-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Bhaga Ram & anr. Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.919/2003 against the judgment dt.26.7.2003 passed by the Special Judge, NDPS Cases, Jodhpur, in Sessions Case No.37/2001. Date of Judgment: July 09, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.Jagmal Singh Choudhary) Mr.Suresh Kumbhat ) Mr.Pradeep Choudhary ) for appellants. Mr.Vishnu Kachhwaha, P.P. BY THE COURT : 1. This is an appeal against the judgment dated 26.7.2003 of the learned Special Judge, NDPS Cases, Jodhpur, whereby he convicted accused appellants Bhaga Ram and Devi Nath for the offence u/s.8/18 of the Narcotic Drugs & Psychotropic Substances Act, -2- 1985, hereinafter referred-to as “the Act” and sentenced each one of them to ten years' R.I. & a fine of Rs.one lac and in default, to further undergo one year's additional R.I. 2. Facts leading to this appeal are that on 6.3.2001 at 2.15 P.M., the S.H.O. Raj Singh of Police Station Siriyari, District Pali lodged F.I.R. that on 5.3.2001 at 3.20 PM, when he got a wireless message about absconding of accused Madhiya from Desuri Court in police custody, he alongwith police party reached for patrolling. On 6.3.01 at 10.15 AM, he saw two persons coming on a Hero Honda motor cycle, which was having no number. When they were asked about their whereabouts, driver told his name to be Bhaga Ram and the other person was Devi Nath having his body covered with `shawl'. In his `shawl', one bag was hidden in which he found smell of opium. He then called two motbirs Govind Singh and Tej Singh through constable Chandra Shekhar and after giving intimation to the above two persons, who were on motor cycle, for search by the Gazetted Officer, they gave their consent for search by the S.H.O. On search, he found opium in two bags. Opium measuring 5.100 kg. was found from -3- one polythene bag and from another polythene bag, opium measuring 5.40 kg. was found about which the accused were having no licence. The opium was accordingly seized by taking sample of 30 gms. from each packet and kept in plastic bags covered with tin container and they were marked as S-1 and S-2 and the controlled opium was marked as C-1 and C-2. Since the accused were having no valid licence of the opium, the samples were sent for chemical examination and after investigation, the challan was filed against both the accused u/s.8/18 of the Act. The accused were charged accordingly to which they pleaded not guilty. The prosecution examined 8 witnesses. The statement of the accused were recorded u/s313 CrPC. They produced Gayad Ram DW1 and Shravan Nath DW2 in their defence. 3. After hearing the arguments, the learned trial Judge convicted both the accused appellants as above. 4. Learned counsel for the appellants has assailed the judgment of the trial Court on two counts. Firstly, he has submitted that Raj Singh, PW 8, who conducted the search, was not a Gazetted Officer and was not -4- authorized to conduct search. He even did not send the report to his superior officer as he was simply sub inspector. Non compliance of Ss.42 & 43 is fatal to the prosecution case. Secondly, the sample was taken of 30 gms. from each of the two packets but when it was sent to the Forensic Science Laboratory, it was only 22.393 gms. and 22.642 gms. respectively, which were enclosed in respective polythene bag, repacked in circular metallic tin container. As per the result of the examination, the sample contained in packets marked S-1 and S-2 gave positive test for the presence of coagulated juice of opium poppy having 9.60% morphine in each sample. According to the learned counsel, this variance of about 27% less in quantity of the sample received by the F.S.L. creates heavy doubt with regard to the samples collected by the searching officer. According to the learned counsel, the seals were also not intact as per the version of the prosecution witnesses, who say that the seal was in Hindi but infact it was in English, in addition to the developed theory of putting samples in a tin container. In support of his contention, learned counsel for the appellants has placed reliance on the following three cases viz; (i) Rajesh Jagdamba Avasthi vs. State of Goa reported in -5- (2006) 1 SCC (Cri) 150; (ii) Raju Munim vs. State of Rajasthan reported in 2006(2) CrLR (Raj.) 1041; and (iii) Ramswaroop Jaiswal vs. State of Rajasthan reported in 2007(1) CrLR (Raj) 505. 5. Per contra, learned Public Prosecutor has submitted that there is a compliance of Sec.42 of the Act and if the weight of the sample is found little less in a situation when the seals of the samples were found intact, the plea of tampering cannot be sustained. In support of his contention, he has also placed reliance on the following two cases of Hon'ble Supreme Court viz; (i) Madanlal vs. State of Himachal Pradesh reported in 2003 Cri.L.J.3868 and (ii) G.Srinivas Goud vs. State of A.P. reported in 2005 Cri.L.J.4367. 6. Having considered the rival contentions of the learned counsel for the appellants and the learned Public Prosecutor with regard to compliance of Section 42 of the Act, it is clear that under sub-section (1) of Section 42 of the Act, any officer above the rank of a constable, sepoy or peon of the departments of revenue, drugs control, excise, police or any other department of a State Govt. as is empowered in this -6- behalf by general or special order of the State Government and has reason to believe from personal knowledge or information given by any person and taken down in writing that offence under the Act has been committed, he may conduct the search between sunrise and sunset. The proviso to this sub-section (1) to Section 42 also says that if search warrant or authorization 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 sunset and sunrise after recording the grounds of his belief. Thereafter, under sub section (2), he will send the copy to the superior officer. Thus, Section 42 deals with those officers, who are not gazetted in rank but are above the rank of peon, sepoy or constable and having authorized and empowered by the State Govt. by general or special order, whereas u/s.41 of the Act, no such report is required to be sent to his superior officer, when warrant and authorization has been issued by the magistrate and the search has been conducted by an officer of the gazetted rank. Here, in the present case, Sub Inspector Raj Singh is not a gazetted officer but by virtue of Notification No.F-1(3) FD/EX/85-1, -7- dated 16.10.1986 issued by the State of Rajasthan and published in the Rajasthan Gazette, Extra, Part IV-C (II), all Inspectors of Police and Sub Inspectors of police, posted as Station House Officer, have been authorized to exercise the powers mentioned in Section 42 of the said Act. This Notification reads as under: “S.O. 115.- In exercise of the powers conferred by Section 42 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (Act No.61 of 1985) the State Government hereby authorise all Inspectors of Police, and Sub-inspectors of police, posted as Station House Officers, to exercise the powers mentioned in Section 42 of the said Act with immediate fact: Provided that when power is exercised by Police Officer other than Police Inspector of the area concerned such officer shall immediately hand over the person arrested and articles seized to the concerned Police Inspector or S.H.O. of the Police Station concerned.” 7. From the statement of Raj Singh PW 8, it is clear in the opening line of examination in chief that on 6.3.2001, he was S.H.O. of Police Station Siriyari and there is no cross examination on this point that he was not so posted. Since PW 8 Raj Singh was the S.H.O. on the relevant date of search, therefore, he was duly authorized to make a search under Sec.42 of the Act, who sent his detailed report Ex.P.15 to the -8- Superintendent of Police on the same day by endorsing a copy to the S.P., Pali and proved by constable Ghanshyam, PW 4. Thus, compliance of sub-sections (1) and (2) of Section 42 of the Act has been made. That apart, the grounds of his belief to be recorded, it is clear from the search memo Ex.P.1 that SHO Raj Singh went for patrolling and doing Nakabandi in connection with the absconding of one accused Madhiya from Desuri Court in police custody and during that time, they saw the accused persons coming on the motor cycle, therefore, there was no occasion to record the grounds of belief in the Rojnamcha. This requirement is mandatory only when there is a definite information of drug trafficking. The law cited by the learned Public Prosecutor in Madanlal's case and G.Srinivas Goud's case (supra) also find favour with the arguments advanced by the learned Public Prosecutor, as in both the cases, the officers were authorized to search and the report was sent to the superior officers. Thus, in the present case, there is a compliance of Section 42 of the Act and there is no force in the contention of the learned counsel for the appellants that search was not effected by an authorized person. -9- 8. The next contention of the learned counsel for the appellants is with regard to non-compliance of Section 55 of the Act, which deals with duty of the police to take the charge of articles seized and delivered. In this regard, learned counsel for the appellants has drawn the attention of this Court towards FSL Report Ex.P.28. In this report, the description of articles, the seals of which were said to be intact, has been given as under: “Each of the packet marked S-1 and S-2 contained dark brown coloured semisolid sticky substance having characteristics smell enclosed in respective polythene bag which was repacked in Circular metallic tin container. The substance contained in packet marked S-1 & S-2 weighed 22.393 gms. and 22.642 gms. alongwith polythene bags respectively.” 9. According to this description, there were two packets marked S-1 and S-2 measuring 22.393 gms and 22.642 gms. of samples packed in polythene bag and repacked in circular metallic tin container. According to the recovery memo, both the samples were of 30 gms. each in weight and kept in iron tin covered with white cloth, marked as S-1 and S-2 and controlled samples as C-1 and C-2 of 30 gms. each. When the samples were of 30 gms. each, how it reached in intact seal which is -10- reported to be about 27% less than the sample quantity i.e. 22.393 gms and 22.642 gms. This is a mystery. In the description of articles mentioned in Ex.P.28, it is stated that the samples were repacked in circular metallic tin container but Raj Singh, SHO PW 8, has nowhere said about this metallic tin container in his examination in chief and on the contrary, in para 9 of his statement, he has stated that the samples were kept in plastic packets. The specimen seal has been shown in Ex.P.25. Though, the motbirs Govind Singh and Tej Singh have turned hostile but Head Constable Bhanwarlal, PW 3, who was Malkhana Incharge at the relevant time, made entry of these samples in Ex.P.23, which is not on the file but this witness has nowhere said that these samples were repacked in metallic tin container. He has deposed in the last line of his examination in chief that the samples were sent to the F.S.L. vide Ex.P.24 and the receipt of which was Ex.P.18 but in the Ex.P.18 and Ex.P.24, it has nowhere been mentioned that sealed packets were in metallic tin container. The samples were sent through Food Constable Hukam Singh PW 5 but he has also nowhere said that the packets were in the metallic tin container and the seal was in Hindi, whereas it is in English. The -11- same is the version of Kishanlal, PW 6, who has also nowhere said that the packets were in the metallic tin container. Thus, whether the samples were in the metallic tin container or in the plastic bags creates heavy doubt as to which sample was sent for chemical examination, especially when the quantity of the samples has been found to be about 27% less, which is not a minimal quantity so as to presume that the same might have been due to moisture. 10. In Rajesh Jagdamba Avasthi's case (supra), the Hon'ble Supreme Court has held that credibility of recovery proceeding is considerably eroded if the quantity found by the analyst is less than the quantity sealed and sent to him. In the cited case, the Charas was found from the shoes of the accused. In right shoe, it was 100 gms. and in left shoe, it was 115 gms. and both the sealed envelopes were marked as `A' and `B' respectively. The quantity found in envelope `A' was 98.16 gms. and in envelope `B' 82.54 gms. In this case, the High Court found that in packet `A', the quantity was minimal, therefore, the appellant was convicted but the Hon'ble Supreme Court came to the conclusion that when there is one search, it cannot be -12- said that it was found minimal in one packet. The relevant observations of the Hon'ble Supreme Court in para 14 are as under: “14. We do not find it possible to uphold this finding of the High Court. The appellant was charged of having been found in possession of Charas weighing 180.70 gm. The charas recovered from him was packed and sealed in two envelopes. When the said envelopes were opened in the laboratory by the Junior Scientific Officer, PW 1, he found the quantity to be different. While in one envelope, the difference was only minimal, in the other, the difference in weight was significant. The High Court itself found that it could not be described as a mere minor discrepancy. Learned counsel rightly submitted before us that the High Court was not justified in upholding the conviction of the appellant on the basis of what was recovered only from envelope A ignoring the quantity of charas found in envelope B. This is because there was only one search and seizure, and whatever was recovered from the appellant was packed in two envelopes. The credibility of the recovery proceeding is considerably eroded if it is found that the quantity actually found by PW 1 was less than the quantity sealed and sent to him. As he rightly emphasised , the question was not how much was seized, but whether there was an actual seizure, and whether what was seized was really sent for chemical analysis to PW 1. The prosecution has not been able to explain this discrepancy and, therefore, it renders the case of the prosecution doubtful.” 11. While relying upon this judgment of the Hon'ble Supreme Court, this Court at Jaipur Bench in Raju Munim's case and Ramswaroop Jaiswal's case (supra), -13- wherein the sample was found to be less in quantity by the FSL than the sealed, came to the conclusion that this discrepancy creates serious doubt in the prosecution case and the accused appellants were acquitted. Here, in the present case, as discussed above, the difference is not minimal due to moisture but there is a substantive difference of about 27% less in quantity, which creates heavy doubt with regard to sealing of sample, though they might have reached to the FSL in intact seal. This difference not only creates doubt about sealing of the sample whether in plastic packets or in circular metallic tin container but also creates doubt on the recovery itself. 12. Consequently, this appeal is allowed. While setting aside the conviction of the accused appellants Bhaga Ram and Devi Nath for the offence u/s.8/18 of the Act recorded by the Special Judge, NDPS Cases, Jodhpur vide his judgment dt.26.7.03, they are acquitted of the charge levelled against them. They are in custody. They shall be released forthwith, if not required in any other case. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS