Rajasthan High Court - Jodhpur
Leru Lal vs State on 2 May, 2018
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 369 / 2014
Ratan Lal @ Bhaniya son of Chothu Ji, by caste Nayak, resident of
Rudra ka Khera, Rashmi Police Station, Distt Chittorgarh
(Lodged in Central Jail, Jodhpur)
----Appellant
Versus
State of Rajasthan
----Respondent
With
S.B. Criminal Appeal No. 368 / 2014
Leru Lal son of Shri Bheru Lal, by caste Jat, resident of Pawli,
Rashmi Police Station, Distt Chittorgarh
(Lodged in Central Jail, Jodhpur)
----Appellant
Versus
State of Rajasthan
----Respondent
_____________________________________________________
For Appellant(s) : Mr. R.N. Bishnoi and Mr. B.S. Rathore
For Respondent(s) : Mr. O.P. Rathi, P.P., for the State
_____________________________________________________
HON'BLE MR. JUSTICE P.K. LOHRA
Order 2nd May, 2018 Accused-appellants, in these appeals, have challenged their conviction recorded by Special Judge, NDPS Act Cases, Jodhpur (for short, 'learned trial Court'). The learned trial Court, while convicting the appellants in Sessions Case No. 19/2011 for offence under Section 8/15 of the NDPS Act, by its impugned judgment dated 29th of April 2014, handed down sentence of rigorous imprisonment for 10 years with fine of Rs.1,00,000 and in default of payment of fine to further undergo one year rigorous (2 of 25) [ CRLA-369/2014] imprisonment. It is further ordered by the learned trial Court to extend benefit of Section 428 Cr.P.C. to both the appellants.
The facts, apposite for the purpose of these appeals, are that on 31st of August 2010, SHO, PS Raipur, District Pali (PW13) received an information through Mukhbir pertaining to illegal purchase/transport of huge quantity of poppy straw by the accused-appellants from Jassa Khera to Raipur Highway in vehicle Bolero bearing registration No. RJ-27-UA-2909. Information as such is jotted down by the SHO concerned, which reads in vernacular as under:
"vkt ds jkt oDr 8-00 Am ij eu~ mi fujh{kd v"kksd vkat.kk Fkkukvf/kdkjh jk;iqj ftyk ikyh dks tfj;s eq[kfcj[kkl ds bRryk feyh fd **,d cksysjks xkM+h ftl ij uEcj vkj ts 27 ;w, 2909 dh uEcj IysV yxh gqbZ gS tks vHkh&vHkh tLlk [ksM+k ls fudy dj jk;iqj gkbos ij p<+sxh ftlesa nks O;fDr lokj gksdj xkM+h esa voS/k MksMk iksLr Hkjk gqvk gS vxj rqjar ukdkcUnh dh tkosa tks xkM+h e; voS/k MksMk iksLr ds cjken gks ldrk gSA vr% QnZ bRryk eq[kfcj eqfrZc dh xbZA bRryk eq[kfcj[kkl fo"oluh; gksus ls eu~ Fkkukf/kdkjh v"kksd vkat.kk e; tkCyk ds Fkkuk jk;iqj ds lkeus vke jksM+ ij ukdkcUnh esa O;Dr gks jgk gwWa A "
As per the version of prosecution, before proceeding for raid, the SHO concerned divulged the said information in writing to his immediate superior officer through messenger. Thereafter, PW13 made endeavour to summon independent motbirs and after obtaining their concurrence proceeded/rushed to the spot well (3 of 25) [ CRLA-369/2014] equipped accompanied by his team. Upon reaching the main road, opposite Raipur PS, Nakabandi was arranged to apprehend accused persons. At about 9:15 AM, vehicle Bolero of the registration number is sighted by the team members and thereupon it was intercepted. Both the appellants were found seated in the vehicle on the front seats while appellant Ratanlal occupying driver seat. Later on, both the appellants were temporarily taken into custody and the vehicle was searched from its nook to corner. During search in presence of mobirs, 17 bags, i.e. 12 jute bags and 5 plastic bags were recovered containing poppy straw of huge quantity. When all the bags/containers were weighed, total weight came to 350 kg. The details about bags recovered from the appellants and weight of poppy straw stuffed in each bag, procedure adopted for drawing samples as mentioned in Seizure Memo (Ex.P/2) is as under:
"ys:yky o jruyky mQZ ekuh;k }kjk voS/k MksMk iksLr ls Hkjs cksjs dCts esa j[k ifjogu dj tqeZ /kkjk 8@15 N.D.P.S. Act dh vogsyuk djuk ik;k tkus ij cksyksjks thi o voS/k MksMk iksLr ls Hkjs 17 cksjks dks okLrs otg lcwr dCtk iqfyl fy;k oDr 9-40 AM ij dkfu Hkh lS.kkjke u0 1250 dkehuh dkaVk ysdj vk;k ftl ij ekSrfcjku ds :c: cksjks esa Hkjsa voS/k MksMk iksLr dk rksy fd;k x;k rks cksjks lfgr dze"ka out ekdZ A esa 24 kg , ekdZ B esa 23 kg, ekdZ c esa 24 kg ,ekdZ D esa 19 kg ] ekdZ E esa 23 kg ]ekdZ F esa 18 kg, ekdZ G esa 27 kg,ekdZ H esa 20 kg,ekdZ I esa 15 kg, ekdZ J esa 18 kg, ekdZ K esa 38 kg,ekdZ L esa 08 kg, ekdZ M esa 08 kg, ekdZ N esa 06 kg, ekdZ O esa 28 kg, ekdZ P esa 30 kg, ekdZ Q esa 21 kg gksdj dqyk 17 VkV o IykfLVd ds cksjs es dqy 350 kg voS/k MksMk iksLV Hkjk gqvk ik;k x;k ftl ij voS/k MksMk Hkjk gqvk ik;k x;k ftl ij voS/k MksMk iksLr ls Hkjs cksjks esls izr;sd cksjs esa (4 of 25) [ CRLA-369/2014] ls crkSj lsEiy 500&500 xzke voS/k MksMk iksLr vyx&vyx fudky dj lQsn diM+s dh FkSfy;ksa esa Mky dj lsEiy iksLV MksMk FkSfy;ksa ij dze"k% ekdZ A-1, B-1, C-1,D-1,E-1,F-1,G-1,H-1,I-1,J-1,K- 1,L-1,M-1,N-1,O-1,P-1,Q-1, vafdr dj blh izdkj izR;sd cksjs esls 500&500 xzke crkSj dUVªksy lsEiy voS/k MksMk iksLr vyx fudky dj diMs dh FkSfy;ksa esa Mky dj dUVªksy lsEiy iSdsV ij ekdZ dze"k% A-2, B-2, C-2,D-2,E-2,F-2,G-2,H-2,I-2,J-2,K- 2,L-2,M-2,N-2,O-2,P-2,Q-2, vafdr dj cksjksa] lsEiy iSdsV o dUVªksy lsEiy iSdsV dks lwryh o Mksjks ls eqWg fly dj flYM pSik dj ihry dh lhy ftl ij Fkkukf/kdkjh iqfyl Fkkuk jk;iqj ¼ikyh½ dh bckjr [kqnh gqbZ ls piM+h ij yxk dj cksjks o lsEiy o dUVªksy lsEiy iSdsVl dks f"kYM psik fd;k tkdj uewuk lhy QnZ ij vafdr dh tk jgh gS rFkk eqyft;ku jruyky mQZ ekuh;k o ys:yky dks vyx ls tfj; QnhZr fxjQrkjh ds fxjQrkj fd;s tk jgs gS rFkk cksyksjks xkM+h dks pSd fd;k rks vkxs ihNs uEcj IysVl ij uEcj RJ-27-UA-2909 fy[ks gq,] pSfll u0 MA1WF2GAK82 K 25705 o bUtu u0 GA84 K13765 ekWMy BOLERO-XL-2WD- MDI.TC.10 STR jax eSVsfyd LysVh ftldh ihNs dh fNVs gVkbZ gqbZ pkyq gkyr esa dks Hkh eqyfteku ds dCts ls okLrs otg lcwr dCtk iqfyl ysdj okgu ds dkxtkr ckcr~ iqNk rks ugh gksuk crk;k uk gh D/L gksuk crk;k A"
PW13 subsequently collected 1 kg poppy straw from each bag and dividing it into two parts of ½ kg each, drawn 17 samples of ½ kg, which were duly sealed. The remaining ½ kg from each bag was sealed separately in 17 bags as control samples mentioned to supra. Samples, as per version of prosecution, were drawn in due adherence of norms and procedure. The 17 bags were then duly sealed and seized on the spot. This sort of situation culminated into registration of FIR against the appellants (5 of 25) [ CRLA-369/2014] bearing No. 233/2010 and simultaneously appellants were served notice under Section 52 of the NDPS Act for intimating them grounds of arrest.
Immediately thereafter seized contraband and samples were deposited with Malkhana and then samples are handed over to Constable Jogaram PW5 for delivering the same to FSL.
With the advent of time, investigation is completed and both the appellants were change-sheeted before learned trial Court for offences under Section 8/15 NDPS Act and other accomplice Kishanlal was charge-sheeted for offence under Section 8/15 and 29 of the NDPS Act whereas being not apprehended accused Rameshwar is charge-sheeted under Section 299 Cr.P.C.
Learned trial Court subsequently heard arguments before framing charges and both the appellants are read out charge under Section 8/15 of the NDPS Act whereas other co-accused Kishanlal was charged for offence under Section 8/15 read with Section 29 of the NDPS Act. Upon denial of charge, all the accused persons were put on trial. For proving charges against accused-appellants and other co-accused Kishanlal, 17 witnesses are examined by the prosecution including I.O. PW13 Ashok Anjana and 45 documents were exhibited which includes FSL Report Ex.P/38. After conclusion of prosecution evidence, accused (6 of 25) [ CRLA-369/2014] persons were examined under Section 313 Cr.P.C. wherein all of them pleaded innocence about the charged offences. In their defence, accused-appellants examined two witnesses; viz., DW1 Bherulal and DW2 Kana Ram. The learned trial Court, thereafter, heard final arguments and by the impugned judgment indicted both the appellants for offence under Section 8/15 of the NDPS Act and handed down them aforementioned sentence but acquitted co-accused Kishanlal.
Learned counsel for the appellants, Mr. R.N. Bishnoi and Mr. B.S. Rathore, while assailing the impugned judgment raised following arguments:
1) Violation of Section 42 of the NDPS Act before search, seizure and arrest without warrant or authorization of the appellants.
2) Ex.P/10, allegedly conveying information of Mukhbir to Superintendent of Police, Pali under Section 42(2) of the NDPS Act, is not inspiring confidence.
3) Serious discrepancy in allegedly seized poppy straw (contraband) and Muddamal deposited in Malkhana inasmuch as seizure memo indicates total quantity of poppy straw (contraband) 350 kg and receipt showing its deposit with Malkhana also depicts its weight 350 kg without showing deficit of 17 kg taken by the seizure officer for drawing 17 samples for FSL of half kg and even number of controlled samples of same weight.
(7 of 25) [ CRLA-369/2014]
4) Seized poppy straw (contraband) and deposited poppy straw (contraband) with Malkhana of even weight sufficiently indicates that samples sent for FSL Examination cannot be linked and connected with the recovered contraband from the appellants.
5) Two independent Motbirs, viz. PW2 Kesha Ram and PW3 Kishore Kumar of search and seizure proceedings have not supported the prosecution case by turning hostile.
6) Entire proceedings of search and seizure was carried out at the police station and not at the site/spot. Reference in this behalf can be made to statements of PW7 Gangasingh, Malkhana Incharge, during cross- examination which are clear and unambiguous.
7) Serious contradictions and dichotomy in the statements of Malkhana Incharge PW7 Gangasingh and IO PW13 Ashok Anjana taking weight of the seized contraband at Police Station or at the spot.
8) All the samples were sent for FSL examination after 6 days and not within 72 hours from seizure in adherence of Circular issued by the State Government.
9) Though contraband was seized and sealed and then rubber stamp seal was put on it but neither copy of rubber stamp seal impressions nor rubber stamp was made available to Motbirs. Alternatively, no memo was prepared showing destruction of rubber seal stamp at the site and furthermore no memo of seal rubber stamp were (8 of 25) [ CRLA-369/2014] drawn.
10) Testimony of defence witnesses DW1 Bherulal and DW2 Kanaram showing false implication of the appellants is totally ignored by the learned trial Court.
11) Ex.13 receipt of FSL neither showing seal nor signature of the recipient.
In support of their arguments, learned counsel for the appellants have placed reliance on following judgments:
1. Chautha Ram & Anr. Vs. State of Rajasthan [2006 (3) Rajasthan Criminal Decisions 161 (Raj.)]
2. Babulal & Ors. Vs. State of Rajasthan [2008 (2) Cr. L.R. (Raj.) 1508]
3. Jagdish & Anr. Vs. State of Rajasthan [2011(1) Cr.L.R. (Raj.) 787]
4. Chhunna alias Mehtab Vs. State of M.P. [(2003 SCC (Cri.) 1194].
5. State of Punjab Vs. Balbir Singh [2003 SCC (Cri.) 1195]
6. Dharampal Singh Vs. State of Rajasthan [2006(3) Rajasthan Criminal Decisions 167 (Raj.)]
7. Kuldeep Singh Vs. State of Punjab [(2010) 10 SCC 219]
8. Makhan Singh Vs. State of Haryana [2015 Cr.L.R. (SC) 556].
E.converso, learned Public Prosecutor, Mr. O.P. Rathi, has buttressed following arguments:
A There was substantial compliance of Section 42 of the NDPS Act. Statements of I.O. PW13 Ashok Anjana, PW17 Heeralal and documents Ex.P/18, Ex.P/19, Ex.P/20 & Ex.P/21 are (9 of 25) [ CRLA-369/2014] significant besides Ex.P/10 showing receipt by Superintendent of Police.
B Finding of the learned trial Court showing compliance of Section 42(2) of the NDPS Act is clear and therefore unassailable on the strength of evidence and materials available on record.
C Recovery of huge quantity of poppy straw from the appellants, which is umpteen times higher than commercial quantity.
D FSL Report Ex.P/38 is clear and unequivocal showing following result:
"The water extract of sample contained in each of the packet marked A-1 to Q-1 gave positive tests for the presence of chief constituents of opium hence the samples are of dried, crushed capsules of opium poppy from which juice has been extracted."
E Document Ex.P/12 showing despatch of samples to FSL and receipt Ex.P/13 showing their receipt by the FSL. F Contention of the defence, that seized contraband and drawn samples sent for FSL examination are at variance, aptly dealt in the impugned judgment. Hence, said finding warrants no interference.
G Though independent Motbirs have turned hostile but the other prosecution witnesses have fully supported the prosecution case to bring home guilt against the accused- appellants and the learned trial Court has rightly relied on their testimony.
(10 of 25) [ CRLA-369/2014] Heard learned counsel for the parties, perused the impugned judgment and materials available on record.
Trafficking in narcotic drugs and psychotropic substances has accentuated alarmingly in the present era and is spreading its tentacles with impunity due to serious lapses by investigating agencies. To curb this proliferating and devastating menace, need of the hour is to equip investigating agencies with manpower, infrastructure and trained police officers. The legislature in its wisdom has engrafted requisite provisions under the NDPS Act to take immediate stringent actions for control and regulation of operations relating to those drugs and substances. Section 41 of the NDPS Act envisages issuance of warrant and authorization by a Magistrate against any person whom he has reason to believe to have committed any offence under the Act. Likewise, under Section 42 of the NDPS Act, any officer superior in rank to a peon, sepoy or Constable of any Department of Central Govt. as mentioned therein or Police or any other Department of State is conferred with power of entry, search, seizure and arrest without warrant or authorization subject to fulfilment of certain requirements envisaged under sub-sections (1) & (2) of Section 42 of the NDPS Act.
Provisions contained under Section 41 & 42 of the NDPS Act are applicable when there is prior information about presence of (11 of 25) [ CRLA-369/2014] contraband article in any building conveyance or a place. Therefore, when an information or intimation or knowledge comes to the notice of the investigating officer in the course of regular patrolling or investigation of some other offence, it is not necessary to follow in all cases condition incorporated under Section 42 of the NDPS Act. However, in case of prior information about presence of contraband article in any building, conveyance or a place, the legislative intent to provide protection as well as procedure laid down under Section 42 of the NDPS is required to be followed positively by the investigating officer. Laying emphasis on mandatory provisions of Section 42 of the NDPS Act, appellants have questioned their conviction by urging that investigating officer has neither followed the procedure laid down thereunder nor provided protection.
Although this aspect has been dealt with by the learned trial Court in the impugned judgment in the backdrop of evidence and other materials available on record to outrightly repudiate the contention of the learned counsel for the appellants, but considering it to be a very vital issue, it would be appropriate to examine it de novo by scanning the record. Precisely, main objection of the accused-appellants is non-compliance of sub-sec. (2) of Section 42 of the NDPS Act. In order to examine this crucial question, it would be just and appropriate to refer to the statements of I.O. PW13 Ashok Anjana. The following statements of PW13 in this behalf during examination-in-chief are significant.
(12 of 25) [ CRLA-369/2014] ^^eSaus bl lwpuk dh QnZ Hkh cukbZ tks b,Dlih&19 gS ftl ij , ls ch esjs gLrk{kj gSA bl bRryk dks dkfu- ghjkyky ds lkFk lhvks lkgc dks tfj;s vxzs'k.k i= b,Dlih&20 fHktokbZ ftl ij , ls ch esjs o lh ls Mh ,lih lkgc ds gLrk{kj gSA dkfu- ek/kksflag ds lkFk lwpuk ,lih lkgc dks tfj;s vxzs'k.k i= b,Dlih&10 ds Hksth ftl ij , ls ch ,lih lkgc o lh ls Mh esjs ds gLrk{kj gS rFkk lwpuk b,Dlih-21 gS ftl ij Hkh , ls ch esjs o lh ls Mh ,lih lkgc ds gLrk{kj gSA dkfu- ghjkyky o ek/kksflag dh jokuxh b,Dlih&22 gSA** Likewise, during cross-examination also, the witness has reiterated the same version, which reads as under:
^^b,Dlih&19 lwpuk esjs Lo;a dyeh gS] eSaus bl lwpuk dks pkj izfr;ka esa rS;kj fd;k Fkk tks dkcZu dh lgk;rk ls vafdr fd;k FkkA igyh izfr vly eSaus lhvks lkgc] nqljh izfr ,lih lkgc o frljh izfr fQj dgka fd lhvks lkgc dks ,d vly o ,d izfr rFkk blh izdkj ,lih lkgc dks Hkh nks izfr;ka dkcZu dh Hksth FkhA lhvks lkgc dh jlhn ewy izfr ij vkbZ FkhA ,lih lkgc us lwpuk ds vxzs'k.k i= ij jlhn nh FkhA eSaus lhvks lkgc dks lEcksaf/kr dj vxzs'k.k i= cuk;k Fkk ftlds lkFk ,d izfr ,lih lkgc dks Hksth FkhA lhvks lkgc dh vxzs'k.k i= ij izkIrh jlhn vkbZ FkhA** As per version of I.O. PW13, Ashok Anjana, the information was sent to superior officers by him through Constable Heeralal, therefore, his testimony is also relevant. PW17 Constable Heeralal, in his statements has fully corroborated the version of PW13 Ashok Anjana, which is evident from following statements during examination-in-chief.
(13 of 25) [ CRLA-369/2014] ^^31-8-10 dks eSa iqfyl Fkkuk jk;iqj esa dkfu- ds in ij dk;Zjr Fkk ml fnu ,l,pvks v'kksd vkat.kk dks eq[kfcj dh lwpuk feyus ij fy[kdj fyQkQs esa Mkydj lhvks tSrkj.k nsus ds fy, jokuk fd;k tks ysdj 8- 30 ,,e ij jokuk gksdj lhvks lkgc ds ikl nl ,,e ij igaqpk vkSj fyQkQk fn;k ftl ij fyQkQk [kksydj lwpuk b,Dlih&19 o vxzs'k.k i= b,Dlih&20 ij , ls ch izkIrh jlhn nh tks ykdj ,l,pvks lkgc dks lqiqnZ dj fn;kA** It is noteworthy that though witness PW7 is subjected to cross-examination by the defence counsel but the testimony of the witness showing delivery of information has not been impeached.
The statements of both these witnesses are duly supported by documents Ex.P/19 & P/20 respectively. It is also noteworthy that PW13 Ashok Anjana has proved signatures of the C.O. and Superintendent of Police on Ex.P/19 and P/20 respectively. Therefore, in my considered opinion, findings of the learned trial Court showing due compliance of sub-sec.(2) of Section 42 of the NDPS Act is based on sound appreciation of evidence and cannot be categorized as infirm. The judgment of Supreme Court in Chhunna alias Mehtab (supra), on which learned counsel has placed reliance, is clearly distinguishable and cannot render any assistance to the appellants. As a matter of fact, it was a case of violation of second proviso to sub-sec.(1) of Section 42 of the NDPS Act, i.e., enter in search of premises in question between sunset and sunrise at 3 AM. Likewise, in Balbir Singh (supra), Supreme Court while examining rigor of sub-sec.(2) of Section 42 (14 of 25) [ CRLA-369/2014] of the NDPS Act, observed that if there is total non-compliance of this provision then the same affects the prosecution case. The Court has further held that under Section 42(2) of the NDPS Act empowered officer, who takes down any information or records under proviso to Section 42(1), should forthwith send a copy thereof to his immediate superior officer and to that extent it is mandatory, but if there is any delay, whether it was undue or the same has been explained or not, will be a question of fact in each case. In the light of peculiar facts and circumstances of the instant case, I am afraid, this judgment too cannot render any assistance to the cause of the appellants. The other judgment of this Court in Jagdish & Anr. (supra), relied upon by the appellants, is also of no avail and consequence as the same is factually distinguishable. Thus, in totality, unhesitatingly, I record my satisfaction about compliance of sub-sec.(2) of Section 42 of the NDPS Act in the instant matter and consequently the finding of learned trial Court on this aspect cannot be faulted, which obviously entails rejection of this contention.
While it is true that two independent Motbirs of recovery PW2 Kesha Ram and PW3 Kishore Kumar have turned hostile by not supporting the prosecution case but nonetheless both of them have admitted their signatures on memo of recovery Ex.P/2, site plan Ex.P/3, memo of arrest Ex.P/4 as well as memo of print/impression seal Ex.P/6 put on the seized contraband and samples. The fractured testimony of PW2 Kesha Ram and PW3 (15 of 25) [ CRLA-369/2014] Kishore Kumar cannot be read in isolation to the other witnesses of prosecution. In this respect, evidence of PW1 Raghunath Singh ASI, PW6 Constable Hukam Singh and PW8 Saina Ram is crucial besides testimony of I.O. PW13 Ashok Anjana. Therefore, merely because independent Motbirs of search and seizure have turned hostile, it would not be appropriate to completely discard the testimony of police witnesses. The learned trial Court upon close scrutiny of the evidence of police witnesses has recorded its satisfaction that evidence of these witnesses is worth credit and inspiring confidence. While partly concurring with the finding and conclusions of the learned trial Court on this crucial question, in my opinion also, absence of independent evidence of search and recovery by itself cannot render the prosecution case suspicious and doubtful. Thus, solely on this plea of the accused-appellants, it would be inappropriate to categorize prosecution case infirm wholesomely without examining other evidence and material available on record.
There remains no quarrel with the proposition of law that, in criminal trial, Court is required to give equal treatment to the evidence of prosecution and defence witnesses. The contention of the learned counsel for the appellants, that learned trial Court has glossed over the evidence of defence witnesses, appears to be quite alluring but not of substance. In fact, the learned trial Court has taken note of the testimony of both the defence witnesses and upon testing its veracity on the touchstone of (16 of 25) [ CRLA-369/2014] credible prosecution evidence, concluded that no importance can be attached to the said evidence. Even upon independent examination of the statements of both the defence witnesses; DW1 Bherulal and DW2 Kana Ram, in my opinion, their testimony has projected parrot-like version and therefore credibility of the same cannot be adjudged sans consideration of other evidence or flaw in the prosecution case. It is also noteworthy that there is nothing on record to show that prosecuting agency was inimical to accused-appellants so as to prima facie rule out their false implication in the matter solely on the basis of the evidence of these defence witnesses.
Contention of the appellants canvassed very vociferously that entire proceeding of search and seizure was carried out at Police Station is obviously significant in the light of serious criminal delinquencies attributed to the appellants and found proved by the learned trial Court. Being very serious insinuation hurled by the appellants, regarding procedure of search and seizure to question their conviction, its judicial scrutiny is very much desirable. As per appellants, entire search and seizure proceedings were carried out at police station and not at the site/spot. To substantiate it, appellants have placed reliance on statements of PW7 Ganga Singh, Malkhana Incharge. The witness, during his examination-in-chief, has clearly stated that contraband poppy straw was recovered from 17 bags, out of which 12 were jute bags and 5 plastic bags, with total weight of 350 (17 of 25) [ CRLA-369/2014] kilograms. Regarding drawing of samples also, witness has explained the procedure.
^^okgu dh fu;ekuqlkj ryk"kh yh rks okgu esa 17 cksjs Hkjs gq, Fks ftlesa 12 VkV ds o 05 IykfLVd ds cksjs Fks] ftudks [kksydj ns[kk] lqa?kk o ij[kk rks MksMk gksuk ik;k x;kA otu fd;k rks dqy 350 fdyksxzke gqvkA izR;sd ckssjs esa ls 500&500 xzke ds nks nks lSEiy fudkydj diM+s dh FkSfy;ksa esa Mkydj lhyeksgj fd;kA cksjks dks lhy eksgj fd;k vkSj ekdZ , rk D;w] lSEiy ij ekdZ ,&1 rk D;w&01] daVªksy ij ekdZ ,&2 rk D;w&02 vafdr fd;kA** Quite interestingly, the witness PW7, during his cross- examination, has stated that entire recovered contraband was taken to police station and was weighed at police station with simultaneous entries in memos. The witness further admits that entire proceedings were carried out at police station and then the seized contraband was deposited with Malkhana. The relevant part of his statement during cross-examination reads as under:
^^cjkenk eky Fkkus esa ysdj vk;s Fks] mlds ckn otu o flfyax dh dk;Zokgh dh FkhA QnZ ,,lvkbZ j?kqukflag th us ,l,pvks ds funsZ"ku esa vafdr dh FkhA eky rkSyrs tk jgs Fks] QnZ vafdr djrs tk jgs FksA j? kqukFkth o ,l,pvks ds vykok LVkQ otu dj jgs FksA Fkkuk ifjlj esa gh dk;Zokgh gks jgh Fkh tks eky rksyuk] QnZ fy[kuk vkfnA ;g dk;Zokgh reke Fkkus ds pkSd esa dh FkhA QnZ r[rh dh lg;krk ls vafdr dh FkhA j?kqukFkth ds gkFk esa r[rh FkhA ;g ckr lgh gS fd dk;Zokgh Fkkus esa dj eky tek eky[kkuk djok;k x;k FkkA** (18 of 25) [ CRLA-369/2014] The version of this witness also finds support from the statements of two independent Motibirs PW2 Kesha Ram and PW3 Kishore Kumar respectively, inasmuch as, both of them, upon declaring hostile during cross-examination by the Special Public Prosecutor, have stated that sampling and sealing proceedings were not undertaken on the spot. In juxtaposition to the version of PW7 Ganga Singh, I.O. PW13 Ashok Anjana, during cross-examination, has stated that recovered contraband was seized on the spot and entered in the memo of recovery. The statement of the witness reads as under:
^^eky[kkuk jft- b,Dlih&15 gS ftlds , ls ch Hkkx esa eky tek dk bUnzkt gSA** However, the witness has admitted that the recovered bags were taken to police station and then the samples were taken in police vehicle for depositing with Malkhana. The statement of the witness in this behalf reads as under:
^^;g lgh gS fd b,Dlih&15 esa lSEiy dk otu djds cksfj;ksa dk otu vaafdr ugha gSA** Likewise, witness PW6 Constable Hukam Singh has by and large supported the testimony of IO PW13 Ashok Anjana. The witness further says that for taking weight of the seized contraband weighing machine was brought by Constable/Driver Saina Ram (PW8). Witness PW8 Saina Ram has though supported the version of PW13 Ashok Anjana but according to him sealed bags were taken to police station in police vehicle which is a quite different (19 of 25) [ CRLA-369/2014] version from PW13. In this behalf, the relevant part of his statement during cross-examination reads as under:
^^ekSds ij cksfj;ka lhycan dj mDr tCrlqnk okgu esa gh Fkkus ysdj vk;k FkkA** If the statements of all the witnesses are harmoniously construed, the it would ipso fact reveal that prosecution evidence in this respect lacks consistency so as to create some suspicion about the place where search and seizure proceedings were undertaken and samples were drawn. Apparent contradictions are there in the version of witness PW7 Ganga Singh and PW13 I.O. Ashok Anjana but presence of Ganga Singh during recovery of contraband is admitted by I.O. PW13 Ashok Anjana, as is evidence from his following statements:
^^xaxkflag ,plh esjs lkFk cjkenxh ds le; gkftj FkkA** In overall scenario the picture emerged is very gloomy as to the place of seizure of contraband casting shadow of doubt on the prosecution case. Thus, at this juncture evidence of two independent motbirs P.W.2 Kesha Ram & P.W.3 Kishore Kumar has acquired some significance. As both these witnesses have unequivocally denied recovery of contraband from the possession of accused appellants, seizure proceedings allegedly undertaken at Police Station per se cannot be completely ruled out. The learned trial Court having not addressed on this crucial issue in the impugned judgment has obviously rendered its findings vulnerable.
(20 of 25) [ CRLA-369/2014] At this stage, it is also very much essential to note that prosecution has not tendered any cogent evidence to prove compliance of sub-sec.(3) of Section 52 of the NDPS Act. Moreover, impression of the seal put on the seized contraband or the original seals were not handed over to the independent Motbirs. Upon construing the evidence in entirety, the procedure of sampling, sealing and handing over of seals to superior officer has rendered the prosecution case suspicious. This sort of situation has obviously made out a case of non-compliance with the provisions of Section 55 and non-observance of requirements of Section 52(3) of the NDPS Act.
While it is true that provisions of Section 52, 55 and 57 of the NDPS Act are directory in nature but if there is total non- compliance of these provisions, it would be unsafe to indict the accused-appellants for the charged offences. Supreme Court in Gurbux Singh Vs. State of Haryana [2001 (1) Crimes 235 (SC)] has held that provisions of Section 52, 55 and 57 are directory and violation of these provisions would not ipso facto vitiate the trial or conviction. However, the Court further observed that the investigating officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrest of accused or seizure of the article. Learned Single Judge of this Court in Chautha Ram & Anr. (supra), while relying on Gurbux Singh (supra), held:
"In the instant case, there is absolutely no evidence that the seal which was used in sealing (21 of 25) [ CRLA-369/2014] Arts. A/1 to A/69, as also the samples Arts. B/1 to A/69 and controlled Arts. C/1 to C/69 was deposited in the Malkhana. Neither the investigating officer stated that he deposited the seal which he used for sealing the contraband poppy straw with the Incharge of the Malkhana, nor the Malkhana Incharge has stated that any seal was deposited with him. On the contrary, PW11 Bhanwar Singh has categorically stated that the seal which was used on the contraband poppy straw was not deposited with him in the Malkhana. It is not the case of the prosecution that the seal which was used in sealing the material contraband and the samples were destroyed on the spot, but PW14 stated that it remained with him for 10 days. It is not the prosecution case that the report, as required under Sec.57 of the NDPS Act, was ever sent to any superior officer. On the contrary, it is the prosecution case that no such report had ever been sent to the superior officer.
Thus, there is total non-compliance of Sec.57 of the NDPS Act. Though the provisions of Secs. 52, 55 and 57 of the NDPS Act are directory in nature, but in the instant case, there is total non-compliance of these provisions coupled with the fact that the prosecution has failed to prove the link evidence of sealing the samples. There are contradictions in the statements of PW14 Himmat Dan and PW5 Atma Ram regarding the seal used by the seizure officer. In absence of the link evidence, the FSL report Ex.P/9 cannot be said to represent the samples taken from the material contraband poppy straw seized from the appellants and, therefore, on such evidence, conviction of the appellants cannot be sustained." The last argument of the appellants is in relation to serious discrepancy in allegedly seized contraband from the appellants and Muddamal deposited with Malkhana. Undeniably, as per prosecution case, total 17 bags; twelve jute and five plastic bags, containing 350 kg poppy straw (contraband) were seized from the appellants and from each bag one kg poppy straw was taken for drawing samples of half kg each and remaining controlled samples of half kg, therefore, after taking half kg poppy straw from each (22 of 25) [ CRLA-369/2014] bag, the total weight of Muddmal deposited with Malkhana reduced to 333 kgs as per prosecution case, however, after drawing samples the remaining Muddamal was not weighed is clear from the statement of PW13 IO Ashok Anjana, The statement of the witness reads as under:
^^lSEiy fudkyus ds ckn cksjksa dk otu ugha fd;k FkkA** The witness has further stated that the bags containing samples were kept in office and not deposited with Malkhana as is evident from following version of the witness.
^^lSEiy okyh FkSfy;ka vkWfQl esa jgrh gS] eky[kkuk esa ugha jgrh gSA** Now in that background, if the statement of PW7 is examined, then it would ipso facto reveal that entry about deposition of Muddamal is contained in Register Ex.P/15. The requisite excerpt from the statement of witness reads as under:
^^ekSds ij cksjs rksyrs x;s vkSj mldk otu QnZ cjkenxh esa vafdr djrs x;sA** The witness further states that in Ex.P/15 weight of samples and Muddamal is not separately entered, which reads as under:
^^ekSds ij ls ckn cjkenxh cksjksa dks mBkdj Fkkus esa yk;s Fks] tkCrs ds lg;ksx ls ysdj vk;s Fks mudk uke fo'ks'k ;kn ugha gSA pwafd Fkkuk utnhd Fkk blfy, okgu dh vko';drk ugha FkhA Fkkus dh xkM+h esa j[kdj lSEiy eky[kkuk rd yk;s FksA eSaus lSEiyl o eky tek djkus ckcr vyx ls QnZ ugha cukbZ FkhA** (23 of 25) [ CRLA-369/2014] At this stage, it would be appropriate to reproduce the entries made in Register Ex.P-15/P-15A for the Muddamal deposited with Malkhana, which reads as under:
12 cksjh VkV dh ftles MksMk iksLr ls Hkjh gks ,oa 5 IykfLVd dV~Vs esa MksMk iksLV Hkjk gqvk dqy otuh 350kg A 24Kg ekdZ B 23Kg ekdZ C 24Kg ekdZ D 19Kg ekdZ E 23Kg ekdZ F 18Kg ekdZ G 27Kg ekdZ H 20Kg ekdZ I 15Kg ekdZ J 18Kg ekdZ K 38Kg ekdZ L 08Kg ekdZ M 08Kg ekdZ N 06Kg ekdZ O 28Kg ekdZ P 30Kg ekdZ Q 21Kg ekdZ The prosecution case projects recovery/seizure of 350 Kg poppy straw (contraband) from accused-appellants and the Muddamal deposited with Malkhana after drawing samples from seized poppy (24 of 25) [ CRLA-369/2014] straw as per Ex.P-15/P-15A Register of Malkhana also shows the same weight of deposited Muddamal, has sufficiently created a doubt about seized contraband and its nexus with the samples sent for FSL Examination. I.O. PW13 has very candidly admitted that samples were not deposited with Malkhana, then how and in what manner the seized contraband weighing 350 kg, as mentioned in Seizure Memo Ex.P/2, and Muddamal deposited with Malkhana, shown in Ex.P-15/P-15A, are of equal weight. When the seizure officer PW13 Ashok Anjana has taken one kg poppy straw from each bag, obviously, there ought to have been deficit of 17 kgs in the Muddamal deposited with Malkhana and in absence of any cogent explanation or proof to this effect, it does not sound prudency that samples were drawn from the seized contraband as mentioned in seizure memo Ex.P/2. Undeniably, link evidence in this behalf is conspicuously missing, which, in my view, has seriously dented the prosecution case. This important aspect has been completely overlooked by the learned trial Court while convicting the appellants. It is the settled law that prosecution is required to prove charges beyond reasonable doubts and conviction cannot be based on grave suspicion much less surmises and the conjectures. The basic tenet of law that "in a doubtful matter, negative is to be understood rather than affirmative" requires strict adherence in a criminal trial while indicting an accused person. In the instant case, lack of requisite link evidence to show direct proximity of the samples with the seized contraband, the FSL report too cannot render any (25 of 25) [ CRLA-369/2014] assistance to the prosecution case. Thus, the appellants, in the backdrop of peculiar facts and circumstances of the case, are entitled for benefit of doubt.
The upshot of above discussion is that both these appeals are allowed and the appellants are acquitted of offence under Section 8/15 of the NDPS Act. Accused-appellant Ratan Lal @ Bhaniya is in Jail, therefore, he may be set at liberty if not required in any other case and bail bonds of accused-appellant Leru Lal are discharged.
(P.K. LOHRA)J.