REWANT RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal is directed against the judgment dated 24-1-94, passed by the Special Judge, N.D.P.S. Cases Court, Jodhpur, by which the learned Special Judge convicted the appellant for the offences under Section 18 of the Narcotic Drugs and Psychotropic Substances Act and under Section 3/25 of the Indian Arms Act and sentenced him to undergo ten years' rigorous imprisonment and a fine of Rs. 1,00,000.00 and in default of payment of fine further to undergo one year's rigorous imprisonment for the offence under Section 18 of the Narcotic Drugs and Psychotropic Substances Act (in short, 'the N.D.P.S. Act') and one year's rigorous imprisonment and a fine of Rs. 500.00 and in default of payment of fine further to undergo one month's rigorous imprisonment for the offence under Section 3/25 of the Indian Arms Act.

(2.) Appellant Rewant Singh was tried by the learned Special Judge, N.D.P.S. Cases, Jodhpur, for the offences under Sections 8/17 and 18 of the N.D.P.S. Act and Section 3/25 of the Indian Arms Act. The case of the prosecution is that on 5-5-92, at about 9.40 a.m., PW 10 Shiv Singh, S.H.O., Police Station, Phalsund, received a secret information from some Mukhbir that an opium-smuggler with some opium has come to Swamiji Ki Dhani and from there he will proceed to some other place after taking tractor No. RSQ 5596 of Swamiji on hire. This information was recorded by the Station House Officer, Shiv Singh (PW 10) in the Roznamcha as is required under Section 42(1) of the N.D.P.S. Act. He, also, informed this fact to the Deputy Superintendent of Police Pokaran his immediate officer superior. PW 9 Vikram Singh, Deputy Superintendent of Police on receiving the information, also, accompanied Shiv Singh, S.H.O., to Swamiji Ki Dhani along with PW 7 Nanak Ram H.C., PW 1 Girdhari Singh LC. and other police personnels of Police Station, Phalsund, in a Gypsy jeep. This Gypsy Jeep was being driven by PW 2 Agar Singh, Driver. They reached Swamiji Ki Dhani, where they were informed that the accused, on a tractor had gone towards Heere Ki Dhani. They followed the accused and five kilometers away of Heere Ki Dhani, they saw a tractor proceeding towards Heere Ki Dhani. On seeing the police party, the accused, who was sitting on the pillion seat of the tractor, jumped from the tractor from the back side and tried to run away, whereupon PW 1 Girdhari Singh and PW 7 Nanak Singh H.C. chased the accused and caught-hold of him after covering a distance of about thirty paces. The search of the accused was thereafter taken in the presence of PW 9 Mr. Vikram Singh, the Deputy Superintendent of Police and the other police personnels and PW 3 Khushalpuri the driver of the tractor, after giving the search of the members of the raiding party. On search, from one packet, which the accused was carrying, opium milk weighing 9.900 kgs. was found in a polythene bag put inside the bag carried by the accused. Two samples of 30 grams each were taken and the remaining article was seized and sealed along with the samples. The accused was, thereafter, arrested and was brought to Police Station, Phalsund. The sample was, thereafter, sent for chemical examination to the State Forensic Science Laboratory, Jaipur, through PW 6 Chain Singh Constable, who first took the sample to the Office of the Superintendent of Police, Jaisalmer and after obtaining a forwarding letter therefrom, he took the sample to the aforesaid laboratory at Jaipur and deposited the same there. On chemical examination, the sample was found containing 3.89% of morphine and was found to be the coagulated juice of opium poppy. The prosecution, in support of its case, examined ten witnesses. PW 1 Girdhari Singh is the L.C. posted at Police Station, Phalsund, who accompanied PW 10 Shiv Singh, S. H. O., PW 9 Mr. Vikram Singh, Deputy Superintendent of Police, Pokaran, and the other police personnels of the raiding party. They went to village Swamiji Ki Dhani, where they were informed that the accused had proceeded towards Heere Ki Dhani on a tractor. They followed him and about five kilometers of Heere Ki Dhani, they saw the accused on a tractor, who, on seeing the police party, tried to escape but this witness and PW 7 Nanak Ram H. C. chased him and caught hold of the accused. Thereafter the search of the accused was taken and from his possession, 9.900 kgs. of coagulated juice of opium poppy was found, which was seized and sealed after taking two samples of 30 grams each and the samples were, also, sealed. The accused was arrested and brought to Police Station, Phalsund. Similar is the statement of PW 2 Agar Singh, Driver and PW 7 Nanak Ram, H. C., who was, also, the Malkhana In-charge of the Police Station. PW 3 Khushalpuri was the Driver of the tractor, which was hired by the accused-appellant. His statement is to the effect that they were proceeding towards Heere Ki Dhani; after seeing the police party the accused tried to run away, who was chased by the police party and caught hold and from the bag carried by the accused, coagulated juice of opium poppy was recovered, which was weighing 9.900 kgs. PW 4 Mausham Ali is the Armour posted at Police Lines, Jaisalmer, before whom PW 1 Girdhari Singh-Constable of Police Station, Phalsund-brought the pistol recovered from the accused in C.R. No. 19/1992 of Police Station, Phalsund. He examined this firearm. The country-made pistol contained an empty cartridge in it and the pistol was found serviceable. After examination, the report Ex. P. 3 was prepared by him and the pistol was re-sealed. PW 5 Sona Ram Khatik is the Motbir witness, who was called by the police party after the arrest of the accused, who weighed the article recovered from the accused. This witness has not supported the prosecution case during the trial and, therefore, he was declared hostile. PW 6 Chain Singh is the Constable, who was posted at Police Station, Phalsund and who took the sample for F.S.L. examination from Police Station, Phalsund, first to the Office of the Superintendent of Police, Jaisalmer, gave the sample to PW 8 Hem Singh, posted in the Crime Section of the Office of the Superintendent of Police, Jaisalmer, who got a forwarding letter prepared and handed over the forwarding letter and sample to PW 6 Chain Singh, who thereafter took the sample to the aforesaid Laboratory at Jaipur and deposited the same there. This witness has specifically stated that at the time when he took the sample from the Police Station, the seals on the sample were intact and the seals remained intact till the sample was deposited in the Laboratory. PW 7 Nanak Ram, H.C., is the In-charge of the Malkhana of Police Station, Phalsund. He accompanied the raiding party, laid a trap, caughthold the accused and on search found 9.900 kgs. of coagulated juice of opium poppy in the possession of the accused which was seized, two samples were taken from it which were, also, sealed along with the remaining article, arrested the accused, came to Police Station, Phalsund and the articles were deposited in the Malkhana by PW 10 Shiv Singh, S. H. O. On 21-5-92, he gave the sample to PW 6 Chain Singh for taking the same for F.S.L. examination to the State Forensic Science Laboratory, Jaipur. He has, also, stated that the seals on the samples remained intact through-out the period when they were deposited in the Malkhana till the sample was handedover to PW 6 Chain Singh for taking the same for F.S.L. examination to Jaipur. PW 8 Hem Singh was the Constable posted in the Crime Section of the Office of the Superintendent of Police, Jaisalmer, before whom PW 6 Chain Singh produced the samples, he got a forwarding letter prepared and handedover the same along with the sample to PW 6 Chain Singh for taking the same to the aforesaid Laboratory. PW 9 Mr. Vikram Singh is the Deputy Superintendent of Police, Circle Pokaran, who had come for inspection to Police Station, Phalsund and to whom PW 10 Shiv Singh, S.H.O., gave the information under S. 42(2) of the N.D.P.S. Act regarding the secret information received by him from some Mukhbir that the Smuggler had come with opium. He also, accompanied the raiding party including PW 10 Shiv Singh, S.H.O., and the other police personnels and in whose presence the accused was arrested and on search 9.900 kgs. of coagulated juice of opium poppy was found in his possession. PW 10 Shiv Singh is the Station House Officer/In-charge, Police Station, Phalsund, who received the secret information from some Mukhbir and who, after making an entry to this effect in the Roznamcha, as is required under S. 42(1) of the N.D.P.S. Act, informed the same to his immediate officer superior, viz., PW 9 Mr. Vikram Singh, Deputy Superintendent of Police, Pokaran; proceeded towards Swamiji Ki Dhani along with the members of the raiding party, where they were informed that the accused had proceeded towards Heere Ki Dhani. The police party, thereafter, proceeded towards Heere Ki Dhani and saw the accused going on a tractor. On seeing the police party, the accused tried to run away but he was chased by PW 1 Girdhari Singh and PW 7 Nanak Ram and was caught hold of. Thereafter on search, the accused was found carrying 9.900 kgs. of coagulated juice of opium poppy, from which two samples weighing 30 grams each were taken and sealed. Thereafter the accused was arrested and brought to Police Station, Phalsund. The seized and sealed articles were deposited in the Malkhana of the Police Station, from where the sample was sent for F.S.L. examination and on chemical examination, the sample was found to be that of coagulated juice of opium poppy. He made the further investigation and presented the challan. The accused-appellant was thereafter examined under Section 313, Cr. P.C. He did not produce any witness in his defence. The learned Special Judge, after trial, convicted and sentenced the accused-appellants, as stated above. It is against this judgment convicting and sentencing the accused-appellant that the appellant has preferred this appeal.

(3.) It is contended by the learned counsel for the appellant that there is no compliance of the mandatory provisions of Sections 42(2) and 50 of the N.D.P.S. Act and, therefore, the accused deserves to be acquitted. It has, also, been contended by the learned counsel for the appellant that the recovered goods were produced in the Court during the trial and not earlier, which vitiates the trial. In support of his contention, learned counsel for the appellant has placed reliance over : 1993 Cri LR (SC) 333 and 1992 Cr LR (Raj.) 181. It has, also been contended by the learned counsel for the appellant that PW 10 Shiv Singh, S.H.O., who received the secret information, laid a trap, seized the opium milk from the possession of the accused, arrested the accused, lodged the F.I.R. and, also, conducted the investigation, which is illegal and vitiates the trial. It has, also, been contended by the learned counsel for the appellant that the evidence that the seals on the articles remained intact throughout, is missing in the present case. Lastly, it is contended by the learned counsel for the appellant that no independent witnesses were called at the time of the arrest of the accused and, therefore, the judgment passed by the learned lower Court, convicting and sentencing the appellant, deserves to be quashed and set aside and the appellant deserves to be acquitted. The learned Public Prosecutor, on the other hand, has supported the judgment passed by the Court below and submitted that neither there is any contravention of the provisions of Section 42(2) and/or Section 50 of the N.D.P.S. Act nor are the other grounds, raised by the learned counsel for the appellant, sustainable.