1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT Gajan Singh vs.The State of Rajasthan S.B. Criminal Appeal No.31/1989 u/s 374 Cr.P.C. against the order dated 12.01.89 passed by the Addl.District & Sessions Judge No.1, Hanumangarhm, in Sessions Case No.29/1987. Date of Judgment : 29th April, 2008. PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr.S.S.Dhillon for the appellant . Mr.O.P.Rathi, Public Prosecutor, for the State. BY THE COURT: This criminal appeal is directed against the judgment and order dated 12th of January 1989 passed by the Addl.District & Sessions Judge No.1, Hanumangarh, Camp at Sangaria, in Sessions Case 2 No.29/1987 whereby the learned Addl. Sessions Judge No.1 has convicted the accused appellant Gajan Singh in the offence under section 8 r/w Section 15 of NDPS Act (referred to as 'Act 1985') and sentenced him to rigorous imprisonment of 10 years, with a fine of Rs.1 lac , in default of payment of fine to undergo a further simple imprisonment of a period of 2 ½ years. The nub of the prosecution story is that on 26th of November 1986, PW/3 Suman Ali, ASI, accompanied by a police party, reached bus stand TB, on an information received from the informer. There the informer said to Shri Suman Ali that Gajan Singh s/o Gujar Singh has just now gone towards Manav Mangal Model School, Sangaria. He was also informed that Gajan Singh is carrying one bag containing illegal doda post. Pursuant to this information, the police party chased Gajan Singh. Gajan Singh was seen going near Manav Mngal Model School, Sangaria. He was carrying one bag. Shri Suman Ali took the bag from Gajan 3 Singh and on search, it was found that approximately 1 kg. post- chura was inside an envelope which was lying in the bag. When he was asked to show the permit for carrying post-chura, he declined and submitted that he had no permit with him. Mr.Suman Ali took the post-chura in his possession out of which he took a sample of 250 gms. chura separately and sealed the same. Shri Suman Ali later on handed over the seized post chura and the arrested accused Gajan Singh, to the SHO, P.S., Sangaria for further investigation. On the recovery memo Ex.P/2 , the SHO , Police Station , Sangaria registered the FIR Ex.P/3, prepared the site plan Ex.P/4, and description memo Ex.P/5 and sent the sample of post -chura to S.P. Office, for forwarding the same to Forensic Science Laboratory vide Ex.P/16. After usual investigation and receipt of FSL report Ex.P/7, the police submitted the police report against accused appellant in the offence under section 8/15 of the Act 1985 in the court of Judicial Magistrate , Sangaria, who 4 in turn committed the same for trial to the court of Addl.Sessions Judge No.1, Hanumangarh , camp at Sangaria. The accused appellant Gajan Singh was tried and convicted by the Addl.Sessions Judge No.1, Hanumangarh and sentenced as aforesaid. Heard Mr.S.S.Dhillon, learned counsel appearing on behalf of the accused appellant, Mr.O.P.Rathi , learned Public Prosecutor for the State and perused the impugned judgment, along with the relevant material available on record. The learned counsel for the appellant Mr.Dhillon has argued that PW/3 Suman Ali , ASI, was not empowered to conduct the search and seize the post -chura from the possession of the accused, as Notification No.S.O.115 dated 16th of October, 1986 issued by the State of Rajasthan empowers only the Inspectors of Police and Sub- Inspectors of Police , posted as Station House Officers, to exercise the 5 powers mentioned in Section 42 of the Act 1985. The search and seizure of the said psychotropic substance has been made in this case by PW/3 Shri Suman Ali,ASI, who was not authorised to do so. Since the search and seizure has been made by an unauathorised police officer, the trial of this case vitiates and in such circumstances, the accused cannot be convicted. The learned counsel has also argued that the prosecution has examined only four eye witnesses and no independent witness has been produced to corroborate the testimony of police officers. It is also submitted that any other police officer of such party has also not been examined. Hence, merely on the basis of the evidence of an unauthorised police officer the conviction of the appellant cannot be based. Thirdly the learned counsel has argued that a sample of 250 gms. is said to have been taken by PW/3 Suman Ali from the recovered post-chura, 6 whereas the sample which reached the Forensic Science Laboratory was found to be only 210 gms. which proves that the sample which is said to have been taken on the spot, was not sent for chemical examination to the Forensic Science Laboratory. Apart, the specimen seal were also not sent along with the sample to Forensic Science Laboratory, for the purpose of tallying the seal impressed upon the sample. Thus, keeping in view all these serious infirmities the accused appellant deserves to be acquitted. He has placed reliance on the following citations: 1.2005 R.Cr.D 554 SC, 2. 2004 (1) Cr.L.R. Raj., 612 3.1996 Cr.L.R., (Raj.) 621 and 4.1996 Cr.L.R. (Raj.) 633 Per contra, the learned Public Prosecutor appearing for the State, has contended that PW/3 Suman Ali ofcourse conducted the search and seized 7 the post-chura from the possession of the accused appellant but he immediately handed over the same to the Station House Officer of P.S., Sangaria for further investigation. He has also submitted that the proviso to the aforesaid Notification dated 16th of October 1986 contemplates that when the power is exercised by the police officer, other than by the Police Inspector of the area concerned, such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or SHO of the Police Station concerned. Since PW/7 Suman Ali has exercised his powers conferred upon by the aforesaid Notification only, it cannot be said that the search , seizure and arrest of the accused was made by him, without jurisdiction. Learned Public Prosecutor has conceded that no independent witness of occurrence has been examined by the prosecution, yet the statements of PW/2 Jeevan Ram, PW/3 Suman Ali, are worth relying and there is no reason to discard their evidence . So far as the weight of post-chura is 8 concerned , Mr.Choudhary has submitted that after lapse of time post-chura , when gets dried, loses its weight. It is quite possible that when the sample was taken, the post-chura must have been weighed and when it reached the FSL, after getting dried, it must have lost its weight by 40 gms. There is no infirmity in the case of the prosecution. The learned lower court has rightly convicted the appellant, as such his appeal should be dismissed. So far as the role of PW/3 Suman Ali , ASI in respect of the seizure of post-chura and arrest of the appellant Gajan Singh is concerned, it is ostensibly contemplated in the proviso to the Notification dated 16th of October, 1986 that when power is exercised by a police Officer, other than police Inspector of the area concerned, such officer shall immediately hand over the person arrested and the article seized, to the concerned SHO of the Police Station. In the case at hand the search of post-chura and arrest of the 9 accused appellant were of course made by PW/3 Suman Ali, ASI of P.S. Sangaria but soon thereafter both were handed over by him to PW/2 Jeevan Ram, the then SHO of Police Station, Sangaria. Hence, it cannot be said that the search of articles and arrest of the accused, was made by PW/3 Suman Ali , without any jurisdiction. It is true that the accused appellant Gajan Singh was nabbed by PW/3 Suman Ali and police party on 26th of November, 1986 during day hours when the presence of the motbir witnesses could be procured easily. PW/3 Suman Ali is not found to have made any effort to procure the presence of any independent motbir witness and a mention of this fact, does not find any place in the recovery memo Ex.P/2. PW/3 Suman Ali has not also assigned any reason as to why the recovery of the said post-chura was not made in the presence of the independent witnesses. The prosecution has not examined any other witness of the police party also, who accompanied PW/3 Suman 10 Ali to the spot where the appellant was met. The recovery memo Ex.P/2 shows that PW/3 Suman Ali was also accompanied by Bhageerath ,Bhoop Singh, Suresh Kumar and Narpat Singh but none of them has been examined to corroborate his evidence. The manner in which the post chura has been seized and the accused has been arrested and further the manner in which the recovery memo Ex.p/2 has been prepared and the case has been investigated, casts doubt about the veracity of his testimony. The evidence of a sole police officer, ofcourse, may be sufficient for the conviction of the accused but his evidence should be fully trustworthy and inspire full confidence. Keeping in view the present scenario and the prevailing attitude of the police Department, I feel that the sole testimony of a police officer, should get corroboration from the independent witnesses, or at least from those police witnesses, who accompanied the senior officer. It is totally wanting in the present 11 case at hand . The prosecution has not assigned any reason for not producing other police Officers of the search party in evidence. So, firstly the search and seizure of the articles and the arrest of the appellant has not been made in the presence of the independent witnesses and secondly no other police officer of the search party has been examined by the prosecution. Hence, it is a great infirmity in the case of the prosecution, which casts suspicion on the role of the recovery officer Mr.Suman Ali. The prosecution has also failed to prove that the sample of 250 gms. post-chura, which was taken separately from the seized article was the same which reached the FSL for chemical examination, because the sample which is found to have reached in FSL has been found to be only 210 gms. in weight, whereas the sample which was taken on the spot was weighing 250 gms. In no circumstance, the post-chura getting dried, cannot lose weight by 40 gms. Apart, the 12 specimen seal which was impressed on the sample was also not sent along with the forwarding letter to FSL. Hence, the seal impressed on the sample was not tallied by the FSL. Though the seized articles are said to have been kept in the malkhana but it is not proved that the sample which was taken on the spot , the same was sent for chemical examination. As no seal was sent along with the sample, to Forensic Science Laboratory, therefore, there is no evidence to prove satisfactorily that the seal found were in tact and the same seals were put on the sample immediately after seizure of the contraband. This serious lapse on the part of the prosecution has led me to infer that the prosecution has failed to prove the offence against the accused appellant, beyond reasonable doubt. I find ample force in the argument advanced by the learned counsel for the accused appellant. The learned trial court has convicted the accused appellant 13 on the basis of surmises and conjunctures and not based on the principles of criminal jurisprudence. I need not go into other points of this case as in my opinion the above two points raised are sufficient for deciding the appeal. In view of above, I allow the appeal and set aside the impugned judgment and order of sentence dated 12th of January 1989 of Addl. District & Sessions Judge No.1, Hanumangarh, camp Sangaria. The accused appellant Gajan Singh is acquitted of the charge under section 8/15 of the NDPS Act. His bail bonds stands cancelled. (MAHESH BHAGWATI), J. l.george