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1996 Supreme(Raj) 722
Rajasthan High Court
Honble AMARESH KUMAR SINGH, J.
Jagdish Chandra - Appellant
Versus
State of Rajasthan - Respondents
S.B. Criminal Appeal No. 398 of 1996 and 3 other Appeals
Decided On : December 03, 1996
Pradeep Shah, Shamboo Rathore & B.N. Kalla, for Petitioner D.R. Bohra, for Public Prosecutor
Headnote:(a) Evidence Act, Sec. 115 – Illustration `E and `G – Discretionary presumption under Sec. 114 are the presumptions based upon circumstantial evidence – In criminal cases every fact which is used for the purpose of bringing guilt home to the accused must be proved beyond reasonable doubt – Whether it is proved by documentary evidence or by oral evidence or by circumstantial evidence or by drawing presumption according to any mandatory provision of law. (Para 18)(b) Evidence Act, Sec. 114 – Illustration `E and `G – Malkhana Incharge not produced in evidence for the purpose of proving that the seized articles and samples remained intact in the malkhana of police station – In the absence of any evidence to show that Incharge Malkhana can not be produced in court inspite of efforts by the prosecution – An adverse inference can be drawn according to illustration `G of Sec. 114 – Held – It can not be inferred that prosecution proved beyond reasonable doubt that the samples of the seized articles were not tampered with during the police custody. (Para 20)(c) Narcotic Substances and Psychotropic Substances Act, Sec. 42 and Evidence Act, Sec. 125 – Whether a secret informer or Mukhbir is a `person with the meaning of Sec. 42(1) – Held – ``Person in Sec. 42(1) of NDPS Act does not include a ``Mukhbir or a secret informer to whom the protection of Sec. 125 of Evidence Act applies. (Para 22)
The presumptions drawn by the Court under Section 114 of the Evidence Act on the basis of circumstantial evidence also suffer from the defect that nobody having direct knowledge about the fact to be proved testifies before the Court. The Court, therefore, takes aid of its own knowledge of laws of nature, human conduct and ordinary course of business for the purpose of arriving at a finding in a given set of circumstances. It is not necessary that circumstances must prove the fact. It is quite possible that the circumstances proved before the Court may not be able to prove a fact at all. In these cases finding would be not that a particular fact has been proved the finding would be that a particular fact has not been proved. In criminal cases every fact which is used for the purpose of bringing guilt home to the accused must be proved beyond reasonable doubt whether it is proved by documentary evidence or by oral evidence or by circumstantial evidence or by drawing presumptions according to any mandatory provisions of law. Therefore, in criminal cases the circumstantial evidence must be such as leaves no room for any doubt and is competible with one and only one hypothesis namely the hypothesis that the fact in question occurred or did not occurred as the case may be. In other words the circumstantial evidence must be of such nature as can prove beyond reasonable doubt the fact in question. (Para 18)
It is, therefore, very doubtful whether a `Mukhbir whose identity cannot be compelled to be disclosed and who cannot be summoned or examined in a Court of law is covered by the expression ``person as used in Sub-section (1) of Section 42 of the N.D.P.S. Act. If the object behind recording of information under Sub- section (1) of Section 42 of the N.D.P.S. Act is to use such information as a corroborating evidence when the informant is examined in a Court of law, it would have to be inferred that the expression ``person in Section 42 of the N.D.P.S. Act does not include a `Mukhbir or a secret agent to whom the protection of Section 125 of the Evidence Act applies. (Para 22)
(2). In Sessions Case No. 30/92 State vs. Shankerpuri and Ors., Shankerpuri was charged under Section 8 read with 18 of the N.D.P.S. Act, Mahendra Kumar was charged under Section 8 read with 20 of the N.D.P.S. Act, Jagdish Chandra was charged under Section 18 read with 29 of the N.D.P.S. Act and Bhima was charged under Section 8 read with 20 of the N.D.P.S. Act. All the accused persons pleaded not guilty to the charge, therefore, they were tried by the learned Special Judge, N.D.P.S. Act Cases, Raj Samand. After conducting trial the learned Special Judge convicted appellant Shankerpuri under Section 3 read with 18 of the N.D.P.S. Act and sentenced him to under-go rigorous imprisonment for 10 years and to pay a fine of Rs. 1 lakh and to further under-go rigorous imprisonment for 2 years for default in payment of fine. Appellant Bhima was convicted under Section 8 read with 20 of the N.D.P.S. Act and he was sentenced to under-go rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- and to further under-go rigorous imprisonment for 6 months for default in payment of fine. Appellant Mahendra Kumar was convicted under Section 8 read with 20 of the N.D.P.S. Act and he was sentenced to under-go rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- and to further under-go rigorous imprisonment for 6 months for default in payment of fine. Appellant Jagdish Chandra was convicted under Section 18 read with 29 of the N.D.P.S. Act and he was sentenced to under-go rigorous imprison- ment for 10 years and to pay a fine of Rs. 1 lakh and to further under-go rigorous imprisonment for 2 years for default in payment of fine. Appellant Jagdish Chandra was further convicted under Section 20 read with 29 of the N.D.P.S. Act and he was sentenced to under-go rigorous imprisonment for 3 years and to pay a fine of Rs. 5,000/- and to under-go rigorous imprisonment for 6 months for default in payment of fine. Feeling aggrieved by the conviction as well as the sentence, Shankerpuri, Bhima, Mahendra Kumar and Jagdish Chandra have filed these four appeals.
(3). The prosecution case may be briefly summarised as below :
On 13th September, 1990, Station House Officer of the Police Station, Rajnagar received an information from a Mukhbir that on the preceding night a person na- med Shankerpuri had gone to the house of Jagdish Chandra Paliwal with opium and Mahendra Kumar as well as Bhima Rewari had gone to the house of Jagdish Chandra for the purpose of purchasing opium and that Jagdish Chandra used to keep opium, hemp and ganja in his possession for the purpose of selling to others. On receiving aforesaid information the Station House Officer of the Police Station Rajnagar went to the house of Jagdish Chandra with Police Officers and Motbirs. In presence of the Motbirs Premgiri and Hiralal a search of the house of Jagdish Chandra was conducted. In a room situated on the first floor `Shankerpuri handed over 2 packets which was placed in 2 polytheine bags. Mahendra Kumar produced Ganja which was contained in `pudia and Bhima Rewari produced hemp which was placed in a bundle. These articles were seized by the Station House Officer who conducted the search. Samples were taken from opium, hemp and ganja and the samples as well as the remaining goods were sealed at the spot. A memo of search and site plan were prepared. Shankerpuri, Bhima, Mahendra Kumar and Jagdish Chandra were arrested vide arrest memo Ex. P. 3 to Ex. P. 6 and the First Information Report Ex. P-10 was lodged at the Police Station. After conducting investigation a challan was submitted in t
