1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Pyara Singh & anr. Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.421/2002 against the judgment dt.16.4.02 passed by the Special Judge, NDPS Cases, Sri Ganganagar, in Sessions Case No.13/2001. Date of Judgment: Aug.12, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.R.K.Charan, for the appellants. Mr.L.R.Upadhyaya, Public Prosecutor. BY THE COURT : 1. This is an appeal against the judgment of the learned Special Judge, NDPS Cases, Sri Ganganagar dt.16.4.02, whereby he convicted both the accused appellants Pyara Singh and Sardara Singh for the offence u/ss.8/15 and 29 of the Narcotic Drugs & Psychotropic Substances Act, hereinafter referred-to as 2 “the Act” and sentenced each one of them to one year's R.I. and a fine of Rs.1000/- & in default, to further undergo one month's R.I. on both the counts. Both the substantive sentences were ordered to run concurrently. 2. The case of the prosecution is that on 30.3.2001, the S.H.O., Police Station, Vijay Nagar viz; Surendra Kumar received an information that in a bus of the Punjab Roadways being No.PB 12C9681, 25 kgs. of poppy husk was being transported. Upon this, the search was conducted and the said poppy husk was recovered from the tool box of the bus, the key of which was with the conductor of the bus viz; accused Sardara Singh. The contraband poppy husk was found in 50 polythene bags containing 500 gms. in each bag. All the poppy husk was kept together and two samples of 500 gms. each were taken and sealed. After investigation, both the accused were challaned u/s.8/15 and 29 of the Act. They were charged accordingly to which they pleaded not guilty. The prosecution examined 15 witnesses. The statements of the accused were recorded u/s.313 CrPC. They led no defence. After hearing the arguments, the learned trial Judge convicted & sentenced both the accused appellants as above. 3 3. It has been argued by the learned counsel for the appellants that in this case, the recovery has not been proved because of non-examination of the recovery officer Surendra Kumar. He has further submitted that the Malkhana articles were not produced in the Court and the seal was also not proper, therefore, compliance of Sec.55 of the Act has not been made, which the learned trial Judge has himself accepted in the judgment. Merely on the basis of the statements of driver of the police jeep and three constables, the conviction has been recorded, which is totally illegal. According to him, the learned trial Judge has wrongly held that the compliance of Section 42 of the Act has been made. 4. Per contra, learned Public Prosecutor has supported the judgment of the trial Court. 5. It is true that the learned trial Judge came to the conclusion that compliance of Sec.55 of the Act has not been made. Though the provisions of Sec.55 of the Act are per se mandatory but it must not cause prejudice to the accused. So far as the argument of the learned counsel about non- production of the Malkhana articles in the Court, which were seized & taken in charge by officer incharge of Police Station, is concerned, it is clear from the 4 provisions contained in Section 465 CrPC that recovered articles are the basic proof of commission of offence and it is not mere irregularity but is fatal to the prosecution with regard to establishing the identity of a thing. Under Illustration(g) of Section 114 of the Indian Evidence Act, the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person, who withholds it. Thus, if the evidence is not produced with regard to the identification of the contraband articles recovered, then it will be presumed that the fact of recovery itself, which is a relevant fact for identity of a thing, has not been proved by virtue of Section 9 of the Evidence Act, which deals with the facts necessary to be produced as the relevant facts. In this regard, I am fortified from the decision of the Hon'ble Supreme Court in Jitendra and another vs. State of M.P. Reported in 2004 SCC (Cri) 2028, in which it has been held 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 panchnama does not discharge the heavy burden which lies on the 5 prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act.” 6. Here in the present case, it is an admitted position that the seal was not of the S.H.O. concerned and it was of some `BS' as revealed from the recovery memo, Ex.P.3 but the memo of sample seal is of `SK' in Ex.P.4. The person who made this recovery and prepared the sample seal memo viz; Surendra Kumar has not been examined by the prosecution. The articles were also not resealed and were not produced in the Court. Non-production of these Malkhana articles has resulted in failure to establish the identity of a relevant fact, which is fatal to the prosecution and it also creates doubt with regard to the exact sample sent in intact seal to the F.S.L. resulting in non-compliance of Sec.55 of the Act. In such a situation, the conviction based on the testimony of the driver of the police jeep and the constables, who accompanied the S.H.O., is absolutely illegal. 7. Apart from this, when the investigating officer has not been examined, it cannot be said that the compliance of Section 42(1) of the Act has been made because it is the investigating officer, who, on getting information, must reduce it in writing and send the same to the superior officer. Though Satyaveer 6 Singh, PW 12, has said that he handed over the information, Ex.P.23 to the S.P.Office but when the person, who recorded the information, has not been examined, it cannot be said that the compliance of Section 42(1) of the Act has been made. The evidence of Prithvi Ram (PW 5), Pratap Singh (PW 9) and Rafeeq Mohd. (PW 15), who accompanied the SHO during search, have ofcourse supported the recovery memo, Ex.P.3 but their evidence is of corroborative nature. The main evidence is of the S.H.O. himself, who got the information and recovered the contraband article. 8. The learned trial Judge seems to have arrived at the conclusion of guilt on the basis of presumption that the recovered articles were found from the tool box of the bus, the key of which was with the Conductor and the driver was having knowledge over it. 9. In view of the above discussion, it is clear that there is non-compliance of ss.42 and 55 of the Act, for which the accused appellants are entitled to be given benefit of doubt. 10. Consequently, the appeal is allowed. The conviction of appellants Pyara Singh and Sardara Singh for the offence u/s.8/15 & 29 of the Act & their sentence of one year's R.I. and 7 a fine of Rs.1000/- & in default, to further undergo one month's R.I. on both the counts passed by the Special Judge, NDPS Cases, Sri Ganganagar, by his judgment dt.16.4.02 is set aside. They are on bail, their bail bonds stand cancelled. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS