Judgment:
P.C. Jain, J.
1. This appeal is directed against the Judgment dated 21-6-1995 passed by the learned Special Judge N.D.P.S. Cases, Jodhpur whereby the accused-appellant Bhomaram was held guilty of the offence under Section 8 read with Section 18 of the N.D.P.S. Act and was sentenced to rigorous imprisonment for ten years together with a fine of Rs. 1 lac and in default of payment of fine, to further undergo rigorous imprisonment for two years.
2. The prosecution case briefly stated is that on 2-10-1994, the Customs Officer Balotra Range, Balotra had barricated the road near Siono-ki-Dhani in pursuance of a secret information received from the Intelligence Department. At about 11.15 AM, they boarded a bus and when that Bus stopped at Balotra Bus Stand, it is alleged that the accused-appellant tried to run away carrying a green coloured bag in his hand. However, he could not succeed in escaping because the Customs Personnel apprehended him. On his search, 500 gms. of opium and 200 gms. of opium milk (Juice) were recovered from the said bag.
3. It is relevant to mention here that before taking search of the accused, the Customs Officers informed him that the search may either be made before a Gazetted Officer or a Magistrate. However, the accused expressed his desire to be searched before a Gazetted Officer. Therefore, the accused was taken before a Gazetted Officer and then the above search was made. After search, a seizure memo Ex. P. I was also prepared. The accused was also interrogated under Section 67 of the Act. The Custom Inspector also took two samples of 30 grris. each of opium as also of opium juice (milk). Those samples were sealed. The seals that were placed on the samples and the remaining packet were of the specimen as found in Ex. P. 1. The above packets were later on deposited with P.W.3 Brijbhushan Das Agrawal who was working at the relevant time as Superintendent of Customs, Banner, P.W.3 Brijbhushan made an entry of the above articles in Malkhana Register at S. No. 1/1994, An inventory Ex. P. 4 was also prepared which contains the signatures of Brijbhushan Das Agrawal. The entry in the Malkhana Register is Ex. P. 5.
4. Thereafter, P.W.7 Yogendra who was working as Customs Inspector at the relevant time delivered the above samples to P.W.5 Murlidhar for sending the same by registered post to the Chemical Examiner, Govt. Opium and Alkaloid Works, Neemuch. The above samples were received by the Chemical Examiner on 10-10-1994. The Chemical Examiner vide his report Ex. P.17 dated 15-11-1994 found the above samples to be of opium within the meaning of Section 2(xv) of the NDPS Act. On receipt of the above report from the Chemical Examiner, a complaint was filed against the accused-appellant in the Court of the learned Special Judge, N.D.P.S. Cases, Jodhpur.
5. The learned Special Judge, N.D.P.S. Cases, Jodhpur framed charges under Sections 17 and 18 of the NDPS Act against the accused-appellant. It is relevant to mention here that the above, charge, relates to only the recovery of 500 grams of opium being found in possession of the accused. In other words, the accused-appellant was not charged for the alleged recovery of 200 gms. of opium milk (Juice). The accused pleaded not guilty to the charge and claimed to be tried. Thereupon, the prosecution examined as many as eight witnesses in support of its case. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. The accused appellant raised the plea of alibi. He submitted that he was interrogated by the Customs Personnel on 2-10-1994 regarding a bag which was found in the Bus. He pleaded ignorance for the same. However, he was apprehended and this case has been falsely foisted on him. He has further submitted that previously also, he was prosecuted for the offence under the provisions of the NDPS Act but ultimately he was acquitted by the Court. In his defence, the accused-appellant Bhomaram produced D.W.I Shivlal and D.W.2 Bhabhutaram.
6. After hearing both the parties and after appreciation of the evidence, the learned Special Judge found that the offence against the accused stands proved beyond reasonable doubt. He, therefore, convicted and sentenced the accused-appellant as aforesaid.
7. It is relevant to mention here that before the learned Special Judge, it was contended on behalf of the accused-appellant that since the Customs Personnel barricated the particular road only on account of the receipt of a secret information from the Intelligence, it was necessary for the concerned Customs Officer to have noted down the said information and at the same time, he ought to have forwarded the same to his higher Officer as per the provisions of Section 42 of the N.D.P.S. Act. However, the above mandatory compliance of Section 42 of the N. D. P.S. Act was not done in the instant case and thus, there has been a violation of the mandatory provisions of Section 42 of the N.D.P.S. Act and hence, these proceedings stand vitiated.
8. The learned Special Judge on appreciation of evidence found that there is no material which substantiates the above argument except the statement of P.W.6N. K. Bhargava. He, therefore, repelled the above contention. It was also contended before the learned Special Judge that the prosecution has miserably failed to prove that the seals that were affixed on the sample packets remained in tact right from inception. The above contention also did not find any favour with the learned Special Judge.
9. I have heard Mr. Manish Shishodia, the learned counsel appearing for the accused-appellant and Mr. R. K. Purohit, the learned counsel appearing for the Union of India and have very carefully gone through the record of the case.
10. Mr. Manish Shishodia, the learned counsel appearing for the accused-appellant has very vehemently contended that even a mere perusal of the statement of P. W.6 N. K. Bhargava would prove to the hilt that the Customs Officer barricated the particular road and they were waiting for the Bus because a secret information to that effect was received by them. He further submitted that since the above information was not reduced to writing and was not forwarded to the superior authority forthwith as required by Section 42 of the Act, there has been a violation of the mandatory provisions of Section 42 of the N.D.P.S. Act and hence, these proceedings stand vitiated.
11. On the other hand, Mr. R. K. Purohit the learned counsel appearing for the Union of India has supported the impugned judgment of the learned trial Court.
12. I have considered the rival contentions made at the bar. To decide the above controversy, the testimony of P.W.6 N. K. Bhargava is very important, which cannot be brushed aside lightly. In his cross-examination, P.W.6 N. K. Bhargava has very categorically stated that on 2-10-1994, he received a secret information from the Intelligence and on the basis of that information, he deputed Customs Personnels for checking. He has further stated that he made an entry regarding receipt of a secret information from the Intelligence in the Roznamcha Register and then deputed the above customs party, though he has not brought the above register with him. He also stated that P.W.7 Yogendra told him for barricating the road near Siono-ki-Dhani. Thus, it is proved beyond all reasonable doubts that the above custom party was lying in wait at that particular place for the possible culprits and they were deputed by P.W.6 N. K. Bhargava, after making an entry in the Rojnamacha Register. I, therefore, hold that the learned Special Judge has committed a grave mistake while discarding the testimony of P.W.6 N. K. Bhargava, an important Officer of the Customs Department, who has deposed this fact not only orally but supporting it by saying that an entry was also made about it in the Roznamcha Register. However, when the above information was not immediately forwarded to his superior Officer, there has been violation of the mandatory provisions of Section 42 of the N.D.P.S. Act. Reference in this connection may be made to Nathu Banjara v. State of Rajasthan 1997 Cr LR (Raj) 135; Jarnail Singh v. State of Rajasthan 1997 Cr LR (Raj) 536 and Jawantaram v. State of Rajasthan 1995 Cri LJ 1863 wherein it has been categorically held by this Court that on receipt of an information from any Mukhbir or from a secret source, the same may be recorded and then sent forthwith to the superior officer and if it is not done, conviction cannot be sustained.
13. In this view of the matter, I hold that since in this case, the secret information received from the Intelligence was not sent forthwith to the superior officer, there has been violation of the mandatory provisions of Section 42 of the Act and hence, the conviction of the accused-appellant under Section 42 of the Act cannot be sustained.
14. It was next contended by the learned counsel appearing for the accused-appellant that the prosecution has miserably failed to prove that the seal that was affixed on the sample packets remained intact from the time was affixed on the packets till the same were received by the Chemical Examiner. In this respect, he referred to the evidence produced by the prosecution and submitted that the evidence produced by the prosecution is very eloquent to show that the officers concerned were not particular about the fact that the sealed packets were dealt with cautiously. The specimen marks of the seals werenot got on a separate paper. It is also relevant to mention here that no specimen marks of the seal were sent to the Chemical Examiner in order to enable him to compare the seals found on the sample packets. The entry made of these articles in the Malkhana Register is also open to attack. The entry of depositing the sealed articles in the Malkhan Register is Ex, P. 14-A. It is very important to note that the above entry does not contain any reference of the seal that was found affixed on the samples. Similarly it is not possible to say that what seal was found by the Chemical Examiner on the packets because according to Report Ex. P. 17 he was not furnished with the copy of the specimen marks of the seals that were affixed on the sample packets.
15. The learned counsel appearing for the Union of India could not controvert these submissions.
16. I have gone through the evidence regarding this aspect of the matter and feel no difficulty in holding that the prosecution has miserably failed to prove beyond reasonable doubt that the seals affixed on the sample packets remained intact when those packets were opened by the Chemical Examiner. It may be noted that according to Ex. P. 1, the seals were affixed on the sample packets. However, when the above articles were deposited in the Malkhana, no seal was furnished to the Malkhana Clerk for pasting the same against its relevant entry. So much so, the concerned clerk could not make a note regarding the particulars of the seals found affixed on the sample packets. Admittedly, the above sample packets were sent through registered post to the Chemical Examiner. However, the prosecution has not adduced any evidence to show how these packets were obained by Murlidhar from Malkhana and how he sent them by registered post. The Chemical Examiner has mentioned in his report that he was not furnished with the specimen marks of the seals. Thus, it can safely be concluded at once that the Chemical Examiner was not furnished with any specimen marks of the seals with which sample packets were sealed and thus, he was not in a position to say whether the original seals used were found intact on the sealed packets received by him. Hence, I hold that the prosecution has miserably failed to prove that the seals found on the sample packets were remained intact. Thus, on this count also, the conviction of the accused appellant cannot be sustained.
17. For the above reasons, I accept this appeal and set aside the conviction and sentence recorded against the accused-appellant for the offence under Section 8/18 of the N.D.P.S. Act by the learned Special Judge, N.D.P.S. Cases, Jodhpur vide his Judgment dated 21-6-1995. The accused-appellant is acquitted of the above offence. He is in Jail. He be set at liberty forthwith, if not required in any other case.