1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR * * * : J U D G M E N T : [1] LADU LAL & ANR. VS. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL NO.634 OF 2005 [2] RADHEY SHYAM VS. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL NO.697 OF 2005 [3] BHOJA @ HEERA VS. STATE OF RAJASTHAN S .B. CRIMINAL APPEAL NO .34 OF 2006 against the judgment dated 10.08.2005 passed by learned Special Judge, NDPS Act Cases, Bhilwara in Sessions Case No.16/05 (State Vs. Radhey Shyam & Others). *** DATE OF JUDGMENT : 13th April, 2007 PRESENT HON'BLE MR.MANAK MOHTA, J. Mr. Rakesh Arora ] Mr. Gopal Acharya ] for the appellants. Mr. Anil Kaviraj ] Mr. Narendra Moolchandani, Public Prosecutor. BY THE COURT : 1. These appeals have been filed by the accused- appellants against the judgment dated 10.8.2005 passed by 2 learned Special Judge, NDPS Act Cases, Bhilwara whereby the appellants have been convicted and sentenced as under :- Radhey Shyam Under Section 8/15 (c) of N.D.P.S. Act – Ten years' rigorous imprisonment and a fine of Rs.1,00,000/- in default of payment of fine, to further undergo one year's rigorous imprisonment. Ladu Lal Under Section 8/15 (c) of N.D.P.S. Act – Ten years' rigorous imprisonment and a fine of Rs.1,00,000/- in default of payment of fine, to further undergo one year's rigorous imprisonment. Bhoja @ Heera Under Section 8/15 (c) of N.D.P.S. Act – Ten years' rigorous imprisonment and a fine of Rs.1,00,000/- in default of payment of fine, to further undergo one year's rigorous imprisonment. Chhotu Under Section 8/29 (a) of N.D.P.S. Act – Ten years' rigorous imprisonment and a fine of Rs.1,00,000/- in default of payment of fine, to further undergo one year's rigorous imprisonment. 2. The prosecution story, in nutshell, is to the effect that on 3.10.2003 in the night at 12:05 SHO, Police Station Pander Mahesh Singh (PW-12) alongwith the raid-party comprising of constables Ramkedar, Durga Lal (PW-15), Kedar Mal (PW-16) and Gopal Lal (PW-4) proceeded in a government jeep for conducting 'nakabandi' and went towards 'Dagaria Choraha'. At about 3:00 a.m., the police-party started from 3 'Dagaria Choraha' and went towards 'Kanjaro Ki Aamad Rafat' and it continued there. At 5:00 a.m. from the side of 'Falasia', a 'Commander jeep' was seen coming with its lights on, which was signalled to stop but the driver instead of stopping the vehicle, sped away the vehicle towards Shahpura-Jahajpur road. It was noticed with the help of lights of government jeep that one more person was sitting inside the jeep besides the driver. Thereafter, on suspicion, the 'Commander jeep' was chased and a little thereafter, the said vehicle was found struck in a pool of rainy water having mud. The driver and his companion were not found there as they fled away taking advantage of darkness and long-standing crops in the nearby fields. Constable-Gopal Lal was left behind to guard the 'commander jeep' and the SHO alongwith the raid-party went in search of the driver and his companion but could not trace them. On coming back, the 'commander jeep' was inspected, wherein a registration certificate in the name of Parmeshwar Lal and one release memo in the name of Firoz Beg driver were found to be of jeep No. RJ-06C-2369 and alongwith the jeep, nine filled up gunny bags of suspicious material were also found. Two persons of nearby fields, namely, Sampat Lal and Ranjeet Meena were called, they consented for acting as 4 'motbirs' and thereafter in their presence, search and seizure proceedings were undertaken at 7:00 a.m. On the middle-seat of commander jeep, three gunny bags and from the rear-seat six gunny bags were seen lying. All the gunny bags were opened in the presence of 'motbirs' witnesses, which on opening were found to be containing 'Poppy Straw'. Constable-Kedar Mal was sent for bringing weighing machine and weights etc. He brought weighing instrument. All the nine gunny bags were weighed, that came out to be 186.500 Kgs. Thereafter sample weighing 500 Grams each of Poppy Straw was taken out from each bag and sealed in a white cloth on the spot and the nine bags were marked “A” to “I”. Samples thereof were marked “A-I to I-A”. The documents relating to seizure proceedings i.e. furd Ex.P/29 and specimen seal memo (Ex.P/28) etc., were prepared and later on alongwith the seized 'Commander jeep' nine gunny bags containing Poppy Straw and the samples thereof were handed over to PW-3 Motilal- Incharge Malkhana of the Police Station, Pander and on report (Ex.P/23), a case under Section 8/15 of N.D.P.S. Act vide FIR No.103/03 (Ex.P/24) was registered. 5 3. During the course of investigation, statements of various witnesses were recorded. Radhey Shyam was found to be the driver at the time of incidence, therefore, he was arrested. At the instance of accused-Radhey Shyam and on his information (Ex.P/10) given under Section 27 of Evidence Act, verification of the house of Chhotu was undertaken, from where the contraband was alleged to be loaded at the instance of Ladhu Lal and Bhoja @ Heera. They were arrested. The house of Chhotu was identified by accused-Bhoja @ Heera on his information (Ex.P/16) under Section 27 of Evidence Act. The accused-Chhotu was also arrested. Thereafter, the Investigating Officer also collected one affidavit (Ex.P/3) submitted by the son of the vehicle owner-Parmeshwar. Samples were sent to Forensic Science Laboratory for analysis. After completion of usual investigation, challan was filed against the aforementioned accused persons under Section 8/15 read with 8/29 of N.D.P.S. Act and charges were framed accordingly, to which the accused pleaded not guilty and claimed trial. 4. Ultimately, the accused were put to trial. During trial, prosecution examined PW-1 Gopal, PW-2 Sharwan, PW-3 6 Moti Lal, PW-4 Gopal Lal, PW-5 Brahmprakash, PW-6 Madhu, PW-7 Shashikant, PW-8 Kesar Lal, PW-9 Parmeshwar Lal, PW-10 Ramendra Agarwal, PW-11 Ram Prasad Upadhyaya, PW-12 Mahesh Singh Charan, PW-13 Suva Lal, PW-14 Ashok Kumar, PW-15 Durga Lal, PW-16 Kedar Mal, PW-17 Bansi Lal, PW-18 Abhay Singh, PW-19 Dev Karan, PW-20 Ramji Lal and PW-21 Seya Ram witnesses in support of its case. Documents Ex.P/1 to Ex./41 were got exhibited. Thereafter, the statements of accused-appellants were recorded under Section 313 Cr. P.C. They denied the allegations levelled by the prosecution witnesses, however, they did not choose to lead any defence. Accused-Radhey Shyam while denying the allegations levelled against him stated that he was forced under the threat of knife by Ramendra and Shashikant advocate to sign on the stamp paper. He further stated that he has been falsely implicated in the case. No witness was examined in defence. During trial, certain documents viz., Ex.D/1 and Ex.D/2 were got exhibited. 5. At the conclusion of trial after hearing the parties, the learned Special Judge, NDPS Act Cases, Bhilwara found the prosecution case proved against the accused persons and vide his judgment and order dated 10.8.2005 proceeded to 7 convict and sentence them, as mentioned above. Being aggrieved by the aforesaid judgment, appeal No.634/05 was filed by Ladhu Lal and Chhotu, Appeal No.697/05 was filed by accused-Radhey Shyam and appeal No.34/06 was filed by Bhoja @ Heera, notices of these appeals were given to the State. All the appeals relate to one single judgment of conviction and sentence, thus, are being heard and decided together by a common judgment. 6. I have heard learned counsel for the appellants as well as the learned Public Prosecutor for State and have carefully gone through the record of the case. 7. During the course of arguments, learned counsel for the accused-appellants Ladu Lal & Chhotu with reference to Appeal No.634/05 submitted that the learned trial court has not properly appreciated and considered the evidence and material available on record and has recorded an erroneous finding of guilt, that is not sustainable and deserves to be quashed and set aside. It was contended that in this case, there is no incriminating evidence against these accused persons. Neither any recovery was made from them nor they 8 were present at the time of the alleged recovery. As per the prosecution story, the alleged recovery was made from one unclaimed jeep. It was further contended that the conviction of accused-appellants Ladu Lal and Chhotu is based only upon extra-judicial confession of co-accused Radhey Shyam, who is alleged to have made an affidavit (Ex.P/3) but that it not sustainable. Firstly, that cannot be said to be extra-judicial confession made by Radhey Shyam. Further, such alleged confession made by co-accused Radhey Shyam could not be read against these co-accused. Secondly, that has not been corroborated by any independent evidence. The name of accused-Chhotu has not been mentioned in affidavit (Ex.P/3). In this respect, it was urged that the statement of PW-9 Parmeshwar Lal (owner of the vehicle) and his son-PW10 Ramendra are not reliable. They are not trustworthy witnesses. Nothing has been recovered from Ladhu. The prosecution story is based on affidavit (Ex.P/3), which was produced during the course of investigation after one year of the incident by PW-10 Ramendra (the son of vehicle owner) and that was got prepared by him to save his father. This document is full of doubts and no reliance can be placed on it but the learned trial court has not given due attention towards this aspect. It was 9 also contended that the evidence of information given by co-accused Radhey Shyam under Section 27 Evidence Act is also not sustainable against the accused-appellant Chhotu. It was urged that the alleged facts disclosed by way of the information were already in the knowledge of the police, thus, the information is of no value. Secondly, the facts of information has not been proved. The independent witnesses, namely, PW-1 Gopal and PW-2 Sharwan have not supported the prosecution story. Neither any contraband material was found at Chhotu's house nor his exclusive possession over the said house was proved. Further, that the contraband articles were loaded from his possession, was also not proved. The evidence of Patwari and others are of no help. The learned counsel for the appellant also challenged the seizure proceedings and stated that no independent witness has been presented in court, though as per record, Sampat and Ranjeet were kept as motbir witnesses at the time of alleged recovery. It was also submitted that the prosecution has not been able to prove link evidence properly and, therefore, the prosecution story remains doubtful but the learned trial court has not considered these aspects. Thus, it was urged that no case under Section 8/15 of N.D.P.S. Act is made out against Ladhu 10 and under Section 8/29 of N.D.P.S. Act against Chhotu and, therefore, their conviction deserves to be set aside and the appeal may be allowed. The learned counsel for the accused- appellants placed reliance on (i) 2004(2) Cr. L.R. (Raj.) 1158 Hanuman Das Vs. Union of India (ii) 1998 Cr. L.R. (Raj.) 531 Basanti Lal Vs. State of Rajasthan, (iii) 1997 Cr. L.R. (Raj.) 668 Kaya Vs. State of Rajasthan (iv) 2001(1) R.Cr.D. 352 (Raj.) Kishan Lal Vs. State of Rajasthan (v) 1996 Cr. L.J. 506 (Allahabad High Court) Maharaj Deen Vs. State (vi) 2000 Crl. L. J. 4797 (M.P. High Court) Balkrishna Naik Vs. State of Madhya Pradesh (vii) 1967 AIR (Raj.) 98 Mst. Kistoori Vs. State of Rajasthan, (viii) 1995 Cr. L.J. 1762 Balbir Singh Vs. State of Orissa (ix) AIR 1995 (SC) 980 Shivappa Vs. State of Karnataka (x) 2001 Cr. L.J. 3770 Rajkumar Pandit Vs. State of Bihar, (xi) 2004(2) Cr.L.R. (Raj.) 1240 Surja Ram Vs. State of Rajasthan, (xii) 2003(2) R.Cr.D Baburam @ Aaidan Ram Vs. State of Rajasthan (xiii) 2004(2) R.C.C. 1010 Hari Ram Vs. State of Rajasthan (xiv) 2003(1) R.Cr.D.440 (Raj.) Balu Ram Vs. State of Rajasthan (xv) 2006(2) RLW 1452 Raju Munim Vs. State of Rajasthan, (xvi) 2004(2) R.C.C. 707 Krishan Lal Vs. State of Rajasthan (xvii) 2004(3) R.C.C. 1400 Surja Ram Vs. State of Rajasthan (xviii) 2006(2) RLW 1281 Ram Niwas 11 Vs. State of Rajasthan. 8. The learned counsel for the accused-appellant Radhey Shyam in relation to appeal No.697/05 submitted that the accused-appellant has been falsely implicated in this case. The prosecution case against the present appellant is that he was the driver of the said vehicle at the relevant time but it is not proved. It was stated that he was not identified by any person nor any recovery was made in his presence. It was urged that as per the prosecution story at the time of first inspection of 'commander jeep', a release memo of the said vehicle in the name of Firoz Beg-driver was found alongwith the Registration Certificate of the jeep. No investigation was made from Firoz Beg. It was contended that at the instance of the owner of vehicle, his son-Ramendra and Shashikant, advocate forcibly under threat obtained his signatures on a stamp-paper and later on that was produced by Ramendra (marked as Ex.P/3) to the Investigating Officer to save his father i.e. the owner of the vehicle. Only on the basis of the said affidavit (Ex.P/3) he has been roped in this case. It was also urged that there is no corroboration of the said affidavit (Ex.P/3) by independent witnesses and Ex.P/3 which is on a 12 stamp paper was purchased on 29.9.2003 before the alleged incident of 3.10.2003 and the matter was written and got attested by PW-10 Ramendra on 3.10.2003 at evening time i.e. after the incident with the connivance of Notary PW-5 Brahm Prakash and PW-7 Shashikant advocate and this affidavit was produced after a gap of one year i.e. on 9.10.2004 by the son of the owner of vehicle without explaining the gross delay of one year. The affidavit (Ex.P/3) was not produced by him. The evidence of these persons are not reliable. Thus, the prosecution story is false, doubtful and is not reliable. It was further contended that during trial, the prosecution agency itself did not rely on this affidavit (Ex.P/3). In this respect, learned Special Public Prosecutor on 26.7.2005 moved an application under Section 8/25 N.D.P.S. Act and under Section 319 Cr. P.C. before the learned trial court for impleading Parmeshwar Lal (jeep owner) as an accused in this case stating therein that the affidavit (Ex.P/3) has been prepared bogus by Ramendra to save his father i.e. the owner of the jeep. He drew my attention towards the said application dated 26.7.2005 presented by Special Public Prosecutor before the trial court and submitted that the prosecution itself has found that the affidavit (Ex.P/3) to be incorrect and false 13 but the learned trial court has relied over it. It was also submitted that the affidavit (Ex.P/3) is not proved by independent witnesses and no fair investigation was made in that respect. It was also contended that affidavit (Ex.P/3) was never signed voluntarily nor he ever made such statement. It was also contended that the affidavit (Ex.P/3) could not be taken as extra judicial confession on his part. The learned trial court has given much emphasis on the affidavit (Ex.P/3) and has made it the sole basis of conviction but it was submitted that the approach of learned trial court is not correct and the finding of guilt is required to be quashed and the appeal be allowed. Learned counsel for the appellant has also relied on the contentions raised and the authorities cited by other appellants and placed reliance on the following decisions : (i) 2004(2) Cr. L.R. (Raj.) 1240 Sanju Ram Vs. State of Rajasthan, (ii) 2004(2) Cr. L.R. (Raj.) 1247 Jasbir Singh Vs. Union of India, (iii) 2005(2) Cr. L.R. (Raj.) 1507 Jai Ram Vs. State of Rajasthan, (iv) 2005(2) Cr. L.R. (Raj.) 881 Chetan @ Chet Ram Vs. State of Rajasthan, (v) 2001 Cr. L.R. (Raj.) 810 Thana Ram Vs. State of Rajasthan and 2002(1) Cr. L.R. (Raj.) 299 Shankar Lal Vs. State of Rajasthan. 14 9. With reference to appeal No.34/06 filed by Bhoja @ Heera, the learned counsel for the appellant submitted that the prosecution has not been able to prove the case against him. He has been falsely implicated in the case. Neither the recovery has been made from him nor he was present at the time of recovery. It was also contended that nobody has identified him. The evidence of information was of no use, as the facts were already within the knowledge of the police. It was further contended that as per the prosecution story, it is alleged that the raid-party saw one person was sitting besides the driver of the jeep but during investigation without any basis two persons, namely, Bhoja and Ladhu have been projected as accused. They have wrongly been entangled in this case, therefore, the prosecution story becomes doubtful. It was also contended that the total case against the present appellant is based on the alleged extra-judicial confession made by co- accused. It was urged on the same line as it was contended on behalf of appellant-Ladhu Lal that extra-judicial confession of a co-accused cannot be read against co-accused and cannot be made the basis for conviction. The learned lower court has not properly appreciated the evidence and the material available on record. Thus, the finding is not tenable 15 and is liable to be quashed and set aside. It was prayed that the appeal may kindly be allowed. Learned counsel in support of his contentions has placed reliance on : (i) AIR 2002 SC 3343 Avtar Singh Vs. State of Punjab (ii) 2004(2) Cr. L.R. (Raj.) 1240 Surja Ram Vs. State of Rajasthan, (iii) 2004(2) R.C.C. 707 Krishan Lal Vs. State of Rajasthan (iv) 2003(2) R.Cr. D. 423 (Raj.) Baburam @ Aaidan Ram Vs. State of Rajasthan (v) 2004(2) R.C.C. 1010 Hariram Vs. State of Rajasthan (vi) 2004(3) R.C.C. 1130 Krishan Kumar Vs. State of Rajasthan (vii) 2003(1) R.Cr.D.440 (Raj.) Balu Ram Vs. State of Rajasthan (viii) 2006(2) RLW 1281 Ram Niwas Vs. State of Rajasthan and (ix) 2006(2) RLW 1452 Raju Munim Vs. State of Rajasthan. 10. On the contrary, learned Public Prosecutor refuted the contentions raised by the learned counsel for the appellants with regard to aforesaid appeals. It was further submitted that the prosecution has placed complete material before the court and charges against the accused persons have been proved by reliable evidence. It was also contended that the accused-Radhey Shyam has admitted in his statement recorded under Section 313 Cr. P.C. that the affidavit (Ex.P/3) 16 bears his signature. Further he has stated that his signature was obtained forcibly but neither he has made any report to the police in time nor he has produced any defence evidence in this respect. In his affidavit, he has clearly stated his role and that of other co-accused persons. The house of Chhotu was verified by him as per his information. The facts are corroborated by other evidence. He has made extra-judicial confession of his act and the acts of the other co-accused, that is corroborated by other evidence. Thus, the learned trial court has rightly relied upon. The prosecution has also proved the seizure proceedings as well as the other link evidence by reliable evidence. As per FSL report (Ex.P/18), the contraband poppy straw was having the constituents of opium and that was found recovered and loaded by the accused persons. Thus, the finding of guilt against the accused may be maintained and all the appeals be disallowed. 11. Before adverting the evidence and contentions, it would be proper to scan in brief the evidence produced by the prosecution to prove its case : 17 PW-1 Gopal and PW-2 Sharwan are the prosecution witnesses who were presented to support the fact that accused-Radhey Shyam made verification of the house of accused-Chhotu from where it is alleged to have loaded the contraband article. These witnesses were declared hostile and in the cross-examination made by Special Public Prosecutor they stated that they did not know Radhey Shyam and further stated that they had placed their signatures on Furd Moka Tasteek (Ex.P/1) under the pressure of police. Thus, these witnesses do not support the prosecution case. PW-3 Moti Lal is the Incharge Malkhana of P.S. Pander. He has deposed that on 3.10.2003, the SHO deposited nine sealed bags containing Poppy Straw alongwith nine sealed packets of samples and Jeep No.RJ-06-2369 and he made an entry to that effect in the Malkhana Register (Ex.P/2) at Sr. No.123. On 8.10.2003 he handed-over the said samples marked “A-1” to “I-1” to constable-Kedar Mal for depositing them with FSL. Constable-Kedar Mal on 9.10.2003 submitted receipt of deposit of the sample vide Ex.P/40. In cross- examination this witness has stated that re-sealing with seal of police station was not done by him at the time of deposition of 18 articles. He has also admitted that the specimen seal was not deposited in 'Malkhana' alongwith the contraband article. PW-4 Gopal Lal is the constable who accompanied the raid party. He has stated that one more person was seen sitting besides the driver of 'commander jeep'. The jeep driver did not stop the vehicle despite giving signal to stop and sped away on Shahpura-Jahahpur road and, as such, was chased. After a distance, the said jeep was found struck in a pool of muddy rain water and nobody was found inside the jeep. This witness says that both the persons fled away from scene, therefore, they could not be identified. He supported the seizure proceedings made by PW-12 Mahesh Singh. PW-5 Brahm Prakash is the Notary-Public cum Advocate of Jahajpur civil court. He stated that on 3.10.2003 he attested the affidavit (Ex.P/3), which bears his signature as 'A' to 'B' and bears his seal 'X' to 'Y'. He further stated that the affidavit was drafted by Shashikant, Advocate and Radhey Shyam signed the affidavit at 'G' to 'H' in his presence. He has further stated that he was not knowing Radhey Shyam but was knowing Parmeshwar Lal. He further stated that Radhey Shyam was 19 identified by Ramendra-son of Parmeshwar Lal. He stated that this affidavit was got attested from him in the evening. PW-6 Madhu is the formal witness of arrest memo of accused Ladhu (Ex.11A). This witness has turned hostile. He further stated that Ladhu was neither arrested in his presence nor any notice was given to him in his presence. PW-7 Shashikant is an Advocate, who drafted the affidavit (Ex.P/3). He stated that the stamp-paper was purchased by Radhey Shyam and as per his instruction, on 3.10.2003 at evening time, the affidavit was drafted. Radhey Shyam was accompanied by Ramendra (jeep owner's son). The affidavit was attested by Notary-Brahm Prakash. The affidavit bears his signature 'C' to 'D'. He has denied the suggestion that the jeep was being driven by Parmeshwar and he in connivance with Parmeshwar had drafted a bogus affidavit stating Radhey Shyam to be the driver of the said jeep. PW-8 Keshar Lal is the Stamp Vendor. As per his statement, Radhey Shyam purchased a stamp of Rs.20/- from him on 20 29.9.2003 for the purpose of marriage. He further stated that at that time Parmender was with him. PW-9 Parmeshwar Lal is the registered owner of jeep No.RJ- 06C-2369. Ex.P/5 is its Registration Certificate. He stated that on 22.9.2003 Radhey Shyam R/o. Pancha Ka Baada, Jahajpur was the driver of the aforesaid jeep. The jeep was being used as 'taxi'. He stated that he came to know that Ladu Jat and Bhoja Gurjar had taken the jeep on hire for transporting illegal poppy husk and the said jeep has been seized and was lying at Police Station, Pander. He has denied the suggestion that he has not kept any driver on the jeep and only in order to save himself he has falsely implicated Radhey Shyam. He further stated that no paper formality regarding keeping Radhey Shyam as the driver of jeep was done. PW-10 Ramendra Agarwal is the son of the jeep owner. He stated that Radhey Shyam was kept as driver of jeep and he used to take instructions from his