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S.B. Criminal Appeal No. 444/2003
(Babu lal & Anr. Vs. State)
IN THE HIGH COURT OF JUDICATURE FOR RAJSATHAN AT
JODHPUR
S.B. CRIMINAL APPEAL NO. 444/2003
(BABU LAL S/O KASHI RAM Vs. STATE )
(GOVING SINGH S/o NATHU SINGH VS. STATE)
JUDGMENT
Date of order : 07th October, 2010
PRESENT
HON'BLE MR. C.M. TOTLA, J.
Mr. Shaitan Singh for Mr. Mridul Jain for the appellants.
Mr. K.K. Rawal, P.P.
BY THE COURT
====
Appellants convicted for the offence of violation of Section 8
punishable under Section 18 of NDPS Act recorded in Sessions Case
No. 65/2000 by judgment dated 28.02.2003 and sentenced to ten
years RI with fine Rs. 1 lac and in default one year RI challenges the
validity of conviction and sentence awarded.
Heard learned counsel for the appellants and the Public
Prosecutor.
Prosecution version as disclosed appears to be that posted
SHO at Police Station Pratapgarh on 17.10.09 Sub inspector Tej
Singh PW/12 making roznamcha entry No. 895 handing over charge
to Sub Inspector Suresh Kumar PW/2 Ex.P/23 at 11:15 PM
proceeded for investigating for certain FIR. PW/2 about two hours
later i.e. at 1 AM informed by some of two persons Babu lal and
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(Babu lal & Anr. Vs. State)
Govind Singh (appellants) with illegal opium shall be proceeding on
foot towards Fathpur from their village Jamalpura, so PW/2 making
entry Ex.P/21 bearing No. 898 in Roznamcha intimated of this
information to Dy. Superintendent vide Ex.P/13, by dispatching it
with Constable Keshar Singh PW/11. PW/2 with other SI and two
constables making entry Ex.P/22 in Roznamcha proceeded to village
Jhansdi where on asking accompanying Constable PW/3 called
independent witnesses PW/1 & 9 who when given notices Ex.P/1
and P/16 of received information and asked to be motbir expressed
consent and recorded on Ex.P/2 and 16. Allegedly at about 3:30 in
night, two persons were seen coming on foot from vilage Jamalpura
who encircled and asking them were obtained their names and other
particulars etc then were told of information received and further
asked if they desirous of search before and by gazetted or higher
officer or by incharge present and they expressed desire and
consented for search by them. So search was made. Babu lal who
had a white bag in his hands containing polythene bag in which was
black vicious substance which smelt and tasted of opium and as
Babu lal did not have a license so substance seized and on weighing
found to be 3.5 kg from which taken and separately sealed were two
samples of 50 gm each. Then search was made of other person
Govind Singh who also was having a green bag in his right hand in
which also was while polythene containing black vicious substance
appearing opium that also was seized and weighed 3.0 kg from
which also two samples were collected and separately sealed. Memo
of these proceedings prepared is Ex.P/4 and packet sealed as above
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S.B. Criminal Appeal No. 444/2003
(Babu lal & Anr. Vs. State)
respectively marked A to F and seal impression also fixed preparing
separate impressions.
Appellants informed of their arrest vide memos Ex.P/17 & 18
and arrested preparing memos Ex.P/7 & 8, preparing memo of
proceedings P/14 FIR bearing No. 408/01 P/15 came to be
registered. Superintendent of Police was informed of all above
happening vide letter P/20 ad malkhana articles deposited with
Malkhana incharge PW/6, making memo Ex.P/19, and PW/6 making
entries P/25 in register keeping packets safe handed over two
sample packets marked A & D to Constable PW/7 who obtaining
forwarding letter P/26 and with seal impression of above packets
deposited at laboratory obtaining receipt P/27.
Inspecting place of occurrence I/O PW/10 before PW/4 and
PW/5 prepared site memo and plan Ex.P/18 completing needful
including recording statements, chargesheet submitted.
FSL Report Ex.P/29 describe of substance found in received
intact sealed packets to be opium having respectively 6.75 and 8.17
per cent morphine.
Appellant Babu lal charged of keeping opium 3.5 kg and
appellant Govind Singh of keeping 3.0 kg- denied and claimed trial.
PW/1 and PW/9 are motbirs of recovery, declared hostile,
state of police obtaining their signature at police station. PW/4 & 5
of preparing site plan. PW/2 is seizure officer and constable PW/3
accompanied him. Head Constable PW/6 & Constable PW/7 depose
of safe keeping and delivering packets at FSL and related matters. R
PW/8 wife of elder brother of one of the accused appellant of opium
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(Babu lal & Anr. Vs. State)
cultivation license for appellant Babu lal two years ago – PW/10 and
12 investigated including recording of statements.
According to appellant, witnesses are telling lie. Appellant
Govind Singh avers that while he sleeping at village was taken away.
Per appellant Babu lal he was sleeping in compound of Bhadar Singh
was picked up by police. Defence witness Bahadur Singh DW/1 state
of appellants being his relative came to him and they went to village
Honia in some social function where when were asleep in night
came police man, abused them, and though asked by others
gathered to refrain still took appellants with them.
Learned Sessions Judge concludingly inferred that competent
officer complying all procedural provisions searched and seized and
appellants were in possession of narcotic substance held guilty and
sentenced.
Learned counsel for the appellant assailing findings of learned
Judge argues that (i) SI PW/2 who allegedly searched was not
empowered and competent to make such search and seizure (ii)
under S.42 search can only be by empowered officer and PW/2 not
empowered and he knowing himself not to be SHO, if at all did
search, it is completely illegal (iii) mandatory provisions of Section
42 are not complied so vitiated entry is search and seizure –
consequently all proceeding (iv) no separate memo of information,
said to have been received, is made and is not produced (v)
provisions of Section 50 not complied with – assertingly urged t hat
provisions are applicable and even if not applicable when
contemplated, and per prosecution complied with then as mandatory
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S.B. Criminal Appeal No. 444/2003
(Babu lal & Anr. Vs. State)
is so strict compliance is to be (vi) Section 55 completely flouted (vi)
not fulfilled requirements of Section 57. Taking through the
evidence, submits that version of possession and recovery cannot be
believed – evidence and versions contrary to each other – memos
prepared finds number of FIR which do show of preparation of all
memos only post FIR – link evidence i.e intact delivering packets at
FSL missing. Stressed that weight found in laboratory is substantially
less than the said weight of sample allegedly taken. On behalf of
appellant, cited is 2001 Cr. L.J 1166 Gurbax Singh Vs. State of
Haryana.
On behalf of appellants lastly submitted that sentence
awarded in default of payment of fine ought to be reduced.
Learned Public Prosecutor submitted that proved in each
possession of appellant was opium.
Evidence at length is well discussed and analysed by learned
trial Judge so need not be repeated in detail. Produced evidence
disclose action and recoveries per memos prepared – with stray
contradiction or omission here and there to which significance
cannot be attached to. Regarding non-authorising of search officer
PW/2, pointed out is that he was not regularly posted as SHO but
was SI whereas, according to prosecution incharge in absence of
SHO doing his duties is vested with all empowerment of SHO.
Learned Sessions Judge discussing at length found that regular SHO
away so, PW/2 was empowered for all including seizure. The search
was made on 18.10.2000. Notification under Section 42 promulgated
in year 1988 empowers SHO of police station or officers of rank of
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(Babu lal & Anr. Vs. State)
inspectors. PW/12 depose and so also is deposed by PW/2 and
others that PW/2 was incharge police station. Further proved is that
PW/12 Tej Singh per entry Ex.P/23, departed from Police station for
investigation in relation to other FIR No. 170/2000 and departed
from police station giving charge to Suresh Kumar PW/2. PW/12 was
SI, PW/2 is also SI who again was given charge specifically
mentioning so as above. Roznamcha entry of information received
Ex.P/21 and subsequent entries of proceeding for search etc also
mentions of PW/2 doing so in the capacity of Incharge. Given such
fact situation and when incharge PW/12 provenly was out to a
distance and not in direct control of police station then not in
position to perform all his duties who also made entries in
roznamcha as above. Moreover, the search is not of building,
vessel, conveyance but at public way so such argument on such
proven fact situations cannot be sustainable.
Stress is laid down of non-separate reduction in writing of
secret information received. Pertinent to note is that the provisions
do prescribe for reduction of information in writing. The information
is to be reduced in writing and received information is proved to
have been reduced into writing in Roznamcha Ex.P/21A at 1 O clock
in night which stands proved by evidence of PW/2 and Constable
PW/3. Moreover communication of such information and proceeding
for needful action is made to higher officer vide Ex.P/13 as is
established by depositions of PW/2 and Constable PW/11 who
delivered Ex.P/13 in morning to Dy. S.P at 7:30 AM and Ex.P/13
which further finds endorsement with seal of the Superintendent of
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(Babu lal & Anr. Vs. State)
police he having received it at 10AM. Therefore, the argument raised
have not basis.
Packets of substance recovered and seal impressions prepared
were delivered to Malkahan incharge, Head constable PW/6 Jamna
lal who depose of having received in sealed state and of safe intact
keeping in malkhana making entries Ex.P/25 in register. PW/2 the
recovery officer state that he delivered packets to PW/6 preparing
and vide memo Ex.P/19. PW/6 further depose of handing over two
packets marked A & D to Constable PW/7 on 08.11.2000 and
Constable PW/7 state of receiving packets from PW/6 and papers
from P.S and then obtaining forwarding letter from the
Superintendent office at Chittorgarh going Jaipur and staying therein
in night at P.S. Bani Park depositing both packets intactly at FSL on
10.11.2000. Copy of forwarding letter to FSL is P/26 and receipts
P/25. Section 55 provides for taking of charge of articles at Police
station and sealing with seal of Officer incharge. Here articles were
already sealed by Officer incharge. On the given facts is not
essential seems and was to re-seal. Moreover, the articles are prove
to have been safely delivered on the very same day to Incharge,
Malkhana who keepig safe and intact handed over for delivering at
FSL.
With above, thrustly raised is argument of laboratory finding
of weight of substance being less than 50 gm. According to
prosecution and evidence produced, sample collected was of 50 gm
and PW/2 and other mentions of taking samples of 50 gm each and
keeping them in a polythene and that in iron small container (dibbi)
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(Babu lal & Anr. Vs. State)
which wrapped by cloth and then sealed. Per FSL report Ex.P/29
substance contained with polythene pouch weighed respectively
45.016 gm and 45.5 gm. Seizure was effected on 18.10.2000 and
report is of 05.12.2001 and sample on analysis is found to juice of
opium poppy having morphine 6.75 and 8.17 %. The substance
recovered was semi solid viscocious and in laboratory weighed about
after 17 months – difference is about ten per cent. At laboratory,
obviously weight was using comparatively fine instrument. In these
circumstances, in the considered opinion of the Court, finding the
sample of little reduced weight do not adversely affect the
prosecution.
Emphatically raised is non-compliance of provisions of Section
50(1) & (2). Urged is that when contemplated was such a
compliance and attributedly search made so complying then have to
be strictly and these provisions mandatory non-compliance of
vitiates entire search and seizure.
A careful look at the provisions of Section 50 and with settled
states the compliance as prescribed is to be made only while
personal search, that is when and for search of any person. Unless
apparent is or is reasonably established fact situations disclose that
personal search was made but only to circumvent provisions of
Section 50 otherwise is attributed then only question of compliance
or otherwise may arise. Here seizure is from a bag (theli) being
carried in hands fastened or with palm and fingers – was not a
personal search. In addition, evidence produced disclose prove
(motbirs hostile but accept of signatures) disclose that vide memos
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(Babu lal & Anr. Vs. State)
P/3 and P/11 appellants were informed of their right of search
before a Magistrate or gazetted officer and they consented for
search by incharge P.S. PW/2 and consent also appears in writing
bearing signatures of appellants. As such the contention is to be
rejected.
Lastly is appearance of number of FIR on memos prepared at
the place of seizure on basis of which contention is of preparation of
memos afterwards at Police station. Memos for calling of motbir and
received information given to motbir and their consents Ex.P/1, P/2,
P/16, P/17 – memos of notice under Section 50, Ex.P/3, 11-seizure
memo Ex.P/4 and memos of arrest Ex.P/5 to 8, seal impressions
P/9, 10 have in red ink written FIR 408/2K. Registered FIR Ex.P/15
is also of same number. The very fact that number in red and in
writing distinguishly different to person writing memos so number
of FIR is written afterwards. This appear only for purpose of
denoting the number of related FIR. Therefore, the raised argument
is not sustainable.
Residuarily submitted is for reduction of sentence in default of
payment of fine emphasising that unable to pay fine did not furnish
bail bonds for suspensions of sentence though ordered. Taking all
factors cumulatively, in the opinion of the Court, just is to reduce
the sentence in default of payment of fine to six months RI.
For the reasons above described, appeal challenging
conviction fails. Sentence to rigorous imprisonment of ten years and
fine Rs. 1 lac to each appellant also remains intact. However, in
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(Babu lal & Anr. Vs. State)
default of payment of fine instead of one year awarded is six months
rigorous imprisonment.
Therefore, appeal is rejected. As above is ordered that in
default of payment of fine imposed of Rs. 1 lac, each appellant to
undergo six months RI. Convictions affirmed. Ten years rigorous
imprisonment with fine Rs. 1 lac intact but in default of payment of
fine, to undergo six months rigorous imprisonment.
(C.M. TOTLA), J.
