1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR ORDER Bharta Ram vs. State of Rajasthan & Ors. (S.B.Criminal Appeal No.147/88) Date of Order :- 20th November, 2006. PRESENT HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. R.K.Charan,Advocate, for the appellant. Mr.Rameshwar Dave, Public Prosecutor for the State. REPORTABLE This appeal is directed against the judgment dated 10.3.1988 passed by the learned Additional Sessions Judge, Barmer convicting thereby the accused appellant for offence u/s 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985( in short “the Act of 1985”) and sentencing him to undergo ten years' Rigorous Imprisonment with a fine of Rs.1,00,000/-, in default of payment whereof, to further undergo one year's Rigorous Imprisonment. The factual matrix of the case is that on 25th 2 February, 1986 at about 12.30 p.m. Shri Banedan, S.H.O. of Police Station, Chauhatan alongwith Leela Dhar, H.C. and Uttama Ram, constable and other police party went on patrolling duty. Upon reaching outskirts of village Dhok Dhoniya at about 5 p.m. they laid “Nakabandi” during which they noticed one person coming from village Dharasar . On seeing the police party, the said person left the road and started moving towards other side. The police suspected his conduct and therefore intercepted him. On enquiry being made, he disclosed his name as Bharta Ram s/o Ganesh Ram Jat r/o Dharasar. On being searched, a plastic bag containing some black substance was found from left pocket of his coat. When this was tested and smelled, it was found to be opium. Its weight was found to be of 160 gms. He denied having any permit to possess licence of the said opium. Out of total recovered opium, 30 gms. was put in a small box which was sealed then and there. Remaining 130 gms. of opium was placed in a polythene bag and also sealed. On reaching the Police Station, regular criminal case was registered and investigation commenced. Finally challan against the accused 3 appellant for offence u/s 18 of the Act was filed. While prosecution has examined as many as seven witnesses in support of his case and exhibited 12 documents, accused in his defence apart from his statement u/s 313 Cr.P.C. , examined two witnesses. On conclusion of the evidence and upon hearing of the arguments, the learned trial Court convicted the accused as mentioned hereinabove. Being aggrieved by the judgment of the learned trial Court, the accused appellant has preferred this appeal on various grounds. I have heard Mr.R.K.Charan, learned counsel for the appellant and Mr. Rameshwar Dave, learned Public Prosecutor for the State in support of their respective case and perused the record. Sheet anchor of the arguments of Mr.R.K.Charan, learned counsel for the appellant is that on the date of alleged search and recovery of the opium i.e. on 25th February, 1986, P.W. 5 Banedan, S.H.O. of Police Station,Chauhatan was not empowered to seize, search and arrest the accused under the 4 provisions of the Act since he was merely an officer of the rank Sub Inspector of Police.The State Government vide its notification dated 16.1.1986 has for the first time authorised police officers to search, seize and apprehend the culprits under the Act of 1985.Hence, the trial and consequential conviction of the appellant was vitiated and impugned judgment is therefore liable to be set aside. In order to buttress his argument,learned counsel relied upon the judgments of this Court in (1)Nand Lal vs. The State of Rajasthan,RCC, 1987 p.433 (2) Umrav vs. State of Rajasthan, RLW 1988(1)p.564 (3)Shanti Lal vs. State of Rajasthan, WLC 1989(1)p.276 (4) Bherulal vs. State of Rajasthan,2004(1) Cr.L.R.(Raj.) p.612 and (5)Harchand vs. State of Rajasthan, 2006(6) RDD p.3533(Raj.) and of the Hon'ble Supreme Court in Roy V.D.vs. State,2004(4)Crimes,196(SC). Mr.R.K.Charan, learned counsel for the appellant further argued that recovery of the opium in the instant case was highly doubtful because no time has been mentioned in the recovery memo(Ex.P/1) which is indicative of the fact that the same was not prepared at the site of the recovery but was subsequently prepared at 5 the Police Station. Besides there were contradictions in the statements of the witnesses as to the place from where recovery was made. The seizure memo was not prepared at the site of recovery by the prosecution. Learned counsel further argued that provisions of Section 55 and 57 of the Act were not complied with. He in this connection relied on the judgments of this Court in Krishna Kumar & Anr. vs. State of Rajasthan, 2004(1) Cr.L.R. p.617, Jarnail Singh & Anr. vs. State , 2005(7) R.D.C. p.2741 and Narain vs. State , 2002(1) Cr.L.R. (Raj.) p.645 and Gurbux Singh vs. State of Haryana, 2001 Cr.L.J. p.1166. Mr.R.K.Charan, learned counsel for the appellant during the course of argument laid much emphasis on various aspects of link evidence and argued that there were many missing links in the evidence adduced before the Court regarding sampling of the contraband articles and its examination. No separate seal memo was prepared and this is proved from the fact that no such seal memo has been exhibited by the prosecution. This therefore raises a serious doubt whether any specific seal memo was sent alongwith 6 sample. Moreover, samples were not re-sealed as per provisions of the Section 55 of the Act. Carrier of the sample P.W. 3 Kan Singh remained conspicuously silent as to when he collected the sample from P.W. 1 Kishore Singh and delivered the same in the S.P. Office to P.W. 2 Pema Ram. Moreover malkhana entries (Ex.P/2) does not bear the signature of P.W. 3 Kan Singh which is even proved from the fact that Kan Singh in his statement admitted that he did not sign in the Malkhana register while taking the sample. P.W. 2 Pema Ram although stated that he gave the sample to P.W. 4 Gokla Ram alongwith samples of many other cases but P.W. 4 Gokla Ram in his statement has denied that he received any other samples alongwith this sample. This could be explained away if the prosecution had produced the relevant register of S.P. Office in regard to receipt of the sample and its subsequent delivery. Non-production of such record thus also raises serious doubt about the fact that such alleged sample which was sent to F.S.L. was part of the same contraband which was recovered from the site. Learned counsel further argued that while weight of the sample as per recovery memo 7 (Ex.P/1) was 30 gms., the F.S.L. report (Ex.P/11) records the weight of the sample inclusive of the weight of container as 67 gms. and therefore the net weight of the sample was not proved independently, thus raising a serious doubt about the correctness of the sample. Learned counsel drew attention of the Court towards that part of the statement of P.W. 1 Kishore Singh wherein he stated that when seal of the article was opened, inner packet did not contain the case number. Learned counsel in support of his argument regarding link evidence relied upon the judgments of this Court in (1) State of Rajasthan vs. Gurmail Singh, 2005 Cr.L.J. p.1746 (SC),(2) Budhram vs. State of Rajasthan, Cr.L.R.(Raj.) 2005(2) (3) Birma Ram vs. State of Rajasthan, 2005(2) Cr.L.R (Raj.) p.1593 (4)Pappu vs. State of Rajasthan, 2006 Cr.L.J., p.241 (5) Jairam vs. State, 2005(2) Cr.L.R.(Raj.) p.1507 (6) Gopal Lal vs. Union of India, 2006(3) R.D.D.(Raj.) p.1381 (7) Kailash & Anr. vs. State, 2006(3) R.D.D.(Raj.) p.1558 (8) Raju @ Gurcharan & Anr. vs. State , 2005(2) Cr.L.R.(Raj.) p.1222 and Shamsher Singh vs. State, 2005(7) R.D.D.(Raj.) p.2726. He therefore argued that the appeal be allowed and conviction and sentence 8 recorded by the learned trial Court be set aside and the accused be acquitted of the charges levelled against him. On the other hand, Mr.Rameshwar Dave, learned Public Prosecutor for the State argued that offence against the appellant has been proved beyond reasonable doubt inasmuch as the evidence produced by the prosecution established the charge for offence u/s 18 of the Act against him beyond reasonable doubt.He has argued that minor contradictions in the statement of the prosecution witnesses cannot be blown out of proportions so as to completely exclude their evidence. On the question of authorisation of Sect. 42 of the Act, learned Public Prosecutor argued that this was a case where the police party had laid “Nakabandi” and during such “Nakabandi”,the police party having doubt apprehended the accused appellant. According to the learned Public Prosecutor it was a case of chance recovery and provisions of Section 42 cannot be extended to such recovery when the police personnel during patrolling party found the accused having in possession of opium.Learned Public Prosecutor in this connection relied 9 upon the judgment of the Hon'ble Supreme Court in Babubhai Odhavji Patel, etc. vs. State of Gujarat, 2006(1) WLC p.79, State of Orissa vs. Rajendra Tripathy & Ors., 2005(2) W.L.C. p.135 and G.Srinivas Goud vs. State of A.P., W.L.C. 2005(2) p.627. Mr.Rameshwar Dave,learned Public Prosecutor therefore argued that there was no violation of Section 42 of the Act. He has referred to the statement of P.W. 3 Kan Singh and argued that Kan Singh has categorically proved that one sealed packet in the present case was given to him by P.W.1 Kishore Singh which he deposited with L.C. Pema Ram in S.P. Office with intact sealed condition. Learned Public Prosecutor further referred to the statement of P.W. 4 Gokla Ram wherein he stated that Pema Ram, L.C. in the office of S.P. Office gave to him one packet in sealed condition which he deposited with Forensic Science Laboratory at Jaipur in sealed condition. Learned Public Prosecutor has referred to that part of cross- examination of P.W. 4 Gokla Ram wherein he stated that he deposited the said packet in Forensic Science Laboratory on 3.3.1986 and obtained a receipt therefrom which he gave to Pema Ram. It was argued that the defence did not put any 10 question to him in cross-examination that may raise a doubt about intactness of the packet. He also referred to the statement of P.W. 2 Pema Ram wherein he stated that he received packet in sealed condition from Constable Kan Singh and prepared a forwarding letter for its onwards transmission to F.S.L. which was exhibited as Ex.P/14 on which signature of Shri Govind Narayan, Dy.S.P. was contained. He handed over that packet to P.W. 4 Gokla Ram in the sealed condition. Learned Public Prosecutor thus argued that there was no missing link in so far as the evidence regarding retention of the sealed packet handed over to S.P. Office and thereafter its onward transmissions to the F.S.L. is concerned. On the question of weight of the sample, learned Public Prosecutor argued that report of F.S.L. shall have to be read in its entirety specially with its first part which pertain to the description of the packets where it pertain to the description of the packets where it is stated that the packet was one in number enclosed within white cloth cover and the seals were intact. Learned Public Prosecutor therefore argued that 11 F.S.L.Report (Ex.P/11) shall have to be read alongwith recovery memo (Ex.P/1) and therefore even if the F.S.L. report has given combined weight of the sample and its weight container, the weight of the sample would still be proved from recovery memo(Ex.P/1). He therefore argued that charge for the offence against appellant has been proved beyond reasonable doubt. The appeal is therefore liable to be dismissed. I have considered the arguments advanced by both the learned counsel and scanned the record. The first and foremost argument advanced by learned counsel for the appellant is that P.W.5 Banedan, S.H.O. of Police Station was an officer of the rank of Sub Inspector of police. He in his statement has mentioned that on 25.2.1986 at about 12.30 p.m. he alongwith policy party was on patrolling duty and had entered a report to this effect in Roznamcha which was proved as Ex.P/6. While on patrolling duty when they reached on the outskirts of village Dhok Dhoniya at about 12 5 p.m. they laid “Nakabandi” during which they noticed one person coming from village Dharasa. When he saw the police party, he left the road and started moving away from the road. Suspecting his moves, they intercepted that person and on being searched, one plastic bag containing some black substance was found from left pocket of his coat. When the said substance was tested and smelled, it was found to be opium. It is not in dispute that even though P.W. 5 Banedan was S.H.O. of the Police Station but he held the rank of Sub Inspector on the relevant date. The first of the many judgments cited on behalf of the appellants on this aspect is that of Nand Lal(supra) wherein this Court had occasion to consider the provisions of Section 42 of the Act. The Notification dated 16.10.1986 was issued by the State Government which authorise all Inspectors of police posted as Station House Officer to exercise the powers u/s 42 of the Act . The Court on consideration thereof held that “there can be no doubt prior to 16.10.1986 even Sub Inspector of police or any other Inspector of police could not have exercised the powers mentioned in Section 42 of the Act.” In that case the date of 13 recovery was 23.11.1985 and therefore the Court held that police officers upto the rank of Inspector had no jurisdiction on the said date to inspect under Section 42 of the Act because the power upon them had been conferred for the first time on 16.10.986. It is significant to note that recovery in that case was made by Head Constable and therefore the Court further held that Head Constable was certainly not a Sub Inspector or Inspector of police and therefore conviction was set aside. This judgment was later followed in Umrav(supra), Shantilal(supra) and Biram(supra). The Hon'ble Supreme Court in Roy V.D. (supra) had the occasion to consider the true import and meaning of Sections 41 and 42 of the Act. That was a case in which Kerala High Court had dismissed the petition filed by the accused u/s 482 Cr.P.C. seeking quashment of the pending proceedings against him for offence u/s 20 on the ground that Excise Inspector who made the search and recovery from his possession became competent to do so with the issuance of the notification at a later stage. The Hon'ble Supreme Court however while quashing the proceedings, observed in para 16 as under: 14 “16.Now, it is plain that no officer other than an empowered officer can resort to Section 41(2) or exercise powers under Section 42(1) of the NDPS Act or make a complaint under clause (d) of sub- section(1) of Section 36A of the NDPS Act. It follows that any collection of material, detention or arrest of a person or search of a building or conveyance or seizure effected by an officer not being an empowered officer or an authorized officer under Section 41(2) of the NDPS Act, lacks sanction of law and is inherently illegal and as such the same cannot form the basis of a proceeding in respect of offences under Chapter IV of the NDPS Act and use of such a material by the prosecution vitiates the trial”. This Court in Bheru Lal(supra) took a similar view where the Sub Inspector of police was holding the charge of S.H.O. made search and seizure of the contraband item. While relying on Nand Lal(supra), the Court held that S.H.O. alone was competent to exercise the powers u/s 42 of the Act. Recently again in Harchand(supra) this Court has taken the similar view. What has to be analyzed is whether in view of the subsequent judgments of the Hon'ble Supreme Court , the view 15 repeatedly taken by this Court with reference to interpretation of Section 42 of the Act would still hold good or has been watered down. In Babubhai Odhavji Patel(supra), the facts of the case were that on 1.7.1989 Sub Inspector of police alongwith constables was on patrol duty and at about 5.30 a.m. they noticed a tanker lorry passing through Palanpur railway station crossing line. They stopped the vehicle and made a search of the lorry. When they opened the lid of the first cabin of the lorry, a jute bag containing dark brown substance which ultimately was found to be opium was noticed. An argument was raised that since the search was conducted at 5.30 a.m. i.e. before the sunrise and therefore the PSI should have obtained a warrant or authorisation for conducting search of vehicle. The Hon'ble Supreme Court rejected the argument holding that it was a case of chance recovery and therefore procedure contemplated by Section 42 of the Act could not be complied with and that the opium was recovered when the usual search of suspected vehicles carrying such contraband was conducted and the police party had no previous information that any contraband substance was 16 concealed in any building, conveyance or enclosed space and they have to conduct a search pursuant to such information. In Rajendra Tripathi (supra) also the question before the Hon'ble Supreme Court was whether there was any violation of Section 42 of the Act. In the facts of that case, the Hon'ble Supreme Court held that considering the time when search and seizure was made and the undisputed question that detention was made by the officers of the patrolling party, provisions of Section 42 would have no application. Judgment of the Hon'ble Supreme Court in Babubhai Odhavji Patel(supra) is quite categorical on the point even in regard to search conducted before the sunrise. If search is made by a patrolling party which incidentally come across a vehicle and recovery of contraband substance therefrom, no violation of Section 42 of the Act can be alleged. Similarly in Rajendra Tripathi(supra) their Lordships held that search and seizure was done and detention made while the officers were on patrolling duty and therefore Section 42 had no application. 17 This very view was taken by the Hon'ble Supreme Court in Sorabkhan Gandhkhan Pathan & Anr. vs. State of Gujarat, (2004) 13 S.C.C. p.608 wherein their Lordships held that the information received by the police officer was not in regard to any contraband article as contemplated under the NDPS Act but was with regard to certain illicit liquor. Therefore, the search made by the officer was not under the NDPS Act. It was only by accident that in the course of search for illicit liquor the officer concerned found 1960 grams of charas. Therefore, this was a case of chance recovery for which it was not necessary to follow the procedure contemplated u/s 42/50 of the NDPS Act. In the present case, it has been clearly proved that the police party was on patrolling duty when they came across the accused who on seeing them started moving in other direction and thus giving rise to suspicion. He was then intercepted and searched. The search was made at 12.30 p.m. i.e. in full noon and therefore if the patrolling party had allowed the accused to let go just because they did not possess the 18 authorisation, that would have worked contrary to the object and intendment of the provisions of the Act. It was to cover situation like chance recovery by the police personnel while they are on patrolling duty that the law on the subject has undergone a major shift. All those judgments which have been relied upon by the learned counsel for the accused appellant are in regard to general authorisation conferred on the officers of the rank of Inspectors posted as Station House Officer. Facts of those cases reveal that in most of them except in Shantilal (supra), the investigation started on receipt of secret information about the contraband articles. This category of cases have been excepted even by the aforementioned judgments of the Hon'ble Supreme Court because the investigation in such cases has to commence being conscious of the facts that recovery and seizure of such contraband articles under the provisions of the Act of 1985 have to be made. A specific information as required by Section 42 of the Act of 1985 in such situation is required to be recorded by the officer empowered to conduct a search and the superior officers are required to be informed about the proposed 19 seizure. But all those requirements cannot be insisted upon in the case of a chance recovery made by a police party while on patrolling duty. The argument of the learned counsel for the appellant with regard to Section 42 of the Act of 1985 therefore merits rejection and is thus rejected. There are however very many other arguments made by the learned counsel for the appellant in assailing the judgment passed by the leaned trial Court which need to be examined from the point of view if those arguments are upheld, whether recovery of the contraband articles become doubtful and whether there are missing links in the evidence adduced by the prosecution regarding retention and custody of samples and its examination especially in the context of its weight. It indicates that P.W. 5 Banedan , P.W. 1 Kishore Singh and Leeladhar have stated that Recovery memo (Ex.P/1) was prepared at the police station when the Station House Officer reached there at 7.30 p.m. on 25.2.1986. Ex.P/4, which is a letter addressed by S.P.Office, Barmer to F.S.L.,Jaipur indicates that the specimen seal memo was sent alongwith the 20 sample. The recovery memo on which specimen of the seal was affixed was prepared in presence of the witnesses namely, Sonaram, Thakra and Bhartaram. Recovery Memo(Ex.P/1) however states that the sample of the seal was affixed on the memo and in fact examination of Recovery Memo shows that the specimen sample of the seal was affixed thereupon and therefore this argument of the learned counsel for the appellant cannot be accepted. P.W. 3 Kan Singh in his statement has categorically stated P.W. 1 Kishore Singh gave to him one sealed cover packet which he took to S.P. Office and deposited with P.W. 2 Pema Ram in the same sealed condition. Now the argument of the learned counsel for the appellant is that he did not state as to exactly on which date he received such sample and when did he hand over such sample in the S.P. Office. But this argument cannot be accepted because P.W. 3 Kan Singh in opening words of his statement has stated that he was posted at Police Station, Chauhtan on 1.3.1986 and thereafter stated about having received the sample in sealed condition and 21 handing over the same to Pema Ram in sealed condition. P.W. 2 Pema Ram also corroborates this fact when he states that he was posted in S.P. Office, Barmer on 1.3.1986 and on that day he received one packet in sealed condition from Kan Singh, a constable of Police Station, Chauhatan. He even goes to the extent of saying that he prepared the forwarding letter which was exhibited as Ex.P/4 which contained signatures of Shri Govind Narayan, Dy.Superintendent of Police . He handed over the sealed packet alongwith forwarding letter to constable Gokla Ram for being delivered to F.S.L., Jaipur. P.W. 4 Gokla Ram has also corroborated the statements of P.W. 1 Kishore Singh and P.W. 2 Pema Ram when in the opening of his statements deposed that when he was posted at Police Station, Barmer on 1.3.1986, one sealed packet of Police Station, Chauhatan in C.R.No.16/86 was handed over to him by Pema Ram alongwith forwarding letter which he took to Jaipur and deposited with the F.S.L.,Jaipur in the same sealed condition and obtained receipt which was exhibited as Ex.P/5. This argument of the learned counsel for 22 the appellant also does not deserve acceptance and therefore rejected. Now comes the argument that P.W. 2 Pema Ram has stated that he gave the sample to P.W. 4 Gokla Ram alongwith samples