1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT The State of Raj. Vs. Ramesh Chand & ors. S.B.Criminal Appeal No. 60/1998 UNDER SECTION 378 (I) (III) OF THE CR.P.C. AGAINST THE JUDGMENT DATED 5.6.1997. DATE OF JUDGMENT :::: August 29, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K.Sharma, PP, for the State. Mr. Vijayant Nirwan) Mr. Rinesh Gupta ) for the respondents. BY THE COURT Challenge in this appeal is to the judgment dated 5th June, 1997 rendered by Special Judge N.D.P.S. Cases Rajgarh Camp Lakshmangarh (Alwar) whereby the accused respondents Ramesh Chand and Subhash Chand were acquitted in the offence under Section 8 read with Section 15 of the Narcotics Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “Act, 1985”). 2. As per the prosecution case both the accused respondents namely Ramesh Chand and Subhash Chand are alleged to have found in possession of 8 bags of Dodapost powder on 19th May, 1996 at 4.50 PM on Dholagarh -Baseith road. 2 It is further alleged that PW/10 Bhanwar Singh SHO P.S. Kathumar received an information at 12.40 P.M. about the accused respondents Ramesh Chand and Subhash Chand having proceeded in a Jeep RSA 5952 from Alwar towards Kherli vaya Dholagarh-Baseith transporting Dodapost powder therein. Shri Bhanwar Singh sent this information to PW/2 Lakshman Gaur, the then Circle Officer Laxmangarh who stopped the said Jeep at 4.50 PM and nabbed both the accused Ramesh Chand & Subhash Chand who were transporting 8 bags containing Dodapost Powder. PW/2 Shri Lakshman Gaur recovered and seized the said 8 bags of Dodapost powder vide recovery memo Ex.P/5, arrested both the accused Ramesh Chand and Subhash Chand vide memo Ex.P/7 and Ex.P/8 respectively, seized the Jeep RSA 5952 vide memo Ex.P/6, recorded the statements of the witnesses, lodged the FIR Ex.P/18, sent the sample of Dodapost Powder for chemical examination to Forensic Science Laboratory (FSL) and after usual investigation sent both the respondents for trial to the competent Court. 3. The accused respondents were indicted for the offence under Section 8 read with Section 15 of the 'Act 1985' who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as 10 witnesses. In their explanation 3 under Section 313 of Cr.P.C. both the accused respondents claimed innocence and on completion of trial the Court acquitted the accused respondents as indicated hereinabove. 4. Heard the submissions advanced by the learned Public Prosecutor appearing for the State, learned counsel for the accused respondents and with their assistance, scanned the relevant material available on record. 5. The learned Public Prosecutor has contended that the recovery of 8 bags of Dodapost powder is very well proved from the statements of PW/1 Ramesh Chand Sharma, PW/2 Lakshman Gaur, PW/3 Ravi Datta, PW/4 Dilip Kumar Sharma, PW/6 Radhey Shyam, PW/7 Chiranji Lal Yadav, PW/8 Bihari Lal and PW/10 Bhanwar Singh. The recovered Dodapost Powder, on chemical examination is proved to be dried crushed capsules of opium poppy by the FSL report Ex.P/19 but the learned trial Court has erred in not relying the evidence of prosecution witnesses as also the FSL report. The judgment of the lower Court is based on surmises and conjectures and as such, the same deserves to be set aside and the accused respondents should be convicted. 6. Per contra, the learned counsel for the respondents has simply urged that the judgment 4 of the lower Court is cogent and well merited. The learned trial Court has discussed all the aspects in great details and properly appreciated the prosecution evidence, as such the State appeal being devoid of force, deserves to be dismissed and the impugned judgment does not call for any interference. 7. Fact situation emerging in the instant appeal from the material is summarized thus: (i) PW/10 Bhanwar Singh SHO Police Station Kathumar received the information on 19th May, 1996 at 12.40 PM who recorded the same as Ex.P/1. (ii) PW/2 Lakshman Gaur, Circle Officer Laxmangarh District Alwar received the said information from PW/10 Bhanwar Singh SHO Police Station Kathumar at 2.40 PM who recorded the same as Ex.P/2. (iii) PW/2 Shri Lakshman Gaur took the search of both the respondents and recovered 8 bags of Dodapost Powder vide Ex.P/5 which was being transported in a Jeep RSA 5952 by the respondents. The Jeep was also seized vide memo Ex.P/6 by him. (iv) Both the respondents were also arrested by PW/2 Shri Lakshman Gaur Circle Officer. (v) The entire proceeding with regard to the search, seizure and arrest of the accused was made by PW/2 Shri Lakshman Gaur but the FIR Ex.P/18 has been lodged by PW/10 Bhanwar Singh, SHO Police Station Kathumar. (vi) The investigation of this case is also found to have been conducted by PW/10 Bhanwar Singh himself. Thus, the complainant himself is the investigating officer of this case. (vii) The whole prosecution case rests upon the testimony of police witnesses only. 5 8. Having reflected over the submissions and perused the relevant material as also the impugned judgment, it is noticed that PW/2 Lakshman Gaur, the then Circle Officer conducted the search and seizure of Dodapost Powder at 4.50 PM on Dholagarh-Basaithi road. But no independent person has been made the witnesses in this case. The entire proceeding has been drawn in brought day light on a public road which remains quite busy and the possibility of frequent plying of vehicles and on foot travellers cannot be ignored. The prosecution has not assigned any reason as to why the search and seizure was not conducted by PW/2 Lakshman Gaur in the presence of the independent witnesses. Albeit, the evidence of the police witnesses cannot be jettisoned if it is found to be reliable and trustworthy but if in the facts and circumstances their evidence smells doubtfull then to base conviction of the accused, it requires corroboration from the independent evidence. In the instant appeal there was every possibility of having the independent person passing through the place of search and seizure but now independent person has been made the witness in this case which casts doubt about the credibility of the seizure Officer. 6 9. A perusal of recovery memo Ex.P/5 reveals that 8 bags of Dodapost Powder were being transported in a Jeep RSA 5952 by the accused respondents but PW/2 Lakshman Gaur is found to have given a notice to both the respondents under Section 50 of the Act 1985 for their search. It may be noticed that a notice under Section 50 of the Act 1985 is given to a person only when he is to be searched but in the instant appeal there was no question of taking the person search of the respondent as the contraband article was being transported in a vehicle which proves the ignorance of the seizure of PW/2 Lakshman Gaur with regard to the provisions of law. 10. PW/10 Bhanwar Singh is the Investigating Officer of this case who prepared the site plan Ex.P/9 sent the sample for chemical analysis to FSL, recorded the statements of the witnesses under Section 161 of Cr.P.C. and after completion of investigation submitted the charge-sheet against the respondents in the Court. He is found to have recorded the statements of PW/2 Lakshman Gaur under Section 161 of Cr.P.C but PW/2 Lakshman Gaur in his cross examination has tangibly denied to have given such statements to PW/10 Bhanwar Singh. On the contrary he has deposed that he never met Bhanwar Singh on 19th May, 1996 after the 7 completion of the proceeding with regard to the search and seizure. In such circumstances, there could be no occasion to give the statements to Bhanwar Singh. 11. PW/2 Lakshman Gaur did not comply with the mandatory provisions of Section 42 of Act, 1985 as he was required under sub Section 2 of Section 42 to send the copy of the information to his immediate Officer superior within a period of seventy-two hours. Shri Gaur has categorically denied in his cross examination to have sent such a copy of the information to his immediate superior Officers. The learned trial Court has discussed all the aspects in great details and properly appreciated the evidence of prosecution witnesses. He has focussed on material contradictions and infirmities creping in their statements which have held the whole prosecution story doubtful. The impugned judgment of the lower Court is perfectly just, proper and well in tune with the material available on record. In view of the above position, the learned trial Court has rightly arrived at the finding of acquittal of both the accused respondents, I do not find any infirmity factually or legal in the judgment of the lower Court, I am in unison with the finding of acquittal arrived at by the learned trial Court and to my firm view also, the impugned judgment 8 does not call for any interference. 12. For these reasons, the State appeal being devoid of merits stands dismissed. (MAHESH BHAGWATI),J. PCG