Rajasthan High Court - Jaipur
Suresh Chandra vs State Of Rajasthan on 11 April, 2001
Equivalent citations: 2002WLC(RAJ)UC182, 2001(4)WLN143
JUDGMENT Garg, J.
(1). Both appeals ate being decided by this judgment as they have been preferred against the common judgment and order dated 12.5.2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Cases No. 100/97 by which he convicted both the accused appellants for the offence under Section 8/18 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as the NDPS Act') and sentenced each of them to undergo ten years' RI and to pay fine of Rs. one lac, in default of payment of fine to further undergo one year RI.
(2). They arise in the following circumstances.:-
Facts pertaining to accused appellant Suresh Chandra (S.B. Criminal Appeal No. 266/2000):
On 11.4.1994 at about 5.15 AM, PW11 Satish Kumar, SHO, Police Station Sambhupura received a secret information from Mukhbir to the effect that one Suresh Chandra was engaging himself in the business of contraband opium and on that day he would come on foot alongwith the contraband opium from village Bhawaliya. That information was reduced into writing by PW 11 Satish Kumar and the same is Ex.P/18 and its copy was also forwarded by him to superior officers. Thereafter, as per that information, PW 11 Satish Kumar alongwith other police officials including PW 7 Madanlal and PW 4 Bhanwar Singh proceeded towards the spot in a Government Jeep No. RJ 09/C 369 and on the way they took two motbirs, namely, PW 5 Onkarlal and PW 6 Nandlal and reached there and made Nakabandi near the Nala of village Bhawaliya. At about 6.30 AM, they saw a man coming from the side of village Bhawaliya and that man was apprehended and on being asked, he told his name as Suresh Chandra (present accused appellant). PW 11 Satish Kumar informed the accused appellant that he had information that accused appellant had contraband opium with him and, therefore, PW 11 Satish Kumar wanted to make search of the accused appellant, and thereafter, PW 11 Satish Kumar gave notice under Section 42, 50 of the NDPS Act to the accused appellant. Upon which, accused appellant gave his consent. Thereafter, PW 11 Satish Kumar made search of the accused appellant and on search, a green colour bag of cloth was found in his left hand and on opening it, double white plastic pouch containing liquid substance was recovered and on seeing and tasted, it was assessed that it was nothing, but contraband opium. It was weighed and its weight was found to be 1 kg. 50 grms., out of which, two samples of 30 grms. each were taken and sealed on the spot and marked as A-1 and A-2 and the remaining opium was also sealed on the spot and marked as 'A'. The fard of search and seizure was prepared by PW 11 Satish Kumar on the spot and the same is Ex.P/5 and specimen meals were also taken by PW 11 Satish Kumar on a separate paper and the same is Ex.P/11. The so-called notice alleged to have been given to accused appellant under Section 50 of the NDPS Act is Ex.P/9, in which it is stated whether the accused appellant wanted to be searched before the Magistrate or Gazetted Police Officer. The accused appellant was arrested through Ex.P/10. Thereafter, the seized articles were given by PW 11 Satish Kumar to PW 4 Bhanwar Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex. P/4. PW 11 Satish Kumar chalked out the regular FIR and the same is Ex.P/19. After registering the FIR Ex.P/19, PW 11 Satish Kumar gave the investigation of the case to PW 10 Bhanwar Singh, who was SI in that Police Station.
Facts pertaining to accused appellant Gopilal (S.B. Criminal Appeal No. 238/2000):
During investigation, the accused appellant Suresh Chandra in Appeal No. 266/2000 gave information Ex.P/15 on 12.4.1994 at about 7.30 AM to the effect that he purchased opium from one Gopilal S/o Jeevan Lal.
Pursuant to the above information Ex.P/15, PW 10 Bhanwar Singh arrested the accused appellant Gopilal on 12.4.1994 at about 12.30 PM through Ex.D/4. During arrest, the accused appellant Gopilal gave information Ex.P/16 to PW 10 Bhanwar Singh to the effect that he could get recovered remaining opium from his house. On this information, PW 10 Bhanwar Singh proceeded further and in presence of two independent witnesses, PW 1' Neematlal and PW 3 Sohanlal recovered contraband opium on 12.4.1994 at 3.00 PM from the house of the accused appellant Gopilal. It was weighed and its weight was found to be 50 grms., out of which, one sample of 30 grms, was taken and sealed on the spot and marked as A/1 and the remaining opium was also sealed separately on the spot and marked as A/2. The fard of search and seizure was prepared by PW 10 Bhanwar Singh on the spot and the same is Ex.P/1. The seized articles were handed over by PW10 Bhanwar Singh to Malkhana Incharge PW 2 Bhanwar Singh, who deposited the same in the Malkhana and made entries in the Malkhana Register Ex.P/4.
Thereafter, two samples of opium recovered from both the accused appellants were sent to FSL, Jaipur through PW4 Bhanwar Singh and the receipt of depositing them in FSL is Ex.P/8 and the report of the FSL is Ex.P/17. The description of articles and result of examination in the FSL report Ex.P/17 read as under:-
"Description of Articles "The packet marked A/1 stated to contain the sample seized from Suresh Chand was remarked as A by the laboratory and the packet marked A/1 stated to contain the sample seized from Gopilal was re-marked as B by the laboratory.
Each of the packets marked A & B by the laboratory contained semi solid sticky dark-brown coloured substance with characteristic smell of opium packed in small size cylindrical plastic container. The substance contained in the packet marked A & B weighed 50 gm. alongwith the plastic contained & 37 gm. along with the plastic container respectively."
Result of Examination On chemical examination the sample contained in each of the packets marked A & B gave positive tests for the chief constituents of the coagulated juice of opium poppy having 1.61% (one point six one percent) Morphine and 1.61% (one point six one percent) Morphine respectively."
After usual investigation, the police submitted challan against both the accused appellants in the Court of Session.
On 16.5.1994, the learned Sessions Judge framed charges against the accused appellants for the offence under Section 8/18 of the NDPS Act. The charges were read over and explained to the accused appellants, who pleaded not guilty and claimed trial.
During trial, the prosecution in support of its-case, examined as many as 11 witnesses and got exhibited some documents. Thereafter, statements of the accused appellants under Section 313 Cr.P.C. were recorded. No evidence, was produced in defence by the accused appellants.
After conclusion of trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order dated 12.5.2000 convicted both the accused appellants for the offence under Section 8/18 of the NDPS Act and sentenced each of them in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond reasonable doubt against both the accused appellants for the offence under Section 8/18 of the NDPS Act.
Aggrieved from the said judgment and order dated 12.5.2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh, both the accused appellants have preferred appeals separately.
(3). In these appeals, the following submissions have been made by the learned counsel for the accused appellants:-
1. That prosecution has failed to prove that PW 11 Satish Kumar had complied with the mandatory provisions of Section 50 of the NDPS Act in its letter and spirit. Hence, whole proceedings and trial against accused appellant Suresh Chandra stand vitiated and on this ground alone, he is entitled to acquittal.
2. That prosecution has also failed to prove requisite link evidence that the contraband opium alleged to have been recovered from the accused appellants were kept in sealed condition and proper custody from the date of seizure till they reached FSL, Jaipur.
3. That samples of opium which were taken on the spot from both the accused appellants were of 30 grms. each and both were marked as A/1, but in FSL report they were shown as 50 grms. and 37 grms. respectively alongwith the plastic container. Thus, there is difference in weight of the samples.
4. That specimen seal Ex.P/11 which has been produced by the prosecution during trial does not bear the signatures of accused appellant Suresh Chandra and motbir witnesses. Thus, it can easily be said that specimen seal was not prepared at the time of search and seizure and it was created subsequently.
5. That so far as the accused appellant Gapilal is concerned, PW 10 Bhanwar Singh, who was SI in the Police Station, was not empowered to make search and seizure under Section 42 of the NDPS Act and, thus, whole trial and proceedings so far as they relate to accused appellant Gopilal stand vitiated.
Hence, it is prayed that both the appeals be allowed and both the accused appellants be acquitted of the charges framed against them.
(4). On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated 12.5.2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh.
(5). I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and gone through the record of the case.
The case of accused appellant Suresh Chandra (S.B. Criminal Appeal No. 266/2000) Point No. 1 (6). To meet out the argument whether compliance of Section 50 of the NDPS Act has been made or not in the present case, evidence of the case has to be looked into.
(7). PW 11 Satish Kumar received secret information from Mukhbir that accused appellant Suresh Chandra would pass through the village Bhawaliya alongwith the contraband opium and the same is Ex.P/18. The fard of search and seizure of accused appellant Suresh Chandra alleged to have been prepared by PW 11 Satish Kumar is Ex.P/5 and two motbirs of this fard Ex.P/5 are PW 5 Onkarlal and PW 6 Nandlal. Both the motbir witnesses, namely, PW5 Onkarlal and PW 6 Nandlal have been declared hostile. In the fard of search and seizure Ex.P/5, there is a mention that before making search, PW 11 Satish Kumar gave notice to accused appellant Suresh Chandra under the provisions of Section 42, 50 of the NDPS Act, upon which, accused appellant Suresh Chandra gave his consent. But, nothing more than that has been mentioned in the fard of search and seizure Ex.P/5. The so called notice which was given to accused appellant Suresh Chandra by PW 11 Satish Kumar is Ex.P/9, in which there is no mention of the word Section 50 of the NDPS Act. In that notice Ex.P/9., material wordings are like this "whether accused appellant wanted to be searched before any Magistrate or Gazetted Police Officer" and upon this, accused appellant Suresh, Chandra gave his consent.
(8). PW 11 Satish Kumar has admitted the following facts in his statement:-
1. That it is correct that all fards in this case have not been prepared by him, but he only put his signatures.
2. That in notice under Section 50 of the NDPS Act, he gave option not only of Gazetted Officer, but also gave option for Police Gazetted Officer.
3. That carbon copy of the fard of search and seizure Ex.P/5 is Ex.D/7.
In examination-in-chief, PW 11 Satish Kumar states that he asked the accused appellant Suresh Chandra whether he wanted to be searched before the Magistrate or Gazetted Officer or from SHO i.e. himself.
(9). The question is whether in the above facts and circumstances of the case, compliance of Section 50 of the NDPS Act can be said to have been made or not.
(10). The learned counsel for the accused appellant Suresh Chandra has relied on three judgments of this Court of the similar nature where the words 'Police Gazetted Officer' were found in the notice under Section 50 of the NDPS Act and they are (i) Banti @ Himta Ram v. State of Rajasthan (1), Bhagwat Singh v. State of Rajasthan (2) and Dharam Das v. The State of Rajasthan (3). In these cases, it was held by this Court that when the word 'Police Gazetted Officer' is there in the notice under Section 50 of the NDPS Act, it cannot be held that compliance of Section 50 of the NDPS Act, has been made. It was further held that this is a blatant disregard of the provisions of Section 50 of the NDPS Act.
(11). On the similar line, I see no reason to take a different view from the one taken by this Court in the cases of Banti @ Himta Ram, Bhagwat Singh and Dharam Das (supra). The partial compliance of Section 50 of the NDPS Act is not enough and prosecution has to comply with the provisions of Section 50 of the NDPS Act in its letter and spirit. In this respect, the decision of this Court in Kama Ram v. State of Rajasthan (4), may be seen, where the conviction was set aside on the ground that provisions of Section 50 of the NDPS Act were not complied with fully.
(12). For the reasons stated above, it is held that compliance of the provisions of Section 50 of the NDPS Act in its letter and spirit has not been made by the prosecution in the present case, as a result whereof, the whole proceedings and trial against accused appellant Suresh Chandra stand vitiated and he is entitled to acquittal on this ground alone.
Points No. 2, 3, & 4.
(13). Before proceeding further, salient features which have come out from the evidence of the prosecution witnesses have to be discussed here.
Salient features
1. That in the fard of search and seizure Ex.P/5 at places X to Y and C to D, the words that recovery of 1.50 kgs. and sample of 30 grms. each opium were taken, are written. On bare reading, it clearly appears that these words have been added later on. PW 11 Satish Kumar admits that carbon copy of Ex.P/5 fard of search and seizure is Ex.D/7, which is produced by the learned counsel for the accused appellant Suresh Chandra during trial. From perusing Ex. D/7, carbon copy of fard of search and seizure Ex.P/5, it appears that it bears these words, but in original Ex.P/5, there is over writing while in its carbon copy Ex.D/7, there is no over writing and these words are found in sequence. It means fard of search and seizure Ex.P/5 does not tally with its carbon copy Ex.D/7, which was given to accused appellant Suresh Chandra. This goes to show that the investigation was not conducted by PW11 Satish Kumar fairly.
2. That PW. 11 Satish Kumar, who has conducted the search in the present case, has admitted in his statement that he has not prepared any fard and has put his signatures only.
3. PW 2 Bhanwar Singh has stated in his statement that on 11.4.1994 sealed packets were given to him and he deposited the same in the Malknana and made entries in the Malkhana Register Ex.P/4 at entry No. 31 and copy of the Malkhana Register is Ex. P/4A. He has further stated that on 12.4.1994, PW 10 Bhanwar Singh also gave him two samples in sealed condition and they were deposited in the Malkhana and entries were made by him in the Malkhana Register at serial No. 31. He has further stated that on 21.4.1994 he gave two samples for depositing them in FSL to PW 4 Bhanwar Singh. In cross examination, he has admitted:
1. That in original register of Malkhana Ex.P/4, there is over writing at serial No. 31;
2. That it is correct to say that in original register Ex.P/4, entries of articles were made at serial No.31, but in copy of Malkhana Register Ex.P/4A, the entries of articles were shown at serial No. 29;
3. That in Malkhana Register Ex. P/4, specimen seals were not taken.
4. That from perusing the copy of Malkhana Register Ex. P/4A, it appears that there is entry that on 21.4.1994, two samples marked A/1 of serial No. 2 of entry No. 29 and marked A/2 of serial No. 5 of entry No. 29 were given to PW 4 Bhanwar Singh for depositing them in the FSL. However, from FSL report Ex.P/17, it appears that the samples, which were received by FSL, were marked as A/1 and A/1.
5. PW 9 Bhawani Singh, who was working in the SP Office Chittorgarh, has stated that PW 4 Bhanwar Singh brought two articles and both were marked as A/1, but as per copy of Malkhana Register Ex.P/4A, the samples, which were taken by PW 4 Bhanwar Singh, were marked as A/1 and A/2. Apart from this, he has further admitted in his cross examination that the fard of specimen seal did not bear the signatures of accused as well as of motbirs and as far as he remembered, the fard of specimen seal is like Ex.P/11. He further states that the copy of original fard of specimen sea! Ex.P/11 was received by him and the same was sent by him to FSL. He further admits that from the police station alongwith forwarding letter, specimen seal which was received by him is Ex.D/8 and upon this, neither the signatures of motbirs nor accused are there.
6. That in the present case, two samples of 30 grms, each were taken and sent to FSL for chemical analysis, but as per FSL report Ex.P/17, the weight of the samples was 50 grms. and 37 grms. Thus, there is difference in the weight of the samples.
(14). Thus, looking to the entire facts and circumstances of the case and the facts that PW 11 Satish Kumar, who conducted the search and seizure in the present case has admitted that he has not prepared any fard and he put his signatures only; as per copy of Malkhana Register Ex.P/4A, two samples marked A/1 and A/2 were sent to FSL for chemical analysis, but as per FSL report Ex.P/17, two samples marked as A/1 and A/1 were received by FSL; and two samples of 30 grms. each were taken on the spot and sent to FSL, but in the FSL report, the weight of the samples has been shown as 50 grms. and 37 grms., it appears that the investigation in the present case was not conducted properly and fairly and that the articles seized from the accused appellants were not kept in proper custody and proper form. The evidence of the prosecution witnesses on material and important point is highly discrepant and unconvincing. As two samples weighing 30 grms. each were taken while they were found to be 50 gms. and 37 grms. in weight in FSL, therefore, it could not be ruled out that samples were not tampered with. The evidence adduced is wholly insufficient to conclude that what was seized from the accused appellants alone was sent to the Chemical Examiner. On this ground also, the accused appellants are entitled to acquittal.
The case of accused appellant Gopilal (S.B. Criminal Appeal No. 238/2000) (15). From the statement of PW 11 Satish Kumar, it is very much clear that he was S.H.O., Police Station Shambhupura and after making search and seizure from the accused appellant Suresh Chandra in Appeal No. 266/2000, he handed over the investigation to PW 10 Bhanwar Singh, who was simply SI in that Police Station. From FIR Ex.P/19, it is also clear that PW 11 Satish Kumar, after registering the FIR Ex.P/19 against the accused appellant Suresh Chandra in Appeal No. 266/2000, handed over the investigation to PW 10 Bhanwar Singh, SI.
(16). PW 10 Bhanwar Singh has stated in his examination in-chief in the very beginning that PW 11 Satish Kumar handed over the investigation of FIR No. 55/94 of Police Station Shambhupura to him and during investigation, he arrested accused appellant Gopilal on 12.4.1994 through Ex.D/4 and accused appellant Gopilal gave him information Ex.P/16 and in pursuance of that information, 50 grms. opium was recovered on 12.4.1994 from the house of accused appellant Gopilal and fard of search and seizure is Ex. P/1 and that search was conducted in the presence of two motbirs, namely, PW 1 Neemat Lal and PW 3 Sohanlal. He has admitted in his cross examination that the house from where the opium was recovered, was open one and no one was found in that house at the time of search, but accused appellant Gopilal used to live in that house with his family.
(17). Both the motbir witnesses, namely, PW 1 Neemat Lal and PW 3 Sohanlal have been declared hostile.
(18). The learned counsel for the accused appellant Gopilal has raised only one argument that PW 10 Bhanwar Singh was not authorised to make search in the house of accused appellant Gopilal as he was simply SI. In this respect, he has placed reliance on Notification No. F.1(3) FD/EX/85-1 dated 16.10.1986 issued by the Government of Rajasthan. For convenience, the said Notification is quoted here:
"No. F.1(3) FD/EX/85-1 dated 16.10.1986 S.O. 115 - In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (Act No. 61 of 1985) the State Government hereby authorise all Inspectors of Police, and Sub Inspectors of Police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate effect:
Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or S.H.O. of the Police Station concerned."
(19). From the above Notification, it appears that only those Sis have been authorised to make search under the provisions of NDPS Act, who are posted as Station House Officer. In the present case, on the relevant date, PW11 Satish Kumar was Station House Officer and PW 10 Bhanwar Singh was simply SI. Thus, he was not authorised person to make search and, therefore, all proceedings conducted by PW 10 Bhanwar Singh in respect of accused appellant Gopi Lal are vitiated.
(20). The Hon'ble Supreme Court in Roy V.D. v. State of Kerala (5), has held that search, seizure and recovery of illicit material made by Excise Inspector, not authorised under Sections 41 and 42 of the NDPS Act, are per se illegal.
(21). Hence, the whole proceedings and trial against accused appellant Gopilal stand vitiated and he is entitled to acquittal on this ground alone.
(22). For the reasons stated above, the prosecution has not been able to prove its case beyond all reasonable doubts against both accused appellants Suresh Chandra and Gopilal and thus, the findings of the learned Special, Judge, NDPS Cases convicting the accused appellants for the offence under Section 8/18 of the NDPS Act are liable to be set aside and both the appeals deserve to be allowed and the accused appellants are entitled to acquittal of the charges framed against them.
(23). Accordingly, both the appeals filed by the accused appellants Suresh Chandra and Gopilal are allowed and the judgment and order dated 12.5.2000 passed by the learned Special Judge, NDPS Cases, Chittorgarh are set aside and they are acquitted of the charges framed against them. Since they are in jail, they be released forthwith, if not required in any other case.