1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR * * * : J U D G M E N T : OM PRAKASH VS. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL NO. 1007 OF 2006 against the judgment dated 21.11.2006 passed by the learned Special Judge, NDPS Cases, Jodhpur in Sessions Case No.25/05 (State Vs. Om Prakash). *** DATE OF JUDGMENT : 13th APRIL , 2009 PRESENT HON'BLE MR. MANAK MOHTA, J. Mr. B.S. Rathore, for the appellant. Mr. Panney Singh , Public Prosecutor. BY THE COURT: This appeal has been filed by accused-Om Prakash against the judgment and order dated 21.11.2006 passed by learned Special Judge, N.D.P.S. Cases, Jodhpur in Sessions Case No.25/05 (State Vs. Om Prakash) whereby the appellant has been found guilty of the offence punishable under Section 2 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act' ) and has been awarded rigorous imprisonment of ten years’ and a fine of Rs.1 lac, in default of payment of fine, to further undergo one year's rigorous imprisonment. The prosecution story, in nutshell, is to the effect that on 14.10.2004 at about 8.05 PM, while ASI Rewant Singh (PW-1) along with the other police officials of P.S. Sanderao, District Pali were going on patrolling duty from Sanderao to Aakarda, it is said that at about 9.20PM, while they were passing on National Highway No.14, from Manwar Hotel, Aadarda, at that time they saw a 'ford' car in a suspicious condition. The ASI then sent a message from wireless to police station Sanderao to the effect that some unknown person had left a 'Ford' car at Manwar Hotel, Aadarda, for which, he has suspicion. On this report, SHO, Ghewar Chand, (PW-11) along with other police personnels, reached on the spot and saw that 'Ford' car bearing regn. No.MH-04-AH-8993 was lying there. It was stated that when ASI Rewant Singh and others went to search the aforesaid car, then four persons 3 came out of the car and ran away, on which the police people followed them but they could not be traced. On search of the car some documents, diaries , mobile phones and 10 plastic bags containing Opium milk , total weighing 44kgs. 320gms. were recovered. After carrying out usual formalities, two motbir witnesses were nominated and search was conducted in their presence. Thereafter, two samples of 30 Grams each containing substance, styled to be Opium, were taken from each bag and sealed on the spot and one set of samples were marked 'A-1 to J-1' and the other control samples were marked 'A-2' to 'J-2'. The remaining 10 bags of contraband were also seized and sealed marked A to J search memo (Ex..P/1), was prepared and specimen of seal affixed thereon. Seizure memo of car and other material Ex.P2 to Ex.P/6) were prepared on the spot in presence of said motbir witnesses. A case vide FIR No.138/2004 (Ex.P/25), P.S. Sanderao, District Pali was registered for the offence under Section 8/18 of the Act and investigation started. During investigation, statements of witnesses were recorded , thereafter, on the basis of the documents relating to said vehicle , the present accused-appellant Om Prakash was found to be the owner of 4 vehicle on the basis of agreement to purchase the said vehicle, thus he was searched and arrested in this case. The seized sample marked 'A-1' to AJ-1 were sent for analysis to FSL and after usual investigation, charge sheet was filed in the court of NDPS Cases, Jodhpur against the accused-appellant for offence under Sections 8/18 of the Act and further investigation was kept pending for other accused persons. Charges under sections 8/18 and 8/25 of the Act were framed against the appellant accordingly, to which the accused denied the charges and claimed trial. The accused was put to trial. During trial, prosecution examined as many as thirteen witnesses, namely, PW-1 Rewant Singh, PW-2 Inderaj, PW-3 Heera Lal, PW-4 Sankhla Ram, PW-5 Bahadur, PW-6 Kan Singh, PW-7 Raja Ram, PW-8 Gajendra, PW-9 Moti Ram, PW-10 Sahi Ram, PW-11 Ghevar Chand, PW-12 Sukhram and PW-13 Anish in support of its case and got exhibited certain documents viz., Ex.P/1 to Ex.P/33. Thereafter, the statement of accused- appellant was recorded under Section 313 Cr. P.C., wherein he denied the allegations levelled against him and stated that 5 Sumer Ram S/o Bhana Ram Bishnoi, resident of Doli took the car for going to his relative's house and the papers pertaining to the vehicle were lying inside the car. It was further stated that he had no knowledge about the transportation of alleged contraband in the said car. He has no concern with the allegedly recovered Opium. He was not the occupant of the car at that time. He claimed to be innocent and stated that he has been falsely implicated. In defence, the accused-appellant examined DW-1 Multan Singh. At the conclusion of trial, after hearing both the sides, the learned Special Judge, NDPS Cases, Jodhpur vide his judgment and order dated 21.11.2006 found the case of prosecution proved against accused-appellant and held him guilty under section 8/18 of the Act and proceeded to convict and sentence him, as mentioned above. Being aggrieved by the aforesaid judgment, this appeal has been preferred. Notice of appeal was given to the respondent-State. Record of the case was called and arguments were heard. 6 During the course of arguments, learned counsel for the accused-appellant submitted that the learned trial court has not properly appreciated and considered the material available on record and has erroneously recorded a finding of guilt, that is not sustainable and is liable to be quashed and set aside. It was contended by the learned counsel for the appellant that from the perusal of the record it is no where revealed that the accused appellant was occupant of the car. It is further revealed from the record that at the time of alleged search and seizure, accused appellant was not present. The alleged car was found lying at an open place. Thus, the accused appellant is not connected with the alleged contraband and he has been wrongly implicated in this case. It was also submitted that the accused appellant has been convicted in this case on the basis of agreement to purchase of car Ex./28, but it was alleged that merely on the basis of being the owner of the car, accused could not be connected with the alleged crime. During the course of argument, learned counsel for the accused appellant submitted that though he is not the 7 registered owner of the car, but he did not disclaim the owner- ship of car, but submitted that at the time of alleged transportation, neither he was occupant of the car nor thereafter any article has been recovered from him so that he could be connected with the case. It was submitted that for holding a person guilty under section 8/18 of the Act, it was obligatory duty of the prosecution, first to prove the possession of the contraband item. Further more, it is required to be proved that the concerned accused person was having knowledge of it. In the present case, any sort of recovery has not been made or shown from the accused , therefore, he could not be held guilty under section 8/18 of the Act. It was urged that the learned trial court has also agreed to this extent that the accused appellant was not the occupant of the car, nor he was present at the time of recovery. But the learned trial court, with the aid of section 35 of the Act, held him guilty under section 8/18 of the Act on the basis of being the owner of the car. But the finding of guilt is not sustainable. Once the trial court came to the conclusion that no recovery has been made from the accused appellant, nor he has been connected with said contraband, thus he could not have been held guilty under 8 section 8/18 of the Act. It was further submitted that however, the police authorities, after investigation, filed charge-sheet against the accused appellant under section 8/18 of the Act but the learned trial court, thereafter framed the charges against the accused appellant under sections 8/18 and 8/25 of the Act but after conclusion of the trial the learned court did not hold him guilty under section 8/25 of the Act and thereby he has been acquitted from the said charge but he has been wrongly held guilt under section 8/18 of the Act. It was submitted that as per aforesaid submissions , the accused appellant could not be held guilty under section 8/18 of the Act as it has not been established from the prosecution side that the contraband item was recovered from him. Further more, neither any nexus has not been proved that the contraband item was of accused appellant. Learned counsel also submitted that for holding a person guilty under section 8/25 of the Act, it is the obligatory duty of the prosecution to prove that the concerned person knowingly had handed over the vehicle for transportation of contraband item. Learned counsel again stressed on the word 'knowingly' 9 and submitted that in this case, not a single witness or any sort of documentary evidence has been produced by the prosecution's side, from which it could be inferred that accused appellant was having knowledge of the fact that the the driver of the said vehicle would carry the alleged contraband item. Thus, in that position, where the prosecution has failed to prove that the accused appellant was having knowledge of carrying contraband item, then no presumption can be drawn. Even though the accused appellant, right from the very beginning, has denied the charges and stated that Sumer Ram, driver of the car, took his car for going to his relative's house, thus he has explained the position with regard to the alleged car. It was also submitted that the prosecution has not been able to establish the charge of having knowledge of contraband item was of the accused appellant. Even the accused reasonably has explained the same. Thus, on the basis of aforesaid submission, it was urged that in this case, the prosecution has utterly failed to prove the charge of section 8/18 of the Act levelled against the appellant. Further, the prosecution has failed to prove that the accused appellant was having knowledge of carrying contraband in the car. He has been 10 acquitted from the charge of section 8/25 of the Act and no appeal has been filed by the prosecution side in that respect. Thus, merely on the basis of being owner of the car, he cannot be held guilty under section 8/18 of the Act or under any offence. It was urged that the learned trial court held him guilty only on the basis of assumption and presumption thus, the finding is not sustainable. It was also submitted that as per prosecution story , Rewant Singh and other police officers were going on patrolling duty , at that time a car was found seen in suspicious condition and it was further alleged that when the police officials reached near the car, the occupant of the car ran away. The prosecution has named 2 persons Rewant Singh and Ramesh but out of them only one witness Rewant Singh has been produced as PW/1 and he has specifically admitted that he could not identify any person. Next person Ramesh has not been produced by the prosecution side for the reasons best known to them. Further it reveals that the search party reached there later on. Thus, except statement of one witness ASI, Rewant Singh, all other witnesses who 11 reached there later on, the statements of other witnesses are not relevant qua the presence of present appellant. Learned counsel in support of his contention also relied on Ram Chandra vs. State of Rajasthan [2003 (1)Cr.L.R. (Raj.)390 ] Inder Sain vs. State of Punjab [1973 SCC (Cri.) 813], Abdul Rashid Ibrahim Mansuri vs. State of Gujarat [ 2000 SCC (Cri.)496 ] Kalekhan vs. State ofM.P.[ 1990 Cri.L.J.1119] Balbir Singh v. State of Orissa [1995 (2)Crimes 158], Megha Jesha vs. State of Gujarat [AIR 1979 SC, 1566] , Lakhan Mahto vs. State of Bihar [ AIR 1966 SC 1742] and Gurmail Singh vs. State of Punjab & Haryana [2002 Cr.L.J.201]. On the other hand, learned Public Prosecutor refuted the contentions placed by the appellant 's side and supported the impugned judgment and further submitted that admittedly accused was the owner of the vehicle , and at first instance four persons were found to be occupant of the vehicle accused being the owner of the vehicle, it would be presumed that among them he was also one of them. Therefore, the learned trial court has rightly held his possession over the contraband 12 item. It was also submitted that being the owner of the vehicle , it will also be presumed that he was having knowledge of carrying the contraband item , i.e . opium milk in the said vehicle. Thus, from both the angles, the accused has been rightly held guilty under section 8/18 of the Act. It was submitted that the accused was not able to rebut the same by producing strong and reliable evidence and urged that the appeal is liable to be dismissed. I have considered the rival submissions and have gone through the record of the case along with the impugned judgment. I have also perused the judgments cited by the learned counsel for the accused appellant. Before adverting to contentions, it would be proper to scan in brief, the evidence produced by the prosecution side. PW-1 Rewant Singh is a police official, he has stated that on the day of incident, he was working as ASI at P.S. Sanderao. On that day, he along with his staff and driver of government jeep, were going on patrolling duty. Near the outskirts of 13 Aakarda, near Hotel Manvar on National Highway No.14, he noticed one car standing on the extreme corner of the road and the doors towards the 'khalashi' side were found open and some people were seen talking loudly. The moment the jeep was stopped for checking properly, four persons straight away ran towards the 'jungle'. The driver was instructed to inform the SHO concerned over VHS set. No person could be apprehended at that time, thereafter, the SHO concerned reached. Two motbirs were called and the search of the car was undertaken. During search, two mobile phones and pocket diaries were recovered and contraband opium (10 bags) wrapped in 'dhoti' weighing 44.320 Kgs. was recovered. From each bags, two samples of 30 Grams each were taken out and sealed on the spot itself. The rest of the opium milk was also sealed and Furd Recovery (Exh.P/1) was prepared and the car was brought to the Police Station. This witness has supported the seizure proceedings but he has no where stated that he identified the accused persons. From the perusal of record, it is revealed that he is the only witness of initial checking . No other police constable was produced. 14 PW-2 Inderraj is an employee of Hotel Manvar. He was produced as motbir witness, but this witness has turned hostile. He stated that the police did not recover any contraband in his presence from car No. MH-04-8993, which was found standing outside the hotel. He alleges that the police people since they knew him, obtained his signatures on blank papers. Thus, this witness has not supported prosecution story. PW-3 Heera Lal stated on oath that he does not know Ram Narayan S/o Pyar Chand, resident of Bhagwanpura. He has turned hostile. Further he has denied the suggestion that Ram Narayan has a brother by the name of Lalchand. He stated that he had no knowledge that Ram Narayan is involved in the business of trafficking of narcotic substance. PW-4 Sankhla Ram stated that on 15.10.2004 he was working as Constable at P.S. Sanderao. He was sent to SP Office by the Ghevar Chand, SHO, P.S. Sanderao for handing over the envelope containing information under Section 57 of the Act and he obtained the receipt (Exh.P10). 15 PW-5 Bahadur stated on oath that on 16.10.2004 he was working as Head Constable in the Crimes Branch of SP, Office, Pali. On that day, Constable-Raja Ram of P.S. Sanderao came to him in connection with FIR No.138/04, along with 10 sealed packets and he, after verifying the documents and the 10 sealed packets, got prepared a forwarding letter and handed over to Raja Ram along with the original letter and packets etc., for depositing the same to Forensic Science Laboratory. Exh.P/13 is the receipt of FSL. This witness further stated that the samples remained intact till they were with him. PW-6 Kan Singh is the Malkhana Incharge. He was also a member of search party. Thus, he has stated on the same lines as that of Rewant Singh (PW-1). He stated that the contraband article was seized and samples were drawn. But this witness also did not say that he identified any accused person on spot. This witness further stated that on 15.10.2004 SHO, Ghevar Chand handed-over seized opium and samples in a sealed condition to him for keeping them in Malkhana and he made entry to that effect in Malkhana Register as Ex.P/14 and thereafter handed over ten sample packets in sealed 16 condition to Constable-Rama Ram for depositing the same with FSL. PW-7 Rama Ram stated that on 14.10.2004 he was posted as Constable at P.S. Sanderao. He, along with the SHO, concerned went at NH-14 reached Aakarda and further stated that thereafter SHO seized the car bearing No.MH-04-AH- 8993 and recovered Opium milk weighing 40.320 Kgs. Out of the ten bags containing contraband opium milk, two samples of 30-30 Grams from each were taken out and the remaining opium milk was sealed as it was. He further stated that on 16.10.2004 he received ten samples marked 'A-01 to J-01' in sealed condition along with documents from HM Thana Kan Singh and then he went to SP, Office, Pali where the Bahadur, HC after checking and verifying the documents, handed over the same with forwarding letter (Exh.P/12) for depositing the same to FSL, then went to Jaipur on 17.10.2004 but on that day being holiday, he got the samples deposited on 18.10.2004 and obtained receipt (Exh.P/13). This witness further stated that the samples remained intact till they remained with him. 17 PW-8 Gajendra was also produced as motbir witness but this witness has not supported the prosecution story and turned hostile. PW-9 Moti Ram stated on oath that on 24.1.2005 he was working as Constable in SP Office, Pali. He stated that on that day Constable-Sukhram came, along with documents pertaining to CR No.138/04 of P.S. Sanderao and he, after preparing the forwarding letter (Exh.P/16), sent it for handwriting examination of the disputed / undisputed signatures to FSL, Jodhpur along with Sukhram. Exh.P/17 is the receipt of that deposit. PW-10 Sahi Ram is the Investigating Officer of the case. He stated that on 15.10.2004 he was working as SHO, P.S. Takhatgarh and he was entrusted the investigation of FIR No.138/04. He stated that he recorded the statements of witnesses. During the course of investigation, he prepared the site-map (Exh.P/18). He further stated that he also prepared the site-map (Ex.P/19) of the place from where the accused- Om Prakash brought the contraband. He obtained the call- 18 details of mobile phones from BSNL Office, which have been exhibited as Exh.P/20 and Exh.P/21. After investigation, he handed-over the investigation file to Ghevarchand, SHO, P.S. Sanderao. In cross examination, he has admitted that during investigation accused appellant did not give any information under section 27 of Evidence Act. This witness has not been able to explain that at whose instance he prepared the site plan ( Ex.P/19). Further, Ex.P/19 site plan does not pertain to the house of accused appellant but it is of an open space. In his statement he has not stated any nexus with the other material i.e. mobile phones and diaries, found during search with accused appellant but stated that these items related to others. PW-11 Ghevarchand stated that on 14.10.2004 he was working as SHO, P.S. Sanderao. He further stated that on the receipt of information of ASI-Revant Singh that four persons ran away from a car, which was standing outside hotel Manvar , he, along with other police officials, reached there. He further stated that Rewant Singh ASI, (PW/1) alongwith Constable- Ramesh, followed them but they ran away taking advantage of 19 darkness. On suspicion, the vehicle was searched in the presence of two motbir witnesses. On search of the car being taken, 10 bags containing contraband-Opium, weighing 44.320 Kgs, two mobile phones, three diaries, one ‘Hutch’ phone packet, one receipt of toll-tax and two photos were recovered. Seizure memo(Ex.P/1) was prepared on the spot. From each bag, two samples of 30-30 Grams were taken out and were marked ‘A-01 to J-01’ and the control sample was marked as ‘A-2 to J-02’ and the relevant memos were prepared. After that, the seized car and the contraband was brought to Police Station and handed-over to HM Police Station Kan Singh, who made entry (Exh.P/14) in the ‘malkhana register’. Case vide FIR No.138/04 under section 8/18 of the Act was registered and investigation was handed over to Sahi Ram. Thereafter, during investigation, the accused-Om Prakash was arrested vide arrest memo (Exh.P/27). PW-12 Sukh Ram stated that on 24.1.2005 he was posted as constable at P.S. Takhatgarh. He further stated that on that day, HC Bharat Singh brought papers in relation to FIR 20 No.138/04 of P.S. Sanderao for sending the signatures of Om Prakash at FSL, Jodhpur. PW-13 Anish is witness of car dealing but he has stated that he had no knowledge whether car No.MH-04-AH-8993 was purchased by Om Prakash from Raju Mehta. He further stated that he made signature on Ex.P/28 at the instance of Raju Mehta. He has turned hostile. Keeping in mind, the contentions raised by the learned counsel for the appellant and from the perusal of the aforesaid evidence, it is abundantly clear that at the time of search, nobody was occupying the car. It was alleged that four persons were occupants of the car but when the police officials reached the place for search, then they ran away, taking the advantage of darkness. None of them were identified. It has come on record that at the first instance Rewant Singh and Ramesh followed them but they could not trace accused persons. Rewant Singh PW/1 in his statement has further stated that due to darkness he could not identify anybody. The prosecution has not produced another named person, 21 Ramesh. Thus, only one witness Rewant Singh, remains for consideration and he has specifically stated that he has not identified any person, thereafter search was conducted in that respect. Further, PW/11 Ghewar Chand in his statement has specifically stated that at the time of search, no accused person was there. The relevant portion of his statement is quoted below :- “यह सह ह वक तल श व बर मदग व हन क प स कई वयकक नह थ ।" The same thing other witnesses have stated that at the time of search, nobody was present in the car. It is alleged that thereafter, seizure proceedings were conducted in the presence of motbir witnesses, but both the motbir witnesses have also not supported the prosecution story. Thus, on the basis of aforesaid material, it has not established that the contraband items were recovered from the possession of the accused appellant. The learned trial court has also not accepted the presence of accused appellant , as occupant of the car, but the learned trial court on the basis of presumption that accused being the owner of the car, held him guilty under 22 section 8/18 of