GHEWAR RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an appeal against the judgment of learned Special Judge, NDPS Act Cases, Jodhpur, whereby he convicted accused appellant Ghewar Ram for the offence under Section 8/15 of the Narcotic Drugs & Psychotropic Substances Act, 1985, (hereinafter referred-to as "the Act") and sentenced him to ten years' rigorous imprisonment and to pay a fine of Rs. one lac and in default, to further undergo one year's R. I.

(2.) THE Charge against the accused was that on 9-4-2004 when Shri Rajendra Singh Chaudhary, S. H. O. , Police Station, Khedapa conducted raid on the field at village Kasti Birai, accused Ghewar Ram alongwith Hanuman Ram and Naina Ram were standing there and were counting bags and on seeing the police, Hanuman and Naina Ram ran away from the spot but accused Ghewar Ram was present there. On search, 10 bags were found outside the pit and 22 bags in the pit. In all, there was 519 kgs. poppy straw, for which the accused was having no licence. THE sample of 500 gms. was taken on the spot and after arrest of the accused, the challan was filed against accused Ghewar Ram only, since Hanuman and Naina Ram were absconding. Learned trial Judge framed charge against accused Ghewar Ram for the offence under Section 8/15 of the Act, to which he pleaded not guilty. THE prosecution examined eight witnesses. THE statement of accused was recorded under Section 313 Crpc. He produced Khema Ram (DW 1) in his defence. After hearing the arguments, learned Special Judge convicted and sentenced the accused appellant as above.

(3.) IF the present case is looked into in the light of the judgment relied upon by the learned counsel for the appellant, though investigating officer Rajendra Singh Chaudhary has been produced in the Court as P. W. 1 but when a question was asked to him in the cross examination about 32 bags, which were sealed on the spot and marked as A-1 to A-32, he replied that seized articles are not before him in the court. The non- production of the recovered articles which is the basic proof of commission of offence, can be termed not only a procedural irregularity under Sec. 465 Crpc as held by the Hon'ble Supreme Court but also, it is fatal to the prosecution with regard to establishing the identity of a thing, which is relevant in the case. This identification is termed as an exception to the general rule of hearsay evidence because by virtue of Section 9 of the Indian Evidence Act, the facts necessary to establish the identity of a thing, are relevant in so far as they are necessary for that purpose. In this case, the relevant fact is recovery of 32 bags of poppy straw but these bags which were marked and sealed on the spot, have not been produced in the Court, then the presumption which the Court will take is that it will be unfavourable to the prosecution as it has withheld it. This is the law based on illustration (g) of Section 114 of the Indian Evidence Act which says that the Court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.