IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR.
S.B. CR.APPEAL NO.1772/03
SHOBHA RAM —ACCUSED APPELLANT
THE STATE OF RAJ.& ANT.— RESPONDENTS
DATE OF JUDGMENT:- 16.1.2012
HON’BLE MS. JUSTICE BELA M. TRIVEDI
Mr. R.S. Tanwar, for the appellant,
Mr. Laxman Madnani, Spl. P.P.(C.B.I.))
REPORTABLE BY THE COURT
The accused appellant, by way of present appeal, filed under Section 374 Cr. P.C. has challenged the legality and validity of the judgment of conviction and the order of sentence dated 12th of November, 2003, passed by the Special Judge, NDPS Act Cases, Chhabra, district Baran,(hereinafter referred to as the ‘trial court’), in Sessions Case No. 7/2003, whereby the trial court has convicted the appellant-accused for the offence under Sec. 17 read with Sec.8 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as the said ‘Act’), and sentenced him to undergo rigorous imprisonment for a period of ten years and to pay fine of Rs. 1,00,000/-, in default thereof to undergo further imprisonment for a period of six months. (2) As per the case of the prosecution before the trial court, a team was constituted at the office of Dy. Narcotic Bureau, Kota, on 13.7.2002 for conducting search of suspected persons and vehicles. Accordingly, the members of the said team headed by the Superintendent Mr. M.C. Vijay had left Kota for Eklera. On 14.7.2002, at about 8.30 a.m. the said team members had reached to Chhipa Barod Road and were carrying out the checking of the vehicles. At that time, one jeep bearing the Registration No. RJ-28-P-0371 came from the Chhipa Barod side, driven by a driver and carrying one passenger. The said jeep was intercepted by the Inspector Shri Niranjan Guru. One another motor bike coming behind the said jeep was also stopped. The two persons riding on the said motorbike were requested to act as independent witnesses as the said jeep was to be searched. It was further case of the prosecution that on being asked, the driver of the jeep disclosed his name to be Shobha Ram s/o Prabhu Lal and the passenger disclosed his name to be Mohd. Ibrahim Mansoori. After giving the said two persons the notices under Section 50 of the said Act,the Inspector Sh. Niranjan Guru, carried out their personal search, however, no incriminating article was found from them. Thereafter, the checking of the said jeep was carried out and one secret chamber, on the back side of the right seat of the jeep was found. The said secret chamber was got opened through the said driver Shobha Ram and ten packets kept in a bag were found lying therein. After taking out the said ten packets, the weight was carried out and the total weight of the said ten packets was found to be 5.210 Kg. The substance contained in the said packets was suspected to be Heroin. Thereafter the samples, each weighing 5 grams from each of the said ten packets, were taken separately and then sealed by giving marks and were accordingly seized. As per the further case of the prosecution, after the drawing up of necessary Panchnama, map and preparing other documents on the spot, the said two persons Shobha Ram and Mohd. Ibrahim were arrested and an F.I.R. bearing Case No. 6/2002, was registered against them at the office of Narcotic Bureau, Kota. The report about the arrest of the accused and the seizure of the articles was sent to the Special Judge, N.D.P.S. Act, Chhabra district Baran. Thereafter the Inspector Sudhir Yadav was appointed as Investigating Officer. The said Mr. Sudhir Yadav carried out the investigation partly, and on he having proceeded on leave, the Inspector Shri S.C.Sarkar, was appointed as the Investigating Officer for completing the investigation.
(3). It further appears that during the course of investigation, the sample articles were sent to the F.S.L. and as per the report of the Chemical Examiner, all the ten samples by qualitative and quantitative analysis were found to be ‘Morphine’ within the meaning of the said Act. It further transpires that after the completion of the investigation, the Investigating Officer had submitted the charge sheet against said Shobha Ram, who was the driver of the jeep in question and against his father Prabhu Lal, who was the owner of the said jeep, however,further submitted that there was no offence found to have been committed by the accused Mohd. Ibrahim Mansoori. Hence the said accused Mohd. Ibrahim Mansoori was discharged by the trial court vide order dated 6.3.2003. The charge was thereafter framed against the accused Shobha Ram for the offence under Section 21 read with Section 8, and against the accused Prabhu Lal for the offence under Section 25 read with Section 8 and under Section 27 read with Section 8 of the said Act. Both the accused pleaded not guilty and claimed to be tried. Therefore the trial was conducted against them. (4). The prosecution, in order to prove the charges levelled against the accused had examined as many as ten witnesses and adduced number of documentary evidence. The statements of both the accused were recorded under Section 313 Cr.P.C. wherein they denied the allegations levelled against them and further stated that they were falsely implicated in the case. The trial court after appreciating the evidence on record, convicted the accused-appellant Shobha Ram for the offence under Section 17 read with Section 8 of the said Act and sentenced him as stated here-in- above, however, acquitted the accused Prabhu Lal from the charges levelled against him by the impugned judgment and order. Being aggrieved by the same, the present appeal has been filed by the appellant accused Shobha Ram. (5). Before adverting to the submissions made by the learned counsels for the parties, it is required to be noted that as transpiring from the order sheets, the appeal was listed for final hearing time and again, and was required to be adjourned most of the time as none had remained present for the appellant. The Court, therefore, vide order dated 5.12.2011, had appointed one advocate Mr. Kamlendra Sihag as an Amicus Curiae for the accused. However, thereafter, the learned counsel Mr. R.S. Tanwar, had filed his appearance for the accused-appellant. When the matter was listed on 3.1.2012, Mr. R.S.Tanwar for the appellant made his submissions before this Court, however, sought some time for making further submissions. The matter therefore, was kept on the next day i.e. on 4.1.2012. Mr. Tanwar, however did not turn up on that date and the matter was adjourned to 5.1.2012. On 5.1.2012 also Mr. Tanwar did not turn up. The Court, therefore, heard the submissions of the learned Special Public Prosecutor Mr.Laxman Madnani for the respondents and kept the matter on 6.1.2012, giving last opportunity to Mr. Tanwar for making his further submissions. On 6.1.2012 also Mr. Tanwar did not appear in the Court and, therefore, the Court presumed that he had nothing further to submit. The Court finally heard learned Special Public Prosecutor Mr. Madnani on 6.1.2012. (6). It was sought to be submitted by learned counsel Mr. Tanwar for the appellant that the story put forth by the prosecution did not inspire confidence as both the independent witnesses P.W. 9 and P.W. 10 did not support the case of prosecution and were declared hostile. Taking the Court to the evidence adduced by the prosecution, Mr. Tanwar submitted that P.W. 7 Satya Narayan, who had allegedly made the secret chamber in the jeep also did not identify the accused during the course of his evidence and thus did not support the case of the prosecution that the accused had got the secret chamber made in the jeep. According to Mr. Tanwar, there were number of discrepancies appearing in the oral evidence of witnesses in the documentary evidence allegedly prepared at the place of incident. He further submitted that though as per the version of the witnesses, the samples, each weighing 50 grams were taken from the ten packets allegedly found from the secret chamber of the jeep, the weight of some of the samples was less than 5 grams as per the F.S.L. Report Ex.P.42, and, therefore, it was required to be presumed that all the samples were tampered with during the course of investigation. Pressing into service the various provisions of the said Act, Mr. Tanwar submitted that though there are provisions in the Act for raising presumption against the accused, the same can not be raised in the instant case, as the prosecution had not proved the possession of the contraband substance with the accused beyond reasonable doubt. (7). Per contra, learned special Public Prosecutor Mr. Madnani supporting the judgment and order passed by the trial court, submitted that the accused was caught red-handed having possessed the contraband substance in the jeep driven by him, which was intercepted by the checking squad specially constituted by the office of Narcotic Bureau, Kota. According to Mr. Madnani, the said team consisting of the Inspectors and Superintendents of the Bureau, had after following the due procedure made search of the accused and the jeep and also seized the ten packets found from the secret chamber of the said jeep driven by the accused. Mr. Madnani also referred to the oral evidence led by the prosecution, and submitted that the samples taken from the said ten packets were deposited in the sealed condition in the Malkhana and thereafter at the F.S.L. On the proper analysis having been made by the Chemical analyzer, the said samples were found to be ‘Morphine’ within the meaning of the N.D.P.S. Act as per the report Ex.P. 42. Mr. Madnani relying upon the judgments of Hon’ble Supreme Court in the case of Dharam Pal Singh vs. State of Punjab (2010)9 Supreme Court Cases 608, in the case of Dehal Singh Vs. State of H.P. (2010) 9 S.C.C. 85, in the case of State of Punjab Vs. Lakhwinder Singh (2010)4, SCC 402, submitted that when the possession of contraband substance with the accused is established by the prosecution, the presumptions, that the accused had culpable mental state and that he had committed the offence charged against him, were required to be drawn as per S. 35 and Section 54 of the said Act. Mr. Madnani further submitted that merely because the Panch Witnesses had turned hostile, that itself would not make the case of prosecution weak,more particularly when official witnesses have duly proved the charges levelled against the accused. He has relied upon the decision of Apex Court in the case of State of Haryana Vs. Mai Ram (2008)8 Supreme Court Cases 292 and the decision of this Court in the case of Sadhu Ram Vs. State of Rajasthan 2006 Cr.L.R.(Raj.), 207. Mr. Madnani also relying upon the said decisions further submitted that minor variation in the weight of sample mentioned in the ‘Panchnama’ and in the F.S.L. report would not be fatal to the case of prosecution. Lastly, he submitted that considering the nature and gravity of offence, no lenient view be taken in the matter. (8). In the instant case, having regard to the record and proceedings of the case, it appears that the prosecution in support of its case had examined as many as ten witnesses, out of whom, the P.W.1 was Mahendra Singh, who happened to be the Inspector at the Office of Dy. Narcotic Bureau, Kota, at the relevant time. He had stated about the constitution of the team headed by Superintendent Shri M.C. Vijay at the said Bureau, on 13.7.2002 and about the random checking being made by the said team, of the persons and the vehicles on the Chipa Barod Road on 14.7.2002. He had, in detail stated in his evidence as to how the jeep driven by accused Shobha Ram was intercepted and how the search of the accused and the jeep was made after following the procedure, and how the ten packets containing the contraband substance found from the secret chamber of the jeep and how the same were seized and sealed. The prosecution had also examined P.W. 2 Ishwar Sindhi, who happened to be the Constable at the said Narcotic Bureau and he had stated in his evidence that he was given ten packets in sealed condition for being deposited at the Govt. Opium and Works, Neemuch, in respect of the case filed against the accused Shobha Ram and Ibrahim. According to him he had deposited the said ten packets at the said Works at Neemuch, and obtained the receipt Ex.P. 10. P.W. 3 Sudhir Yadav, who happened to be the Inspector at the said Narcotic Bureau, at the relevant time, had stated in his evidence inter alia that on 14.7.2002, he was handed over with the investigation of the case No. 6/2002 in which the substance ‘Heroin’ weighing 5.210 Kg. was seized. He had narrated about the investigation carried out by him and further stated that he having proceeded on long leave, the further investigation was handed over to the Investigating officer Shri S.C. Sarkar. P.W. 4 Niranjan Guru, who happened to be the Inspector of the said Bureau, was also examined by the prosecution. He had also stated in his statement as to how he had intercepted the jeep and made search and seizure under the instructions of the Superintendent Shri M.C. Vijay and in presence of the other team members and the independent witnesses. P.W.5 Shri M.C. Vijay, Superintendent of the said Bureau had also in his evidence reiterated the proceedings of search, seizure and arrest of the accused in respect of the alleged incident. P.W. 6 Chotu Lal Verma was the Malkhana Incharge at the said Bureau and he had stated inter alia that the Inspector Shri Sudhir Yadav had deposited in all 31 packets in the Malkhana, out of which 20 sealed packets were sample packets and the ten sealed packets were of the contraband substance, and one Packet was of the article purse. According to him, he had made the relevant entries in the Malkhana Register at Ex.P. 27 and on 16.7.2002, he had sent ten sample packets in sealed condition to the Govt. Opium and Alkloid Works, Neemuch, through the constable Shri Ishwar Sindhi. (9). P.W. 7 Satya Narain was examined by the prosecution, who had allegedly made the secret chamber in the jeep in question at the instance of the accused. However,the said witness Shri Satya Narayan while admitting that he had made the said secret chamber in the said jeep, denied to identify the accused sitting in the court by stating that the said chamber was not made at the instance of said accused. P.W. 8 Shri S.C. Sarkar, who had carried out the further investigation had stated about the statements of witnesses having been recorded by him. The two Panch witnesses P.W. 9 Satya Narain and P.W. 10 Jagdish, examined by the prosecution had not supported the case of prosecution and were declared hostile, on their stating inter alia that no such search or seizure was carried out in their presence and that their signatures were obtained by the police on blank papers. (10). As stated earlier, the further statement of the appellant accused was recorded u/S. 313 of Cr.P.C., giving him an opportunity to explain about the incriminating evidence having come on record, however, except denying the allegations, he had not made any further statement. During the cross examination of the concerned witnesses also, appellant accused had not raised any substantive defence.
(11). Now, if the above referred oral evidence is appreciated in the light of the documentary evidence adduced by the prosecution, it clearly transpires that the prosecution had duly proved that on 14.7.2002 at about 8.30 a.m. the specially constituted checking squad headed by the Superintendent Shri M.C. Vijay had intercepted the jeep driven by the appellant accused Shobha Ram, and who was also accompanied by the passenger Mohd. Ibrahim Mansoori. It was also established that there was a secret chamber made on the back side of the right seat of the said jeep from which ten packets of the contraband substance were found. From the ‘Panchnama’ Ex. 3 , and ‘Panchnama’ Ex.9, drawn on the spot in presence of the accused and the Panch Witnesses,it emerges that the documents, pertaining to the said jeep including the license book in the name of the appellant Shobha Ram, were found. It is true that the two independent witnesses P.W.9 & P.W. 10 had not supported the case of prosecution as regards the search and seizure allegedly carried out in their presence, however, they have admitted their respective signatures in all the documents prepared on the spot. (12). It is the settled legal position that the evidence of hostile witnesses could not be discarded in toto, and the same could be used to corroborate the other evidence led by the prosecution. In the instant case, all the official witnesses who were the members of the checking squad constituted at the office of Dy. Narcotic Bureau, Kota have stated in detail as regards the interception of the jeep in question, search of the accused as well as of the vehicle, seizure of the contraband substance as also the arrest of the accused after following the due procedure and formalities under the Act. As against that there is no material on record produced by the accused to discredit the evidence of the said official witnesses. As observed by the Apex Court decision in the case of State of Haryana Vs. Mai Ram (supra) in absence of any material to discredit the evidence of official witnesses and in absence of any infirmity found in the statements of the official witnesses, the Panch Witnesses turning hostile would not be fatal to the case of prosecution. It is also pertinent to note that though the P.W. 7 Satyanarayan did not identify the accused sitting in the Court during the course of his deposition, he had admitted to have made the secret chamber in the jeep in question. Since the jeep was driven by the appellant accused and the ten packets of contraband substance were found from the said secret chamber made in the said jeep, there is no hesitation in holding that the appellant accused was found to be in conscious possession of the said contraband substance which as per the F.S.L. Report was ‘Morphine’ within the meaning of the said Act. (13). As rightly submitted by learned Special Public Prosecutor, once the possession is established, the Court could presume that the accused had culpable mental state and had committed the offence charged against him in view of Section 35 read with Section 54 of the said Act. At this juncture, a beneficial reference of the observations made by the Apex court in this regard in the case of Dharam Pal Singh (supra) are required to be reproduced.
13.It needs no emphasis that the expression ‘possession’ is not capable of precise and completely logical definition of universal application in the context of all the statutes. ‘Possession’ is a polymorphous word and cannot be uniformly applied, it assumes different colour in different context. In the context of Section 18 of the Act once possession is established the accused, who claims that it was not a conscious possession has to establish it because it is within his special knowledge.
14.Section 54 of the Act raises presumption from possession of illicit articles. It reads as follows :
“54. Presumption from possession of illicit articles. – In trials under this Act, it may be presumed, unless and until the contrary is proved, that the accused has committed an offence under this Act in respect of –
(a) any narcotic drug or psychotropic substance or controlled substance;
(b) any opium poppy, cannabis plant or coca plant growing on any land which he has cultivated;
(c) any apparatus specially designed or any group of utensils specially adopted for the manufacture of any narcotic drug or psychotropic substance or controlled substance; or
(d) any materials which have undergone any process towards the manufacture of a narcotic drug or psychotropic substance or controlled substance, or any residue left of the materials from which any narcotic drug or psychotropic substance or controlled substance has been manufactured, for the possession of which he fails to account satisfactorily.”
15.From a plain reading of the aforesaid it is evident that it creates a legal fiction and presumes the person in possession of illicit articles to have committed the offence in case he fails to account for the possession satisfactorily. Possession is a mental state and Section 35 of the Act gives statutory recognition to culpable mental state. It includes knowledge of fact. The possession, therefore, has to be understood in the context thereof and when tested on this anvil, we find that the appellants have not been able to satisfactorily account for the possession of opium.
(14). The said legal position has also been reiterated by the Apex Court in the case of Dehal Singh(supra) following the ratio of the decision rendered in case of Madan Lal Vs. State of H.P., 2003 S.C.C.(7), 465.
(15). In the instant case, the prosecution having proved that the accused was found to be having conscious possession of contraband substance, the burden was shifted on the appellant-accused to prove that the possession was not conscious in the logical back ground of Section 35 and 54 of the Act. The appellant neither in the cross-examination of the witnesses nor in the opportunity given to him while recording the statement under Section 313 of Cr.P.C., had tried to rebutt the said presumption or to explain much less satisfactorily as to how the said ten packets, weighing 5.210 grams of contraband substance, were lying in the secret chamber of the jeep in question driven by him. The trial court therefore, has rightly come to the conclusion that the contraband substance was found from the accused as per the case of the prosecution and this Court does not find any infirmity or illegality in the said finding arrived at by the trial court. (16). So far as the mandatory requirement as contemplated under Section 50 of the Act is concerned, it may be noted that the contraband substance was found from the secret chamber made in the jeep in question driven by the accused appellant and, therefore, as such procedure under Section 50 of the Act, was not required to be followed. Nonetheless, since the personal search of the appellant-accused and the passenger Mohd. Ibrahim was also carried out, the Inspector Niranjan Guru had given them the notice as required under Section 50 of the said Act, if they desired to get themselves searched before the Gazetted Officer or the Magistrate. The said notices were produced on record as Ex.P. 1 and Ex.P. 2 before the trial court. The said fact also finds place in the Panchnama Ex.3 and also in the oral evidence of the official witnesses examined before the trial court. The said Inspector Shri Niranjan Guru had also submitted the report of the arrest of the accused and the seizure of the contraband substance to his superior officer i.e. Superintendent (Preventive) Office of the Dy.Narcotic Bureau, Kota, as per Ex.P. 11, in compliance of Section 57 of the said Act, and the case having been registered as No. 6/2002, the investigation was handed over to the Inspector Shri Sudhir Yadav, by the Superintendent, Narcotic Bureau, Kota, on the same day. The copy of the said F.I.R. was also forwarded without any delay to the Special Judge, N.D.P.S. Act Cases, Chabbra, as per the endorsement made by the Court on the back side of the document Ex.P.11. Thus the prosecution had duly proved that the said mandatory provisions of the Act were duly complied with by the trapping party and that there was no violation thereof. (17). As regards the issue of forwarding the samples, taken from the said ten packets found from the secret chamber of the jeep to the FSL is concerned, the concerned witnesses have stated in their respective evidence that the two sets of samples i.e. 20 samples, each sample weighing 5 grams were taken from each of the ten packets, and then said 20 sample packets, and the 10 packets containing remaining substance were duly sealed on the spot. The said version of the witnesses also finds support from the Panchnama Ex.3 and the sample of seal Ex.P.4. The jeep in question was also seized as per the Panchnama Ex.8.The P.W.3 Sudhir Yadav, who was appointed as the I.O. had categorically stated in his evidence that he had received 20 sample packets in sealed condition along with other sealed packets and had deposited the same in the Malkhana, and that at the relevant time Shri C.L.Verma was the Malkhana Incharge. P.W. 2 Ishwar Nirmal Das, the constable had stated in his evidence that the ten packets of samples in sealed condition were received by him from the Malkhana Incharge Shri C.L. Verma and he had deposited the same in sealed condition before the Govt. Opium and Alkaloid Works, Neemuch (M.P.) as per receipt Ex.P. 10. In the said receipt, it has been stated that the ten packets in sealed condition were received in respect of the case of the accused Shobha Ram and Mohd. Ibrahim Mansoori. Now, on the Chemical examination carried out at the said Govt. Works, the Assistant Chemical Examiner, had opined that each of the ten samples was found by qualitative and quantitative analysis to be ‘Morphine’ within the meaning of the N.D.P.S. Act 1985, (Ex.P. 42). From the said evidence it clearly transpires that the samples taken and sealed at the scene of offence had reached in sealed condition to the said Govt. Opium Alkaloid Works , Neemuch(M.P.) and that the substance contained in the said samples was ‘Morphine’ as per the report Ex.P. 42. (18). The main contention raised by the learned counsel for the appellant was with regard to the variation in the weight of samples mentioned in the said report Ex.P. 42, in as much as in some of the sample packets, the weight of the substance was found little less than five grams i.e. about 4.71 grams, 4.85 grams, 4.79 grams etc. There is no substance in the said contention. It is needless to say that when the sample packets were found to be in sealed condition, negligible difference in the weight of the sample packets mentioned in the Panchnama and that of in the report would not be fatal to the case of the prosecution, more particularly when there is no other infirmity found in the evidence of the prosecution. In the case of Dehal Singh(supra), it has been observed interalia that small difference in the weight of the substance taken for sample mentioned in the Panchnama and the weight found at the F.S.L., looses its significance in view of the fact that the weighing scales used at difference places would be different. This Court in the case of Sadhu Ram(supra), had also upheld the conviction holding that negligible difference in the weight of samples would not be fatal to the case of prosecution. (19). As per the said report Ex.P. 42, percentage of ‘Morphine’ found in each sample was more than thirty eight percentage. Therefore, as rightly held by the trial court, the suspected substance found in ten packets from the possession of the appellant-accused was the ‘prepared opium’ as per the definition contained in the Act.
(20). In that view of the matter, the Court does not find any illegality or infirmity, much less perversity in the judgment of conviction and order of sentence passed by the trial court, which would call for interference of this Court. The appeal being devoid of merits deserves to be dismissed and is accordingly dismissed.
(Bela M. Trivedi)J.