Rajasthan High Court - Jodhpur

Babul Khan @ Aslam Khan vs State on 1 August, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 130/1990

Babul Khan @ Aslam Khan

----Appellant Versus State of Rajasthan

----Respondent

For Appellant(s) : Mr. Rajeev Bishnoi for Mr. Vineet Jain, Sr. Adv.

For Respondent(s) : Mr. N.K. Rai, Spl. P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 21/07/2022 Pronounced on 01/08/2022

1. This Criminal Appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:-

"It is, therefore, prayed that this appeal may kindly be accepted, the judgment of the learned Session Judge Pratapgarh dated 9.4.1990 be set aside and quashed and so also the conviction, and the accused appellant be acquitted of the charge levelled against him."

2. This Criminal Appeal has been preferred against the

judgment, dated 09.04.1990, passed by the Sessions Court,

Pratapgarh whereby the appellant were convicted for the

offence under Sections 8/18 of the N.D.P.S. Act, 1985 and were

sentenced to undergo 10 years R.I. along with a fine of Rs. 1

Lakh, in default of payment of which he was to undergo further

2 years R.I.

(2 of 8) [CRLA-130/1990]

3. Learned counsel for the appellant submits that it is the

version of the prosecution that an alleged recovery of 1.300 k.g.

morphine was made from the appellant on 12.04.1988 in the

morning hours of Rajpuriya Barrier on the Mandsore -

Pratapgarh Road from the dicky/toolbox of a motor cycle. And

that, it was alleged that the appellant was seen coming towards

nakabandi conducted by P.W. 7 Inspector, Narcotics-Neemach,

Shri Surendra Sharma while he was on patrolling duty and

apprehended the appellant while he was driving his motorcycle,

bearing vehicle no. RNJ-7723, towards Pratapgarh and made the

recovery of morphine of 1.3kg from a bag weighing 200 gms.

And that, the sample of 10 gms. was taken from the contraband

and the remaining 1.290 kg crude morphine was sealed.

Thereafter, the report, at Ex. P/4, was lodged with P.W.3 Basant

Kumar Mogra, the District Opium Officer, Pratapgarh.

4. Learned counsel for the appellant submitted that the

conviction is challenged on the basis that there is a complete

absence of linked evidence to show that the F.S.L. report, at Ex.

P/8, which pertains to the alleged contraband seized from the

appellant.

5. Learned counsel for the appellants further submitted that

although it was stated in the F.I.R. that the contraband of 1.290

kg was sealed, whether the sample of 10 grams was sealed was

not mentioned.

6. Learned counsel for the appellants also submitted that P.W.

7 Surendra Sharma averred that the appellant was produced

before the concerned Magistrate on 12.04.1988 and lodged him

(3 of 8) [CRLA-130/1990]

at Police Station, Pratapgarh and that the seized substance was

deposited ith the in-charge of the said police station, who in

turn made an entry into the Roznamcha. However, neither was

the entry signed by the witness nor was an receipt of the same

obtained. And that, the said officer in charge was not produced

as a witness before the learned Court below nor was the

roznamcha entry placed into evidence.

7. On the other hand, the learned Public Prosecutor opposes

the submissions made on behalf of the appellant, and submits

that the learned Court has rightly passed the impugned

judgment of conviction after looking into the overall facts and

circumstances of the present case and the evidences placed on

record before it.

8. Learned Public Prosecutor submits that the contentions

made on behalf of the appellant herein are without merit, and

do not adversely affect the impugned order of conviction. It is

submitted that with regard to the chain of custody of the

evidence i.e. the link of the evidence has been established and

dealt with by the learned Court below in the impugned order at

Paragraph 9, wherein the the testimony of P.W.7 Narcotics

Inspector Surendra Sharma was carefully examined, wherein

the due process of seizing, sealing and sending the sample of

the recovered contraband for F.S.L. was stated, and at

Paragraph 16, wherein the due process of intimating his

superior officer, in the present case being P.W. 10 Inspector

Narcotics, Pratapgarh, Shri Dilip Singh Jain, vide the report, at

Ex. P/4 was complied with, and the testimony of the said

(4 of 8) [CRLA-130/1990]

superior officer also reveals that the chain of custody of the

seized contraband morphine, was maintained throughout and

the seal was intact from the time of placing of seal until it was

finally examined by the concerned authorities for F.S.L. The

same being reflected from the documents placed on the record.

9. Learned Public Prosecutor further submits that Section 57

applies, as the information was passed to the concerned

superior officer over telephonic conversation, and subsequently

within the statutory time period, the requisite samples and

documents were forwarded to the concerned officer.

10. Learned Public Prosecutor also submits that Sections 50

and 55 of the N.D.P.S. Act 1985 do not apply in the present

case.

11. Heard learned counsel for both parties, and perused the

record of the case.

12. This Court observes that the submissions made on behalf

of the appellant have been rightly dealt with the learned Court

below.

13. This Court arrives at the following conclusion on the basis

of the following observations:-

13.1 The learned Court below has rightly, in the impugned

order, at paragraph no. 9, dealt with the testimony of P.W. 7

Surendra Sharma, which upon carefully examination revealed

that the accused was stopped by the concerned police authority

for a routine check, whereupon the said officer noticed that the

appellant was acting suspiciously and attempting to flee the

(5 of 8) [CRLA-130/1990]

scene, and therefore proceeded to conduct a search in the

presence of motbir witnesses who were pedestrians on the same

route. And that, the confiscated contraband, being fresh

morphine, was found wrapped in a white cloth in the

dickey/toolbox of the motorcycle that the appellant was driving

at the time.

13.2 And that, the appellant verbatim on the spot admitted that

the contraband was in fact his own, and that he was travelling

towards Gram Sakariya. And that, subseqeuntly upon being

weighed the, the total weight of the contraband alongwith the

bag was found to be 1.5 kgs.

13.3 This Court observes that it is a settled position of law that

the non-compliance of Section 57 of the Act of 1985 does not

vitiate the entire case of the prosecution, as held by the Hon'ble

Apex Court in case of Gurmail Chand Vs. State of Punjab:

AIR 2020 SC 2161 wherein the position laid down in Sajan

Abraham v. State of Kerala (2001) 6 SCC 692 was

reiterated upon, in the following manner:-

"The provision has been held to be directory and to be complied with but mere not sending the report within the said period cannot have such consequence as to vitiate the entire proceeding. A three Judge Bench of this Court in Sajan Abraham v. State of Kerala (2001) 6 SCC 692 has held that non-compliance of Section 57 would not vitiate the prosecution case. In paragraph 12 following was laid down:

The last submission for the Appellant is, there is non-compliance with Section 57 of the Act. He submits under it, an obligation is cast on the prosecution while making an arrest or seizure, the officer should make full report of all particulars of such arrest or seizure and send it to his immediate superior officer within 48 hours of such arrest of seizure. The submission is, this has not been done. Hence the entire case vitiates. It is true that the

(6 of 8) [CRLA-130/1990]

communication to the immediate superior has not been made in the form of a report, but we find, which is also recorded by the High Court, that PW5 has sent copies of FIR and other documents to his superior officer, which is not in dispute. Ext. P- 9 shows that the copies of the FIR along with other records regarding the arrest of the Appellant and seizure of the contraband articles were sent by PW5 to his superior officer immediately after registering the said case. So, all the necessary information to be submitted in a report was sent. This constitutes substantial compliance and mere absence of any such report cannot be said to have prejudiced the Accused. This Section is not mandatory in nature. When substantial compliance has been made, as in the present case, it would not vitiate the prosecution case. In the present case, we find PW5 has sent all the relevant material to his superior officer immediately. Thus we do not find any violation of Section 57 of the Act."

14. This Court also observes the judgment rendered by the

Hon'ble Apex Court in the case of Kallu Khan Vs. State of

Rajasthan 2021(4)Crimes565(SC) : AIR 2022 SC 50 wherein

the following observations with regard to the application of Section

50 N.D.P.S. Act 1985:-

"Simultaneously, the arguments advanced by the Appellant regarding non-compliance of Section 50 of NDPS Act is bereft of any merit because no recovery of contraband from the person of the Accused has been made to which compliance of the provision of Section 50 NDPS Act has to follow mandatorily. In the present case, in the search of motor cycle at public place, the seizure of contraband was made, as revealed. Therefore, compliance of Section 50 does not attract in the present case. It is settled in the case of Vijaysinh (supra) that in the case of personal search only, the provisions of Section 50 of the Act is required to be complied with but not in the case of vehicle as in the present case, following the judgments of Surinder Kumar (supra) and Baljinder Singh (supra). Considering the facts of this Court, the argument of non-compliance of Section 50 of NDPS Act advanced by the counsel is hereby repelled."

15. This Court is conscious of the judgment rendered by the

Hon'ble Apex Court in Hardip Singh Vs. State of Punjab

(7 of 8) [CRLA-130/1990]

(2008) 8 SCC 557 wherein with regard to the application of

Section 55 of the Act of 1985, the following observations were

made:-

"The contention of Mr. Singh that Section 55 of the Act, which is a mandatory provision, was violated is found to be without merit in the light of the decision of this Court in Karnail Singh v. State of Rajasthan [(2000) 7 SCC 632] relied by him in order to buttress his argument, wherein, a similar contention was raised that after the seizure the goods were sent to the Superintendent, Central Narcotics Bureau, Kota, who, as per law, was in charge of a police station but had not affixed his seal on his articles and the samples, and therefore the whole of the procedure followed became illegal, entitling the appellant to be acquitted. In light of the aforesaid submissions, the Supreme Court proceeded to hold that with the application of Section 51 read with Sections 52 and 53, the officer required to affix the seal etc., under Section 55, would be "the officer in charge of the nearest police station' as distinguishable from an officer in charge of a police station empowered under Section 53. It was also held that if the arrested person and the seized articles are forwarded under Section 52(3)

(b) to the officer in empowered under Section 53, the compliance with Section 55 cannot be insisted upon. The Supreme Court further held in the said case that keeping in view the multifarious activities and the duties cast upon the officer in charge of the police station under the Code of Procedure and he being apparently busy with the duties under the Code, the officers mentioned in Section 53 of the Act have been mandated to take action for disposal of the seized narcotic drugs and psychotropic substances by filing an application, which, when filed, has to be allwoed by the Magistrate as soon as may be.

The appellant has also failed to show any prejudice caused to him for not putting the seal in the sample by the officer-in-charge of the police station. P.W. 5 has categorically stated on reaching the Police Station, Ajnala, he handed over the case property with the seals intact to the officer-in-charge of the said police station, who was examined in the trial as PW 1.

(8 of 8) [CRLA-130/1990]

PW 1 in his deposition has also stated that Inspector Jarnail Singh produced before him the case property and sample on 20.08.1997 with seals intact. He has also stated that so long the said articles remained in his custody and possession, the same were not tampered with In the light of aforesaid nature of evidence on record, no prejudice is caused to the appellant on that count.

In the case of Ouseph v. State of Kerala (2004) 10 SCC 647 it was held by this Court that under the provisions of Section 55 of the Act, the requirement may not be mandatory. However in that case in view of the peculiar facts of the case and as the contraband articles were kept in totally unsealed condition for near about two months it was held that the same creates doubt."

16. This Court, in light of the above made observations, finds

that no cause for interference in the impugned order of conviction

is warranted.

17. Resultantly, the present appeals are without merit, and are

hereby dismissed. The appellant is on bail, in pursuance of the

order dated 13.07.1990 passed by this Hon'ble Court in S.B.

Criminal Misc. Bail Application No.199/1990. His bail bonds and

sureties are forfeited; he is directed to be taken into custody

forthwith and sent to the concerned Jail to undergo the remaining

period of his sentence. All pending applications, if any, are

disposed of. Record of the learned court below be sent back

forthwith.