Rajasthan High Court - Jodhpur
Sagar Ram vs State on 13 November, 2017
Author: Sandeep Mehta
Bench: Sandeep Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 1016 / 2015
Sagar Ram S/o Sh. Pokar Ram Bishnoi, B/c Bishnoi, R/o Fitkasani,
P.S. Luni, District Jodhpur.
----Appellant
Versus
The State of Rajasthan through learned Public Prosecutor
----Respondent
_____________________________________________________
For Appellant(s) : Mr.M.L.Bishnoi.
For Respondent(s) : Mr.O.P.Rathi, P.P.
_____________________________________________________
HON'BLE MR. JUSTICE SANDEEP MEHTA
Judgment / Order Date of Pronouncement : 13/11/2017 The instant appeal is directed against the judgment dated 1.9.2015 passed by learned Special Judge, N.D.P.S. Cases No.2, Chittorgarh in Sessions Case No.126/2014 (25/2012) whereby the learned trial court convicted and sentenced the appellant as below:
For offence under Section 8/15 15 Years' R.I. and a fine of N.D.P.S. Act Rs.1,50,000/-, in default to further undergo one year's additional R.I. For offence under Section 8/25 15 Years' R.I. and a fine of N.D.P.S. Act Rs.1,50,000/-, in default to further undergo one year's additional R.I. For offence under Section 420 2 Years' R.I. and a fine of I.P.C. Rs.2000/-, in default to further undergo one month's S.I. All the sentences were directed to run concurrently.
(2 of 9) [CRLA-1016/2015] By this very judgement the accused Prakash was also convicted along with the appellant for the offence under Section 8/15 of the N.D.P.S. Act and was sentenced to 15 years R.I. and a fine of Rs.1,50,000/- in default to further undergo one year's R.I. Facts in brief are that the appellant herein and the co- accused Prakash were apprehended from a Tata Safari bearing registration plate No.RJ27.UB.4359 by the S.H.O. P.S. Bhadsoda on 19.9.2011 during a routine Nakabandi. When the Police party flagged the driver of the vehicle to stop the same, he tried to turn around in order to escape and during this process, the vehicle collided with an electric pole as a result whereof, the occupants of the car suffered some minor injuries. The appellant was driving the vehicle whereas while Prakash Bishnoi was sitting by his side. Looking to the suspicious conduct of the accused, the procedure provided under the N.D.P.S. Act was carried out and the vehicle was searched. Some gunny bags were seen concealed in the rear side of the vehicle. Upon opening, they were found to contain poppy straw. The accused could not provide any licence or permit for carrying the poppy straw. On this, both were arrested. Seizure documents were prepared and after returning to the Police Station, an F.I.R. No.112/2011 was registered at the P.S. Bhadsoda for the offence under Section 8/15 of the N.D.P.S. Act. During investigation, an inquiry was made regarding the registration number mentioned on the offending vehicle and the same was found to be of a Maruti Omni Van. The appellant herein was charge-sheeted for the offences mentioned above whereas, (3 of 9) [CRLA-1016/2015] Challan was filed against the co-accused Prakash for the offence under Section 8/15 of the N.D.P.S. Act. Both were convicted and sentenced in the above terms. Prakash preferred a separate appeal No.1017/2015 against his conviction. It appears that inadvertently, the appeals preferred by the two accused persons against the common judgment passed by ther special court were not tagged together. The appeal of Prakash was bunched together with other similar cases and was decided by a coordinate Bench of this Court vide a common judgment dated 22.8.2016. Whilst partly accepting the appeal preferred by Prakash, this Court held that the prosecution could prove the recovery of poppy straw only to the extent of the weight of the samples collected by the Seizure Officer because the entire Muddamal was not presented and exhibited in the Court in the selfsame condition. The Bench, thereupon altered the conviction of the co-accused Prakash from the offence under Section 8/15(c) of the N.D.P.S. Act to one under Section 8/15(b) of the N.D.P.S. Act and sentenced him to 7 years' R.I. and a fine of Rs.50,000/-, in default to further undergo one year's R.I. The findings recorded by the coordinate Bench in the case of Prakash are reproduced hereinbelow:
"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 (4 of 9) [CRLA-1016/2015] 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 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:-
"ftldk lHkh cksjks dks [kksydj jksM ds fdukjs ,dlkj fd;k rFkk blesa ls nks lsEiy 500&500 xzke ds , vkSj ch ekdZ dUVzksy lsEiy o uewuk lsEiy fudkys x,A lHkh cksjks dks iwoZ esa rkSyus ij mudk dqy otu 402 fdyksxzke gqvkA ftlesa ls 1 fdyks lsEiy ds fy, fudkyk x;k] 'ks'k cksjksa dks okil Hkjdj lhyfpV fd;k x;kA mDr lsEiy dks Hkh lhyfpV fd;k x;k] ftlesa Fkkuk gktk dh czkl lhy dk iz;ksx fd;k x;kA"
This witness has further stated that:-
"vkt U;k;ky; esa cMs 7 cksjs vk;s gSA ;g lgh gS fd fdlh Hkh cksjs ij fpV ugha gS rFkk cksjs lhycan ugha gSA ekSds ij tCr fd;s lkrksa cksjksa ij og IykfLVd ds doj ugha gS vt[kqn dgk fd [kqnZ&cqnZ gksus ls u, esa yk;s x, gSA"
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 (5 of 9) [CRLA-1016/2015] 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 mixed and then representative sample was drawn is contrary to Ex.P/5, wherein it is mentioned that small quantity of poppyhusk 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 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.
(6 of 9) [CRLA-1016/2015]
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."
Shri M.L.Bishnoi learned counsel representing the appellant Sagar Ram has placed on record a copy of the order dated 10.2.2017 passed by Hon'ble Supreme Court in the SLP (Cri) No.2249/2017 whereby, challenge laid by Prakash to the said judgment of the Single Bench was turned down by Hon'ble Supreme Court. Shri Bishnoi has made a statement at bar that to the best of his knowledge, the judgment passed by the coordinate Bench of this Court in the appeal of Prakash was not challenged by the State Government and has thus attained finality. Shri Bishnoi thus contended that the appellant Sagar Ram deserves the same treatment as Prakash and his conviction cannot be sustained for the offence under Section 8/15(c) of the N.D.P.S. Act and should be altered to one under Section 8/15(b) of the Act. As regards conviction of the appellant for the offence under Section 8/25 of the N.D.P.S. Act, Shri Bishnoi urged that the prosecution did not lead any admissible evidence whatsoever to prove that the appellant Sagar Ram was having ownership or dominion over the offending vehicle and that he allowed the same to be used by someone else for transportation of a contraband narcotic substance. He thus implored the Court to set aside the appellant's conviction for the offence under Section 8/25 of the N.D.P.S. Act.
(7 of 9) [CRLA-1016/2015] and as a consequence, for the offence under Section 420 I.P.C.
Learned Public Prosecutor is not in a position to dispute the fact that the case of the present appellant and that of the co-
accused Prakash is in no manner distinguishable so far as recovery of the contraband poppy straw is concerned. As stated above, the conviction of Prakash has been mollified to one under Section 8/15(b) of the N.D.P.S. Act by the coordinate Bench, the appellant deserves to be dealt with commensurately. As regards, conviction of the appellant for the offence under Section 8/25 of the N.D.P.S. Act and Section 420 I.P.C. is concerned, learned Public Prosecutor vehemently opposed the submissions advanced by Shri Bishnoi and urged that no interference is called for in the findings recorded by the trial court on these aspects because the appellant while having control over the offending vehicle, used the same for transportation of huge quantity of contraband poppy straw after affixing a fictitious number plate thereupon. He thus urged that the conviction of the appellant for these offences should be rejected.
For the purpose of considering the challenge given to the appellant's conviction for the offence under Section 8/25 of the N.D.P.S. Act, the language of the provision needs to be appreciated.
"25. Punishment for allowing premises, etc., to be used for commission of an offence.-- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence."
(8 of 9) [CRLA-1016/2015] On a plain reading of the Section, it is manifest that an accused person can be charged and tried for the offence under Section 8/25 of the N.D.P.S. Act if he, being, the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly allows the same "to be used by someone else" for the commission of any offence under the N.D.P.S. Act (Emphasis supplied). Thus, even if it is assumed for the sake of argument that the accused appellant Sagar Ram was having dominion over the offending vehicle, then too, since he was personally driving the same, apparently, he cannot be held guilty for the offence under Section 8/25 of the N.D.P.S. Act, which provides for vicarious liability of the owner, occupier or person having control or use of any house, room, enclosure, space, place, animal or conveyance. Such person can be held guilty for the offence under Section 8/25 of the N.D.P.S. Act if he or she knowingly allows the premises or conveyance to be used by any other person for the commission of an offence punishable under any provision of the N.D.P.S. Act. As the appellant was himself using the offending vehcile for transportation of poppy straw, obviously he cannot be convicted for the offence under Section 8/25 of the N.D.P.S. Act. However, as the offending vehicle was being used after appending a fictitious number plate thereupon, manifestly, conviction of the appellant for the offence under Section 420 I.P.C. cannot be questioned.
In view of the discussion made hereinabove, the appeal (9 of 9) [CRLA-1016/2015] preferred on behalf of the appellant Sagar Ram deserves to be accepted in part. The impugned judgment dated 1.9.2015 is modified in the following terms:-
The conviction of the appellant as recorded by the trial court and the sentences awarded to him for the offence under Section 8/25 of the N.D.P.S. Act are quashed and set aside and he is acquitted of the said offence. However, the conviction and sentence awarded to the appellant for the offence under Section 420 I.P.C. is maintained. In view of the findings recorded and conclusions drawn in the judgment dated 22.8.2016 passed by a coordinate Bench of this Court in Conviction Appeal No.1017/2015 preferred by the co-accused Prakash against the very same impugned judgment, the conviction of the appellant Sagar Ram is altered from the offence under Section 8/15(c) of the N.D.P.S. Act to one under Section 8/15(b) of the N.D.P.S. Act. He is sentenced to 7 years' R.I. and a fine of Rs.50,000/-, in default of payment of fine, to further undergo one year's R.I. Both the sentences shall run concurrently.
The appeal is partly allowed in these terms.
(SANDEEP MEHTA),J.
/tarun goyal/