SULTAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS appeal has been filed by the appellant against the judgment and order of conviction and sentence dated 27.9.2007 passed by Special Judge, NDPS Act Cases (Additional Sessions Judge No. 1) Kota in Special Sessions Case No. 15/2004, arising out of FIR No. 79/2004 of Police Station GRP, Kota convicting the accused appellant under Sections 8/18 of the NDPS Act, 1985 and sentencing him to 10 years' rigorous imprisonment with Rs. 1 lac fine in default thereof to suffer one year's rigorous imprisonment.

(2.) BRIEF facts as per the case of the prosecution is that on a telephonic message from PW.1 Constable Jainarain and PW.5 Constable Om Prakash who were on patrol duty, PW.6 Pooran Mal, Sub Inspector in charge of Police Station GRP Kota, reached near the First Class Gate opposite the RPF Booth, where the constables had detained accused appellant sultan, on suspicion of carrying contraband in his bag. He carried along a kit for the identification of narcotics. PW.5 is the main witness to the search and seizure of the contraband stated to weigh 2 kg. 300 gms. and its deposit thereafter in the Malkhana of the Police Station. Pooran Mal thereafter submitted a written report Ex. P.11 before the SHO, Police Station GRP, Kota Junction, to the effect that he had proceeded to the site on receipt of a telephonic message from PW.l, that he along with PW.5 had detained a suspect named Sultan, resident of Mandsaur in MP on suspicion of carrying contraband, and for him to reach the site with the requisite kit for effecting search and seizure. He further stated in his report that after giving the option to the suspect for getting himself searched in the presence of a Magistrate or a gazetted officer, or by himself, the suspect gave the option of being search by PW.6 Pooran Mal. Efforts were made to procure independent witnesses, but none being available, two of the police staff were made independent witnesses. The police on the basis of this written report registered an FIR No. 79/04 dated 12.4.2004 for the offences under Sections 8 read with Section 18 of the NDPSD Act, 1985 and arrested the accused appellant. The weight of the seized article was stated to be 2 kg. 300 gms. including the packing material. After usual investigation, the Police submitted challan against the accused appellant in the court of Special Judge, NDPS Cases, Kota: The trial court framed the charges against the accused appellant, who denied the same and claimed trial in the matter. The prosecution examined 10 witnesses and -produced many documents. In defence one. witness Diwan Singh DW -1 was produced and examined. The trial court after hearing both the parties came to the conclusion that the accused was guilty as charged and vide judgment dated 27.9.2007 sentenced him to undergo 10 years rigorous imprisonment and to further pay a fine of Rs.1 lac, in default whereof to further suffer imprisonment for one year. Against this judgment this appeal has been preferred by the accused appellant.

(3.) MR . Amarjit Singh Narang, learned counsel appearing for the accused appellant argued that the judgment of conviction and sentence has been passed by the trial Court without taking into consideration the facts and circumstances of the case, material available on record and the legal aspect of the matter. The prosecution has suppressed the true version and the genesis of the' occurrence. From a perusal of the FIR and the case of the prosecution it accused appellant. The whole case of the prosecution is false and concocted. The trial court has not specifically dealt with the evidence in the light of the statements of the prosecution witnesses and the material available on record. The trial Court randomly discussed the evidence and tried to show that the case has been proved against the accused appellant. There is no evidence available on record that the accused appellant had changed his seat in the railway carriage and shifted to another cabin within the same bogey on seeing the policemen PW.1 and PW.5 in. uniform, as they were not wearing their police dress at the time they had left the Police Station for going on patrol duty. The learned counsel has argued that had they been in police dress, there was nothing much to be gained for the accused appellant in going from one to another cabin in the same bogey. The trial court has not properly considered this aspect of the case that the questions under Section 313 Cr.P.C. were not put on the basis of which the accused appellant has been convicted. The trial Court has on the basis of conjecture and surmise that the policemen may possibly have changed into their uniform dress while at the station, while there is no such testimony from the constables PW.1 and PW.5 themselves. The trial court has failed to note the glaring discrepancy, wherein at entry No. 693 at 7.30 a.m. in Roajnamcha, constable Om Prakash Jainarain and Sahib Singh are shown to have proceeded for patrol duty in plain clothes. There is also a discrepancy in the stated age of the accused appellant, which in the Ex. P. 14 is 20 years, and his address is given as resident of Manpura (M.P.) and in the hand written reproduction of the said entry, Ex. P. 14 A is stated to be 30 years and his address is given as resident Manpura Distt. Mandsaur (M.P.) The prosecution has given the benefit of doubt to the prosecution instead of to the accused. A bare perusal of the judgment of conviction and sentence it is clear that the trial court has not properly considered the statement of the defence witness. The trial court has neither properly appreciated nor critically examined the statements of the prosecution witnesses and failed to consider those part of their statement, which are favourable to the accused appellant. The learned counsel has placed reliance on 2005 Cr.L.J. 33 Balu vs. State of Rajasthan, 2007 (24) Criminal CC 671 Ashok vs. State of Rajasthan, S.B. Criminal Appeal No. 374 of 2001 Raju Munim vs. State of Rajasthan decided on March 2, 2006, AIR 2012 SC 1619 = 2012 (2) RLW 1706 (SC) Myla Venkateswarlu vs. State of Andhra Pradesh (Criminal Appeal No. 611 of 2012 decided on 4.4.2012) 2011 RCC (SC) 683 = 2011(3) RLW 1964 (SC) Narcotics Central Bureau vs. Sukh Dev Raj Sodhi, (2011) 1 SCC 609 Vijay Singh Chandubha Jadejs vs. State of Gujarat (Criminal Appeal No. 943 of 2005 decided on 29.10.2010.