SANDEEP MEHTA,J. - (1.) By way of this revision the petitioner Bhakar Ram has approached this Court for challenging the order dated 8.3.2017 passed by the learned Special Judge, NDPS Act Cases, Phalodi in connection with F.R. No.14/2012 arising out of FIR No.5/2012 of P.S. Jamba whereby, the trial Court rejected the negative final report submitted by the police under Section 169 Cr.P.C., 1973 and directed taking of cognizance against the petitioner for the offence under Section 8/18 of the NDPS Act.
(2.) Facts in brief are that on 27.2.2012, Sita Ram Sub-Inspector posted as S.H.O., Police Station Jamba allegedly received a source information that Bhakar Ram was involved in illicit trade of opium. Huge consignment of opium had been received and was lying at Bhakar Ram's house who was on the look out for its disposal. The informer suggested that in case a prompt raid was made, heavy quantity of opium could be recovered. The information was considered to be reliable and was taken in writing and a copy thereof was forwarded to S.P., Jodhpur and C.O., Phalodi. Motbirs were summoned through constable Mangi Lal who brought two independent persons namely, Arjun Ram and Mangi Lal to stand as panch witnesses. As the Courts were closed and there was imminent possibility of disposal of the opium by Bhakar Ram, a memo was prepared regarding non-feasibility of procuring a search warrant. Thereafter, the S.H.O. Sita Ram, accompanied by constables of P.S. Jamba proceeded to the house of Bhakar Ram at Bajrang Nagar, Surpura. Bhakar Ram was found present in the house. He was apprised of his rights and consent was taken from him regarding search proceedings to be conducted as per NDPS Act. No incriminating material was recovered in Bhakar Ram's personal search. Thereafter, the search of Bhakar Ram's house was undertaken. A hut constructed in front of his house was searched wherein, a white coloured plastic bag containing thick semi solid substance was found concealed under cattle fodder. The substance smelt and tasted like opium milk. Its weight was found to be 3 kgs. Bhakar Ram was not having license to possess such huge quantity of opium hence, he was arrested. 2 samples of 50 grams each were taken out from the contraband seized and were sealed and marked with identifying chits. Following the seizure, an FIR No.5/2012 was registered at P.S. Jamba and investigation commenced. Numerous investigating officers investigated the matter and thereafter, negative final report was submitted in the Special Court assigned the following reasons:- (1) Call details of mobile held by Sita Ram were taken out upon which it was found that neither did he receive any call from the informer on 20.7.2012 at 7:00 AM nor any such call was received at the police station. As a matter of fact, Karna Ram Foot Constable received a call from Dinesh Kumar at 6:43 AM and the said call was by way of the source information. Sita Ram received the information about the consignment of opium from Karna Ram. Thus, the claim made by Sita Ram, S.H.O. that he himself received the source information at 7 AM was false. (2) There was enmity between families of Bhakar Ram and Dinesh Kumar and an FIR No.15/2012 had also been registered against Dinesh Kumar etc. at P.S. Phalodi for assaulting Bhakar Ram's son. Charge-sheet was filed after investigation against Dinesh Kumar, Keshar Ram and Mahi Ram in the concerned Court on 15.1.2012. Dinesh Kumar himself was suspected to have planted the opium milk and then gave information regarding concealment thereof to the police. (3) The recovery was not effected from Bhakar Ram's house but was made from a hut located outside the house. Dinesh Kumar was suspected to have planted opium milk in the hut in order to falsely implicate Bhakar Ram. (4) The hut from which opium milk was recovered was situated in Khasra No.426 which was in joint possession of Mohan Ram, Sohan Ram, Radhakishan and Bhakar Ram. The khatedari land had not been partitioned and Dinesh Kumar etc. were also shareholders therein through inheritance. (5) Independent panchas denied having gone to Bhakar Ram's house on the relevant date. The motbir Mala Ram's mobile call details totally ruled out his presence at Bhakar Ram's house.
(3.) It is interesting to note here that upon submission of the negative final report, the seizure officer Sita Ram personally engaged a lawyer and moved an application under Section 190 Cr.P.C., 1973 making a prayer for taking cognizance against the accused. The trial Court rejected the prayer of Sita Ram holding that he had no locus standi to file such an application. However, the trial Court considered the material available on record and proceeded to hold that the opium was recovered from the hut in possession of Bhakar Ram and consequently, the circumstances warranted issuance of process against him for the offence under Section 8/18 of the NDPS Act. The said order dated 8.3.2017 passed by the trial Court is under challenge in this revision petition.;