Rajasthan High Court - Jaipur
Rajmal And Ors. vs State Of Rajasthan on 28 January, 1998
Equivalent citations: 1998CRILJ2626
JUDGMENT P.C. Jain, J.
1. The appellants have filed this appeal under Section 374, Cr. P.C. against the judgment dated 18-9-1997 of the learned Sessions Judge, Pratapgarh passed in Sessions Case No. 199/94 whereby both the accused have been convicted for the offence Under Section 8 read with Section 18 of the N.D.P.S. Act (hereinafter referred to as 'the Act') and each appellant has been sentenced to 10 years' rigorous imprisonment and to pay a fine of Rs. 1 lac, in default of payment of fine to undergo six months imprisonment.
2. Briefly stated the relevant facts are that the S.H.O., Shri Rajendra Singh is alleged to have received some secret information that contraband opium would be sold by Rajmal and Ramnarain. This information was then forwarded to the Dy. S. P., Chhoti Sadri and Additional S.P., Pratapgarh. Thereupon acting on the above secret information the Dy. S.P., Chhoti Sadri organised a patrolling party and armed with petromax and other necessary items reached Nikum Road at Sarthala Mod. During the patrolling they saw a motor cycle coming towards their side. It was intercepted. The motor cycle was being driven by Rajmal and the other accused was the pillion rider. Shri Krishna Kumar Khamesara, P.W. 2 suspected that the accused were in possession of the contraband opium. He, therefore, gave notice in terms of Section 50(1) of the Act to both the accused to the effect that they had an option to get them searched either before a Magistrate or a Gazetted Officer. He further added that though he himself was a Gazetted Officer but the accused had the option to insist or avail the opportunity of being searched before another Gazetted Officer. The accused, it is alleged, expressed their desire to be searched by the Dy. S.P. Accordingly Shri Krishna Kumar Khamesara searched the persons of both the accused. On search Rajmal was found to be having 1.20 kg. of opium and the other accused was having 510 gms. of opium. The Dy. S.P., in presence of motbir witnesses Nanaram P.W. 3 and Nain Singh P.W. 4, took search and after seizing the above contraband opium took two samples of 30 gms. each from the opium found from each of the accused persons. Thus, in all four samples were taken. They were separately sealed. The specimen of the seal affixed on these samples as also the packets contain ing the reni. i ning opium is available in Ex. P-5. The above samples as well as the remaining opium duly sealed were deposited in the malkhana and then sent to the Forensic Science Laboratory, wherefYom the report Ex. P10 was received. The two packets of samples sent to the Forensic Science Laboratory were marked A-1 and B-1. The report of the Forensic Science Laboratory Ex. P-10 shows that each of the packets marked A-1 and B-1 contained semi-solid, sticky dark brown coloured substance with characteristics smell of opium, wrapped in polythene bag in medium size cylindrical tin container. The sample contained in the packet marked A-1 and B-1 weighed 29 and 28 gms. respectively. On chemical examination the sample contents were found positive for chief constituents of the coagulated juice of poppy having 2.47% and 3.95% morphine respectively. After collecting the above incriminating evidence against the accused a charge-sheet was filed. The learned Sessions Judge framed charge under Section 8 read with Section 18 of the Act against each accused-appellants. The accused pleaded not guilty and claimed to be tried. The prosection examined in all nine witnesses. In their statements recorded under Section 313, Cr. P.C. the accused denied that any contraband opium was recovered from their possession and they have been falsely implicated. The accused produced two defence witnesses namely, Dinesh Chandra D.W. 1 and Heeralal D.W. 2.
3. The learned Sessions Judge, after appreciating the prosecution evidence, came to the conclusion that Shri Krishna Kumar Khamesara complied the requirements of Section 50 of the Act and the notice given by him conformed to the requirements of Section 50 of the Act and no lacuna was discernible. Regarding the seal he was of opinion that the prosecution has led satisfactory evidence that the sample packets as well as the remaining opium packets were duly sealed and that the seal of the sample packets remained intact from the time the seal was placed on them till they reached the office of the Director, Forensic Science Laboratory. He, therefore, held that both the accused committed the above offence. He, therefore, passed the sentence as stated above.
4. I have heard learned counsel for the appellants and the learned Public Prosecutor for the State.
5. Learned counsel for the appellants has assailed the conviction and sentence of the accused-appellants on the two grounds. Before taking search of the accused persons, Shri Krishna Kumar Khamesara P.W. 2 gave notice Ex. P-1 and Ex. P-2 to each accused-appellant. He read the language of Ex. P-1 and Ex. P-2 and submitted that the notices were defective inasmuch as in the notice itself it is clear that Shri Krishna Kumar Khamesara himself wanted to take search and he gave the notice as a formality. He clearly suggested to the accused-appellants that since he himself was a Gazetted Government servant he was entitled to take search and he also offered to take the search. This notice was, therefore, given in contravention of Section 50 of the Act. According to Section 50 of the Act when an officer duly authorised under Section 42 of the Act is about to make a search of any person allegedly in possession of any contraband commodity, such officer shall give notice to the such person giving him an option that he may be searched either before a Gazetted Government servant or Magistrate 1 Class. In the instant case P.W. 2 Shri Krishna Kumar Khamesara contravened the spirit of Section 50 of the Act and substituted himself in place of the Gazetted Government servant. Hence there was a contravention of the mandatory provisions contained in Section 50 of the Act and on this ground alone the accused-appellants are entitled to acquittal.
6. Learned Public Prosecutor has maintained that the notices Ex. P-1 and Ex. P-2 are perfectly in accordance with the provisions contained in Section 50 of the Act. The substance of the notice contained in Ex. P-1 and Ex. P-2 is that Shri Krishna Kumar Khamesara gave a clear notice to each accused-appellant that if the latter liked the search could be taken in presence of a Gazetted Government servant or a Magistrate I Class. Of course before giving that notice, Shri Krishna Kumar Khamesara also made a claim that he himself was a Gazetted Government servant and was competent to take search.
7. Learned counsel for the appellants has referred to Sukhpal Singh alias Pala v. State of Rajasthan 1996 Cri LR (Raj) 471.
8. I have carefully perused the notices Ex. PI and Ex. P-2. In the notices Ex. P-1 and Ex. P-2 Shri Krishna Kumar Khamesara stated that since the accused were to be searched, they could be searched either before a Gazetted Government servant or a Magistrate I Class and also added that he himself was a Gazetted Government servant and as such competent to take the search. In my opinion by giving notices Ex. P-1 and Ex. P-2 to the accused Shri Krishna Kumar Khamesara has not contravened the provisions contained in Section 50 of the Act inasmuch as he gave a complete notice to each accused giving option that the accusedappellants could be searched either before a Gazetted Officer or a Magistrate I Class. Of course he also added that he himself was a Gazetted Officer but it has got no effect and by making this egoistic assertion the notice was not polluted. The case cited by the learned counsel for the appellants is clearly distinguishable. In this case only a partial notice was given to the accused that if he wished he could be searched before a Gazetted Officer. In order to sustain the conviction, an argument was evidenced before the High Court that even if no notice was given to the accused of his search being taken before a Gazetted Officer, the search was not bad because the Investigating Officer was a Gazetted Officer. It was held that there was infraction of the mandatory provisions of Section 50 of the Act because in trie first instance complete notice was not given and secondly the Gazetted Officer referred to in Section 50 of the Act cannot be the Investigating Officer and as such he was not competent to take search. In the instant case the notice given to the accused-appellants was complete and it did not suffer from any lacuna. I, therefore, find no substance in the contention of the learned counsel for the appellants.
9. Another ground of attack as urged by the learned counsel for the appellants is that the prosecution has miserably failed to prove that the seal placed on the sample packets remained intact from beginning to the end. It was the obligatory duty of the prosecution to prove that the seals as soon as they were placed on the sample packets remained intact till the same reached the office of the Director, Forensic Science Laboratory. In this connection learned counsel has refer? to the prosecution evidence and pointed oi irious missing links. He has placed reliance on Mohan v. State of Rajasthan 1997 Cri LR (Raj 806) and Shivlal v. State of Rajasthan (S. B. Criminal Appeal No. 599 of 1994 (J. 16-12-1997)).
10. Learned Public Prosecutor for the State tried to support the judgment of the learned trial Court.
11. I have considered the rival arguments and perused the evidence. I may briefly referred to the prosecution evidence. Shri Krishna Kumar KhamesraP. W. 2 has stated that out of the contraband opium found in possession of the accused two samples of 30 gins, each were taken from each accused and a seal corresponding to the specimen contained in Ex. P-13 was placed on the sample packets. He does not state how the sample packets were dealt with after sealing the same. The motbir witnesses Nanaram P.W. 3 and Nahar Singh P.W. 4 have turned hostile to the prosecution. Deedar Singh P.W. 5 has also not stated what happened after the sample packets were sealed. Abdul Latif P.W. 6 was the Incharge of malkhana of P.S. Chhoti Sadri on 23-7-1994. He has stated that the S.H.O. came to the police station and deposited si x packets in the malkhana. Four packets were sample packets containing the seal. He made entries of the above articles at serial No. 59 in the malkhana register. He has staled thai on 21 9-1994 he handed over the sample packets to Chunnilal for depositing the same in the office of the Director, Forensic Science Laboratory. He has also stated that up to that time the packets remained in sealed condition. In cross-examination he has stated that the specimen seal with which the sample packets were sealed was not deposited inthe malkhana. Chunnilal P.W. 7 has stated that on 21-9-1994 he went to the Police Station Chhoti Sadri from where he obtained sealed sample packets which he deposited with the S.P. Chittorgarh. From there he obtained a forwarding letter with regard to the above packets in the name of the Director, Forensic Science Laboratory and then deposited the same in the office of the Forensic Science Laboratory and obtained receipt Ex. P-12. These packets were deposited on 23-9-1994 in the office of the Director, Forensic Science Laboratory. Thus according to the statement of Chunnilal P.W. 7 he obtained the sealed packets from the malkhuna of Police Station Chhoti Sadri on 21-9-1994 and deposited the sat e in the office of the Director, Forensic Science Laboratory after two days on 23-9-1994. For two days the sealed packets remained with him. Rajendra Singh P.W. 9 has stated that two samples of 30 gms. each were taken from the opium found in possession of each accused. The above samples were put into iron boxes and the same were sealed. According to the report of the Forensic Science Laboratory Ex. P-10 the samples were found wrapped in polythene packed in the medium size cylindrical tin containers.
12. I have carefully examined the evidence as stated above and find that the prosecution has not satisfactorily proved that the seal placed on the sample packets remained intact from the time the seal was placed on them till the packets reached the office of the Director, Forensic Science Laboratory. The evidence of the prosecution with regard to who deposited the sealed packets in teh malkhana with Abdul Latif is also not consistent. Abdul Latif PW-6 has stated that the sealed packets were deposited by the S. H. O. but in the entry made in the malkhana register it was stated that the samples were deposited by Krishna Kumar Khamesara PW-2. Regarding the movement of the sample packets from malkhana register, it was natural that an entry ought to have been made in the malkhana register that the samples have been removed from the malkhana and sent to the Forensic Science Laboratory with Chunnilal but strangely enough no entry has been made about transmitting the sample packets to the Director, Forensic Science Laboratory through District Police Superintendent. Chunnilal has also not signed the malkhana register in token of having received the sealed samples for taking the same first to the S. P. and then to the Director, Forensic Science Laboratory. The register also does not contain the specimen impression of the seal. According to Chunnilal he obtained the samples from the malkhana on 21-9-1994 and deposited the same in the office of the Director, Forensic Science Laboratory on 23-9-1994. He also stated that on 21-9-1994 he deposited the same in the office of the S. P., Chittorgarh. If he deposited the articles in the office of the S. P., Chittorgarh, linking evidence that such samples remained intact in the office of the S. P., Chittorgarh ought to have been produced. It is also suspicious that if Chunnilal did not deposit the samples in the office of the S. P., Chittorgarh why did he keep the same with him for two days. Since there is a discrepancy of the manner in which the samples were put in the container, emphasis on complete and satisfactory evidence of the seal remaining intact is necessary and natural. From the above I conclude that there is lot of suspicion about the linking evidence for proving that the seal from the beginning to the end remained intact. The Apex Court in the State of Rajasthan v. Daulat Ram AIR 1980 SC 1314 : (1980 Cri LJ 929) made the following observations (at page 930 of Cri. L. J.):-
Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question a fact which had to be proved affirmatively by the prosecution.
13. My conclusion, therefore, is that the prosecution was to prove that the seal placed on the samples remained intact from the time the seal was placed up to the time the packets reached the office of the Director, Forensic Science Laboratory, Jaipur.
14. For the above reasons, the trial Court was not justified in holding the accused guilty of the offence under Section 8/18 of the Act.
15.I therefore, accept the appeal, set aside the conviction and sentence of the accused and both the accused are acquitted of the above offence. The accused are in jail. They may be set at liberty forthwith, if not requirg| in any other case.