2013 Supreme(Raj) 1943
RAJASTHAN HIGH COURT
Sandeep Mehta, J.
Bhagirath Ram - Appellant
Versus
State of Rajasthan - Respondent
S.B. Criminal Appeal No. 28 of 2008.
Decided On : 18-10-2013
Advocates:
For the Appellant:Sunil Mehta, Advocate.
For the Respondent: K.R. Bishnoi, Public Prosecutor.
The court emphasized the importance of complying with the procedure prescribed under Section 52-A of the N.D.P.S. Act for the disposal of seized narcotic drugs. The court directed all the Special Judges presiding over the Special Courts, N.D.P.S. Act cases in Rajasthan to ensure that the procedure under Section 52-A is followed in its letter and spirit.
Headnote:
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 8/15 - POSSESSION OF CONTRABAND POPPY STRAW - PROOF OF PHYSICAL EVIDENCE - NON-PRODUCTION OF MUDDAMAL IN COURT - INTERPRETATION OF SECTION 52-A OF THE ACT - DISPOSAL OF SEIZED NARCOTIC DRUGS - PRIMARY EVIDENCE - FAILURE TO COMPLY WITH SECTION 52-A - LIABILITY OF SEIZING AGENCY - DIRECTIONS TO SPECIAL JUDGES PRESIDING OVER SPECIAL COURTS, N.D.P.S. ACT CASES IN RAJASTHAN.
Fact of the Case:
The appellant was convicted under Section 8/15 of the N.D.P.S. Act for transporting 2652 kgs of poppy straw. The prosecution alleged that the appellant was apprehended while driving a truck containing 64 gunny bags of poppy straw, weighing 2652 kgs. The appellant challenged the conviction on the ground that the prosecution failed to produce the Muddamal (physical evidence) in court.
Finding of the Court:
The court held that the prosecution failed to prove by material physical evidence that 2652 kgs of poppy straw was recovered from the truck being driven by the appellant as the Muddamal was not exhibited in the court. However, the court found that the prosecution was able to prove beyond all manner of doubt that the appellant was transporting 64 kgs of poppy straw in the truck, which is above the commercial quantity (50 kgs) as per the schedule appended to the N.D.P.S. Act.
Issues: 1. Whether the prosecution failed to prove that the appellant was transporting 2652 kgs of poppy straw due to the non-production of the Muddamal in court? 2. Whether the prosecution was able to prove that the appellant was transporting 64 kgs of poppy straw, which is above the commercial quantity?
Ratio Decidendi: 1. The court relied on the judgment of the Hon'ble Apex Court in Noor Aga v. State of Punjab & Anr., wherein it was held that non-production of physical evidence, such as the Muddamal, would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. The court also noted that the prosecution failed to produce any corroborative evidence to support the Seizure Officer's testimony that the Muddamal had been decayed and disintegrated in the rain and by exposure to nature. 2. The court found that the prosecution was able to prove that the appellant was transporting 64 kgs of poppy straw based on the evidence of the Seizure Officer, who exhibited 64 samples weighing 1 kg each as Articles A-1 to A-64 in the court. The State Forensic Science Laboratory report also confirmed that the samples were of dried crushed capsules of opium poppy from which juice had been extracted.
Final Decision: The court allowed the appeal in part. The appellant's conviction for transporting 64 kgs of poppy straw, which is more than commercial quantity, was upheld. However, the sentence awarded to him in default of payment of fine was reduced from a period of one year to three months R.I.
JUDGMENT
1. - The instant appeal has been preferred by the appellant challenging the judgment dated 18.12.2007 passed by the learned Special Judge, N.D.P.S. Cases, Chittorgarh in Sessions Case No. 72/2004 convicting the appellant for the offence under Section 8/15 of the N.D.P.S. Act and sentencing him to 10 years R.I. and a fine of Rupees One Lakh, in default of payment of fine to further undergo one year R.I.
2. Briefly stated the facts of the case are that Ramesh Tiwari, Sub Inspector, Incharge, P.S. Kapasan allegedly received a source information on 22.6.2004 at 10.15 A.M., as per which it was reported that poppy straw had been collected in a truck No. RJ 19G-6315 from the surrounding villages of Chittorgarh and the driver was proceeding to Jodhpur from Chittorgarh via Kapasan, Nathdwara. The source informed that if Nakabandi was conducted around Kapasan, the driver could be apprehended with the contraband poppy straw and the truck. As the information was reliable, the Sub Inspector, In-charge, Police Station Kapasan noted it in the Roznamcha and forwarded a copy thereof to his superiors with constable Vikram Singh in compliance of Section 42 of the N.D.P.S. Act. Thereafter he formed a raid party and reached the Chittorgarh-Nimbahera Highway and laid a blockade near Kapasan at about 10.20 A.M. The truck of which the information was given was seen coming from towards Chittorgarh at 11.10 A.M. and was stopped. The driver of the truck got down and disclosed his name to be Bhagirath Ram S/o Virmaram Vishnoi (the appellant herein). He was given an option under Section 50 of the N.D.P.S. Act before initiating search. The accused consented to have his personal search as well as his truck searched by Sub Inspector Ramesh Tiwari. Accordingly, the Sub Inspector proceeded to search the truck and 64 gunny bags full of contraband styled to be poppy straw were recovered from therein. The accused could not produce any license or permit for possessing and transporting the poppy straw. Accordingly the poppy straw was seized. The gross weight of the 64 gunny bags came to be 2652 kgs. Sixty four samples of one kg. each were taken out of the bags and were sealed in separate packets. The remaining poppy straw was sealed in the same bags and identifying chits were appended thereupon. Seizure documents were prepared and the accused was arrested after giving him a notice under Section 52 of the N.D.P.S. Act. Thereafter the Sub Inspector returned back to the Police Station and registered an F.I.R. No. 200/2004.
3. After completing investigation, a charge sheet was filed against the appellant for the offence under Section 8/15 of the N.D.P.S. Act. The co-accused Suresh and Bhanwarlal were charge-sheeted under Section 8/29 of the N.D.P.S. Act. Investigation was kept open against the absconding co-accused Bhakar Ram And Bhanwarlal.
4. The Trial Court framed charge against the appellant for the offence under Section 8/15 of the N.D.P.S. Act whereas the co-accused Suresh and Bhanwarlal were charged under Section 8/29 of the N.D.P.S. Act. The accused pleaded not guilty and claimed trial. The prosecution examined 32 witnesses in support of its case. The accused, in their statements under Section 313 Cr.P.C. denied the prosecution-allegations but did not lead any evidence in defence. At the conclusion of the trial, the learned trial Judge acquitted the co-accused and convicted and sentenced the appellant as above. Hence, this appeal.
5. Mr. Sunil Mehta, learned counsel for the appellant has challenged the appellant's conviction on a solitary ground. He contended that the prosecution did not produce the material exhibit i.e. Muddamal in the Court during evidence, and thus, it failed to prove that contraband poppy straw weighing 2642 Kgs. was actually recovered from the accused. He referred to the statement of the Seizure Officer PW-30 Ramesh Tiwari and contended that the Seizure Officer did not exhibit the Muddamal in the Court and took the plea that the Mudda
Click Here to Read the rest of this document
Back
