MOHAMMED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) Appellant Mohammed was tried in case First Information Report No. 15 dated 4- 3-88 of Police Station, Chauhtan District Banner by Shri Brij Lal, Additional Sessions Judge, Barmer, under Section 21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 and was sentenced to undergo Rigorous Imprisonment for a period of 15 years and to pay fine of Rs. 1,00,000/- and in default of payment of fine to undergo Rigorous Imprisonment for a further period of one year, vide judgment and order dated 18-8-1988.

(2.) The prosecution story was as under- On 4-3-1988, at about 7.30 p.m., P.W. 8 Assistant Sub-Inspector Shiv Chand received a secret information Police Station, Chauhtan that the appellant was dealing in drugs and on that date he has agreed to sell one kg. of heroine and would come to Chauhtan via Paradia with that quantity of heroine. He recorded this information in the daily diary and brought this to the notice of P.W. 7 Ramsingh, who was then posted as the S.H.O. of that Police Station. The S.H.O. informed P.W. 1, who was then working as Deputy Superintendent of police and was present in Police Station, Chauhtan, A Police party, consisting of the S.H.O., A.S.I. Shiv Chand and other police staff, was formed and they all went in a jeep to the place of occurrence. On the way, they met Gajja Ram Sb Shri Bheru Ram and Ganga Ram Sb Kesar Ram near the crossing of Ramsar and they were joined in the police party as independent public witnesses. The police party stopped the jeep near pillar at a distance of 10 km. from the police station and at a short distance therefrom, the party waited for the appellant. At about 9.00 p.m., the appellant was found coming towards the place of occurrence and at that time he was having a bag (Taila) with him. The appellant was asked to stop, but he started running. He was apprehended with the help of the police staff. The bag was found to contain a polythene bag, in which the police party found powder, which was tested by the Deputy Superintendent of Police, the S.H.O., the A.S.I. and the two public witnesses, who found the same to be heroine. Since there was no light at the place of the occurrence and since the police party did not have the scale and weights with them, the appellant alongwith the case property was brought to the police station. At the police station, the heroine was weighed and was found to be weighing 875 grams. A sample, weighting 30 grams, was taken and the sample as well as the remaining heroine were converted into two different sealed paroels. The appellant was arrested. The case property was deposited in the Malkhana. In the Police Station, the Deputy Superintendent of Police have written report Ex. P. 3 to the S.H.O. at 11.45 p.m. that night and on the basis of the same, formal First Information Report No. 15 was recorded. The S.H.O. took over the investigation and recorded the statement of the witnesses He inspected the place of occurrence on 22-3-1988 and prepared its site plan Ex. P. 14. The case property was sent to the State Forensic Science Laboratory, Jaipur, from where report Ex. P. 15 was received. After completing the investigation, the police filed challan against the appellant in the Court of the learned Munsif & Judicial Magistrate, who committed the case to the Court of Sessions, where the appellant was tried, convicted and sentenced, as stated above. Feeling aggrieved, the appellant has come-up in appeal.

(3.) I have heard the learned Counsel for the appellant, the learned Public Prosecutor for the State and have also perused the record, of the case. From the record, I find that P.W. 3 Gajja Ram and P.W. 4 Ganga Ram, who were joined as Public witnesses, have not supported the case of the prosecution and have deposed that they were called to the police station where they were made to sign some documents and that they had never seen the appellant and also that they never tested heroine, during their life-time. According to Gangaram, he was called as he was known to the police of Police Station, Chauhtan and according to Gajja Ram, he had been cited by the police as a witness in 5/7 other cases of the Police Station, also P.W. Prem Narain Puniya, when asked about the witnesses, replied that he did not know whether Gangaram and Gajja Ram were the stock witnesses of the police or not. Although it has been stated by Prem Narain Puniya. Ram Singh and Shiv Chand that the powder was tested not only by them but also by the public witnesses, no such suggestion was given to either of these two witnesses even at the time of cross-examination by the learned Public Prosecutor, who was granted permission to cross-examine them and it was only during cross-examination by the appellant that they stated that they had never tested the heroine. It was also not suggested to the witnesses that they had been joined from the crossing of Ramsar. Admittedly, the police had prior information and no explanation is coming forward as to why the persons who were residing near the place of the occurrence or other respectable persons from near the Thana of Chauhtan were not joined in the police party.