State of Rajasthan vs Mana Singh @ Roshan Singh

R.S. Chauhan, J.—The State of Rajasthan is aggrieved by the judgment dated 10.6.2010 passed by the Special Judge, NDPS Act Cases, Sri Ganganagar, whereby the learned Judge has acquitted the accused-respondent, Mana Singh @ Roshan Singh, for offences u/s 8 /21 of the NDPS Act. In brief, the facts of the case are that of 7.2.2008, a formal FIR was registered against Mana Singh, inter alia, stating that on 28.1.2008 he was arrested in FIR No. 28/08, registered for offence under Sections 302, 201, 120B IPC. He was sent into judicial custody. However, subsequently, he made a voluntarily statement u/s 27 of the Evidence Act before Narendra Kumar (PW 14), the SHO Police Station, Kotwali, wherein he informed him that he can take him to his house, and recover 370 grams of smack. Upon this information, given u/s 27 of the Evidence Act, the accused was taken to his house. Subsequently, the police discovered 375 grams of smack. Thereafter, the police filed a charge-sheet for offence u/s 8 /21 of NDPS Act against the accused.

In order to support its case, the prosecution examined fourteen witnesses, and submitted few documents. However, the defence neither produced any witness, nor submitted any document. After going through the oral and documentary evidence, the learned Judge acquitted the accused-respondent vide judgment dated 10.6.2010. Hence, this criminal leave to appeal before this Court.

Mr. O.P. Singharia, the learned Public Prosecutor, has vehemently contended that the learned Judge has failed to appreciate the evidence in proper perspective. The learned Judge has failed to appreciate that according to the police witnesses, 370 grams of smack was recovered from the room which belonged to the accused. Hence, the smack was recovered from his conscious possession. According to the FSL report, the smack so recovered contained 13.54% grams of morphine. Therefore, according to the learned Public Prosecutor, the prosecution had proved its case beyond a reasonable doubt.

On the other hand, Mr. Rakesh Matoria, the learned counsel for the accused/respondent, has strenuously contended that the story of the prosecution is replete with contradictions: the prosecution has failed to show as to when the accused was taken into the police custody as according to the prosecution, the accused was arrested on 20.11.2008, and was sent into judicial custody. Therefore, it is clear as to how the statement was made u/s 27 of the Evidence Act, especially when the accused was said to be in jail. Secondly, according to Narendra Kumar (PW 14) he had the belief that too much time would be taken to get the search warrant. Therefore, he proceeded to the house of accused without seeking a proper search warrant from the Magistrate. However, considering the fact that the accused was in judicial custody, the belief entertained by Narendra Kumar was obviously misplaced. Thirdly, since the house was not in the exclusive possession of the accused, the prosecution could not claim that the contraband drug was recovered from his "conscious possession." Fourthly, there is contradiction amongst the witnesses as to the exact place from where the contraband drug was recovered. According to some of the witnesses, the drug was recovered from behind the T.V. Set, which was in the room, while according to others, it was recovered from behind an attached which was lying behind the T.V. Moreover, according to few witnesses, the drug was weighted on electric machine, yet according to others, it was weighted manually using a balance. The learned counsel pleads that these contradictions and lacunae have been rightly noticed by the learned Judge. Therefore, the learned Judge was justified in acquitting the accused. Hence, the learned counsel has supported the impugned judgment.

Heard the learned counsel for the parties and perused the impugned judgment.

Needless to say, the distance between "may be true" and "must be true" is a long distance, which the prosecution is expected to cover. The prosecution is equally required to establish each fact through cogent evidence. Therefore, it was imperative for the prosecution to first establish as to how the police had gotten the custody of the accused, especially when he was incarcerated in jail in an alleged case of murder. According to Narendra Kumar (PW 14), the accused was lodged in jail i.e. in judicial custody in a case of murder. However, Narendra Kumar (PW 14), in his testimony, does not explain as to how and when did the police receive the appellant in the police custody. The learned Judge has noticed the fact that the prosecution has not submitted any document of the murder case to show that the accused was transferred from the judicial custody to the police custody. Therefore, the circumstances in which a statement u/s 27 of the Evidence Act was made in shrouded in mystery. Secondly, the learned Judge has also noticed the fact that according to the provision of the NDPS Act, before proceedings to search a house, the Investigating Officer is required to get a search warrant issued by a Magistrate, unless, he is of opinion that it will take a long time to get the search warrant and during this period the contraband drug (gay be dispersed). However, in the present case, since the accused was already in jail, there was no reason for Narendra Kumar (PW 14) to entertain the belief that the contraband drug would be dispersed. Therefore, the explanation given by him for not seeking a search warrant was clearly untenable:

The learned Judge has also noticed, the fact that search was made around 12 O''clock in the afternoon. Yet Narendra Kumar (PW 14) did not associate any independent witnesses from the neighborhood. Instead, he took two witnesses for the bus stand. Since the neighbours would have been available, in the bright day light, there was no reason for the Investigating Officer for omitting to take independent witnesses from the neighborhood itself.

The learned Judge has also noticed the fact that according to the witnesses when they reached the house, the house was unlocked, and was under the occupation and possession of the father and the wife of the accused. Therefore, it is difficult to belief that the house was in the sole possession of only the accused and not of any other person. Moreover, the learned Judge has also noticed that while Narendra Kumar (PW 14) claims that the contraband drug was discovered from behind the T.V. set, Gopal Prasad (PW 8) claims that the contraband drug was in fact recovered from behind a attache kept behind the T.V. According to him, the bag of contraband drug was not inside the attache but was behind the attache. Moreover, while Narendra Kumar (PW 14) claims that the contraband drug was weighted on Electric Machine, but Gopal Prasad (PW 8) claims that it was weighted manually. Thus, there are pertinent contradictions between the testimonies of Narendra Kumar (PW 14) on the one side, and Gopal Prasad (PW 8), on the other side. Since, the prosecution has not declared Gopal Prasad (PW 8) as a hostile witness it is equally bound by his testimony. Since the prosecution case is replete with lacunae, and with self-contradictory evidence, the learned Judge was certainly justified in granting the benefit of doubt to the accused respondent. Hence, this Court does not find any illegality, or perversity in the impugned judgment. For the reasons stated above, this leave to appeal is devoid of any merit; it is, hereby, dismissed.