1988 Supreme(Raj) 806
RAJASTHAN HIGH COURT AT JAIPUR BENCH
G.K.Sharma, J.
Biram - Appellant
Versus
State of Rajasthan and Anr. - Respondent
S.B. Cri. (Jail) Appeal No. 253 of 1988. (against the judgment dated 16.5.1988 passed by Shri Naurang Rai Jatav, Sessions Judge, Jhalwara in S.C. No. 189/87)
Decided On : 7-10-1988
For the Appellant :A.K. Gupta, Inder Raj Saini, Manoj Sharma, Advocates.
For the State : O.P. Sharma, PP.
The prosecution must prove the guilt of the accused beyond a reasonable doubt and must comply with all mandatory provisions of the law.
Headnote:
NDPS ACT - SECTION 8/18 - SECTION 50 - SECTION 57 - SECTION 60 - SUMMARY: The court analyzed the evidence and legal provisions in a case involving the possession of opium under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act). The court found discrepancies and contradictions in the prosecution's evidence, including the lack of corroboration from witnesses and the absence of a proper chain of custody for the seized opium. The court also noted the failure of the police to comply with mandatory provisions of the NDPS Act, such as informing the accused of their right to be taken before a magistrate before a search and submitting a report of the arrest and seizure to the superior officer within 48 hours. The court concluded that the prosecution had failed to prove the guilt of the accused beyond a reasonable doubt and acquitted them.
Fact of the Case:
Two accused, Biram and Ram Singh, were arrested for possession of opium. The prosecution alleged that the opium was recovered from them during a search operation conducted by the police. The accused denied the charges and claimed trial.
Finding of the Court:
The court found that the prosecution's evidence was not reliable and that there were discrepancies and contradictions in the statements of the witnesses. The court also found that the police had failed to comply with mandatory provisions of the NDPS Act, such as informing the accused of their right to be taken before a magistrate before a search and submitting a report of the arrest and seizure to the superior officer within 48 hours.
Issues: 1. Whether the prosecution had proved the guilt of the accused beyond a reasonable doubt. 2. Whether the police had complied with the mandatory provisions of the NDPS Act.
Ratio Decidendi: The court held that the prosecution had failed to prove the guilt of the accused beyond a reasonable doubt. The court found that the evidence was not reliable and that there were discrepancies and contradictions in the statements of the witnesses. The court also found that the police had failed to comply with mandatory provisions of the NDPS Act, such as informing the accused of their right to be taken before a magistrate before a search and submitting a report of the arrest and seizure to the superior officer within 48 hours.
Final Decision: The court acquitted the accused of the charges under the NDPS Act.
JUDGMENT
1. - SB. Criminal (jail) Appeal No. 253/88 has been preferred from jail and S.B. Criminal Appeal No. 227/88 has been preferred by Biram as representative appeal. Both these appeals arise from the same judjement of the Sessions Judge, therefore, they are disposed of by this common judjement.
2. On 26-6-1987, Ram Chandra, SHO, Police Station, Raipur received a secret information that three persons are taking opium with them and the details of these persons were also given by the informant. On the basis of this information, the Police-party consisting of Ram Chandra, Station House Officer, one Head Constable and some Constables reached at the spot for which they received the information. They hid themselves behind the trees. After some time they saw two persons coming from the side of Kotri and when they reached near them, they were surrounded. Mangi Lal and Poor Singh also arrived there and in their presence search was taken and both the accused were found in possession of opium. Accused Biram was found in possession of opium weighing 3.500 Kg. and accused Ram Singh was found in possession of opium weighing 4.650 Kg. The opium was recovered and the samples were taken and were sealed at the spot. The accused were arrested The samples were sent to the Forensic Science Laboratory (FSL) for examination and the report of the FSL is Ex.P 9. After completing the usual investigation the Police submitted challan against both the accused persons.
3. The trial Court framed charge against both the accused-persons under Section 8/18 of the Narcotic Drugs and Psycotropic Substances Act (NDPS) Act. Both the accused pleaded not guilty and claimed trial.
4. The prosecution has examined 9 witnesses to establish the case. One defence witness was also examined by the accused-persons. After concluding the trial the learned Sessions Judge found the case established against both the accused-persons and he convicted and sentence them as mentioned above.
5. The learned Counsel for the appellants argued that the two Motbirs i.e. Poor Singh and Mangi Lal have not supported the case of the prosecution and both have been declared hostile. It was argued that the evidence of the prosecution witnesses is not corroborative to each other but it contradicts on material points. There are discrepancies and contradictions in the statements of the witnesses about the presence of the Motbirs i.e. Poor Singh and Mangilal. There is also difference in the statement of the witnesses with regard to calling the scale (Taraju) for weighing the opium. In this light the statements of the witnesses were read over to me and I find that there is difference between the statements of all the witnesses with regard to bringing the scale from the village. Another important aspect is that according to the SHO the scale was called through one person but he does not know the name of that person. The person who brought the scale has not been examined. So this discrepancy also has bearing on the merit of this case. It is not necessary to repeat the statements of all these witnesses on these two points but it suffices that the argument advanced by the learned Counsel on these points is correct and I have gone through the statements of the witnesses and found that there are discrepancies and contradictions in the statements of the witnesses. There is also difference in the statements of the witnesses regarding the presence of the person who brought the scale. Two types of statements have been given in this aspect. Some say that the person who brought the scale left the place immediately after handing over the scale to the SHO. Some witnesses have stated that he remained there till the opium was weighed. All this creates suspicion on the factum of recovery of the opium and taking samples at that moment. Hence, the recovery which has not been corroborated by the Motbirs and the only evidence remains there is of Police Officer and that evidence is contradictory so it creates suspicion abou
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