati who has admitted that :-
120 of 133
1."यह ब सह. ह& कक एनड3प3एस क म मल म द समपल ननक ल ज न क प 0ध न ह& लककन यह प 0ध न सव0ध क सलए ह& ।"
2."अजखद कह कक नमन ! K म 9 समपल क सरकक ह&, ब कF कछ कF नम!न ससल 0 थ&ल.य उदई (द.मक) न ख ल. ह& ज कट.- फट. हH।"
299. The contention of learned counsel for the appellant is that muddamal was not produced in the court. The articles which were produced in the Court were having marks as T-1, Q-1, R-1, O-1, G-1, H-1, F-1 and S-1.
300. His contention is that when these samples were sent to the FSL and were returned by FSL in one container how can when produced in Court were found to be in six packets.
301. The contention of learned Public Prosecutor is that the separate samples were drawn from each bag and merely because only one sample has been drawn, no valuable right of accused is being infringed.
302. I have considered the arguments advanced.
303. At the time of seizure, one sample and a control sample was 121 of 133 drawn from each packet and was marked as A-1 to T-1 and the bags were marked as A to T. These samples were then sent to the FSL and were marked as A1 to T1. The report Ex. LP/49 mentions that the samples were of "dried crushed capsule of opium poppy". It is clearly mentioned in Ex. P/49 that the remainants of the exhibits are being returned separately in one container and cover along with label received on it duly sealed along with seals. At the time when they were produced in the Court, they were six packets and from each packet two samples were found. The chits were found to be destroyed by termite and was not legible. It is apparently clear that when the FSL returned the samples in one container, it is highly doubtful as to how the same when produced in the court was in six packets. The chits produced in the Court were not legible thus, it is clearly a case where the samples returned by the FSL was not produced in the Court and the samples of the same may be of other case. Non-production of muddamal is also established in this case. Further drawing of only one sample is also established by the statement of PW/16.
304. In totality, the prosecution has failed miserably to bring home the charges against the present appellants for the reasons mentioned in the foregoing paragraph.
305. The trial court has not appreciated the fact of non production of `mudamal' in self same condition. The learned trial court has 122 of 133 further not appreciated the fact of not drawing of control sample. The Court has also not considered the violation of notification No. 1/88 in true perspective.
306. Consequently, appeals of the appellants are allowed. The conviction and sentence of the appellants under Section 8/15 ( c) of the NDPS Act is set aside and the appellants are acquitted of the charges levelled against them. The appellants shall furnish personal bonds to the tune of Rs. 50,000/- and two sureties of Rs. 25,000/- to the satisfaction of the learned trial court in compliance of the provisions of Section 437A Cr.P.C. within the period of two months.
(34) S.B. RIMINAL APPEAL NO. 15/2014
RAM NIWAS Vs. STATE OF RAJ.
307. The appellant has preferred this appeal against the judgment and sentence dated 13.11.2013 passed by the addl. Sessions Judge, Rajgarh district Churu in Sessions Case No. 3/2007 whereby he has convicted the appellant for offence under Section 8/15 ( c ) of NDPS Act and sentenced him to further undergo 10 years' RI and a fine of Rs. 1 Lac. In default of payment of fine to further undergo 1 year SI.
308. The factual matrix of the case are that on 23.5.2007 the SHO Tananagar, Shri Sanjay Sharma received a information at 6 a.m. that the appellant accused Ramniwas has stored poppy husk in his house. The search was conducted and 7 bags of poppy husk weighing 224 123 of 133 kg. were recovered. The sample of 250 gms. each and a control sample of 250 gms. was drawn from each packet. The bags were marked as A to J. Samples were marked as A1 to J1 and control samples were marked as A2 to 2 .
309. The police after due investigation filed challan against the present appellant. The accused was charged under Section 8/15 ( c ) of the NDPS Act. Accused denied the charge and sought trial, on which prosecution examined 10 witnesses 32 documents and 12 articles were also exhibited before the Court.
310. The Court after hearing the arguments convicted the accused appellants under Section 8/15 ( c) of the NDPS Act.
311. Aggrieved by which the present appellant has preferred this appeal.
312. The contention of learned counsel for the appellant is that muddamal was not produced in the court and at the most seven samples and seven control samples can be said to be containing poppy husk. The total weight of each sample being 250 gms. poppy husk would be 3 kg. i.e. less than the commercial quantity and, therefore, the conviction under Section 8/15 was not justified.
124 of 133
313. PW/5 Sanjay Sharma is the SHO who had conducted raid. This witness has not produced the Muddamal in Court and the only articles which have been produced and exhibited in Court are the samples and control sample which has been marked as Ex. 17 to 30. The bags which were marked as A to G at the time of seizure have not been produced in Court. Non production of Muddamal before the Court in view of the judgment of Netram and Alladin's case (supra) were having adverse effect on the case of the prosecution.
314. Learned counsel has placed reliance on Bhagirath Ram Vs. State of Rajasthan (supra).
315. Learned Public Prosecutor on the other hand has contended that the samples were drawn from each bag and they were sent separately to the FSL and the FSL in its report Ex.P/l32 has given a positive report of the samples of being "dried crushed capsule opium poppy.
316. I have considered the rival contentions of the parties.
317. In the present case, the samples which were sent to FSL and were marked as A1 to G1 all gave positive report for the presence of chief constituents of opium, hence as per the report, they were all "dried, crushed capsule of opium poppy" In total, seven bags have been seized in this case and total 224 kg. of poppy husk is said to 125 of 133 have been recovered from the present appellant. The average contents of each bag was thus 32 kg. The chances of sample being drawn from one bag cannot be ruled out but since seven samples were sent for FSL and each sample was weighing 250 gms. of poppy straw as also the fact that seven control samples were having 250 gms. each the total contraband which has been established to be of poppy husk comes to 3 kg.
318. The learned trial court has not considered the non production of `mudamal' in self same condition which is fatal to the prosecution.
319. Since `mudamal' was not produced in self same condition before the Court, the total weight 7 bags being 224 kg, the average weight of each bag would be approximately 32 kg. Chances of the sample being drawn form one bag cannot be ruled out. The accused can thus, be held guilty of being in possession of one bag of poppy husk which being approximately 32 kg was below commercial quantity.
320. The appeal of the appellant is partly allowed. The conviction of the appellant is converted to one under Section 8/15 ( b) of the NDPS Act. The appellant is sentenced to undergo imprisonment of 7 years RI and fine of Rs. 50,000/- and on non payment of fine to further undergo one year RI.
126 of 133
(35) S.B. CRIMINAL APPEAL NO. 828/2015
BHAG CHAND Vs. STATE
321. The appellant has preferred this appeal aggrieved by the
judgment and sentence dated 11.8.2015 passed by the learned Special Judge, NDPS Cases, Bhilwara in Case No. 27/2013 vide which he has convicted the appellant under section 8/15 (c ) and 8/18
(b) of the NDPS Act ans has imposed a sentence of 10 years RI and fine of Rs. 1 lac and on non payment of fine to further undergo one year imprisonment. Both the sentences were directed to run separately.
322. The case as built up by the prosecution is that on 09.3.2013, the SHO, Police Station Bigod lodged an FIR to the effect that on 08.3.2013 at 11 p.m. he received an information that a Bolero bearing registration NO. RJ 01 GA 8253 would be carrying poppy husk and opium from Chittorgarh to Ajmer. After necessary formalities barricading was done at around 2 a.m. The bolero was stopped but the driver taking advantage of darkness ran away.
323. The bolero was containing 21 bags out of which 20 were of plastic and one was of jute. The total weight of the contraband was 710 kg. 400 gms. 500 gms of sample was drawn from each bag and were marked as A1 to U1, control sample was marked as A2 to U2. Two polythene bags were also recovered and each bag was having 127 of 133 packet of 2kg of opium. The samples were drawn from these bags also and were marked as B1 to B2. Challan was filed against Bhagchand, Banwari Lal and Shambhoo Lal.
324. The trial court framed charges against the accused. Statement of witnesses were recorded and after affording an opportunity under Section 313 Cr.P.C. the trial court vide impugned order acquitted Banwari Lal and Shambhoo Lal and convicted the present appellant under Section 8/15 ( c) and 8/18 (b) of the NDPS Act. Aggrieved by which, the present appeal has been filed.
325. The contention of learned counsel for the appellant is that `mudamal' was not produced in the court in self same condition. This contention is based upon the statement of PW/8 Chaina Ram in whose statement a note has been appended by the Court that some of the bags are having torn seals chits and from some of the bags the material was coming out. In cross examination, this witness has admitted that there is no seal on the bags produced in the court and all are sewed with twine.
326. The contention of learned counsel for the appellant is also to this effect that no one was arrested from the spot from where vehicle was found and, therefore, the court was not justified in convicting the present appellant. It is also argued that court below has convicted the accused appellant only on the ground that he was 128 of 133 owner of the vehicle and on that basis, the court has assumed that he was involved in drug trafficking.
327. It is also contended that the independent witnesses have not been produced before the court, therefore, the entire seizure comes under cloud.
328. Learned counsel for the appellant has also contended that the seizure was done after sunset and before sunrise and, therefore, compliance of proviso to sub-section 1 of Section 42 of the NDPS Act was mandatory and since the same has not been complied with, in view of the judgment reported in State of Punjab Vs. Balveer Singh (supra) the appellant deserves to be acquitted.
329. Learned Public Prosecutor on the other hand has contended that commercial quantity of poppy husk and opium has been recovered from the vehicle which was owned by the appellant. The appellant has raised a plea of alibi, the same being a very weak defence cannot be accepted.
330. The learned Public Prosecutor has drawn my attention to the statement of DW/3 Surtan who is the father of the appellant and who has admitted that jeep belonging to his son but he has raised a defence that the jeep was given to one Shambhoo Dhakar. It is contended that the defence taken by the appellant under Section 313 129 of 133 Cr.P.C. is not justifiable.
331. I have considered the rival contentions of the appellants. PW/8 Chaina Ram who was the SHO Police Station Bigot deposed before the Court that on 8.3.2013 at 11 p.m. an information was received by an informant about the bolero bearing registration No. J1 GA 8253 that it would be coming from Chittorgarh and would be going towards Ajmer. The proviso of sub-section 1 of Section 42 provides that if Officer has reason to believe that search warrant or authorization cannot be obtained without affording an opportunity for concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance at any time between sunset and sunrise after recording the grounds of his belief. Sub-section 2 of Section 42 provides that if an Officer takes down any information in writing under sub-section 1 or records grounds for his belief in the proviso thereto, he shall within 72 hours send a copy to their immediate superior officials. Ex. P/5 is stated to be the information received at 11.00 p.m. on 8.3.2013. What has been noted in Ex. P/5 only pertains to information as received by the SHO. Exhibit P/5 cannot be considered to be compliance of the proviso to sub-section 1 of Section 42 as no grounds for belief that search or authorization cannot be obtained as has been mentioned in Ex. P/5. Thus, it is a clear case where there is violation of proviso to sub-section 1 of Section 42. This is further established from the fact that what has been forwarded to the superior officer is the 130 of 133 information received from the informant.
332. Sub-Section 2 of Section 42 is in two parts. The first part deals with recording of the information in writing in accordance with sub-section (1) and then forwarding to the superior officer within 72 hours. The second part deals with recording of grounds for his belief under the proviso of sub-section 1 of section 42. The proceedings done by the SHO in the present case pertains to the first part of sub-section 2 of section 42 to this effect that warrant or authorization cannot be obtained without affording an opportunity for the escape of the offender. Since the information was received at 11 p.m. and the witnesses were requisitioned at 11.20 p.m., the possibility of obtaining the search warrant was surely available with the SHO. The SHO has not given any justification for not having obtained the search warrant and since the reasons and belief has not been noted and has not been forwarded to the superior officers, this is a clear case of non compliance of proviso of sub-section (1) of section 42 and sub-section 2 of section 42 of the Act.
333. The learned trial court has not dealt with non compliance of the mandatory provisions of proviso of sub-section (1) of Section 42 and section 42 (2) of the NDPS Act. The trial Court has also not dealt with the non- production of `mudamaal' in self same condition in true perspective.
131 of 133
334. Considering the same, there being clear violation of not recording of the reasons for not having obtained search warrant or authorization and for not informing the superior officers, the impugned judgment and sentence deserves to be set aside. In addition it will not be out of place to mention here that the bags which were produced in the court were not bearing any seals and were sewed with twine further from many bags the material was coming out. The same were thus, not produced in self same condition. Independent witnesses were also not produced before the Court which creates doubt.
335. Consequently, the appeal of the appellant is allowed. The judgment and sentence passed against the appellant is set aside. The appellant is acquitted of the charges and directed to furnish a personal bond in the sum of Rs. 50,/000/- and two sureties of Rs. 25,000/- to the satisfaction of the learned trial court in compliance of section 437-A Cr.P.C within the period of two months.
336. In the result, Criminal Appeals No. 545/2014, 638/2008, 466/2014, 65/2015, 570/2014, 571/2014, 937/2013, 135/2015, 367/2015, 1107/2015, 568/2009, 545/2010, 695/2015, 916/2014, 940/2014 36/2015, 828/2015, 169/2014 and 259/2014 are allowed. The conviction and sentence of the appellants is quashed and set aside and the accused appellants are acquitted of the charges levelled against them. They are directed to furnish personal bond of Rs.
132 of 133 50,000/- and two sureties of Rs. 25,000/- each to the satisfaction of the trial court within two months in compliance of Section 437 A Cr.P.C.
337. In the result, Criminal Appeals No. 07/2016, 121/2016, 437/2015, 1017/2015, 47/2016, 702/2015, 1240/2015, 928/2015, 15/2014, and 81/2014 are partly allowed. The conviction is converted to Section 8/15 ( b) of the NDPS Act. The appellants in these appeals are sentenced to seven years RI and fine of Rs. 50,000/-. On non payment of fine to further undergo one year RI.
338. In the result Criminal Appeal No. 915/2014 and 827/2015 are partly allowed. The conviction and sentence is converted to Section 8/15 (b) of the NDPS Act and is sentenced to seven years RI and fine of Rs. 50,000/- on non payment of fine to further undergo 1 year RI. Similarly sentence under Section 8/25 of NDPS Act is also altered to seven years RI and fine of Rs. 50,000/- on non payment of fine to further undergo 1 year RI. The sentence of imprisonment shall run concurrently. Sentence under Section 3/25 Arms Act is upheld.
339. In the result, Criminal Appeal No. 80/2014 is partly allowed. The conviction and sentence is converted to Section 8/15 (b) read with Section 25 of the NDPS Act. Appellant is sentenced to seven years RI and fine of Rs. 50,000/- on non payment of fine appellant 133 of 133 to further undergo one year RI.
340. In the result Criminal Appeal No. 422/2016 is partly allowed. Consequently, appeal No. 422/2016 is partly allowed. The conviction of the appellant Bhanwar lal under Section 8/15 ( c ) of the NDPS Act and under Sections 420,467 and 468 IPC is quashed and set aside. The conviction of the appellant Bhanwar lal under Section 3/25 of the Arms Act is upheld.
341. In the result, Criminal Appeal No. 193/2016 is partly allowed. The conviction is converted to Section 8/15 (b) of NDPS Act. The appellant is sentenced to seven years RI and fine of Rs. 50,000/- on non payment of fine to further undergo 1 year RI. Sentence under Section 482 IPC is upheld.
342. In the result, Criminal Appeal No. 494/2014 is allowed, impugned judgment and sentence is set aside and the matter is remanded back to the trial court for disposal in accordance with law.
(PANKAJ BHANDARI), J.
nd.