[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 1173/2002 MITHU LAL & ORS. Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 27.08.2002 PASSED BY THE DISTRICT & SESSIONS JUDGE, AJMER IN CRIMINAL CASE NO. 9/2001. Date: 04/09/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Biri Singh Sinsinwar and Mr. V.K. Mishra for the accused-appellants. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the impugned judgment dated 27.08.2002 passed by the District & Sessions Judge, Ajmer, whereby the accused-appellants have been convicted under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act of 1985') and sentenced to undergo rigorous imprisonment for 10 years with a fine of Rs. 1,00,000/- each, in default of payment of fine to further undergo rigorous imprisonment for 15 months each. 2. Briefly stated the facts of the case are that on 21.04.2001 at about 11.30 p.m., an information was received by the SHO PW10 Bhanwar Dan at Police Station Sarwad from an informant to the [2] effect that Mithu Lal S/o Sujan, R/o Bherukheda and Mithu Lal S/o Hukma, R/o- Goyla carrying opium doda- post in a Mahendra Jeep bearing No. RJ-01/G-4471 will pass through Arwad Circle to Goyla. Superintendent of Police and Additional Superintendent of Police, Ajmer City were informed about the message and Circle Officer, Kekri was also informed to this effect. Thereafter the SHO along with police party reached at Arwad Circle at about 12.45 a.m. in the night and the Circle Officer, Kekri also reached there. At about 1.30 a.m., the jeep was intercepted, but due to darkness one person made himself scarce and three persons were caught and stopped. Upon asking about their identity, they disclosed their names as Mithu Lal S/o Hukma, R/o Goyla, Gopal S/o Surajmal @ Sujan, R/o Bherukheda and Ramswaroop S/o Chatra, R/o Bherukheda. After following due process of law, search was conducted and as many as 8 bags containing opium doda-post were recovered from the jeep. The accused were not having valid licence for possessing the same. Upon weighing the opium doda-post recovered from the accused, total weight of the same comes to 216.500 Kgs. Thereafter sample of 500 gms. from each bag was taken and the same was sent to FSL for chemical examination. After taking samples, the bags were sealed and marked and a case under Section 8/18 of the Act of 1985 was registered against the accused- appellants and they were arrested. Subsequently [3] challan for the aforesaid offence was filed by the police in the Court. 3. The trial Court after having gone through the material collected during investigation and placed before it and considering the rival submissions of the respective parties, framed charge under Section 8/18 of the Act of 1985 against the accused-appellants, who denied the charges. The prosecution in support of its case examined as many as 10 witnesses. The accused-appellants were also examined under Section 313 Cr.P.C. 4. District & Sessions Judge, Ajmer considering the rival submissions and upon perusal of the evidence and material available on the record, vide its judgment dated 27.08.2002 convicted and sentenced the accused-appellants in the manner stated herein above. 5. Learned counsel for the accused-appellants does not want to challenge the impugned judgment on merit and only submits that since the accused- appellants have already undergone the sentence of more than 6 years and 4 months in custody, therefore, looking to the facts and circumstances of the case and in view of the ratio decided by the Hon'ble Supreme Court in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control [4] Bureau, reported in 2008 Cr.L.R. (SC) 401, the sentence of rigorous imprisonment for 10 years awarded to each of the accused-appellant be reduced to the period already undergone by them. 6. I have heard rival submissions of the respective parties and carefully gone through the impugned judgment dated 27.08.2002 passed by the District & Sessions Judge, Ajmer. I also scanned the evidence and the material available on the record. 7. It is no doubt that 8 bags containing doda- post were recovered from the possession of the accused-appellants and upon weighing, the total weight of the same comes to 216.500 Kgs. and as per the Schedule appended with the Act of 1985, the commercial quantity of doda-post is 50 Kgs. Thus, admittedly the quantity of doda-post recovered from the possession the accused-appellants is more than the commercial quantity. 8. I have also carefully gone through the FSL Report Ex.P15, according to it, on microchemical examination extract of the sample contained in each of the packet marked A/1, B/1, C/1, D/1, E/1, F/1, G/1 and H/1 gave positive tests for the presence of chief constituents of opium, hence the samples are of dried crushed capsule of opium poppy from which juice has been extracted. [5] 9. I have also considered the submissions made on behalf of the accused-appellants that recovery of doda-post was not made effective in the presence of independent witnesses and it is no doubt that the independent witnesses, Motbirs were not present at the time of seizure of contraband and the accused- appellants were arrested on spot. Further, as per the FSL report, it is proved that doda-post was recovered from the possession of the accused- appellants, though the accused-appellants have challenged the impugned judgment on the ground that seal of the samples was also defective. 10. I have also carefully scanned the judgment referred by the learned counsel for the accused- appellants, rendered by the Hon'ble Supreme Court in the case Avtar Singh and Ors. Vs. State of Punjab, reported in 2003 R.C.C. (SC) 43, wherein the Hon'ble Supreme Court while dealing with Section 15 of the Act of 1985, has observed as under:- “Appellants 1 and 2 were sitting in a Truck driven by Appellant 3- 16 bags of poppy husk was on the truck- No ascertainment of the role played by the appellants and the nexus with the offending goods- No question was asked from appellant u/s. 313 Cr.P.C. about possession of poppy husk- Held, possession was to be established before the accused were punished u/s. 15 of the Act- The word 'possession' no doubt, has different shades of meaning and it is quite elastic in its cannotation- It is difficult to [6] reach such conclusion beyond reasonable doubt- It transpires from evidence that appellants were not the only occupants of the vehicle. One of the persons who was sitting in the cabin and another sitting at the back of the truck made themselves scarce after seeing the police and the prosecution could not establish their identity, it is quite probable one of them could be custodian of the goods whether or not he was the proprietor. These persons were merely sitting on bags, in the absence of proof of anything more, cannot be presumed in possession of the goods.” 11. Hon'ble the Supreme Court in head note 'H', has further observed as under:- “H: Presumption u/s. 114 Evidence Act and Section 54 NDPS Act without eliciting answer during examination u/s. 313 Cr.P.C., effect of- Silence or failure to explain circumstances in which the appellants were travelling in the vehicle at odd hours, is one strong circumstance can be put against them. A case drawing presumption u/s. 114 of the Evidence Act can be made out then to prove the possession of the accused, but the fact remains that in the course of examination u/s. 313 Cr.P.C., not even a question was asked that they were the persons in possession of poppy husk placed in the Vehicle- Failure to elicit answer on such a crucial aspect as possession, is quite significant. Held, presumption u/s. 114 of the Evidence Act, improper- The High Court resorted to presumption u/s. 35 NDPS Act which relates to culpable state of mind, without considering the aspect of possession- The trial Court invoked presumption u/s. 54 NDPS Act without addressing itself to the question of possession [7] approach of both courts, erroneous in law.” 12. Applying the ratio decided by the Hon'ble Supreme Court in the case of Avtar Singh and Ors. Vs. State of Punjab (supra), in the instant case so far as question of possession is concerned, the accused-appellants were asked by the prosecution while recording their statement under Section 313 Cr.P.C., but similarly it was the admitted case of the prosecution that in the night when the jeep was intercepted by the police party, no independent witness was available at that time. 13. The prosecution is able to establish the case against the accused-appellants beyond reasonable doubt that the accused-appellants were carrying contraband without having any valid licence and upon weighing the contraband i.e. doda-post recovered from the accused-appellants, total weight of the same comes to 216.500 Kgs., which is more than the commercial quantity, but looking to the peculiar facts and circumstance of the case, considering the fact that the accused-appellants have already undergone the sentence of more than 6 years and 4 months in custody and in view of the ratio decided by the Hon'ble Supreme Court in the case of E. Micheal Raj. Vs Intelligence Officer, Narcotic Control Bureau (supra), the ends of justice [8] would be subserved if the accused-appellants are sentenced to the period already undergone by them in custody with a fine of Rs. 1,00,000/-, as awarded by the trial Court and in default of payment of fine of Rs. 1,00,000/-, the accused-appellants will have to undergo the sentence as awarded by the trial Court i.e. rigorous imprisonment for 15 months each. 14. Consequently, the impugned judgment dated 27.08.2002 passed by the District & Sessions Judge, Ajmer so far as convicting the accused-appellants under Section 8/18 of the Act of 1985 is concerned, the same is upheld, but instead of sentence of rigorous imprisonment for 10 years awarded to each of the accused appellant, the accused-appellants are sentenced to the period already undergone by them in confinement with a fine of Rs. 1,00,000/-, and in default of payment of fine, each of the accused- appellant will have to undergo rigorous imprisonment for 15 months, as awarded by the trial Court. 15. Only after depositing the amount of fine of Rs. 1,00,000/-, accused-appellants (1) Mithu Lal S/o Hukma, (2) Ramswaroop S/o Chatra and (3) Gopal S/o Surajmal @ Sujan, who are presently lodged in jail, shall be set at liberty forthwith, if not required to be detained in connection with any other case. [9] 16. In the result, the present criminal appeal is partly allowed and the impugned judgment dated 27.08.2002 passed by the District & Sessions Judge, Ajmer is modified to the extent as indicated herein above. (K.S. RATHORE), J. /KKC/ (Hearing/Reserved)