1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. ORDER 1. SB CRIMINAL APPEAL NO.9/2009. Chhote @ Chhotelal Vs. State of Rajasthan 2. SB CRIMINAL APPEAL NO.1541/2007. Smt. Rampati Vs. State of Rajasthan 3. SB CRIMINAL APPEAL NO.1542/2007. Jyoti Prasad Vs. State of Rajasthan 4. SB CRIMINAL APPEAL NO.1687/2007. Hussain @ Zakir Hussain Vs. State of Rajasthan Under Section 374 of the Code of Criminal Procedure. DATE OF ORDER: 25th February, 2009. PRESENT HON'BLE MR. JUSTICE S.P. PATHAK Mr. S.P. Poshwal for the appellant in Cr. Appeal no.9/2009. Mr. Anurag Sharma for the appellant in Cr. Appeal no.1542/2007. Mr. Bhupendra Singh Rathore, Amicus Curiae in Cr. Appeal No.1541/2007. Mr. Jitendra Singh for the appellant in Cr. Appeal no.1687/2007. Mrs. Rekha Madnani PP for the State. BY THE COURT: These four criminal appeals are being disposed of by this common order as the same arise out of the same judgment and order dated 28.7.2007 passed by the learned Special Judge, NDPS Cases, Hindaun city, Karauli in Sessions Case No.48/1999 whereby each of the appellant has been convicted for the offence under section 8 read with section 20(B)(ii)(c) of the NDPS Act and sentenced to ten years rigorous imprisonment and fine of Rs.one lac, in default of payment of fine to further undergo one year rigorous imprisonment. 2 Briefly stated the facts of the case are that PW-3 Ganpat Singh ASI submitted a written report Ex.P-2 in police station Suroth on 4.2.1999 wherein it was, inter-alia, stated that on that day he along with police party, SDM and Tehsildar proceeded for inspection of mining operations in a government jeep No. RJ 34-C-0013 and while coming back at 3.15 p.m., it was noticed that a maruti car was halted on the wrong side of the road near Kasoli naka in which a lady and three male persons were sitting. From their actions, some suspicion was felt and in the presence of SDM and Tehsildar the maruti car bearing No. RPE 49 was checked. At that time, the driver of the maruti car opened its gate and ran away. Simultaneously, the person who was sitting behind the driver's seat also opened the gate and while running he threw a plastic bag. Constable no. 630 Ram Singh disclosed the names of the two persons who ran away as Chhote @ Chhotelal @ Subrati and Hussain. The persons those who were sitting in the car were instructed not to change their position. The lady sitting at the back side of the car, disclosed her name as Rampati and another person disclosed his name as Jyoti Prasad son of Brahmanand resident of village Khera. On his search, under the sweater which he was wearing at that time, a blue polythene bag was found and on opening the bag four bricks of charas were found. The lady, namely; Rampati was found having a plastic basket in her lap which contained some clothes and blouse etc. and below clothes a green colour plastic bag containing two bricks of same material. 3 The material recovered from accused Rampati and Jyoti Prasad on smelling gave smell of charas. The packet, black in colour, which was thrown by Hussain was containing three bricks of charas. It is further stated that thereafter constable no.630 Ram Singh was directed to bring weight and scale for weighing the contraband material. The contraband material on weighing found in the possession of Jyoti Prasad and Rampati was 2 kg and 1 kg 500 gm. respectively. The packet which was thrown by Hussain on weighing found of 1 kg 500 gm. It was also stated that from the recovered bricks two samples from each brick of 50 gram were taken and sealed. The packet which was found from the possession of accused Jyoti Prasad was marked 'A' and the samples thereof were marked 'A-1', 'A-2', 'A-3' and 'A-4' whereas the packet recovered from the possession of accused Rampati was marked as 'B' and the samples thereof were marked 'B-1' and 'B-2'. Samples were also taken from the packet which was thrown by Hussain. The packet was marked 'C' and the samples thereof were marked 'C-1', 'C-2' and 'C-3'. The plastic bag along with clothes was sealed and that packet was marked 'D'. It is further stated that thereafter in the search of the car two bricks of charas were found below the seat of the driver in a black colour plastic bag on weighing found 1kg, two samples each of 50 gm were taken and sealed. The packets containing charas was marked 'E' and samples marked with 'E-1' and 'E-2' and sealed. The car was also seized at the spot which was found in the name of one Shri 4 Man Singh resident of New Road, Bharatpur. Accused Jyoti Prasad, Hussain, Chhote and Rampati's act was punishable under section 8/20 of the NDPS Act, therefore, the accused along with the seized material were produced in the police station along with report. On the above report Ex.P-2 formal FIR No.27/1999 (Ex.P- 3) was registered at police station and investigation commenced. During the course of investigation accused Hussain and Chhote were arrested. Their test identification parade took place. Ex.P-11 is the test identification memo in relation to Hussain and Ex.P-12 is in relation to accused Chhote. The samples were sent for examination in the FSL, Rajasthan, Jaipur. FSL report received is Ex.P-45. After completion of investigation, charge-sheet was filed against the accused-appellants. Learned trial court framed charge against the accused-appellant under section 8 read with section 20(b)(ii)(c) of the NDPS Act to which the accused denied and claimed trial. In support of its case, prosecution examined as many as 12 witnesses and tendered 45 documents. After close of the prosecution evidence in the statement recorded under section 313 Cr.P.C., accused Jyoti Prasad has stated that on the day of incident while he was coming in a bus from Bayana and was going to Hindaun, at that time some accident took place on the road and he was asked by the driver to get down the bus. At that time he saw a car in which he was allowed to travel on payment. Other persons were also sitting in the car and on the way the car stopped near a field and the driver of the car told that they will take bath 5 there as such he get down from the car and started waiting for some vehicle. Suddenly, a government jeep came there in which police persons were sitting. They caught hold of him and took him to the police station and a false case was lodged against him. He has also stated that on blank papers his signatures were obtained. Accused Chhote in his statement has stated that after getting the truck no.5861 unloaded at bayana he was coming in a jeep. He boarded in a white car after making payment. On the way a sepoi came to him when the car was standing and he brought him to the police station Suroth. There his signatures were obtained on blank papers and he was involved in a false case. In his statement accused Rampati has stated that she was falsely implicated in the case. She has also stated that since there was jam on Hindaun-Bayana road, after making payment of Rs.5/- to the owner of the car she boarded in the car and when the car stopped on the way, she came out of the car and soon thereafter the police jeep came and she was taken forcibly to the police station and a false case has been registered against her. Accused Hussain has simply denied the prosecution version and stated that he has been falsely implicated in the case. No evidence in defence has been produced. Learned trial court after hearing final submissions convicted and sentenced the accused appellants as stated here- in-above. 6 I have heard learned counsel for the accused appellants as well as learned public prosecutor and have carefully perused the impugned judgment and the material available on record. The learned trial court recorded its finding to the effect that out of four accused persons two ran away from the place where the car was searched and in relation to those two persons test identification parade was held and accused Chhote was identified by the witnesses namely PW-8 Rajendra Sharma, SDM, PW-7 Ram Avtar Sharma, Tehsildar, PW-3 Ganpat Singh and PW- 6 Ram Singh and accused Hussain was identified by PW-8 Rajendra Sharm, SDM, PW-3 Ganpat and PW-6 Ram Singh. The trial court also recorded its finding as under: (i) that there was no enmity of the accused with the above persons and their evidence was reliable; (ii) that the contraband charas was more than commercial quantity; (iii) that one of the packet thrown by accused Hussain was recovered; (iv) that the contraband charas was also recovered from below the driver's seat, the driver of the car was Chhote. (v) that the learned trial court recorded its finding that from conscious possession of accused Rampati 1 kg 500 gm charas was recovered which was in a plastic bag and explanation offered by her was not satisfactory. 7 (vi) that the learned trial court has recorded its finding to the effect that on search of the person of accused Jyoti Prasad, charas was recovered which was more than commercial quantity and there was no proper explanation for the possession of charas. The trial court has also recorded its finding that in this case since recovery was made from a public way, therefore, provisions of section 43 of the NDPS Act are applicable and non-compliance of section 40 and 50 of the NPDS Act was not fatal. In relation to accused Rampati it has been contended by the learned counsel that in the instant case on account of jam on Bayana-Hindaun road, she boarded in a car after making payment and while she was standing outside the car she was apprehended by the police and a false case has been lodged against her. It is also contended that in this case the police filed an application for release of the accused u/s 169 Cr.P.C. to the effect that the evidence was not sufficient against accused Rampati and she was liable to be released under the provisions of section 169 Cr.P.C. It is contended that no notice as envisaged under section 50 of the NDPS Act was given to her. It is also contended that there are material contradictions in the prosecution evidence. On the other hand learned public prosecutor contends that in the instant case it is correct that when application was filed by the prosecution under section 169 Cr.P.C. but in relation to that application PW-11 Bhawani Singh has been examined and his 8 statement would reveal that for releasing the accused application was submitted under the instructions of high officials though there was sufficient evidence available against the accused to connect with the crime. I have considered the submissions made before me. It is to be seen that the present case is one where PW- 7 Ram Avtar Sharma Tehsildar and PW-8 Rajendra Sharma SDM along with PW-3 Ganpat Singh and police party had gone to inspect mines and while they were coming back at about 3.15 p.m. on the main road of Bayana-Hindaun, a maruti car was parked near a field in which four persons were found sitting. Two of them escaped and one person while running threw a plastic bag containing charas therein and other persons sitting at the back who was driver of the car and below the driver's seat charas was recovered. The names of the above persons were disclosed by Ram Singh PW-5 as Chhote driver and Hussain as he knew above two accused from before as they were involved in many cases of the police station. Accused Rampati was found sitting in the car having plastic basket in her lap. On the search of the plastic basket, below the clothes, charas weighing 1 kg 500 gm was recovered. Thus, in the light of the above facts, there is no hesitation in reaching to the conclusion that the incident has taken place at a public place and the law is almost settled on the point that when the seizure of contraband material takes place then provisions of section 43 of the NDPS Act shall apply and not 9 section 42 of the Act shall apply. In the case of Narayanaswamy Ravishankar Vs. Assistant Director, Directorate of Revenue Intelligence, 2002 Cr.L.R. (SC) 892, the Apex Court has observed that where search and seizure takes place at Airport, it being a public place, the provisions of section 43 of the NDPS Act would apply. It has further been observed that section 42 of the NDPS Act is not applicable in a case where seizure is effected at a public place, therefore, the question of non-compliance, if any, of the provisions of section 42 of the NDPS Act is concerned, that is wholly irrelevant. The learned trial court has discussed the evidence of PW-3 Ganpat Lal, PW-8 Rajendra Sharma, SDM, PW-7 Ram Avtar Sharma Tehsildar and PW-6 Ramjilal in this regard. The above witnesses have stated that in a maruti car the accused persons were sitting out of four accused persons, two had escaped and Smt. Rampati was found in possession of a plastic basket which was in her lap and on the search of the basket contraband material was recovered which was above commercial quantity. The learned counsel has pointed out certain omissions and contradictions in the statement of witnesses but those contradictions and variance are not of much significance in view of the discussions made by the learned trial court of the evidence of the above witnesses. All of the above witnesses in one voice have stated that she was found in the car with a plastic 10 basket. That being the position of the evidence led in this case, it is to be examined as to whether her statement made under section 313 Cr.P.C. is reliable and Ex.D-4 the application moved for release of the accused before the trial court entitles her to the benefit of doubt and the judgment of conviction is liable to be set aside in her regard. A perusal of Ex.D-4 reveals that the evidence was not sufficient to connect the accused with the case as she was subjected to rape by three persons in a maruti car. In this regard, statement of PW-11 Bhawani Singh is relevant. PW-11 Bhawani Singh has stated that while he was discharging his functions as Circle Inspector, Hindaun on 5.2.1999 he received the file of present case for investigation as Tilakarj Singh SHO of Suroth was transferred. In the cross-examination he has stated that he presented an application for the release of accused under section 169 Cr.P.C. before the court on the instructions and orders of the higher officials but fact of the matter is that his investigation reveals that accused Rampati was found in possession of 1 kg 500 gm charas. In the instant case, the story that accused Rampati was subjected to rape by three miscreants in a maruti car was found false and final report in that case was given as appears from the statement of PW-11 Bhawani Singh. In the above back- ground it is to be seen as to whether there was conscious possession of the accused of the contraband material. 11 In the case of Gunwantlal Vs. The State of M.P.- AIR 1972 SC 1756, it has been observed that it is not necessary that there should be physical possession but it could be constructive possession having power and control over the article in case in question, while the person whom physical possession is given holds is subject to that power or control. In the case of Madan Lal & anr. Vs. State of Himachal Pradesh- 2003 Cr.L.R. (SC) 751, in para 27 it has been observed that 'once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of section 54 where also presumption is available to be drawn from possession of illicit articles'. That being the position, the accused Rampati was found in a car and that fact finds place in the evidence led in this case and the seizure memo prepared then the minor contradictions have no impact on the substance of the case. In view of the above discussion, I am of the opinion that Rampati has rightly been convicted and sentenced by the learned trial court. 12 In relation to Chhote and Hussain. As per the prosecution story, it appears that these two accused persons namely Chhote driver and Hussain ran away from the place of incident when PW-3 Ganpat Singh was trying to take search of the vehicle. Hussain is the accused against whom charge is framed that he threw a plastic bag which was containing charas from where samples were taken and the same were sent to FSL. On chemical examination, the samples sent gave positive opinion about the presence of charas. These two persons were not known to the police party as well as Rajendra Sharma SDM and Ram Avtar Sharma Tehsildar but at the spot these two persons were seen by Ram Singh constable no.630 of police station Suroth. He has appeared in the witness box and stated that these persons were having several cases. This fact finds place in Ex.P- 2, the written report and the seizure memo prepared at the spot. It is not the only evidence against the above two accused persons. The test identification parade was conducted. Ex.P-11 and P-12 are the identification memos. The test identification parade was held in jail. It was conducted by a Magistrate. Accuse Chhote Lal was arrested vide arrest memo Ex.P-45 (same exhibit has also been marked on FSL report) on 27.5.1999 and was kept baparda. Accused Hussain was arrested through arrest memo Ex.P-43 on 30.7.2000 and was kept baparda. 13 PW-9 is Hari Ram Meena, Magistrate who conducted the test identification parade and has stated that after observing all required necessities under the law, the test identification parade was held and both accused were identified by the witnesses namely; PW-7 Ram Artar Sharma, Tehsildar, PW-8 Rajendra Sharma, SDM and other witnesses. As regards PW-7 Ram Avtar Sharma Tehsildar and PW-8 Rajendra Sharma, SDM are concerned, they had never seen the accused before and they saw the accused in the jail. There is no reason why their testimony should be discarded. No enmity has been attributed to them or to the police persons. That being the position, in my opinion, the accused were correctly identified. It has been contended by the learned counsel for the accused appellants that in the instant case compliance of section 57 of the NDPS Act has not been made as higher officials were not informed by the detailed report. This argument is liable to be rejected for the simple reason that Ex.P-44 is the document available on record which is in relation to sending the information to the S.P. Concerned. The object in relation to the above document is that person who took this document was not examined. In normal course the prosecution ought to have examined this witness but merely this witness has not been examined will not be a reason to discard the testimony of other witnesses. It is procedural matter and in this case the recoveries have been made at a public place. 14 In view of the fore-going discussion, I do not find any merit in the submissions made by the learned counsel that the conviction of the above accused Chhote and Hussain recorded by the learned trial court is liable to be set aside. In relation to Jyoti Prasad It has been contended by the learned counsel that in the instant case a reading of Ex.P-2 would reveal that the accused was found in the vehicle and was in possession of charas. Learned counsel has invited my attention to various statements of the witnesses to show that there are material contradictions and in the instant case there has been non-compliance of the provisions of sections 40, 42, 43, 50 and 57 of the NDPS Act. It has also been contended that the contraband material recovered at the spot was found less in weight when sent to the FSL. It is contended that the samples were not resealed as required. Various authorities have been cited by the learned counsel in support of his submissions. It is to be seen that the position of law is almost clear on the point that provisions of sections 55 and 57 are of mandatory nature. Unless it is shown that prejudice has been caused to the accused then if the evidence of the prosecution inspires confidence, that is to be given due weight. In the instant case, the recovery has been effected from the public place, therefore, there was no question of non-compliance of the provisions of section 42 of the NDPS Act. In relation to section 57 of the NDPS Act, Ex.P- 15 44 is the document which is in relation to sending the information to the higher officials. The explanation furnished under section 313 Cr.P.C. that accused was falsely implicated in the case is not liable to be accepted for the reason that the police witnesses and particularly the statement of PW-7 Ram Avtar Sharma Tehsildar and PW-8 Rajendra Sharma SDM cannot be thrown out unless it is shown that their statement is false on material points. Even as per the statement recorded under section 313 Cr.P.C., it appears that the accused appellant was in the car, therefore, the presence of the accused stands established. In relation to defence taken no evidence has been produced. The position of law is also settled that once position is established then presumption is liable to be raised u/s 35 and 54 of the NDPS Act. In view of the decision of the Supreme Court in the case of Madan Lal Vs. State of Himachal Pradesh and Gunwantlal Vs. The State of M.P. (supra) and also in the case of State of Punjab Vs. Baldev Singh, JT 1999 (8) SC 293 and Gurbax Singh Vs. State of Haryana, (2001)3 SCC 28, that being the legal position, I do not find a reason to take a different view than one taken by the learned trial court. The contention of the learned counsel is that there has been variance in the weight of the samples. According to the learned counsel each sample was taken of 50 gm and as per Ex.P-45 in packet 'A-1', 'A-2', 'A-3' and 'A-4' in the FSL, weight was found 46.660, 45.514, 46.320 and 45.479 gms respectively, in packet 'B-1' and 'B-2', the weight was found 45.186 and 44.478 16 gms. respectively and in packet 'C-1', 'C-2' and 'C-3' the weight was found 45.950, 46.051 and 46.714 gms. respectively. It is to be seen that at spot by ordinary scale the weight was taken and after lapse of some time it is natural that samples will get dry and there may be slight variance in the weight but unless there is substantial variance in the weight, the case of the prosecution is not liable to be thrown out. In the case of Saleem Mohammad Vs. Union of India through the Inspector, Central Narcotics Bureau, Jaipur- 2007(1) Cr.L.R. (Raj.) 321, this court has held that if there is a minor variance in the weight then that cannot be a reason to discard the prosecution case particularly in the circumstances when sealed material sent to the FSL was found intact. In the case of Bhanwar Singh Vs. Union of India, 2006 (4) WLC (Raj.) 425, this court has relying upon the decision rendered