-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: (1) S.B. CRIMINAL APPEAL NO.224/1988 (Poonma Ram Vs. The State of Rajasthan) (2) S.B. CRIMINAL APPEAL NO.287/1988 (Babu Lal Vs. The State of Rajasthan) S.B. CRIMINAL APPEALS AGAINST THE JUDGMENT DATED 21.5.88 PASSED BY THE LEARNED SESSIONS JUDGE, JALORE IN SESSIONS CASE NO.53/87. DATE OF JUDGMENT : 12th February, 2008 P R E S E N T HON'BLE MR. JUSTICE DEO NARAYAN THANVI Mr. Kishan Lal Vishnoi ) Mr. Laxman Vishnoi ) for Mr. Vijay Bishnoi for the appellants. Mr. S.N.Tiwari, Public Prosecutor. BY THE COURT : 1. These two appeals are directed against the judgment dated 21.5.88 passed by the learned Sessions Judge, Jalore, whereby, -2- he convicted accused appellant Poonma Ram for offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the Act) and sentenced him to undergo 10 years' rigorous imprisonment and to pay a fine of Rs.1 lac, in default of payment of fine to further undergo one year's rigorous imprisonment. The appeal being S.B.Criminal Appeal No.287/1988, filed by accused Babu Lal, is relating to the disposal of the motorcycle, which was recovered from the spot during investigation and was ordered to be confiscated. 2. Facts leading to these appeals are that on 21.7.87, when Swaroop Singh, S.H.O., Police Station Sanchore was petrolling for investigation, he saw two persons on motorcycle coming from village Sanchore. Accused appellant Poonma Ram was driving the motorcycle and one Thakra Ram was sitting on the rear side with one bag. Police tried to stop the motorcycle, but both of them ran away, then police party caught hold of accused appellant Poonma Ram but Thakra Ram ran away. Accused appellant Poonma Ram was having four polythene bags with him. He was taken to the police station, where 3 kilogram and 780 grams of opium was found in the bags. Recovery memo was prepared. Opium was seized along with 30 gram sample each in the packet and on receiving the chemical report, accused appellant Poonma Ram was challaned. Accused appellant -3- Poonma Ram was charged for offence under Section 8/18 of the Act, to which he pleaded not guilty. Prosecution examined six witnesses. Statements of the accused was recorded under Section 313 Cr.P.C. He produced Meharji Ram DW-1 and Babu Lal DW-2 in defence. 3. After hearing the arguments, the learned trial Judge convicted accused appellant Poonma Ram as indicated above and ordered to confiscate the motorcycle, which was recovered from the spot. Learned counsel for the accused appellants has submitted that in this case, neither the police officials, who accompanied S.H.O. Swaroop Singh has been produced nor any information of the seizure proceedings was given to the superior officers. Learned counsel further submitted that there is a material contradiction in the statements of Swaroop Singh PW-3 and Balwanta Ram PW-5 with regard to the recovery and also keeping the samples in tact in the Malkhana till it reached for chemical examination at the State Forensic Science Laboratory. In this connection, he has drawn attention of the Court to the statement of Mada Ram PW-1, who took the malkhana articles at the Police Station. According to the learned counsel, the prosecution has failed to comply with the provisions of Sections 50, 55 and 57 of the Act. With regard to appellant Babu Lal, learned counsel submitted that no notice was given to him -4- before confiscation of the motorcycle. 4. Per contra, learned Public Prosecutor has supported the judgment of the learned trial court and has submitted that the recoveries have been proved and the provisions with regard to non compliance are not mandatory but they are directory. In this connection, he has placed reliance on the decision of the Hon'ble Supreme Court in the case of State of M.P. through C.B.I. etc. Vs. Paltan Mallah and others etc., reported in AIR 2005 SC 733. 5. I have heard learned counsel for the accused appellants and the learned Public Prosecutor. 6. It is an admitted fact that compliance of Section 57 has not been made because neither in the recovery memo Ex.P-2 nor in the statement of the S.H.O., who seized the opium has stated that he informed his superior officers within 48 hours about the particulars of the arrest and the seizure. 7. So far as Section 55 of the Act is concerned, it has been stated by the S.H.O. - Swaroop Singh PW-3 in his statement that he deposited the seized articles of opium containing in four polythene bags in the Malkhana of police station. Amar Singh -5- PW-6 is the Malkhana Incharge, who has stated in his statement that on 21.7.87, he received four polythene bags in sealed condition along with four samples from Swaroop Singh and kept in the Malkhana and handed it over to Constable Maga Ram for depositing four packets of sample at F.S.L. on 28.7.87. Maga Ram PW-1 has stated that on the receipt of four sealed sample bags from head constable Amar Singh, he handed it over to one Parbat Singh of S.P. Office, Jalore along with papers. Parbat Singh forwarded the same to him for depositing them at Jaipur. In the night of 28.7.87, he left for Jaipur by bus and reached there on 29.7.87 and deposited the same. After seeing the receipt Ex.P-1, he stated that he deposited the same on 30.7.87 instead of 29.7.87. Later on, he stated that the samples were given to him by Parbat Singh on 29.7.87 and he left for Jaipur by bus on 29.7.87 and deposited the same on 30.7.87. In this regard, it is pertinent to note that Parbat Singh who handed over the sealed samples to Maga Ram has not been produced. Neither letters given by Amar Singh to S.P. Office, Jalore nor the letters of the S.P.Office, Jalore given to the FSL have been produced to substantiate the case of the prosecution that samples were sealed. The receipt Ex.P-1 also does not bear the seal of the seized articles. This lacuna is fatal to the prosecution case. The requirement of Section 55 of the Act is mandatory, which shows that the officer in-charge of the police station shall -6- keep in safe custody, all the articles seized. This serious infirmity creates heavy doubt as to whether the samples which were deposited in the FSL were kept in tact and were sent for chemical examination in sealed condition, specially in a case, when the recovery has not been made on the spot but all the formalities were completed by bringing the accused at police station. 8. Next contention of learned counsel for the accused appellants that driver of the police jeep Gorkha Ram and constable Manohar Lal have not been produced is also carries weight in view of the fact that independent motbirs Harda PW-2 and Ram Lal PW-4 have turned hostile. Merely because the recovery has been made at police station is not sufficient to connect the accused with the commission of crime specially in an offence where the punishment provided for is stringent and the special law provides mandatory requirement during investigation. 9. The law cited by the learned Public Prosecutor is not helpful to the facts of the present case because the cited case is for an offence punishable under Section 302 IPC, whereas, the present one is under the special law where non compliance creates prejudice to the accused. The learned trial Judge merely -7- on the basis of evidence of police officers convicted the accused while not discussing the mandatory provisions of law as discussed above. 10. So far as seizure of the motorcycle is concerned, against which, the appeal has been filed by appellant Babu Lal, learned counsel for the appellant has submitted that no notice was given to him before confiscation. In this regard, the Proviso to sub- section (2) of Section 63 of the Act is material, which reads as under:- “Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim.” 11. In this Proviso, it is necessary that claim should be made by the person concerned during trial, but no such application was filed by appellant Babu Lal before the learned Judge for release of the motorcycle, therefore, the order of the confiscation of the motorcycle requires no interference. 12. Consequently, the appeal filed on behalf of appellant Poonma Ram S/o Naina Ram is allowed. He is acquitted from -8- the charge levelled against him. He is on bail, his bail bonds stand cancelled. However, the appeal filed on behalf of appellant Babu Lal is dismissed. (DEO NARAYAN THANVI), J. ms rathore