State of Rajasthan Vs. Udai Lal  INSC 860 (8 May 2008)
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 843 OF 2008 (Arising out of
S.L.P. (Crl.) No. 3346 of 2006 State of Rajasthan .... Appellant (s) Versus
Udai Lal .... Respondent(s)
P. Sathasivam, J.
1) Leave granted.
2) State of Rajasthan, aggrieved
by the judgment and order dated 15.09.2005 passed by the High Court of
Judicature for Rajasthan at Jodhpur in S.B. Criminal Appeal No. 1050 of 2002
acquitting the respondent/Udai Lal, who had been convicted by the Special
Judge, NDPS cases, Chittorgarh under Section 8/15 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as `the NDPS Act')
and sentenced him to undergo 10 years' rigorous imprisonment and a fine of Rs.
One lakh, has filed the above appeal.
3) BRIEF FACTS:
According to the prosecution, on
19.08.2001, at about 3.05 p.m. one Himmat Singh, Station House Officer, Police
Station, Chanderiya, received an information from Mukhbir about transporting
illicit liquor in truck No. RJ 09/G/0604 and acting on that information he
alongwith Amar Singh P.W.5, Udai Singh P.W.6, Gopal P.W.11 after calling two
motbirs Dinesh Khatik P.W. 1 and Iqbal P.W.2, taking with them the necessary articles
for investigation, started in Government jeep. At 3.15 p.m., as per the
information received, the said truck arrived there from the side of Chittor and
was got stopped by signaling. The truck was covered by tarred canvass. After
removing the canvass from the truck, when the truck was searched, the back side
of bags was found to be of maize and in the rest part of the truck there were
gunny bags. While checking the maize bags, smell of narcotic substance was felt
and after giving notice to driver Udai Lal, 2 he was asked about his option to
be searched either by a Magistrate or Gazetted Officer or Station House Officer
himself. The driver gave his consent in writing to give search to the S.H.O. In
the search of the truck, 21 bags of maize and 119 bags of poppy husk were
found, which were seized at the spot and out of those seized bags two samples
of 500 each were taken out from five bags and sealed and marked then and there.
The rest of the material was also seized and sealed.
The accused Udai Lal was arrested
and a case against him under Section 8/15 of the NDPS Act was registered.
During investigation, the material was found to be got loaded by one Dalchand
Brahmin, as such he was also arrested under Section 8/28 of the Act. Challan
against both the accused was filed in the Court.
The matter came up before the
Special Judge, NDPS Cases, Chittorgarh and the parties were heard on framing of
charge. Charge under Section 8/15 of the Act was framed against the
accused/Udai Lal while the other accused Dalchand Brahmin was left out for the
offence under Section 3 8/29 of the Act. The accused denied the charge. The
prosecution, in support of its case, examined P.Ws 1 to 12 and Exh. P-1 to
P-22. After closing of the prosecution evidence, when the statement of the
accused was recorded under Section 313 of the CrP.C., he stated that neither he
was driving the truck nor the poppy husk was recovered from him.
He claimed himself to be innocent.
In defence, the accused examined himself as D.W.1 and also examined D.Ws 2-5.
The learned Special Judge, after considering the materials and hearing both
sides, by judgment and order dated 02.12.2002, convicted the accused for the
offence under Section 8/15 of the NDPS Act and sentenced him as mentioned
Aggrieved by the judgment and
order passed by the learned Special Judge, the accused preferred S.B. Criminal
Appeal No. 1050 of 2002 before the High Court of Judicature for Rajasthan at
Jodhpur. By the impugned judgment, the High Court, after finding that the
evidence led by the prosecution is not sufficient to bring home the guilt of
the accused interfered with the order passed by the Special Judge 4 set aside
the conviction and sentence and allowed the appeal.
Questioning the order of acquittal
by the High Court, the State of Rajasthan through Secretary, Department of Home
Affairs has filed the above appeal.
4) Heard Mr. Milind Kumar, learned
counsel for the appellant and none appeared on behalf of the respondent.
5) As mentioned above, the
respondent/accused was charge-sheeted for the offence under Section 8/15 of the
NDPS Act. Learned counsel appearing for the State of Rajasthan submitted that
the High Court was not justified in acquitting the accused overlooking the fact
that the respondent/accused was found to be illegally transporting narcotic
substance and it was found proved from oral and documentary evidence that 119
bags containing 4,717 Kgs of Opium powder have been recovered from the truck on
which only respondent/accused was present and that the truck was in his
possession. He also submitted that the ultimate conclusion of the High Court
cannot be sustained in view of 5 the law laid down by this Court in Khet Singh
vs. Union of India, (2002) 4 SCC 380.
6) As stated earlier, the
prosecution has examined P.Ws 1 to 12 and also produced documentary evidence
Exh. P-1 to P-
22. Though the Special Judge, on
consideration and appreciation of the entire materials, accepted the
prosecution case, the High Court discarded them on the simple ground that first
they turned hostile and secondly their presence itself is doubtful. The High
Court has also adduced another reason for acquittal, namely, that out of the
total of 119 bags recovered, samples were taken out only from 5 bags and none
of the witnesses could state their exact weights. It also concluded that the
reason for not producing all the 119 bags before the Court is not convincing.
In the light of the reasons stated in the order of the High Court, learned
counsel for the State of Rajasthan took us through the entire materials
produced by the prosecution. Before analyzing the same, it is relevant to
mention that in order to consolidate and amend the law relating to narcotic
drugs, to make stringent 6 provisions for the control and regulation of
operations relating to narcotic drugs and psychotropic substances, to provide
for the forfeiture of property derived from, or used in, illicit traffic in
narcotic drugs and psychotropic substances, to implement the provisions of the
International Convention on Narcotic Drugs and Psychotropic Substances, the
Parliament enacted NDPS Act in the year 1985. This is a special Act and it has
been enacted with a view to make stringent provisions for the control and
regulation of operations relating to the narcotic drugs and psychotropic substances.
With this background, let us analyze whether prosecution has established the
charge leveled against the respondent/accused and the High Court is justified
in acquitting him while exercising power under Section 36B read with Chapter
XXIX of the Code of Criminal Procedure, 1973.
7) It is not in dispute that onus
of proof lies on the prosecution. To prove the fact that as to whether on
19.08.2001 at 3.15 p.m. Station House Officer, Himmat Singh recovered 119 bags
containing illegally doda powder from the 7 possession of the accused/Udai Lal
for which he was not having any permission letter, the prosecution recorded the
statement of P.W.5 Amar Singh, P.W.6 Udai Singh, P.W.7 Himmat Singh, P.W.11
Gopal Lal and P.W.12 Munir Khan. It is true that except Munir Khan, all the
witnesses are from the Police Department. Though the prosecution has recorded
the statement of independent witnesses P.W.1 Dinesh, P.W.2 Iqbal, P.W. 3 Ajay,
P.W.4 Ramesh, these four independent witnesses have been turned hostile. However,
as rightly pointed out by learned counsel for the State, the said witnesses
have admitted to put their signatures at the required place on the documents
prepared on the spot by the prosecution. Like P.W.1 other witnesses, namely,
P.W.2, P.W.3 and P.W.4 have also admitted that they put their signatures at the
proper place on the documents prepared by the police. It is relevant to note
that the Special Judge has pointed out that out of these witnesses even a
single witness has not given any such statement that the said signatures have
been taken from them under terror, pressure or without their free consent. The
Special Judge has also observed that 8 while the said witnesses are educated
and have admitted to have signed with their free consent, it is proved that all
the four witnesses were present on the spot where the prosecution party has
very much carried out the proceedings. These material aspects have not been
properly considered by the High Court except discarding them on the ground that
they turned hostile.
8) Among the other witnesses,
namely, P.Ws. 5, 6, 10, 11 and 12, as stated earlier, except Munir Khan, others
belong to the Police Department. However, the High Court has not analyzed and
adduced any reason for not accepting their evidence except pointing out minor
contradictions here and there.
9) The High Court failed to take
note of the relevant aspect, namely, the quantity of recovery articles is quite
huge (115 bags) which could not be produced in the court but on behalf of the
prosecution 5 bags have been produced in the Court. It is also seen that
besides this at the time of recording the statement investigating officer has
produced the samples of 9 articles taken from the seized articles in the Court.
In such circumstance, considering the huge quantity merely because the
prosecution has not produced all the 119 bags in the Court, an inference cannot
be drawn against them. As mentioned above, and rightly noted by the Special
Judge that at the time of recording the statement Investigating Officer had
produced the samples of the articles in the Court. This relevant aspect has
also not properly dealt with by the High Court.
10) Though the High Court found
fault with the Special Judge in analyzing the evidence and other materials, on
the other hand it is the High Court which failed to analyze the evidence in
proper perspective and highlighted the minor irregularities/contradictions and
acquitted the accused on flimsy grounds without assigning sound reasons. We
have already pointed out that the NDPS Act being a special Act was enacted with
a view to make stringent provisions for the control and regulation of
operations relating to the narcotic drugs and psychotropic substances. In this
regard it is apt 10 and relevant to quote the following law laid down by this
Court in Khet Singh (supra).
"16. Law on the point is very
clear that even if there is any sort of procedural illegality in conducting the
search and seizure, the evidence collected thereby will not become inadmissible
and the court would consider all the circumstances and find out whether any
serious prejudice had been caused to the accused. If the search and seizure was
in complete defiance of the law and procedure and there was any possibility of
the evidence collected likely to have been tampered with or interpolated during
the course of such search or seizure, then, it could be said that the evidence
is not liable to be admissible in evidence."
In the light of the above
principles, we are satisfied that the High Court failed to consider all the
relevant materials and circumstances. Further, Section 36B of the NDPS Act
empowers the High Court to deal with the appeal and dispose of the same and
exercise all powers conferred by Chapter XXIX and Section 374 of the Code of
Criminal Procedure, in particular. It is settled law that when the view taken
either by Session Judge or Special Judge was found by the High Court to be
manifestly wrong and that it had led to mis-carriage of justice, the High Court
is entitled to interfere and set aside the same. Such recourse has not been
adopted by the High Court in this case.
11 11) In the light of the
infirmities pointed out above, we accept the State appeal, set aside the order
impugned of the High Court and remit the matter for fresh disposal. The High Court
is requested to restore S.B. Criminal Appeal No. 1050 of 2002 on its file and
dispose of the same afresh in the light of the principles enunciated above
after affording opportunity to both parties. It is made clear that the High
Court is free to arrive such conclusion on consideration of the entire
materials and we have not expressed anything on the merits of the case.
We also request the High Court to
dispose of the appeal as early as possible but not later than six months from
the date of receipt of copy of this judgment. The appeal is allowed to this
(Dr. Arijit Pasayat)
(P. Sathasivam) New Delhi;
May 8, 2008.