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2017 Supreme(Raj) 1915
IN THE HIGH COURT OF RAJASTHAN
Sandeep Mehta, J.
Rajpal Jat – Appellant
Versus
State of Rajasthan – Respondent
Criminal Appeal Nos. 141, 239 of 2012
Decided On : 24-10-2017
For the Appellants : B. Ray Bishnoi, Mr. R.S. Gill.
For the Respondent: L.R. Upadhyaya.
The prosecution must prove the seizure of contraband in accordance with the procedure prescribed under Section 52A of the NDPS Act in order to secure a conviction for possession or transportation of contraband.
Headnote:
NDPS ACT - SECTION 8/15(B), 8/15(C), 8/25 - SEIZURE OF MUDDAMAL - EVIDENCE - SAMPLES - PROCEDURE - INTERPRETATION OF SECTION 52A - CONVICTION - QUANTITY OF CONTRABAND - OWNER OR OCCUPIER - LIABILITY - INTERPRETATION OF SECTION 8/25 - MODIFICATION OF CONVICTION AND SENTENCE.
Fact of the Case:
The appellants were convicted and sentenced for possession and transportation of 18 quintals of poppy straw under Sections 8/15(C) and 8/25 of the NDPS Act. The prosecution alleged that the appellants were apprehended while transporting the contraband in a mini truck. The seizure officer admitted that the seized gunny bags did not bear any chits or identifying marks linking them to the recovery.
Finding of the Court:
The court found that the prosecution failed to exhibit the seized muddamaal in its self-same condition and did not follow the procedure under Section 52A of the NDPS Act for preparing samples and taking photographs of the seized goods. The court held that the evidence of the seizure officer could not be accepted for the entire seized contraband, but only for the 6 Kgs. 600 Gms. poppy straw that was proved by the I.O. beyond doubt.
Issues: 1. Whether the prosecution proved the seizure of 18 quintals of poppy straw? 2. Whether the appellants could be convicted for possession and transportation of poppy straw below commercial quantity? 3. Whether the appellant Kalu Ram could be convicted under Section 8/25 of the NDPS Act for permitting his vehicle to be used for commission of an offence?
Ratio Decidendi: 1. The court relied on the Supreme Court judgments in Jitendra and Others vs. State of Madhya Pradesh, Ashok alias Dangra Jaiswal vs. State of M.P., and Vijay Jain vs. State of M.P. to hold that the evidence of the seizure officer could not be accepted for the entire seized contraband due to the prosecution's failure to exhibit the same at the trial and follow the procedure under Section 52A of the NDPS Act. 2. The court held that the appellants could be convicted for possession of inflationary quantity of contraband poppy straw under Section 8/15(B) of the NDPS Act, as the samples proved by the I.O. weighed below commercial quantity. 3. The court held that the appellant Kalu Ram could not be convicted under Section 8/25 of the NDPS Act because the prosecution's case was that he was himself present in the car and actively transporting the poppy straw, rather than permitting his vehicle to be used by another person for committing an offence.
Final Decision: The court modified the conviction of the appellants from Section 8/15(C) to Section 8/15(B) of the NDPS Act and acquitted the appellant Kalu Ram from the offence under Section 8/25 of the NDPS Act. The substantive sentence of the appellants for the offence under Section 8/15(B) was reduced to the period already undergone by them, and the fine imposed upon each appellant was reduced to Rs. 10,000/-.
Sandeep Mehta, J.
1. These two appeals are directed against the judgment dated 23.12.2011 passed by the learned Special Judge, NDPS Act Cases, Chittorgarh in Sessions Case No. 38/2009 whereby, the appellants were convicted and sentenced as follow:-
Rajpal
8/15 (C) of the NDPS Act-18 years' R.I. and a fine of Rs. 1,80,000/- in default of payment of fine to further undergo 2 years' R.I.
Kaluram
8/15 (C) of the NDPS Act-18 years' R.I. and a fine of Rs. 1,80,000/- in default of payment of fine to further undergo 2 years' R.I.
8/25 of the NDPS Act-18 years' R.I. and a fine of Rs. 1,80,000/- in default of payment of fine to further undergo 2 years' R.I.
All the sentences were directed to run concurrently.
2. The appellant Rajpal has remained in custody for more than 8 years whereas the appellant Kalu Ram has reportedly suffered custodial period of about 6 years 4 months. Both the appellants herein were apprehended by the SHO Police Station Nimbahera on 25.03.2009 while allegedly transporting contraband poppy straw weighing 18 quintals in a mini truck No. RJ-23-G-2705. After trial, they were convicted and sentenced as above.
3. Learned counsel representing the appellants have raised a solitary ground to challenge conviction of the appellants urging that the seized Muddamaal was not proved by the prosecution at the trial. On this aspect, the learned Trial Court made the following observation at para No. 29 of the impugned judgment which is reproduced for sake of ready reference:-
^^bl ekeysa esa U;k;ky; ds le{k Ánf'kZr vkfVZdy&1 lEiw.kZ eky 66 cksjksa esa ls ÁR;sd cksjs esa ls 100&100 xzke dqy 6 fdyksa 600 xzke voS/k MksMkpwjk esa ls 500&500 xzke ds nks uewus fy;s tkus ds ckn 'ks"k feDl lsEiy 5 fdyks 600 xzke dk iSdsV vkfVZdy&1 gS] vkfVZdy&2 dUVªksy lsEiy o vkfVZdy&3 uewuk lsEiy tks fof/k foKku Á;ksx'kkyk ls ckn tkap is'k gqvk gS] cjken'kqnk 66 cksjs U;k;ky; esa is'k fd;s x;s gSA vkfVZdy 1] 2 o 3 lHkh ij xokgksa ds o eqyfteku ds nLr[kr gSA mijksDr foospukuqlkj mDr 66 cksjksa esa 18 fDoaVy voS/k MksMkpwjk bl Ádj.k esa eqyfteku ds dCts ls tCr fd;k tkuk Áekf.kr gksrk gSA**
4. From a bare perusal of the above mentioned observation made by the Trial Court, it is apparent that the prosecution did not exhibit the seized Muddamaal in the self same condition because the seizure officer Ramniwas (PW-17) admitted in his cross-examination that 66 gunny bags, which were produced by him in the court, did not bear any chits or identifying marks so as to connect or link them with the recovery and seizure allegedly effected from the accused in the case at hand. Apparently thus, the accused cannot be convicted for the alleged recovery of 18 quintals poppy straw effected by SHO Ramniwas from 66 gunny bags while being plied by the accused in a mini truck No. RJ-23-G-2705. While drawing samples, the SHO collected 100 gms. of the suspected contraband from each gunny bag. Thus, total 6 Kgs. 600 gms of the substance seized was forwarded to the FSL from where a report adverse to the accused was received only. These samples weigh 6 Kgs. 600 gms. poppy straw only were proved in an intact condition by the seizure officer and bore chits and seals with signatures of all concerned including the accused persons.
5. Admittedly, the seizure officer or the investigating officer did not follow the procedure of Section 52A of the NDPS Act and no process of preparing samples and taking photographs of the seized muddamaal was conducted thereunder so as to give alternate evidence of the seized goods. Thus considered in light of the ratio of Supreme Court judgments in the cases of Jitendra and Others vs. State of Madhya Pradesh, 2003-04 (Supp) Cr.L.R. (SC) 699, Ashok alias Dangra Jaiswal vs. State of M.P. AIR 2011 SC 1335 and Vijay Jain vs. State of M.P. 2013 (14) SCC 527, the evidence of the seizure officer cannot be accepted for t
