Dr. ARIJIT PASAYAT,J.
Challenge in this appeal is to the judgment of the learned
Sessions Judge of Rajasthan High Court at Jodhpur directing acquittal of the
respondent who faced trial for alleged commission of offence punishable under Sections 8 and 18 of the Narcotic Drugs and Psychotropic Substances
Act, 1985 (in short `NDPS Act') and was convicted by learned Special Judge,
NDPS cases, Chittorgarh in Sessions Case No. 252/97 (48/95). The trial
Court convicted him to undergo sentence for ten years rigorous
imprisonment and to pay fine of Rs.1,00,000/- with default stipulation.
Prosecution version as held during trial was that the respondent
was found to be in possession of merely 6 Kg. of opium. PW.1
Jaswant Singh, SHO, Police Station Kanera
District Chittorgarh prepared a Parchakayami (Ex.P/7) on 15.6.1995 at about 7.15 p.m. stating inter-alia that on 15.6.1995 at about 2.00 p.m., he received a
secret information from mukhbir to the effect that on that day before 6.00
p.m., one person, namely, Daul Giri (present accused respondent) S/o
Madhugiri, resident of Shamkhdo Ka Kheda having opium in his possession
would pass through Palchha Ghata on foot from the village Badawali. That
information was reduced into writing by Jaswant Singh (PW.1) and the same
is Ex.P/2 and apart from this, that information was also produced in
Rojnamcha Ex.P/1A. The copy of the secret information was also sent by
Jaswant Singh (PW.1) to superior officer Dy. PP Khetdan (PW.13) and
Khetdan (PW.13) was also requested to come and join the raiding party.
Thereafter, Jaswant Singh (PW.1) alongwith Khetdan(PW.13), Manikant
(PW.12), Reader of Dy. SP and other police officials and one independent
motbir Parbat Singh (PW.6) proceeded towards the spot in a Government
vehicle at about 4.0o p.m. and at about 4.15 p.m., they reached Badawali-
Pallchha Road and made Nakabandi and during Nakabandi, at about 5.00
p.m., they saw one person having gunny bag on his head coming on foot from
Badawali and he was encircled and on being asked, he told his name as Daul
Giri (present accused respondent). Thereafter, the accused was informed
about the secret information that he had contraband opium and, therefore, he
was to be searched. Before making search, the accused appellant was given a notice Ex.P/3 under the provisions of Section 50 of the NDPS Act asking him
whether he
wanted to be searched before the Magistrate or Gazetted Officer and upon
this, the accused gave his consent that he could be searched by Jaswant
Singh (PW.1). Thereafter, he was searched in presence of two motbirs,
namely, Khetdan (PW.13) and Parbat Singh (PW.6) and during search, from
the gunny bag, plastic bag containing black-brown substance was recovered
and on being tested, it was assessed that it was nothing but contraband opium and on being asked, the accused told that he had no valid licence to
keep that opium. On being weighed, its weight was found to be 6 k.g., out of
which, two samples of 30 grams each were taken for the purposes of
chemical analysis and sealed separately on the spot and marked as A/1 and
A/2 and the remaining opium was also sealed separately on the spot and
marked as A. The fard-
of search and seizure was prepared on the spot by Jaswant Singh (PW.1) and
the same is Ex.P/4. The fard of specimen impression of seal is Ex.P/5. The
accused was arrested through arrest memo Ex.P/6. Thereafter regular FIR
Ex.P/8 was chalked out. Jaswant Singh (PW.1) handed over the seized
articles and samples to Malkhana Incharge Bhanwarlal (PW.8), who
deposited the same in the Malkhana and made entries in the Malkhana
Register Ex.P/15A. Thereafter, one sample was handed over by Bhanwarlala
(PW.8) to Surendra Singh (PW.5) for the purpose of depositing it in the FSL,
Jaipur and Surendra Singh (PW.5)first took the sample to SP office,
Chittorgarh and after obtaining a forwarding letter Ex.P/12 dated 20/6/1995
from SP office, Chittorgarh, he deposited that sample in FSL, Jaipur
and obtained receipt Ex. P/13 dated 21/6/1995. The FSL report is Ex. P/16 in
which it was reported that the sample contained in the packet marked A/1
gave positive tests for the chief constituents of the coagulated juice of opium
poppy having 3.6 % (Three point six percent) morphine.
After investigation, charge-sheet was filed and as the accused
pleaded to be innocent and trial was held in support of the prosecution
version 14 witnesses were examined. The trial Court held that the accusation
was established and, as indicated above, convicted him.
In appeal the only stand of the respondent which weighed with
the High Court was that on the day when the samples were in the custody of one Jamnalal, the non-examination of aforesaid Jamnalal rendered the
prosecution version unacceptable. Accordingly, the conviction was set aside
and the respondent was directed to be acquitted.
In support of the appeal, learned counsel for the appellant –
State submitted that the non-examination of Jamnalal could not be fatal to the
credibility of the prosecution version. In fact the entire scenario starting from
the seizure of the samples till their receipt at the Forensic Science Laboratory
(in short FSL) and the report thereafter clearly proves that the samples were
not only sealed but were also kept in proper and safe custody. According to
him when the seal is intact, there is no question or possibility of any
tampering as was held by the High Court.
No one appeared for the respondent though notice has been
served.
The factual scenario goes to show that Jaswant Singh (PW.1),
the I.O., seized the articles on 15/6/1995. The search memo is Ex. P.4 and the
specimen impression of the seal Ex. P.5. PW.1 deposited the seized articles
and sample with Bhanwarlal (PW.8) who was the Malkhana In-Charge in the
Malkhana register in Ex. P.15A. PW.8 handed the material to Surendera Singh
(PW.5) for depositing the sample in FSL. PW.5 reached the Superintendent of
Police office and gave the samples to Jamnalal at 10.00 a.m. and received
back the samples from Jamnalal at 5.00 p.m. and also obtained forwarding
letter which is Ex. P.12 and is dated 20/6/95. PW.5 submitted the samples to
FSL and obtained acknowledgment receipt it is Ex. P.13. The role of Jamnalal
is very limited; that is receiving sample at 10.00 a.m. and handing samples
back at 5.00 p.m. It is not understandable as to how the non-examination of
Jamnalal in any way affected the veracity of the prosecution version. The
High Court came to an attempt and unsustainable conclusion that because Jamnalal was not examined ”possibility of the sample having been tampered
with could not be ruled out”. The conclusion is unsustainable in view of the
FSL report which clearly stated that the seals were intact and matched with
the specimen seals.
In Hardip Singh vs. State of Punjab (2008 (8) SCC 557) it was
held that when the seals are intact even in delay in sending the seals to the
Laboratory is not in fatal to the prosecution case.
In the instant case the position stands on a much better footing.
There was in fact no delay and in fact the samples which were kept in the SP office were received back on the very same day. There is no material to
support the conclusion of the High Court that there was possibility of
tampering with the samples. The observation as noted above clearly
overlooks the clear statement of the FSL report that the seals were intact.
Looked at from any angle, the judgment of the High Court is
unsustainable and set aside and that of the trial Court is restored. The
respondent shall surrender to custody to serve out the remainder of
sentence.
The appeal is allowed.
(ASOK KUMAR GANGULY) New Delhi,
April 28, 2009.