Mahesh Chandra Sharma, J. - (1.) The appellant Patrik Thomas Gairo Malujo filed this appeal against the judgment dated July 17, 2006 of Special Judge Narcotic Drugs and Psychotropic Substances Act Cases, Kota in Sessions Case No. 10 of 2004 convicting and sentencing the accused appellant under section 8/20 of Narcotic Drugs And Psychotropic Substances Act for 10 years RI with fine of Rs. 1,00,000 in default of payment of fine to suffer one year RI.
(2.) Brief facts of the case are that on November 14, 2003 at about 9 in the night on reaching 2952 UP Rajdhani- Mumbai Express at Kota Railway Station announcement was made for attending the train, on which Assistant Sub Inspector Kesar Singh and Constable Ram Prasad proceeded to attend the train at platform No.2. On contacting by GRP staff with TS Rajdhani Express, N. Ramesh in presence of HTC Manoj Verma handed over 3 bags received vide memo A-2 to the staff after taking out the same from PC/2. Constable Ram Prasad opened the 3 bags in presence of HTC for the purpose of depositing the same in LP office then used clothes were found in 2 bags while on opening the third bag there was yellow colour foam on all the 4 sides and on the top also yellow colour foam was found. On removing the foam some used clothes and 35 polythene packets were found. On opening one of the packets black colour substance was found. On smelling it was found to be charas. On this constable Ram Prasad informed telephonically to Police Station Incharge Jagmal Singh. Jagmal Singh, S.I. reached alongwith investigation box and the team at the LP office and the substance found in the bag was checked by the kit and it was ascertained to be Charas. After opening all the 35 packets samples of 30 grams each were prepared and marked as A and B. Remaining charas was packed in the 35 separate packets. All the 3 bags were seized separately. On receipt of above report FIR No. 251/2003 for offence under section 8/20 of NDSPS Act was registered and investigation commenced. During the course of investigation the accused appellant along with co-accused John Don Ho were arrested. After completing the investigation the police filed charge sheet No. 76/2004 on 13.5.2004 for offence under sections 8/20 and 8/29 of the Narcotic Drugs And Psychotropic Substances Act. Charge was framed against the accused appellant for offence under section 8/20 of the Narcotic Drugs And Psychotropic Substances Act. The accused appellant denied the charge and claimed to be tried. The prosecution produced as many as 29 witnesses along with certain documents in support of its case. The accused was examined under section 313 Criminal Procedure Code and he did not produce any witness in his defence and stated the prosecution story to be false. After hearing both the parties, the trial court convicted and sentenced the accused appellant vide judgment and order dated 17.7.2006 for offence under section 8/20 of the Narcotic Drugs And Psychotropic Substances Act as stated above.
(3.) Mr. Tariq Sayeed,learned counsel appearing for the accused appellant argued that the seizing officer PW.20 Jagmal Singh was not competent to carry out the search and seizure and he was simply sub-inspector and not posted as SHO. SHO Laxmi Narain PW.18 was available in the police station and inspite of this fact seizure was effected by Jagmal Singh and as per Notification issued by the State Government under section 42 Narcotic Drugs And Psychotropic Substances Act he was incompetent being simply sub inspector. The place where the seizure is effected is not material on the facts and circumstances of the present case as person who is taking steps under Narcotic Drugs And Psychotropic Substances Act must be of and above the rank of Station House Officer (SHO). He placed reliance on Roy V.D. v. State of Kerala 2000 (1) SRJ 169 , Bherulal v. State of Rajasthan 2004 (1) Cr.L.R. 612 (Rajasthan), Om Prakash v. State of Rajasthan 2007 (1) Cr.L.R. 448 (Rajasthan) Jaggan nath v. State of Rajasthan 1994 Cr.L.R. 709 (Rajasthan), Ram Kumar Singh v. State of Rajasthan 1994 Cr.L.R. 68 (Rajasthan, Satyanarain and another v. State of Rajasthan 2000-01 (Supp) Cr.L.R. 88 (Rajasthan) and Mitho Singh v. State of Rajasthan 1992 Cr.L.R. (Raj. 74. Learned counsel also argued that the trial court ignored the basic facet of criminal trial. The trial court at the inception of recording of evidence confirmed the fact whether the accused before the court understood the language of the court. The evidence recorded by the trial court was in Hindi language, which was never read over or explained to the accused in English Language. Other argument raised by the counsel for the accused appellant is that the co-accused has been acquitted by the trial court itself on the same set of documents and witnesses and as per prosecution case he was the main accused as he fill up the reservation slip in the name of himself and appellant. The counsel further averred that the co-accused was caught with contraband in Goa and case of the present appellant is on better footing as all the prosecution witnesses has deposed in their testimony that nothing was recovered from the bags by which appellant can be connected with the alleged contraband. Learned counsel stated that nothing was recovered from the bag like photographs, slip etc. as nothing was sealed on spot except alleged charas. Reliance has been placed on Shanker Lal v. State of Rajasthan Western Law Cases 2001 Vol. 5 page 581. The learned counsel for the appellant further argued that the there is gross violation of section 55 of the Narcotic Drugs And Psychotropic Substances Act as prosecution failed to establish the fact that the seal was not tampered with as PW.20 Jagmal Singh has deposed in his statement that seal which was used in seizing the contraband has been destroyed on spot but surprisingly same seal has been used on Malkhana register, exhibit P 40 A and it is highly impossible for human being to use the destroyed article again. Reliance has been placed on Mintu v. State of Rajasthan Criminal Bail application No. 18 of 2009 in Criminal Appeal No. 22 of 2009. Lastly the learned counsel argued that the prosecution failed to establish the fact of exclusive possession as appellant has not been found with the contraband and contraband was found in the abandoned condition and the appellant never seen with the contraband and bags under seizure at any stage prior to seizure. Reliance has been placed on 2010 (1) SRJ page 86, Om Prakash v. State of Rajasthan 1996 Cr.L.R. (Supreme Court page 345 and 96 Cr.L.J. 2001 Mohan Alam v. NCB. ;