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2000 Supreme(Raj) 278
Rajasthan High Court, Jaipur Bench
Honble SHIV KUMAR SHARMA, J.
Azad Singh and Another - Appellant
Versus
State of Rajasthan - Respondents
S.B. Criminal Appeal No. 666 of 1998
Decided On : April 18, 2000
Resham Bhargava, for Appellants G.S. Rathore, PP for State
Headnote:Narcotic Drugs & Psychotropic Substances Act, 1985, Sec. 8/20, 8/18 and 50 – Recovered Charas and opium from the possession of the accused appellants – Convicted u/Sec. 8/20 and 8/18 of the Act – Held – Prosecution failed to exhibit the F.I.R. and letter of S.P. forwarding packet to FSL, to establish charges u/Sec. 8/20 and 8/18 and to follow the procedure as enshrined by the statute scrupulously – Discrepancies relating to weight and analysis of seized contraband – Written notices were not served on the accused – Violation of mandatory provisions of Sec. 50 of the Act. (Paras 8,9,12 & 13)
Where notice u/s 50 of the NDPS Act was given in writing to the accused but after arrest when search was made of the accused, recovery of that notice was not shown and the accused denied receipt of such notice, this factor throws doubt on prosecution version about the service of notice and shows that mandatory provisions of Section 50 were not complied with. (Para 12)
The investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. In every case the end result is important but the means to achieve it must remain above board. The remedy cannot be worse than the disease itself. The legitimacy of judicial process may come under cloud if the court seen to condone acts of lawlessness conducted by the investigating agency during search operations and may also undermine respect for law and may have the affect of unconscionably compromising the administration of justice. That cannot be permitted. An accused is entitled to a fair trial. A conviction resulting from an unfair trial is contrary to our concept of justice. The use of evidence collected in breach of the safeguards provided by section 50 at the trial, would render the trial unfair. (Para 15)
(2). According to the prosecution story, the SHO Manglyawas (Ajmer) received secret information on April 20, 1996 to which the SHO alongwith the other police constables rushed at the spot where accused-appellants were searched and Charas weighing 950 grams were found from the possession of accused-Azad Singh, whereas Charas weighing 480 grams and Opium weighing 130 grams were recovered from accused Jaipal Singh.
(3). Necessary memos were drawn by the investigating officer and after completion of investigation charge sheet was filed. Charges u/S. 8/20 & 8/18 of the NDPS Act were framed against the accused appellants. They denied the charges and claimed trial.
(4). The prosecution examined as many as 9 witnesses and thereafter statements u/s 313 Cr. P.C. of the accused-appellants were recorded in which they stated that they were falsely implicated by the police. No defence witness was however produced by the accused-appellants. The learned trial court after hearing rival submissions, convicted accused-appellants as indicated hereinabove.
(5). I have reflected over the arguments advanced by the learned counsel for the parties and carefully scanned the material on record.
(6). Mr. Resham Bhargava learned counsel appearing for the appellants canvassed that the prosecution has failed to comply with the mandatory provisions contained in Sections 42, 50 and 57 of the NDPS Act. The prosecution case has not been supported by any independent witness. FIR was not marked exhibit and the prosecution case has no legs to stand. The learned counsel further contended that there is a discrepancy in respect of weight of seized charas and opium as well as samples forwarded for chemical examination and this discrepancy have not been explained. He further urged that from the statement of PW7 Gumana Ram, it appears that written notices u/s 50 of the NDPS Act were given to accused appellants but from the arrest memos of Azad Singh (Ex. 7) and Jaipal Singh (Ex. 8), no notice was found in their possession. Therefore the provisions contained in Section 50 of the NDPS Act were not complied with. Learned counsel has placed reliance on various Judgment of the Apex Court and the High Courts.
(7). On the other hand, Mr. G.S. Rathore learned Public Prosecutor supported the impugned Judgment and contended that the discrepancies pointed out by the learned counsel for the appellants are technical in nature and they should be ignored. He urged that the prosecution has proved the charges u/s 8/18 and 8/20 of the NDPS Act against accused appellants beyond reasonable doubt.
(8). A close scrutiny of the material on record demonstrates that in the instant case the prosecution has failed to exhibit the FIR, which is a basic document. The letter of Superintendent of Police alongwith sealed packets forwarded to the Forensic Science Laboratory (FSL), Jaipur was also not exhibited. Receipt slip of the FSL is exhibited as Ex. P-6, which bears letter No. 9679-80 dated 30.05.1996 of the Super intendent of Police, Ajmer but no such letter of SP Ajmer has been exhibited by the prosecution.
(9). A look at FSL Report (Ex. P. 11) goes to show that each of the packet marked A to C contained greenish brown coloured solid substance in cylindrical form packed in polythene packet weighing 52 gm. alongwith the polythene packet. The packet marked B contained semi solid, sticky, dark-brown coloured substance with characteristic smell of opium wrapped i
