Suresh Bawari vs State of Rajasthan

Meena V. Gomber, J.—This appeal has been preferred against the judgment and order dated 2-8-2003 in Sessions Case No. 40/2001 passed by the learned Special Judge, N. D. P. S. Act Cases, Pratapgarh, (for short, "the trial Court" hereinafter), whereby the Appellant was convicted for the offence u/s 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act'' hereinafter) and was sentenced to undergo rigorous imprisonment for 10 years and a fine of Rs. 1 lac in default thereof to further undergo rigorous imprisonment for two years.

Briefly stated facts of the case are that on 17-4-2001 at about 7 a.m. the accused Appellant who was in custody in case No. 26/2000 of P. S. Dhamotar u/s 457, 380 IPC, voluntarily gave an information u/s 27 of the Indian Evidence Act to PW/1 Raghubeer Singh, SHO Police Station, Raghananja that he had hidden his share of opium, stolen by him and his friends from the Opium Weighing Centre, Dhamotar, a year ago, in a deep dug pit covered with an empty cemented water tanki near his father-in-law''s well, which he was ready to get recovered. The information read as under:

(Vernacular matter omitted...Ed.)

PW/1 SHO Raghuveer Singh sent the information to his senior officer, i.e., Deputy Superintendent of Police, Pratapgarh through his driver PW/9 Ranjeet Singh and went along with accused Appellant to the bus stand, from where he took two Motbirs, namely Tikam Singh and PW/2 Salagram. The accused Appellant led PW1 and the Motbirs near the well of his father-in-law and after removing a cemented empty Tanki he dug a pit of about 2 1/2 feet in depth and. took out a plastic Katta containing opium covered in polythene bag and gave it to the SHO. The opium contained in the polythene bag in plastic Katta weighed 5 kilograms, out of which two samples were taken and the accused was arrested and brought along with the representative as well as the controlled samples and also the remaining Opium in sealed condition to the Police Station. The case property was handed over to Malkhana Incharge PW4 Bhanwar Singh, and sample along with specimen seal mark was sent through PW/9 Ranjeet Singh for FSL, who after obtaining forwarding letter from the Office of the Superintendent of Police, deposited the sealed sample with the specimen seal thereof with the Laboratory and obtained the receipt Ex. P/25. Further that the sealed sample remained intact till its delivery to the FSL. As per Ex. P/27, the FSL report, sample marked "A" contained 8.75% Morphin. After completion of investigation, the police filed the charge-sheet against the accused Appellant u/s 8/18 of NDPS Act before the Special Judge, N. D. P. S. Cases, Pratapgarh.

Learned trial Court read over the charge u/s 8/18 NDPS Act to the accused which he denied and claimed trial.

In order to substantiate its case, the prosecution examined as many as 10 witnesses and produced documentary evidence Ex. P/l to P/27. The statement of the accused Appellant u/s 313 Cr. P. C. were recorded, wherein he denied commission of any offence but did not lead any defence evidence. Learned Special Judge, after trial, has convicted the Appellant of offence u/s 8/18 of the Act and sentenced him in the manner stated above.

I have heard Mr. R. S. Chundawat, learned Counsel for the Appellant and Shri Panney Singh, Special Public Prosecutor for the State at length and carefully perused the record of the trial Court.

Mr. R. S. Chundawat, learned Counsel for the Appellant challenged the impugned judgment and order, contending that there is non-compliance of the mandatory provision of Section 42 of the Act because the SHO did not send the memo and the source information Ex. P/1 to his officer superior and did not make the search in the presence of a Gazetted Officer. His next argument was that despite the fact that sole independent witnesses PW 2 Salag Ram could not identify the Appellant in the Court, still the finding of conviction has been arrived at by the trial Court; moreso, according to him, Ex. P/1, the source information, which has been made the basis of the case, had been given when the Appellant was in police custody, cannot be said to be admissible as it is hit by Sections 25 and 26 of the Indian Evidence Act. He also argued that the recovery has been made from a place, which is admittedly the field of his father-in-law and the field is accessible to all and sundry and therefore, recovery cannot be said to have been made from the exclusive possession of the accused Appellant.

On the other hand, learned Public prosecutor vehemently opposed the arguments raised by the learned Counsel for the Appellant and stated that it was on the information of the accused Appellant himself that the bag containing 5 kgs of opium was recovered from a pit dug by him as deep as of 21/2 feet and that too after removing an empty cemented Tanki lying with its bottom up. According to him, specific facts of the case clearly show that it is he and only he, and none else, could be said to be having the knowledge of existence of opium in a hidden pit of the depth of 2 1/2 feet and thus, he not only had the knowledge but also had the dominance over the same and therefore, it can be said to be in his exclusive possession. Moreover, according to the learned Public Prosecutor, the recovery has been made at the instance of accused Appellant on his specific information given u/s 27 of the Indian Evidence Act during the investigation of case of theft of 210 Kilograms of opium of a case registered at Police Station, Dhamotara as F. I. R. No. 26/2000 under Sections 457, 380 IPC against him as well as his other colleague co-accused. Learned Public Prosecutor countered the arguments of the learned Counsel for the Appellant that the information u/s 27 of the Indian Evidence Act is admissible in evidence and the discovery of the opium in the instant case was made consequent to said information received from a person accused of an offence when he was in police custody and so much of the information which relates to the fact of recovery is admissible in evidence. In this case, pursuant to information u/s 27 of the Indian Evidence Act, the recovery was made at the instance of the Appellant accused from the field of his father-in-law, but from a hidden place, which was a deep dug pit that too covered with a heavy empty cemented water Tanki, his contention was that sine qua non for attracting penal provisions of NDPS Act is that the accused must be found in possession of the contraband and that the possession will always imply the consciousness in the mind of a person with regard to that and also the dominion of him and that the peculiar facts with regard to the recovery clearly show that it was in his conscious possession and he had dominance over the contraband.

His next argument was that in this case, the competent authority did not enter to search any building, conveyance or any enclosed place and, therefore, the provision of Section 42 of the Act were not attracted, but according to him, the evidence shows that the source information was recorded and was sent to the superior and that the recovery pursuant to information u/s 27 of the Evidence Act was made after 7:00 a.m. and there is ample evidence in this regard, even the independent witness PW/2 Salagram has supported the prosecution case. Other witnesses, being the police officials and members of the raid party, have proved the case beyond reasonable doubt and their evidence cannot be disbelieved simply because they are the police officials. He submitted that the trial Court has not committed any error, illegality or perversity and the findings of the learned Court below are based on sound and proper appreciation of the evidence available on record.

I have heard the arguments of learned Counsel for the Appellant and learned Public prosecutor and carefully gone through the record.

Out of 10 witnesses examined by the prosecution, PW/1 Raghuveer Singh, SHO was the investigating officer in FIR No. 26/2000 pertaining to the theft of 210 Kilograms of opium, before whom the information u/s 27 of the Indian Evidence Act was recorded. PW/2 Salagram is an independent Motbir for all the memos allegedly made during the search and seizure; PW/3 Man Singh is the investigating officer of the present case. PW/4 Bhanwar Singh, PW/7 Mohanlal and PW/8 Babulal are the members of raid party. It is pertinent to mention here that PW/5 Sajjan Singh and PW/6 Vikram Singh, although declared hostile, have admitted their signatures on Ex. P/16 and in the cross-examination PW/5 admitted that (Vernacular matter omitted....Ed.) Vikram singh P. W. 6 also admitted his signatures but according to him, these signatures were taken because police had come to the village. PW/9 Ranjeet Singh is a Constable and is said to have been given sealed envelope by PW/1 Raghuveer on 17-4-2001 at 7.15 a.m. so as to be delivered to the Deputy Superintendent of Police, Pratapgraph Shri Sawai Singh Godara and that he delivered the sealed envelop at about 8.30 a.m. at his residence and got the receipt Ex. P/2 from him. He is also a carrier of samples given by Malkhana Incharge on 25-5-2001 to be delivered to the FSL and after obtaining forwarding letter from the office of the Superintendent of Police, Chittorgarh, he went to Jaipur to deposit intact sample and got the receipt Ex. P/25.

Out of ten prosecution witnesses, although two turned hostile, but independent witness PW/2 Salagram fully corroborates the testimony of all the members of raid party as well as other circumstantial evidence. PW/8 Babulal Constable has also proved that the investigating officer Bhan Singh arrested Appellant accused Suresh from Javar Jail and gave notice u/s 50 of the Act and he has proved formal memo of arrest as Ex. P/19.

I have carefully gone through the statements of all the witnesses as also the documentary evidence and I find that the learned trial Court has arrived at a finding after proper appreciation of evidence and there does not appear to be any illegality or perversity in the findings arrived at by the learned trial Court. The mandatory as well as directory provisions of NPPS Act also appear to have been fully complied with during the investigation of this case. Legislature, in its wisdom, has laid down certain specific mandatory and directory provisions in view of seriousness of the offences, which adversely affect the society at large and which also prescribe severe punishments; therefore, safeguards have been provided in the Act, so as to avoid misuse thereof.

Admittedly, the information u/s 27 of the Indian Evidence Act was given by the accused voluntarily while in custody. The question arises: as to whether the information given u/s 27 of the Indian Evidence Act leading to the discovery of contraband opium can be said to be so-called source information. It is a settled principle of law that the discovery of a fact in consequence of an information received from an Appellant accused of an offence while in police custody, is admissible. The most important condition is that so much of information as relates to the discovery of a fact and thereby discovery is made, is admissible. In this case, in my opinion, all the predicates required to be satisfied, have been fulfilled by the evidence tendered by the prosecution in the present case. PW/1 Raghuveer Singh along with raid party came to the place disclosed by the Appellant accused in pursuance of information u/s 27 of the Evidence Act and thereafter the Appellant accused, by removing the cemented empty Tanki lying with its face downwards, dug the pit to the extent of 2 1/2 feet and took out the contraband opium lying in a plastic Katta. It was the Appellant accused himself who dug the pit by removing the cemented Tanki and took out the bag out of the pit. It is a common knowledge that Section 27 of the Evidence Act is in the nature of an exception to the preceding sections particularly Sections 25 and 26 and any disclosure or confession made in the police custody is not admissible in evidence and if the discovery does not come within ambit or fold of Section 27, the discovery will be hit by Section 25 of the Evidence Act. In this case, there is sufficient evidence, oral as well as documentary, to reach to an irresistible conclusion that the information leading to the alleged recovery is not hit by Section 25 or 26 of the Evidence Act.

So far as recording of source information and sending the same to the superior, required u/s 42(2) of the NDPS Act is concerned, that has also been clearly proved by PW/9 and PW/1. PW/9 also speaks about the compliance of the requirement of Section 42(2) of the Act and his statements, read with statements of PW/10 Mr. Godara and the document Ex. P/2, clearly go to establish that the compliance of this mandatory provision had been made. Although, it is a big question as to whether in the facts and circumstances of this case, Section 42 of NDPS Act was attracted or that Section 43 of the Act was applicable because the information Ex. P/l pertains to the recovery from a place which was not a building, conveyance of enclosed place, but from a hidden place like a deep pit covered with the cemented "Tanki" in the field of his father-in-law. Sections 42 and 43 of the NDPS Act contemplate two different situations. Section 42 contemplates entry into and search of any building, conveyance or enclosed place; while Section 43 contemplates a seizure made in any public place or in transit. If seizure is made u/s 42 between sun set and sunrise, the requirement of the proviso thereto has to be complied with. There is no such proviso in Section 43 of the Act. Section 43 lays down that for the purpose of this Section, the expression "public place" includes any public conveyance, hotel, shop or other place, intended for use by or accessible to the public. Now the question here is : whether the field of father-in-law can be said to be public place attracting Section 43 of the Act or it is an enclosed place attracting Section 42 of the Act. The field, having its boundary, cannot be said to be public place intended for use by or accessible to the public. In my considered view, the case cannot be said to be falling within the scope of Section 43. The field of father-in-law, having its boundary, is not a public place but can be said to be an enclosed place. Therefore, Section 42 of the Act was attracted and has been complied with. Therefore, I do not find any force in the argument advanced by the learned Counsel for the Appellant that the information u/s 27 of the Evidence Act cannot be said to be a source information and that it was hit by the provisions of law; although, this issue was not properly raised before the learned trial Court.

As regards next argument that since the recovery was made from a place, which is an agricultural field of father-in-law of the accused, it cannot be said to be a recovery from exclusive possession of the accused Appellant. It is pertinent to mention here that the facts and circumstances of this case are peculiar. Sine qua non for attracting the penal provisions of the NDPS Act is that the Appellant-accused must be found in possession of the contraband. The term "possession", although not defined in the NDPS Act, has been judicially construed to mean as under:

Possession implies dominion and consciousness in the mind of the person having dominion over an object that he has it and that he can exercise it. Possession must be conscious and intelligent possession and not merely the physical presence of the accused in proximity or even in close prodimity to the object.

(Vide Dula Singh v. Emperor AIR 1934 Lah 272; Kuldeep Chand v. Emperor AIR 1934 Lah 718; and Ram Charan v. Emperor AIR 1933 All 437.

Hon''ble Apex Court, in Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja and Others, observed that the test for determining whether a person is in possession of anything is whether he is in general control of it. In Gunwantlal Vs. The State of Madhya Pradesh, the Hon''ble Apex Court, while dealing with a matter pertaining to Arms Act, while noting that the concept of possession is not easy to be comprehended, held that it must have been in the conscious knowledge of that person charged with the offence and that he either had the actual physical possession or in case he did not have actual physical possession, in that case, he had none-the-less power or control over that property. It was further recognized that such control or dominion to constitute a person''s possession, is a question of fact depending on the facts of each case. In the matter of Rubyana Alias Smita Sanjib Bali Vs. State of Maharashtra, the prosecution placed reliance on the decision in Gunwantilal''s case (supra), but in the facts and circumstances of that case, the prosecution was found to have failed to establish the conscious and intelligent possession of the place from where the contraband opium was recovered. Now in view of the principles laid down and discussed here-in-above, suffice it to say that the possession over the contraband opium, in this case, can be said to be conscious possession as has been held by the Hon''ble Apex Court. In the matter of Munna Vs. The State and Another, the contraband was found in the cavity of a vehicle and the driver, employed only 15 days before the incident, was found to have no knowledge of the cavity in the vehicle. In the facts of that case, it was held that the accused therein was doing everything in good faith at the instance of his employer and the accused therein was not in conscious possession of the contraband and his conviction was unjustified.

In the instant case, admittedly the prosecution has been able to prove that the person in possession of the contraband was conscious of that possession and that he had the knowledge as well as dominion over it. In this case, the accused-Appellant, who was handcuffed for the purpose of investigation of a case under Sections 457 and 380, IPC, pertaining to the theft of 210 kgs of opium, got the opium recovered at his instance by giving an information u/s 27 of the Indian Evidence Act and that too by digging a pit of 2 1/2 feet from a place, which happens to be the field of the father-in-law of the Appellant-accused. In my opinion, recovery from such a hidden place, even if that hidden place has been made in the field of the father-in-law of the Appellant, leads to the only conclusion that the Appellant-accused had conscious knowledge and had dominion over it because it is he, and only he, who could have the knowledge about the contraband lying in the pit which was dug to the extent of two and a half feet so as to take out opium kept in a bag thereunder The contention that the place was accessible to all and sundry, in the circumstances of this case, cannot be accepted. A Coordinate Bench of this Court, in the matter of Noor Khan v. State of Rajasthan 1996 (1) RCD 616 (Raj), held that the fact that the contraband opium was recovered from hidden place within the domain and knowledge of the Appellant and as such it can safely be inferred that it was only the Appellant-accused who had a knowledge regarding the existence of the contraband article and, therefore, it cannot be said that the place was accessible to all and sundry. The single Judge of this Court found that it has rightly been held by the trial Court that the contraband articles were recovered from the exclusive possession of the Appellant therein.

In view of the discussion made hereinabove, it can safely be said that the possession of the Appellant-accused on the contraband opium was conscious and intelligent possession and that it is he who could know about the existence of the contraband in that pit which was deeply dug to the extent of 2 1/2 feet and which was dug after removing the empty cemented water tank covering the pit-hole. I am of the firm view that there is no error, illegality or perversity in the findings of conviction recorded by the learned trial Court against the Appellant-accused, which may warrant any interference by this Court.

Learned Counsel for the Appellant submitted that the Appellant-accused is in custody since 17-4-2001, and that apart from the substantive sentence of 10 years rigorous imprisonment, he has also been awarded a fine of Rs. one lac, failing which he will have to undergo further rigorous imprisonment for two years. He submitted that the term of rigorous imprisonment, in default of payment of fine, be reduced as he is not in a position to pay fine. Learned Public Prosecutor vehemently opposed this request stating that the accused along with his other colleagues has been facing trial in ten criminal cases, including a case u/s 376, IPC, therefore, he does not deserve any lenient view.

I have considered the submissions advanced in this regard, but in the facts and circumstances and looking to the nature of ''the offence and other conduct of the Appellant, I am not inclined to accede to this submission also.

Resultantly, the appeal filed by the Appellant stands dismissed.