Rajasthan High Court - Jaipur
Mohd Rafikul Islam vs State on 4 September, 2009
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT MOHD. RAFIKUL ISLAM vs. STATE OF RAJ. SB Criminal Appeal No. 232 of 2006 under Section 374 Cr.P.C. against the judgment dated December 10, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 10 of 2004 convicting and sentencing the accused appellant under section 8/21 of NDPS Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer Two years RI. REPORTABLE Date of Order : Sept. 4, 2009 PRESENT HONBLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. S.L.Songra, Amicus Curiae for the appellant. Mr. Pradeep Shrimal, Public Prosecutor. BY THE COURT :
The appellant Mohd. Rafikul Islam filed this Jail appeal against the judgment dated December 10, 2005 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Ajmer in Sessions Case No. 10 of 2004 convicting and sentencing the accused appellant under section 8/21 of NDPS Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer Two years RI.
2. Brief facts of the case are that on April 10, 2004 Constables Shrimanlal, Bheem Singh and Chandra Prakash of Police Station GRP Ajmer were on patrolling duty, at that time in Purna to Ajmer Train No. 582 two suspects were seen having one plastic bottle and two bags. On asking about their names, they perturbed, thereafter one person disclosed his name Mohd. Rafikul Islam and another Mohammed Mofjul. As both persons were perturbed a doubt was created that they were having contraband and both of them were got down from the train to platform Nos. 4-5 on south side Bridge. On this Shrimanlal, Constable handed over a written report Ex.P.20 to the Incharge Police Station GRP, Ajmer through Bheem Singh, Constable (PW.3). On this as the Incharge Police Station Shivdutt Singh was on leave, Officiating Incharge Police Station Bhawani Singh (PW.4) sent that report to Deputy Superintendent of Police GRP, Jaipur through Chandra Prakash Sharma (Constable). Thereafter Chandra Prakash Sharma (PW.2) Dy. S.P. under Section 42 of the NDPS Act sent the information vide Ex. P.21 to the SP. The Officiating Incharge Police Station with investigating box reached at the place where the accused were at Platform. Bheem Singh, constable was sent with notice to Chief Collector of Tickets Railway Station Ajmer for arranging two independent witnesses. Bhanuprakash Bayla and Ramprasad Gotam T.Cs. gave their consent for becoming independent witnesses vide Ex. P.1. Accused Mohammed Rafiqul Islam was given notice under section 50 of the NDPS Act Ex. P.17. Accused agreed for searching by Chandra prakash Sharma, Dy. S.P. and for that he has given his consent Ex. P.3. Chandra Prakash Sharma, Dy. S.P. first got himself searched before the independent witnesses and thereafter he searched the accused who was having Plastic Bottle with him. Inside plastic bottle one white polythine having tap over it polythine bags having contraband in dried condition was found . On cheking bag of the accused along with clothes one Bread packet was found. Recovered dried narcotic drug was examined by Narcotic detection kit and it was confirmed that the accused was having narcotic drug, for which he was not having any licence. On weighing the Narcotic dried substance it was found one kilogram and 400 gms . Two samples of each 30 gms. were sealed and marked as A 1 and A 2. The remaining narcotic substance weighing one kilogram and three hundred forty gms was separately sealed alongwith polythine packets and marked A . Bag along with clothes were also sealed and marked B. Mohammed Rafikul Islam was further searched and from his pocket one notice under section 50 NDPS Act Ex. P.17 and some papers were found which were recovered through Ex. P.16. The accused was arrested vide Ex. P.15 arrest memo. Sealed material along with accused taken to Police Station and in Rojnamcha report Ex. P.25, entries were made and FIR Ex. P.26 was chalked out. Sealed packets were deposited in the Malkhana and information under section 57 of the NDPS Act was forwarded to the higher officers through Ex. P.24. For examination of the sealed material, the same were sent to FSL. Vide Ex. P.31 the FSL opined that in packet marked A 1 gave positive tests for the presence of Diacetylemorphine (HEROIN). After investigation the challan was filed. After hearing arguments, the accused was charged for the offence under section 8/21 of the NDPS Act, to which he denied. The prosecution in support of its case examined 10 witnesses and exhibited 40 documents. Statement of accused under section 313 Cr.P.c. was recorded. After hearing arguments of both the sides the trial court vide its judgment and order dated December 10, 2005 convicted and sentenced the accused appellant as indicated above.
3. Mr. S.L. Songra, learned counsel appearing for the accused appellant placing reliance on Paramjeet Singh and anr. vs. State of Rajasthan (2008 (2) Cr.L.R. (Raj.) 1338) and State of Rajasthan vs. Onkar lal (2008) (2) Cr.L.R. (Raj.) 1247) argued that the prosecution has not been able to prove the case against the accused appellant beyond reasonable doubt, hence he be acquitted for the offence charged against him. No independent witnesses were made available to identify the recovered HEROIN, and on account of non compliance of the mandatory provisions of the NDSPS Act, the order of conviction passed by the trial court is liable to be quashed.
4. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the accused appellant. The trial court rightly convicted and sentenced the accused appellant. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced.
5. I have heard the learned counsel for the parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of Sections 42, and 50 of the NDPS Act.
6. Sub-section (1) of Section 42 lays down that the empowered officer, if has a prior information given by any person, he should necessarily take it down in writing and where he has reason to believe from his personal knowledge that offences under Chapter IV have been committed or that materials which may furnish evidence of commission of such offences are concealed in any building etc. he may carry out the arrest or search, without a warrant between sunrise and sunset, and he may do so without recording his reasons of belief.
The proviso to sub-section (1) lays down that if the empowered 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. Vide sub-section (2) of Section 42, the empowered officer who takes down information in writing or records the grounds of his belief under the proviso to sub-section (1), shall forthwith send a copy of the same to his immediate official superior. Section 50 of the Act prescribes the conditions under which search of a person shall be conducted. Sub-section (1) provides that when the empowered officer is about to search any suspected person, he shall, if the person to be searched so requires, take him to the nearest Gazetted Officer or the Magistrate for the purpose. Under sub-section (2) it is laid down that if such request is made by the suspected person, the officer who is to take the search, may detain the suspect until he can be brought before such Gazetted Officer or the Magistrate. Sub-section (3) lays down that when the person to be searched is brought beforesuch a Gazetted Officer or the Magistrate and such Gazetted Officer or the Magistrate finds that there are no reasonable grounds for search, he shall forthwith discharge the person to be searched, otherwise he shall direct that the search be made. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted. Section 50(4) of the NDPS Act lays down that no female shall be searched by anyone excepting a female. This provision is similar to the one contained in Section 52 of the Code of Criminal Procedure, 1898 and Section 51(2) of the Code of Criminal Procedure, 1973 relating to search of females. Section 51(2) of the Code of Criminal Procedure, 1973 lays down that whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency. The empowered officer must, therefore, act in the manner provided by Section 50(4) of the NDPS Act read with Section 51(2) of the Code of Criminal Procedure, 1973 whenever it is found necessary to cause a female to be searched. The document prepared by the Investigating Officer at the spot must invariably disclose that the search was conducted in the aforesaid manner and the name of the female official who carried out the personal search of the concerned female should also be disclosed. The personal search memo of the female concerned should indicate compliance with the aforesaid provisions. Failure to do so may not only affect thecredibility of the prosecution case but may also be found as violative of the basic right of a female to be treated with decency and proper dignity. The provisions of Sections 100 and 165 Cr.P.C. are not inconsistent with the provisions of the NDPS Act and are applicable for affecting search, seizure or arrest under the NDPS Act also. However, when an empowered officer carrying on the investigation including search, seizure or arrest under the provisions of the Code of Criminal Procedure, comes across a person being in possession of the narcotic drugs or the psychotropic substance, then he must follow from that stage onwards the provisions of the NDPS Act and continue the investigation as provided thereunder. If the investigating officer is not an empowered officer then it is expected of him that he must inform the empowered officer under the NDPS Act, who should thereafter proceed from that stage in accordance with the provisions of the NDPS Act. The Apex Court in Balbir Singhs case (1998 ) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. What is the import of the expression if such person so requires he shall be taken to the nearest Gazetted Officer or Magistrate and his search shall be made before such Officer or Magistrate as occurring in Section 50. Does the expression not visualise that to enable the concerned person to require his search to be conducted before a Gazetted Officer or a Magistrate, the empowered officer is under an obligation to inform him that he has such a right ?
Their Lordships of the Supreme Court in State of Punjab vs. Baldev Singh (Five Judge Bench) (1999 ) 6 SCC 172 propounded following conclusions :
(1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under Sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing;
(2) That failure to inform the concerned person about the existence of his right to be searched before a Gazetted Officer or a Magistrate would cause prejudice to an accused; (3) That a search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before a Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act;
(4) That there is indeed need to protect society from criminals. The societal intent in safety will suffer if persons who commit crimes are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court is seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the effect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards 50 have by Section 50 at the trial, would render the trial unfair.
(5) That whether or not the safeguards provided in Section 50 have been duly observed would have to be determined by the Court on the basis of evidence led at the trial. Finding on that issue, one way or the other, would be relevant for recording an order of conviction or acquittal. Without giving an opportunity to the prosecution to establish, at the trial, that the provisions of Section 50, and particularly the safeguards provided therein were duly complied with, it would not be permissible to cut- short a criminal trial;
(6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but, hold that failure to inform the concerned person of his right as emanating from Sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law;
(7) That an illicit article seized from the person of an accused during search conducted in violation of the safeguards provided in Section 50 of the Act cannot be used as evidence of proof of unlawful possession of the contraband on the accused though any other material recovered during that search may be relied upon by the prosecution, in other proceedings, against an accused, notwithstanding the recovery of that material during an illegal search;
(8) A presumption under Section 54 of the Act can only be raised after the prosecution has established that the accused was found to be in possession of the contraband in a search conducted in accordance with the mandate of Section 50. An illegal search cannot entitle the prosecution to raise a presumption under Section 54 of the Act (9) That the judgment in Pooran Mal's case cannot be understood to have laid down that an illicit article seized during a search of a person, on prior information, conducted in violation of the provisions of Section 50 of the Act, can by itself be used as evidence of unlawful possession of the illicit article on the person from whom the contraband has been seized during the illegal search;
(10) That the judgment in Ali Mustaffa's case correctly interprets and distinguishes the judgment in Pooran Mal's case and the broad observations made in Pirthi Chand's case and Jasbir Singh's case are not in tune with the correct exposition of law as laid down in Pooran Mal's case. The above conclusions are not a summary of our judgment and have to be read and considered in the light of the entire discussion contained in the earlier part.
7. On the basis of the above conclusions of their Lordships of the Supreme Court, it is necessary to have a look at the evidence adduced and documents exhibited before the trial court by the prosecution.
PW.1 Bhanuprakassh Bayla, T.C. Railway Ajmer stated that on April 10, 2004 he was posted as TC, at Railway Station Ajmer. On that day his duty was from 10 p.m. to 6.00 a.m. In the night at 10.15 p.m. one Constable came to Head T.C. Office and stated that two persons are in confinement at Platform No. 4-5 and for that two T.Cs. for evidence are required. Head TC Rajkumar orally directed me and Bahoran Prasad Gotam to go to Platform No. 4-5 and help in the proceedings. Thereafter I and Bahoran Prasad Gotam went with the Constable at Platform 4-5. When they reached, Dy. S.P. Shri C.P. Sharma with three four constable met them and they detained two persons with narcotic drug namely Mohammed Mofjul and Mohammed Rafikul. Mohammed Rafiqul was having one water bottle and one black bag. Deputy Saheb gave in writing to us and ask for searching him. On this I searched C.P. Sharma. C.P.Sharma thereafter gave in writing to Rafiqul for searching him. C.P.Sharma while searching Rafiqul found one water bottle with him and opened it. On opening it found that polythine covered it with muddy colour polythine having tape on it. In the bottom of bottle two polythine bags of brown colour with covered tape having brown material were found. All the four bags were weighed and it was found that they were One kilogram and four hundred gms. From four bags two bags were opened and from that packets of 30 gms. each sample were obtained. Samples were tested at the platform and found that it is HEROIN. At the spot the samples and the bags were sealed and all the formalities were completed. On recovery memo Ex. P.1 he put his signature A to B. On notice Ex. P.2 under section 50 of the NDPS Act he has also put his signature A to B. (The advocate of the accused objected that Ex.P.1 and Ex.P.2 are the carbon copies) Ex. P.3 is consent of Rafiqul where he has put his signature A to B. Ex. P.4 is searching memo by C.P. Sharma where he has put his signature A to B. Ex. P.5 is recovery memo where he has put his signature A to B. and at place X the seal is affixed. Ex. P.6 is Namuna seal where also he has put his signature A to B. Ex. P.7 and Ex. P.14 pasting of Namuna seal,he also put his signature A to B. Ex. P.14 A is compliance of Section 52 of the NDPS Act where he has put his signature A to B. On Notice Ex. P. 16 he has put his signature A to B. On Ex. P.17 notice under section 50 of the NDPS Act he has put his signature A to B. Fard Jabti seal is Ex. P.18 where also he has put his signature A to B. Naksa Moka Ex. P.19 is containing his signature A to B. PW.2 Chandra Prakash Sharma, Dy S.P. Stated that on 10.4.2004, he was posted as CO GRP Ajmer. At 10.00 p.m. the Incharge Police Station GRP Ajmer informed him about the suspects having narcotic drugs as reported by Police constable Shrimanlal are in confinement at Platform of railway. On this information under Section 42 of the NDSPS Act, he along with Constable Pooranchand with investigating box and narcotic detection kit reached at Platform No.4-5 Railway station Ajmer where Constables, Chandra Prakash, Bheem Singh and Shrimanlal along with two suspects were available. On this he asked constable Bheem Singh to bring two independent witnesses from Head TC and about this notice was given to him in writing. Constable Bheem Singh brought two independent witnesses Bhanuprakash Bayala and Bahoran Prasad. Both these persons were asked to become independent witnesses and in writing their consent were obtained. On asking the suspects about their names they disclosed their names to be Mohammed Mofjul and Rafikul Islam. Thereafter as per rule search of Mohammed Mofjul was made and from him narcotic drug was recovered. Thereafter notice under section 50 of the NDPS Act was given to Mohammed Rafikul and he was informed about his right to be searched by a Gazetted Officer or Judicial Magistrate. For which he was asked to give his consent. On this Rafiqul agreed to be searched by Dy. S.P. On this the independent witnesses were asked to first search him and thereafter as per rules search of accused Rafiqul was made and in his right hand one Catlee was found over which brown plastic polythience bag was wrapped and bottom of it one more brown polythience bag was found in which brown material was available. Besides this one more black bag was found with the accused it contained bread and clothes and two more brown coloured polythine bags were found in which brown material was available. All the four brown polythine bags material mixed and weighed, it was found 1 Kilogram and 400 Gms. and on detecting from narcotic detection kit it was discovered to be HEROIN. Accused Rafiqul was asked about any licence with him for keeping this narcotic drug on which he refused to keep any such licence. Two samples of 30 gms. each narcotic material was sealed and rest of narcotic material was also sealed which was 1 Kg. And 340 Gms.. Thereafter accused Rafiqul was given notice under section 52 of the NDPS Act and he was informed that he has commmitted offence and thereafter arrested. On further searching him one notice under section 50 of the NDPS Act was recovered from his pant pocket, Rs. 1500 cash, one wrist watch, one Railway ticket from Daloda to Ajmer, one identity card of Election Commission of India and one visiting card of hotel were seized by the police. The seal which was used in seizing the material was kept in match box and same was also sealed. Thereafter both the accused were taken to Police Station from the Railway Platform and recovered material seized were given to Incharge Malkhana. Ex.P.20 is the report given by Shrimanlal Constable to him where he has directed for Police Karyawahi C to D and put his signature A to B. Information under section 42 of the NDSPS Act was sent, which is Ex. P.21 where he has put his signature A to B. On Ex. P.21 C to D is signature of SP GRP regarding receipt of information. Ex. P.21 is carbon copy where receipt is in original and the original information is contained in another file 9/04 State vs. Mohammed Mafzul in which it is marked as Ex. P.3 where he has put his signature A to B. Ex.P.22 is Tahrir for calling independent witnesses where he has put his signature A to B and C to D is signature of Head TC for directing BP Gotam and B.P. Bayala to become witnesses. E to F is Tahrir and signature of constable for bringing independent witnesses. Ex.P.1 is consent of Bhanuprakash and Bahoran Prasad Gotam for becoming witnesses. Ex. P.2 is carbon copy of notice under section 50 NDPS Act where he has put his signature C to D, where on one copy consent of accused was mentioned and his thumb impression was taken. Bhanuprakash signed it on A to B and Bahoran Prasad signed at G to H. Ex. P.3 is consent of accused for search where he has put his signature C to D. A to B is signature of Bhanuprakash, E to F is signature of Bahoran Prasad and at place X thumb impression of accused was obtained. Ex.P.4 is search memo of witness where signature and thumb impression were obtained. On Ex. P.5 witness Bhanuprakash signed A to B and Bahoran Prasad signed at E to F and at X place thumb impression of accused was obtained. At place G to H constable Shrimanlal signed. I to J constable Chandra Prakash signed on it. K to L constable Bheemsingh and M to N signature of constable Pooranchand and at place Y thumb impression of accused was obtained. Ex.P.6 is memo of Namuna seal where C to D is signature of witness and A to B is signature of Bhanuprakash and E to F is signature of Bahoran Prasad and at X place namuna seal was affixed. At police station Incharge re-sealed the seized material for which Ex. P.23 memo was prepared where at place X impression of re-sealing was affixed, where A to B is signature of witness and C to D is signature of Malkhana Incharge. Ex.P.7 to Ex. P.14 are the Fard Namuna seal, where C to D is signature of witness and A to B is signature of Bhanuprakash and E to F is signature of Bahoran prasad and at place X Namuna seal was affixed and at Y place thumb impression of accused was obtained. Ex. P.14 A is notice under section 52 of the NDPS Act where C to D is signature of witness and A to B is signature of Bhanuprakash and E to F is signature of Bahoran Prasad and at place X thumb impression of accused was affixed. Ex. P.15 is memo of arrest, Ex. P.16 is notice of seizure, Ex. P.17 notice of 50 NDPS Act and on each C to D is signature of witness and A to B are signatures of Bhanuprakash and E to F are signature of Bahoran Prasad and at place X thumb impression of accused was affixed. On Ex. P.17 G to H is note regarding notice. Ex. P.18 is memo of seizing of seal, where C to D is signature of witness and A to B is signature of Bhanuprakash and E to F is signature of Bahoranprasad. The witness also sent information under section 57 of the NDSPS Act to the SP GRP Ajmer. Articles l to 3 were all sealed and signatures were put by all. The articles were again re-sealed at the police station, where also thumb impression of the accused was affixed.
PW.3 Bheem Singh, Constable No. 946, supporting the prosecution story, stated that on 10.4.2004 Shriman Constable, handed over him a report Ex. P.20 for giving it to the Incharge Police Station GRP Ajmer. At that time Bhawani Singh, ASI was found. Ex.P.20 report was in the name of SHO, GRP Railway Station, where Shriman constable signed E to F and he signed on it G to H. He handed over that report to Bhawani Singh, ASI, who after endorsing Police Karyawahi I To J where he has also put his signature G to H. He told him to go back to the place. After sometime Bhawani Singh ASI, Dy. S.P. Chandra Prakash, Pooranmal Constable reached there. Dy S.P. gave him a request for bringing two independent witnesses, copy of which is Ex. P.22. On this he went to Head TC and Head TC sent two independent witnesses Bahoran Prasad and B.P. Gotam with him. He along with two independent witnesses reached to the place of incident and presented witnesses to Dy. S.P. and also gave Ex. P.22 where he has put his note and signed at place G to H. Thereafter DY.S.P. asked both the independent witnesses to become witnesses and consent of them was obtained. Firstly the DY. S.P. asked them to search him and thereafter search of Rafikul Islam was done. Thereafter he narrated the story as was given by the other witnesses. In the last he stated that sealed packets were deposited by the Dy. S.P. with Om Prakash Incharge Malkhana. He also stated that on Ex. P.5 seizure memo he signed at place K to L. PW.4 Bhawanisingh, ASI, stated that on 10.4.2004 he was posted as Incharge GRP Police Station, Ajmer. On that day at 9.55 p.m. constable Bheem Singh gave a written report to constable Shriman Lal, which he produced before him. The report is Ex. P.20, where he has put his note as I to J and made his signature K to L. Bheem Singh has put his signature at G to H. He stated that in Ex. P.20 note was written by constable Pooranchand which was written by him under his guidance. Entry regarding Ex. P.20 was made in the Rojnamcha by me and at that time Chandra Prakash CO also reached at the Police Station to whom he handedover the report. Thereafter they went to incident place and returned back at 3.15 a.m. with accused Rafikul with seized material. Thereafter case was registered. The entry in the Rojnamcha regarding Ex. P.20 was made by him which is Ex. P.25 and copy of it is Ex. P.25 A. FIR was chalked out as Ex. P.26 where A to B is his signature and C to D is signature of Chandra Prakash Sharma. On returning back of Chandra Prakash Sharma at Police Station Rapat in Rojnamcha was reported which is Ex. P.27 and copy of it is Ex. P.27 A. The seized material brought by Chandra prakash Sharma were again sealed for depositing in Malkhana.
PW.5 Om Prakash, Head Constable No.106 GRP Police Station Ajmer on 10.4.2004 stated that in the night at 10 p.m. Chandra Prakash Sharma, Dy. S.P. and constable Shriman No.729 came and asked for giving Narcotic detection box and investigating box for investigation of narcotic drugs information at Plat form No. 4-5 at Ajmer. On 11.4.2004 at 3.30 a.m. Dy. S.P. Chandra Prakash Sharma gave seized articles and samples with narcotic detection box and investigation box for depositing in the Malkhana to which he entered in the Malkhana register at item No. 166/04. The entries were made by him from A to B and Namuna seal Malkhana Register is entered at Ex. P.28 and copy of Malkhana register is Ex. P.28A.
PW.6 Lalit Maheshwari, Addl. S.P. GRP Ajmer, stated that on 11.4.2004, he received investigation. During investigation he recorded the statements of Chandra prakash, Bhanuprakash, Bohran Prasad and also inspected the site, which is Ex. P.19 where he has signed C to D. A to B is signature of Bhanuprakash and E to F is signature of Bohran Prasad. Fard Halat Moka is containing his signature C to D. During investigation he also recorded the statements of Bheem Singh, Om Prakash, Farid, and Devalal. During investigation the samples were sent for chemical examination to FSL which is Ex. P.29 where he has put his signature Ato B. C to D is material particulars of the articles. During investigation accused Mohammed Rafiqul gave information under section 27 Evidence At, which is Ex. P.30 where he has put his signature A to B and thumb impression of accused was also obtained on it. Some investigation was also done by Shiv Dut Singh, Inspector and Devalal Poshwal SHO Bhilwara. FSL report is Ex. P.31.
PW.7 Shiv Dutt Singh, on 24.4.2004 posted as SHO PS, GRP Ajmer. In case No. 56/04 after receiving instructions at Police Station, he recorded the statements of Govind Prasad and Shyam Prasad. On investigation file photographs articles 4,5,6 and 7 and negative article 8 were taken on record.
PW.8 Sitaram HC No.103 stated that on 13.4.2004 at GRP Police Station he was Malkhana Incharge and on that day he handed over sample and sealed packets for delivering the same to FSL were given to Bhansingh. Bhansingh constable first went to SP office and thereafter receiving forwarding letter for depositing the samples in the FSL, again deposited the packets in the Malkhana. On 14.4.2004 he was on leave and again on 15.4.2004 sealed packet A l were given to Bhansingh for depositing with the FSL. Entries in the Malkhana on 13th were made by Om Prakash under my instructions and he put his Signature G to H. Bhansingh made his signature I to J. On 15.4.2004 Bhansingh made signature K to L in the Malkhana register. On 15th Om Prakash made entry L to M and after receiving receipt entry was made from O to P. Ex. P.28 and copy of it is Ex.P.28A.
PW.9 Bhan Singh constable stated that on 13.4.2004 he was posted as Constable at Police Station GRP Ajmer. On that day Sitaram, Malkhana Incharge, handed over him copy of FIR, sealed packets in this case and sealed packets of other case, seizure memo, Fard Namuna seal and copy of SP's letter which he has taken to the SP office and forwarding letter was prepared from SP office,but on account of holiday next day, he deposited back all the packets and papers in the Malkhana and thereafter on 15.4.2004 again he got the packets and papers for delivering same to the FSL Jaipur in sealed condition. For going and coming back entries were made in the Rojnamcha. Packets when with him were in sealed conditio nand the same were deposited in the FSL in seal conditions. Receipt received from FSL wa s deposited with the Malkhana incharge. Ex.P.32 is receipt received from FSL. On 13 he made entries in the Rojnamcha regarding coming and returning back Ex. P.33 and Ex. P.34 and again on 15th he made entries Ex. P.35 and Ex. P.36 copies of these are Ex. P.33 A, 34 A , 35 A and 36 A. PW.10 Govind Prasad, constable was posted at GRP Ajmer on 10.4.2004. On that day CO Chandraprakash gave information under section 42 NDPS Act for handing over it to the SP. The letter which he has handed over to SP is Ex. P.21. Ravanagi and Amad rapat are marked as Ex. P.37 and Ex. P.38 copies of which are Ex. P.37 A and Ex. P.38 A. On 11.4.2004 again C.O. gave him information relating to 57 NDPs Act for handing over same to S.P. He handed over the information to SP and thereafter came back. Information under section 57 NDPS Act is Ex. P.24. Ravanagi and Amad Rapat in the Rojnamcha are Ex. P.39 and Ex. P.40, copies of which are Ex. P.39 A and Ex. P.40 A. In the statement under section 313 Cr.P.C. accused appellant stated that he has been falsely implicated in the case and he does not read and write Hindi.
The documents produced by the prosecution may also be looked into.
Ex.P.1 is carbon copy of consent letter of Bhanuprakash Bayala and Bahoran Prasad Gotam, for becoming independent witnesses in a search to be conducted at Platform No. 4-5 (original copy of letter is contained in NDPS case No. 9 of 2004 as Ex. P.7 State vs. Mohd. Mafjul). Bhanuprakash signed at A to B on this letter whereas Bahoran Prasad Gotam signed at G to H.. The Dy S.P. Whose original signature is available on this document signed at I to J. Ex.P.2 is notice under section 50 of the NDPS Act to Mohammed Rafiqul informing him that he has a right to be searched by a Gazetted Officer or Judicial Magistrate to which he gave his consent and put his thumb impression that he is prepared to be searched by Dy.S.P. Signatures of witnesses Bhanuprakash Bayala and Bahoran Prasad Gotam are at A to B and G to H respectively. Ex.P.3 consent of Mohammed Rafiqul for search under section 42(1) in the presence of witnesses. Ex.P.4 is search of Chandra Prakash CO. Ex.P.5 search of Mohammed Rafiqul under section 42(1) NDPS Act in the presence of witnesses Bhanuprakash Bayala and Bahoran Prasad Gotam, at 1.40 a.m. On 11.4.2004. Ex.P.6, Ex. P.7, Ex. P.8, Ex. P.9, Ex. P.10, Ex. P.11, Ex. P.12, Ex. P.13, and Ex. P.14 are Namuna seal put on the articles and seizure memos etc. Ex.P.14 A is notice under section 52 NDPS Act to Mohammed Rafiqul, for arresting him as 1 Kg. and 400 Gms. of Heroin was recovered from him and he was not having any licence to keep that drug with him which is a offence under Section 8/21 of the NDPS Act. Ex.P.15 is Fard Girftari (arrest memo). Ex.P.16 is notice of seizing of Train ticket, Identity card of Election Department of Govt. of India, Visiting Card of Raja Guest House Ajmer found with the accused Mohammed Rafiqul. Ex. P.17 is original notice under section 50 NDPS Act recovered from accused Mohammed Rafiqul during search recovered from pocket of his pant. Ex.P.18 is memo of seizing of seal used in preparation of seizure memos and other documents. Ex.P.19 is crime detail. Ex.P.20 is information received from the Constable Bhimsingh and Chandra Prakash to SHO GRP Police Station Ajmer. Ex. P.21 copy of information under section 42(1) of NDPS Act given to the SP GRP Ajmer. Ex. P.22 is notice given to Constable Bhim Singh for bringing two independent witnesses from Head TC over which two Tcs. were sent by him. Signature and note of Head TC is at place C to D. E to F is note with signatures of Bhim Singh. Again his signature were marked as G to H in the letter. (Original letter is as Ex. P.6 in NDPS Case No. 9 of 2004). Ex.P.23 is Fard seal Namuna. Ex. P.24 is information sent to Superintendent of Police under section 57 NDPS Act. Ex. P.25 A is copyl of Rapat Rojnamcha dated 10.4.2004. Ex.P.26 is FIR. Ex. P.27 A is copy of Rapat Rojnamcha Aam dated 11.4.2004. Ex.P.28 A is receipt report in the Rojnamcha of FSL. Ex.P.29 is letter dated April 13, 2004 of Addl. Superintendent of Police GRP to SP GRP Ajmer for sending the sealed packets to the FSL. Ex. P.30 is information under section 27 Evidence Act by accused Mohammed Rafiqul. Ex.P.31 is report of FSL dated 14.7.2004. Ex.P.32 is receipt of deposit of packets in the FSL. Ex.P.33 and Ex. P.34A are the copies of Rapat of Rojnamcha dated 13.4.2004. Ex.P.35A and 36 A are again copies of Rapat of Rojnamcha dated 15.5.2004. Ex. P.37 A and Ex. P.38 A are the copies of Rapat Rojnamcha dated 10.4.2004. Ex.P.39 A and Ex. P.40 A are again copies of Rapat of Rojnamcha dated 11.4.2004.
8. From the perusal of the evidence and the documents produced by the prosecution, it is clear that the prosecution has been able to prove beyond reasonable doubt that the accused was having contraband with him punishable under section 8/21 of the NDPS Act. PW.1 Bhanuprakash Bayala proved Ex. P.1, Ex. P.2, Ex. P.3, Ex. P.4, Ex. P.5, Ex. P.6, Ex. P.7, Ex. P.14, Ex. P.14 A, Ex. P.15, Ex. P.16, Ex. P.17 and Ex. P.18. PW.2 Chandra Prakash Sharma, Dy. S.P. proved Ex. P.20, Ex. P.21, Ex. P.22, Ex. P.1, Ex. P.2, Ex. P.3, Ex. P.4, Ex. P.5, Ex. P.6, Ex. P.23, Ex. 7 to Ex. P.14. Ex. P.15, Ex. P.16, Ex. P.17 Ex.P.18 and articles l to 3. PW.3 Bheem Singh proved Ex. P.22. PW.4 Bhawani Singh proved Ex. P.20, Ex. P.25, Ex. 25 A, Ex. P.26, and Ex. P.27 A. PW.5 Om Prakash proved Ex. P.28 and Ex. P.28 A. Ex. PW.6 Lalit Maheshwari, Addl. S.P. proved Ex. P.19, Ex. 29 and Ex. P.30 and report of Ex. P.31 from FSL. PW.7 Shivdutt singh proved photographs articles 4,5,6 and 7 and negatives. PW.8 Sitaram proved Ex. P.28 Malkhana register. PW.9 Bhan Singh proved Ex. P.32, Ex.P.33, Ex. P.34, Ex. P.35, Ex. P.36 and copies of it Ex. P.33 A, Ex. P.34 A, Ex. P.35 A, and Ex. P.36A. PW.10 Govind Prasad proved information under section 42 NDPS Act Ex. P.21, Ravangi Ex. P.37 and Ammad Ex.P.38 and copies of it are Ex. 37 A and Ex. P.38A. Information under section 57 NDPS Ex. P.24 and Ravanagi in Rojnamcha Ex. P.39, and Amad in Rojnamcha Ex. P.40, copies of it are Ex. P.39 A and Ex. P.40 A. Thus also it is clear that the prosecution has been able to prove the case against the accused appellant beyond reasonable doubt. The findings of the trial court are not perverse and I am in agreement with the findings recorded by the trial court. In my opinion the trial court rightly convicted and sentenced the accused under section 8/21 of the NDPS Act, as it is clear from the FSL report Ex. P.31 that the sample in the packet marked A l gave positive tests for the presence of diacetylmorphine (HEROIN). It is also clear from the evidence of the prosecution and the documents produced by the prosecution that the compliance of provisions of NDSPS Act has also been made fully. The rulings cited by the counsel for the appellant are not applicable in the instant case.
The trial court rightly convicted and sentenced the accused appellant. The judgment of conviction and sentence is confirmed.
9. For the foregoing reasons the appeal being devoid of merit stands rejected. The appellant who is in jail shall serve out the remaining sentence as ordered by the trial court.
(Mahesh Chandra Sharma) J.
OPPareek/