Smt. Bichuli Devi Vs. State of Uttarakhand - Court Judgment

Alok Singh, J (Oral).

1. This appeal is preferred by the appellant through Jail Authorities. Mr. Rajendra Singh, Advocate present in the Court, was requested to appear in this case on behalf of the appellant as Amicus Curiae. He had accepted the request of this Court. Paper book was handed over to him in the pre-lunch session. He had agreed to argue the matter after post lunch session.

2. Heard Mr. Rajendra Singh, learned Amicus Curiae for the appellant and Mr. Prabhakar Joshi, Brief Holder for the State.

3. Present appeal has been preferred by the appellant against the judgment and order dated 27.08.2008 passed by Special Sessions Judge, Champwat in Special Sessions Trial No.30 of 2007 whereby learned trial court has held the appellant guilty for the offence punishable under Section 8/20 of the NDPS Act and sentenced her to undergo 10 years rigorous imprisonment and to pay fine of Rs.1,00,000/- and in default, to further undergo 2 years additional imprisonment.

4. Brief facts of the present case, inter alia, are that PW1 Sub Inspector P.K. Jetha lodged an FIR with police station Banbasa on 11.07.2007 at 07.05 p.m. against appellant as well as one Janki Devi for the offences punishable under Section 8/18/20 NDPS Act to the effect that on 11.07.2007, he along with other police personnel was checking the vehicular traffic near Sharda Barrage Bridge; meanwhile police personnel noticed that two women having bags in their hands were coming to the Barrage Bridge; police party on being suspicion asked them to stop, however, both of them started walking fast; police party apprehended these women on 04.30 p.m., on interrogation, one of them told her name as Janki Devi, resident of village Tilachaud, Ward No.10, police station Gadda, District Kanchanpur, Nepal and she further told that she was carrying about 1.600 kg of charas while another lady told her name Bichuli Devi, resident of village Tilachaud, Ward No.10, police station Gadda, District Kanchanpur, Nepal and she further told that she was carrying 1 kg. of charas in her bag; on this, PW1 told these women that since both of them were residents of Nepal and carrying charas, therefore, as per Indian law, they had legal right to be searched in the presence of Magistrate / Gazetted Officer; both of them started apologizing and agreed to be searched by police party, therefore, consent memo was prepared on the spot; having obtained their thumb impressions, a lady constable Meera PW3 conducted search and found that Janki Devi was carrying 1.600 kg in a blue polythene packet kept in the bag being carried by her while present appellant was found carrying 1 kg of charas in blue colour polythene packet kept in the bag being carried by her; license of charas was demanded from both of them but they failed to show any license; Janki Devi was also carrying Rs.70/-; police party informed them that they had committed an offence punishable under Section 18/20 of the NDPS Act; thereafter, both of them were formally arrested; seizure memo, arresting memo were prepared on the spot; charas, so recovered, was kept in a seal cover, under the seal and signature of PW1; sample seal was also prepared on the spot; both the ladies along with contraband, so recovered, were brought to the police station and thereafter, a check FIR was lodged; investigation was handed over to PW7 SHO Naresh Chandra.

5. Accused Janki Devi co-accused reported to have died while escaping from judicial custody.

6. Having investigated the matter, a charge-sheet was submitted against the appellant. Learned trial court framed charge against the appellant for the offence punishable under Section 18/20 NDPS Act. Appellant denied the charge and claimed trial.

7. During trial, Arresting Officer Sub Inspector P.K. Jetha PW1, Constable Ganesh Singh PW2, Lady Constable Meera PW3, Constable Hemant Kumar PW4, Constable Rajendra Singh PW5, Bhupal Singh PW6 and Investigating Officer Naresh Chandra PW7 were examined. Statement of appellant was also recorded under Section 313 Cr. P.C.

8. Mr. Rajendra Singh, learned Amicus Curiae appearing for the appellant while placing reliance upon the judgment rendered by the Honble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in 2005 (3) SCC 59, has vehemently argued that Maalkhana Register was not produced before the court and the same is not available on record to show that contraband, so recovered, from the appellant was kept intact in the police Maalkhana under the seal of PW1 and sample seal was also kept in the Maalkhana. He has further argued that although sample was said to have been sent for chemical examination to FSL Dehradun under the seal of court, however, sample of the seal of the court is not available on record.

9. He further contends that sample seal, so prepared by the Arresting Officer PW1, on the spot while keeping the contraband in a seal cover under his seal is not available on record, therefore, prosecution has failed to prove the guilt of appellant beyond doubt.

10. I have carefully perused the lower court record with the help of Mr. Rajendra Singh, Amicus Curiae as well as Mr. Prabhakar Joshi, Brief Holder for the State.

11. Having perused the entire record, I could not find either entries of the Maalkhana Register or sample seal of PW1 on record. Perusal of the record further reveals that although contraband was sent under the seal and signature of learned Special Judge to FSL for chemical examination on 24.07.2007, however, request letter does not show that sample seal of the court was also sent along with sample, for comparison by the FSL before opening the seal of sample to find out that the seal, so placed, by the court remained intact and there was no tempering with the seal.

12. Honble Apex Court in the case of State of Rajasthan Vs. Gurmail Singh reported in 2005 (3) SCC 59 has observed as under:

“We have perused the judgment of the High Court. Apart from other reasons recorded by the High Court, we find that the link evidence adduced by the prosecution was not at all satisfactory. In the first instance, though the seized articles are said to have been kept in the malkhana on 20th May, 1995, the Malkhana register was not produced to prove that it was so kept in the malkhana till it was taken over by PW-6 on June 5, 1995. We further find that no sample of the seal was sent along with the sample to Excise Laboratory, Jodhpur for the purpose of comparing with the seal appearing on the sample bottles. Therefore, there is no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately after seizure of the contraband. These loopholes in the prosecution case have led the High Court to acquit the respondent.”

13. In view of the dictum of Honble Apex Court and in view of the fact that sample seal prepared by PW1 while keeping the contraband under his seal is not available on record and in view of the fact that Maalkhana register is not available on the record to show that contraband remained intact and in view of absence of the court seal under which the sample was sent for chemical examination, conviction of the appellant seems to be unjustified and appellant is entitled for benefit of doubt. Therefore, the appeal is allowed. Impugned judgment and order dated 27.08.2008 is hereby set aside. Appellant is in jail. Let she be released forthwith, if not wanted in any other case.

14. Let a copy of this judgment be sent to the court below for compliance along with lower court record.