S.P. Pathak, J.@mdashThis is a State appeal against the judgment and order of the learned Additional District & Sessions Judge, Barmer in Sessions Case No.29/1987 whereby the respondent accused has been acquitted of the charge u/s 20(ii) of the Narcotic Drugs & Psychotropic Substances Act (hereinafter to be referred to as ''the Act'').
2. Briefly stated, the facts giving rise to the present case are that on 19.7.1986 at about 6.45 PM, PW6 Ranchhod Singh, SHO, PS Girab, District Barmer, lodged report Exh.Pl in the Police Station stating inter alia that on 19.7.1986 at about 1.30 PM he received a secret information from Mukhbir to the effect that Rukhiya (present accused-respondent), a history-sheeter of the police station, having Charas in his possession for the purpose of sale, was seen in the evening in the hotels of village Harsani, and if he is apprehended then charas maybe recovered from his possession. The information so received was reduced in writing in Rojnamcha Exh.P8 and thereafter, at about 6.45 PM, PW6 Ranchhod Singh alongwith other police officials including HC Veer Singh, LHC Bhikadan and FC Chaina Ram proceeded in a Govt, jeep bearing No. RRY 5937 driven by Driver Bhanwarlal. After reaching Harsani, they searched for the accused at hotels and bus-stand of village Harsani and there on inquiry being made, it was revealed that accused had left the place half an hour before reaching of the raiding party and has proceeded on foot towards the Barmer Road. The raiding party headed by PW6 Ranchhod Singh when reached near the field of Kharchi, the accused seeing the raiding left the road and entered in the field of Bhanwara Vazir. He threw a polythene packet near kikar tree. The accused was caught by the raiding party and when asked to disclose his identity, he stated his name to be Rukhiya s/o Narsa, by caste Vazir, resident of village Harsani. The small packet of polythene which was thrown by the accused at the kikar tree was taken in possession of the police and in presence of motbir witnesses when it was opened, a black material giving a smell of charas was found. The packet was having mark No.607 on the front and backside. The accused was asked as to whether he had a licence for the contraband found in his possession, to which he replied in negative. The contraband so recovered from the possession of the accused was found to be 720 grams, out of which a sample of 30 grams was taken for the purpose of chemical examination and sealed. The ample was sealed in the presence of motbirs in a small tin container. The remaining contraband weighing 690 grams was separately sealed and the packets were marked A&B. Recovery Memo Exh.Pl & Site-plan Exh.P2 were prepared at the spot and the accused was arrested vide Exh.P3. The sealed sample of Charas alongwith remaining sealed material was deposited in the Malkhana of the Police Station by PW6 Rewant Singh. Entries were made by the Incharge Malkhana. Thereafter, vide letter Exh.P5 sample was sent to FSL for chemical analysis through PW4 Mangilal. The receipt of depositing the sample is Exh.P4 dated 18.8.1986. The report of FSL is Exh.Pl2. The report shows that on analysis, it was found that the material recovered from the possession of the accused was Charas.
3. After usual investigation, challan u/s 20 of the Act was filed by police in the Court of Munsif & Judicial Magistrate, Barmer. Thereafter, the mater came up for trial in the Court of Addl. Sessions Judge, Barmer on 10.3.1987, the learned trial Judge after hearing both sides, framed charge u/s 20(ii) of the Act against accused respondent. Accused before the learned Addl. Sessions Judge denied the charge and claimed trial.
4. The prosecution, in support of its case, examined 6 witnesses and in documentary evidence tendered 16 documents. After close of the prosecution evidence, in the statement u/s 313, Cr.P.C. the accused-respondent denied the prosecution case and claimed himself to be innocent having been falsely implicated in the case. He got himself examined u/s 315 Cr.P.C.
5. After hearing both sides, the learned trial court acquitted the accused-respondent of the charge u/s 20(ii) of the NDPS Act. Feeling aggrieved by judgment and order dated 10.8.1987 passed by the learned Addl. District & Sessions Judge, Barmer in Sessions Case No.29/1987 - State vs. Rukiya, the State has preferred this appeal.
6. I have heard learned counsel for the state and the learned counsel for accused appellant so also carefully examined the material on record.
7. It has been contended by learned counsel for the State that simply for the reason that Motbir witnesses have not supported the prosecution version, the entire case of prosecution was not required to be thrown out. According to the learned Public Prosecutor, the learned trial court has not properly appreciated the evidence and the findings of acquittal recorded are perverse as the prosecution has proved the possession of the contraband item with the accused-respondent and the chemical report makes a mention that it was charas. Therefore, the accused was liable to be convicted and sentenced.
8. On the other hand, it has been contended by the learned counsel for the accused-appellant that the learned trial court has correctly appreciated the matter and when it found that there were material contradictions in the evidence of police witnesses and motbir witnesses have not supported the prosecution version, the learned trial court rightly came to the conclusion that the prosecution was not able to prove the charge framed against the accused appellant and as such acquitted the accused of the charges. Therefore, the findings of acquittal recorded by the learned trial court call for no interference by this Court.
9. I have considered the rival submissions made before me. The learned trial court found that the independent witnesses of the case have completely denied the factum of recovery in their presence. The recovery from the possession of the accused-respondent was also found to be doubtful. The learned trial court further found that since a secret information was received then in that event under the provisions of NDPS Act particularly in view of Section 42 of the Act it was necessary for the concerned to have obtained warrant for the search but no warrant of search was obtained and further if there was any circumstance for not obtaining warrant, then the circumstance ought to have been recorded in the Rojnamcha but no compliance has been made of the mandatory provisions of Section 42 of the Act.
10. The findings so recorded by the learned trial court may now be examined.
11. PW1 Prithvi Singh is a motbir witness and has witnessed memos of recovery site-plan and arrest of accused Exh.Pl to P3 respectively. The witness has stated in the cross-examination that he saw the accused in Harsani Police Chowki, when he reached Harsani Police Chowki he found that some black material was with the police, and that his signatures were obtained by the police. Thus, it appears that this witness has not at all supported the prosecution case. This witness says that the entire proceedings regarding memos prepared was done at the police station.
12. Another motbir witness is P8 Heeralal. This witness has stated that he cannot identify the person who was arrested. This witness has not identified the accused in the court. The witness does not say that Charas was recovered in his presence. A perusal of the statement of PW8 is also of no significance. The rest of the witnesses are the police witnesses. PW6 Ranchhod Singh was the SHO of the Police Station. He has stated that he received a secret information which was entered in the Rojnamcha Exh.P8 and on the basis of secret information he alongwith other police persons reached at the site and apprehended the accused from whose possession Charas as found and at the spot sample was taken from the recovered contraband article found from the possession of the accused. This witness says that when he saw the accused, he was 50 steps away from him and he caught him. The witness has further stated that where the contraband article was thrown that place was about 10 steps away from the accused.
13. PW2 Chaina Ram is the police witness. This witness says that it was he who caught the accused. According to him, the distance from the road where the accused was apprehended was between 18 to 19 steps. The witness further says that he alongwith Kalu both of them caught the accused. PW7 again a police witness, says that the kikar tree and the place where the accused was caught, was at a distance of 50 steps. The witness sayslhat Bhika Dan, Police Constable was sent for arranging the motbirs. The statements of the above police witnesses clearly indicate material contradictions in their evidence.
14. It is also significant to note that when a secret information was received then steps were required to be taken by the SHO for obtaining warrant, which has not been done in- the present case. No reason has been assigned for non-compliance of the provisions of Section 42 of the Act. Thus in the evidence there is absence of corroboration on the point of recovery by the motbir witnesses and further there are material contradictions regarding preparation of the Fards at the spot or elsewhere and also about the distance from where the accused was seen and apprehended.
15. In view of evidence discussed above, the learned trial court has found that the charge against accused as not proved beyond reasonable doubt. After carefully examining the entire material and keeping in mind the fact that the accused has been acquitted of the charge by the learned trial court, when it is found that the trial court has not misread the evidence or the findings recorded are not perverse in nature, no interference is called for by the appellate court.
16. In view of foregoing discussion, I do not find any merit in this State appeal and the same deserves to be dismissed.
17. In the result, the appeal is dismissed.
