[PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 1/12 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT
APPELLANT: RESPONDENT:
[ENTITY] v. State of Rajasthan S.B. CRIMINAL APPEAL No.273 OF 1989
Date of Order: 13th October 2011
PRESENT HON'BLE MR JUSTICE [ENTITY]-II Mr [ENTITY], for the appellant Mr [ENTITY], Public Prosecutor Present appeal under sec.374 (2) [ACT] is directed against the judgment dated 18th July 1989 passed by learned Sessions Judge, Jalore in Sessions Case No.07/1988, convicting the accused-appellant under [SECTION] of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as 'the [ACT]') and sentencing him to undergo 12 years' rigorous imprisonment, along with fine of rupees One Lac, in default of payment whereof to undergo further one year's imprisonment.
2.It is alleged that on 01.09.1987, on the basis of information by [ENTITY], Head Constable [ENTITY] (PW2) along with other Policemen intercepted Udaipur-Falna bus No.RNP 1124 at 2:30PM at Ahore Bus Stand. While they were checking the passengers alighting from the bus, one person named [ENTITY] ran, who was chased by Policemen but he succeeded in [PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 escaping, throwing a bag he was holding in his hand. That bag was found to contain 2 kilograms of opium.
3.At the bus stand, accused-appellant [ENTITY] was holding a blue- colour bag. When he was encircled and his bag was checked, then in the bag opium-milk was found in a white raggesin carry- bag, which weighed 7 kilograms 900 grams, for which he did not have any valid permit. Samples of 30 gms were drawn and the samples as well as seized opium-milk was sealed. The accused- appellant was arrested.
4.Upon chemical examination of the seized contraband (opium- milk), the samples were found to contain 2.58% and 3.09% morphine. Thereupon, after due investigation process, Police filed challan for offence under [SECTION] of the [ACT]. On 11.4.1988, charge as aforesaid was framed against accused- appellant [ENTITY]. The accused-appellant denied alleged offence and claimed trial.
5.The prosecution supported its case with the aid of 5 witnesses and exhibited 11 documents, including chemical report (Ex.P1) & recovery memo (Ex.P2). Out of 5 witnesses, PW1- [ENTITY], Booking Clerk, Rajasthan State Road Transport Corporation, was cited as witness of recovery memo (Ex.P2). PW5- [ENTITY], Conductor of the Bus was cited as witness of the incident. PW3 [ENTITY], Constable, was cited as carrier of sample for chemical examination. PW2 [ENTITY], Head Constable, Police Station- Ahore, was cited as Recovery Officer and witness to various memos and PW4- [ENTITY], SHO, Police Station, Ahore was cited as the Investigation Officer of this case.
[PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011
6.In defence, in his statements under [SECTION] [ACT] the accused- appellant rebutted the prosecution allegation with the explanation that he was coming from Udaipur along with [ENTITY]. They caught another bus from Falna and he, along with [ENTITY], were sitting on a 3-seat while one other person, who told himself to be a Vishnoi of Jalore area, was sitting near them.
7.When bus reached Ahore bus stand, he had some altercation with the Conductor regarding his bag & carry-bag. While Conductor went to Booking Office, that person attempted to run away with the bag & carry-bag; thereupon accused-appellant shouted 'chor, chor' (thief) so as to invite attention of the Conductor. Upon making alarm by the accused-appellant, that person ran away, leaving behind the bag & carry-bag. Many persons gathered there, who took the bag and the carry-bag to Police Station.
8.The accused-appellant was also asked to come to Police Station, where he was arrested deceitfully. He urged that he is innocent but Police did not hear anything. His companion [ENTITY] became frightened as accused-appellant was caught in Police Station and therefore, due to fear he did not come near to him but informed at his home. His parents are very poor and unable to pursue for his defence, therefore, he has been jailed falsely. No evidence was produced in defence.
9.After scrutiny of material on record and evidence produced by the prosecution as well as defence of the accused-appellant in his statements under [SECTION] [ACT]; learned Sessions Judge, Jalore vide judgment dated 18th July 1989 convicted the [PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 accused-appellant for offence under [SECTION] of the [ACT] and sentenced him as stated herein above.
10.In appeal, it is submitted by learned counsel for the appellant that learned Sessions Judge erred in placing reliance upon testimony of prosecution witnesses, mainly Police officials. It is submitted that the impugned conviction is against direct and circumstantial evidence on the record. The accused-appellant has been falsely implicated while the real culprit fled away. It is further submitted that statement of PW2 [ENTITY] is not corroborated with statement of PW1 [ENTITY] who was taken to the bus stand as [ENTITY], PW5- [ENTITY], Conductor in RSRTC, who clearly stated that the Police did not come at the Bus Stand and in view of major contradictions in statements of these witnesses. Other [ENTITY] of Ex.P2 - [ENTITY], was not examined by the prosecution and learned court below should have taken adverse inference.
11.It is further contended by the learned counsel for accused- appellant that PW2 [ENTITY], a Head Constable, was not authorized to conduct search & seizure for the contraband in view of explicit provisions under [SECTION] of the [ACT]. Moreover, he did not inform to his superior officer about the incident, which is mandatory requirement under the Act. It is also submitted that recovery shown at the bus stand is contradicted by the fact of sealing the samples at the Police Station. Learned counsel for the accused-appellant also referred to non-compliance of provisions of [SECTION] and [SECTION] of the Act. He challenged the conviction and contended that though nothing [PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 has been recovered from the accused-appellant yet he has been wrongly implicated in this false case.
12.Learned counsel for the accused-appellant Mr [ENTITY] further argued that there is violation and non-compliance of legal and mandatory provision, to prepare site plan of the recovered article (opium-milk) according to the guidelines given in [ACT], so as to judge testimony of the prosecution witnesses. In this context, learned counsel relied upon decision of this Court reported in 1991 CrLR (Raj) 183 - [ENTITY] v. State of Raj. It is, therefore, pleaded that the prosecution failed to establish the case as alleged and therefore, the accused-appellant is entitled to acquittal.
13.On the other hand, learned Public Prosecutor supported the judgment of the court below and contended that the finding arrived at by the trial court on the basis of evidence is correct. There is no infirmity or material contradiction, as such, it does not calls for any interference. Learned Public Prosecutor submitted that there is no reason to disbelieve testimony of the prosecution witnesses. At the time of recovery, PW2- [ENTITY], Head Constable, was in-charge of Police Station, Ahore and authorized to search, seize and arrest. Learned Public Prosecutor further submitted that provisions of [SECTION] of the [ACT] are merely discretionary in nature and not mandatory.
14.I have given my thoughtful consideration to the submissions made by learned counsel for the rival parties and carefully perused the evidence, record of the case, judgment of conviction & sentence passed by the learned court below and the case law cited by learned counsel for the accused-appellant.
[PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011
15.Admittedly, there is no evidence of preparing site-plan and it is true that the Recovery Officer -PW2 [ENTITY] and the Investigation Officer, PW4 [ENTITY] have not parepared the site-plan in this case. PW2 [ENTITY] clearly deposed that he did not prepare the site-plan from where the contraband article was recovered. Argument of learned counsel for the accused- appellant is that preparation of site-plan was necessary. He drew my attention towards decision in [ENTITY]'s case (supra). Relevant portion from the judgment in the case of [ENTITY]'s is as follows:
" The site-plan is essential to know the exact place, whether place private or public/or accessible to all, and if proved, itself is sufficient to punish the accused under the Act.
Therefore, it was incumbent upon the Investigating Officer to prepare the site plan according to the guide-lines given in the [ACT], as to judge the testimony of the witnesses for such anti-social activities and for reaching the correct conclusion. In the absence of such site plan the defence will be at great disadvantage and prejudice would be writ large, specially in the circumstances when recoveries are made from an open place, accessible to all (referred to the decision reported in [PRECEDENT]) and therefore, the case reported in [PRECEDENT], [PRECEDENT] does not help the prosecution and suffers from this lacunae, which affect the entire trial."
16.In my opinion, in the facts and circumstances of this case, it was incumbent upon the Investigation Officer to prepare the [PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 site-plan, so as to adjudge testimony of the witnesses, for reaching to correct conclusion and in absence thereof, the defence will be at disadvantage and prejudice would be writ large.
17.Further, [SECTION] of the [ACT] stipulates as follows:
"[SECTION]. Report of arrest and seizure- Whenever any person makes any arrest or seizure, under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior."
18.Thus, it appears that there is non-compliance of [SECTION] of the Act, as the information was required to be sent to the higher Police officials and in proof thereof that the information requisite under [SECTION] of the Act was actually sent to the higher Police official, is required to be placed before the court; which has not been done in the present case as per evidence of PW2 [ENTITY], Head Constable, Recovery Officer of the case.
19.It is correct that compliance of this provision is not mandatory in view of decision rendered by Hon'ble Apex Court in the case of [PRECEDENT], wherein Hon'ble Supreme Court observed that - it is true that the provisions of [SECTION] and [SECTION] of the Act are directory and violation of these provisions would, ipso facto, vitiates the trial or conviction; however, Investigation Officer can not totally ignore these provisions and such failure will have a bearing on the appreciation of evidence regarding arrest of the accused or seizure and the case becomes doubtful.
[PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011
20.According to the learned counsel for the accused-appellant, [SECTION] and [SECTION] of the [ACT] authorizes persons who are entitled to make search or seizure or arrest of a culprit under [ACT]. He invited attention of the Court towards notification SO No.115 dated 16th October 1986, which runs as under:
"S.O. 115 dated 16th October 1986 - In exercise of the powers conferred by [SECTION] of the [ACT] the State Government hereby authorize all Inspectors of Police, and Sub-Inspectors of Police, posted as Station House Officers, to exercise the powers mentioned in [SECTION] of the said Act with immediate effect.
Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or S.H.O. Of the Police Station concerned."
21.It is contended by the learned counsel for the accused- appellant that as per notification, the proviso thereto clearly lays down that when power is exercised by Police Officer other than a Police Inspector of the area concerned, such officer shall immediately hand over the person arrested and article seized to the concerned Police Inspector or the Station House Officer of the Police Station concerned. The State Government has authorized all Inspectors of Police and Sub-Inspectors of Police posted as Station House Officer, to exercise powers mentioned in [SECTION] of the [ACT] and therefore, Head Constable PW2- [ENTITY] was not competent to make search or to arrest the [PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 accused-appellant. So, the entire proceeding is vitiated because the prosecution violated the mandatory provisions of the Act.
22.It is true that the [ACT] is a special enactment and certain provisions in the Act are mandatory and trasgression thereof in following the procedure for search and seizure or arrest completely vitiates the process of law and therefore, there can be any circumvention and all the authorities empowered under the Act are required to act in accordance with the procedure laid down in the [ACT].
23.Similarly, under the [ACT] vide [SECTION] thereof only persons authorized by the Government can exercise powers conferred thereby and therefore, once by notification issued under [SECTION] of the Act if the Government has enumerated authority to exercise powers, the prosecution can not plead or put forth case that the person, though not authorized but in absence of authorized person was acting as such was at the relevant time exercising powers of the authorized person. Thus, the person is required to prove its case within the four-corners of provisions of the Act.
24.In this case, as per prosecution, said contraband (opium milk) was recovered from blue-colour bag when accused-appellant [ENTITY] was checked. It is also obvious from the record that neither "[ENTITY]" nor any authorization order has been produced to show that PW2 [ENTITY], Head Constable of the Police Station was acting authorizedly under [SECTION] of the [ACT]. From the language of [SECTION] of the [ACT] also, it is clear that if any officer is exercising powers to make seizure etc in [PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 public place, admittedly, the State Government has issued notification whereby Head Constable is not authorized person.
25.In this case, during the trial, the prosecution did not take any pain to produce any document or order to establish that PW2 [ENTITY], Head Constable, was acting as Station House Officer of the Police Station, Ahore at the relevant time. Aiding to this, [ENTITY] witness of Ex.P2 Search Memo - [ENTITY] was not examined during trial. PW1- [ENTITY] - Booking Clerk of RSRTC at Ahore Bus Stand and [ENTITY] of Ex.P2, deposed that entire process of seal, sampling, weighing etc took place in Police Station, Ahore and he did not see bag in the hands of accused- appellant [ENTITY]. In this way, he did not support the prosecution story and at the time of incident, he was in Bookign Office of the Ahore Bus Stand. PW2- [ENTITY], Head Constable, was Recovery Officer in this case. He has deposed that he recovered the contraband from possession of the accused-appellant. PW2 [ENTITY] has also deposed that he had taken [ENTITY] (PW1) from the Bus Stand and [ENTITY] from near Bus Stand and by stopping the Bus travelling from Udaipur to Falna before the Bus Stand, Ahore in the way, contraband was recovered from possession of accused-appellant.
26.PW5- [ENTITY], who was Conductor of Bus No.RNP 1124 on 01st September 1987, states totally different story that when the Bus reached at the Bus Stand, Ahore, he went in the Booking Office and after listening hue & cry outside the Booking Office, he himself, [ENTITY] (PW1) and [ENTITY], Driver of the Bus came outside the Booking Office at Bus Stand, Ahore. There were 100-50 persons gathered and shouting "chor-chor" (thief-
[PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 thief) then public caught hold one person and produced him before Police at the Police Station, Ahore. He further deposed that he himself, [ENTITY] and [ENTITY] also went from the Bus Stand to Police Station, Ahore and entire proceeding took place at the Police Station, Ahore. Further, he clearly deposed that Police did not come at the Bus Stand, Ahore. Admittedly, Driver the Bus - [ENTITY] was not examined by the prosecution. PW4 [ENTITY] was Investigation Officer in this case and he deposed that he recorded statements of [ENTITY], which is Ex.P10. PW3 [ENTITY] was carrier of the sample for chemical examination to the FSL, Jaipur.
27.In the above circumstances and evidence on the record, it is obvious that the prosecution is doubtful as to where PW2 [ENTITY] prepared Ex.P2 Recovery Memo. Admittedly, he did not prepare the site-plan. The statements of PW1 [ENTITY], PW5 [ENTITY] and PW2 [ENTITY] (Recovery Officer) are contradictory and create confusion & doubt and in my considered opinion, it is not legally safe, without any cogent evidence coming on the record, to base conviction. The material proceedings of recovery, seizure, weighing of recovered article, seal etc are claimed to have been done at the Bus Stand but by the evidence on record, it is doubtful.
28.In this case, on the basis of evidence on record, the accused- appellant could have been acquitted even for non-compliance of provisions of the [ACT] but I have dealt with other points also.
29.The prosecution failed to prove the case on all counts. The [PRECEDENT] [ENTITY] v. State Judgment dt:13.10.2011 investigating agency failed to discharge its duty diligently and properly. Statement of PW2 [ENTITY], Head Constable- the Recovery Officer, is not corroborated by other prosecution witnesses. Moreover, he was not authorized to seize the contraband and arrest the accused-appellant on 01st September 1987. There are material contradictions about place of occurrence, search, seizure, seal and arrest etc. So, the entire prosecution is bad in law.
30.Thus, the prosecution completely failed to adduce coherent and cogent evidence to prove its case and the trial court also failed to consider these important aspects of the matter before arriving at finding of guilt against the accused-appellant [ENTITY].
31.Hence, the finding of guilt arrived at by the trial court is perverse and against settled propositions of law. The conviction of the appellant and sentence awarded to him by the court below can not be sustained.
32.In the result, the appeal is allowed and the conviction & sentence under [SECTION] of the [ACT] against accused- appellant [ENTITY] vide impugned order dated 18th July 1989 passed by learned court below is set aside and the accused- appellant is hereby acquitted of the charge of the offence. The accused-appellant is on bail. His bail bonds stands discharged.
[[ENTITY]-II],J.