Rajpal Son of Munshi Ram Ji vs State of Rajasthan

These two appeals are directed against the judgment dated

23.12.2011 passed by the learned Special Judge, NDPS Act Cases,

Chittorgarh in Sessions Case No.38/2009 whereby, the appellants

were convicted and sentenced as follow:-

Rajpal

8/15 (C) of the NDPS Act - 18 years'' R.I. and a fine of Rs.1,80,000/- in default of payment of fine to further undergo 2 years'' R.I.

Kaluram

8/15 (C) of the NDPS Act - 18 years'' R.I. and a fine of Rs.1,80,000/- in default of payment of fine to further undergo 2 years'' R.I.

8/25 of the NDPS Act - 18 years'' R.I. and a fine of Rs.1,80,000/- in default of payment of fine to further undergo 2 years'' R.I.

All the sentences were directed to run concurrently.

The appellant Rajpal has remained in custody for more than

8 years whereas the appellant Kalu Ram has reportedly suffered

custodial period of about 6 years 4 months. Both the appellants

herein were apprehended by the SHO Police Station Nimbahera on

25.03.2009 while allegedly transporting contraband poppy straw

weighing 18 quintals in a mini truck No.RJ-23-G-2705. After trial,

they were convicted and sentenced as above.

Learned counsel representing the appellants have raised a

solitary ground to challenge conviction of the appellants urging

that the seized Muddamaal was not proved by the prosecution at

the trial. On this aspect, the learned trial court made the following

observation at para No.29 of the impugned judgment which is

reproduced for sake of ready reference:-

"VERNACULAR MATTER OMITTED"

From a bare perusal of the above mentioned observation

made by the trial court, it is apparent that the prosecution did not

exhibit the seized Muddamaal in the self same condition because

the seizure officer Ramniwas (PW-17) admitted in his cross-

examination that 66 gunny bags, which were produced by him in

the court, did not bear any chits or identifying marks so as to

connect or link them with the recovery and seizure allegedly

effected from the accused in the case at hand. Apparently thus,

the accused cannot be convicted for the alleged recovery of 18

quintals poppy straw effected by SHO Ramniwas from 66 gunny

bags while being plied by the accused in a mini truck No.RJ-23-G-

2705. While drawing samples, the SHO collected 100 gms. of the

suspected contraband from each gunny bag. Thus, total 6 Kgs.

600 gms of the substance seized was forwarded to the FSL from

where a report adverse to the accused was received only. These

samples weigh 6 Kgs. 600 gms. poppy straw only were proved in

an intact condition by the seizure officer and bore chits and seals

with signatures of all concerned including the accused persons.

Admittedly, the seizure officer or the investigating officer did

not follow the procedure of Section 52A of the NDPS Act and no

process of preparing samples and taking photographs of the

seized muddamaal was conducted thereunder so as to give

alternate evidence of the seized goods. Thus considered in light of

the ratio of Supreme Court judgments in the cases of Jitendra &

Ors. Vs. State of Madhya Pradesh reported in 2003-04

(Supp) CrLR (SC) 699, Ashok alias Dangra Jaiswal vs. State

of M.P . reported in AIR 2011 Supreme Court 1335 and Vijay

Jain Vs. State of M.P. reported in 2013(14) SCC 527, the

evidence of the seizure officer cannot be accepted for the entire

seized contraband i.e. 18 quintals of poppy straw. The reason for

reaching this conclusion, as mentioned above, is that the

prosecution did not give any primary evidence of the seized goods

by exhibiting the same at the trial. However, there is cogent

evidence on record to satisfy the Court regarding recovery of 6

Kgs. 600 Gms. poppy straw in form of samples collected by the

seizure officer because the samples were exhibited and proved by

the I.O. beyond all manner of doubt. Thus, at best, conviction of

the accused can be upheld for recovery of 6 Kgs. 600 Gms. poppy

straw which weighs below commercial quantity. Their conviction

cannot be sustained for recovery of poppy straw weighing 18

quintals as recorded by the trial court.

The appeals thus deserve to be allowed in part. The

impugned judgment 23.12.2011 passed by the learned Special

Judge, NDPS Act Cases, Chittorgarh is set aside to the extent, the

conviction of the appellants was recorded for the offence under

Sectin 8/15 (C) of the NDPS Act and instead, their conviction is

converted to one under Section 8 / 15(B) of the NDPS Act i.e. for

possession of inflationary quantity of contraband poppy straw as

well as for the offence under Section 8 / 25 of the NDPS Act for

transporting the said quantity of poppy straw.

At the same time, the conviction of the appellant Kalu Ram cannot be sustained for the offence under Section 8 / 25 of the

NDPS Act because the said provision postulates culpability of the

owner or occupier of a house, encloser, space, place or

conveyance when such owner or occupier, permits the space/

conveyance to be used for commission by any other person of an

offence punishable under any provision of this Act. In the case at

hand, it is the positive case of prosecution that appellant Kalu Ram

being a registered owner was himself present in the car and was

actively transporting the poppy straw. Thus, the situation is not

one where the appellant Kalu Ram being the owner of the

offending vehicle, permitted his vehicle to be used by any other

person for committing an offence punishable under the NDPS Act .

The case is admittedly one where the registered owner himself

used the vehicle for transportation of contraband poppy straw and

hence the charge under Section 8 / 25 of the NDPS Act is ex-facie

untenable. Thus, the conviction of the appellant Kalu Ram cannot

be sustained for the offence under Section 8 / 25 of the NDPS Act

and he is acquitted of the said charge.

Resultantly, the appeals are accepted in part. The impugned

judgment dated 23.12.2011 passed by the learned Special Judge,

NDPS Act Cases, Chittorgarh is modified as below:-

Conviction of both the appellants is altered from the offence

under Section 8 / 15(C) of the NDPS Act to one under Section

8 / 15(B) of the NDPS Act. The appellant Kalu Ram is acquitted

from the offence under Section 8 / 25 of the NDPS Act. As

mentioned above, the appellant Kalu Ram has remained in

custody for a period exceeding 6 years whereas the appellant

Rajpal has remained in custody for a period exceeding 8 years.

Thus, the substantive sentence of the appellants for the offence

under Section 8 / 15(B) of the NDPS Act deserves to be reduced to

the period already undergone by them. The fine imposed upon

each of the appellants is reduced to Rs.10,000/- and in the event

of non-payment of fine, each appellant shall further undergo two

months'' simple imprisonment. The appellant Rajpal is in custody.

He shall be released upon depositing the amount of fine if not

wanted in any other case. The appellant Kalu Ram is on bail. He is

given two months'' time to deposit the fine. If fine is deposited by

Kalu Ram within two months, his bail bonds shall stand

discharged. If he fails to do so, the trial court shall take steps to

recover the fine amount as per law.

The appeals are partly allowed in the above terms.

Record be returned to the trial court. A copy of this order be

placed in each file.