PANCHA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 6-4-94, passed by the Special Judge, N. D. P. S. Cases, Jodhpur, by which the learned Special Judge convicted the accused-appellants for the offence under Section 17, of the Narcotic Drugs and Psychotropic Substances Act (for short, 'the Act') and sentenced each of them to ten years' rigorous imprisonment and a fine of Rs. 1,00,000.00 each and in default of payment of fine further to undergo one year's rigorous imprisonment.

(2.) Accused-appellants, alongwith one Smt. Keli, were tried by the learned Special Judge, N. D. P. S. Cases, Jodhpur, for contravention of the provisions of the Narcotic Drugs and Psychotropic Substances Act. The appellants were tried for the offence under Section 17, of the Act while Smt. Keli was tried for the offences under Sections 17, and 25 of the Act. The case of the prosecution is that on 25-11-1993, at about 1.15 p.m., PW 1 Bhagwat Singh, Station House Officer, Police Station, Soorsagar, Jodhpur, received some secret information from one Mukhbir that Smt. Keli, Pancha Ram and Bhiya Ram are engaged in the illegal business of selling the opium and they are preparing the opium out of the opium milk in the house of Smt. Keli situated in Bhakri Bas, Soorsagar, Jodhpur, recorded the information (EX. P.1) in the Roznamcha, forwarded the same to the Superintendent of Police, Jodhpur, and along with other police personnel, proceeded towards the house of Smt. Keli situated in Bhakri Bas, Soorsagar, Jodhpur. There they found accused Bhiya Ram and Pancha Ram preparing opium in one of the rooms of the house of Smt. Keli. The S. H. O. seized the opium which was lying in a Paarat (shallow-disc of brass) and recovered other articles which were used by the appellants in preparing the opium. The search of the house of Smt. Keli and the recoveries of the articles were made by PW 1 Bhagwat Singh, S. H. O., in the presence of two Motbir witnesses, viz., PW 3 Ram Singh and PW 4 Goverdhan Das. After the arrest of the accused and the recoveries being made, the police party came to Police Station, Soorsagar, Jodhpur, registered an F. I. R. and thereafter the investigation was taken up by PW 9 Rugha Ram - the other Station House Officer posted at Police Station, Soorsagar, Jodhpur. The prosecution, in support of its case, examined nine witnesses. The accused, in their defence, examined two witnesses, viz., DW 1 Munji and DW 2 Bhika Ram. PW 1 Bhagwat Singh, S. H. O., after receiving the secret information, entered the same in the Rozanamcha, forwarded it to the Superintendent of Police, Jodhpur, proceeded towards the scene of the occurrence, arrested the accused, made the recoveries, lodged the F. I. R. and deposited the articles in sealed condition in the Malkhana of the police station with PW 2 Bhika Ram, who was the Malkhana Incharge at Police Station, Soorsagar. PW 2 Bhika Ram was the Head Constable, who accompanied PW 1 Bhagwat Singh along with other police personnel and was a witness to the recoveries and the arrests of the accused. He is, also, the person, being the Malkhana Incharge, in whose possession the sealed articles were deposited and he sent the same for F. S. L. examination with PW 5 Ganga Ram. He has, also, stated that the seals on the articles remained intact throughout the period since they were deposited in the Malkhana till they were handed-over to PW 5 Ganga Ram for taking them for F. S. L. Examination to the State Forensic Science Laboratory, Jaipur. PW 5 Ganga Ram is the Constable, who took the sealed articles from the Malkhana for F. S. L. Examination firstly to the Office of the Superintendent of Police and after obtaining the forwarding letter from the Office of the Superintendent of Police, he took the samples for F. S. L. examination to the aforesaid Laboratory and deposited the same there. He has, also, stated that the seals on the samples remained intact. PW 6 Virendra Singh was the Constable posted in the Office of the Superintendent of Police, Jodhpur, who, after receiving the articles, got the forwarding letter prepared and signed and handed-over the same to PW 5 Ganga Ram. He has, also, stated that the seals on the articles were found intact. PW 3 Ram Singh and PW 4 Goverdhan Das are the two Motbir witnesses to the recoveries made from the accused from the house of Smt. Keli. They are, also, the witnesses to the arrests of the accused but they have not supported the prosecution case and were declared hostile. PW 7 Habib and PW 8 Gumana Ram are the two witnesses, who are the residents of Bhakri Bas, Soorsagar, Jodhpur, and are living in the nearby houses to the house of Smt. Keli. Their statements are to the effect that Deda Ram- the husband of Smt. Keli - along with Smt. Keli and two minor daughters, was living in the adjoining house, from where the recoveries were made. According to them, the boundary wall of the house is 3 1/2 feet in height and the area is in a Kacchi Basti. The main door of the house is broken and could not be closed. It had two rooms. In one room Deda Ram and his family members were living while the other room was occupied by the labourers who were employed in the construction work of a house ***** by DW 1 Munji. PW 9 Rugha Ram was the another Station House Officer, who, after loding the F.I.R., took up the investigation, recorded the statements of the witnesses and thereafter presented the challan. DW 1 Munji has stated that certain workers were working in the construction of his house and Pancha Ram and Bhiya Ram (the appellants) were, also employed by him. According to him, while the accused-appellants were doing the construction work, they were taken with them by the police. Similar is the statement of DW 2 Bhika Ram. The learned Special Judge, after considering the evidence produced by the respective parties, did not believe the defence version and accepted the prosecution case so far as accused-appellants Pancha Ram and Bhiya Ram are concerned; convicted and sentenced the appellants, as stated above, but acquitted accused Smt. Keli of the offences she was charged with. It is against this judgment dated 6-4-1994, passed by the learned Special Judge that the appellants have preferred this appeal.

(3.) It is contended by the learned counsel for the appellants that the information from the Mukhbir was received by PW 1 Bhagwat Singh, the S. H. O., at 1.15 p.m. and he recorded the same in the Roznamcha, sent the information to the Superintendent of Police, Jodhpur, at 2.00 p.m. and then proceeded to the place of the occurrence for recovery etc. This shows that there was no urgency in the matter and he could have obtained the warrant and as there was no urgency in the matter, the proceeding of PW 1 Bhagwat Singh without obtaining the warrant to the place of the occurrence, is wholly without jurisdiction. It has, also, been contended by the learned counsel for the appellants that though it has been mentioned that the investigation was made by PW 9 Rugha Ram, but the statements of the witnesses PW 1 Bhagwat Singh and PW 9 Rugha Ram clearly show that no investigation was made by PW 9 Rugha Ram and as the recoveries were made by PW 1 Bhagwat Singh and he himself has conducted the investigation, therefore, the same vitiates the whole trial as well as the conviction and sentence and as such the appellants deserve to be acquitted. It has, also, been contended by the learned counsel for the appellants that the mandatory provisions of Section 50, of the Act have not been complied with and the appellants were not informed regarding their right to be searched in the presence of a gazetted officer or a Magistrate and, therefore, they deserve to be acquitted. Lastly, it has been contended by the learned counsel for the appellants that the evidence of the prosecution witnesses, so far as accused Smt. Keli is concerned, has been disbelieved by the learned trial Court and, therefore, the appellants, also, deserve to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that the compliance of the provisions of Section 50 of the Act has properly been made and there was an urgency in the matter and PW 1 Bhagwat Singh has recorded the reasons and sent the report to his immediate officer superior and has, thus, complied with the provisions of Section 42, of the Act, also. It has, also, been contended by the learned Public Prosecutor that the investigation, in the present case, was conducted by PW 9 Rugha Ram and not by PW 1 Bhagwat Singh and the prosecution has been able to prove the case against the accused-appellants beyond a reasonable manner or doubt and the judgment, passed by the learned lower court, does not require any interference.