2006 Supreme(Raj) 3231
RAJASTHAN HIGH COURT
Mohammad Rafiq, J.
Bharta Ram - Appellant
Versus
State of Rajasthan & ors. - Respondent
S.B. Cr. Appeal No. 147 of 1988.
Decided On : 20-11-2006
Advocates:
For the Appellant:Mr. R.K. Charan, Advocate.
For the State: Mr. Rameshwar Dave, Public Prosecutor.
The court upheld the conviction under section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985, emphasizing the importance of the chain of custody and the weight of the sample in proving the offense beyond reasonable doubt.
Headnote:
The accused was convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985. The appeal was made on various grounds including the lack of empowerment of the police officer to conduct the search and seizure. The defense argued that the recovery of the opium was doubtful due to discrepancies in the statements of witnesses and non-compliance with certain provisions of the Act. The prosecution argued that the offense was proved beyond reasonable doubt. The court examined the arguments and the evidence, including the chain of custody of the seized substance, and the weight of the sample. The court rejected the arguments and dismissed the appeal, upholding the conviction.
Judgement Key Points
Certainly. Based on the provided legal document, here are the key points:
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The appellant was convicted under section 18 of the Narcotic Drugs and Psychotropic Substances Act, 1985, and the conviction was upheld by the court after examining the evidence and arguments presented (!) .
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The police officer who conducted the search and seizure was a Sub Inspector, and the legality of the search was challenged on the grounds that only officers of higher rank (such as Inspectors) were authorized to exercise powers under Section 42 of the Act at the relevant time [17000181230003].
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The court reviewed the legal provisions and relevant notifications, concluding that in cases of chance recovery during patrolling, the police do not require prior authorization under Section 42, and the search conducted was lawful [17000181230013][17000181230014].
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The chain of custody of the seized substance was meticulously established through a series of witnesses, with sealed packets being transferred in sealed condition from the site of recovery to the forensic laboratory, supporting the integrity of the evidence [17000181230014][17000181230015][17000181230016].
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Discrepancies in the weight of the sample, as recorded in the recovery memo and the forensic report, were addressed, and the court found that minor differences in weight do not necessarily invalidate the evidence, especially when other chain-of-custody evidence is clear [17000181230021][17000181230022].
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The argument that the recovery memo was not prepared at the site and that the absence of specific time details undermines the case was rejected, with the court holding that such procedural lapses do not automatically render the evidence inadmissible if the chain of custody is otherwise established [17000181230026].
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The court emphasized that procedural deviations, such as preparing the seizure memo at the police station instead of the site, do not necessarily cause prejudice if the overall integrity of the evidence is maintained and the chain of custody is unbroken [17000181230025].
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Overall, the court concluded that the evidence conclusively proved the possession of opium by the appellant and that the procedural and evidentiary aspects were sufficiently established to uphold the conviction [17000181230024].
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The appeal was dismissed, and the conviction was maintained based on the comprehensive evaluation of the evidence and legal principles involved (!) .
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JUDGMENT
1. - This appeal is directed against the judgment dated 10.3.1988 passed by the learned Additional Sessions Judge Barmer convicting thereby the accused appellant for offence under section 18 of the Narcotic Drugs and Psychotropic Substances Act 1985 (in short 'the Act of 1985) and sentencing him to' undergo ten years Rigorous Imprisonment with a fine of Rs.1,00,000/-, in default of payment whereof, to further undergo the year's Rigorous Imprisonment.
2. The factual matfix of the case is that on. 25th February, 1986 at about 12:30 I_M. Shri Banedan, S.H.O. of Police Station, Chauhatan alongwith Leela Dhar, H.C. and Uttama Ram constable and other police party went on patrolling duty. Upon reaching outskirts of village Dhok Dhoniya at about 5 p.m., they laid "Nakabandi" during which they noticed one person coming from village Dharasar. On seeing the police party, the said person left the road and started moving towards other side. The police suspected his conduct and therefore intercepted him. On enquiry being made, he disclosed his name as Bharta Ram s/o Ganesh Ram Jat s/o Dharasar. On being searched, a plastic bag containing some black substance was found from,left pocket of his coat. When this was tested and smelled, it was found to be opium. Its weight was found to be of 160 gms. He denied having any permit to possess licence of the said opium. Out of total recovered opium, 30 gms was put in a small box which was sealed then and there, Remaining 130 gms of opium was placed in polythene bag and also sealed. On reaching the Police Station, regular criminal case was registered and investigation commenced. Finally challan against the accused-appellant for offence u/-s- 18 of the Act was filed. While prosecution has examined as many as seven witnesses in support of his case and exhibited 12 documents, accused in his defence apart from his statement under section 313 Criminal Procedure Code examined two witnesses. On conclusion of the evidence and upon hearing of the arguments, the learned trial court convicted the accused as mentioned hereinabove. Being aggrieved by the judgment of the learned trial Court the accused appellant has preferred this appeal on various grounds.
3. I have heard Mr. R.K. Charan, learned counsel for the appellant and Mr. Rameshwar Dave, learned Public Prosecutor for the State in support of their respective case and perused the record.
4. Sheer anchor of the arguments of Mr. R.K.Charna, learned counsel for the appellant is that on the date of alleged search and recovery of the opium i.e., on 25th February, 1986, P.W. 5 Banedan S.H.O. of Polite Station, Chauhatan was not empowered to seize, search and arrest the accused under the provisions of the Act since he was merely an officer of the rank Sub Inspector of Police. The State Government vide its notification dated 13.1.1986 has for the first time authorised police officers to search, seize and apprehend the culprits under the Act of 1985. Hence, the trial and consequential conviction of the appellant was vitiated and impugned judgment is therefore liable to be set aside. In order to buttress his argument, learned counsel relied upon the judgments of this Court in Nand Lal Vs. the State of Rajasthan, RCC 1987 p. 433 . Umrav Vs. State of Rajasthan, 1988 (1) RLR 796 = RLW 1988 (1) p. 564 . Shanti Lal Vs. State of Rajasthan 1989 (2) RLR 691 = WLC 1989 (1) p. 276 . Bherual vs. State of Rajasthan 2004 (1) RLR 177 = 2004 (1) Cr. L.R. (Raj.) p. 612 and Harchand vs. State of Rajasthan, 2006 (6) RDD p. 3533 (Raj.) and of the Hon'ble Supreme Court in Roy V.D. Vs. State 2004 (4) Crimes, 196 (SC). Mr. R.K. Charan, learned counsel for the appellant further argued that recovery of the opium in the instant case was highly doubtful because no time has been mentioned in the recovery memo (Ex.P/1) which is indicative of the fact that the same was not prepared at the site of the recovery but was subsequently prepared at the Police Station. Besides there'were co
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