-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: S.B. CRIMINAL APPEAL NO.833/2003 (Babu Lal Vs. The State of Rajasthan) S.B. CRIMINAL APPEAL UNDER SECTION 374 Cr.P.C. AGAINST THE JUDGMENT DATED 22.7.2003 PASSED BY THE LEARNED SPECIAL JUDGE, N.D.P.S. CASES, CHITTORGARH IN SESSIONS CASE NO.7/2000 – STATE OF RAJASTHAN VS. BABU LAL. DATE OF JUDGMENT : 24th August, 2007 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. M.L.Bishnoi for the appellant. Mr. O.P.Rathi, Public Prosecutor. BY THE COURT : This appeal is directed against the judgment & order dated 22.7.2003 passed by the learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No.7/2000, whereby, the learned Judge has convicted accused appellant Babu Lal for offence under Section 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to the 'Act of 1985') and sentenced him to 10 years' rigorous imprisonment and to -2- pay a fine of Rupees One Lakh, and in default of payment of fine to further undergo one year's simple imprisonment on account of having been found in possession of 75 bags of poppy straw weighing 3000 kms. from truck No.GJ 8 T 4445 at Amba Mata Tiraha, District Chittorgarh, which was stopped by the Excise Party from where, two accused Mala Ram and Poonama Ram ran away. Each bag was having 40 kms of poppy straw. After investigation, accused Babu Lal was challaned. The learned trial judge framed the charges under Section 8/15 of the Act of 1985 and examined 9 witnesses from the side of prosecution. The statement of accused Babu Lal was recorded under Section 313 Cr.P.C. and after hearing, accused appellant Babu Lal was convicted in the manner as indicated above. Learned counsel Mr. M.L.Bishnoi appearing on behalf of accused appellant has vehemently submitted that in this case, large quantity of poppy straw is said to have been recovered but the main accused ran away from the spot and the poor fellow who was sitting in the truck was caught and implicated in the case. He has further submitted that a serious lapse has been committed by the prosecution in not producing the seized articles in a sealed manner before the Court during trial. Out of 75 bags recovered, only 5 bags were produced and seal of which was -3- broken or was removed by the mouses and further submitted that it is doubtful that said sealed samples were reached safely before the FSL, Jaipur. He has also submitted that the recovered article is said to be poppy straw (doda chura) but as per the FSL report, it was the powder and not the poppy straw. In the last, he has drawn the attention of the Court towards the statements of three Excise Inspectors, in whose hands, the Malkhana articles remained before it were send to FSL, because it is not clear that from 17.11.1999 to 26.11.1999 where the Malkhana articles remained. On the contrary, learned Public Prosecutor has submitted that looking to the large quantity of poppy straw recovered from the accused, this Court should not go into the ground of discrepancy of Malkhana articles & its seal. According to the learned Public Prosecutor, as per the definition of poppy straw, it includes powder, which has been shown in the FSL Report vide Ex.P-12. He has also submitted that minor discrepancies in the statements of prosecution witnesses about place of keeping recovered articles is also not fatal. Having given anxious consideration on the contention put forth by the learned counsel appearing on behalf of the accused and the learned Public Prosecutor, I see no force in the -4- contention of the learned counsel for the accused that the recovered article was not poppy straw because the definition of poppy straw given under sub-clause (xviii) of Section 2 of the Act of 1985 is as under: “Poppy straw means all parts (except th seeds) of the opium poppy after harvesting whether in their original form or cut, crushed or powdered and whether or not juice has been extracted therefrom” From the perusal of this definition, it is clear that poppy straw means all parts of the opium whether in their original form or cut, crushed or powdered. There is no much distinction between chura or powder because poppy straw may be in the size of little thin in the shape of the powder than chura. So far as seal of the recovered article is concerned, of course, five bags which have been produced before the Court out of the 75 bags were not properly sealed. If this fact is looked into the light of the statements of the three Excise Inspectors, it is shocking that all the three Excise Inspectors have given different version about the custody of Malkhana Articles between 17.11.1999 to 26.11.1999 that is one day prior to sending of sample at Laboratory with PW-5 Roop Lal, who deposited the same on 27.11.1999 to the Chief Public Analyst, Rajasthan, Jaipur. This witness has said that he took the samples from Choti Sadri on -5- 26.11.99 from Excise Inspector, Manohar Lal and whether these samples were came from Nimbahera to Choti Sadri, he cannot say anything in this regard. He has also clearly stated that he cannot say as to whether his signature is there in the Malkhana Register or not, which are not in Ex.P-13. It is an admitted fact that articles were seized by PW-6 Kalyan Singh, who was posted at Nimbahera and the recovery was also made at Amba Mata Tiraha, Nimbahera. In his examination in chief, he has stated that upon seizing the articles on 16.11.99, he handed over the same to Excise Inspector Ashok Mangal on 17.11.1999 vide Ex.P.11. The Malkhana register was brought by Inspector Roop Lal and it was deposited in the Malkhana of Nimbahera vide Ex.P-13 on 17.11.99 at 10 p.m. The samples A-1, A-2 to E-1, E-2 were taken from the five bags only and no sample was taken from the other 70 bags. In the cross examination, this witness has stated that these 70 bags were not produced in the Court. He has also stated that reason for not having seal on other articles than samples A-1 to A-5 might be due to presence of mouses in the old Malkhana of Nimbahera, where seal was broken later on. He handed over these Malkhana articles to Ashok Mangal along with samples vide Ex.P-11, who was the In- charge of Malkahana of Choti Sadri, because the concerned Excise Inspector was on leave on that day. Ex.P-11 is a letter addressed by the Excise Inspector of Nimbahera to Excise -6- Inspector of Choti Sadri. There is a receipt of PW-9 Ashok Mangal on this Ex.P.11 on 17.11.99 at 8 p.m. but it is not clear that where he received the Malkhana or kept in a sealed cover. In this regard, when the question was put to PW-9 Ashok Mangal, he has stated that these Malkhana Articles were handed over to him vide Ex.P.11 at Choti Sadri and it remained there till 25.11.99. He has stated that from the date of receipt of Malkhana on 17.11.1999 till 26.11.1999, it was in his custody in a sealed manner and he made entry to this effect in the Malkhana Register vide Ex.P-13 of Choti Sadri. Whereas, PW-8 Manohar Lal took the charge of the Malkhana articles vide Ex.P-14 has said that from 16.11.1999 to 25.11.1999, the Malkhana and sealed samples were at Malkhana of Nimbahera. In this way, there are two versions of the prosecution witnesses with regard to the custody of the Malkhana articles from 17.11.1999 to 26.11.1999. As per the statements of Excise Inspectors PW-6 Kalyan Singh and PW-8 Manohar Lal, it was at the Malkhana of Nibahera, which is 30 to 40 kms away from Choti Sadri and as per the statement of PW-9 Ashok Mangal, it was at the Malkhana of Choti Sadri. When there are contradictory versions of the Excise Inspectors, who were the custodians of the Malkhana articles and the same have not been produced in the court in a proper sealed manner before it were sent to Laboratory on 27.11.1999, it creates heavy doubt as to -7- whether the Malkhana articles were in tact as required under Section 55 of the Act. Though the provisions of Section 55 are directory in nature but when there is a serious lapse on the part of the custodians of the Malkhana articles and the seal is not in tact and it has not been produced in the court, it is fatal to the prosecution and on the basis of such evidence, conviction cannot be sustained. I am fortified with these observations in the light of the decision of the Hon'ble Supreme Court in the case of Jitendra & Anr. Vs. State of M.P., reported in 2003-04 Cr.L.R. (SC) (Suppl.) 699, in which it has been held by the Hon'ble Supreme Court as under: “In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. -8- The same view was taken by the Hon'ble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh, reported in AIR 2005 SC 1578. In para 3 of its judgment, the Hon'ble Supreme Court has held as under: “In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.” From the perusal of the above judgments, if the case in hand is looked into, it has three major infirmities. Firstly, out of the 75 bags of poppy straw recovered from the possession of the accused, 70 bags were not produced in the Court and its sample was also not taken, secondly, five bags of poppy straw recovered from the accused and produced in the Court were not marked with the proper seal and thirdly, there is a conflicting evidence of the Excise Inspectors in whose custody the Malkhana articles remained between 17.11.99 to 26.11.99 i.e. one day prior to -9- sending for Laboratory examination that as to whether the recovered articles were kept at Malkahan of Nimbahera or at Choti Sadri. The learned trial court has not at all considered these lacunas in its judgment and whatever has been stated by the prosecution witnesses has been accepted to be true without their being any analysis or appreciation of the evidence of the prosecution witnesses. Thus, in my view, the conviction recorded by the learned trial court cannot be sustained in the light of the serious infirmities noticed above. Consequently, this appeal is allowed. The conviction and sentence of ten years' rigorous imprisonment & fine of rupees one lakh awarded to the accused appellant Babu Lal by the learned Special Judge, NDPS Cases, Chittorgarh by his order dated 22.7.2003 is set aside. Appellant Babu Lal son of Harchand Vishnoi is in jail. He shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. ms rathore