State vs Dhokla Ram And Ors
2022 Latest Caselaw 7403 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 456/1992

State

----Appellant Versus Dhokla Ram And Anr.

                                                                  ----Respondent


For Appellant(s)           :     Mr. S.K. Bhati PP
For Respondent(s)          :     Mr. Pritam Solanki



     HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

                                  Judgment

18/05/2022

1. This criminal appeal has been preferred by the appellant-

State against the judgment dated 29.08.1991 passed by the

learned Sessions Judge, Sirohi in Sessions Case No.4/88, whereby

the accused-respondents were acquitted of the offence under

Section 8/18 of the Narcotic Drugs and

Psychotropic Substances Act, 1985 (hereinafter referred to as

'NDPS Act').

2. Learned Public Prosecutor appearing on behalf of the

appellant-State, at the outset, submits that on account of demise

of accused-respondent Dhoklaram s/o Sangram, the present

appeal was dismissed as having abated qua him; and thus, the

present appeal now survives only qua accused-respondent-

Dhoklaram s/o Hema and accused-respondent-Lumbaram s/o

Phoolaji. The amended cause title filed is already on record.

3. Learned Public Prosecutor appearing on behalf of the

appellant-State submits that upon an information received from

(2 of 9) [CRLA-456/1992]

the informant (mukhbir) on 14.08.1987, blockade of the way of

Village Ummedpura was done on 15.08.1987, at that time,

Bhanaram, SHO of the concerned police station and his team were

present there. Learned Public Prosecutor further submits that

during such blockade, at about 02:00 a.m., three persons (present

accused-respondents) were seen coming, of the description, as

given by the informant, whereupon they were stopped by the

police team and their credentials were asked; upon being found

suspicion, they were searched, while following the due process of

law, whereupon the contraband opium was recovered from the

accused-respondents and the same was seized; the said opium

was kept by the accused-respondents) without any lawful license.

3.1 Learned Public Prosecutor also submits that the said opium

recovered from the possession of the accused-respondents was

weighing 550 grams (deceased accused-Dhoklaram s/o Sangram),

350 grams (accused-Dhoklaram s/o Hema) and 500 grams

(accused-Lumbaram). As per learned Public Prosecutor, after such

recovery and seizure, the contraband opium was sealed, as per

the due procedure, which followed the arrest of the accused-

respondents and registration of a case against them; whereafter,

the samples were sent for the FSL analysis and the investigation

commenced. Learned Public Prosecutor also submits that since the

preparation of the site map was not required, the same was not

prepared; however, the factum of search, recovery and seizure

was duly brought to the knowledge of the superior officers.

3.2 Learned Public Prosecutor further submits that after

investigation, a charge-sheet for the offence under Section 8/18 of

the NDPS Act was filed against the accused-respondents before

the learned trial court; upon such charge being denied by the

(3 of 9) [CRLA-456/1992]

accused-respondents, they were made to stand the trial, and the

trial accordingly commenced.

3.3 Learned Public Prosecutor also submits that the factum of

recovery of contraband from the possession of the accused-

respondents and its consequential seizure was clearly proved

before the learned trial court, followed by substantiation thereof

by the required number of witnesses to such recovery and

seizure; thus, as per learned Public Prosecutor, absence of only

one mautbir cannot be said to be detrimental, in any manner

whatsoever, to the case of the prosecution; this is more so when ,

there was no reason or ground put forth before the learned trial

court on behalf of the accused-respondents, so as to persuade the

learned trial court to disbelieve the testimony of the witnesses,

produced before it and examined during course of the trial.

3.4 Learned Public Prosecutor further submits that during and

after the search, recovery, seizure and sealing of the contraband

opium in question, the process of law was duly followed, and thus,

there was nothing on record before the learned trial court to show

that the accused-respondents were wrongly implicated in the

present case, more particularly, on count of their animosity with

any of the prosecution witnesses.

3.5 Learned Public Prosecutor also submits that the learned trial

court erred in disbelieving PW-1 Bhav Singh, PW-2 Bhanwarlal,

PW-3 Bheru Singh, PW-5 Prem Singh and PW-6 Bhanaram, only

on count of minor inconsistencies in their statements, despite the

fact that PW-1 Bhav Singh was an independent witness and he

was quite consistent in rendering his testimony; furthermore, the

non-consideration of the statements of PW-2, PW-3, PW-5 and

PW-6 was on count of their being the employees of the police

(4 of 9) [CRLA-456/1992]

department; thus, as per learned Public Prosecutor, on that count

alone, the impugned judgment deserves to be quashed and set

aside.

3.6 Learned Public Prosecutor further submits that the learned

trial court also erred in holding that in the present case, due

compliance of the provisions of Section 50 of the NDPS Act was

not disclosed, as since the accused-respondents did not seek their

production before the First Class Magistrate or Gazetted Officer for

the purpose of recovery, therefore, non-compliance of Section 50

of the NDPS Act cannot be made out.

3.7 Learned Public Prosecutor also submits that the learned trial

court further erred in holding that the provisions of Section 57 of

the NDPS Act were not complied with, despite the fact that due

compliance of the said provision was made, as the information

regarding registration of the case by the police against the

accused-respondents was immediately sent to the Magistrate

concerned.

3.8 Learned Public Prosecutor further submits that the learned

trial court also failed to take into consideration the fact that the

recovery in question was done by PW-6 Bhanaram, who, at the

relevant time, was the SHO of the concerned police station, and

not by PW-1; the said SHO was very much competent, as per law,

to effect such recovery.

3.9 Learned Public Prosecutor thus submits that from the

aforementioned factual and legal backdrop, it is clear that the

learned trial court has passed the impugned judgment of acquittal

in favour of the accused-respondents without taking into due

consideration the overall facts and circumstances of the case and

without duly appreciating the evidence placed on record before it;

(5 of 9) [CRLA-456/1992]

thus, the impugned judgment deserves to be quashed and set

aside.

4. On the other hand, learned counsel for the accused-

respondents, the recovery of the contraband in question was

made by the Head Constable, who was not at all competent to do

so; there are several inconsistencies in the testimonies of the

prosecution witnesses; the requisite site map was not prepared;

one mautbir, who was very much relevant to the present case,

was not produced by the prosecution before the learned trial

court. The said deficiencies and discrepancies, as per learned

counsel, strikes at the very substratum of the prosecution case.

4.1 Learned counsel further submits that the clear erroneous

averment has been made by the prosecution that the accused-

respondents were asked whether they want effecting of the

recovery in question before the competent Magistrate or any

Gazetted Officer; whereas, the record of the case clearly reveals

the facts to the contrary.

4.2 Learned counsel also submits that an avement is made by

the prosecution that after the recovery and other proceedings, the

information thereof was immediately furnished to the superior

officers, whereas the record reveals that no such information was

given immediately to the superior officers.

4.3 Thus, as per learned counsel, in the present case, a clear

violation of the provisions of Section 50 & 57 of the NDPS is

apparent on the face of the record. Learned counsel therefore,

submits that such non-compliance of the statutory provisions,

amongst others, are sufficiently detrimental to the case of the

prosecution.

                                            (6 of 9)                  [CRLA-456/1992]



4.4     In the aforementioned backdrop, learned counsel submits

that the learned trial court has not committed any error - either

on facts or in law - in passing the impugned judgment of acquittal

in favour of the respondents; it is amply clear from the impugned

judgment that the learned trial court, before passing such

judgment, has taken into due consideration the overall facts and

circumstances of the case and also duly appreciated the evidence

placed on record before it, more particularly, the inconsistencies in

the testimonies of the prosecution witnesses and the non-

compliance of the statutory provisions of law, which apparently

strikes at the very root of the prosecution case.

5. After hearing learned counsel for the parties as well as

perusing the record of the case, this Court finds that the learned

trial court in the impugned judgment of acquittal has made due

appreciation of the evidence placed on record before it; learned

trial court also carefully examined the testimonies of the

prosecution witnesses, so as to adjudge their reliability and non-

reliability, to draw a conclusion in regard to innocence or guilt of

the present accused-respondents; not only this, the learned trial

court before passing the impugned judgment of acquittal, has

given thoughtful consideration to each and every aspect material

to the case, coupled with issue-wise finding thereon.

6. The findings recorded by the learned court below is to the

effect that :

6.1 The testimony of the key prosecution witnesses, both

pertaining to search, recovery of the contraband opium and

sealing of the contraband, clearly reveals, beyond all doubts, that

the same were not done by the concerned SHO, but by the then

Head Constable, who was not at all competent, as per law, to do

(7 of 9) [CRLA-456/1992]

search and effect recovery of the contraband, since as per the law,

the same can only be done by the concerned SHO; this is more so

when, the factum of recovery being made by the Head Constable,

instead of the concerned SHO, was clearly substantiated by Bhav

Singh, who was said to be an independent witness and such

independent testimony cannot be disbelieved, unless any contrary

material is placed on record.

6.2 As regards the sealing of the contraband after recovery and

seizure by the Head Constable, it was recorded that since the

same was done by the Head Constable, the presence of the

concerned SHO was very much doubtful on the spot; this is more

so when, as per law, the specific seal of the SHO was required to

be put, after recovery and seizure of the contraband, whereas in

the present case, an ordinary seal, which could be in possession of

any police official, was put, on the contraband in question; the

same is clearly discernible from the testimonies of most of the

prosecution witnesses, and also from the apparent inconsistencies

therein.

6.3 It has also not come on record that upon being stopped by

the police team on the spot, the accused-respondents did not try

to run away, which does not seem to be probable; in all

probabilities, in the event of the accused, who were carrying the

contraband in their possession, would not try to escape,

consequent upon being stopped by the police. This aspect also

casts a serious doubt upon the correctness and reliability of the

prosecution case.

6.4 The absence of site map of the spot also makes the

prosecution story doubtful, since as per the settled principle of

law, non-preparation of such map would be highly prejudicial to

(8 of 9) [CRLA-456/1992]

and have adverse impact, so far as the rights and interests of the

accused are concerned.

6.5 The absence of the testimony of one witness Sardar Singh

before the learned trial court is also detrimental to the case of the

prosecution, since had he been produced and examined, the same

would have been able to give the case a turning point; but failure

to do so, on the part of the prosecution, cannot go in its favour,

rather the same tilts in favour of the accused-respondents.

6.6 Another deficiency in the present case is also writ large on

the face of the record, to the effect that the prosecution has also

failed to prove that before effecting the recovery in question, the

accused-respondents were asked as to whether they want

effecting of such recovery before the concerned Magistrate or any

Gazetted Officer; this is more so when, there is no mention of

such an adequate opportunity in the concerned fard, nor the

factum of giving of such an opportunity was substantiated by any

of the prosecution witnesses.

6.7 The prosecution has also failed to establish the factum of

immediate furnishing of information of recovery and seizure in

question by the police to the superior officers, which is a clear

mandate of the provisions of the NDPS Act.

6.8 From the aforementioned backdrop, the violation of the

statutory provisions of Sections 50, 55 and 57 of the NDPS Act is

clearly discernible on the face of the record.

7. Thus, in view of the cogent findings, as recorded by the

learned trial court in the impugned judgment of acquittal passed

in favour of the accused-respondents, on each and every aspect

relevant for the adjudication of the case before it, this Court finds

that the said well reasoned speaking judgments does not warrant

(9 of 9) [CRLA-456/1992]

any interference by this Court, more particularly, when the learned

Public Prosecutor could not point out any legal or factual infirmity

in the said judgment.

8. Consequently, the present appeal is dismissed. All pending

applications stand disposed of. Record of the learned court below

be sent back forthwith.

(DR.PUSHPENDRA SINGH BHATI), J.

19-SKant/-

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