Rajasthan High Court - Jodhpur

Jagpal Singh And Ors vs State Of Rajasthan on 27 July, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 121/1989

Jagpal Singh And Ors

----Appellant Versus State Of Rajasthan

----Respondent Connected With S.B. Criminal Appeal No. 172/1989 Sarwan Singh And Anr

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Doongar Singh Mr. Jaipal Singh (Amicus Curiae) For Respondent(s) : Mr. Gaurav Singh, P. P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 11/07/2022 Pronounced on 27/07/2022

1. These Criminal Appeals have been preferred under Section

374 Cr.P.C. claiming for the following reliefs:-

In S.B. Criminal Appeal No. 121/1989

"It is, therefore, respectfully prayed that this appeal may kindly be allowed and the accused appellant may be acquitted of all the charges levelled against them."

In S.B. Criminal Appeal No. 172/1989

"It is, therefore, respectfully prayed that this appeal may kindly be accepted and the order of the seizure and confiscation of the

(2 of 8) [CRLA-121/1989]

Jeep to the State may be set aside and it may be ordered to be given back to the registered owner of the Jeep."

2. The above-numbered criminal appeal No.121/1989 has been

preferred under Section 374(2) Cr.P.C. against the judgment,

dated 31.08.1989, passed by the Addl. Sessions Judge, Bhilwara

in Sessions Case No. 90/1987 whereby the appellants- Jagpal

Singh @ Ranka, Bhepa Ram and Satya Narayan were convicted

under Section 8/18 N.D.P.S. Act, 1985 and Section 3/25 Arms Act,

1959; for the offence under Section 8/18 of the NDPS Act, each

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

1,00,000/- and in default of payment of the same, they were to

undergo further 3 years R.I. and; for the offence under Section

3/25 of the Arms Act, each were sentenced to undergo 3 years

R.I. along with a fine of Rs. 100/-, in default of payment of which

they were to undergo further imprisonment of 1 month.

2.1 The above-numbered criminal appeal No.172/1989 under

Section 454 Cr.P.C. has been preferred against that part of the

aforementioned impugned judgment, whereby the articles in

question were ordered to be seized.

3. The controversy in the present matters is common, and the

brief facts of the same as placed before this Court by the learned

counsel for the appellants are that on 14.07.1987, the

investigating officer Shivlal Joshi, P.W. 12 apprehended the

accused-appellants (in criminal appeal No.121/1989), upon

receiving information on the telephone from one D.Bhattacharya,

the then A.S.I. Narcotics Department, Neemuch, that a vehicle

travelling from Neemuch to Nimbaheda, at about 01:05 a.m. in

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the night in a green coloured Jeep with about 3/4 suspicious

persons. And that, upon receipt of such information, a recovery of

10 kilograms opium and firearms was made by the police party.

And that, subsequently upon completion of investigation against

the accused-appellants (in criminal appeal No.121/1989), charges

were framed against them for the offences under Sections 8/18

N.D.P.S. Act, 1985 and Section 3/25 Arms Act, 1959, and they

were convicted and sentenced, alongwith the order of seizure of

the articles in question, as above.

4. Learned counsel for the appellants submitted that the

learned Court below has erred in passing the impugned judgment

of conviction against the appellants (in criminal appeal

No.121/1989), as they were falsely implicated under the charges

for the offences against which they have been convicted, being

Sections 8/18 N.D.P.S. Act, 1985 and Sections 3/25 Arms Act,

1959.

5. Learned counsel for the appellants further submitted that the

learned Court below has incorrectly fastened the conviction, as

aforementioned, upon the accused-appellants merely on the basis

of the police witnesses, and that, recovery witnesses P.W.2

Shambhu Lal, P.W. 4 Ram Chander and P.W.5 Jagdish have turned

hostile and not supported the version of the prosecution.

6. Learned counsel for the appellants also submitted that the

learned Court below has not taken into consideration the fact that

the statutory compliance, as mandated under Section 57 N.D.P.S.

Act, 1985 has not been made and therefore the impugned order

deserves to be quashed and set aside.

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7. Learned counsel for the appellants further submitted that the

samples were unsealed and that the seals were either broken or

the recoveries so made, alleged to have been made from the

accused-appellants, are false and fabricated.

8. Learned counsel for the appellants further submitted that the

recovery witness P.W. 4 Ramchandra, who subsequently turned

hostile, stated that the weight of the contraband was taken using

stones, and is therefore not reliable in determining the actual

weight of the contraband so seized.

9. Learned counsel for the appellants thus, submitted that in

view of the aforementioned backdrop -factual and legal- the

impugned judgment of conviction and the order of sentence,

alongwith consequential order of seizure of articles deserves to be

quashed and set aside.

10. Learned counsel for the appellants placed reliance on the

following judgments;

Boota Singh & Ors. Vs. State of Haryana 2021 (2)

Crimes 164 (SC)

"The evidence in the present case clearly shows that the vehicle was not a public conveyance but was a vehicle belonging to Accused Gurdeep Singh. The Registration Certificate of the vehicle, which has been placed on record also does not indicate it to be a Public Transport Vehicle. The explanation to Section 43 shows that a private vehicle would not come within the expression "public place" as explained in Section 43 of the NDPS Act. On the strength of the decision of this Court in Jagraj Singh alias Hansa MANU/SC/0704/2016 : (2016) 11 SCC 687, the relevant provision would not be Section 43 of the NDPS Act but the case would come Under Section 42 of the NDPS Act."

(5 of 8) [CRLA-121/1989]

State Vs. Unkar Singh S.B. Criminal Leave to Appeal No. 27/2009 (Rajasthan High Court)

"Needless to say, the prosecution has to prove its case beyond a reasonable doubt. In the present case, it was the duty of the prosecution to prove the fact that 375 Kgs., of doda post powder was, indeed, recovered from the possession of Onkar Singh, that the samples and the remaining drugs were duly sealed and preserved. It was equally the duty of the prosecution to produce the remaining part of the contraband drugs before the learned trial Court."

11. On the other hand, learned Public Prosecutor opposed the

submissions made on behalf of the appellants and submitted that

the learned Court below has rightly passed the impugned order

looking into the overall facts and circumstances of the case, and

the evidences placed on record before it.

12. Learned Public Prosecutor submitted that the compliance of

Section 57 is not mandatory, and that non compliance of the same

does not vitiate the case of the prosecution.

13. Learned Public Prosecutor further submitted that the seal

was intact and the same is evident from a perusal of the record,

and therefore the conviction of the appellants, alongwith the order

of seizure, is sustainable in the eye of the law.

14. Heard learned counsel for the parties and, perused the

record of the case and the judgments cited at the Bar.

15. This Court observes that, as is evident from the F.S.L. report

at Ex. P/25, that the seals affixed upon the contraband so seized

by the concerned police authorities, were intact when sent for the

purpose of F.S.L.

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16. This Court further observes that looking into the overall facts

and circumstances, Section 42 and 50 are not attracted in the

present case.

16.1 The Hon'ble Apex Court in State of Haryana Vs. Jarnail

Singh and Ors. (2004) 5 SCC 188 regarding the application of

Section 42 and 50 made the following observations:-

"Having heard learned counsel for the parties we are of the view that the judgment and order of the High Court is clearly erroneous and must be set aside. A Constitution Bench of this Court in State of Punjab vs. Baldev Singh M 1999CriLJ3672 exhaustively considered the various provisions of the NDPS Act. As regards application of Section 50 of the NDPS Act, the Court came to the following conclusion :"On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted."

We, therefore, hold that in the facts of this case Section 50 of the NDPS Act was not applicable since the contraband was recovered on search of a vehicle and there was no personal search involved. The requirement of the proviso to Section 42 was also not required to be complied with since the recovery was made at a public place and was, therefore, governed by Section 43 of the Act which did not lay down any such requirement. Additionally, since the Superintendent of Police was a member of the search party and was exercising his authority under Section 41 of the NDPS Act, the proviso to Section 42 were not attracted."

17. This Court further 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

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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 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."

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

that no cause for interference in the impugned judgment of

conviction, alongwith the direction of seizure, is warranted.

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

hereby dismissed. The appellants, in S.B. Criminal Appeal No.

121/1989, are on bail, in pursuance of the order dated 18.08.1989

passed by this Hon'ble Court in S.B. Criminal Misc. Bail Application

No.301/1989. Their bail bonds and sureties are forfeited; they are

directed to be taken into custody forthwith and sent to the

concerned Jail to undergo the remaining period of their sentence.

All pending applications, if any, are disposed of. Record of the