1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. J U D G M E N T Manohar Lal v. Central Narcotics Bureau,Chittorgarh (1)S. B. CRIMINAL APPEAL NO.125/2003 against the judgment dated 14.1.2003 passed by learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No.25/01. Anup Kumar v. Central Narcotics Bureau,Chittorgarh (2)S. B. CRIMINAL APPEAL NO.191/2003 against the judgment dated 14.1.2003 passed by learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No.25/01. Ramesh Chandra v. Central Narcotics Bureau,Chittorgarh (3)S. B. CRIMINAL APPEAL NO.262/2003 against the judgment dated 14.1.2003 passed by learned Special Judge, NDPS Cases, Chittorgarh in Sessions Case No.25/01. Date of Judgment :: 4th February, 2008 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. M.L.Bishnoi] Mr. M.K.Garg ] for the appellants. Mr. N.K.Rai, Special Public Prosecutor for Central Bureau of Narcotics. .... 2 BY THE COURT : The judgment dated 14.1.2003 of learned Special Judge, Narcotic Drugs and Psychotropic Substances Act Cases, Chittorgarh convicting and sentencing appellants Ramesh Chandra and Anup Kumar for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “the Act of 1985”) and appellant Manohar Lal for the offence under Section 8/29 of the Act of 1985 is challenged in these appeals. The sentence awarded to the appellants is of ten years rigorous imprisonment with a fine of Rs.one lac and in default of that to undergo further three months simple imprisonment. The trial court also ordered to confiscate the Maruti-800 Car (DL-9-C-6762) in which the opium was said to be transported and also the sum of Rs.15,000/- recovered from accused Manohar Lal. Since accused Manohar Lal died, the appeal on his behalf is prosecuted by his legal representatives. The facts, as stated in the charge sheet, are that on 20.3.2001 on information, a team of Central Bureau of Narcotics led by Shri S.N.Aagal alongwith panchas was deputed at village Satkhanda, police station Shambhupura to prevent smuggling of opium. At about 1130 hours a white Maruti Car-800 DL-9-C-6762 3 was coming from Neemuch end. The driver of that car despite indication given by preventive force to stop tried to escape, thus, the car was chased and at some distance three persons after halting the car tried to run away from the spot. The driver of the car and the person sitting on the rear seat of car were held with the aid of Inspector Rajendra Kumar, Sub-Inspector Raisuddin Khan and constable Ashok Dadhich. The preventive team failed to catch the third person despite efforts. On asking, in presence of panchas the persons held disclosed their names as Anup Kumar (driver) and Ramesh Kumar (the persons sitting on the rear seat). Both the persons named above desired to be searched by Gazetted Officer available with preventive force. While making search, on opening of bonut of the car from a panel installed two polythene bags containing black viscus material were found and from perusal and smell that was presumed to be opium. The bags recovered were marked as “A” and “B” and their weight was measured as 1.200 kg. (A) and 2.100 kg. (B). From the chamber installed close to petrol tank, two more bags of opium were also found and were marked as “C” and “D” with the weight measured as 1.800 kg. (C) and 1.600 kg. (D). In total from four bags 7.300 kg. opium was recovered and out of that two samples of 25 grams each were taken from every bag and were marked as A1, A2, B1, B2, C1, C2, D1 and D2. The remaining opium containing in bags A, B, C and D was confiscated. The Maruti-800 Car DL-9-C-6762 was also 4 confiscated. The first information report thereafter was lodged by Inspector before the Superintendent for the offence under Section 8/18 of the Act of 1985 and two persons detained viz. Ramesh Chandra and Anup Kumar were arrested. The sealed material including eight sealed samples were kept in custody in malkhana. As told by arrested persons regarding purchase of opium from Manohar Lal the preventive force led by Shri S.N.Aagal went to village Alhed in State of Madhya Pradesh with accused Ramesh Chandra. After conveying purpose, two independent witnesses were taken with preventive team and on being identified by accused Ramesh Chandra the party reached at the residence of Manohar Lal who too was identified by Ramesh. The investigating officer Shri K.K.Kothari narrated to Manohar Lal all facts regarding seizure of opium from Ramesh Chandra and Anup Kumar and also about their statements relating to purchase of that from him at the cost of Rs.35,000/-. As per provisions of Section 50 of the Act of 1985 Manohar Lal desired to be searched by Gazetted Officer available with preventive team. During search from a box in first room of the house a sum of Rs.15,000/- in bundle with a seal mark of “UCO Bank, Sadar Bazar, Delhi” was recovered. During interrogation, Manohar Lal accepted commission of offence, thus, he was also arrested being indulged in offence as per Section 8/29 of the Act of 1985. 5 On 21.3.2001 the accused persons were produced before learned Special Judge, NDPS Act Cases, Chittorgarh and were sent to judicial custody. As stated in the charge sheet:- 1. by a FAX message, information of entire incident was sent to the Deputy Narcotics Commissioner, Kota on 20.3.2001 and receipt thereof was obtained; 2. the arrest of accused Ramesh and Anup Kumar was informed to their families on 20.3.2001 telegraphically; 3. the report relating to seizure of opium in form “F” was sent to the Assistant Commissioner, Narcotics, Gwalior, Deputy Narcotics Commissioner, Kota and other relevant officers on 23.3.2001; 4. out of eight samples taken, four marked as A1, B1, C1 and D1 in sealed condition were sent to the Manager, Government Opium and Alkaloid Works, Neemuch on 22.3.2001 with constable Premnath for chemical examination and on the same day receipt of that too was obtained; 6 5. as per the chemical examination report the Government Opium and Alkaloid Works, Neemuch found 5.04, 11.08, 11.86 and 10.81 percent of morphine and the samples were found as opium as referred under the Act of 1985; 6. on basis of statements of M/s S.N.Aagal, Rajendra Kumar, Raisuddin Khan, Ashok Dixit, Premnath, Chhotu Singh, Shambhu Singh, Prahlad, Ratanlal and Prabhulal, accused Ramesh Chandra and Anup Kumar were found to be involved in an offence as per Section 8/18 of the Act of 1985 and accused Manohar Lal was found involved in commission of an offence as per Section 8/29 of the Act of 1985; 7. information was sought regarding earlier involvement of Ramesh Chandra and Anup Kumar in NDPS Cases, no information was received from incharge police station Hathwala, Jind and police station Rakhikhas, Narnol (Haryana); 8. Maruti-800 Car DL-9-C-6762 was found to be registered in the name of Shri Mahaveer Prasad, A-685, Shastri Nagar, New Delhi and a communication was sent to him by registered post on 16.5.2001, however, no response to 7 that was received; and 9. the third person who run away from the spot on 20.3.2001 was said to be Surat Singh son of Rajendra Jat, however, no adequate details further were available about him. On denying the charges, the accused persons were subjected to trial. During trial Sarva Shri S.N.Aagal (PW-1), Premnath (PW-2), Chhotu Singh (PW- 3), Prahladlal (PW-4), Prabhu (PW-5), Rajendra Kumar (PW-6), Raisuddin Khan (PW-7), Jeevanmal Pamecha (PW- 8), Ratanlal (PW-9) and Kamal Kumar Kothari (PW-10) were examined as prosecution witnesses. On being questioned as per provisions of Section 313 Cr.P.C., the accused persons denied the entire prosecution story. In defence, statements of Manohar Lal (DW-1), Radhey Shyam (DW-2), Anup Kumar (DW-3) and Sushil Kumar (DW-4) were recorded. The trial court also examined 36 documents exhibited before it during trial. PW-1 Shri S.N.Aagal, Superintendent, Central Bureau of Narcotics, Pratapgarh stated that on 20.3.2001 he was posted as Superintendent, Central Bureau of Narcotics, Chittorgarh. During checking a Maruti-800 Car coming from Neemuch side was stopped and from a panel in bonut two polythene bags of opium were recovered. He further stated that the weight of those bags was 1.800 kg. and 2.100 kg. The samples 8 were taken from those bags and were marked as A1 and B2. He also stated that from a chamber close to petrol tank, that was opened by accused Ramesh, two bags containing opium were also recovered and on weight those were of 1.800 kg. and 1.600 kg. The samples taken out of those were also marked. In total 7.300 kg. opium was recovered. As per PW-1 Shri S.N.Aagal, after completing necessary legal proceedings at spot, the preventive team reached at the office where the case was entrusted to Shri K.K.Kothari for further proceedings. The preventive force then proceeded to village Alhed in State of Madhya Pradesh with Ramesh Chandra and on identification of Ramesh Chandra the preventive force reached at the residence of Manohar Lal. Accused Ramesh Chandra recognised and also identified Manohar Lal as the person from whom he purchased goods at the cost of Rs.35,000/-. In presence of Ramesh search was made and from a box a sum of Rs.15,000/- was recovered. The amount recovered was also identified by Ramesh as a part of money given by him to Manohar Lal. In cross examination PW-1 stated that through Ex.P/6 the samples were sent for chemical examination and those were marked as A, B, C and D. Shri Premnath PW-2 stated on oath that four envelopes marked as A, B, C and D were taken by him after putting signatures in register of malkhana on 22.3.2001 to deliver the same at G.M.Factory, Neemuch. 9 He also stated that after delivering the samples he obtained Ex.P/8, the receipt. In cross examination Premnath reiterated whatever he stated in his statements in chief. PW-3 Chhotu Singh denied the prosecution story and, therefore, he was declared hostile. However, in cross examination he accepted that on Ex.P/2 and Ex.P/3 he put his signatures. He also identified his signatures on documents Ex.P/9 to Ex.P/14. PW-4 Prahlad Lal was also declared hostile, however, in cross examination by Public Prosecutor he accepted his signatures on documents Ex.P/2, P/3, P/9, P/10, P/12, P/13 and P/14. PW-5 Prabhu was also declared hostile as he denied that he accompanied the team of Central Bureau of Narcotics to the residence of Manohar Lal in village Alhed. In cross examination by Public Prosecutor PW-5 Prabhu accepted his signatures on Ex.P/5, P/16 and P/17. PW-6 Rajendra Kumar on oath stated that on 19.3.2001 he was posted as Inspector in the office of the Superintendent, Prevention and Information Cell of Central Bureau of Intelligence and on that day at about 09.00 P.M. he received a telephonic information 10 that a Car bearing No.DL-9-C-6762 will be going to Haryana carrying 10 kg. of opium. The car may have two or three persons. On basis of information a panchnama was prepared and the same was placed before the Superintendent Shri S.N.Aagal. The telephonic information was written before the Inspector Shri K.K.Kothari and constable Ashok. The original information was given to the Superintendent. A carbon copy whereof is Ex.P/19 carrying his signatures at two places. He further stated that after receiving information a preventive force was deputed and that was containing 7-8 persons including S.N.Aagal, K.K.Kothari, S.K.Singh, Raisuddin, Ashok, Shiv Narain, Balveer Singh and himself. At about 11.00 A.M. a white Maruti-800 car bearing No.DL-9-C-6762 was coming from Neemuch end, but that did not stop despite indication, thus, the same was chased by preventive force. The driver of the car and one other person were held caught by him and Raisuddin, however, the third person succeeded in escaping. On asking, the persons held disclosed their names as Ramesh Chandra and Anup Kumar, both residents of Haryana. This witness also in detail narrated the story regarding recovery of the opium from panel in the bonut and chamber close to petrol tank. He also stated regarding marking of samples from the bags of opium recovered from the car. PW-6 Rajendra Kumar also stated that the samples A1, B1, C1 and D1 contained in four white envelopes were received after their chemical examination. During 11 cross examination PW-6 stated that the statements Ex.P/20 and Ex.P/21 were recorded in Narcotics Office and it is wrong to say that no paper was prepared at the spot. PW-7 Raisuddin Khan in general reiterated the prosecution story and during cross examination by counsel for Ramesh Chandra he stated that the statements of Ramesh were taken after recovery of opium. PW-8 Jeevanmal Pamecha stated on oath that on 22.3.2001 he was working as Chemical Analyst at Government Opium and Alkaloid Works, Neemuch. He received four samples marked as A1, B1, C1 and D1 with forwarding letter, test memo and sealed samples on 20.3.2001. He also stated that on all the four packets the seal was found proper and in good condition. During cross examination he stated that exact weight of the samples was of 23 grams, 21.5 grams, 22.5 grams and 22.1 grams. PW-9 Ratanlal was declared hostile, however, he accepted his signatures on Ex.P/25. PW-10 Shri Kamal Kumar Kothari in general reiterated the entire prosecution story. During cross examination he accepted that during investigation nobody stated him about receiving information from any 12 mukhbir and remission about information in this regard to higher officials. He also stated that during interrogation accused Anup Kumar stated that he was a Taxi Driver and he was hired @ Rs.100/- per day. He also stated that Anup Kumar stayed at Bhadwa Mata Temple in night. In defence DW-1 Manohar Lal stated that he is not having any licence to cultivate opium and the sum of Rs.15,000/- recovered from him was as a matter of fact the money received by him after selling the yield of garlic in the year 2000. DW-2 Radhey Shyam stated that Manohar Lal is not involved in business of opium and he has also not given opium to co-accused persons. DW-3 Anup Kumar stated on oath that on 18.3.2001 he was hired as driver from Taxi Stand, Narnol @ Rs.150/- per day. He also stated that he was not knowing anything about opium, he never saw the opium and on 19.3.2001 he was staying at Bhadwa Mata Temple and he was not with co-accused Ramesh Chandra and the third person said to be Surat Singh. DW-4 Sushil Kumar stated that from last 4-5 years accused Anup Kumar is known to him and he is involved in profession of driving. He also stated that on 18.3.2001 Anup Kumar was hired as driver @ Rs.150/- 13 per day. He also stated that Anup Kumar was not involved in business of opium with Ramesh Chandra. Learned Sessions Judge relying upon the statements of PW-1, PW-2, PW-6, PW-7 and PW-10 and also on basis of acceptance of signatures by hostiled witnesses on various exhibits, reference of those is already given above, held the accused persons guilty for the offences charged. Learned counsel for appellants Ramesh Chandra and Anup Kumar strongly urged that the present one is a case of no evidence and whatever evidence said to be available is missing linkage to establish commission of any offence as alleged by the appellants beyond the shadow of doubt. It is urged that the conviction of the appellants is based on the statements given by interested witnesses and the trial court overlooked the fact that the independent witnesses have not said anything against the appellants. It is also urged that the material said to be seized from custody of the appellants was not at all sent for chemical examination. On behalf of Anup Kumar, it is empathetically stated that the trial court failed to appreciate that adequate evidence is available on record that he was hired as a driver @ Rs.150/- per day and in the intervening night of 19.3.2001 and 20.3.2001 he was not with Ramesh Chandra and the third person said to be Surat Singh. As per the evidence 14 produced by the defence and also accepted by the investigating officer, appellant Anup Kumar was at Bhadwa Mata Temple and, therefore, his conviction for the offences under Section 8/18 of the Act of 1985 is absolutely illegal. On behalf of appellant Manohar Lal it is stated that the statements given by co-accused persons have been erroneously relied upon by the trial court and also that the trial court failed to consider the explanation advanced for having the sum of Rs.15,000/-. Learned Special Public Prosecutor Shri N.K.Rai, per contra, defended the judgment impugned convicting and sentencing the appellants. Heard counsel for the parties and also examined the record available. It is true that the independent witnesses were declared hostile and they have not said anything in their statements in chief regarding involvement of the appellants in the offence alleged, however, the evidence available on record is required to be considered by the court in its totality. PW-1 Shri S.N.Aagal as well as Raisuddin Khan, Ashok Kumar Dadhich and Rajendra Kumar in their statements have narrated the facts regarding seizure of opium from appellants Ramesh Chandra and Anup Kumar 15 on 20.3.2001. There is no discrepancy in the statements of the prosecution witnesses named above. The independent witnesses though have denied involvement of the appellants in the crime alleged but at the same time in their cross examination by Public Prosecutor they have admitted their signatures on all the documents relating to procedure adhered relating to seizure of opium. It is not at all said by any of the independent witnesses that their signatures were obtained by preventive force through fraud, coercion, pressure or other wise than the bonafide means. In view of it, I am of the considered opinion that learned trial court was right in relying upon the statements of departmental witnesses viz. Shri S.N.Aagal, Rajendra Kumar, Raisuddin Khan and Ashok Kumar. Much emphasis is given by counsel for appellants Ramesh Chandra and Anup Kumar regarding remission of samples for their chemical examination. It is stated that as per statements of PW-2 Premnath the four envelopes sent for chemical examination were marked as A, B, C and D but the samples received were A1, B1, C1 and D1. It is true that PW-2 stated that the samples sealed were marked as A, B, C and D and further that he obtained receipt i.e. available on record as Ex.P/8. The argument advanced appears to be quite attractive but is having no merit. As a matter of fact from the document Ex.P/6 it reveals that the 16 samples marked A, B, C and D were duly sealed for chemical analysis and those were sent as per test memo. The test memo is available on record as Ex.P/23. Ex.P/23 identify the samples as A1, B1, C1 and D1. The Government Opium and Alkaloid Works, Neemuch through Ex.P/24 sent its report about samples sent under the test report Ex.P/23 and that is relating to the samples marked as A1, B1, C1 and D1. As such the doubt sought to be created by counsel for the appellants is absolutely ill-founded. The argument advanced that appellant Anup Kumar was hired as a driver and he was having no knowledge regarding occupation of opium is also having no merit. The car seized was having two chambers, one under the bonut and the second one near the petrol tank. It is not in dispute that the keys of the car were with driver and the technicalities like creation and installation of extra chamber or panel always remain in knowledge of the driver concerned. Learned trial court on adequate appreciation of evidence held that the story sought to be created that in the intervening night of 19.3.2001 and 20.3.2001 accused Anup Kumar was at Bhadwa Mata Temple, was not correct. I have also examined the entire evidence and except the saying of accused himself there is nothing to believe on the story that he was not with Ramesh Chandra in the intervening 17 night of 19.3.2001 and 20.3.2001. The car normally remains in possession of the driver and, therefore, the version sought to be advanced on behalf of Anup Kumar is absolutely unbelievable. So far as accused Manohar Lal is concerned, it is not at all in dispute that a sum of Rs.15,000/- were recovered from him and the bundle of notes was having a seal of UCO Bank, Sadar Bazar, Delhi. The explanation given by accused for having that money with him is absolutely unbelievable. As per accused Manohar Lal he received the money aforesaid by sale of garlic yield in the year 2000. He has not said anything that when and to whom he sold the garlic yield. The other accused persons Ramesh Chandra and Anup Kumar are residents of Haryana, therefore, the money carrying seal of bank of Delhi is more probable to be received by them. The finding recorded against accused Manohar Lal is not based on confessional statements of co-accused persons but on basis of money recovered from Manohar Lal with seal of a bank situated at Delhi. In totality of facts of the case, I am convinced that the prosecution established the commission of offence by the accused persons beyond any shadow of doubt and, thus, the trial court has not committed any error while convicting them. The sentence awarded is also proportionate to the offence 18 committed and, thus, these appeals are having no force. Accordingly, the appeals are dismissed. ( GOVIND MATHUR ),J. Kkm/ps.