DEVI LAL Vs. STATE

JUDGEMENT

(1.) THE appellant Devi Lal filed this appeal against the judgment dated April 28, 2003 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Chhabra Distt. Baran in Sessions Case No. 94 of 2001 whereby he has been convicted and sentenced under section 8/18 of NDPS Act for 5 years RI with fine of Rs. 50,000 in default of payment of fine to suffer six months RI and under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 to undergo 10 years' RI and pay a fine of Rs. 1.00 lakh and in default of payment of fine to further undergo Two years' RI. Both the sentences were directed to run concurrently.

(2.) BEFORE proceeding further it may be mentioned that this Court vide judgment dated January 3, 2007, rejected the appeal filed by the accused appellant only on the ground that provisions of section 50 of the NDPS Act have been complied with before making search of the appellant. The accused appellant filed Criminal Appeal No. 1721 of 2008 before the Apex Court and the Apex Court vide its order dated November 3, 2008 disposed the appeal with the direction that the appeal was not properly dealt with by the learned Single Judge and set aside the judgment and directed for hearing the appeal afresh and disposing it in accordance with law at an early date. This case was listed before this Court in April, 2009 and the learned counsel for the appellant prayed for listing it after vacation. On June 30, 2009 arguments were heard and since the record of the case was not available with the Registry of the High Court it was directed to be called through messenger from the trial court on July 1,2009. After receiving the record this case was listed before me today for hearing and disposal.

(3.) ON the basis of the above conclusions of their Lordships of the Supreme Court, it is necessary to have a look at the evidence adduced and documents exhibited before the trial court by the prosecution. PW.1 Hemraj, Constable No.456, stated that in May, June, 2001 he was posted at Police Station Kawai. ON May 29, 2002 Malkhana Incharge gave four packets to him for handing over it to FSL. He went to SP Baran for getting forwarding letter and on May 30, 2001 he handed over four packets to FSL. From FSL, he received receipt Ex.P.1, which he handed over to the Police Station Kawai. Ex.P.2 and Ex. P.3 are the forwarding letters. He deposited the sealed packets in sealed condition to the FSL. PW.2 Ramswaroop, Head Constable Police Station Kawai, stated that on May 15, 2001 at 9.55 p.m. as per the information received from informer he was one of them when SHO, Ramchanran with ASI Subhash Chandra, Constable Sambhudayal went in Govt. Jeep to Salpura Railway Station. ON reaching Sr. Secondary Govt. School Ground one person was seen and on seeing the Police jeep he ran away. The police caught him. The SHO disclosed his identity and shown the identity card to him and interrogated him on which he disclosed his name to be Devilal son of Dhoolilal by caste Meena resident of Hanuwant Kheda. The SHO informed him that he is having contraband and if he is interested to be searched by a Magistrate or Gazetted officer he is free to do so. ON this the accused denied. The SHO, sent Ramcharan ASI, to bring independent witnesses and Gazetted officer. ON this Ramcharan ASI informed that in nearby independent evidence or Gazetted officer are not available. ON this Ramcharan, ASI was made a witness and searching proceedings were started. ON searching accused in his both legs in white cloth some thing was tagged and the tagged cloth was opened of both the legs and in each leg one-one bag of black flexible material and one bag of gray material were recovered, which on seeing, testing and nosing found to be opium and diacetrylmorphine and the accused was not having any licence of these articles. ON making weight the opium was found 780-780 gms. of each leg and the diacetrylmorphine (heroin ) was found 130-130 gms. of each legs. Two samples of 30-30 gms. of opium bags were taken and 10-10 gms sample of heroin from the bags were taken and were sealed and the tagged cloth was also sealed. The bag, clothes of accused appellant were also sealed and the memos thereof were made separately. The recovery memo and search memo is Ex. P.1 where he has put his signature A to B. The SHO made him witness and on this he has given his consent as Ex. P.2 where he has put his signature A to B. Notice Ex. P.3 which was given earlier he has put his signature A to B. Ex.P.4 is consent of the accused where also he has put his signature A to B. Ex.P.5 is the recovery memo of Bag of red colour and Garment and underwear. Seized material were marked as packets A1, A2, B1 B2, C1 C2, D1 and D2, E and F. ON that day Malkhana Incharge was Ramchandra Sharma. Ex. P.8 is entry in Malkhana Register. The sealed packets were sent through Hemraj Constable who has deposited the receipt with the Police Station. He further stated that as per the directions of the Rajasthan High Court dated May 13, 2002, the recovered material was again weighed, report of Which was also sent to the High Court. In the Malkhana Register M to N seal was put up by the Medical officer. PW.3 Abdul Haq, DY. S.P. Atru stated that he received the investigation instructions of case No. 99/2001 of 8/18 and 8/21 of NDPS Act of Police Station Kawai. He recorded the statements of Ramchand SHO, Kawai, Ramcharan ASI, PS, Kawai, Ramswaroop Head Constable, and Hemraj, Constable. Ex.P.9 Naksa Moka was also prepared by him where he has put his signature A to B. Receipt of FSL No. 4407 dated 30.5.2001 was also tagged in the case diary by him where he has put his signature A to B. He also tagged the report of FSL Ex. P.10 with the case diary. PW.4 Ramcharan, ASI Police Station Atru, also stated that on May 16, 2001 he was posted at Atru. ON that day investigating officer recorded his statement. He was one of them including Ramnchandra, SHO, Subhash, Shambhudayal who went in jeep to Railway Station Salpura. Near Sr. Secondary School ground one suspect was found. ON seeing police jeep he ran away. He was asked why he ran away upon this he has not given any satisfactory explanation. ON interrogation he given out his name as Devilal son of Dhoolilal Meena, resident of Hanuwant Kheda. SHO informed him about his right. He stated in his statement what has been stated by PW.3 in his statement. He supported that he went in search of independent witness and Magistrate, upon which no body was available about which he reported to the SHO. ON this SHO asked him and Ramswaroop Head constable to act as independent witnesses, thereafter Devi Lal was searched. PW.5 Shambhudayal, Constable No.796 stated that on May 16, 2001 he was posted as constable at Police Station Kawai. He stated that he went to SP Baran about the report under section 57 at his residence. PW.6 Ramchandra Sharma, SHO supported the case of the prosecution. He stated that on May 15, 2001, he was SHO Police Station Kawai and he received an information at 9.45 p.m.from the informer that one person having Opium poppy and Diacetylmorphine (Heroin) tagged in his both legs is going on foot from Kawai to Railway Station. He recorded this information in the Rojnamcha and informed to S.P. Baran and C.O. Baran. Thereafter he along with police party which included Ramcharan ASI, Ram Swarup LC, two constables with jeep and Driver Mangilal along with investigation box departed to Railway Station. At that time he put the Rapat in the Rojnamcha. As per the report of the informer near the Railway Station Road and on the right side of road in the ground of Senior High Secondary School Kawai one person as per the face reported by the informer was seen who after seeing the police party and police jeep began to run away but he was caught by the police and the reason of escape was asked which he could not reply satisfactorily and on asking he told his name Devi Lal. He stated that he gave his identification and made known with the information of informer. Nearby there was no independent witness or Gazetted officer available, the accused Devi Lal gave his consent to be searched by him. ON this he made ASI Ramcharan and Head Constable Ramswaroop as Motbirs. In the presence of both the Motbirs, the accused was searched and on search in his both legs in white cloth some thing was tagged and the tagged cloth was opened of both the legs and in each leg one-one bag of black flexible material and one bag of gray material were recovered which on seeing, testing and nosing found to be Opium and diacetrylmorphine and the accused was not having any licence of these articles. ON making weight the opium was found 780-780 gms. of each leg and the diacetrylmorphine (heroin ) was found 130-130 gms. of each leg. Two samples of 30-30 gms. of opium bags were taken and 10-10 gms sample of heroin from the bags were sealed and the tagged cloth was also sealed. The bag, clothes of accused appellant were also seized and the memos thereof were made separately. After search it was found that the act of keeping prohibited contraband without licence was against the provisions of Sections 8/18 and 8/21 of the NDPS Act and investigation of it was handed over to Abdul Haq, SHO Atru. The seized material was deposited in the Malkhana and again sealed as the earlier seal provided was private. Ex. P.1 search memo and seizure memo was prepared where he has put his signature E to F at two places and G to H is the signature of accused Devilal. Ramswarup has given his consent vide Ex. P.2 for becoming Motbir where Ramswarup put his signature A to B and he put his signature C to D. Ramcharan and Ramswarup were asked to become independent witnesses vide consent letter Ex. P.3 where he has put his signature E to F. Ex.P.4 is consent of Devilal where he has put his signature E to F and G to H is signature of Devilal. Ex.P.5 is seizure memo of Garment and undergarment where he has put his signature E to F and G to H is signature of Devilal. ON returning to Police Station he has again put seal vide Ex. P.7 in the Police Station. Where he has put his signatures at three places . Ex.P.9 is the Naksa Moka where he has put his signature E to F. Ex. P.10 is the report of FSL. For bringing two independent witnesses he directed by Ex. P.18, where he has put his signature E to F. He also gave direction for searching Gazetted Officer vide Ex. P.19 where he has put his signature A to B. Ramcharan gave his consent by Ex. P.20 for becoming independent witness where he has put his signature C to D. Namuna seal is Ex. P.21 where he has put his signature C to D. FIR Ex. P.22 was chalked out by him and he has put his signature A to B over it. Information was recorded by him in Ex. P.23 where he has put his signature A to B. Carbon copy of Radiogram Ex.P.24 was sent by him in compliance of Section 42 of NDPS Act. Ex. P.25 is containing information to SP as per the section 42 of the NDPS Act and where he put his Namuna seal as Ex. P.26 with A to B his signature. Four sealed packets were sent for examination to FSL through Hemraj Constable, to which he brought receipt Ex. P.1 and forwarding letter of it is Ex. P.2. Arrest memo is Ex. P.6. Copy of Register Malkhana is Ex. P.8. Rapat on Rojnamcha Aam is Ex.P.27 and copy of it is Ex. P.27 A. Rapat Rojnamcha 594 is Ex. P.28A and Rapat No.602 is Ex. P.29 and copy of it is Ex. P.29A. Information of informer is Ex. P.30 and copy of it is Ex. P.30 A. Rapat No. 659 is P.32 and copy of it is Ex. 32 A. Copy of Rapat 1171 is Ex. P.33 and Ex. P.34 where he has put his signature A to B. In the cross examination he categorically stated about the compliance of section 42 and section 50 of the NDPS Act. ON reexamination he stated about notice of section 50 NDPS Act vide Ex. P.35 where he has put his signature A to B. PW.7 Premchand, Constable No.767 stated that on 15.5.2001 he was posted at Police Station Kawai. At 9.50 p.m. a sealed envelop was given by SHO Ramchandra to him and he handedover the same to SP Baran. A report about it was also marked in the Rojnamcha. This report was about opium with Devilal. The report was under Section 42 of the NDSPS Act carbon copy of which is Ex. P.25, which he has handed over to Ramchandra Sharma. In the statement under section 313 Cr.P.C. Accused stated that he is innocent. The documents produced by the prosecution may also be looked into. Ex.P.1 is the receipt of the FSL, in relation to handing over of four packets to FSL by Constable Hemraj (PW.1). Ex.P.2 and Ex. P.3 are the forwarding letter of the SP Baran and the SHO given to Hemraj for handing over the packets to the FSL. Ex. P.1 search memo and seizure memo was prepared where Ramchandra Sharma SHO, put his signature E to F at two places and G to H are the signature of accused Devilal. Ramswarup (PW.2) has given his consent vide Ex. P.2 for becoming Motbir where he put his signature A to B and he put his signatures C to D. Ramcharan and Ramswarup were asked to become independent witnesses vide consent letter Ex. P.3 where Ramchandra Sharma SHO has put his signatures E to F. Ex.P.4 is consent of Devilal where Ramchandra Sharma SHO has put his signature E to F and G to H is signature of Devilal. It appears that the trial court marked Ex. P.1 to Ex. P.4 twice. Ex.P.5 is seizure memo of Garment and undergarment where Ramchandra Sharma SHO has put his signature E to F and G to H is signature of Devilal. ON returning to Police Station Ramchandra Sharma SHO again put seal vide Ex. P.7 in the Police Station. Ex.P.8 is the copy of the Malkhana Register. Ex.P.9 is the Naksa Moka where Ramchandra Sharma SHO has put his signature E to F. Ex. P.10 is the report of FSL. Ex.P.11 is the cerrtified copy of the order of the Rajasthan High Court. Ex.P.12 is Nakal Rapat Rojnamcha No. 590 dated 15.5.2002 at 9.40 a.m. Ex.P.13 is the memo prepared in response to the High Court order. Ex. P.14 & Ex. P.15 are the chits prepared as per the order of the High Court where medical officer of Kawai has also put his signature. Ex.P.16 is the letter of the Investigating Officer sent to the High Court. Ex.P.17 is copy of Rapat No.591 dated 15.5.2002. For bringing two independent witnesses Ramchnadra Sharma SHO directed vide Ex. P.18, where he has put his signature E to F. Ramchandra Sharma SHO also gave direction for searching Gazetted Officer vide Ex. P.19 where he has put his signature A to B. Ramcharan gave his consent by Ex. P.20 for becoming independent witness where he has put his signature C to D. Namuna seal is at Ex. P.21 where Ramchandra Sharma SHO has put his signature C to D. FIR Ex. P.22 was chalked out by Ramchandra Sharma SHO and he has put his signature A to B. Information received from informer was recorded by Ramchandra Sharma SHO in Ex. P.23 where he has put his signature A to B. Carbon copy of Radiogram Ex.P.24 was sent by him in compliance of Section 42 of NDPS Act. Ex. P.25 is information to SP as per the section 42 of the NDPS Act and where Ramchandra Sharma SHO put his Namuna seal as Ex. P.26 with A to B his signature. Rapat on Rojnamcha Aam is Ex.P.27 and copy of it is Ex. P.27 A. Rapat Rojnamcha 594 is Ex. P.28A and Rapat No.602 is Ex. P.29 and copy of it is Ex. P.29A. Information of informer is Ex. P.30 and copy of it is Ex. P.30 A. Rapat No. 659 is P.32 and copy of it is Ex. 32 A. Copy of Rapat 1171 is Ex. P.33 and Ex. P.34. Notice of section 50 NDPS Act is vide Ex. P.35 where Ramchandra Sharma SHO has put his signature A to B.