JUDGMENT
Garg, J.
1. This appeal has been filed by the accused appellant against the judgment and order dated 2.9.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur is Sessions Case No. 130/98, by which he convicted the accused appellant for the offence under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act) and sentenced him to undergo ten years’ Rigorous Imprisonment and to pay a fine of Rs. 1 lac, in default of payment of fine, to further undergo 2 1/2 years’ R.I.
2. It arises in the following circumstances:-
On 30.7.1998 at about 5.00 PM, PW 5 Naraindan, who was SHO, Police Station Sadar, Pali, after receiving some information, proceeded towards Jodhpur Road and when he was checking, at about 6.15 PM, at Pali- Jodhpur Road Railway Phatak Gumti,. he received a secret information from mukhbir to the effect that one Shankarlal (accused appellant) had kept milk of opium in the dikki of his motor cycle Suzuki bearing No. GJ 9/F.559 and he was coming from Neemuch and he would supply that milk of opium in the Dhabas of Bhakri situated on Jodhpur Road. PW 5 naraindan reduced that information into writing and the fard is Ex.P/7 and after recording that information, PW 5 Naraindan asked PW 10 Manoharlal to deliver its copies to Dy. SP and CO and proceeded further and at that time, PW 8 Amar Singh and PW 4 Jainaram were with him., Therefore, at about 6.40 PM, they saw one motor cycle of the same number as disclosed in the mukhbir information coming from the side of Pali and PW 5 Naraindan and PW 8 Amar Singh, ASI tried to stop that motor cycle and that person made efforts to run away, but he was apprehended and on being asked, he told his name as Shanker Lal (present accused appellant) and he was asked as to what was kept in the dikki of Motor cycle and upon this, the told that it contained milk of opium. Thereafter, the accused appellant was asked whether he wanted to be searched before Magistrate or Gazetted Officer and upon this, he gave his consent that he and his motor cycle could be searched by PW5 naraindan and the fard of consent prepared in presence of PW 1 Lalit Kumar and PW2 Karnaram is Ex.P/1. Thereafter, proceedings of search and seizure were staled by PW5 Naraindan and dikki of the motorcycle was found locked and it was got opened by key and in it, black colour liquid solid substance was found and on being tasted, it was assessed that it was milk of opium. Thereafter, it was weighed and its weight was found to be 5 kgs., out of which, one sample of 100 grms. was taken and sealed separately’on the spot and marked as A and the remaining milk of opium was also sealed separately on the spot and marked as B. The fard of search and seizure prepared on the spot by PW 5 Naraindan is Ex.P/2. The accused appellant was arrested through arrest memo Ex.P/4. Ex.P/3 is the site plan. Ex.P/8 is the FIR, which was lodged by PW 5 Naraindan. The detailed report sent by PW 5 Naraindan to SP, Pali for making compliance of Section 57 of the NDPS Act is Ex.P/9. PW 5 Naraindan handed over the seized articles and sample to the Malkhana Incharge PW 4 jainaram, who deposited the same in Ihe malkhana and made entries in the Malkhana Register Ex.P/12. Thereafter, PW4 Jainaram gave one sample to PW9 Manakram through letter Ex.P/10 and after taking a fresh forwarding letter Ex.P/20 from SP Office from PW 13 Kishanlal, PW 9 Manakram deposited the sample in the FSL, Jaipur on 5.8.1998 and obtained receipt Ex.P/14. The FSL report is Ex.P/21, where it was reported that the sample contained in the packet marked A gave positive tests for the presence of chief constituents of coagulated juice of opium poppy having 6.18% (Six point one eight percent) morphine.
After usual investigation, the police submitted challan for the offence under Section 8/18 of the NDPS Act against the accused appellant and for the offence under Section 8/29 of the NDPS Act against another accused Bhopal Singh in the Court of Special Judge, NDPS Cases, Jodhpur.
Vide order dated 18.02.1998, the learned Special Judge, NDPS Cases, Jodhpur ordered that accused appellant be charged for the offence under Section 8/18 of the NDPS aCt and he was charged accordingly and the charge was explained and read over to him. He denied the charge and claimed trial. But, by the same order, the learned Special Judge discharged another accused Bhopal Singh of the charge for the offence under Section 8/29 of the NDPS Act.
During trial, the prosecution in support of its case examined as many as 13 witnesses and got exhibited several documents. Thereafter, the statement of accused appellant under Section 313 Cr.P.C. was recorded. In defence, no evidence was produced by the accused appellant.
After conclusion of trial, the learned Special Judge, NDPS Cases, Jodhpur through his judgment and order dated 2.9.2000 convicted the accused appellant for the offence under Section 8/18 of the NDPS Act and sentenced him in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubt against the accused appellant for the offence under Section 8/18 of the NDPS Act,
Aggrieved from the said judgment and order dated 2.9.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur, the accused appellant has preferred this appeal.
3. In this appeal, the learned counsel for the accused appellant has made the following submissions:-
1. That in this case, the compliance of mandatory provisions of Section 42(2) of the NDPS Act has not been made by the prosecution and non-compliance of these provisions vitiates the entire trial and thus, the accused appellant is entitled to acquittal on this ground alone.
2. That there is lack of evidence on the point that the seized articles and sample from the date of seizure till the sample was deposited in the FSL, Jaipur remained in proper custody and proper form.
3. That there are material contradictions and omissions in the statements of prosecution witnesses and furthermore, PW 1 lalit Kumar and PW 2 Karnaram state that three persons were found on motor cycle in question and, therefore, present accused appellant has been falsely implicated by PW 5 Naraindan as two other persons had run away from the scene. From this point of view also, whole proceedings of search and seizure become doubtful and the accused appellant is entitled to acquittal after giving benefit of doubt.
Hence, it was prayed that this appeal be allowed and the accused appellant be acquitted of the charge framed against him.
4. On the other hand, the learned Public Prosecutor supported the impugned judgment and order passed by the learned Special Judge, NDPS Cases, Jodhpur.
5. I have heard the learned counsel for the accused appellant and the learned Public Prosecutor and perused the record of the case.
Point-No. 1
6. On this point, the case of the learned counsel for the accused appellate is that since the copy of secret information Ex.P/7 has not been sent to immediate official superior, as required by Sub-section (2) of Section 42 of the NDPS Act, therefore, there is total non-compliance of mandatory provision of Section 42(2) of the NDPS Act and on this ground alone, the accused appellant is entitled to acquittal.
7. Section 42 of the NDPS Act has two aspects:-
1. That if the officer has reason to believe from personal knowledge or information given by any person, he shall lake down that information in writing;
2. That for making compliance of Section 12(2), such officer, after taking
down that information in writing or recording grounds for this belief
under the proviso to above Section shall forthwith send a copy thereof
to his immediate official superior.
8. There is no dispute on the point that provisions of Section 42 of the NDPS Act, if they are applicable in any case, are mandatory. For that the decisions of the Hon’ble Supreme Court in Stale of Punjab v. Balbir Singh (1), Mohinder Kumar v. The State, Panaji, Goa (2), State of Punjab v. Baldev Singh (3) and Abdul Rashid Ibrahim Mansuri v. State of Gujarat (4) may be seen.
9. In the present case, there is no dispute on the point that compliance of mandatory provisions of Section 42(1) of the NDPS Act has been made.
10. Now it is to be seen whether the compliance of mandatory provisions of Section 42(2) of the NDPS Act has been made in this case or not and for that evidence oral as well as documentary has to be looked into.
11. PW 5 Naraindan is the main witness, who received the information from mukhbir and reduced it into writing in Ex.P./7. In his statement recorded in Court, he states that after recording the mukhbir information, he sent the copies of that information to SP and CO through PW 10 Manoharlal. In cross- examination, this witness further admits that is correct to say that after reducing the mukhbir information in writing, he prepared four copies of that information and he sent three copies through PW 10 manoharlal to SP and CO from the place, where he received the mukhbir information.
12. PW 10 Manoharlal states that at the time of search and seizure, he was present and at about 6.00 PM, PW 5 Naraindan gave him a letter about the secret information of mukhbir and after taking that letter, he went to Police Station and, thereafter, he went to deliver that letter to CO and SP Saheb. In cross examination, this witness admits that secret information of mukhbir, which was given to him by PW 5 naraindan was given by him first to PW 3 Jabbar Singh, who was Constable in Police Station Sadar, Pali and, thereafter, PW 3 Jabbar Singh, after making information of his own in shape of letter Ex.P/6, gave to PW 10 manoharlal for forwarding it to SP and Dy. SP. This witness has further admitted that whatever was given to him by PW 3 jabbar Singh, he delivered that letter to Dy. SP as well as to SP and after delivering letters to both, he took receipts and handed over the same to PW 5 Naraindan.
13. Now the statement of PW 3 Jabbar Singh has to be discussed.
PW 3 Jabbar Singh states that on 30.7.1998 he was Constable in the Police Station Sadar, Pali and at about 6.40 PM, PW 10 Manoharlal came to the Police Station alongwith the secret information of mukhbir and he recorded that information in the Rojnamcha Ex.P/5 and on the basis of that secret information, he sent the information to SP and Dy. SP through PW 10 Manoharlal and what was sent by him is Ex.P/6, letter addressed to SP by him. In cross examination, this witness admits that whatever he sent is Ex.P/6 and it is correct to say that original information received by him through PW 10 manoharlal was not sent by him alongwith Ex.P/6, which is an information given by him to SP of this incident in this own language.
14. It may be stated here that though as per the statement of PW 10 Manoharlal, he obtained the signatures of SP and Dy. SP and receipts were given by him to PW 5, Naraindan, but there is nothing on record to show that information was received by them, as no receipts have been produced in Court.
15. Apart from this, PW 11 Yadram, who was C.O. at the relevant time, has been produced in this case and this witness no where states that he received the copy of the secret information form PW 5 Naraindan.
16. Prom the above discussion, it clearly appears:-
(1) That secret information from mukhbir was received by PW 5 Naraindan and he reduced that information into writing and the same is ex.P/7.
(2) That as per the statement of PW 5 Naraindan, he prepared four copies of that information and three copies were given by him to PW 10 Manoharlal for delivering to S.P. and Dy. SP.
(3) That PW 10 Manoharlal, after receiving that information from PW 5 Naraindan, went to Police Station and first handed over the same to PW 3 Jabbar Singh, who was Constable in the Police Station Sadar, Pali.
(4) That PW 3 Jabbar Singh did not send the original information of mukhbir to SP and Dy. SP, but he sent information of this incident in his own language in the shape of Ex.P/G.
(5) That thus, for making compliance of Section 42(2) of the NDPS Act, what was sent to higher officers was Ex.P/G and there is no dispute on the point that it is not the copy of Ex.p/7, which is secret information received by PW 5 Naraindan from mukhbir.
(6) That even there is nothing on record which shows that either the copy of Ex.P/G or Ex. P/7 was received by Dy. SP and SP, as no receipt has been produced on record.
17. Thus, looking to the above facts £ circumstances, it can reasonably be concluded that in the present case, compliance of mandatory provisions of Section 42(2) of the NDPS Act has not been made and the non-compliance of these mandatory provision vitiates the trial and thus, the accused appellant is entitled to acquittal on this ground alone.
Points No. 2 & 3
18. From the fard of search and seizure Ex.P/2, it appears that from the dikki of the motorcycle in question, milk of opium of 5 kgs. was recovered, out of which, one sample of 100 grms. was taken and sealed separately on the spot and marked as A and the remaining milk of opium was also sealed on the spot and marked as B.
19. From the statement of PW 5 Naraindan, it further appears that he handed over the articles alongwith sample to PW 4 Jainaram, Malkhana Incharge. It may be slated here that PW 4 jainaram is one of those witnesses, who was also present on the spot at the time of search and seizure.
20. PW 4 jainaram slates that PW 5 Naraindan handed over the seized articles and sample to him and he deposited the same in the Malkhana and made entries in the malkhana Register ex.P/12 as at that time he was Malkhana Incharge. In cross examination, this witness admits the following facts;-
(1) That on 30.7.98, the Malkhana Incharge was C.I. Naraindan, PW5.
(2) That it is correct to say that Ex.P/12A is the certified copy of the Malkhana Register Ex.P/12.
(3) That it is also correct to say that in Ex.P/12A at place C to D, there is mention of the fact that milk of opium of 5 kgs. was deposited in the Malkhana.
(4) That it is also correct to say that in Ex.P/12A, there is mention of the fact that sample A was deposited in the Malkhana, but weight of the sample was not mentioned.
(5) That it is also correct to say that in Ex.P/12A, there is no mention of the words “4 kg. 900 grms.”
(6) That it is correct to say that in Ex.P/12 (original malkhana register) at place C to D, the words “4kg. 900 grms.” were mentioned, but these words were not written by him.
(7) That in Malkhana Register Ex.P/12 at portion E to F, the word “Shankarlal” was written, but that was written later on.
21. From the statement of PW 4 Jainaram, the following things have come in picture:-
(1) That Ex.P/12A is the certified copy of the Malkhana Register Ex.P/12.
(2) That in Ex.P/12A, the words “4kg. 900 grms,” are not mentioned while in Ex.P/12 at place C to D, the words “4kg. 900 grms.” are written.
(3) That PW 4 Jainaram has admitted that in Ex.P/12 at place C to D, the words “4kg. 900 grms.” were not written by him meaning thereby they have been interpolated by some one else and thus, forgery has been committed with the Malkhana Register ex.P/12.
(4) That similarly, in Malkhana Register Ex.P/12 at place E to F, the word “Shankarlal” has been written, but the same was wrilten later on.
22. Thus, from the above discussion, it can reasonably be gathered or presumed that when the articles and sample were deposited in the Malkhana by PW 5 naraindan, the name of accused appellant Shankarlal was not in picture and the name of accused appellant Shankarlal was added later on, as admilled by PW 4 Jainaram, who was at that time malkhana Incharge and thus, this aspect creates doubt as to whether the articles in question wee recovered from the accused appellant Shankarlal or not. Apart from this, in Ex.P/12A, the words “4 kg. grms.” are not mentioned, which in Ex.P/12 at place C to D, the words “4Kg. 900 grms.” are mentioned and these words were not wrilten by PW 4 Jainaram, who was at that time malkhana Incharge as admitted by himself in Court statement and thus, these words have been inserted later on by some one else and thus, forgery has been commilled with the Malkhana Register Ex.P/12. Under these circumstances, it cannot be said that the articles and sample have been kept in proper custody and proper from and the possibility of tempering with the sample also cannot be rules out. Apart from this, if the interpolation is ma’de in the Malkhana Register, then nothing remains and the whole prosecution case comes under the shadow of doubt and the accused appellant is entitled to acquittal, after giving benefit of doubt.
23. Besides this, PW 1 Lalit Kumar and PW 2 Karnaram are motbir witnesses of the fard of search and seizure Ex.P/2 and both have clearly staled that on the motor cycle in question, three persons were found and they were got down from the motor cycle and brought to the Police Station by police. These two motbir witnesses have not been declared hostile and if they have not been declared hostile, their testimony cannot be discarded and whatever facts they have alleged, if they are supported by some other evidence, attention should be given.
24. Apart from this, material contradictions are found in the statements of police officials and the same is with respect to presence of PW 11 Yadram, C.O.
25. PW 5 Naraindan, who has conducted the search and seizure in the present case, has clearly admitted in his statement that on the spot, PW 11 yadram, C.O. also came and whatever was done by him, PW 11 Yadram was apprised and when PW 11 Yadram, C.O. reached an the spot, the work of sealing was being going on.
26. Similar is the statement of PW 10 Manoharlal, who slates that whatever proceedings of search and seizure were being conducted by PW 5 Naraindan, the same were being done by him under the supervision of PW 11 Yadram.
27. PW 11 Yadram, C.O. has been produced in this case and he frankly admits that he was not present at the time when the proceedings of search and seizure were being conducted by PW 5 Naraindan, as he was out of station.
28. Similar is the statement of PW 8 Arnar Singh, who was at the relevant time ASI and who was with PW 5 naraindan from the very beginning. He admits that PW 11 Yadram never reached on the spot.
29. Thus, there are material contradictions between the statements of police officials on the point whether PW 11 Yadram, CO was present on the spot or not and if he was not present, what was the occasion for PW 5 naraindan to say that he was present. This fact also falsifies the statement of PW 10 Manoharlal that he delivered the copy of secret information to PW 11 Yadram, C.O. as when PW 11 yadram, D.O. was out of station on the relevant date, no question of delivering copy of secret information to him arises and that is why, no receipt has been produced in this case. This aspect further makes the case of the prosecution doubtful.
30. For the reasons stated above, it is held that the prosecution has not been able to prove its case beyond all reasonable doubts against the present accused appellant and thus, the findings of conviction recorded by the learned Special Judge against the accused appellant for the offence under Section 8/18 of the NDPS Act are liable to be set aside and this appeal deserves to be allowed and the accused appellant is entitled to acquittal.
Accordingly, the appeal filed by the accused appellant Shankarlal is allowed and the impugned judgment and order dated 2.9.2000 passed by the learned Special Judge, NDPS Cases, Jodhpur are set aside and the accused appellant is acquitted of the charge for the offence under Section 8/18 of the NDPS Act. Since he is in jail, he released forthwith, if not required in any other case.