1 S. B. Criminal Appeal No.149/88 Koja Ram v. The State of Rajasthan. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT KOJARAM V. THE STATE OF RAJASTHAN. S. B. CRIMINAL APPEAL NO.149/88, against the judgment dated 30.03.1988 passed by Shri Brij Lal Bundes, RHJS, Additional District & Sessions Judge, Barmer, in Sessions Case No.113/87. DATE OF JUDGMENT ::: 26.04.2010 HON'BLE MR. JUSTICE C. M. TOTLA Mr. M.L.Bishnoi, for Appellant (s). Mr. K.K.Rawal, PP, for the State. BY THE COURT: Appellant is convicted and sentenced to ten years' rigorous imprisonment and fine of Rs.1,00,000/- for the offence punishable under Section 18 of the Narcotics Drugs and Psychotropics Substances Act (hereinafter referred to as the 'NDPS Act'), hence is this appeal. Prosecution version leading to appellant's prosecution is that at 12.15 in night intervening between August 20th and 21st, head constable PW 6 posted at police outpost, Ogala, police station, Serwa, received a information that Koja s/o. Sona Vishnoi, resident of Dabal, district Jalore, trading in opium procuring and bringing sells at village Oghala, Sagarwal, Chittarda, Fagalia of district Nagaur and every is possibilities of Koja bringing opium that day from Sanchore and going towards above villages. PW 6, making entry No.151 Ex.P8 of this information in rojnamcha, also noted that the buses are not plying and no means for transmitting police station 30 kms away, nearby not is telephone, 2 S. B. Criminal Appeal No.149/88 Koja Ram v. The State of Rajasthan. whereas information is worth belief so he proceeded with constables Lal Sing and Shaitan Singh towards village Sagar Bagh for nakebandi and preventing smuggling PW 6 along with constables PW 1 and PW 8, arrived at the said place and effected nakebandi, at about 5.00 a.m., they observed a person coming on camel from Sanchore who given signal to stop and also called, but rider turned camel back towards Sanchore and that person riding on camel was Koja Ram who being brother-in-law (sister's husband) of sarpanch Tejaram and often coming, well-known to them. Camel rider Koja Ram, turning camel back, did throw a black bag from his hands which taken possession of by PW 6 and the bag beared a slip typed over name Koja Ram Bishnoi (Goyal) r/o. Dabal and, in bag, in a packet wrapped by polythene, was opium – the person was chased following impressions of camel (khoj) which could not be traced because of tar road so personnel returned. PW 6, submitting a report Ex.P5 of the incident to SHO PW 7, also produced the above bag, having 1 kg opium. SHO PW 6, on report Ex.P5, registering FIR No.57/86 Ex.P5 for the offence under Act and in presence of motbirs, PW 2 and one Vemaram, opening bag, weighed opium, which found was 1 kg, out of which a sample of 30 gm and remaining separately sealed, making memo Ex.P1. Packets handed over to head constable malkhana incharge PW 5 who, making entires Ex.P3 in register, deposited in malkhana. Head constable PW 6, in course of investigation, inspecting place of occurrence on 22.8.86, prepared memo and sketch of place Exs. P6 and P7. Sample packet forwarded and deposited at FSL and charge-sheet submitted. Appellant surrendered himself before the Court. Appellant charged that-in his possession, without license, at about 5.00 a.m., on 21.8.86, in village Chhagarbal, was 1 kg opium – claimed trial. 3 S. B. Criminal Appeal No.149/88 Koja Ram v. The State of Rajasthan. Among the prosecution witnesses examined, PW 5 is head constable who, along with constables PW 1 and PW 8, effected nakebandi and finding accused coming on camel, trying to chase him, took possession of bag, allegedly thrown by appellant accused and containing opium. PWs 2, 3 weighing and seizing by SHO. PW 9 and PW 10 regarding looking a person going on camel are declared hostile. PW 7 SHO who, registering FIR, took possession of and sealed the material. PW 5 malkhana incharge and PW 4 constable pertain to safe keeping and delivering packet of sample at lab. Appellant explains that witnesses are telling lie and he, in no way, was involved. Appellant explains that he was very much in village and did not go any where. Learned Sessions Judge inferred that appellant riding a camel, at 5.00 a.m. was going from there, who, not stopping in response to signal to stop, turning back and throwing away bag, went away and in bag was opium 1 kg which possessed by appellant without license. Learned counsel contends that appellant is named only on the basis of impression of head constable – not worth acceptance evidence that it was only the appellant who throwing away the bag, ran away. Reporting to the matter to SHO only at 9.00 P.M. that is after 15 hours creates substantial doubts. Argues that all proceedings undertaken by head constable and recoveries also made by head constable who not an authorized and competent officer for search and seizure – that only the SHO or officers of rank of inspector or higher are authorized to act on information and that too only w.e.f. 16.10.86. Contends that even in such a matter, the concerned head constable PW 5 himself investigated on direction of SHO. Thrustly submitted that entire alleged search is vitiated and appellant not proved to be in possession. Reading statements of witnesses head constable PW 5 and accompanying constables PW 1 and 4 S. B. Criminal Appeal No.149/88 Koja Ram v. The State of Rajasthan. PW 8, argued that inconsistent and contrary to each other is their testimony. In support of contentions reliance placed on (i) State of Rajasthan v. Vikram Singh, 2009 (1) R.Cr.D.66 (Raj); and (ii) Babu Ram s/o. Jora Ram v. State, 2009 (3) R.Cr.D 449 (Raj.). Learned Public Prosecutor argues that the person carrying this substance, opium was very well-known to PWs 5, 1 and 8 on seeing them, appellant ran away, throwing bag. Argues that compliance possible of the provisions regarding search and seizure is made and in given circumstances, nakebandi and search proceedings by SHO would have been very late. Thoughtfully considering arguments, gone through the record, evidence adduced and the impugned judgment. Head constable PW 6 states that he posted as incharge of out-post, Ogama, received information which was entered as Ex.P8 in duty register of Chowki. Per copy of this entry Ex.P8, the information was received at 12.15 in night and the information, included name and other particulars of the concerned person and also that where he resides and of where in- laws and from where brings in substance and in which areas supplies. Looking this information, appears that head constable and perhaps constables accompanying him, knew this named man who, per them, also was well known to them. PW 6 states that following information, he and constables Lal Singh PW 1 and Shaitan Singh PW 8 went and at about 5.00 a.m., observed a person coming on camel from side of Sanchore who, signalled and asked to stop, but the man turned back so was chased by them and that he was Koja Ram, brother-in-law of sarpanch Tejaram who very often comes and goes, so was prior known to him. PW 6 further states that observing them chasing, Koja Ram threw a black bag from his hands which picked up by him (PW 6) and on bag was a paper 5 S. B. Criminal Appeal No.149/88 Koja Ram v. The State of Rajasthan. slip on which type written was Koja Ram Vishnoi Goyal Dabal. Opening bag, in it wrapped by white cloth was a polythene, “theli', in which “theli” was opium. PW 6 states that they continued chasing and when khoj (of camel legs) ceased on road, further chasing could not be possible, so came at police station and submitted report Ex.P5 and handed over the packet which weighed, seized and sealed by SHO. In cross-examination, PW 6says that at Chowki, camels riders were not available and also not are means of communication. According to PW 6, he knows many persons of village Ogama and Koja Ram has solemnized second marriage at village Chittari and he observed appellant from a distance of 5-7 steps who threw bag proceeding 15-20 steps ahead. According to PW 6, 15-20 minutes taken in opening and observing bag and appellant chased till 5 in evening. Categorically says that no other document was found over or in bag. Lal Singh PW 1 states that on 20.8.86, he was attached with Chowki Ogala as camel rider and for nakebandi, he and Shaitan Singh proceeding with head constable Laduram, arrived at Sagarwa at about 5 a.m. A person coming from Sanchore, was going towards Agaliya, who, when came near, was called by them, and the rider, observing them, turning back camel, ran away and that person was appellant Koja Ram who was known to him (PW 1) because of relationship in village Ogala. Lal Singh PW 1 states that running a little that is about 15-20 steps, Koja Ram threw a bag from his hand which beared appellant's name and contained opium. PW 1 states that they observed appellant from a distance of 5-7 steps and chased him to a distance of 9-10 km. From the statement of PW 1, appears that they were on foot and 15-20 minutes taken by them in examining the bag. Similarly, Shaitan Singh PW 8 says that he with head constable Laduram and constable Lal Singh, was on patrol and nakebandi during 6 S. B. Criminal Appeal No.149/88 Koja Ram v. The State of Rajasthan. which they were at road intersections at village Sagarva and at about 3-4 a.m., appellant coming from Chettari on a camel – when was at 3-4 steps, asked to stop who turning camel and proceeding 7-8 steps, throwing away a black bag, went away and in bag, found opium, so and then they chased the rider, but camel khojs were available only upto road. All witnesses say that typed written was name. These police personnels were not on vehicle – neither were on camel, whereas the person who arrived there and asked to stop, was on camel, who, turning back, also went away on camel. Given that when time was 3-4 a.m., it is very hard to believe that camel rider was chased on foot to a distance of 9-10 km, moreover when per them also, it also took them 15-20 minutes to examine the bag and its contents. PWs 1, and 8 do not speak of any prior information. Per them, they were on patrolling and nakebandi. Per PW 6, they proceeded on specific information recorded in duty register. Per PW 6, it was 5.00 a.m., whereas per PW 8, it was 3-4 a.m.(night). Given the time and other circumstances and particularly when these persons had no means of transportation, it is not safe to believe that the person, who ran away, was only appellant. Information to SHO is given at 9.00 P.M. which is at least 12 hours of the abonding chase, is very delayed. Given these facts and circumstances, it can not be provenly taken that appellant was one rider who dropped and threw the bag. Recovery, as alleged, is made from a public place and the person throwing bag, was riding on camel. For search and seizure, the person has to be authorized and/or empowered one. As above, seizure initial is made by head constable who admittedly not was SHO. As is observed in many pronouncements, of Hon'ble Apex Court, including in Karnail Singh v. State of Haryana, (2009) 8 SCC 539; Directorate of Revenue & Another v. Mohammed Nisar Holia, (2008) 1 SCC (Cri.) 415 that search at 7 S. B. Criminal Appeal No.149/88 Koja Ram v. The State of Rajasthan. public place can be by any officer described in S.42 without necessarily complying with other provisions of S.42. Admittedly, proceedings initiated and seizure is made by head constable. Inspectors and/or SHOs were authorized under Section 42only w.e.f. 16.10.1986 – under S. 43 any officer of any of the department mentioned in S.42 may search and make seizure but in the instant case, not such position is. As observed above, neither is proved that it was only the appellant who threw away opium, nor head constable was the authorized or competent police officer to make seizure. For above reasons, conviction and sentence of appellant for the offence of S.18 N. D. P.S. Act is to be set aside and he to be acquitted. Accordingly, accepting the appeal, conviction of and sentence awarded to appellant Koja Ram s/o. Shri Sona Ram for the offence of S.18, NDPS Act vide judgment dated 30.03.1988 (in SC No.114/87) is set aside. Appellant is on bail and his bail bonds stand discharged. (C. M. TOTLA), J. scd