Puranmal @APPELLANT@Hash State of Rajasthan

U/s. 8/18Â,"NDPS Act 20 years’ rigorous imprisonment and fine of Rs.1 Lakh, in default

of payment of fine to further undergo three years’ simple imprisonment.

U/s. 8/25Â,"NDPS Act 20 years’ rigorous imprisonment and fine of Rs.1 Lakh, in default

of payment of fine to further undergo three years’ simple imprisonment

Section 8/25 of the NDPS Act is per se infirm and not based on proper appreciation of evidence. Elaborating his submissions, Mr. Bishnoi has",

urged that the motorcycle which was allegedly used in commission of crime was transferred by appellant Puranmal to one Laxminarain through,

agreement to sale and no cogent evidence was available on record to show that at the time of commission of alleged offence it was in possession of,

appellant Puranmal. It is also contended that in this behalf the learned trial Court has not at all cared to examine testimonies of defence witnesses,

and even during investigation police has not made any endeavour to interrogate Laxminarain, who eventually passed away in the midst of investigation.",

It is also argued by learned counsel that appellants were not previous convicts yet the learned trial Court has handed down maximum sentence of,

20 years, which is per se harsh and not commensurating with the alleged offences. It is also argued by learned counsel that the samples of opium,",

which were kept in Malkhana, were sent to FSL as Article or not is not discernible inasmuch as the statements of Malkhana Incharge Kamlesh",

Kumar (PW9) and PW6 Nathuram are contradictory. Mr. Bishnoi has urged that PW6 Nathuram has even disputed the status of Kamlesh Kumar,

as Malkhana Incharge and on the contrary has deposed that Malkhana Incharge was Surendra Singh.  He, therefore, submits that a lot of",

confusion about Incharge of the Malkhana, where samples were kept, has put a question-mark on the prosecution case as to whether the samples",

reached FSL in selfsame condition.,

Per contra, learned Public Prosecutor, Mr. O.P. Rathi, has strenuously urged that learned trial Court has examined the evidence and other materials",

available on record threadbare in passing the impugned judgment.  Mr. Rathi would contend that though both the appellants were present when,

opium was seized from co-accused Girdhari, but they fled away from the scene and remained at large for almost six years, is sufficient to show their",

involvement in commission of serious offences. Learned Public Prosecutor contends that appellant No.1 Puranmal was registered owner of the,

motorcycle and he being present at the spot, the learned trial Court has rightly concluded use of his vehicle in commission of offence knowingly and",

held him guilty of offence under Section 8/25 of the NDPS Act.,

Learned Public Prosecutor has also argued that the contraband opium recovered in the matter was undeniably above commercial quantity, and",

therefore, the learned trial Court has rightly handed down maximum sentence for offence under Section 8/18 of the NDPS Act.  Learned Public",

Prosecutor has vehemently argued that the contention of learned counsel for the appellants, that samples of contraband opium collected did not reach",

FSL in selfsame condition, is per se superfluous inasmuch statements of Malkhana Incharge Kamlesh Kumar in this behalf are clear and",

unequivocal.  In totality, learned Public Prosecutor contends that the learned trial Court has rightly relied upon the prosecution evidence including",

the evidence of police officer and other officials, and therefore, the contention of appellants in this behalf, that these are interested witnesses, is wholly",

unfounded and bereft of any merit to render the impugned judgment vulnerable.,

I have heard learned counsel for the appellants, learned Public Prosecutor at length, perused the impugned judgment and thoroughly scanned the",

entire record of the case.,

Culpability of the appellants for the charged offences adjudged by learned trial Court is crucial in the instant appeal. Therefore, it would be just and",

appropriate to consider the evidence adduced by prosecution at the threshold.  It is clearly evident from the prosecution case that an information,

received from a Mukhbir prompted C.O. Nimbaheda to proceed for taking appropriate actions against three persons including the appellants after,

complying Section 42 of the NDPS Act. After reaching the spot for carrying out successful operation and to apprehend alleged offenders, police",

party arranged Nakabandi. When a motorcycle, coming from village Chorliya Mewasa with three occupants including one driver and two pillion riders,",

was sought to be intercepted, its driver took a ‘U’ turn 30 mtrs away to dodge police.",

The attempt made by the driver of motorcycle proved abortive and due to high speed the motorcycle turned turtle/skidded.  Thereafter, both",

the appellants fled away and only one incumbent (Girdhari) was apprehended on the spot. From accused Girdhari, police party recovered 15 kg opium",

and during interrogation he named both the appellants as his accomplice.  In due course of time, investigation against Girdhari completed while",

keeping investigation pending against both the appellants under Section 173(8) Cr.P.C.  Investigation against the appellants remained pending for,

almost six years as they could not be arrested. Be that as it may, trial against Girdhari completed and the learned trial Court upon finding him guilty",

for offence under Section 8/18 of the NDPS Act recorded his conviction.,

A very vital question, which emerged for consideration before learned trial Court, was to ascertain presence of appellants on the spot as",

accomplice of Girdhari. In this regard, prosecution has examined three witnesses to establish their presence at the spot accompanying accused",

Girdhari. The important witness is PW15 Sudhir Kumar (Constable), who accompanied the investigation team led by C.O. Nimbahera. Witness",

PW15 Sudhir Kumar identified both the appellants on spot, when they were fleeing away, is clearly discernible from his following statement during",

examination-in-chief:Â Â,

“ftuesa ls eksVjlkbZfdy pkyd o ihNs cSBk O;fDr mBdj mRrj dh rjQ [ksrksa esa Qlys [kMh ml rjQ Hkkxs ftudks eSaus igpku dj crk;k fd,

eksVjlkbZfdy pkyd dk uke iwj.kdqekj fuoklh pjfy;k o mlds lkFk Hkkxk O;fDr xksfoUn dqekj fuoklh pjfy;k gSAâ€​,

Likewise, during his cross-examination, the witness remained unruffled to the extent of identification of both the appellants but for minor distraction in",

confirming his perception with the aid of Girdhari’s disclosure about their names.  The relevant excerpt, of the statements of PW15 during",

cross-examination, reads as under:Â Â Â",

“lwjt dh jk'ksuh iM jgh Fkh fQj Hkh eSus igpku fy;k Fkk fd iwj.k o xksfoUn gSaA eSaus budks ns[kdj gh ns[kk Fkk igpkuk FkkA QnZ f'uk[rxh,

cukdj budh igpku esjs ls ugha djk;h FkhA esjs iksfLVax ds nks O;fDrxr eqykdkr ugha gSA eSaus budks nks lky igys ,d ckj ns[kk FkkA eSaus buds uke igys crk fn;s Fks fdUrq fxj/kkjh ds crkus ds ckn eq>s dUQeZ",

gqvk fd oks iwj.k o xksfoUn gks ldrs gSaAâ€​,

A cumulative reading of the statements of PW15, in my opinion, satisfy the test of normal prudency about identification of both the appellants.  I",

am afraid, some minor discrepancies in his statements cannot discredit entire testimony or make it exculpatory vis-a-vis appellants. On overall",

analysis, it is rather difficult to visualize that testimony of this important witness is impeached by the defence. Â",

Similarly, other witness PW18 Babulal has corroborated the version of PW15 Sudhir Kumar. Following statements of PW18 during his",

examination-in-chief are relevant:,

“eksVj lkbZfdy pkyd o lcls ihNs cSBk gqvk O;fDr mBdj mRrj fn'kk esa [ksrksa dh rjQ Hkkxs ftudks gejkgh dkfu- lq/khj dqekj us igpkurs gq, crk;k",

fd Hkkxus okyk iqj.k dqEgkj gS tks eksVj lkbZfdy pyk jgk FkkAâ€​,

Statements of PW18 during cross-examination are also,

significant which read as under:,

“vt [kqn dgk fd lq/khj us igys gh muds uke crk fn;s FksA esjs bl izdj.k esa igys c;ku gks pqds gSaA eSus iwoZ esa U;k;ky; esa fn-06-10-06 dks,

c;ku lgh fn;s FksA esjs iwoZ ds c;ku ihM&8 dk , ls ch Hkkx lgh fy[kk gSA ;g xyr gS fd lq/khj dqekj us Hkkxus okyksa dks ugha igpkuk gks vkSj uk gh",

uke crk;s gksAâ€​,

On this question of utmost significance, statements of I.O. PW19 Yogesh Kumar are in consonance and conformity with PW15 Sudhir Kumar and",

PW18 Babulal.  That apart, the statements of PW5 are also very much relevant. PW5, during his examinationin-chief, has fully corroborated",

statements of PW15 Sudhir Kumar.  The requisite excerpt from his statements reads as under:,

“aogkW ij ukdscanh ds djhc 20&25 feuV ckn ,d eksVj lkbZfdy xkao vjuksnk l vk jgh FkhA ctkt eksVj lkbZfdy dkys jxa dh gksdj vkj ts 09] 5 , ,e",

4474 FkhA og gels djhc 25&30 QhV nwj iqfyl dks ns[kdj okil pjfy;k dh vksj ?kqekbZ rks eksVj lkbZfdy nf{k.k dh vksj fxj xbZA ml ij cSBs rhu O;fDr,

esa ls nks O;fDr mRrj dh vksj Hkkx x;s ftudks ns[kdj dkfu- lq/khj dqekj us igpku dj dgk fd eksVj lkbZfdy pykus okys iqj.key o mlds lkFk Hkkxk dk uke,

xksfoan gS ftl ij Jheku Mh ckbZ ,l ih lkgc us eq>s o y{ehyky o lhrkjke dks mudk ihNk dj idM dj ykus dk vkns'k fn;kAâ€​",

Therefore, appellants’ contention that they were not seen and identified at the spot but were simply implicated on the basis of statements of co-",

accused Girdhari is bereft of any merit. True it is that Girdhari has disclosed their names but then crucial evidence of I.O. PW19 Yogesh Kumar,",

PW15 Sudhir Kumar, PW18 Babulal and PW5 Devkishan is clear and unequivocal, which has been rightly relied upon by the learned trial Court.",

Moreover, both the appellants remained at large for almost six years from the date of incident is not an insignificant circumstance, if properly",

scrutinized on the basis of above discussed prosecution evidence in order to record satisfaction about presence of appellants at the time and place,

where motorcycle is intercepted by police.,

At this stage, second question pertaining to status of appellant Puranmal, as registered owner of the conveyance motorcycle carrying contraband,",

merits examination.  The requisite evidence of PW16 Mukesh Kumar in this behalf is clear and explicit.  Relevant part of his statements in,

this behalf is as under:,

“eksVjlkbZfdy vkj ts 09 5 ,e 4474 iwj.key firk cxnhjke iztkir fuoklh pjfy;k rglhy fuEckgsMk ds uke ij fjtLVMZ gksdj gksdj pslhl uacj 91043 batu uacj",

82761 FksA rgjhj izn'kZih 16 gS ftl ij lh ls Mh esjh fjiksVZ gksdj bZ ls ,Q esjs gLrk{kj gSAâ€​",

The so-called agreement to sale for Motorcycle No.RJ-095M-4474, between appellant Puranmal and Laxminarain, was produced before the learned",

trial Court on 21st of September 2015, i.e., after a lapse of more than 11 years from the date of its alleged execution and posterior to death of",

Laxminarain, is per se sufficient to disbelieve the same. Therefore, the learned trial Court has rightly discarded the said agreement Ex.D/3 by",

recording a finding that same appears to be spurious and prepared ante-dated. Although exact date of death of Laxminarain has not come on record,

but there is defence evidence to show that same was never produced before any authority much less registering authority during the lifetime of,

Laxminarain and the appearance of stamp paper, as recently purchased, is yet another circumstance to discredit the same. An affirmative evidence",

showing presence of appellant No.1, at the place of Nakabandi, intercepting motorcycle by police, accompanying other accused persons, being",

registered owner of the vehicle and recovery of opium (contraband) from co-accused Girdhari, sufficiently proves knowingly use of conveyance for",

commission of offence by him.  It is not in dispute that word “knowingly†can be proved either by positive evidence or circumstantial,

evidence.  This sort of situation has persuaded the Court for recording affirmation about finding of the learned trial Court in this regard.,

The third question, which has emerged for consideration, as vociferously canvassed by the learned counsel, relates to compliance of Section 55 of",

the NDPS Act and delivery of the samples to FSL in self-same condition. The object of Section 55 is to keep sanctity of case property. There,

remains no quarrel that intentional and deliberate non-compliance of Section 55 of the NDPS Act may cast a cloud of doubt on the prosecution case,

and certainly cause prejudice to the accused.  Therefore, in order to examine this question, it would be just and proper to examine and re-",

appreciate the evidence available on record. The most plausible evidence in this behalf is that of I.O. PW19 Yogesh Goyal. Relevant part of his,

statement in this behalf reads as under:,

“vkfVZdy 1] 2] o 3 uewuk lsEiy gS ftl ij , ls ch esjs gLrk{kj vkfVZdy 4] 5 o 6 dUVªksy lsEiy gS rFkk vkfVZdy 7] 8 o 9 tIr vQhe gSA vkfVZdy",

ua- 10 ekdZ Mh iSfdV gS ftlesa vQhe dh rhuksa IykfLVd dh FkSfy;ka ftu nks dV~Vksa esa Fkh ftl ij , ls ch esjs gLrk{kj gS] bZ ls ,Q eqyfte fxj/kkjh",

ds gLrk{kj rFkk 'ks""k ekSrchjksa ds gLrk{kj rFkk ,Dl LFkku ij uewuk lhy vafdr gSA vkfVZdy 1 ls yxk;r 6 dh fpVksa ij , ls ch esjs gLrk{kj] th ls ,p",

fxj/kkjh ds gLrk{kj gS 'ks""k gLrk{kj ekSrchjku ds gSA vkfVZdy 7] 8 o 9 ij lhYMfpV gS ij ckWDl ls ckgj fudkyus dh fLFkfr esa ugha gSAâ€​",

Furthermore, his other statements are also throwing light on the procedure adopted in compliance of Section 55 of the NDPS Act and exhibiting FSL",

Report.  The requisite excerpt from the statement of PW19 reads as under:,

“ipkZdk;eh izn'kZ ih&14 gS ftl ij th ls ,p o bZ ls ,Q esjs gLrk{kj gSA pkd ,QvkbZvkj izn'kZ ih&15 gS ftl ij lh ls Mh esjs gLrk{kj gSA /kkjk 57",

,uMhih,l ,DV dh lwpuk izn'kZ ih&18 gS ftl ij , ls ch ,lih lkgc ds rFkk lh ls Mh ,Mh'kuy ,lih lkgc ds gLrk{kj rFkk , ls ch esjs gLrk{kj gSA bl izdj.k dh ,Q,l,y",

fjiksVZ izn'kZ ih&19 gSA uewuk lhy dh QnZ izn'kZ ih&19 gS ftl ij ,Dl LFkku ij uewuk lhy o , ls ch esjs gLrk{kj gSA /kkjk 55 ,uMhih,l ,DV dh QnZ",

izn'kZ ih&5 gS ftl ij bZ ls ,Q esjs gLrk{kj gS rFkk th ls ,p ekSrchj jbZ'k eksgEen rFkk , ls ch lq/khj dkfuLVscy rFkk lh ls Mh eky[kkuk bUpktZ deys'k",

ds gLrk{kj gSA ekSds ij tks QnZ tCrh cukbZ tks izn'kZ ih&6 gS ftl ij ds ls ,y esjs gLrk{kj gS rFkk ,Dl LFkku ij uewuk lhy vafdr o lh ls Mh vfHk;qDr",

fxj/kkjh ds gLrk{kj rFkk 'ks""k gLrk{kj ekSrchjku ds o tkIrk ds gSAâ€​",

The other witness, Malkhana Incharge, PW9 Kamlesh Kumar, in his statements has explained with clarity and precision the compliance of Section",

55 of the NDPS Act and delivery of samples to FSL in self-same condition. The statement of the witness in this behalf reads as under:,

“ml fnu fMIVh lkgc us nl vkfVZdy o ,d eksVjlkbZfdy eky[kkus esa tek djokus ds fy, nh Fkh ftlesa ls nks lSEiy ekdZ ,1 o ,2 diMs dh Fksyh esa lhy",

phV FksA ch1 ch2] lh1 o lh2 lhy phV FksA ftldk eSaus eky[kkuk jftLVj esa bUnzkt fd;k FkkA eky[kkuk jftLVj izn'kZ ih 16 gS tks izn'kZ ih 16, bldh",

i=koyh ij izfr gSA eky[kkuk jftLVj esa bUnzkt esjk dyeh gSA fnukad 5-9-05 dks dkLVscy uFkqyky dks rhu lSEiy ekdZ ,1 ch1 lh1 lhy gkyr esa ,Q,l,y",

t;iqj esa tek djokus ds fy;s laHkyk;s Fks ftldk i`â€Bkadu izn'kZ ih 16 ij , ls ch gksdj lh ls Mh esjs gLrk{kj gSA bZ ls ,Q uFkq dkLVscy ds gLrk{kj gSA",

uFkqyky us mDr lEiy fnukad 6-9-05 dks tek djokdj jlhn izn'kZih 2Â 8-9-05 dks ykdj is'k dh ftldk bUnzkt jftLVj esa th ls ,p Hkkx esa fd;k gS ,Dl LFkku",

ij czkl lhy dh eksgj gSA eky esjs ikl tc jgk rc rd lhy phV gkyr esa jgk FkkAÂ /kkjk 55 dh QnZ izn'kZih 5 gS ftlds vuqlkj gh eSaus eky[kkus dks tek,

fd;k Fkk ftl ij lh ls Mh esjs gLrk{kj gSAâ€​,

The other witness Nathuram (PW6), on whose testimony appellants have placed reliance to discredit evidence of PW9 Kamlesh Kumar, in my",

opinion, is an ambitious plea and bereft of any substance.  As a matter of fact, the complaint about noncompliance of Section 55 of the NDPS Act",

and expression of doubt about status of PW9 as Malkhana Incharge is per se based on complete misreading of his statements.  The relevant,

excerpts from his statement are as under:,

“eSaus uewus flyfpV voLFkk esa izkIr fd;s o flyflV voLFkk esa gh tek djk;s FksAâ€​Â,

His statements during cross-examination are as under:,

“eky[kkuk bapktZ deys’k dqekj ckn esa fuyfEcr gqvk gks rks irk ughaA ;g lu~ 2006 rd eky[kkuk bapktZ jgk Fkk Aâ€​.,

Thus, there is apparently no reason to believe that investigating agency has not made compliance of Section 55 of the NDPS Act much less intentional",

and deliberate non-compliance.  It is also noteworthy that the samples were delivered to FSL in self-same condition and report of FSL Ex.P/19,",

showing positive tests for the presence of chief constituent of coagulated juice of opium poppy having 3.32% morphine, 3.32% morphine and 3.8%",

morphine in all the three samples, contained in packets marked A-1, B-1 & C-1 respectively.  In this view of the matter, finding of the learned",

trial Court on this question is based on sound reasonings, and therefore, cannot be faulted.Â",

U/s. 8/18 NDPS Act,"10 years’ rigorous imprisonment and fine of Rs.1 Lakh, in default of

payment of fine to further undergo six months rigorous imprisonment.

U/s. 8/25 NDPS

Act","10 years’ rigorous imprisonment and fine of Rs.1 Lakh, in default of

payment of fine to further undergo six months rigorous imprisonment.Â