Nathu Lal and Others vs State of Rajasthan

Sandeep Mehta, J.—These two appeals, have been preferred by the appellants challenging the judgment dated 12.9.2011 passed by the learned Special Judge, NDPS Cases, Chhabra Dist. Baran in Session Case No. 55/2007 convicting them for the offence under Section 8/18 of the NDPS Act and sentencing each of them to 10 years R.I. and a fine of Rs. One Lakh, in default of payment of fine to further undergo six months R.I. Briefly stated, the facts of the case are that Jodha Ram, PW 8, SHO, Chhabra allegedly apprehended the appellants herein on 26.4.2007 and recovered contraband opium from the bags held by them as described below:

Nathulal 3 Kgs.

Kalyan 3 Kgs.

Ramcharan 4 Kgs.

After following the usual procedure of search and seizure, registration of F.I.R. and investigation, a charge-sheet was filed against the three appellants for the aforesaid offences Charges were framed against them for the offences under Section 8/18 of the NDPS Act. The appellants pleaded not guilty and claimed trial. The learned trial Judge at the conclusion of the trial proceeded to convict and sentence the appellants as above. Hence, this appeal.

Learned counsel for the appellants have restricted their arguments to a solitary ground for challenging the conviction of the appellants. They urged that the recovered contraband as well as the samples collected during investigation and received back from the FSL were not produced and exhibited before the Court during trial and thus the conviction of the appellants is vitiated. Learned counsel urged that proving the goods recovered (Mudda Maal) by physically producing them in the Court is mandatory as per law and was not followed by the prosecution. It is urged that by the non production of Mudda Maal in the Court, the prosecution failed to physically prove that any contraband opium was actually recovered from the appellants. They relied upon the decisions rendered by the Hon''ble Supreme Court in Noor Aga Vs. State of Punjab and Another, , Ashok @ Dangra Jaiswal Vs. State of M.P., ; Jitendra & Anr. v. State of M.P. 3 and Vijay Jain Vs. State of Madhya Pradesh, and submit that the appellant''s conviction deserves to be set aside on this ground alone.

Learned Public Prosecutor, on the other hand, opposed the submissions advanced by the learned counsel for the appellants and relies on the Supreme Court decision in the case of State of Rajasthan Vs. Udai Lal, .

Heard learned counsel for the appellant and the learned Public Prosecutor. Perused the record and the decisions cited at the bar.

Since the argument advanced by the learned counsel for the appellants is limited to a solitary points mentioned above, the whole prosecution evidence need not be re-appreciated in detail and is being evaluated only for the purpose of analysing the only argument advanced before the Court.

Jodha Ram, PW 8 the Seizure Officer did not produce or exhibit the Mudda Maal or the samples during his examination in chief. Upon being cross examined, he admitted that the articles seized from the accused were not available in the Court.

The argument regarding the prosecution having failed to prove the Mudda Maal by exhibiting it in the Court was advanced before the learned trial court, however, the learned trial court brushed it aside by observing that the non production of the Mudda Maal does not affect the prosecution story.

In the opinion of this Court in view of the judgments rendered by the Hon''ble Supreme Court in the cases cited supra, the production and exhibition of the Mudda Maal and the samples in the Court is mandatory for proving the recovery. The non-production of the articles and the samples in the Court persuades the Court to draw an inference that as a matter of fact no recovery as claimed by the prosecution was effected from the accused. The Hon''ble Supreme Court held that the non-production of Mudda Maal articles in the Court is fatal to the prosecution.

As a result of the aforesaid discussion, the appeals deserve to be allowed and are hereby accepted and the appellant''s conviction cannot be sustained and deserves to be set-aside. Accordingly, the appeals are allowed. The judgment dated 12.09.2011 passed by the learned Special Judge, NDPS Act Cases, Chhabra, Dist. Baran in Session Case No. 55/2007 is set aside. The appellants be released forthwith, if not required in any other criminal case.