Mani Ram vs State of Haryana

R.L. Anand, J. (Oral)

This is a criminal appeal filed by Mani Ram son of Lakhmi Chand and has been directed against the judgment dated 7.7.1997 and order dated 8.7.1997 passed by the court of Addl. Sessions Judge, Sirsa, who convicted the appellant under Section 15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter called `the Act'') and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 1 lac. In default of payment of fine, the appellant was directed to further undergo rigorous imprisonment for two years.

The brief facts of the case are that on 4.7.1992 Shri Ramesh Pal, SHO/Inspector along with other police officials namely Randhir Singh, Ranbir Singh, Naresh Kumar, Om Parkash and Rajbir constables was going towards Nathusari Chopra in connection with the investigation of a case under Section 302 I.P.C. and when they reached at the bus stand of village Darba Kalan, PW Rameshwar met them. While he was talking with said Rameshwar, a secret information was received by him that Ram Murti and Mani Ram accused residents of village Darba Kalan had kept concealed poppy straw under the fodder in their Nohra and if the raid is conducted then heavy quantity of poppy straw could be recovered. On this information the police party including Rameshwar Dass PW raided the Nohra where Ram Murti was apprehended at the spot and accused Mani Ram ran away on seeing the police party. Shri Ram Kishan, Addl. Superintendent of Police, Sirsa was called on the spot in the case of Ram Murti as a separate case was registered against Ram Murti under the Act. In the presence of Ram Kishan, Addl. Superintendent of Police search of Kotha Toori of Mani Ram was conducted and eight bags of choora post were recovered. On weighment each bag was found weighing 40 Kgs. A sample of 200 grams was taken out from each bag and all the samples and eight bags containing the residue were separately sealed with the seal of `RPI'' and `PS''. The samples and the residue Ex.P1 to Ex.P8 were taken into possession by the police vide recovery memo Ex.PB signed by the PWs and attested by the Addl. Superintendent of Police. The seal bearing inscription `RPT'' after its use was given to PW Rameshwar. The Investigating Officer sent ruqa Ex.PF to the police station on the basis of which formal FIR Ex.PF/1 was recorded by Rajender Singh. He called Shri Daya Nand, SHO of Police Station Nathusar Chopta and further investigation were conducted by him. Dya Nand, SI prepared rough site plan of the place of recovery and he recorded the statements of the witnesses. PW5 Ramesh Pal has also handed over eight sample parcels and eight bags duly sealed with the seals of `RPT'' and which he deposited with the MHC on reaching the police station. Accused was arrested on 26.8.1992 when one Daya Ram produced the accused before the Inspector. The sample of the poppy straw were sent to the office of Forensic Science Laboratory, who vide report Ex.PG declared the contents as poppy straw. On completion of the investigation of the case, accused Mani Ram was challaned under Section 15/16 of the Act in the Court of Area Magistrate, who supplied the copies of the documents to the accused as required under the law and vide commitment order dated 12.1.1994 committed the accused to the Court of Session.

Vide orders dated 9.3.1994 the accused was chargesheeted under Section 15 of the Act on the allegations that on 4.7.1992 in the area of Darba Kalan he was found in possession of 320 Kgs. of poppy straw without any licence of permit in eight bags and thereby committed the said offence.

The charge was read over and explained to the appellant to which he pleaded not guilty and claimed a trial.

In order to prove the charge, the prosecution examined PW1 SI Daya Nand, PW2 Rameshwar Dass, PW3 Ram Kishan, PW4 HC Randhir Singh and PW5 Inspector Ramesh Pal besides tendering into evidence report of Chemical Examiner and statements of formal witnesses.

Statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were put to him. Accused denied those circumstances and stated that he has been falsely implicated in this case. Precisely his statement was as follows :

"I am innocent. I reside in my house alongwith my other family members. Police never raided my house and nothing incriminating article was ever recovered from my house. I was called to the Police Station and this false case was planted upon me."

In defence, accused examined Constable Partap Singh, DW1 who stated that as per Roznamcha dated 4.7.1992 SI/SHO Ramesh Pal left the Police Station to appear before A.S.P., Sirsa vide DDR No. 6 at 9/10.00 a.m. In the cross examination it has come that Ramesh Pal, SHO returned to the police station at 11.30 p.m. vide DDR No. 31. DW2 is MHC Randhir Singh. The accused tendered into evidence certified copy of the judgment dated 4.11.1996 Ex.DB which shows that his real brother Ram Murti has been acquitted.

The learned trial court relied upon the story of prosecution and rejected the defence version and convicted and sentenced the accused in the manner as stated above and aggrieved by his conviction and sentence, the present appeal.

I have heard Mr. D.N. Ganeriwala, Advocate on behalf of the appellant, Mr. J.S. Ahlawat, Advocate on behalf of the State of Haryana and with their assistance I have gone through the record of this case.

The learned counsel for the appellant has assailed the judgment and order of the trial court and his first submission is that the mandatory provisions of Section 42 of the Act have not been complied with when the Investigating Officer on receipt of secret information did not send the report to the immediate official superior. I find merit in this contention. It is the case of the prosecution that Ramesh Pal received secret information against Mani Ram appellant and his brother Ram Murti to the effect that both the brothers had kept concealed sufficient amount of poppy straw in their Nohra and if a raid is conducted the same could be recovered. In these circumstances, it was obligatory on the part of the Investigating Officer to send a special report under Section 42(2) to his immediate officer superior, which has not been done in this case. On this ground the search of the house of Mani Ram is illegal.

It was then submitted by the learned counsel for the appellant that before conducting the search of the house of Mani Ram, it was obligatory on the part of the Investigating Officer to associate independent witnesses from the locality where the house of the appellant was situated and by not doing so he has violated the provisions of Section 100(4) Cr.PC. and Section 51 of the Act. Again I find merit in the contention of the learned counsel for the appellant. Section 51 of the Act lays down that the provisions of the Code of Criminal Procedure, 1973 shall apply, in so far as they are not inconsistent with the provisions of this Act to all warrants issued and arrests, searches and seizures made under this Act. Though Section 100(4) Cr.P.C. is not mandatory in character yet the noncompliance of this section makes the case of the prosecution doubtful for which the benefit of doubt has to go to the appellant.

It was also the submission of the learned counsel for the appellant that the prosecution has not been able to prove the case as alleged even on merits as Rameshwar PW2, who admittedly was with the police party at the time of the secret information, had not supported the case of the prosecution. I again find merit in the contention raised by the learned counsel for the appellant. Rameshwar PW2 is the person, who admittedly was present with the police party at the time of alleged recovery. However, while appearing as PW2 he stated that in his presence the house of appellant was not raided by the police nor any poppy straw was recovered from him. This witness was declared hostile and in spite of the fact that opportunity was given to the prosecution to cross examine this witness, no circumstance has come from his statement so as to help the prosecution. Rather this witness stood to his guns and did not support the case of the prosecution.

The learned counsel for the appellant further submitted that it has not been proved on the record that appellant Mani Ram was in exclusive possession of the Nohra from where the alleged poppy straw was recovered as no independent witness has been examined so as to establish the ownership of the property from where the poppy straw was recovered. This contention is not devoid of any merit. The case of the prosecution is that secret information was received by Ramesh Pal, Inspector against Ram Murti and Mani Ram. The police party which was comprised of several constables and independent witness raised the Nohra of Ram Murti and Mani Ram. Ram Murti was apprehended at the spot and from his possession the poppy straw was recovered. Admittedly, Mani Ram was not apprehended at the spot. The possibility cannot be ruled out that Mani Ram might have been implicated in this case on account of real brother of Ram Murti. There can also be possibility that the eight bags of poppy straw might be in the knowledge and possession of Ram Murti and in order to implicate the appellant, the recovery of eight bags have been shown from his alleged possession. Until and unless the prosecution establishes the exclusive possession of the appellant with regard to the property from where eight bags of poppy straw were recovered, the appellant cannot be convicted. No person from the neighbourhood has been examined so as to establish that Mani Ram was the exclusive owner of the property and a reasonable inference can be drawn that Mani Ram was in the know of eight bags which had been concealed in his Nohra. Yet another submission was raised by the learned counsel for the appellant that on that day the police had registered two criminal cases vide F.I.R. No. 87 and 88 against Ram Murti and Mani Ram respectively. First, Ram Murti was apprehended at the spot by this very Investigating Officer in the presence of the same set of witnesses and vide judgment Ex.DB Ram Murti has already been acquitted and in these circumstances the reliance cannot be placed on the testimony of Ramesh Pal Inspector and his police party members with regard to the present recovery of eight bags from the possession of Mani Ram. This submission is also acceptable to the court. No reliance can be placed on the testimony of Ramesh Pal and the other set of witnesses especially when PW2 Rameshwar Dass has not supported the case of the prosecution and when the testimony of Ramesh Pal has been disbelieved qua Ram Murti.

Resultantly, I allow this appeal, set aside the judgment and order of the learned trial court and acquit the appellant of the charge framed against him.

The case property stands confiscated to the State and shall be destroyed according to rules.

Let the intimation about the acceptance of this appeal be sent to the Superintendent, District Jail, Sirsa so that the appellant may be set at liberty forthwith if not convicted or wanted in any other case.