1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Babulal & ors. Vs. State of Rajasthan (1) S.B. CRIMINAL APPEAL NO.233/03 Anar Khan Vs. State of Rajasthan (2) S.B. CRIMINAL APPEAL NO.382/03 Ayub Khan Vs. State of Rajasthan (3) S.B. CRIMINAL APPEAL NO.242/03 against the judgment dt.28.1.2003 passed by the Special Judge, NDPS Cases, Chittorgarh, in Sessions Case No.37/2001. Date of Judgment: Aug.22, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Sandeep Mehta) Mr.B.S.Rathore ) Mr.R.K.Charan ) for the appellants. Mr.O.P.Rathi, Public Prosecutor. REPORTABLE BY THE COURT : 1. These are the three appeals filed by five accused appellants arising out of the judgment of learned Special Judge, 2 NDPS Cases, Chittorgarh dated 28.1.2003, whereby he convicted all the five accused appellants for the offence u/section 8/15 of the Narcotic Drugs & Psychotropic Substances Act 1985, hereinafter referred-to as “the Act” and sentenced each of them to undergo ten years' R.I. and to pay a fine of Rs.one lac and in default, to further undergo three months' S.I. The truck No.RJ 19 G 3625 was also ordered to be confiscated. However, the proceedings against Nirbhay Singh were kept pending u/sec.173 (8) CrPC. 2. Facts leading to this appeal are that on 25.4.2001, Anil Joshi, SHO, PS, Bhadesar received a secret information that the accused Babulal Jat & Jeevan Ram Bishnoi are purchasing poppy straw from the nearby village Muraliya and accused appellants Anar Khan, Ayub Khan and Shakeel Khan are loading the said poppy straw in the truck, who will be dropped at Chittorgarh Border. The information was recorded in the Rojnamcha and copy of it was sent after giving notice to the motbirs. They saw one truck being No. RJ19G 3625 near Delvas in which five persons including the driver were sitting in the truck. All the five accused were given notice u/s.50 of the Act and 59 bags of poppy straw were recovered, which on being weighed, were found to be 1765 kgms. Out of which, 51 were in gunnybags and 8 were in plastic bags. Two samples of 1 kg. each were taken 3 and sealed. The case was registered and accused were arrested. On enquiry, they told that they purchased it from Shabbir Khan and after investigation, the chargesheet was filed. The recovered articles and samples were deposited in the Malkhana and sent for chemical examination. After investigation, the challan was filed. All the five accused were charged for the offence u/s.8/15 of the Act, to which they pleaded not guilty. The prosecution examined 14 witnesses. The statements of the accused persons were recorded u/s.313 CrPC. They produced four witnesses in defence. After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellants as above. 3. It has been contended by the learned counsel in all the three appeals appearing for the appellants that this is a fabricated case of poppy straw recovery because in this case, the principal accused, who was the owner of the truck viz; Budha Ram Bishnoi has been left out by the prosecution without there being any enquiry from him as to whom he handed over the truck and who was the driver of the truck. The accused persons were alleged to have been found in the truck but there was no link of the accused persons with the poppy straw. According to the learned counsel, the poppy straw, which has been recovered, is not tallying with the seized articles because they have not been proved in the evidence of Anil Joshi, PW 13 and their 4 weight was also found to be short by 2 kg. As in the Malkhana register and recovery memo, common weight of 59 bags has been shown to be 1765 kgms., but where the remaining 2 kg. of poppy straw taken for sample has gone, is not clear from the testimony of recovery officer. Thus, there is a total violation of Section 55 of the Act and no presumption can be drawn from the mere recovery by virtue of Section 35 read with Sec.54 of the Act. In support of their contentions, learned counsel have relied upon some authorities, which will be discussed later on. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 5. Having re-appreciated the evidence, firstly, it is revealed from the statement of Manno Ram Meena, Dy.S.P., PW 14, who investigated the case, stated that the owner of the truck was Budha Ram and he found that the poppy straw was collected before loading in the truck by Nirbhay Singh and Shabbir Ramthali. Nirbhay Singh has been made accused in the case against whom the proceedings are pending u/s.173(8) CrPC, but Shabbir Ramthali has neither been examined nor he seems to have been made accused in the case, therefore, at the initial stage, it cannot be said as to from where the truck was loaded with poppy straw and by whom. The eye witnesses in this 5 regard, who have been examined by the prosecution and the witnesses of recovery viz; Salim Khan, PW 5 and Dhan Singh, PW 6 and of site plan Prabhu, PW 7 and Bhagwat Singh, PW 8 have turned hostile, as they have not supported the case of the prosecution. As per the statement of Manno Ram Meena, PW 14, he did not give any notice u/s.133 of the Motor Vehicles Act with regard to ownership of the truck and its driver. As per the version of the investigating officer Manno Ram Meena, PW 14 on 25.4.2001, Budha Ram was in his village to attend the marriage of Mala Ram's daughter. In this regard, Baga Ram, PW 11, to whom the police made enquiry vide Ex.P.28 has been turned hostile but in the cross examination, he has stated that the truck belonging to Budha Ram was seized at Chittorgarh and he came on 25.4.2001 after his release from Bhadesar Police Station. In this regard, Anil Joshi, SHO, PW 13, who seized the truck, has stated in his last line of cross examination that the registration of the truck was in the name of Budha Ram but he did not enquire from Budha Ram as to how the truck came into possession of the accused, whether they purchased it or has taken it on rent. The statements of the above two witnesses, who are senior police officers, reveal that without making any enquiry about the ownership of the truck as well as the recovered articles, they have tried to save the owner of the truck viz; Budha Ram, who being the owner of the truck, would have been the best witness 6 to state as to whether the accused Babulal was the driver of the truck or not and what relation, he was having with other four accused persons. 6. Under Section 25 of the Act, the liability of the owner of a conveyance cannot be ignored, unless it is shown that the said conveyance has not been used for commission of an offence punishable under this Act. Section 25 of the Act reads as under: “25. Punishment for allowing premises, etc. to be used for commission of an offence.- Whoever, being the owner or occupier or having the control or use of any house, room, enclosure, space, place, animal or conveyance, knowingly permits it to be used for the commission by any other person of an offence punishable under any provision of this Act, shall be punishable with the punishment provided for that offence.” In the present case, there is a flagrant violation of Section 25 of the Act by not implicating or making any enquiry from Budha Ram with regard to use of the conveyance for carrying contraband poppy straw. This serious lapse on the part of the prosecution is a strong ground to disbelieve the theory of the prosecution that it was accused Babulal, who was driving the truck. 7 7. Next comes the recovery, which is said to be of 1765 kgms. vide Ex.P.7 in 59 bags, out of which 51 were gunnybags and 8 were plastic bags. These bags were deposited in the Malkhana vide Ex.P.27 in which the total quantity of poppy straw had also been shown to be 1765 kgms. In the recovery memo, it is stated that 2 kg. of poppy straw was taken out and sealed for chemical examination, but these 2 kgms. samples have been shown separately at item Nos.2 and 3 in Column No.6 of the Malkhana register vide Ex.P.27. In this regard, the Malkhana Incharge, Ganpatlal, PW 10 has stated that he received only two samples and not separate samples from all the 59 bags. He has not said anything about the weight of the 59 bags, except that he has proved the entry of these Malkhana articles in the Malkhana register Ex.P.27, copy of which is Ex.P.27A. That apart, Anil Joshi, recovery officer, who has been examined as PW 13, was cross examined on this point in which he stated that he put chit on all the 59 bags but did not seal them. When the 59 bags were shown to him, he said that there was no chit on them. He has further stated that he did not mark `A', `B', `C' on the bags but he had put the serial number. During examination in chief, he stated that he marked 1 to 59 on the bags by putting a chit and seal and obtained the signatures of the motbirs, accused and of himself, whereas when the articles were shown to him, there was no such seal, chit or signatures on it. In such a 8 situation of the recovered articles i.e. 59 bags, it is not proved that the recovered articles are same as were produced in the court. This is a serious infirmity to arrive at a conclusion as to whether the produced Malkhana articles were the same, which were recovered vide Ex.P.7. This lacuna is fatal to the prosecution by virtue of Section 55 of the Act, which reads as under: “55.Police to take charge of articles seized and delivered.- An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station.” 8. Though the provisions of Section 55 of the Act are, to some extent, directory in nature but when the recovered articles are not properly identified in the court, then this non-compliance becomes fatal to the prosecution. In this regard, a recent decision of the Hon'ble Supreme Court in Noor Aga vs. State of Punjab “Criminal Appeal No.1034 of 2008 decided on 9.7.2008”, is very helpful to the facts of the present case, wherein it has been observed in para 135 as under: 9 “135. Physical evidence of a case of this nature being the property of the court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114 (g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant.” This negative presumption can safely be drawn against the prosecution by not getting the Malkhana articles identified in the court in a proper manner i.e. with the seal chit and signatures of motbirs and of accused and of the recovery officer. 9. Further, there is a serious infirmity in the prosecution case by not taking sample from each of the 59 bags. Two samples have been taken only from 2 bags and sent for chemical examination. In the absence of taking samples from other 57 bags, necessary inference which can be drawn is that only two bags were of poppy straw. This lapse on the part of the prosecution is also hit by Section 55 of the Act as well. 10. With regard to linking of the accused with the said contraband article, it is relevant to quote the observations of the Hon'ble Supreme Court in Avtar Singh vs. State of Punjab reported in 2003 RCC(SC) 43 in which it has been observed in 10 para 6 as under: “6. ..... The word `possession' no doubt has different shades of meaning and it is quite elastic in its connotation. Possession and ownership need not always go together but the minimum requisite element which has to be satisfied is custody or control over the goods. Can it be said, on the basis of the evidence available on record, that the three appellants – one of whom was driving the vehicle and the other two sitting on the bags, were having such custody or control ? It is difficult to reach such conclusion beyond reasonable doubt. It transpires from the evidence that the appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another person sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity. It is quite probable that one of them could be the custodian of the goods whether or not he was the proprietor. The persons who were merely sitting on the bags, in the absence of proof of anything more, cannot be presumed to be in possession of the goods. For instance, if they are labourers engaged merely for loading and unloading purposes and there is nothing to show that the goods were at least in their temporary custody, conviction under Section 15 may not be warranted.” In the cited case also, five persons were charged u/s.15 of the Act for having conscious possession of the 640 kg of poppy husk, out of which, two fled and two were sitting on the bags placed in the truck and one was driving the vehicle. In the present case also, the driver Babulal whose authority to drive the truck has not been established and rest of the four were sitting in the truck. The presumption to connect 11 their mental state with illegal transportation of poppy straw has not been established either by independent witnesses or by asking any specific question to them u/s.313 CrPC. The law and the facts of Avtar Singh's case (supra) are fully applicable to the facts of the present case. Section 35 of the Act requires culpable mental state of the accused and presumption u/s.54 of the Act cannot be drawn in a trial under this Act, provided it is proved contrary. 11. Here in the present case as discussed above, from the angle of recovery as well as non-identification of the recovered Malkhana articles in the court and not taking out samples from each of the 59 bags by the recovery officer Anil Joshi, PW 13, it cannot be presumed that there was a culpable mental state of the accused with regard to carrying poppy straw, a narcotic drug. The cumulative effect of all the circumstances, as discussed above, indicates that the prosecution has failed to establish the guilt of accused for carrying contraband article i.e. poppy straw for which they are entitled to be benefitted. 12. Consequently, all the three Criminal Appeals are allowed and conviction & sentence of accused appellants Babulal, Shakeel Khan, Jeevan Ram, Anar Khan and Ayub Khan recorded by Special Judge, NDPS Cases, Chittorgarh under Section 8/15 of 12 the Act vide his judgment dt.28.1.2003 are set aside. They are in jail. They shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS 13 (1) S.B. CRIMINAL APPEAL NO.233/03 (2) S.B. CRIMINAL APPEAL NO.382/03 (3) S.B. CRIMINAL APPEAL NO.242/03 DATE OF ORDER : 22.8.2008 HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr.Sandeep Mehta) Mr.B.S.Rathore ) Mr.R.K.Charan ) for the appellants. Mr.O.P.Rathi, Public Prosecutor. The judgment has been dictated in open Court, operative portion whereof runs as under: Consequently, all the three Criminal Appeals are allowed and conviction & sentence of accused appellants Babulal, Shakeel Khan, Jeevan Ram, Anar Khan and Ayub Khan recorded by Special Judge, NDPS Cases, Chittorgarh under Section 8/15 of the Act vide his judgment dt.28.1.2003 are set aside. They are in jail. They shall be released forthwith, if not required in any other case. (See separate judgment) (DEO NARAYAN THANVI), J. RANKAWAT JK, PS