RAMESHWAR LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) By way of this appeal, the appellant Rameshwar Lal @ Ramesh Chandra has approached this Court assailing the judgment dt. 23.5.2015 passed by the learned Special Judge (NDPS Act Cases), Jodhpur in Sessions Case No. 139/2010 convicting the appellant for the offence under Sec. 8/15 of the NDPS Act and sentencing him to suffer 10 years' R.I. and a fine of Rs. 1 lac, in default of payment of fine, to further undergo one year's additional R.I. Facts in brief are that on 31.3.2010, Hari Ram Soni, SHO Police Station Sendara received a source information to the effect that a white Indica car No. MH12.AF.2648 suspected of carrying illicit poppy straw would be coming from Chittorgarh and would be going towards Jodhpur. The information was taken down in writing and duly forwarded to the superior officers as per requirement of Section 42 of the NDPS Act. Thereafter, the SHO summoned two independent Panch witnesses and conducted a Nakabandi at the NH4 near Bar. The car of which the information had been received was seen coming from towards Beawar at about 6.05 AM. The SHO and the members of the raid party signaled the driver to stop the car. One person sitting near the driver managed to escape but the car alongwith its driver was stopped. The driver disclosed his name to be Rameshwar Lal @ Ramesh Chandra i.e. the appellant herein. Search proceedings were initiated after following the due formalities required under the NDPS Act. 6 gunny bags containing illicit poppy straw were found concealed in the car. On weighment, total weight of the contraband came to be 110 Kgs. Two samples of 1 Kg. each were taken out from each gunny bag and were sealed and chits bearing signatures of all concerned were applied thereupon. The remaining poppy straw was also sealed and marked with identifying chits in the original gunny bags. The appellant allegedly disclosed that the person, who had run away, was Dinesh Vishnoi and that the car was owned by one Jawari Lal Vishnoi. However, upon investigation, the registered owner of the offending vehicle was found to be one Shankar S/o. Bhopaji r/o Mandal, Bhilwara. The Investigating Officer concluded investigation and filed a regular charge-sheet against the appellant and a charge-sheet was filed against the absconding co-accused Shankar, Dinesh and Jawari Lal under Sec. 299 Cr.P.C. Later on, Jawari Lal was also arrested in the case and a subsequent charge-sheet was also filed against him. The remaining two accused Dinesh and Shankar could not be apprehended and are still absconding.

(2.) The learned trial Judge, framed charges against the accused appellant for the offence under Sec. 8/15 of the NDPS Act and against the accused Jawari Lal for the offence under Sec. 8/15 read with Section 29 of the NDPS Act. The accused denied the charges and claimed trial. The prosecution examined as many as 14 witnesses in support of its case. The accused, in their statements under Sec. 313 Cr.P.C. denied the case set up by prosecution and examined three witnesses in defence. At the conclusion of trial, the learned trial Judge proceeded to acquit the co-accused Jawari Lal of the charges but convicted and sentenced the appellant Rameshwar Lal @ Ramesh Chandra as above. Being aggrieved, he has approached this Court by way of this appeal assailing the judgment dt. 23.5.2015.

(3.) Shri BR Godara learned counsel representing the appellant limited his challenge to the impugned judgment on a solitary ground and urged that the prosecution failed to exhibit the Muddamal in its original state at the trial and as such, the conviction of the appellant for the alleged possession and transportation of poppy straw is totally illegal. He relied upon the judgments rendered by the Hon'ble Supreme Court in the cases of Noor Agha v. State of Punjab & Ors, 2008 CrLR 655 (SC), Jitendra & Ors. v. State of Madhya Pradesh,2003 2 WLC(SC)Cri 633 and the judgment rendered by this Court in the case of Tliakara Ram & Anr. v. State of Rajasthan,2014 CrLR 134 (Raj.) and submitted that during the trial of a case under the NDPS Act, it is mandatory for the prosecution to exhibit the Muddamal in the Court in a proper identifiable condition so as to prove the seizure. Failure to do so would completely vitiate the entire recovery. He referred to the statement of the Seizure Officer PW12 Hari Ram, during whose testimony, the prosecution attempted to exhibit the Muddamal of the case and urged that when the witness brought the goods in the Court, it came to light that no identifiable marks were existing on the gunny bags produced in the Court. The Seizure Officer admitted that 5 out of the 6 seized packets were repacked in new gunny bags and none of the bags were having any seals or the chits appended thereupon. The witness exhibited only the 12 sample packets. He urged that as the seized goods were not exhibited at the trial, the entire prosecution case regarding the seizure has to be discarded and the appellant deserves to be acquitted.