Rajasthan High Court - Jodhpur
Kishna Ram Gujar vs State on 1 July, 2025
Author: Farjand Ali
Bench: Farjand Ali
[2025:RJ-JD:26971]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal No. 247/1995
Kishnaram Gurjar S/o Sawai, by caste Gujar, R/o Village Nagelav
P.S. Pisangan, Distt. Ajmer.
(At Present lodged at Central Jail, Udaipur)
----Appellant
Versus
State of Rajasthan.
----Respondent
For Appellant(s) : Mr. Suresh Kumbhat
For Respondent(s) : Mr. Sharwan Singh Rathore, Dy.G.A.
HON'BLE MR. JUSTICE FARJAND ALI
Order
ORDER RESERVED ON : 09.05.2025
ORDER PRONOUNCED ON : 01.07.2025
BY THE COURT:-
1. By way of filing the instant appeal, challenge has been made
to the judgment dated 16.05.1995 passed by the learned Special
Judge, NDPS Act Cases, Bhilwara in Sessions Case No.47/1994
whereby the appellant was convicted for committing an offence
under Section 8/18 of NDPS Act and he was sentenced to suffer
ten years' rigorous imprisonment alongwith a fine of Rs.
1,00,000/- and six months' further sentence if default in payment
of fine is committed.
2. Briefly stated the facts of the case are that upon receipt of
information on 04.06.1993 regarding illicit transportation of
contraband by an unknown person in a Roadways bus, the Police
Officer went to the spot and stopped the bus. Upon checking as
per the allegation, the appellant was having bag in his hand
[2025:RJ-JD:26971] (2 of 5) [CRLA-247/1995]
was apprehended for having in possession 2 kilo 300 gram opium.
It is claimed that two samples were taken from the content filled
in the bag and the rest of the article alongwith the samples were
sealed and seized. After usual investigation, the appellant was
charge-sheeted and the trial was commenced. Twelve witnesses
were examined and reliance was placed on 12 documents to
substantiate the charge. The accused was examined under Section
313 of Cr.P.C. and he claimed innocence. After hearing the learned
counsel for the parties, the learned trial Court convicted him as
mentioned above.
3. I have heard the learned counsel for the appellant, the
learned Public Prosecutor and also gone through the record of the
case. P.W. - 8 (Mool Singh) received the information as he claimed
and whereupon forwarded the information to Azad Sharma, Police
Officer to effect seizure and further proceeding. Neither the
information was reduced into writing nor the same was forwarded
to Superior Police Officers, nor any attempt was made to obtain a
warrant from the Superintendent of Police or from a Court. Exact
compliance of Section 42 of NDPS Act has not been made. The
witness claims supplying a notice of Section 50 of the NDPS Act to
the appellant which is tendered into evidence and marked as Ex.-
P/1, however, a perusal of which revealing defect in the notice
(Ex.P/1). It is mentioned in the notice that the Seizing Officer was
a gazetted Officer and, therefore, the accused was given an option
to get searched by a Judicial Magistrate. The option has been
limited by insertion of the word "Judicial" since the law requires
right of the accused to ask for his search before a Magistrate
which may be an Executive Magistrate. Further the purport of
[2025:RJ-JD:26971] (3 of 5) [CRLA-247/1995]
notice under Section 50 of NDPS Act would be to make the search
either before a gazetted Officer or before a Magistrate but
certainly not by the Gazetted Officer or by the Magistrate. Putting
restraint or limiting right by unnecessarily putting foreign word
"Judicial Magistrate" instead of a Magistrate has certainly made
the document Ex.-P/1 erroneous and not in consonance with the
law as well. Ex.P/4 is the memo of arrest prepared by the Seizing
Officer on 04.06.1993 at 02:15 PM but the same does not have
mentioning of any notice under Section 50 of the NDPS Act
allegedly given to the accused. If the notice dated 04.06.1993 at
01:55 PM was there, then where it vanished thereafter. Had the
notice Ex.P./1 been given to the accused at 01.55 P.M., then
certainly its availability should be with the accused when he was
arrested and personally searched at 02.15 P.M. vide Ex.-P/4.
Certainly the above mentioned aspects are fatal to the
prosecution.
4. Another glaring defect this Court notices is the missing links
and absence of proper connecting evidence. The seizure was made
on 04.06.1993 and the articles were deposited in the Malkhana by
making entries No.93 which is evident from Ex.-P/7. This
document reflects that on 25.06.1993, the Malkhana In-charge
had handed over the samples marked ABC to Constable - Laxmi
Narain to produce it before Superintendent of Police for the
purpose of sending the same to FSL. Ex.P/8 is the forwarding
letter through which the samples were handed over to Constable -
Laxmi Narain by the SHO. The samples were received by the
Superintendent of Police, Bhilwara on 06.07.1993 which is very
much evident from ex. P/10. There is serious missing link as to
[2025:RJ-JD:26971] (4 of 5) [CRLA-247/1995]
where the samples had remained in between 25.06.1993 to
06.07.1993 so also whether in the mean period the samples
remained intact. The prosecution's case is silent on this aspect
since no oral or documentary evidence has been placed on record
and no explanation has been furnished in this regard. Ex.P/11
recognizes receipt of samples by the FSL, Jaipur on 07.07.1993.
The specimen seal was required to be sent alongwith the
forwarding letter but nowhere in the record its presence is
available.
4.1 NDPS Act is sometimes called a draconian law because of its
stringent provision of punishment and, therefore, Hon'ble the
Supreme Court has time and again, through plethora of judicial
pronouncements has propounded strict compliance of mandatory
provisions. A defect in notice under Section 50 of NDPS Act
certainly vitiates the recovery. Further more, the absence of
evidence about keeping the samples intact till its reaching to FSL
further puts a serious dent on the case of prosecution and the
things above are indeed fatal to the case of prosecution. The
jurisprudential aspect that "grave the charge greater has to be the
standard of proof and so also the best evidence must be
produced" cannot be ignored. It is the duty of the prosecution to
prove its case beyond every shadow of reasonable doubt and in
this process, it would require to bring forth cogent and clinching
evidence to assert that right from the very inception when the
samples were taken and till its reaching to FSL, the same were
remained intact, nor tempered with. In absence of missing links in
the chain of evidence, a cloud of doubt certainly enters in the
matter. It is not proved that the samples were taken properly and
[2025:RJ-JD:26971] (5 of 5) [CRLA-247/1995]
kept safe till its reaching to chemical examiner and in this view of
the matter, the report of FSL bears no value. Since there is a gap
and links are missing in the evidence of prosecution, therefore,
the report of FSL does not connect the accused so as to bring
home his guilt.
5. In this view of the matter, the instant appeal succeeds and
the same is allowed. The judgment dated 16.05.1995 passed by
the learned Special Judge, NDPS Act Cases, Bhilwara in Sessions
Case No.47/1994 is set aside. The appellant is acquitted from the
charges. He is on bail. His bail bonds are discharged. He is not
required to surrender.
6. The record be sent back forthwith.
(FARJAND ALI),J
23-divya/-
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