Rajasthan High Court - Jodhpur
State vs Bhaboot Singh And Ors on 25 July, 2022
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 228/1990 State of Rajasthan
----Appellant Versus
1. Bhaboot Singh S/o Shri Idan Singh, by caste Rajpur, resident of Ola.
2. Deep Singh S/o Shri Ran Singh, by caste Rajput, resident of Ola.
3. Goma Ram S/o Shri. Harji, by caste Jat, resident of Batai.
Police Station Gida, District Barmer.
----Respondents
For Appellant(s) : Mr. S.K. Bhati, PP for the State
For Respondent(s) : Mr. R.S. Chouhan
JUSTICE DINESH MEHTA
Judgment
25/07/2022
1. The instant appeal under Section 378 (iii) and (i) of the Code of Criminal Procedure (hereinafter referred to as "the Code") has been preferred by the State of Rajasthan, assailing the judgment dated 29.01.1990 passed by the Munsif and Judicial Magistrate, First Class, Barmer (hereinafter referred to as 'the trial Court') in Criminal Case No.279/85, whereby the accused-respondents were acquitted for the offences under Section 4 and 9 of the Opium Act, 1878 (hereinafter referred to as 'the Act of 1878').
2. Mr. Bhati, learned Public Prosecutor at the outset informs the Court that during pendency of the present appeal, respondent No.3 - Goma Ram has passed away.
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3. Hence, the appeal qua respondent No.3 - Goma Ram is abated.
4. Facts appertain for the present purpose are that based on the information received from an informer (mukhbir) regarding potential illicit trade of opium, the police intercepted a jeep GJF- 2292 at 3:00 a.m. on the morning of 31.03.1985. Three persons viz., Bhabhoot Singh, Deep Singh and Goma Ram (accused respondents herein) who were sitting in the jeep ran away; they were followed and later arrested by the police personnel.
5. Upon searching the jeep, the police party headed by the then Deputy Superintendent of Police - Shri Sultan Singh found two packets containing 6.25 kgs of opium and 9 kgs of opium milk. Those packets were seized after drawing 50-gram samples from each packet. The samples as well as the remaining substance were sealed with a ring with the inscription "RR" belonging to one Rajaram. The Deputy Superintendent of Police registered an F.I.R under sections 4 and 9 of the Act of 1878 on the same day at Police Station Geda against the accused respondents herein.
6. Charges were framed and the accused respondents denied the charges against them and asked for a trial. During the course of the trial, ten prosecution witnesses and two defence witnesses testified, out of which, PW- 2 Taga Ram and PW - 4 Sagar Ram turned hostile.
7. PW-1 Sultan Singh (Dy. S.P.) stated that based upon the information received from undisclosed informant, he lead a team of 8 police persons to set up a nakabandi near Batadu police post, where the aforementioned interception was made. He testified that he affixed seal on the samples collected and handed over the seal and the samples to the police personnel. During cross (Downloaded on 28/07/2022 at 08:31:50 PM) (3 of 9) [CRLA-228/1990] examination, he also admitted that even though the sample presented before the trial court does not appear to have been tampered with, the seal affixed by him is not intact, probably due to passage of a long period of time.
8. PW-10 Jalam Singh though supported the prosecution story but during cross-examination stated that the ring with inscription "RR" that was used as the seal belonged to Rajaram and remained in his possession after the seizure rather than police custody.
9. PW-7 Rajaram testified that after the seizure, the sample remained with one Gani Mohammad, who was the malkhana incharge. PW-9 Gani Mohammad testified that he handed over the sample to Narnaram on 21.04.1985, while PW-6 Narnaram stated that he received the sample from Rajaram on 21.04.1985 and handed over the same to Pemaram the next day, i.e., on 22.04.1985.
10. PW- 5 Pemaram corroborated the receipt of the sample from Narnaram and stated that he handed it over to Hanuman Singh on the same day itself. PW-3 Hanuman Singh corroborated the fact of receiving the sample at Barmer and submitting it at Laboratory at Jaipur on 24.04.1985.
11. PW-8 Purshottam recollected the events of the seizure in his statement.
12. From the defence's side, DW-1 Chandan Singh testified that Respondent no. 1 Bhabhoot Singh was his relative and had come to his home to get his daughter's marriage fixed. He stated that the police came to his house at wee hours and arrested Bhabhoot Singh from his house.
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13. After appreciating the evidence on record, the trial court acquitted all three accused respondents per viam order dated 29.01.1990, which is subject matter of present appeal.
14. The learned Public Prosecutor made six-fold submissions to show that the trial court has accepted flimsy grounds raised by the accused persons and acquitted them. Firstly, the learned Public Prosecutor submitted that the trial court has erred in holding that since the jeep was not owned by the accused respondents and they ran away while the recovery was made from the jeep, the recovery cannot be linked to the respondents.
15. Mr. S.K. Bhati argued that secondly, the owner of the vehicle in question was not required to be implicated or made accused as per Section 9 of the Act of 1878. Moreover, since the respondents were sitting inside the jeep in question, they were having conscious possession of the opium so recovered from the jeep.
16. Learned Public Prosecutor thereafter submitted that the trial court has erroneously concluded that since neither the name of the mukhbir has been disclosed nor the information received from mukhbir has been entered in the roznamcha report, the Deputy Superintendent of Police did not receive any information at all. He emphasised that the Deputy Superintendent of Police was under
no legal obligation to do the same.
17. Further, it has been argued by learned Public Prosecutor that merely because seal affixed on the samples has been found loosened, the trial court should not have reached the specious conclusion that the sample has been tampered with. He argued that the samples had exchanged many hands before they were brought before the Court and in this process, seals can be loosened.
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18. Furthermore, it was the assertion of the learned Public Prosecutor that the veracity and legality of an investigation conducted by an investigating officer, who otherwise had the jurisdiction to investigate the matter, cannot be questioned solely by virtue of the fact that the rank of such investigating officer is below the rank of the seizure officer in the present case. Therefore, the trial court's conclusion that the investigating officer must have felt compelled to file the charge-sheet against the accused respondents is absolutely untenable.
19. Lastly, it is the stand of the learned Public Prosecutor that merely on ground of a small delay, the accused respondents could not have been acquitted by the trial court. Had a question been put to the Deputy Superintendent of Police during cross- examination as regards the delay of four days in presenting the FIR (which was filed on 31.03.1985) before the Magistrate (on 04.04.1985), he would have satisfactorily explained the same.
20. Mr. R.S. Chouhan, learned counsel for the respondents, on the other hand, submitted that the statements of the then Deputy Superintendent of Police - Sultan Singh (PW - 1), Rajaram (PW -
7), Gani Mohammad (PW - 9), Jalam Singh (PW- 10), clearly indicate that after the seizure, the samples were handed over to PW - 7 along with his ring that was used as the seal to secure the samples of the material seized from the respondents and both - the samples as well the seal, remained in his possession from 31.03.1985 till 21.04.1985, before being deposited for FSL at Jaipur on 24.04.1985.
21. Mr. Chouhan further argued that the statement of PW- 1 clearly establishes that firstly, the seal was affixed at the centre of the envelope which effectively rendered it useless, and secondly, (Downloaded on 28/07/2022 at 08:31:50 PM) (6 of 9) [CRLA-228/1990] the witness has admitted that the seal was not found affixed at the correct place; it was rather torn at three edges and barely held together by an all-pin.
22. Learned counsel for respondents relied upon the judgment dated 23.01.1980 rendered by Hon'ble the Supreme Court in the case of State of Rajasthan vs. Daulat Ram reported in AIR 1980 (SC) 1314 to support his contention that the onus to prove that the seal remained intact at all the links from the seizure stage until the seized sample reaches the public analyst lies with the prosecution.
23. It is, therefore, the contention of the learned counsel for the respondents that the probability of the sample having been tampered with is too high to be ignored and the trial court has correctly accorded the benefit of doubt in the favour of accused respondents.
24. Heard the rival counsel and perused the material available on record.
25. So far as the first argument of Mr. S.K. Bhati that owner of the jeep was not required to be made a party is concerned, this Court finds that the Act of 1878 does not draw any inference with regards to the liability of the owner of the vehicle from which recovery has been made, nor does it mandate that the owner of the vehicle in question be implicated or made a co-accused in the case.
26. Under the provisions of Sections 4 and 9 of the Act of 1878, "possessing, transporting, importing or exporting, or selling" etc. of opium has been made an offence. In the present case, the accused respondents were found to be in conscious possession of (Downloaded on 28/07/2022 at 08:31:50 PM) (7 of 9) [CRLA-228/1990] the opium and opium milk in question and involved in transporting the same.
27. Moreover, the fact of making the owner of the vehicle a party to the case would have essentially no relevance to the culpability of the accused respondents and hence, the reasoning of the trial court that the recovery cannot be linked to the respondents merely because they were not the owners of the intercepted vehicle is not sustainable. That apart, the purported lapse on the part of Investigating Officer cannot give immunity to the accused persons who were having indisputable possession of the opium.
28. Further, the trial court has faltered in assuming on the basis of conjecture and surmise that since the Deputy Superintendent of Police did not record the information in roznamcha, he must not have received it. As a matter of prudence, police personnel do not disclose the name of their informant to maintain secrecy. The assumption that the Deputy Superintendent of Police did not receive any information regarding illicit trade of opium flies right out of the window in the face of the statements given by multiple prosecution witnesses, so also the fact that illicit opium was actually seized at the nakabandi. The seizure itself is not illegal or without jurisdiction. Simply because the information had not been entered in roznamcha, the recovery from respondents cannot be ignored.
29. The argument of sample tampering has been dealt with in subsequent paras of this judgment.
30. This Court is of the opinion that the investigation cannot be believed to be lopsided by virtue of the investigating officer being an officer below the rank of the seizure officer. There is no (Downloaded on 28/07/2022 at 08:31:50 PM) (8 of 9) [CRLA-228/1990] statutory mandate under the Act of 1878 that puts an embargo upon a police officer of the rank of SHO to carry out an investigation. Hence, this reasoning is flawed and conclusion is baseless.
31. Finally, the minor delay of four days in presenting the FIR before the magistrate cannot be considered substantial or material in determining the liability of the accused respondents, nor can it be a basis for the acquittal of the respondents especially when the recovery and seizure has been proved beyond the pale of doubt. The minor delay is not fatal to the prosecution's case.
32. Adverting to the argument relating to sample tampering advanced by learned Public Prosecutor, this Court is of the opinion that based on the statements of prosecution witnesses, an indisputable and unbreakable chain of custody of the seized samples has not been established. It is pertinent to note that the Deputy Superintendent of Police collected only one sample of the opium and opium milk in question.
33. The accused respondents were thus deprived of their material right to get a re-test conducted from another secured sample in their defence for the purpose of disputing the veracity of the FSL report and proving that the material seized from them was not opium / opium milk.
34. What is most appalling in the present case is that the samples so seized and sealed, as well as the ring that was used to affix seal on the samples, were both handed over to PW-7 - Rajaram and the same remained in his custody for approximately three weeks (from 31.03.1985 till 21.04.1985). This lapse which may be unintentional is enough for the court to doubt the FSL report. Rather, the prosecution has failed to prove that the chain (Downloaded on 28/07/2022 at 08:31:50 PM) (9 of 9) [CRLA-228/1990] remained intact, particularly in the teeth of contradictory statements of PW-9 Gani Mohammad and PW-6 Narnaram, so also the admission of PW-1 that the seal on the seized samples was not found to be the same as was fixed in the first place.
35. In the case of State of Rajasthan vs. Daulat Ram (supra), it has been clearly laid down by Hon'ble the Apex Court that it is the burden of the prosecution to prove the link evidence unequivocally and beyond reasonable doubt. This Court is of the opinion that under these circumstances, the trial court was right in according the benefit of doubt in favour of the accused respondents and acquitting them, especially when no other incriminating material was found against them.
36. The veracity and authenticity of the FSL report is highly questionable due to the defective procedure which has resulted in the loss of substantial rights of the accused respondents to defend themselves adequately.
37. Be that as it may.
38. The impugned order came to be passed on 29.01.1990 and more than 30 years have since passed. Hence, interest of justice warrants that small error(s) in reasoning or the conclusion arrived at by the trial Court be ignored.
39. Considering the lapse of a considerable amount of time and in the absence of any other incriminating material against the accused respondents, this Court does not find it expedient to reverse the impugned judgment of the trial court.
40. The appeal is, therefore, dismissed. The record be sent to the trial Court forthwith.
(DINESH MEHTA),J 2-Arvind/-
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