Rajasthan High Court - Jodhpur
Aziz Khan vs State on 23 May, 2016
Author: Sandeep Mehta
Bench: Sandeep Mehta
<p align="center"><b><font face="verdana" size="2">Case No. CRLA - 532 of 2014</font></b></p><br /> <p align="center"><textarea id="textfield" name="textfield" rows="27" cols="100"> IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T (1) S.B.CRIMINAL APPEAL NO.707/2014 Hanuwant Singh Vs. State of Rajasthan (2) S.B.CRIMINAL APPEAL NO.532/2014 Aziz Khan Vs. State of Rajasthan Date of judgment : 23.5.2016 HON'BLE MR. JUSTICE SANDEEP MEHTA
Mr.Mahesh Bora Sr.Advocate with Mr.Nishant Bora, for the appellants.
Mr.O.P.Rathi, P.P. <><><> The accused are in custody and applications for suspension of sentences have been filed on their behalf.
Learned counsel for the applicants did not press the applications for suspension of sentences but prayed that the appeals itself be finally heard and decided at this stage.
Learned Public Prosecutor did not object to the said prayer.
Thus, with the consent of learned counsel representing the parties, the arguments were heard on that very day.
By way of these appeals, the appellants Hanuwant Singh and Aziz Khan have approached this Court being aggrieved of the judgment dated 30.6.2014 passed by the learned Special Judge (NDPS Act Cases) No.2, Chittorgarh in Sessions Case No.64/2014 (65/2006), whereby the appellants herein and one Mahendra Singh were convicted for the offence under Section 8/15 of the NDPS Act and were sentenced to suffer 12 years R.I. and a fine of Rs.1.20 lac each, in default of payment of fine, to further undergo one years additional R.I. Succinctly stated the facts relevant and essential for disposal of the appeals are noted hereinbelow.
Shivraj Singh, SHO Police Station Nimbahera received a source information on 19.5.2006 that three persons would be smuggling contraband poppy straw in a Tata Sumo Vehicle No.RJ10.C.2511. The information was considered to be reliable and was taken down in writing and a copy thereof was forwarded to the superior officers through Constable Satyaprakash. The SHO thereafter formed a team of Police personnel and proceeded from the Police Station for conducting a Nakabandi. Two independent persons namely Ishwar Singh and Rakesh were summoned to associate in the proceedings as Panchas. At about 10.50 AM, the Nakabandi was set up at the road between Bageda Mamadev. At 11.15 AM, the Tata Sumo vehicle, of which information had been received, was seen coming from towards Neemuch. The driver was signaled to stop the vehicle. On seeing the Police party, one person got down from the vehicle and ran away. He was pursued by Constables Sita Ram and Devi Singh but could not be apprehended. Two persons sitting in the vehicle disclosed their names to be Aziz Khan S/o Yasin Khan and Hanuwant Singh S/o Narpat Singh, both residents of Choti Chapri, Tehsil Deedwana, District Nagaur i.e. the appellants herein. They disclosed that the third person, who had escaped from the vehicle was Mahendra Singh S/o Mohan Ram Jat, resident of Bamot, Molasar, District Nagaur. Both the accused were given notice under Section 50 of the NDPS Act and search of the Tata Sumo vehicle was undertaken. It was seen that 5 gunny bags with their mouths tied were lying inside the vehicle. On opening and checking the bags, they were found to contain crushed poppy straw and poppy straw powder. Aziz Khan and Hanuwant Singh could not provide any licence for possession of the contraband. The gross weight of the poppy straw and powder came to be 215 kgs. 100 gms. of the contraband was collected from each bag and two samples of 500 gms. were prepared therefrom. Rest of the contraband was repacked in the very same bags. The samples were given marks A1 and A2, whereas the gunny bags containing the remainant contraband were marked as 1 to 5. Aziz Khan and Hanuwant Singh were interrogated and they disclosed that they had purchased the poppy straw from Moti Singh Rajput resident of Semli Mewar, Madhya Pradesh. They further divulged that the poppy straw was to be delivered to Mahendra Jat. Aziz Khan further disclosed that the owner of the offending vehicle was Yusuf Khan S/o Gulab Khan resident of Badi Chpari, Tehsil Deedwana. Both the accused were arrested. The essential documents of the seizure viz. seizure memo, site plan etc. were prepared. Thereafter, SHO returned to the Police Station with the arrested accused, the seized contraband and the offending vehicle and registered an FIR No.208/2006 for the offence under Section 8/15 of the NDPS Act. Further investigation was handed over to Dinesh Sukhwal SHO Police Station Bhadsoda. Upon concluding investigation, charge-sheet was filed against the appellants herein, Mahendra Singh and Yusuf Khan. The appellants herein and Mahendra Singh were charged for the offence under Section 8/15 of the NDPS Act whereas, Yusuf Khan was charged for the offence under Section 8/29 of the NDPS Act. The accused pleaded not guilty and claimed trial. The prosecution examined as many as 18 witnesses in support of its case. The accused, in their statements recorded under Section 313 Cr.P.C., denied the prosecution allegations. The accused Mahendra Singh examined himself in defence. The learned trial Court, at the conclusion of the trial proceeded to acquit the accused Yusuf Khan from the charge under Section 8/29 of the NDPS Act. However, the appellants herein and Mahendra Singh were convicted and sentenced as above. Being aggrieved of their conviction, the appellants have approached this Court by way of these two appeals.
Shri Mahesh Bora learned Senior Advocate assisted by Shri Nishant Bora vehemently urged that the conviction of the appellants as recorded by the trial Court is grossly illegal and contrary to the evidence and material available on record. He raised the following pertinent contentions and submitted that the appellants deserve to be acquitted:
(1)One of the independent Panchas associated with the recovery namely Rakesh was not examined by the prosecution whereas the other being Ishwar Singh did not support the prosecution story.
(2)The sampling procedure adopted by the Seizure Officer was totally illegal, inasmuch as, the Officer claims to have collected 100 gms. of poppy straw from each of the 5 bags and mixed the same and then prepared two samples.
Learned counsel submitted that as per the prescribed procedure, the Seizure Officer was required to prepare individual samples after collecting the article separately from each individual bag so that the FSL report would reflect the character of the substance contained in every bag. The procedure adopted by the Seizure Officer means that representative sample was not drawn from every bag containing the alleged contraband and therefore, the FSL report cannot be read in evidence against the accused. He further submitted that the Muddamal was not produced and exhibited by the prosecution at the trial despite opportunity provided to it. Only two samples were produced during evidence of Shivraj Singh the Seizure officer. Thus, as per him, the prosecution failed to give primary evidence of the seizure and consequently, the accused appellants are entitled to be acquitted.
Per contra, learned Public Prosecutor vehemently opposed the submissions advanced by the learned counsel for the appellants. He contended that the appellants Aziz Khan and Hanuwant Singh were apprehended whilst transporting illicit poppy straw weighting 215 kgs. Representative samples were collected from the contraband and forwarded to the FSL from where, the report Ex.P30 was received, to the effect, that the sample gave positive test for poppy straw. He contended that no prejudice was caused to the appellants by the non-production of the muddamal in the court. He submitted that the two samples articles A1 and A2 were duly produced and exhibited in the court by the Seizure Officer Shivraj Singh during his testimony and thus, the prosecution has complied with the requisite procedure prescribed under the NDPS Act. The judgment under challenge does not suffer from any illegality or perversity whatsoever. He thus urged that the appeals are devoid of any merit and should be dismissed.
I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record.
Since the appellants counsel has challenged the impugned judgment on limited grounds, only the evidence of the Seizure Officer and the documents of seizure are required to be considered for appreciating the arguments.
The first argument of the appellants counsel was that the manner of taking collecting samples adopted by the Seizure Officer was improper and therefore, the FSL report cannot be read against the accused. For appreciating this argument, the contents of the seizure memo need to be examined. As per the seizure memo Ex.P4, the Seizure Officer found and seized 5 bags containing poppy straw and powder from inside the offending vehicle. The seizure memo recites that the Seizure Office collected 100 gms. of article from each of the bags and then prepared two samples of 500 gms. each. The very same procedure was detailed by the Seizure Officer, PW.10 Shivraj Singh during his evidence. On the face of the record, the assertion made by the Seizure Officer in the seizure memo as well as in his evidence, throws a great doubt on the genuineness of the prosecution story. As the total bags containing the contraband were 5 in number, if the Seizure Officer had collected 100 gms. of substance from each of the bags for preparing the samples, then the total weight of the representative article would come to only 500 gms. Thus, it is indeed a matter of surprise as to how the Seizure Officer could manage to prepare two samples of 500 gms. each from the contraband. Be that as it may, the Seizure Officer PW.10 Shivraj Singh was examined during trial on 1.5.2014 on that day, the Public Prosecutor requested the Court to defer his statement for producing the muddamal. The court appended a note in the statement that the evidence was deferred and the muddamal be summoned. On the next date i.e. on 19.5.2014, the following statement of the Seizure Officer was recorded by the trial Court:
'kiFk fnykbZ xbZ%& uksV%& Fkkuk fuEckgsMk ls dkaLVscy txnh'k uEcj 1106 bl izdj.k dk lsEiy ekdZ&,1 o ,2] jkstukepk jftLVj fnukad 12-05-2006 ls 23-5-2006 ,oa eky[kkuk jftLVj lu~ 2006 dk ysdj mifLFkr gqvkA ekdZ&,1 o ,2 nkSuks diMs dh FkSyh esa gksdj eqWg ij piMh dh lhy yxh gqbZ gS ekdZ&,2 ij nks piMh dh lhy yxh gqbZ gSa tks xokg us crk;k fd tCrh ds le; ,oa /kkjk 55 ,uMhih,l ,DV dh QnZ ds le; yxkbZ xbZ gSA ekdZ&,1 ds eqWg ij piMh dh lhy iz;ksx'kkyk dh vafdr gSA nkSuks dh fpVsa ekStwn gSA Thus, on going through the above portion of the testimony of the witness, it is evident that the witness produced in the court, two cloth bags marked A1 and A2.
In cross-examination, the Seizure Officer admitted that he collected 100 gms. of substance from each of the bags but did not seal it individually. He mixed the entire material and then prepared two samples therefrom. In cross-examination, the witness further made the following admissions:
cps gq, MksMkpqjk o tCn'kqnk okgu dks vnkyr esa is'k djuk pkgrs rks vnkyr esa is'k dj ldrs FksA ;fn fdlh okgu dh gok fudy xbZ gks rks nwljs okgu esa eky yk;k tk ldrk gSA gok Hkjdkj o LVsiuh cnydj Hkh yk;k tk ldrk gSA ;g dguk xyr gS fd fnukad 19-05-2006 dks eSus okgu o MksMkpwjk tCr ugha fd;k blfy, vkt vnkyr esa is'k ugha fd;k gksA ;g lgh gS fd ,uMhih,l ,DV ds izko/kkuksa ds rgr ge pkgrs rks v/khuLFk U;k;ky; eftLVsV }kjk eky dk lR;kiu djokdj fjiksVZ U;k;ky; esa is'k dj ldrs FksA From the above admissions made by the witness in his cross-examination, it is apparent that neither the seized muddamal nor the vehicle from whcih the seizure was allegedly made were produced and exhibited in the court during the prosecution evidence. The prosecution admittedly did not comply with the procedure under Section 52A of the Act. Thus, the prosecution failed to give primary evidence of the seizure.
This Court examined the sanctity of the procedure of drawing representative samples from multiple packets of contraband narcotics in the cases of Jagdish Chand Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.) 91 and Jasmer @ Bachchi & Ors. Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.) 199 and held that collecting small quantity of the contraband from separate bags; mixing them and then preparing samples is not the appropriate procedure to be adopted in such cases. The Seizure Officer should collect and prepare individual samples from each of the separate bags suspected to contain contraband. Thereafter, he should append the seals and affix appropriate identifying chits bearing the signatures of the panchas, the accused and of his own thereupon. Seen in light of the ratio of the abovementioned judgments of this Court in the cases of Jagdish Chand and Jasmer (supra) and keeping in view the flaws noticed by this Court in the prosecution evidence regarding the manner of preparing the samples, this Court is of the opinion that the prosecution failed to prove that appropriate sampling procedure was adopted by the Seizure Officer Shivraj Singh while conducting the seizure in question. Thus, the FSL report cannot be read in evidence against the accused.
Coming to the argument regarding non-production of muddamal in the court and its effect on the prosecution case.
This Court in the case of Aladdin & Anr. Vs. State of Rajasthan (S.B.Criminal Appeal No.1050/2015 decided on 19.2.2016) examined this very controversy after taking note of various judgments rendered by Hon'ble Supreme Court as well as this Court on the issue of non-production of Muddamal in the court and its effect on the prosecution case during a trial for the offences under the NDPS Act and proceeded to hold held that in cases involving recovery of narcotics, the prosecution is under an obligation to produce and exhibit the Muddamal in the court in the self same condition in which it was seized. The judgments rendered by the Hon'ble Supreme Court in the cases of Noor Agha VS. State of Punjab & Ors. reported in 2008 CrLR (SC) 655, Jitendra & Ors. Vs. State of Madhya Pradesh reported in 2003-04 (Supp) CrLR (SC) 699, Ashok alias Dangra Jaiswal v. State of M.P.reported in AIR 2011 Supreme Court 1335 and Vijay Jain Vs. State of M.P. reported in 2013(14) SCC 527 as well this Courts judgments in the cases of Thakra Ram Vs. State of Rajasthan being S.B.Cr. Appeal No.311/2009 decided on 4.10.2013 and Bhagirath Ram Vs. State of Rajasthan reported in 2014(1) Cr.L.R. (Raj.)-117, propounding this view and the contrary view of the Supreme Court in the case of Gian Chand Vs. State of Haryana reported in (2013)14 SCC 420, were all considered and it was laid down that failure to exhibit the Muddamal in the self same condition is fatal to the prosecution in a case involving recovery of narcotics drugs and psychotropic substances. The only mode by which, the prosecution can avoid this burden is, by exhibiting the photographs, inventory and the representative samples prepared under Section 52A of the NDPS Act. Admittedly, neither the muddamal was exhibited nor did the prosecution comply with the procedure of Section 52A in the case at hand. Non-exhibition of the Muddamal in the court leads to the irrefutable conclusion that the prosecution failed to lead primary evidence of the seizure and thus, the entire evidence of the prosecution regarding the alleged recovery has to be discarded.
As a consequence of the above discussion, this Court is of the opinion that the impugned judgment is grossly illegal and contrary to the evidence available on record and cannot be sustained.
Resultantly, the appeals deserve to be and are hereby allowed. The impugned judgment dated 30.6.2014 passed by the learned Special Judge (NDPS Act Cases) No.2, Chittorgarh is declared to be illegal and is hereby quashed and set aside qua the appellants herein. The accused appellants are acquitted of the charges. They are in custody. They shall be released from jail forthwith if no wanted in any other case.
(SANDEEP MEHTA), J.
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