State of Rajasthan vs Musaraf and Another

Mahesh Chandra Sharma, J.—State of Rajasthan has preferred this appeal against the order dated November 4, 1997 of Additional Sessions Judge, Baran (Raj.) in Criminal Case No. 28 of 1987 by which the accused respondents were acquitted for the offence under Sections 8/18 of the NDPS Act, 1985.

Brief facts of the case are that on September 16, 1986 Surendra Prasad Sharma, inspector Narcotics Department, Control Room Neemach (MP) lodged a written fir at District Opium officer Kota to the effect that on September 14, 1986 when he along with Preventive Party while on patrolling form Baran to Bamla Road a Jeep No. UHF 8085 was coming from Bamala to Baran, accused respondent Musaraf was driving that jeep and accused Parasram was sitting near him. On searching jeep three begs of Opium weighing 176 Kg. were recovered from the jeep. The recovered opium was weighed in presence of two witnesses Chothmal and Jagannath. On this report District Opium Officer, Kota appointed Dharamvir inspector to investigate the matter, who after investigation filed a challan against these two accused persons u/s 8/18 of the NDPS Act. The case was tried before the Additional Sessions Judge Baran. The trial court framed charge against the accused respondents for the aforesaid offences. The offences were read over and explained to the accused persons and they denied the same and claimed for trial. The prosecution in support of its case examined 9 witnesses. The statements of accused respondents u/s 313 Cr.P.C. were recorded. After hearing arguments the accused respondents were acquitted for the offences charged against them. Against this order of acquittal the State preferred leave to appeal and after leave was granted the same was registered as appeal and hence this appeal.

The learned Public Prosecutor contended that the trial court has not appreciated the prosecution witnesses in a proper manner. According to him prosecution witnesses PW.1 Kamlesh Kumar, PW.4 Lal Chand Driver, PW.5 Surendra Prasad Sharma, PW.6 Mohd. Isakh and PW.7 Dinesh Kumar, all the witnesses have proved that both the accused respondents were caught red handed and 176 Kg. Opium was recovered from them, and the same was sealed and the sealed opium was examined and the result of examination was that the sample was found to be opium, on September 14, 1986 the day on which the accused were caught red handed along with 176 Kg. Opium from both the accused respondents, PW.5 Surendra Prasad Sharma, admitted of having opium in their jeep No. UHF 8085 and got recovered from them. The learned Public Prosecutor further contended that the trial court has not considered the provisions of Section 54 of the NDPS Act which clearly lays down that in case opium is recovered from the accused and if satisfactory explanation is given or rendered by them, then there will be presumption to the effect that accused have committed an offence u/s 54 of the NDPS Act. Hence the order of acquittal passed by the trial court be set aside and the accused respondents should be convicted.

On the other hand, Mr. A.K. Gupta, learned Counsel appearing for the accused respondents, contended that the trial court has considered each and every aspect of the case and nothing remains more to be considered by this Court in appeal. He has drawn attention of this Court on the following cited cases:

(1) 1980 RCC 356 Nihal Singh v. State of Rajasthan:

Sealing of Articles - Absence of evidence Effect; Prosecution not producing any evidence that seals remained untampered till they were delivered at the State Forensic Laboratory packets dispatched from S.P. Office- No question of carrying them person whom and how the packets were taken- Non examination of Incharge Malkhana and non production of entries. Held Recovery and chemical evidence is of no avail and not reliable.

RLW 1983 40 : "Criminal trial sealed articles remained intact-Evidence not produced - Reliance can not be placed:

The prosecution has failed to produce the head mohrir who was incharge of the Maikhana, Police Station, Kesrisinghpur. The evidence''s of the Head Mohrir who was incharge of the Malkhana, at P.S. Kesrisinghpur was necessary for the purpose of establishing that while the packets contained the empty cartridge case and the pistol remained in the Maikhana of police station Kesrisinghpur, the said packets were not tempered with. The aforesaid evidence cannot be treated to be a formal evidence only in view of the decision of the Supreme Court in Ukha Koine v. State of Maharastra AIR 1963 SC 1531

ILR 1953 Raj 655 : "Criminal trial Recovery of articles from accused-Articles to be sealed immediately and seal to remain intact till their identification or chemical examination-Effect of prosecution''s failure to prove this - Articles seal to chemical examiner must be proved to be same as recovered.

RCC 1978 page 158:

Rajasthan Excise Act 1950- Section 54 sealing samples : No evidence that the samples were sealed on the spot, remained intact and in safe custody and were not tempered with till it reached the hands of Chemical Examiner.

There must be some evidence that excisable and illicit articles recovered from the possession of the accused were the very articles which were sent to Chemical Examinor for analysis.

RLW 1966 page 451:

Opium Act Section 4 and 9 - Evidence as to same sample reaching public analyst though formal yet cannot be dispensed with.

No doubt the evidence that the sample of the incriminating articles reached the hands of the chemical examiner in the same condition in which it was taken by the police officer is formal, yet it cannot be dispensed with and in the absence of such an evidence it is open to take a plea that the chemical examination report of the public analyst cannot be read against him.

1980 C.L.R. (SC) 84:

It is admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S.I. Aldanram, P.S. Udai Mandir, Nathusingh, Gajsingh, Jawansingh and the Assistant Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tempered with. The inevitable effect of this omission in that the prosecution failed to rule out the possibility of the samples being changed or tempered with during the period a fact which had to be proved affirmatively by the prosecution.

1980 C.L.R./(Raj.) 509 : "Rajasthan Excise Act, 1950- infirmities in prosecution story the seized bottles reached chemical examiner cannot be taken into consideration and accused is entitled to acquittal.

He has drawn attention of this Court on the findings arrived at by the learned Additional Sessions Judge on the points formulated by the Additional Sessions Judge in the judgment and contended that the investigation was not done by the investigation officer in the eye of law. He has further contended that the main person Ramlakhan was not impleaded as accused. According to the prosecution story there is contradiction and omissions in the statements of the prosecution witnesses.

I have heard the learned Counsel for the parties and gone through the entire record. The judgment passed by the court below is perfectly according to law and there is no illegality or infirmity in the same. Out of the 10 prosecution witnesses, two witnesses were independent and both of them have been declared hostile. All other witnesses were department witnesses. The learned Additional Sessions Judge formulated six points for considerations and I am in agreement with the findings arrived at by the learned Additional Sessions Judge on all the six points. The prosecution has not been able to even prove the seizure memos etc. and hence the order of acquittal passed by the trial court cannot be said to be perverse. The court''s attention was drawn on the judgment of the Hon''ble Supreme Court in Umrao v. State of Harayana and Ors. 2006 SC 10 in which their Lordships of the Supreme Court has observed in para 26 that "it is now well settled that if two views are possible, the appellate court should not interfere with the judgment of acquittal passed by the court below."

For these reasons the appeal filed by the State of Rajasthan is dismissed after confirming the judgment dated October 21, 1987 passed by the Additional Sessions Judge Baran.