1
S.B.Criminal Appeal No.16/89
(Narayanpuri v. The State of Raj.)
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR.
J U D G M E N T.
NARAYANPURI V. THE STATE OF RAJASHAN.
S. B. CRIMINAL APPEAL NO.16/89,
against the judgment dt.17.12.88,
passed by Shri B.L.Bundel, Additional
District & Sessions Judge, Barmer
in Sessions Case No.36/88.
DATE OF JUDGMENT ::: 15/09/2009
HON'BLE MR. JUSTICE C. M. TOTLA
Mr. P.R. Choudhary, for Appellant (s).
Mr. Panney Singh, PP, for the State.
REPORTABLE. BY THE COURT :
Appellant challenges his conviction and sentence awarded of ten
years’ rigorous imprisonment with fine of Rs.1,00,000/- for the offence of
Sections 21 and 29, NDPS Act recorded per judgment dated 17.12.88.
Heard learned counsel for the appellant and also learned Public
Prosecutor.
The facts alleged as per prosecution appear to be like that in
night between 24th and 25th November, 1987, a vehicle truck No. GTF
3675 being allegedly driven rashly by driver Sohan Singh turned up by
side on road near Bachhdau resulting in death of two and injury to
some for which, on report of a passenger Ratna, FIR No.93/87 was
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S.B.Criminal Appeal No.16/89
(Narayanpuri v. The State of Raj.)
registered at Police Station, Dhorimana, district Barmer at 7 AM on
25.11.87.
According to prosecution, on 25.11.87 at about 7 pm, Dy. S.P.
Barmer informed on wireless at police station, Barmer that as some
information regarding smuggling of heroin is so checking staff to be
available at road crossing. Dy.S.P. arriving at police station at about 7
pm told SHO PW 12 regarding information to the S.P. by some informer
that the truck GTF 3675 owned by Tar Singh driven by his brother Bhom
Singh while going towards Gujarat last night, having heroin in tins of
grease, met an accident, so Gom Singh and Narainpuri, in some truck,
coming at Barmer and taking nisan truck RJC 3068-owned by Tar Singh-
brought the injured to hospital and Narainpuri has placed grease tin
taking from that truck GTF 3675 in this truck RJC 3068 and the truck now
towards Ramsar with dead body shall be back. So the SHO PW 12
making entry in Roznamcha Ex.P16 proceeded for Nakebandi on way
also taking also other police personnels from road crossing.
Nakabandi was effected at 3-4 km from city near octroi post on
road Ramsar to Barmer and at about 0010 hours, truck RJC 3068
arriving from Ramsar stopped, which found driven by Narainpuri the
appellant and Mehtab Singh sitting on seat at side to him – in vehicle
below driver seat- lying in tools was a red colour grease tin in which with
grease over it was a yellow polythene bag and for taking it out, tin had
to be cut by tools – in polythene was cloth bag (theli) containing
brownish powder smelting and testing like heroin – so seized – on weigh
found 950 gm – a sample of 40 gm taken from substance sealed and
remaining substance separately sealed-preparing memo Ex.P10 also
affixed on it impression of the seal used. Preparing memos Exs.P11 and
12 vehicle RJC 3068 and its documents seized appellant who was driving
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S.B.Criminal Appeal No.16/89
(Narayanpuri v. The State of Raj.)
the vehicle arrested at 2.30 a.m. vide memo Ex.P13. Returning at police
station, SHO making entry No.764 of all above in Roznamcha Ex.P17,
registered FIR Ex.P18 No.93/87 for the offences of NDPS and Customs
Act. Sealed packets deposited and kept in malkhana with entry Ex.P3 in
register. Site plan of the place of recovery is Ex.P19, memo of arrest of
Gom Singh and Tar Singh are Exs. P20 and P21 – sample packet, with
forwarding letter Ex.P8 deposited at laboratory obtaining receipt Ex.P7 .
Recording statements of witnesses and with copies of FIR, charge-sheet
copies Exs. P5, 6, 1 and 2 pertaining to some other incident for the
offences of NDPS Act and Customs Act in relation to Tar Singh also and
others charge sheet submitted mentioning that for Mehtab Singh
separate challan is being filed in Children Court.
Narainpuri and Tara Singh charged for the offences of Sections 21
and 29 and Gom Singh charged for the offence of Section 29-that they
conspiringlly, in order to sale and deal, on 26.11.87 at about 1-2 am, in
vehicle No. RHC 3068, keeping in tool box consciously possessed and
transported 950 gm heroin vehicle owned by Tar Singh and driven by
Narainpuri-denying claimed trial.
Among the 13 prosecution witnesses examined, PW 12 is the SHO
who doing all as above and searching the vehicle seized the substance
who deposing so also proves respective memos. Ghisu Singh Rathore PW
9 Sub-Inspector, Head Constable Kalu Ram PW 2, Constable Puna Ram
PW 1 police personnels were with SHO during search and seizure.
Ratan PW 8 and Luna Ram PW 13 travelling in truck No. GTF 3675
state regarding accident and injury to them and death of two. Both of
them are declared hostile. Dr. Mangilal Bohra PW 10 examined injuries of
PW 8 and PW 13 proves injury reports Exs. P14 and P15. Ram Singh PW
3 Sub-Inspector in September, 1984 at police station, Kotwali, Barmer
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S.B.Criminal Appeal No.16/89
(Narayanpuri v. The State of Raj.)
state about searching vehicle GTF 3675 on 21.9.84 and finding of some
Afgan nationals in it – Sohandas PW 5 SHO police station, Sangar in
September, 1986 state about recovery of huge heroin on 19.9.86. ASI PW
1 of Dhori Manna deposes about accident of vehicle GFT 3675 on
25.11.87 and registration of FIR Ex.P14 at 7.00 AM on 25.11.87. Head
Constable malkhana incharge PW 4, constables Prema Ram PW 6 and
Bhabu Ram PW 7 state about safe and intact delivery of sample packet
at laboratory.
Laboratory report Ex.P24 of 11.4.78 describe that on 11.12.07
packet received with intact seal weighed 30 gm and substance on
micro chemical examination gave positive test for presence of heroin.
Appellant’s explanation is that the witnesses are telling lie and he
never was driver of this vehicle RJC 3068.
Learned Judge by the assailed judgment convicted and sentenced
the appellant and acquitted other two Gom Singh and Tar Singh.
Here, it may be mentioned that for accident of vehicle GTF 3675,
FIR registered at police Station, Dhori Manna Ex.P14 bears No.93/87 and
coincidently for recovery of this substance from vehicle RJC 3068 – FIR
registered at Police Station, Barmer, also bears No.93/87.
Learned counsel for the appellant thurstly argued (1) that search
and Nakabandi, as is very clear from the evidence of SHO PW 12, made
only in consequence of certain information of a informer given to S.P., but
(i) this information never nowhere reduced in writing; (ii) SHO PW 12
directly not given any information to PW 12-Dy. S.P. told the information
and which information mentioned to him by Superintendent of Police-even
Dy. S.P. what to talk of higher officer is not among prosecution evidence;
(iii) total non-compliance of S.42-when not reduced in writing, obviously
copy not sent to higher officer and thus mandatory procedure under S.42
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(Narayanpuri v. The State of Raj.)
not complied with in any manner. (2) Appellant, if driver, it was just by
chance and only just to carry dead or injured to hospital – appellant
otherwise never driver of any of the said vehicles. (3) Even allegedly
appellant was not in vehicle No. 3675 which met accident and from which
this grease tin is said to have taken and kept in Nishan truck No. RJC
3068. (4) It cannot be that appellant taking the container shall keep in
vehicle RJC 3068 – in any case, if that be so, per prosecution itself, only
innocently on asking of Gom Singh. (5) Appellant at best simply a casual
employee who has no knowledge of this substance in small tin and thus
cannot be deemed to be in conscious possession.
Learned counsel also argued that memos of impression of seal
used not prepared – seal or memo – not deposited in malkhana – real
description not proved to have been forwarded to laboratory – no
description of imprint of seal in malkhana register so mentioning in report
Ex.24 of seals being intact is without comparison. Submitted that making
and preserving seal impressions and/on destructing the seal so as to
eliminate any chance of tempering and manipulation essential, and not
complied in this case. Lastly, submitted that weight with polythene bag
of sample found at laboratory is 30 gm, whereas sample collected was 30
gm thus variation in weight. In support of the contentions, learned
counsel placed reliance on (1) 1994 Cr.L.R. SC 241, State of Punjab v.
Balbir Singh; and (2) 1997 Cr.L.R. (a) Page 135, Nathu Banjara v. State;
(b) P.132, Laxman Lal & Another v. State of Rajasthan; (c) P.806, Mohan
v. The State of Rajasthan;(d) P. 536, Jarnail Singh v. The State of
Rajasthan; (e) P.746, Bhajan Prakash v. The State of Rajasthan; (f)
P.624, Shounath v. The State of Rajasthan; (g) P.635, Harnek Singh v.
The State of Rajasthan; and (h) 653, Heeralal v. The State of Rajasthan.
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S.B.Criminal Appeal No.16/89
(Narayanpuri v. The State of Raj.)
Countering above arguments, learned Public Prosecutor argued
that in the vehicle (driven) by the appellant just below his seat in tool box
concealed was this tin containing heroin, and appellant being driver as
also proved by other evidence, was in conscious possession so is rightly
convicted.
Giving thoughtful considerations to above arguments, perused
impugned judgment and record.
A reading of the evidence and documents disclose that on
25.11.87 at 7.00 A.M. registered is FIR No.93 at P.S. Dhorimanna for the
incident of accident is truck No. GTF 3675. Per FIR Ex.P14 lodged by
Ratna this d truck owned by Tar Chand was driven by his brother Gom
Singh and due to allegedly rash, negligent and fast driving the vehicle
turned and consequent to injuries two Vakta and Sachu died there and
others Hema, Kana and Ratna injured.
Evidence of Ratna PW 8 and Luna Ram PW 13, though they are
declared hostile, read with evidence of medical officer PW 10 proves that
vehicle GTF 3675 was driven by Gom Singh and they both travelling in
it . Vehicle turned upside down they injured and two others died.
Registration of case at Police Station, Dhori Mana is proved by evidence of
ASI PW 11.
Injured Ratan PW 8 states that as vehicle turned, the driver Gom
Singh did arrange for nishan truck in which they brought to Barmer
hospital. Similar is statement of other injured Loona Ram PW 13. Thus,
apparent is that for transporting injured and others, vehicle was arranged
by driver of GTF 3675.
One of the main arguments put forward is non-compliance of
Section 42. From the evidence of SHO, seizure officer PW 12 read with
Roznamcha entry Ex.P15 made by PW 12, it surfaces that (1) on
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S.B.Criminal Appeal No.16/89
(Narayanpuri v. The State of Raj.)
information (some clue) given by Dy.S.P. PW 12 proceeded for
Nakebandi, (2) Dy.S.P. told PW 12 that information is to Superintendent
of Police by some informer, (3) PW 12 says that Dy. S.P. told of S.P.
having received information who told him (the Dy. S.P.). Thus, neither
Dy.S.P., nor SHO appear to be directly communicated by informer. None
of the persons to whom the information given or first communicated are
among prosecution witnesses. PW 12 does not say of reducing the
information in writing – neither say of forwarding any copy to higher
officer. This information is not proved to be reduced in writing, nor copy
forwarded.
Though, deficiency is apparent regarding compliance of Section 42,
but also is to be examined whether provisions of Section 42 are
applicable on the given case.
According to prosecution, SHO proceeded in night, searched truck
just after mid-night and in truck was found this tin and substance. The
truck No. RJC 3068 was stopped and search at a public road – search
made is of conveyance, a truck, and Section 43 of the Act specifically
provides for seizure etc. at a public place. This vehicle was on a public
place so only the provisions of Section 43 are applicable.
According to provisions of Section 43 of the Act, “any officer of any
of the departments mentioned in S.42” may search. The section no-where
provides for prescribing procedure mentioned in Section 42 (1) or (2).
S. 42 (1) and (2) are desired to be followed if search is in the manner, at
time and/or place as described in Section 42 (1).
Hon’ble the Supreme Court dealing with provisions in 1994 Cr.L.R.
SC 241, State of Punjab v. Balbir Singh held that only acting under S.42
(1) information ought to be recorded. Similar is also held in Abdul Rashid
Ibrahim Mansuri v. State of Gujarat, (2000) 2 SCC 513.
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S.B.Criminal Appeal No.16/89
(Narayanpuri v. The State of Raj.)
Non-recording of such information under Section 42 may make
actions suspect, but not on this core alone necessarily leads to vitiation of
trial. The Hon’ble Apex Court in 2009 (1) SCC Cr.393, K. C. Chithhayan v.
State of Tamil Nadu held like above that if search is to be made at a
public place then applicable is Section 43 and not S. 42 (2).
For the above reasons, argument for compliance of S.42 can
hardly stand.
SHO PW 12 deposes that on information given by Deputy
Superintendent of Police, making entry Ex.P16 in Roznamcha, he
proceeded along with other staff for Nakebandi and on way S.I. Jitu Singh
with other personnels were at Ahinsa Chauraha who also taken along
Nakebandi at octroi-post on road at a distance of about 3-4 km from town
– at about 1210 mid-night from towards Ramsar came truck RJC 3068
which giving signal stopped – the vehicle was driven by Narainpuri and
on seat by side was Mehtab Singh – truck when searched, in its tool box,
below driver seat was a grease tin in which in a polythene with grease
over it, was a theli (bag) of white cloth containing powder like material
and-as theli could not be taken out so tin cut and broken by tools –
substance found was powder brownish like which smelt and tested as
heroin so seized and weighed by accompanying head constable Kaluram,
was 950 gms from which sample of 30 gm separately sealed, rest
separately sealed, prepared memo Ex.P15. PW 12 stating about seizure
of vehicle and arrest etc. has identified Article 2 the packet of remaining
substance, Art. 3 tin, Articles 4 and 5 tools using which tin broken, Art. 6
small bag in which documents of vehicle were and Art. 1 the packet of
remaining samples after examination. PW 12 says that light was arranged
for which head constable Kaluram did went to police station and came
making arrangements. On this other witnesses also stated and explained
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S.B.Criminal Appeal No.16/89
(Narayanpuri v. The State of Raj.)
convincingly that lights of vehicles were used and gas for light was
arranged from police station which was at about a distance of 3-4 km
from the place of search. SHO PW 12 states that being mid-night, no
possibility of finding independent witnesses though little effort made, still
could not be available. Normally, it is desirable and also is requirement
that independent witness should be but if convincing hard reasons are
and no prejudice or suspicion, the same cannot adversely affect
prosecution.
In addition to SHO PW 12, Sub-Inspector PW 9 states that per
telephonic directions of Dy.S.P., he along with police personnels
proceeded to the road crossing for being available and then Dy. S. P. and
SHO with other police personnels and they all effected Nakebandi near
octroi post, where in night around 1210 arriving RJC 3068 from towards
Ramsar stopped and then searched. PW 9 describes recovery of heroin
in the tin and his signatures are on memos Exs. 10, 12 and 13. Entry of
Sub-Inspector PW 9 departing from police station in Roznamch is Ex.P14.
Testimony of these two witnesses PW 12 and PW 9 is corroborated by
head constable Kalu PW 2 and constable Puna Ram PW 1.
Thus, proved is that the appellant was driving the vehicle in
which below seat in tool box kept was tin containing this substance.
PW 12 states that impression of seal was placed on memo of
recovery Ex.P10 then and there. malkhana incharge Mangilal PW 4 proves
depositing packets in Malkhana and making entry Ex.P3, but not mention
about seal or impression of seal. Malkhana entry Ex.P3 does not find
mention of depositing memo of impression on description of seal.
Sample of packet was deposited in laboratory by constable Prema
Ram with forwarding letter Ex.P8 of the office of S.P. Described in Ex.P8
is that along with packet are six papers – receipt Ex.P7 and report Ex.P24
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(Narayanpuri v. The State of Raj.)
mention number and date of forwarding letter Ex.P8. Bhabhut Singh PW
7 constable working in the concerned section of S.P. Office and
constable Prema Ram PW 6 say that Prema Ram receiving packets from
malkhana incharge PW 4 handed over to PW 7 who after getting
documents (forwarding letters) prepared with documents handed over
packet to Prema Ram who deposited in laboratory. Thus, documents were
also forwarded and deposited in laboratory. Clear appears that copy of
memo of seizure that is Ex.P10 forwarded and Ex.P10 bears impression of
seal. On Ex.P10 seal is of impression JSB tallying with name of PW 12. As
sample is proved to be containing the die-acetyl morphine stands
proved that the entire substance was such, that is heroin coming within
ambit of opium derivative and manufactured drug.
On the strength of (1) appellant being only driver and (2)what
was said by Dy. S.P. to SHO he if at all did was only to place in and (3)
not was appellant in truck No.3675 per FIR of accident, is argued that the
appellant could never have known and did not knew about this
substance.
Trying to analyze this argument, per FIR of accident Ex.P14 that
vehicle GTF 3675 was driven by Gomsingh – appellant Narainpuri was not
in that vehicle. SHO PW 12 states that Dy. S.P. told him of the information
given to S.P. and communicated to Dy.S.P. was that Gom Singh was
driving vehicle GTF 3675 and on accident, brought was vehicle nishan
truck No. RJC 3068 driven by Narayanpuri and then as Gom Singh was
also injured they all taken to hospital. Learned counsel argued that only
on simple plain asking of Gom Singh, if appellant just put in a small tin
of grease, that does not result, show or disclose possession of appellant
Narayanpuri. In this context, also is submitted that grease being essential
for maintenance of vehicle, is to be kept ready in every vehicle. In the
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(Narayanpuri v. The State of Raj.)
considered opinion of the Court, the above argument is not of any
substance because Narainpuri was driving the vehicle and if above
argument is accepted, then as he was there only for helping injured.
(Then, definitely, no occasion arose and in normal course) had no
occasion, reason or would not have taken the tin from that vehicle 3675
and to keep it in 3068 without reason. Above if true, then Narainpuri did
so certainly with some definite knowledge, than it is conscious
possession. In addition, per narration of information (that tin was placed
by appellant – and no other material) on which argument is based,
appellant was in that vehicle 3675 and Gom Singh was injured – If Gom
Singh was injured, he could not have asked for, nor appellant ought to
have given any attention or heed to asking of taking and keeping this
grease tin.
Thus, appeal regarding conviction is to be rejected. Appellant is
convicted for the offence of Sections 21 and 29 – separate punishment on
each count is ten year’ rigorous imprisonment with fine of Rupees one lac
– in default one year rigorous imprisonment – substantive sentence to run
concurrently. Thus, though concurrently running imprisonment is but
separate for default of fine on each count.
Under Section 21 is punishment for possession, sale, purchase,
transport, manufacture etc., whereas under Section 29 punishment is for
conspiracy to commit or abatements. As convicted under S.21 for
possession and transporting, then no occasion arises for separate
conviction and sentence for the offence of Section 29. Therefore, separate
punishment awarded for the offence of Section 29 is to be set aside.
In default of payment of fine, appellant has to undergo rigorous
imprisonment for Rupees one lac. Appellant is a driver not having
sufficient means so the sentence in default of payment deserves to be
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(Narayanpuri v. The State of Raj.)
reduced to six months rigorous imprisonment.
Accordingly, upholding conviction of appellant for the offence under
Section 21 of the NDPS Act, the appeal is rejected. Sentence awarded of
imprisonment in default of payment of fine of Rupees one lac is little
altered and the appellant to under six months rigorous imprisonment in
default of payment of fine of Rupees one lac. Thus, appellant for the
offence punishable under Section 21 of the Act to undergo ten years
rigorous imprisonment and to pay fine of Rupees one lac in default of
payment to undergo further six months rigorous imprisonment. Appellant
Narayanpuri who is on bail cancelling his bail bonds, is ordered that to
surrender forthwith before the trial Court and the trial Court is also
directed to secure his presence to serve out the remaining sentence.
(C. M. TOTLA), J.