Ramchandra Singh Jhala JUDGMENT
Ramchandra Singh Jhala, J.
1. This criminal appeal has been filed on behalf of appellant against the judgment dated 25.4.2017 passed by learned Special Judge, N.D.P.S. Act Cases, Pratapgarh (hereinafter referred to as 'the trial court') in Sessions Case No. 4/2011 whereby the accused-appellant was convicted for the offence punishable under Section 8/15 of N.D.P.S. Act and sentenced him for a period of twelve years rigorous imprisonment and imposed a fine of Rs. 1,20,000/- and in default of payment of fine, further to undergo one years rigorous imprisonment.
2. Brief facts of the case are that on 22.8.2010 at 6:00 AM, Shri Pravin Tak, S.H.O., Police Station, Rathanjana (PW-13) along with police officials Ghisalal (PW-6), Premlal (PW-10), Ravinder Kumar (PW-11), Shiv Ram (PW-12) and Panna Lal, Prabhu Lal, Kamalchand after taking necessary materials reached to the Kajli Road by a Government jeep whose driver was Ramchandra for seizing the smuggling articles and conducted nakabandi on the road of Kajli to Bhameriya. During nakabandi at about 8:30 AM, they saw one golden colour bolero jeep No. R.J.26 U.A. 0210 coming from village Thada in high speed and police officials gave signal to stop the vehicle, but the same was not stopped and driver of the vehicle rashly drove the vehicle and run away towards Neemach and the police officials followed the vehicle and over took the bolero near newly constructed Primary Health Centre, Bardiya at a distance of Kajli Fanta. The driver of the vehicle Pappa Ram fled away through the Health Centre and two persons were sitting in the vehicle. Thereafter in the presence of passersby Gajraj (PW-1) and Pappu (PW-2), name of the said two persons asked by the police officials and they disclosed their name as Mahesh and Subhash and name of driver was disclosed as Pappa Ram S/o. Kheta Ram, by caste Bishnoi, R/o Feench. The S.H.O. also asked them about what is in the bags? They told that they are unknown about what is in the bags. In search of vehicle, the police recovered total 240 kgs poppy husk/straw kept in 10 bags. The S.H.O. took samples of 250 gram from each bag and sealed the same on the spot. The remaining contraband and bolero jeep were seized and thereafter an FIR No. 102/2010 was registered at Police Station, Rathanjana, District Pratapgarh and investigation was handed over to Nathu Singh, S.H.O., Police Station Dhamotar. After completion of investigation, charge sheet was filed against the accused-appellant and Pappa Ram for the offence under Section 8/15 N.D.P.S. Act before the trial court.
3. During the trial, co-accused Mahesh died and proceeding against him was dropped.
4. The learned trial court framed charges against the accused for the offence punishable under Section 8/15 of N.D.P.S. Act which the appellant denied and claimed to be tried.
5. The prosecution has produced Gajraj Singh (PW-1), Pappu alias Virender (PW-2), Phoolchand (PW-3), Nahar Singh (PW-4), Mangi Lal (PW-5), Gheesa Lal (PW-6), Surender Singh (PW-7), Durga Singh (PW-8), Rameshwar Lal (PW-9), Prem Lal (PW-10), Ravinder Kumar (PW-11), Shiv Ram (PW-12), Pravin Tak (PW-13) and Bhanwar Singh (PW-14) and exhibited 17 documents.
6. After closing the evidence, the accused-appellant Subhash and co-accused Pappa Ram were examined under Section 313 Cr.P.C. The accused persons denied the statements of all the prosecution witnesses. The co-accused Subhash has specifically stated that he came for darshan of Gautmeshwar and his father was known to Mohammed Rafique. He was going to Neemach by bus, then on the, way the police officials stopped the bus and carry him in the police station and implicated in the case. In defence Farukh Shekh (DW-1) and Pappa Ram (DW-2) were produced.
7. After hearing learned counsel for the parties and perusing the material available on record, the learned trial court acquitted the co-accused Pappa Ram @ Pappu Ram from the offence under Section 8/15 of N.D.P.S. Act and convicted and sentenced the appellant for the offence under Section 8/15 of NDPS Act vide judgment dated 25.4.2017 as above.
8. Being aggrieved with the impugned judgment dated 25.4.2017 of the trial court, the present appellant has preferred the instant appeal before this Court.
9. Heard learned counsel for the parties.
10. Learned counsel for the appellant has contended that the impugned judgment dated 25.4.2017 passed by the learned trial court is against the material evidence available on record as well as contrary to law. The prosecution examined 14 witnesses in total before the learned trial court for proving the alleged allegation against the appellant but out of them independent witness PW-1 Gajraj Singh and PW-2 Pappu @ Virendra have not supported the prosecution case and they have been declared hostile. It is contended that the independent witnesses have clearly stated that no such recovery has been made as alleged in their presence, hence, merely on the basis of putting the signature over the documents, such testimony of independent witnesses cannot be discarded.
11. It is further contended that from perusal of documents prepared by the Investigating Agency, it is clear that the appellant has never disclosed about carrying of alleged contraband, hence, it is clear that the appellant had no knowledge about the alleged contraband, hence, the appellant cannot be connected with the alleged recovered contraband, but, the learned trial court has failed to appreciate this fact and has relied upon the testimony of police officials while passing the impugned judgment. It is contended that no notice under Section 50 of the N.D.P.S. Act was given by the Investigating Agency to the appellant prior to alleged recovery.
12. It is further contended that it is an admitted case of the prosecution that the SHO, Police Station, Rathanjana along with other police officials conducted nakabandi and recovered the alleged contraband, hence, it must be necessary for the prosecution to examine each and every person of police party, but the same has not been done. It is contended that recovered contraband was not identified or verified during the trial in the court by witnesses for proving the alleged allegation against the appellant and recovered articles were not produced in the court in the same condition in which it was recovered, therefore, the appellant cannot be connected with the alleged recovered contraband.
13. Learned counsel for the appellant has also further contended that the appellant has been falsely implicated in this case due to not having valid permit or licence. There is no material on record which shows that the so-called recovery was made from the appellant, therefore, the appellant cannot be convicted.
14. In support of above arguments, learned counsel for the appellant has relied upon the following judgments and prayed that the present appeal may kindly be allowed and the appellant may kindly be acquitted from the offence punishable under Section 8/15 of N.D.P.S. Act:-
(i) Arif Khan @ Agha Khan v. State of Uttarakhand decided on 27th April, 2018 by the Hon'ble Supreme Court
(ii) Kmaal Khan v. State of Rajasthan (S.B. Criminal Appeal No. 523/2015 decided on 9.2.2018 by this Court).
(iii) UOI v. Bal Mukund & Ors. reported in MANU/SC/0515/2009 : 2009 Cr.L.R. (SC) 590
(iv) Banwari Garg v. State of Rajasthan reported in 2017(4) Cr.L.R. (Raj.) 1943
(v) Rameshwar Lal @ Ramesh Chandra v. State of Rajasthan reported in MANU/RH/0021/2017 : 2016 (2) R.Cr.D.95 (Raj.)
(vi) Ali Khan Vs,. State of Rajasthan reported in 2013(4) Cr.L.R. (Raj.) 1920.
15. On the other hand, learned Public Prosecutor has supported the impugned judgment and vehemently opposed all the contentions of learned counsel for the appellant. It is contended that the learned trial court has not committed any error in convicting the accused-appellant for the offences under Sections 8/15 of N.D.P.S. Act and has rightly convicted and sentenced the accused-appellant. The finding of learned trial court is based on material available on record.
16. In the light of arguments advanced by the learned counsel for the accused-appellant and upon perusal of record, it reveals that Seizure officer, Pravin Tak (PW-13) in his examination-in-chief has stated that :
17. The learned trial court, during the trial, at the time of recording examination-in-chief of Pravin Tak (PW-13), has also noted that:-
18. In cross-examination Pravin Tak (PW-13), Seizure Officer clearly admitted that:-
19. Upon perusal of statement of Nathu Singh (PW-14), Investigating Officer, it reveals that the Investigating Officer, Nathu Singh in his cross-examination clearly stated that:-
20. In view of the statements of Pravin Tak (PW-13) and Nathu Singh (PW-14), it is apparent that prosecution did not exhibited seized muddamal in the same condition in which it was recovered. The bags which were produced in the Court do not bearing proper chits or marks so as to connect or link the accused-appellant with the recovery of seized contraband effected from the accused in the case in hand, thus, the accused-appellant cannot be convicted for the alleged recovery of 24 bags of poppy husk/straw.
21. Upon perusal of record, it is also clear that the prosecution has failed to prove that at the time of depositing the recovered articles in Malkhana, the same were re-sealed. The Seizure Officer, Pravin Tak (PW-13) in his cross-examination clearly admitted that 
. It proves that neither seized articles were properly deposited in Malkhana nor in view of above discussion, the recovered articles have been produced in the Court in the self same condition in which it was recovered. It is also fatal for the prosecution.
22. The Seizure Officer, Pravin Tak (PW-13) has also clearly stated that :-
23. Other police officials, who were present at the time of seizure, have also repeated the same thing. It proves that the accused-appellant and Mahesh had no knowledge that what contained in the recovered bags. It is also material on record that the bolero driver left the accused-appellant and co-accused Mahesh on road and he himself alone went to unknown place and when he returned back and passed only one kilometer distance, then bolero had been stopped by the police, therefore, it cannot be said that it was in the knowledge of the accused-appellant that what contained in the recovered bags.
24. The burden of proving charges against the accused is on the prosecution. When the prosecution has failed to place any material on record to prove that the accused-appellant had any knowledge about transportation of illegal poppy husk/straw by the driver in the said vehicle, it cannot be said that the accused had any knowledge that the driver of the vehicle is transporting any illegal poppy husk/straw.
25. The prosecution has also failed to follow the procedure prescribed under Section 52A of the N.D.P.S. Act so as to lead alternate evidence of the seized goods. There is no escape from the conclusion that no evidence was given about the seized muddamal by exhibiting it in the self same condition in the Court.
26. The Hon'ble Supreme Court and this Court have time and again held that while exhibiting the muddamal in the self same condition or proving the inventory and photographs prepared under Section 52A of the N.D.P.S. Act is indispensable so as to accept the evidence of seizure and held the accused guilty of the charge under the N.D.P.S. Act. The failure to do so would deprive the Court from verifying the truthfulness of the alleged seizure. The legislature has provided an alternate mechanism to the investigating agency for preparing inventory/memorandum and photographs of the recovered articles under Section 52A of the N.D.P.S. Act which can be proved in the Court by way of admissible substantive evidence of the seized articles rather than adopting cumbersome procedure of the proceeding and exhibiting the Muddamal in the Court.
27. As has been observed above, the prosecution has failed to undertake and prove compliance of this procedure as well. Hence, the impugned judgment of conviction is illegal and cannot be sustained. It is settled proposition of law that Muddamal in self same condition is required to be produced in Court and non-production thereof is fatal to the prosecution.
28. The Hon'ble Supreme Court in the case of Union of India v. Bal Mukund & Ors reported in MANU/SC/0515/2009 : 2009 Cr.L.R. (SC) 590 has held as under:-
"(C) Narcotic Drugs and Psychotropic Substances Act, 1985 - Sec. 55 - Infirmity in the prosecution case - PW-7 did not testify as to which of the bags seized had been sent to FSL - No evidence that the bags produced were the bags in question which were seized or the contraband was found in them."
29. In the case in hand, both the independent witnesses Gajraj (PW-1) and Pappu (PW-2) were declared hostile. They do not support the prosecution story and in view of above discussions, recovered article has not been produced in the self same condition in which it was recovered.
30. This Court in the case of Rameshwar Lal @ Ramesh Chanda v. State of Rajasthan reported in 2016(2) R.Cr.D. 95 (Raj.) has held as under:-
"Narcotic Drugs and Psychotropic Substances Act, 1985 - Sec. 8/15 - Conviction under - When not maintainable - Independent witnesses of recoveries not supported prosecution story and declared hostile - When the seizure officer produced the seized muddamal in the court, it was not in an identification condition - Procedure under Sec. 52A of the Act not followed - Non-exhibition of muddamal in the Court - Prosecution failed to lead primary evidence of seizure - Held, Accused appellant is acquitted of charges."
31. The Jaipur Bench of this Court in Jaipal Singh v. State 2016(3) Criminal Law Reporter(Raj.) 1590 dealt with cases where muddamal was not produced in the Court in self same condition and relying on the judgment of the Apex Court in Kalu Ram v. State of Rajasthan S.B. Criminal Appeal No. 356/2015 decided on 17.03.2016, Ashok @ Dangra Jaiswal v. State of M.P. MANU/SC/0340/2011 : AIR 2011 SC 1335 and Vijay Jain v. State of M.P. MANU/SC/0709/2013 : (2013) 14 SCC 527 and of Rajasthan High Court in Sahiram v. State of Rajasthan, S.B. Criminal Appeal No. 774/2015) decided on 07.04.2016 came to the conclusion that non-production of muddamal before the Court is fatal to the prosecution and it was observed that it is for the prosecution to produce the material seized before the Court and non-production of the material entitles the accused to acquittal as the accused is deprived of his valuable right and serious prejudice is caused to him due to nonproduction of the seized material.
32. It is also strange that on dated 26.8.2010 a letter Exhibit 16 was also sent by Pravin Tak (PW-13) S.H.O., Police Station, Rathanjana to the Superintendent of Police, Pratapgarh for examination of samples by FSL. On this letter, Pravin Tak (PW-13) put his signature with seal but Pravin Tak (PW-13) himself in his statement admitted that 
and Investigating Officer, Mr. Nathu Singh (PW-14) has also clearly stated in his examination in chief that 
In his cross examination, he has also clearly stated that
33. It proves that Pravin Tak (PW-13), S.H.O., Police Station Rathanjana, who was seizure officer, did not investigate the matter and case file was also not in his possession on 26.8.2010. It was in possession of Nathu Singh (PW-14), S.H.O., Police Station Dhamotar, however, Pravin Tak (PW-13), S.H.O., Police Station Rathanjana without any authority wrote a letter to the Superintendent of Police, Pratapgarh and sent the samples for examination by FSL. It proves that sample was not properly in intact condition and there was possibility of tempering with the same.
34. In view of above discussions, it reveals that the learned trial court has misread the evidence and also overlooked the material available on record, therefore, the learned trial court has erred in holding the accused guilty for offence punishable under Section 8/15 N.D.P.S. Act and has wrongly convicted and sentenced him as aforesaid. Hence, the judgment passed by the trial court is not sustainable and the same is liable to be quashed and set aside and the present appeal is liable to be allowed.
35. In the result, the present appeal filed by the accused-appellant Subhash S/o. Shri Surja Ram is allowed. The impugned judgment and sentence dated 25.4.2017 passed by learned Special Judge, N.D.P.S. Act Cases, Pratapgarh is quashed and set aside. The appellant is acquitted from the offence under Section 8/15 of N.D.P.S. Act.
36. Keeping in view, however, the provisions of Section 437A Cr.P.C. the accused appellant is directed to forthwith furnish a personal bond in the sum of Rs. 25,000/- and a surety bond in the like amount before the learned trial court within one month, which shall be effective for a period of six months to the effect that in the event of filing of Special Leave Petition against the judgment, the appellant, on receipt of notice thereof, shall appear before Hon'ble the Supreme Court.
37. The accused may be released, if not required in any other case.
38. The record of the trial court be sent back forthwith.
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