JUDGMENT N.K. Jain, J.
1. This appeal is directed against the judgment of Additional Sessions Judge, Banner, dated 12-12-1988, whereby, he convicted and awarded sentences to the accused-appellant as under:
(See table below)
Under Sections Sentence Fine in default 20(ii) & 21 15-15-yrs. R. I. 2-2-Lakhs 1 year R. I. OF THE NDPS Act 307 & 332 IPC 4-4-yrs. R. I. Rs. 500-500 1 month R.I. 14 Foreigners' 4 yrs. R. I. Rs. 500/- 1 month R. I. Act 25 Arms Act 3 months R. I. Rs. 500/- 1 month R. I.
with a direction that all the sentences will run concurrently.
2. The brief facts of the prosecution's case are:
On 18-4-1987, one Chandan Singh, Sub-Inspector, S.H.O., Thana, Gadara Road along with Head Constable Heer Dan, Constables Birbal, Ugam Singh and Pagi-Ishaq Khan (Motbir), were going in Jeep No. RJC 2325, which was driven by Karan Singh, in search of smugglers. They reached at the Police Station Girab, where, they received a wireless message from S.H.O. Ramsar that a gang of six Pak smugglers are going from Kheej Bithudi to Redana. On this information, the S.H.O., Chandan Singh, along with his party proceeded towards Harsappi, Barmer Road, as they reached at Sarhad Redana, on seeing the jeep the smugglers started firing with the intention to kill them. In defence, the police party also fired which lasted for an hour from 3.30 to 4.30 in day. In this encounter, 'Chare' hit and injured the body of Chandan Singh, S.I., at left hand on lip and in eye, and Ugam Singh also got injuries on head and thereafter, all the culprits ran away. It was further alleged that Ranchore Singh, S.H.O., P.S. Girab, Zelam Singh, S.I., along with police party, Additional Superintendent of Police, Banner, with party, C.O. Barmer with party, and Ramesh Chand with party followed the foot-prints of the Camel and reached in the night at Police Station 'Shiv'. It was alleged that they again searched and followed the foot-prints in the morning of 19-4-1987 and reached at Sarhad, Hudo-ki-Dhani, along with Constable Heer Dan and Birbal, thereupon, they saw a person alleged to be a Pak smuggler, who fired on them on the other day. On interrogation, he mentioned his name as Kabul alias Khudia, a Pak Musalman, resident of Khirau, he was arrested, a Camel and Pillan was recovered from his possession at the spot. A F.I.R. of this alleged incident was submitted at the Police Station Shiv on 20-4-1987, by Chandan Singh, S.I. It was further alleged that at the instance of the accused-appellant 7 bories of Heroin in 31 bags and one bag of Charus were recovered. On 22-4-1987, at his instance, one rifle Mark-A, 303 Bore along with 36 live cartridges and some empty Khokhas were also recovered. The necessary 'Fards' were prepared. On completing the usual investigation, the police submitted challan before the Munsif & Judicial Magistrate, Barmer, on 17-7-1987, who committed the case for trial to the Court of Sessions for the offence under Sections 307, 353, 323, I.P.C., 25 of the Arms Act and 20(ii) & 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 and 14 of the Foreigners' Act, on 23-9-1987.
3. The Additional Sessions Judge, Barmer, on 6-10-1987, framed charges against the accused-appellant, the accused pleaded not guilty and claimed trial. The prosecution produced 23 articles and examined 26 witnesses along with 70 documents to establish the case, 3 defence witnesses were also examined by the accused-appellant.
4. After considering, the relevant record and hearing the parties, the learned Additional Sessions Judge, Barmer, found the case is well established. The accused-appellant Kabul alias Khudia was convicted and sentenced as stated above, which has been challenged in this appeal.
5. The learned counsels for the accused-appellant Mr. S. R. Singhi, Mr. Suresh Kumbhat and Mr. Bhupendra Bhatnagar have challenged the conviction on various grounds and contended that nothing has been recovered from the accused-appellant but still he has been wrongly implicated in this false case; delay in F.I.R. has not been explained, there is violation of non-compliance of the mandatory provisions of Section 50 to 57 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and by not preparing the site plan of the recovered articles (Heroin and Charus) according to the rules, fatal to the entire prosecution case.
6. Learned counsel for the accused-appellant Mr. Suresh Kumbhat has submitted that in absence of evidence of proper sealing of samples, missing of linking evidence, and not producing the material recovered (Mal) in Court, the trial is bad. He also submits that conviction under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'Act') cannot be based on the evidence of stock witnesses (Motbirs), recovery witnesses of rifle and other witnesses who were declared hostile. He further submits that no other independent witnesses were examined, rather dropped, no question regarding Chemical Examiner's Report, Ballastic Expert's Report and regarding Citizenship under Section 313, Cr.P.C. was put to the accused-appellant, the identification parade was not properly conducted. He further submits that there are many discrepancies and contradictions on material points, under the circumstances, the accused-appellant cannot be held liable and thus vitiates the entire trial.
7. On the other hand, the learned Public Prosecutor contended that finding arrived on the basis of evidence by the Trial Court is correct, there is no infirmity or material contradictions, as such, it does not call for any interference.
8. I have heard the respective arguments advanced by the learned counsel for the parties and have also gone through the entire record of the case very carefully.
9. Before dealing points, one by one, urged by the learned counsel for the accused-appellant, it is necessary to see the aims and objects of the relevant provisions of this Act which was incorporated by the Narcotic Drugs & Psychotropic Substances Act, 1985 (61 of 1985) after repealing the Opium Act of 1978.
10. The primary aim and object of the Act, is to protect public welfare and to prevent by a rigid control of the possession of Narcotic Drugs & Psychotropic Substances, the danger to public health, and to guard society against the social evils. This Act absolutely prohibits the use, sell, commission, possession, importation, exportation, purchase, consumption, manufacturing etc., except under licence, permit and authority under rule, with a view to achieve its object with exceptional vigilance and firmness, minimum sentence of 10 years of Rigorous Imprisonment and a fine of rupees one lac has been provided or are made mandatory and at the same time some safeguards are given to the accused persons with a view to avoid unnecessary harrasment. The legislators have inserted such mandatory provisions, to be followed, if in case, there is non-compliance, by not following the specific procedure, in making proper investigation, the benefit is to be given to the accused.
11. Mr. Kumbhat argued that there is clear violation of Section 50 of the Act of 1985. Section 50 of this Act says that "when any officer duly authorised under Section 42 of the Act is about to search any person under the provisions of Section 41, Section 42 or Section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in Section 42 or the nearest Magistrate. In support of his contentions, he has placed reliance On the following decisions:
(1) 1990 (1) Crimes 246, Chhotey Lal v. State of Rajasthan;
(2) 1988 Cri LJ 528, Hakam Singh v. U. T. Chandigarh;
(3) 1988 Cri LR 718 (Raj), Biram v. State;
(4) 1990 Cri LR 54 (Raj), Jai Chand v. State;
(5) 1990 (1) WLN 710, Bhanwar Singh v. State.
12. Learned Public Prosecutor submits that the compliance of Section 50 of the Act is not necessary in the instant case, because nothing has been recovered from the accused at the time of search but recovery of contraband articles were made on his information under Section 27 of the Evidence Act. He also submits that the Additional Superintendent of Police, Barmer, who himself was Gazetted Officer, recovered the contraband articles vide Ex.P/1, and as such, the procedure under Section 50 of the Act was not required to be followed.
13. Looking to the pronouncements of various decisions referred above, it was necessary to follow the mandatory provisions of Section 50 of the Act, but in the instant case, the recoveries were not made at the time of arrest at the spot, but were made on the information of the accused under Section 27 of the Evidence Act, and that too from an open place, which was not in occupation of the accused, therefore, Section 42 of the Act is not attracted. And, by not following the procedure of Section 50 of the Act, is not fatal to the prosecution case.
14. It was also argued on behalf of the accused-appellant that Section 57 of the Act has not been complied with. Section 57 lays down that "whenever any person makes any arrest or seizure under this Act he shall within fourty-eight hours next after such arrest or seizure make a full report of all the particulars of such arrest or seizure to his immediate superior official". In support of his contention the learned counsel for the accused-appellant placed reliance on the following decisions:
(1) 1987 (2) Crimes 29, Rattan Lal v. State;
(2) 1988 Raj Cr Cas 113, Umrao v. State of Rajasthan;
(3) 1990 (1) WLN 710, Bhanwar Singh v. State.
15. Learned Public Prosecutor submits that as arrest was made by the Additional Superintendent of Police, Barmer, therefore, it was not necessary to inform his immediate superior officer. He further submits that Superintendent of Police was informed vide Ex.P/60.
16. The evidence on record shows that no such report has been forwarded by PW 26 Jagan Lal Meena, Addl. S.P., and PW 23 Hamir Singh, S.H.O., to their Superior Officers immediately after the arrest vide arrest memo Ex.P/2. PW 22 Ranchore Singh, S.H.O., P.S., Girab, prepared Ex.P/1 of contraband article which was also signed by PW 26 Jagan Lal Meena. The letter dated 22-5-1987 is only a copy of intimation, sending sample (Ex.P/62) for chemical examination to Superintendent of Police by S.H.O., Police Station Shiv, cannot be construed, the compliance under Section 57 of the Act.
17. Therefore, there is nothing on record to satisfy this Court that provisions of Section 57 of the Act has been complied with.
18. Mr. Kumbhat submits that preparation of the two site plans of recovered contraband articles was necessary, he has drawn my attention to the provisions of Section 51 of the Act and Clause 1 of Rule 6.13 of the Rajasthan Police Rules, 1965, and has placed reliance on the decisions of cases reported in, 1988, Cr LR 718 (Raj), Biram v. State and 1962 RLW 448, State v. Moti, Para (14).
19. Learned Public Prosecutor has contended that recoveries of Heroin and Charus were made under Section 27 of the Evidence Act, and not from the personal possession, therefore, it was not necessary to prepare two site plans and submits in alternative that it was not possible to prepare the site plan. He has relied upon the decision reported in AIR 1974 SC 294: (1974 Cri LJ 345), Sat Kumar v. State of Haryana.
20. Section 51 of the Act is reproduced as under:
Provisions of the Code of Criminal Procedure, 1973, to apply to warrants, arrests, searches and seizures :
The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) shall apply, in so far as they are not inconsistent with the provisions of this Act, to all warrants issued and arrests, searches and seizures made under this Act.
Clause 1 of Rule 6.13 of the Rajasthan Police Rules, 1965 says that in all important cases two plans of the scene of the offence shall be prepared by a qualified police officer or other suitable agency, one to be submitted with the charge-sheet or final report and other to be detained for departmental use, so according to this rule, in all important cases site plan should be prepared by the Investigating Officers.
21. In the present case, PW 2 Zalam Singh, S.I. has stated that he has no knowledge whether any site plan is prepared or not, PW 23, Hamir Singh, S.H.O., has stated that no site plan was prepared from where the Camels and Heroin was recovered, PW 26 Jagan Lal Meena, Addl. Superintendent of Police has stated that he has not prepared any site plan of the place where Heroin was recovered.
22. 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 guidelines given in the Rajasthan Police Rules, 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 1983 CAR 135 (SC), Kara Gashi v. State) and therefore, the case reported in AIR 1974 SC 294, Sant Kumar v. State of Haryana does not help the prosecution and suffers from this lacunae, which affect the entire trial.
23. Mr. Kumbhat submits that it is the duty of the prosecution to prove that the seal remained intact and was not tempered with, so as to convict the accused for the offence, as punishment is so severe, under the Act and for this he has relied upon a number of authorities viz.:
(1) 1989 Cr LR 524 (Raj), Mohd. Safi v. State;
(2) 1988 RCC 417, Gopal v. State;
(3) 1989 Cri LJ 1814, Rajesh v. State (Delhi);
(4) AIR 1980 SC 1314, State of Rajasthan v. Daulat Ram;
(5) 1985 RCC 342, Raja Ram v. State;
(6) 1986 Cri LR 43 (Raj), Gokha Singh v. State;
(7) 1990 RCC 121, Suresh Lal Gupta v. State of Rajasthan;
(8) 1989 RCC 245, Chottey Lal v. State.
24. In the present case, PW6 Bhabhut Singh, Constable, has stated that he has not remembered about what type of seal was affixed and has also not remembered whether he compared the seal or not, he further admits that he has not written any thing in the forwarding letter. According to him, he has prepared this forwarding letter in Thana, and the forwarding letter was with him but he has not produced it in Court. He has also stated that the sample which was sent for Chemical Examination was not submitted in Court.
25. There is nothing on record to show that what type of specimen seal was in the j sample which was sent. There is no mention in the Malkhana Reports Ex. 18A and Ex. 19A. Regarding description of seal, so, it cannot be said that what type of seal was affixed at the time of recovery.
26. PW 11 Binjraj Singh, Head Constable, Incharge-Malkhana, has stated that he has not registered the recoveries of goods in the Malkhana Register and has also not mentioned from whom and under what circumstances the 'Mal' was recovered. PW 23 Hamir Singh, S.H.O., has admitted that the Custom Authorities have also taken samples of these articles for chemical examination but the report was not attached, 30 gms. of sample without polythene cover was taken from each of the four packets and was sent for chemical examination vide Ex.P/32, whereas, the report of FSL (Ex.P/62) shows that the articles reached for examination, mentioning the seals were intact and were weighing 32 gms., 30 gms. and 28 gms. respectively in weight and the weight of Charus sample G-27, contains 30 gms. along with polythene paper.
27. There is no evidence on record explaining that how the weight of respective samples have been reduced, when they were packed 30 gms. without polythene paper. It was mentioned in the report of FSL (Ex.P/62) which shows that sample in each packet gave positive test for the presence of Heroin, but does not give details, that percentage of Morphine is more than 0.02% in view of Rule 2(1)(a)(b)(v) of the Rajasthan Narcotic Drugs & Psychotropic Substances Rules, 1985.
28. Therefore, in the absence of such finding, it cannot be said with certainty that the contraband article is heroin.
29. PW 10 Deraver Singh (Motbir) has stated that samples were weighed and taken in the morning of 19-4-1987, after half an hour when he reached at 8 a.m., whereas, as per the statement of PW 26 Jagan Lal Meena, Addl. S.P., the contraband articles were reached at the Police Station Shiv only at 4 p.m. In Ex.P/32 no time was mentioned, PW 23 Hamir Singh, S.H.O. stated that according to him time taken for weighing was from 4 p.m. to 9.30 p.m. These material contradictions are fatal to the prosecution case.
30. In view of the observation in case reported in 1988 RCC 30, Jasa Ram v. State of Rajasthan that burden lies on the prosecution to prove its case, but the burden has not been discharged.
31. The evidence on record gives suspicion regarding time of reaching at Malkhana and weighing of these articles and regarding fair investigation and in view of the various authorities cited above and the decision of the Supreme Court in State v. Daulat Ram (supra), the prosecution could not be allowed to fill up the gaps, therefore, the benefit of suspicion is given to the accused.
32. Mr. Kumbhat submits that the conviction cannot be sustained on the ground, that seized articles i.e. Charus (1 kg.), 7 Bora Heroin (313 kg.) were not produced in the Court and he has relied on the decision of case of Subheg Singh v. State of Punjab, reported in 1983 Chandigarh Cr Cas 1, 1990 (2) Chandigarh Cr Cas 236, Sunder Lal v. State, PW 23-Hamir Singh, S.H.O. has stated that Charus and Heroin recovered articles were handed over to the Customs Department on the orders of S.P., Banner, and not by orders of the Court. PW 4 Sohan Raj Khandelwal, Custom Inspector has stated that on 20-5-1987, the recovered articles are lying in the sealed condition in the Malkhana of the Customs Department since 20-5-1987. As per Ex. 18A, the Malkhana Report shows that the alleged contraband articles were deposited in Customs Department at Barmer.
33. The production of seized article is necessary, so that, their chemical report can be corroborated with the seized article, but the learned Public Prosecutor is not able to show any evidence on record and in view of the cases referred above, the non-production of the case property 'Mal' in Court gives serious infirmity and doubt about the investigation.
34. Mr. Kumbhat also submits that the test identification parade has not been properly conducted. PW 19 R. K. Parekh, Judicial Magistrate, who has stated that during the identification parade, he was told by the accused, that accused was shown to all the police officials in the Police Station at Shiv, before the identification parade. As per statement of witnesses PW 3 Chandan Singh, PW 7 Binjraj Singh, PW8 Ishaq Khan, PW 11 Narayan Singh and PW 17 Ugam Singh, who have admitted that they were at the Police Station, Shiv on 19-4-1987 for a group photograph Ex.D-1, they have also admitted that this accused was present at the time of photo on 19-4-1987. PW 19 has also admitted that he has not mentioned, as to what type of dress was put on by the accused, and has not written, and similarly, he has not mentioned, regarding type of dresses wore by the other persons, who were present in that parade. He has also admitted that he had no knowledge, how the other persons were called to join the parade. He has also stated that he could not notice by seeing the accused, that he is limp, whereas, on demonstration in Court, it was found that the left foot of the accused was defective and shorter by 3 inch. PW 17 Ugam Singh and PW 3 Chandan Singh who have identified the accused out of 12 persons who joined in parade. PW 17 Ugam Singh has stated that due to injuries, he was in the hospital from 18-4-1987 to 30-4-1987 and PW 3 Chandan Singh has stated that due to injury, there was a bandage on his eyes, while perusal of photograph (Ex.D-1) reveals that both were present at the time of group photo (Ex.D-1) and there was no bandage on the eyes of PW 3 Chandan Singh.
35. The purpose of identification parade is futile when as per evidence on record, accused as well as the police officials were present at the Police Station Shiv, on 19-4-1987 for photograph, therefore, possibility of seeing the accused-appellant cannot be brushed aside. The accused-appellant was arrested on 19-4-1987 and the identification parade was held on 22-5-1987, is itself fatal to the prosecution. In view of the decision reported in 1983 Cr LR 527, Soni v. State of U.P. and decision reported in 1988 RCC 355, Birbal v. State.
36. In view of the above facts on record, no conviction can be passed on the basis of such identification.
37. Mr. Kumbhat submits that no independent witness was examined though they were available, as such, the trial is vitiated. He has placed reliance on the decision reported in 1988 (1) AI Cr LR 815, Suneri alias Chamari v. State and the decision reported in 1988 (4) Cr JR 2121 (Raj), Roland Markas Goonthar v. State.
38. The learned Public Prosecutor submits that at that point of time, no independent witness was available, and there is no reason to discard the testimony, only on the ground that they are police officials and has placed reliance on the decision reported in 1981 Cr LR 122 (SC) : (1981 Cri LJ 410), State of Punjab v. Wassan Singh.
39. PW 9 Sajjan Khan, who says that Gul Mohd. and Deraver Singh were available, PW 8 Ishaq Khan stated that a civil man came from the Dhani when 7 bories of Heroin were recovered. It could not be believed that no independent witnesses were available. As per the statements of PW 8 and PW 9 independent witnesses were available.
40. The above referred case 1981 Cr LR 122 (SC): (1981 Cri LJ 410), State of Punjab v. Wassan Singh (supra), referred by the learned Public Prosecutor is not applicable to the facts of the present case, as independent witnesses were available and investigating agency deliberately withheld and calling of independent witness from public for search is not an idle formality, as observed in 1988 (1) AI Cr LR 815, Suneri alias Chamari v. State, the courts would have to approach their action with reservations. It was further observed that the matter in that case had to be viewed with suspicion, if, the provisions of the law were not strictly complied with and the least could be said, was that it was so done with an oblique motive.
41. In view of the evidence on record, I am not prepared to believe that witnesses were not available. All this leads me to the conclusion that the recovery of heroin and charus, as alleged, is not free from doubt. I will not, therefore, rely on the sole testimony of the police officer regarding the recovery of heroin and charus from the appellant at his instance, as alleged.
42. Mr. Kumbhat urged that no conviction can be maintained on the evidence of stock witness PW 10 Deraver Singh (Motbir) and therefore, in view of the decision reported in 1980 Cr LR 366 (SC), Jagan Nath v. State, his evidence is not reliable for conviction. PW 10 Deraver Singh, admitted that he remained stock witness (Motbir) in 2 cases earlier. PW 8 Ishaq Khan has stated that accused-appellant has not disclosed about 7 bories of heroin in his presence, who was declared hostile.
43. Mr. Kumbhat urged that no conviction can be maintained on the evidence of PW 8 Ishaq Khan, PW 13 Idan Ram and PW 14 Ghever Chand regarding recovery of rifle, and has urged that even on the basis of alleged recovery of rifle, the accused-appellant could not be held liable under Sections 307 and 332, I.P.C.
44. PW 13 Idan Ram (Motbir) who was declared hostile, has stated that rifle was not recovered in his presence. PW 14 Ghevar Chand, a hostile, witness, has stated that on the basis of information of police, they had recovered rifle along with one patta and in cross-examination he has stated that nothing was recovered as stated, and, further stated, that he has signed, as he was told, though, it was not read before him. PW 15 Sawai Singh is a witness of recovery of 30 empty khokhas vide Ex.P/40 dated 3-5-1987, whereas the 'Mal' was deposited vide Ex.P/18 on 19-4-1987.
45. It was alleged that accused was the person who fired on previous day. It is also the case of the prosecution that other persons were also present there but all ran away from the spot when police party reached and none could be arrested on that day. PW9 Sajjan Khan stated that Birbal was there at the time of incident and saw the accused but was not produced, who was an important witness. There is no other evidence which connects the accused with the crime for the offence, that he was the person who fired on the previous day, in absence of evidence of Birbal, it cannot be said or presumed that this accused was the only person, who has fired, especially when the other persons were alleged to be there and there is no evidence that any body has seen him firing. As per evidence on record, the participation in the crime by the accused is not proved beyond reasonable doubt, the evidence of recovery of rifle is not trustworthy in absence of clear evidence as discussed above. The accused-appellant deserves benefit of doubt for the offence under Sections 307 and 332, I.P.C. as also due to the finding that the test identification parade was not free from doubt.
46. Therefore, in my opinion, conviction cannot be maintained on such unreliable evidence. In view of the evidence on record, the recoveries becomes doubtful. On the above evidence, no conviction can be maintained as the witnesses are unworthy of any credence.
47. Mr. Kumbhat has submitted that the report of the ballastic expert and chemical report have not been put to the accused-appellant in his statement under Section 313, Cr.P.C. He has also placed reliance on the decisions reported in AIR 1984 SC 1622, Sharad Birdhi Chand Sarda v. State, 1986 Cr LR 43 (Raj), Gokha Singh v. State, 1975 Cr AR 43, Bhim Sen v. State of Punjab and 1990 RCC 79, Tara Chand v. State.
48. The learned Public Prosecutor submitted that by not putting the question under Section 313, Cr.P.C. to the accused is not fatal to the prosecution and has relied on cases reported in 1989 RCC 343, Rijumal v. State, 1990 RCC 374, Laxmilal v. State of Rajasthan and 1973 (2) SCC 793 : (1973 Cri LJ 1783), Shivaji Sahab Rao v. State of Maharashtra.
49. The learned Public Prosecutor has not been able to show from the record that any question was put to the accused as stated above.
50. In the present case, admittedly, the learned Additional Sessions Judge, has not put any question under Section 313, Cr.P.C, regarding chemical report, ballastic report, therefore, the accused-appellant was not able to express the circumstances against him, it certainly caused prejudice to his case.
51. I have gone through the cases cited by the learned Public Prosecutor, in these cases cited above, recoveries were made from the personal possession. Neither, the questions were put to the accused, nor considered materially by the Court, and no prejudice was caused to the accused, as such, they are not applicable to the facts and circumstances of this case.
52. This is also evident that no question had been put to the accused in his statement under Section 313, Cr.P.C. regarding any report of the chemical examiner. The necessity of bringing all the material facts implicating the accused with the commission of the crime to the notice of the accused by putting him question in that regard in the statement under Section 313, Cr.P.C. is for the reason that no material can be taken help of by the court without the accused being given an opportunity to explain it. The very purpose of Section 313 is to put the circumstance against the accused so that he may meet out the prosecution case and explain the circumstances brought by the prosecution to implicate him in the commission of the crime. It is now well settled by a catena of decisions of the Apex Court that any circumstances not put to the accused in his statement at the trial, thereby depriving him of the opportunity to explain that circumstances, should be completely excluded from consideration. This principle as enunciated in the case of Bhagat Singh Het Singh v. State of Madhya Bharat, (AIR 1953 SC 468) was subsequently followed and emphasized in a number of cases by the Supreme Court. In the case of Sharad Bhirdi Chand Sarda v. State of Maharashtra, (AIR 1984 SC 1622) after relying upon a number of cases on the point, it has been observed that the circumstances which were not put to the accused in his examination under Section 313, Cr.P.C. have to be completely excluded from consideration. The opinion of the chemical examiner is an important circumstance in cases of this type and such circumstances not being proved and not being put to the accused, the court taking help of the report without putting a question to the accused in that regard and affording him opportunity to explain, is a vital infirmity. It is pertinent to note that if it finds place on the record, if not proved or exhibited, is just like any other waste paper and the Court should not have taken into consideration, especially so when no question in that regard was put to the accused.
53. Mr. Kumbhat submits that there are many discrepancies and contradictions in the statements of witnesses and even, material witnesses were not produced, rather dropped. He also submits that foot-prints of Camel along with Camel were not produced in the Court, nor the trial Court has said anything about camel or its release.
54. I have gone through the record and statements of the witnesses and found that there are discrepancies and contradictions regarding distance, with regard to arrest of the accused and place of recovery of contraband articles. There is also delay in examination of witnesses under Section 161, Cr.P.C., the prosecution has also not produced the material witnesses, rather dropped and further, the foot-prints were not produced in the Court. The Trial Court has not dealt with regard to Camel. It is not necessary to repeat the statements of all these witnesses but it is suffice, that the arguments advanced by the learned counsel on these points are correct. Keeping in mind the aims and object of the Act and principles enunciated by various decisions, it is clear that the provisions of Sections 42 to 57 of the Act are mandatory. In view of the decision reported in 1989 (2) RLR 127, Veerpal Singh v. State of Rajasthan. When the legislation has given some safeguards to the accused persons, the prosecution agency has no right or authority to take away that right or to disobey the provisions of the Act. Therefore, on non-compliance of these provisions great prejudice has been caused to the accused.
55. As I have already discussed above, that in order to avoid any mischief by the Investigating Officer and in order to see that a fair investigation is done these provisions have been made in the legislation. Non-compliance of several provisions of the Act creates doubt and suspicion in the fairness of the investigation. When doubt is created and that doubt is with regard to mandatory provisions, then benefit of doubt must go to the accused. The Additional Sessions Judge has not looked this case on this aspect and has not applied his mind on the provisions of the Act.
56. In the last, the learned Public Prosecutor has placed reliance in case decided on 5-7-1988 by Hon'ble Mr. Justice D. L. Mehta, reported in 1989 Cr LR 582 (Raj), Hardev Gujar v. State of Rajasthan, and argued that in view of above decision, no person can be acquitted on account of illegality in the matter of investigation unless miscarriage of justice is shown. But in this case, as per evidence on record, there is miscarriage of justice on several counts, and therefore, the case reported in 1989 Cr LR 582 (Raj) (supra) decided by Hon'ble Mehta, J. is not applicable to the facts and circumstances of this case.
57. Mr. Kumbhat submits that Hon'ble Mr. Justice Mehta, in another case decided on 11-8-1988, reported in 1988 (4) Cr JR 2121 (Raj), Roland Markas Goonthar v. State of Rajasthan, while considering the aims and object of the Act, considered the grounds viz., merely on, no mentioning the date of delivery of sample in the abstract is sufficient to create doubt about the identity of sample, and not mentioning the date in the Malkhana Register and as he is not in a position as to whether the search was taken or not, and acquitted the accused only on the point of identity of the sample. Therefore, Hardev Gujar's case does not help the prosecution.
57A. In this case, on the basis of evidence on record, the accused-appellant could have been acquitted, even, on non-compliance of the provisions of Section 57 of the Act alone, but I have dealt other points also. The prosecution has failed to prove the case on all counts. The investigating agency has failed to discharge its duty deligently and properly, even, in such cases of anti-social activities of smuggling at border, the culprit is going without being punished, due to the lack of proper investigation and zeal of the concerned officers. The learned Judge, has also observed in para 23 of the judgment that P.W. 26-Jagan Lal Meena, Addl. S.P., along with P.W. 23-Hamir Singh, S.H.O., and P.W. 22-Ranchore Singh, S.H.O., P.S. Girab and P.W. 2-Zalam Singh S.H.O., P.S. Sadar Barmer, have conducted the investigation in an irresponsible manner. The evidence recorded under Section 164, Cr. P.C. after much delay. The trial Court has directed that if any reward except to P.W. 3 Chandan Singh and P.W. 17 Ugam Singh (who were injured) is given, the same may be taken back and deposited in the State Exchequer, because the raid-party has not discharged its duty in a rightful manner, despite of the information received in time that some Pak Smugglers are going on Camels at the Border, and even, having sufficient time, they could not be arrested. The learned Judge also forwarded a copy of judgment under appeal to the Director General of Police, Rajasthan and S.P. Barmer, to take necessary disciplinary action against them. The structures passed by the learned trial Court were all founded.
58. In view of the above discussion, I do not agree with the finding of the learned trial Court and conviction and sentence passed under Sections 20(ii) & 21 of the N.D.P.S. Act, under Sections 307 & 331 and 25 of the Arms Act, deserves to be set aside, and for the conviction under Section 14 of the Foreigners Act, as it was alleged that accused appellant is a Pak National, he was arrested on 19-4-1987 and since then he is in custody, about 3 years and 6 1/2 months, the ends of justice will be served, if, the conviction is reduced for the sentence already under gone by him, and thereafter, the Authorities are free to take necessary steps to deport him.
59. In the result, the appeal is partly allowed and the conviction and sentence passed under Sections 20(ii) & 21 of the Narcotic Drugs & Psychotropic Substances Act, under Sections 307 & 332, I.P.C. and under Section 25 of the Arms Act is set aside and the accused appellant is hereby acquitted for these offences. However, the conviction under Section 14 of the Foreigners Act is maintained, but is reduced to the sentence already undergone. The sentence of fine is also set aside and be refunded, if, deposited. The accused appellant be released forthwith, if, not required in any other case. However, it is directed that the Authorities may proceed accordingly.