- (1.) GARG, J This appeal has been filed by the accused appellants against the judgment and order dated 17. 10. 1996 passed by the learned Special Judge, NDPS Cases (Addl. Sessions Judge No. 1), Chittorgarh in Sessions Case No. 66/96 by which he convicted both the accused appellants for the offence under Section 8/21 of the Narcotic Drugs and Psychotrophic Substances Act, 1985 (hereinafter referred to as `the NDPS Act') and sentenced each of them to undergo twelve years RI and to pay fine of Rs. two lacs in default of payment of fine, to further undergo two years' imprisonment.
(2.) BY the same judgment, the learned Special Judge acquitted accused Rafique Mohd. of the charge for the offence under Section 8/21 of the NDPS Act and also acquitted accused Jamnesh and Intquab Khan of the charge for the offence under Section 8/29 of the NDPS Act, while the case against one accused Saleem Khan remained pending as he was declared absconder. The facts giving rise to this appeal, in short, are as follows:- On 17. 6. 1993 at about 10. 00 AM, PW 6 Ashok Kumar, Excise Inspector, Chouti Sadri received a secret information to the effect that in between 2. 00 PM to 4. 00 PM, one Ambassador Car of blue colour bearing No. RJ 09-C-0104 having opium or brown sugar in it would pass through Nimbahera-Neemuch marg. This information was reduced into writing by PW6 Ashok Kumar and the fard of that is Ex. P/10 and through Ex. P/11, copy of that information was sent to the District Excise Officer, Chittorgarh. After receiving that information, PW6 Ashok Kumar alongwith raiding party reached on the spot and apart from them, PW5 Dwarka Prasad, District Excise Officer and Sunil Bhandari, Inspector, Excise Department, Chittorgarh also reached on the spot. On the spot, an Ambassador Car of same colour and number, as disclosed in the secret information, came and it was stopped and two motbirs, namely, Lal Mohd. and Mishri Lal, PW3 were also called and as soon as the Car was stopped, it was found that two persons were sitting on the back seat and the Car was being driven by one accused Rafique and on being asked, the persons, who were sitting on back seat, told their names as Mukesh (accused appellant No. 1) and Om Prakash (accused appellant No. 2) and before making their search, notice Ex. P/12 under Section 50 of the NDPS Act was given to the accused appellants by PW6 Ashok Kumar asking them whether they wanted to be searched before the Magistrate or the Gazetted Officer and they gave their consent that they could be searched by PW6 Ashok Kumar. Thereafter, search was made by PW6 Ashok Kumar and on search, a ragsin bag of black colour was recovered, which was lying between the accused appellants and one side of that bag, Bombay Beauty Banian-Underwear and on other side, Citizen Banian- Underwear were printed. Thereafter, that bag was opened and on opening, in all six cloth packets of green colour were found and on opening these packets, brown colour powder was found and on seeing and checking, it was assessed that it was nothing, but brown sugar and on being asked, both accused appellants told that it was brown sugar. Thereafter, each packet was weighed and weight of the first bag was found to be 1kg. 10 grms. and it was marked as `a' and thereafter, rest five packets were also weighed and weight of each packet was found to be 1kg. 35 grms. and they were marked as `b', `c', `d', `e' and `f' respectively. Thereafter, heroin was taken out from each packet and it was weighted and net weight of heroin in packet `a' was found to be 975 grms. in packet `b' 1 kg. , in packet `c' 1kg. , in packet `d' 1kg. , in packet `e' 1kg, and in packet `f' 1 kg. and thus, the total weight of actual heroin of these six packets was found to be 5kg. 975 grms. and weight of each packet excluding heroin was found to be 35 grms. Thereafter, two samples of 5 grms. each were taken from each packet and they were sealed separately and rest heroin was also sealed on the spot. The two samples, which were taken from each packet, were marked as A1-A2, B1-B2, C1-C2, D1- D2, E1-E2 and F1-F2 and rest packets were marked A,b,c,d,e and F respectively. The fard of search and seizure prepared by PW6 Ashok Kumar on the spot is Ex. P/3. The site plan, which was prepared on the spot by PW6 Ashok Kumar is Ex. P/4. The accused appellants Mukesh and Om Prakash were arrested through Ex. P/5 and Ex. P/6 respectively and through Ex. P/8, the Car carrying the heroin was seized and through Ex. P/16, information about search and seizure was sent by PW6 Ashok Kumar to the District Excise Officer, Chittorgarh and through Ex. P/17 information about search and seizure was sent to the Addl. Commissioner (Admn.), Excise Department, Udaipur. All the seized articles were deposited in Malkhana Register is Ex. P/18. Vide letter Ex. P/21, samples A1, B1, C1, D1, E1 and F1 were sent to Chief Public Analyst, State/central Public Health Laboratory, Rajasthan, Jaipur for the purpose of chemical examination through PW7 Mithalal and on 25. 6. 1993, rest articles were deposited by PW6 Ashok Kumar in the Treasury, Chittorgarh through letter Ex. P/22 and receipt of obtaining these articles from PW6 Ashok Kumar by Treasury Officer was given on Ex. P/22. On 19. 6. 1993, further investigation of the case was handed over by PW6 Ashok Kumar to PW7 Mithalal. The report of the Chief Public Analyst, which was earlier given is Ex. P/27 and on further clarification through Ex. P/28, revised report was given by the Chief Public Analyst, State/central Public Health Laboratory, Rajasthan, Jaipur and the same is Ex. P/29, in which it was stated as under:- "the above mentioned samples of heroin marked A1, B1, C1, D1, D1 and F1, on examination, are found to contain the following percent Morphine content (calculated as anhydrous morphine):- (A1) 5. 18 (B1) 5. 47, (C1) 5. 18, (D1) 5. 18, (E1) 5. 18 and (F1) 5. 47" After usual investigation, challan was submitted in the Court of Session, Pratapgarh for the offence under Sections 8/21 against the accused appellants Mukesh and Om Prakash and accused Rafique Mohd. and for the offence under Section 8/29 against accused Jamnesh, Intquab and Saleem Khan. On 5. 11. 1993, the learned Sessions Judge, Pratapgarh framed charges against accused appellants Mukesh and Om Prakash and accused Rafique for the offence under Section 8/21 of the NDPS Act and against accused Jamnesh and others for the offence under Section 8/29 of the NDPS Act. The charges were read over and explained to the accused persons, who pleaded not guilty and claimed trial. During trial, the prosecution in support of its case examined as many as 7 witnesses and got exhibited some documents. The statement of PW6 Ashok Kumar was recorded twice. Thereafter, statements of the accused persons under Section 313 Cr. P. C. were recorded. No evidence was produced in defence by the accused persons. After conclusion of trial, the learned Special Judge, NDPS Cases, Chittorgarh through his judgment and order 17. 10. 1996 convicted and sentenced the accused appellants for the offence under Section 8/21 of the NDPS Act holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against them for the offence under Section 8/21 of the NDPS Act. However, as already stated above, the learned Special Judge by the same judgment acquitted other accused Rafique of the charge for the offence under Section 8/21 of the NDPS Act and two other accused Jamnesh and Intquab Khan of the charge for the offence under Section 8/29 of the NDPS Act. Aggrieved from the said judgment and order dated 17. 10. 1996 passed by the learned Special Judge, NDPS Cases, Chittorgarh, this appeal has been filed by the accused appellants. In this appeal, the following submissions have been made by the learned counsel for the accused appellants:- 1. That the statement of PW6 Ashok Kumar, Excise Inspector was first recorded on 29. 11. 1994 by the learned trial Judge and in that statement, he has stated that he deposited the seized articles on 16. 3. 1994 in the Sessions Court, Pratapgarh, after taking them from the Treasury, but these articles were not put before him when his statement was recorded and when he was re- examined on 22. 12. 1995, the seized articles were produced before him and thus, there is no link evidence in the present case how the seized articles from Sessions Court, Pratapgarh to Court of Addl. Sessions Judge, Nimbahera were sent and with whom they were sent, as that case was transferred from the Court of Sessions, Pratapgarh to the Court of Addl. Sessions Judge, Nimbahera and thus, the possibility that samples would have been tampered with cannot be ruled out. In this respect, the learned counsel for the accused appellants has placed reliance on the decision of the Hon'ble Supreme Court in State of Rajasthan vs. Daulat Ram (1 ). 2. That there is clear cut evidence in the statements of the prosecution witnesses that no separate seal was prepared by PW6 Ashok Kumar while prepared fard of search and seizure Ex. P/3 and thus, from this point of view also, the case of the prosecution becomes doubtful. Hence, it is prayed that this appeal be allowed and both the accused appellants be acquitted of the charges framed against them. On the other hand, the learned Public Prosecutor supported the impugned judgment and order dated passed by the learned Special Judge, NDPS Cases, Chittorgarh. I have heard the learned counsel for the accused appellants and the learned Public Prosecutor and perused the record of the case. Point No. 1
(3.) IN the present case, the fact that six packets of heroin were recovered on being search made by PW6 Ashok Kumar on 17. 6. 93, is well proved from the statement of PW6 Ashok Kumar and he was cross examined at length, but nothing has come out which affects his testimony. His statement is further corroborated on this point from the statements of PW4 Gopal Dixit and PW5 Dwarka Prasad, who were also with him. The fact that these articles were recovered from the Car in which both the accused appellants were sitting, is also well proved by the prosecution and these findings have not been much disputed by the learned counsel for the accused appellants. Before dealing with the submissions made by the learned counsel for the accused appellants, some dates pertaining to the seized articles how they were kept from one place to other are to be seen. 1. That on 17. 6. 1993, recovery of six packets of heroin was made by PW6 Ashok Kumar. 2. That on 17. 6. 1993, the samples were deposited in Malkhana and entries were made in Malkhana Register Ex. P/18. 3. That on 20. 6. 1993, samples A1, B1, C1, D1, E1 and F1 were given to PW7 Mithalal and through letter Ex. P/21 dated 27. 6. 1993, he deposited the same in the State/central Public Health Laboratory, Rajasthan, Jaipur on 28. 6. 1993 as is evident from Ex. P/30. 4. That on 25. 6. 1993 through Ex. P/22, rest seized articles marked A, A2, B, B2, C, C2, D, D2, E, E2 and F, F2 were deposited by PW6 Ashok Kumar in the Treasury. 5. That on 14. 12. 1993, Sunderlal, PW1 was examined by the learned Sessions Judge, Pratapgarh. 6. That on 4. 2. 1994, PW6 Ashok Kumar was present, but his statement could not be recorded because seized articles were not before the Court. 7. That on 16. 3. 1994, rest articles were deposited from Treasury to the Sessions Court, Pratapgarh by PW6 Ashok Kumar. 8. That on 8. 6. 1994, the case was transferred to the Court of Addl. Sessions Judge, Nimbahera from the Court of Sessions, Pratapgarh. 9. That on 23. 8. 1994, Indermal, PW2 and Misrilal, PW3 were examined by the Addl. Sessions Judge, Nimbahera. 10. That on 26. 9. 1994, Gopal Dixit, PW4 was examined. 11. That on 29. 11. 1994, PW5 Dwarka Prasad Dixit, PW6 Ashok Kumar and PW7 Mithalal were examined. 12. That on 12. 12. 1994, evidence of the prosecution was closed. 13. That on 15. 12. 1994, statements of accused persons under Section 313 Cr. P. C. were recorded and the case was fixed for final argument on 2. 1. 1995. 14. That on 2. 1. 1995, arguments were heard and case was put for delivery of judgment on 9. 1. 1995. 15. That on 9. 1. 1995, the judgment was not pronounced and the case was again ordered to be listed for pronouncement of judgment on 14. 2. 1995. 16. That on 14. 2. 1995, the judgment was also not pronounced and the case was again ordered to be listed for further argument and pronouncement of judgment on 21. 2. 1995. 17. That on 21. 2. 1995, the judgment was also not pronounced on the ground that the Presiding Officer has been transferred. 18. That on 4. 11. 1995, an application under Section 311 Cr. P. C. filed on behalf of the APP for recalling PW6 Ashok Kumar was allowed and PW6 Ashok Kumar was re-summoned. 19. That order sheet dated 18. 11. 1995 shows that seized articles were summoned from Treasury, Chittorgarh. 20. That order-sheet dated 4. 12. 1995 shows that articles have been deposited in the Court of Addl. Sessions Judge, Nimbahera. 21. That on 22. 12. 1995, statement of PW6 Ashok Kumar was again recorded. 22. That on 4. 1. 1996, statements of accused were recorded and case was ordered to be listed for arguments on 22. 1. 1996. 23. That from the order sheet dated 29. 8. 1996, it appears that this case was again transferred from the Court of ADJ, Nimbahera to the Court of Addl. Sessions Judge No. 1, Chittorgarh, in pursuance of the order dated 2. 8. 1996 passed by this Court in S. B. Cr. Misc. Bail Petition No. 1792/96. 24. That on 17. 10. 1996, the judgment was pronounced. It may be stated here that since there was confusion about depositing of the seized articles, this Court vide order dated 16. 5. 2001 directed the Registrar General (Vigilance) of this Court to submit the factual report. The Registrar General (Vigilance) submitted his report on 20. 6. 2001. This report shows that contraband articles were deposited in the Court of Sessions, Pratapgarh on 16. 3. 94, but after the transfer of that case from Pratapgarh to Nimbahera, they were not sent back to the Court of Nimbahera and they were deposited in the Court of Nimbahera on 28. 11. 1995. From the report, it further appears that after the transfer of the case from Addl. Sessions Judge, Nimbahera to Addl. Sessions Judge, Chittorgarh, the contraband articles remained with Court of ADJ, Nimbahera and the they were never transferred to the Court of ADJ, Chittorgarh and the same are stilling lying in the Malkhana of Court of ADJ Nimbahera. ;