1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT PATTRICK THOMAS MALLUZO vs. STATE OF RAJ. SB Criminal Appeal No. 888 of 2006 under Section 374 Cr.P.C. against the judgment dated July 17, 2006 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Kota in Sessions Case No. 10 of 2004 convicting and sentencing the accused appellant under section 8/20 of NDPS Act for 10 years RI with fine of Rs.1,00,000 in default of payment of fine to suffer one year RI. REPORTABLE Date of Order : Feb. 22, 2010 PRESENT HON’BLE MR. JUSTICE MAHESH CHANDRA SHARMA Mr. Triq Sayeed with Mr. Anil Upman for the appellant. Mr. Peeyush Kumar, Public Prosecutor for the State BY THE COURT : The appellant Patrik Thomas Gairo Malujo filed this appeal against the judgment dated July 17, 2006 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Kota in Sessions Case No. 10 of 2004 convicting and sentencing the accused appellant under section 8/20 of NDPS Act for 10 years RI with fine of Rs.1,00,000 in default of payment of fine to suffer one year RI. 2. Brief facts of the case are that on November 2 14, 2003 at about 9 in the night on reaching 2952 UP Rajdhani- Mumbai Express at Kota Railway Station announcement was made for attending the train, on which Assistant Sub Inspector Kesar Singh and Constable Ram Prasad proceeded to attend the train at platform No.2. On contacting by GRP staff with TS Rajdhani Express, N. Ramesh in presence of HTC Manoj Verma handed over 3 bags received vide memo A-2 to the staff after taking out the same from PC/2. Constable Ram Prasad opened the 3 bags in presence of HTC for the purpose of depositing the same in LP office then used clothes were found in 2 bags while on opening the third bag there was yellow colour foam on all the 4 sides and on the top also yellow colour foam was found. On removing the foam some used clothes and 35 polythene packets were found. On opening one of the packets black colour substance was found. On smelling it was found to be charas. On this constable Ram Prasad informed telephonically to Police Station Incharge Jagmal Singh. Jagmal Singh, S.I. reached alongwith investigation box and the team at the LP office and the substance found in the bag was checked by the kit and it was ascertained to be Charas. After opening all the 35 packets samples of 30 grams each were prepared and marked as A and B. Remaining charas was packed in the 35 separate packets. All the 3 bags were seized separately. On receipt of above report FIR No. 251/2003 for offence under section 8/20 of NDSPS Act was registered and investigation commenced. During the course of investigation the accused appellant along with co- accused John Don Ho were arrested. After completing the investigation the police filed charge sheet No. 76/2004 on 13.5.2004 for offence under sections 8/20 and 8/29 of the NDPS Act. Charge was framed against the accused appellant for offence under section 8/20 of the NDPS Act. The accused appellant denied the charge and claimed to be tried. The 3 prosecution produced as many as 29 witnesses along with certain documents in support of its case. The accused was examined under section 313 Cr.P.C. and he did not produce any witness in his defence and stated the prosecution story to be false. After hearing both the parties, the trial court convicted and sentenced the accused appellant vide judgment and order dated 17.7.2006 for offence under section 8/20 of the NDPS Act as stated above. 3. Mr. Tariq Sayeed,learned counsel appearing for the accused appellant argued that the seizing officer PW.20 Jagmal Singh was not competent to carry out the search and seizure and he was simply sub-inspector and not posted as SHO. SHO Laxmi Narain PW.18 was available in the police station and inspite of this fact seizure was effected by Jagmal Singh and as per Notification issued by the State Government under section 42 NDPS Act he was incompetent being simply sub inspector. The place where the seizure is effected is not material on the facts and circumstances of the present case as person who is taking steps under NDPS Act must be of and above the rank of Station House Officer (SHO). He placed reliance on Roy V.D. Vs. State of Kerala 2000 (1) SRJ 169, Bherulal vs. State of Rajasthan 2004 (1) Cr.L.R. 612 (Rajasthan), Om Prakash vs. State of Rajasthan 2007 (1) Cr.L.R. 448 (Rajasthan) Jaggan nath vs. State of Rajasthan 1994 Cr.L.R. 709 (Rajasthan), Ram Kumar Singh vs. State of Rajasthan 1994 Cr.L.R. 68 (Rajasthan, Satyanarain and another vs. State of Rajasthan 2000-01 (Supp) Cr.L.R. 88 (Rajasthan) and Mitho Singh vs. State of Rajasthan 1992 Cr.L.R. (Raj. 74. Learned counsel also argued that the trial court ignored the basic facet of criminal trial. The trial court at the inception of recording of evidence confirmed the fact whether the accused 4 before the court understood the language of the court. The evidence recorded by the trial court was in Hindi language, which was never read over or explained to the accused in English Language. Other argument raised by the counsel for the accused appellant is that the co-accused has been acquitted by the trial court itself on the same set of documents and witnesses and as per prosecution case he was the main accused as he fill up the reservation slip in the name of himself and appellant. The counsel further averred that the co-accused was caught with contraband in Goa and case of the present appellant is on better footing as all the prosecution witnesses has deposed in their testimony that nothing was recovered from the bags by which appellant can be connected with the alleged contraband. Learned counsel stated that nothing was recovered from the bag like photographs, slip etc. as nothing was sealed on spot except alleged charas. Reliance has been placed on Shanker Lal vs. State of Rajasthan Western Law Cases 2001 Vol. 5 page 581. The learned counsel for the appellant further argued that the there is gross violation of section 55 of the NDPS Act as prosecution failed to establish the fact that the seal was not tampered with as PW.20 Jagmal Singh has deposed in his statement that seal wich was used in seizing the contraband has been destroyed on spot but surprisingly same seal has been used on Malkhana register, exhibit P 40 A and it is highly impossible for human being to use the destroyed article again. Reliance has been placed on Mintu vs. State of Rajasthan Criminal Bail application No. 18 of 2009 in Criminal Appeal No. 22 of 2009. Lastly the learned counsel argued that the prosecution failed to establish the fact of exclusive possession as appellant has not been 5 found with the contraband and contraband was found in the abandoned condition and the appellant never seen with the contraband and bags under seizure at any stage prior to seizure. Reliance has been placed on 2010 (1) SRJ page 86, Om Prakash vs. State of Rajasthan 1996 Cr.L.R. (Supreme Court page 345 and 96 Cr.L.J. 2001 Mohan Alam vs. NCB. 4. The learned Public Prosecutor on the other hand supported the judgment of conviction and argued that Narcotic Substance was recovered from the bag of the accused appellant. The trial court rightly convicted and sentenced the accused appellant. The findings arrived at by the trial court are just and proper. The trial court critically examined the material available on record and judgment of conviction is based on evidence and the accused appellant has been rightly convicted and sentenced. The learned counsel argued that PW.20 Jagmal Singh, was SHO on that day as the incumbent SHO was on leave and being SHO he registered the FIR and signed on FIR Ex. P.19 at place A to B. He sent the information under Section 57 of the NDPS Act(Ex. P.20) to the Superintendent of Police Railways Ajmer on 15.11.2003 and signed on it at place A to B. The public prosecutor in this manner argued that the the accused appellant was rightly convicted and sentenced by the trial court. He placed reliance on Hardip Singh Vs. State of Punjab (JT 2008 (9) SC 328) of the Apex Court, wherein it has been enunciated by the Apex Court that non-putting of seal by SHO, positive evidence that goods were in safe custody and no tampering took place, held that no prejudice was caused. 5. I have heard the learned counsel for the 6 parties and gone through the entire record. Before proceeding further it is necessary to have a look at the relevant provisions of Sections 42, and 43 of the NDPS Act. Section 42 provides:- 42. Power of entry, search, seizure and arrest without warrant or authorisation. (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance, in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building, conveyance or enclosed place, may, between sunrise and sunset (a) enter into and search any such building, conveyance or place; (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV 7 relating to such drug or substance: Provided that if such officer has reason to believe that a search warrant or authorisation cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sun set and sun rise after recording the grounds of his belief. (2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto he shall forthwith send a copy thereof to his immediate official superior. Section 43 reads as under : 43. Power of seizure and arrest in public places. Any officer of any of the departments mentioned in section 42 may (a) seize, in any public place or in transit, any narcotic drug or psychotropic substance in respect of which he has reason to believe an offence punishable under Chapter IV has been committed, and, along with such drug or substance, any animal or conveyance or article liable to confiscation under this Act, and any document or other article which he has reason to believe may furnish evidence of the commission of an offence punishable under Chapter IV relating to such drug or substance; (b) detain and search any person whom he has reason to believe to have committed an offence punishable under Chapter IV, and, if such person has any narcotic drug or psychotropic substance in his possession and such possession appears to him to be unlawful, arrest him and any other person in his company. Explanation For the purposes of this section, the expression public place includes any public conveyance, hotel, shop, or other place intended for use by, or accessible to, the public. 6. The Apex Court in Balbir Singh's case (1998 ) 2 SCC 724 after referring to a number of judgments, opined that failure to comply with 8 the provisions of Cr.P.C. in respect of search and seizure and particularly those of Sections 100, 102, 103 and 165 per se does not vitiate the prosecution case. If there is such a violation, what the courts have to see is whether any prejudice was caused to the accused. While appreciating the evidence and other relevant factors, the courts should bear in mind that there was such a violation and evaluate the evidence on record keeping that in view. 7. On the basis of the above conclusions of their Lordships of the Supreme Court, it is necessary to have a look at the evidence adduced and documents exhibited before the trial court by the prosecution and it is also necessary to see whether any prejudice was caused to the accused for violation of the provisions of section 42 NDPS Act or section 55 of the NDPS Act as pointed out by the learned counsel for the appellant. PW.1 Kesar Singh, ASI, GRP Kota stated that he was on duty at Railway Station Kota Platform from 8.00 p.m. on 14.11.2003 with Constable Ram Prasad. At 9.00 p.m. an annoncement was made at platform that on duty GRP staff should attend Coach No. A-1 Rajdhani Express 2952. He stated in his statement as under : “ इस पर मɅ कोÛःटेबल रामूसाद को साथ लेकर राजधानी के कोच ए-१ पर पहंचा ु । जहां पर शेन सुूीटेÛडेट एन रमेश व ǑडÜटȣ शेन सुूीटेÛडेट िमले। ǔजÛहोने बताया Ǒक राजधानी एÈसूेस के पेÛशȣ कार मɅ ३ लावाǐरस बेग पड़े हए है। ु " PW.1 further stated that thereafter at 9.50 p.m. he along with Jagmal Singh ASI with Head 9 Constable reached Parcel Office Kota, where Jagmal Singh SHO, in presence of witness Khemchand Sharma ASI, RPS, and Indresh Kumar, Parcel Clerk checked the big black colour bag, in which he found 35 packets and opening one of them they found black material in it. Thereafter he stated thus : “सभी पेकेटो को खोल कर देखा, तो उसमɅ उसी ूकार के काले रंग के गाढ़े पदाथ[ के टकड़Ʌ छड़नुमा िमले ु , ǔजनमɅ हãका Üलाःटȣक चढ़ा हआ था। सभी ु को सूघां, देखा तथा जांचा तो चरस होना पाया।" PW.1 further stated as under : “सभी पेकेटो का वजन कराया, तो कुल १९ Ǒकलो वजन हआ। Ǒफर सभी पेकेटो ु मɅ से 30-30 माम के दो- दो सेàपल अलग सील मोहर Ǒकये। तथा पैकेटो कȧ सील मोहर कर माक[ ए,बी,सी,डȣ, अंǑकत Ǒकये गये" This witness admitted preparation of Ex. P.1 in his presence. PW.2 Kunwarpal Singh, Constable stated that on 15.11.2003 he was present at the GRP Police Station Kota. At 10. a.m. as per the information of Ramprasad Constable, Jagmal Singh ASI and Kesar Singh ASI at Plot form No.1 Railway Station Kota at parcel godown after searching bags seized the contraband. Site map was prepared by Jagmal Singh in his presence. Site map of place is Ex. P.2, which bears his signature. PW.3 Ramprasad, Constable stated about annoncement made at platform Kota that GRP staff on duty should reach at Rajdhani Express. He accompanied Kesar Singh, ASI. He stated in his statement thus : "एसआई जगमालिसंह को मɇने बताया Ǒक जो यह काला बैग है इसमɅ मादक पदाथ[ होने कȧ संभावना है मेरȣ सूचना पर एसआई जगमाल िसंह ने पास मɅ खड़े इÛिेश गग[ व एसआई खेमचÛि आरपीएफ के सामने काले बेग कȧ चेन खोलकर देखा तो एक पीले रंग का फोम लगा हआ था ǔजसको हटाकर देखा तो ु 10 खाकȧ कलर के पैकैट भरे हए थे। बेग मɅ से सभी पेकेटो को बाहर िनकाला तो ु कुल पैकेट 35 थे। सभी पेकेटो को Þलेड से काटकर देखा तो काले रंग कȧ गाड़ा पदाथ[ जैसी छड़Ʌ िनकली ǔजनकȧ लंबाई करȣब साढ़े तीन इंच थी । सभी छड़ो पर पतले मोमजामा Üलाǔःटक िचपकȧ हई थी ǔजनका तोल Ǒकया गया तो कुल ु वजन 19 Ǒकलो माम हआ व गवाहान को Ǒदखाया व सूघांया तो सभी ने चरस ु होना बताया सभी पेकेटो से 30-30 माम के दो दो सेàपल िनकाले जाकर सफेद रंग के कपड़े कȧ थेली मɅ रखकर सील मोहर Ǒकया गया। एंव इःतेमाली कपड़ो कोअलग से फद[ बनाकर सीलमोहर Ǒकया गया एव जीआरपी थाना कोटा पहचकर सीलशुदा पेकेटो को जमा मालखाना एचएम Ǒकया गया। ु " This witness admitted his presence at the time of searching bags and recovery of charas from that bag. PW.4 Khemchand Sharma, ASI, GRPF, Kota and PW.5 Indresh Kumar Garg, were also the witnesses about the bags recovered by the Police from the A-1 Coach of Rajdhani Express and the same were opened in their presence and the black material found in the bag was kept in two sealed packets of 30 gms. each. The packets were sealed in their presence. PW.6 Vishram Kumar, Constable No.744 GRP Bharatpur, stated that he accompanied ASI Jagmal Singh and Constable Bajranglal on 19.11.2003 for New Delhi Railway Station. He stated that Jagmal Singh gave in writing to the Chief Reservation Clerk of Foreign Reservation Office New Delhi of Rajdhanni Express dated 14.11.2003. He stated thus : "उस तहरȣर के साथ मɅ ǐरजवȶशन चाट[ Ǒदनांक 14.11.2003 को भी पेश Ǒकया था एंव उसमे Ǒटकȧट के पीएनआर नं. िलखे व दोनो पɅसɅजर पेǑशक थोàस व जान डोन हो कȧ ǐरजवɍशन ःलीप चाहȣ। तो मुÉय ǐरजवȶशन Èलक[ ने ǐरजवȶशन ःलीप िनकालकर दȣ। यह ःलीप अंमेजी मɅ भरȣ हई थी ǔजसमɅ शेन ु 2952 अप राजधानी एÈसूेस नई Ǒदãली ट बौàबे का ǐरजवȶशन के िलए भरा ू था। ǔजसमɅ पेǑशक थोàस व जोन डोन हो का नाम िलखा हआ था एवं ǐरजवȶशन ु ःलीप मɅ दो सीट चाहȣ गयी थी।" 11 He stated that seizure memo Ex. P.5 was prepared in his presence wherein he put his signature A to B. PW.7 Dilbahar, Constable stated about the sending of telephone diary with 9 papers to the SRP Ajmer office and after preparing forwarding letter deposited the said papers in the FSL Jaipur and got the receipt Ex.P.5 which he has deposited in GRP Kota Police Station to the person sitting on Rojnamcha. PW.8 R. Rajpan Nair, was on duty in Pantry Car of Rajdhani Express Delhi to Mumbai. He stated that he heard the announcement that in Two Tier AC Coach on Seat Nos. 13 and 14 three bags in abandoned condition were found and requested the concerned persons to collect the bags. When nobody turned to receive the said bags on objection by other passengers the same were taken to Pantry Car and thereafter handed over at Railway Station Kota to the Police Personnel who were present at the Platform. T.S. Of Rajdhani Express handed over the memo with three bags to the police personnel. PW.9 Balgovind Agrawal, stated about working in Hotel Gold Regency Paharganj Delhi. On 14.11.2003 Patric Maloja stayed in the Hotel. He stated that Ex. P.6 Hotel Register was recovered by the GRP Kota Police. In Register Ex. P.6 at S.No. 1804 dated 14.11.2003 he made entries regarding Malujo Patric in the Register which is A to B. Prior to it Jon Don was staying in the Hotel. He stayed in the Hotel along the room of Jon Don. Entry regarding Jon Don was made by Shift Incharge Mithlesh kumar. The register Ex. P.6 was seized by seizure memo Ex. P.7 wherein he put his signature A to B. PW.10 N. Ramesh, T.S. Rajdhani Express, stated in his statement as under : 12 "कोच नं0 ए-२ मɅ सीट नं0 13 व 14 कȧ आजू बाजू वाली सीटो पर बैठे याǒऽयɉ ने बेगो को हटाने के िलए कहा था। ǔजस पर मɅने अपने दो तीन ःटाफ वाले को लेकर बेगो को वहां से हटाकर पɅशȣं कार मɅ रखवा Ǒदया उसके बाद हमने शेन के गाड[ के जयȶ कोटा के एस.एस. को यह मेसेज Ǒदया कȧ ःटेशन पर पुिलस वाले जीआरपी व रेलवे के कम[चाǐरयो को तैयार रखे। यहां पर तीन लावाǐरश बेग बरामद हए है ǔजनको ःटेशन पर उतारकर जमा करवाना है। ु जैसे हȣ कोटा रेलवे ःटेशन आया वहां पर दो पुिलस वाले जीआरपी वाले व एक टȣ.टȣ. आया था ǔजनको हमने एक लेटर बनाकर माल सुपूद[कर Ǒदया था। Ǒफर मɅ वहा से डयूटȣ पर अपनी गाड़ȣ के साथ िनकल गया।" PW.11 Benimadhav, Waiter on duty on 14.11.2003 in Rajdhani Express stated about three bags found in Coach No. A-2 on Seats Nos. 13 and 14 and those three bags were taken to the Pantry Car along with other staff and thereafter he came to know that the said three bags were handed over at Kota Railway Station. PW. 12 Manoj Verma HTC, Kota stated that on 14.11.2003 an announcement was made at the Platform No.2 GRP staff and HTC should attend Rajdhani Express. When he reached A-2 Coach, Rajdhanni T.S. informed that on Berth Nos. 13 and 14 unclaimed these three bags were found and the same were handed over to GRP staff and he was present their and thereafter they went to deposit the said bags in the LPO. At parcel room they searched those begs in presence of PW.4 Khem Chand Sharma and PW.5 Indresh Garg and on search it was found that in one beg of black colour besides some used clothes 35 sealed packets were found which were bars of charas. PW.13 Harish Sethi, who was owner of Hotel Gold Regency in Main Market of Pahadganj stated that Ex. P.6 Register was seized from them. In the Register at S.No. 1804 in room No.15 Jon and Patrick 13 stayed on 14.11.2003. Besides Register, copies of bills and C form were also seized. PW.14 Suchindra was declared hostile. But he admitted his signatures on Ex. P.8 and Ex. P.9. PW.15 Sunder Singh stated that on 15.11.2003 he was posted in security section of SP Office, Kullu. He stated that they are maintaining the record of arrival of Foreign tourist for which they receive C form from them. On 15.11.2003 SI came to him and asked about the C forms of Jon Don and Patrick after approval from the higher officers, he handed over the same to them. PW.16 Banwari Lal, Constable stated about bringing Hotel's card, Register of Hotel Gold Regency, Signatures of Patrick, original copy of FIR to SP Ajmer and thereafter started from GRP Kota on 23.3.2004 first for Ajmer and thereafter from SP office after preparing relevant papers for deposit of articles to FSL Jaipur. The articles were deposited on 26.3.2004 and receipt Ex. P.10 was obtained by him which he deposited with Ninuakhan,Malkhana incharge. PW.17 Shri Bhim Singh the then Manager of the Marvel Hotel confirmed that the appellant and co-accused stayed in Hotel Marvel Manali in Room No. 15 on 10.11.2003. He also stated that on the basis of passport he filled C form got signatures on those forms which were Ex. P.11 and P.12. He entered their stay in the Register at page 115 serial No. 568. This entry is Ex. P.13. Bhim Singh identified appellant in the court saying that he stayed in their hotel as stated above. 14 PW.18 Laxminarain, SHO GRP stated that in July 2004 he made investigation in the case of FIR No. 251/03. He filed the challan against the accused appellant and co-accused in the court. PW.19 Ajab Singh, Superintendent Northern Railway, New Delhi stated that for PNR No. 2364043077 which was for ticket of Delhi to Mumbai in Rajdhani Express, enquiry was made from him that whether refund of this ticket was obtained