-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Hadman Ram Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.133/2004 against the judgment dt.17.1.2004 passed by the Special Judge, NDPS Cases, Jodhpur, in Sessions Case No.11/2002. Date of Judgment: May 06, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Mahesh Boda, for the appellants. Mr.L.R.Upadhyaya, Public Prosecutor. BY THE COURT : 1. This appeal is directed against the judgment of the learned Special Judge, NDPS Cases, Jodhpur, dated 17.1.2004 whereby he convicted accused appellant Hadman Ram under Section 8/18 of the Narcotic Drugs & Psychotropic Substances Act (hereinafter referred-to as “the Act”) and sentenced him to undergo 12 years' -2- rigorous imprisonment and a fine of Rs.1,20,000/- and in default, to further undergo one year & two months' R.I. He was also convicted under Section 279 IPC and was sentenced to three months' R.I. & a fine of Rs.500/- and in default, to further undergo 15 days' R.I. However, accused Budhha Ram and Bhagwana Ram were acquitted for the offence u/s.8/18 of the Act. 2. The facts leading to this appeal are that on 10.10.2001 at 11.30 AM, when A.S.I. Roop Singh of Police Station, Raniwada was patrolling in Govt.jeep No.RJ 14-2C-408 driven by Uka Ram, they saw a trolla jeep bearing No.RJ 16G 788 coming from Jaitpura side, which collided with the Govt.vehicle. The driver of the Govt.jeep Uka Ram told that trolla was driven by Hadman Ram. They rushed towards the trolla in the Govt.jeep but to no avail. Thereafter, the SHO, Police Station, Karda was informed for doing Nakabandi of the said vehicle. At 12.15 PM, trolla lost its balance. The driver and his two associates ran away from the spot. When trolla was checked, they found 5 bags containing semi solid liquit and having smell of opium. The information was sent to the higher officers u/s.42 of the Act. At 1.45 PM, Dy.S.P., Bhinmal came on the spot and at 3 P.M., Head Constable Pokar Ram of Police Station, Karda reached at the spot with the three accused persons, who earlier ran away from the trolla. Uka Ram -3- told that Hadman Ram is the same person, who was seen driving the trolla and on being asked, Hadman Ram told that the trolla was driven by him and he purchased it from one Bhanwarlal. The associates of Hadman Ram viz; Budhha Ram and Bhagwan Ram, upon being asked, narrated that it contained opium milk. There were 27 packets of opium milk weighing 102.250 kgms. 30 gms. of sample from each packet of opium milk was taken, sealed & sent for chemical examination and after completing the formalities, the case was registered against them. All the three accused were arrested and the said vehicle was seized and, thereafter, the challan was filed. Accused Hadman Ram was charged for the offence u/s 8/18 of the Act alongwith Section 3 of the PDPP Act and 279 IPC and accused Bhagwana Ram and Budhha Ram u/s.8/18 of the Act, to which they pleaded not guilty. The prosecution examined 19 witnesses. The statements of the accused appellants were recorded u/s.313 CrPC. They produced three witnesses in their defence. After hearing the arguments, the learned trial Judge acquitted Bhagwana Ram and Budhha Ram for the charges levelled against them but convicted accused appellant Hadman Ram as above. 3. Learned counsel for the appellant has vehemently argued that there was no conscious possession of the recovered contraband opium milk with the accused. Neither they were -4- arrested on the spot nor the recovery was made in their presence. They have been implicated merely because of their enmity with Uka Ram, driver of the Govt. jeep. According to the learned counsel for the appellant, the recovered articles have not been proved in the court also and various provisions of the Act have not been complied with. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial Court. 5. Having perused the evidence on record and the judgment of the learned trial Judge, it is revealed that while acquitting Bhagwana Ram and Budhha Ram, the learned trial Judge has basically relied upon the testimony of Roop Singh (PW 13), Gyan Chand (PW 18) and Uka Ram (PW 19). Roop Singh was A.S.I. and Uka Ram was driving the Govt. vehicle and Gyan Chand (PW 18) is the Dy.S.P. of the Anti Corruption Department, who authorized Roop Singh to reach on the spot after obtaining the approval of the Superintendent of Police through QST vide Ex.D.1. Roop Singh (PW 13), who first saw the trolla and recovered opium milk, has stated in examination in chief that all the three accused were brought on the spot by Head Constable Pokar Ram and thereafter, Uka Ram, driver of the Govt.jeep identified accused Hadman Ram, who was driving the trolla. -5- Upon asking their names, all the three accused stated their names. According to this witness, Head Constable Pokar Ram brought them on the spot. Pokar Ram has been examined as PW 9 and has stated in his examination in chief that upon receiving wireless message about absconding of three persons from the trolla at 11.30 AM on 10.10.2001, he, as a Head Constable of Police Station, Karda, reached on the Gochar land of village Sareda near Vasan, a village located in Gujarat State alongwith police constables and caught hold of three accused, who were in search of Raniwada Police Station. When this witness was cross examined, he stated that he caught hold of accused when they were going towards Vasan Village and the police party was coming from Vasan Village and the police party was not knowing them previously. They were not told by Roop Singh about the names of the accused. When this witness was not previously knowing these accused, then how they caught hold of them, is a suspicious circumstance, especially if it is looked into in the light of statement of Uka Ram (PW 19), who identified accused Hadman Ram. Uka Ram (PW 19) is the driver of the Govt.vehicle. In examination in chief, he has nowhere said about accused Hadman Ram, to whom he identified, except in the last part of examination in chief that accused Hadman Ram, Bhagwana Ram and Budhha Ram were arrested on the spot. In cross examination, he has said that he only identified Hadman -6- Ram and not rest of the two accused when they were running after trolla overturned on the road. This statement of Uka Ram is not corroborated by the version of Roop Singh (PW 13), who has stated that had it been so, Pokar Ram or the staff of the Karda Police Station could have informed that one of the accused is appellant Hadman Ram. It is also true that no identification parade was conducted with Roop Singh and Uka Ram. That apart, if the statement of Gyan Chand (PW 18) is looked into, he has stated that there is no mention of identification of the accused by Uka Ram. In addition to the police personnels, there is evidence of Kana Ram (PW 15) in front of whose shop, the trolla was overturned. This witness is not a hostile witness. When he was cross examined, he has stated that one Bhakra Ram came out of the trolla. When he was specifically asked about Hadman Ram, Budhha Ram and Bhagwana Ram about seeing them on the spot and running away, he has denied it. Thus, the prosecution has not been able to link the conscious possession of recovered contraband opium milk with the accused Hadman Ram, who was brought after four hours of the incident by Pokar Ram and identified by Uka Ram. 6. While distinguishing the case of the accused appellant Hadman Ram with Budhha Ram and Bhagwana Ram, the learned trial Judge has misread the evidence. In addition to the above, it -7- is an admitted fact that the accused appellant Hadman Ram was the owner of Truck RJ 16 G 527 which met with an accident on 10.10.01 at 6 P.M. and the report of which was lodged at Police Station, Raniwada vide Ex.D.5 on 11.10.2001 and this truck was driven by Bhakra Ram and the challan was also filed against him. The possibility that on 10.10.2001, accused appellant Hadman Ram was in his own truck, cannot be ruled out. Merely on the basis of the statement of Uka Ram, driver, which is not corroborative from the statement of Pokar Ram and Roop Singh, it cannot be said that the accused appellant Hadman Ram was the driver of the trolla, from which the contraband opium milk was recovered. 7. In view of the above, the conviction of the accused appellant Hadman Ram recorded by the learned trial Judge cannot be sustained. 8. Consequently, this appeal is allowed. The conviction and sentence recorded against the accused appellant Hadman Ram by the learned Special Judge, NDPS Cases, Jodhpur, vide his judgment dated 17.1.2004 convicting him for the offences under Section 8/18 of the Act & under Section 279 IPC is set aside and he is acquitted for the charges levelled against them. He is in -8- jail. He shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS