-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan Vs. Pata Ram & others (1) S.B.CRIMINAL APPEAL NO.53/1988 Narpat Raj Vs. State of Raj. & anr. (2) S.B.CRIMINAL APPEAL NO.336/1987 against the judgment dt.24.7.87 passed by the Addl.Sessions Judge, Barmer, in Sessions Case Nos.6/87 & 31/87. Date of Judgment: May 16, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Doongar Singh, for the petitioner. Mr.Vishnu Kachhwaha, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment dt.24.7.1987 passed by the learned Additional Sessions Judge, Barmer, in Sessions Case Nos.6/1987 and 31/1987, whereby he acquitted all the fourteen accused viz; Tej Singh, Chatar Singh, Fateh Karan, Hakam Singh, Kirat Singh, Karmi, Haran, Taja, Jetha Ram -2- and Isha, including the present accused respondents viz; Pata Ram, Mangilal, Girdharilal & Antariya, for the offences u/ss.20 and 21 of the Narcotic Drugs & Psychotropic Substances Act, later styled as “the Act”. 2. The brief facts leading to the prosecution story are that on 25.8.1986, upon the secrete information, the Superintendent of Police, Barmer sent Govind Narain Purohit, Dy.S.P., Barmer and Punj Raj Singh, Dy.S.P., Chouhtan alongwith the police party at Village Loonwa and made enquiry from Pata Ram, Sarpanch of Village Loonwa. Pata Ram told that one bag of Heroin was lying in the hut of Girdhari Meghwal, which was locked and key of which was lying with him. The police party reached at the hut of Girdhari Meghwal. There, Mangilal and Girdhari were also present. The lock of the hut was opened and 26 packets in white cloth weighing one to two kilograms were found inside the hut. One packet was opened and on being checked, it was found to be Heroin, which was seized. Accused Pata Ram, Mangilal and Girdhari were arrested by the police. One packet weighed 1.300 kg. and rest of the packets were of 1 kg each, out of which 300 gms. of sample from each packet was seized & selaed and rest of the Heroin was separately seized and sealed. Thereafter, the case was registered u/ss.20, 21, 23 and 29 of the Act & investigation was commenced. During investigation, Pata Ram -3- informed that more Heroin was lying, which was taken by Chatar Singh, Kirat Singh, Tej Singh, Karmi Patel etc. in the vehicle being No.RRM 7329 belonging to Antarlal Soni. Thereafter, statements u/s.161CrPC were recorded. 241.600 kgms. of Charas and 8 kgms. of Heroin were recovered from the river. The samples of those articles were also taken and sent for chemical examination. All the accused were having no licence for keeping these contraband articles. Thereafter, the challan was filed in the Court of learned Judicial Magistrate, Barmer u/ss.20,21,23 and 29 of the Act on 6.1.1987 against six accused viz; Pata Ram, Mangilal, Antarlal, Girdhari, Tej Singh and Chatar Singh. The investigation was kept pending against other accused and on 3.3.1987, challan against the remaining accused viz; Fateh Karan, Hakam Singh, Kirat Singh, Karmi, Harun Khan, Taja, Jetha Ram and Isha was also filed. The charge against the first six accused was framed on 9.2.1987 & on committal of the case, the charge against the remaining eight accused was framed on 4.3.1987. The charge was explained to them. All the accused pleaded not guilty. The prosecution examined 14 witnesses. The statements of the accused u/s.313 CrPC were recorded. They produced three witnesses in their defence. After hearing the arguments, the learned trial judge acquitted all the accused on the ground that neither the articles recovered were produced in the court nor various provisions of the Act have -4- been complied with, including the delay in filing F.I.R. and not recording the information by the Superintendent of Police. 3. It is contended by the learned Public Prosecutor that the State preferred an appeal against all the 14 accused but the Leave to Appeal was granted against only four accused respondents viz; Pata Ram, Mangilal, Girdhari and Antariya by this Court on 29.1.1988. 4. It is an admitted position that the vehicle belonged to accused respondent No.4 Antariya and 26 packets in the hut of Girdhari were found in the presence of Pata Ram, Mangilal and Girdhari, who are respondents in the case but these articles contained in 26 packets were not produced in the Court. Non production of these Malkhana articles is fatal to the prosecution case and no conviction can be based on the basis of such serious infirmity in the light of judgment of the Hon'ble Supreme Court in Jitendra v. State of M.P. reported in 2004 SCC (Cri) 2028). 5. The next point for consideration is that information about the illicit Heroin came to the notice of the Superintendent of Police, Barmer on 25.8.1986 but the Superintendent of Police has not recorded any information in any memo as required under Section 42 of the Act and on the contrary, he sent the Dy.S.P. -5- Govind Narain Purohit and Punj Raj Singh, Dy.S.P., Chouhtan alongwith the police party at the spot. The recovery memo has been prepared by Govind Narain Purohit, Dy.S.P., (PW 13) in the presence of Punj Raj Singh, Dy.S.P., Chouhtan and Bhera Ram (PW 7). Govind Narain Purohit (PW 13) has stated that in the examination in chief that he and Superintendent of Police both called Sarpanch at Village Loonwa and after patiently talking with him, they went at the hut of Girdhari. There is no memo to this effect on the file, which is required under Section 42 of the Act before conducting search. The Superintendent of Police has not been produced and motbirs, who are shown in the memo Ex.P.1 are only police officers. When admittedly, the village is populated and the independent witnesses were not called, is a mystery of the case. 6. From memo Ex.P.1, it also appears that the samples were also not sealed on the spot and it was done at the Police Station, Gudamalani and no local motbir was called. The finding of the learned trial Judge that all the three witnesses of recovery viz; Punj Raj Singh (PW 1), Bhera Ram (PW 7) and Govind Narain Purohit (PW 13) are police personnels and they have given contradictory statements is logical. 7. As regards the presence of the two accused viz; Girdharilal -6- and Mangilal, there is uncorroboration in the evidence of Bhera Ram (PW 7) and Punj Raj Singh (PW 1). From the story as put forth by the prosecution, it appears that the police officers who were conducting the search and seized Heroin in such a large quantity, have failed to bring the case within the mandatory provisions of the Act, as if they had no elementary knowledge of the Act. Having considered the findings of the trial Court, especially with regard to recovery, seizure and non-production of Malkhana articles vis-a-vis contradictory and uncorroborated statements of the police personnels, the finding of the acquittal arrived at by the learned trial Judge needs no interference. 8. Consequently, this appeal filed by the State is dismissed by confirming the order dt.24.7.87 passed by the Additional Sessions Judge, Barmer acquitting accused respondents for the offences u/ss.20 & 21 of the Act. As a consequence, the order of disposal of property passed by this Court on 23.8.1989 in S.B.Criminal Appeal No.336/1987 filed by Narpat Raj under Section 454 CrPC is made absolute with regard to disposal of the truck to appellant Narpat Raj, who is the registered owner of the truck bearing No.RRM 7329 and his supardiginama stands cancelled. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS