Mohammad Akhlakh vs State of Haryana

P.K. Jain, J.

Mohammad Akhlakh has preferred Criminal Appeal No. 124DB of 1994 against the judgment and order dated February 26, 1994, passed by the Addl. Sessions Judge, Bhiwani, whereby he has been convicted under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''the Act'') and sentenced to undergo rigorous imprisonment for a period of fifteen years and to pay a fine of Rs. 1,00,000/, and in default thereof to undergo further rigorous imprisonment for two years.

Ramji Doss, truck owner, has preferred Crl. Appeal No. 149DB of 1994, against the aforesaid judgment and order, whereby his truck bearing registration No. URP 9040 has been forfeited under the provisions of the said Act.

The facts of the prosecution case in brief, are that on September 30, 1992, police party headed by ASI Sampat Ram of Police Station Bond Kalan was present at Tpoint of villages Sanjarwas and Ranila, in the area of village Sanjarwas, in connection with holding of nakabandi. At about 12.15 in the night, truck bearing No. URP 9040 was seen coming from the side of village Ranila which was got stopped on his signal. Mohammad Akhlakh appellant was on the wheel of the truck. He tried to escape but was overpowered. On suspicion having arisen, ASI Sampat Ram informed the appellant that he had a suspicion that some narcotic articles were being carried in the truck and he wanted to conduct his personal search as well as the search of the truck and if he so desired, his search could be conducted in the presence of a gazetted officer or a Magistrate. This offer was given in writing Exhibit PB. The appellant replied in the affirmative vide Memo Exhibit PB/1. Wireless message was flashed to DSP Dadri who was on patrol checking duty. DSP Shri K.S. Sihag (PW 1) reached the spot and verified the facts and then directed ASI Sampat Ram to conduct the search. On search, three gunny bags containing charas were recovered from the tool box of the said truck, 200 grams charas was separated from each of the three gunny bags. The remaining charas was weighed and found to be 19 Kgs. 800 grams in one bag and 29 Kgs. 800 gms. in each of the remaining two bags. The samples were put in tinboxes and the same were sealed with the seals of ''SR'' and ''KSS''. Three gunny bags containing the remaining charas were also sealed with the same seals. The samples, the remaining charas along with the said truck were taken into possession by preparing memo Exhibit PA which was signed by the witnesses and attested by the said DSP. Rough site plan of the spot Exhibit PC was prepared. RuqaExhibit PD was sent to the Police Station on which formal FIR Exhibit PD/1 was recorded. The registration certificate of the truck, the permit and the document pertaining to tax were also seized vide memo Exhibit PE. The three samples were sent for chemical analysis to the Forensic Science Laboratory, Madhuban, and the report Exhibit PH was received.

In support of its case, the prosecution examined two witnesses i.e. Shri K.S. Sihag DSP (PW 1) and ASI Sampat Ram (PW 2) and tendered the affidavits of Constable Basant Lal and HC Ram Kumar which are Exhibits PF and PG. Report of the Forensic Science Laboratory Exhibit PH was also tendered into evidence.

In his statement recorded under section 313 of the Code of Criminal Procedure, the appellant Mohammad Akhlakh denied all the prosecution allegations and stated that he was innocent and no recovery was effected from'' him or from the truck. No evidence in defence was produced by the appellant.

While placing implicit reliance on the testimony of both the prosecution witnesses read with the report of the Forensic Science Laboratory, the trial Court convicted and sentenced the appellant as stated above and also forfeited the truck No. URP 9040 under Section 60(3) of the Act. Conviction and sentence have been challenged by Mohammad Akhlakh appellant whereas confiscation of the truck has been challenged by its owner Ramji Dass appellant.

We have heard the learned counsel for the appellants and the learned counsel for the State and have also gone through the record with their help.

Shri R.S. Cheema, Sr. Advocate, learned counsel for the appellants, has argued that there was noncompliance of section 50 of the Act inasmuch as the presence of DSP Shri K.S. Sihag (PW 1) is highly doubtful on the spot. While referring to his testimony and that of ASI Sampat Ram (PW 2), it has been contended that the said DSP has not been able to tell the distance from village Samaspur to the place where the recovery was effected although he had received the wireless message in village Samaspur. It has been further contended that according to this witness he reached the spot at about 12.40 a.m. and remained there upto 3.50 a.m., whereas ASI Sampat Ram has stated that the DSP had left the spot at about 3.30 a.m. Both these contentions do not have any merit therein. The obvious reason is that these are absolutely negligible facts in nature and do not cast any reflection on the credibility of the said witness. According to the testimony of ASI Sampat Rain (PW 2), it is evident that the truck was intercepted at about 12.00 midnight and an offer was given in writing vide memo Exhibit PB to the appellant Mohammad Akhlakh after disclosing the nature of suspicion to him and on his giving reply in the affirmative vide memo Exhibit PB/1, wireless message was flashed to DSP Shri K.S. Sihag who was already on patrol checking duty who reached the spot at about 12.40 a.m. According to the testimony of both these witnesses the search of the truck was conducted in the presence of the said DSP and three gunny bags Exhibits P.2 to P.3 were recovered from the tool box of the said truck. Samples were also separated in the presence of the said DSP and then the samples and the remaining charas were duly sealed with the seal of ASI Sampat Ram and the seal of the said DSP. Thereafter the samples, the remaining charas and the truck were taken into possession vide memo Exhibit PA which was signed by the witnesses and duly attested by the said DSP. The testimony of both these witnesses in this respect has not been shaken in any manner in their crossexamination nor do we find any reason to suspect the same. Therefore, it becomes evident that the provisions of Section 50 of the Act had been complied with meticulously by ASI Sampat Ram (PW 2).

Then the learned counsel for the appellants has argued that ASI Sampat Ram did not make any effort to join independent public person to witness the search of the truck although village Sanjarwas is adjoining to the place of nakabandi and another village Phogkat is at a distance of 2 KMs from the place of recovery. It has been further contended that the police party had started from the police station at about 9.00 p.m. and there were certain villages lying on the way to the place of recovery but no independent public person was joined in the police party. According to the learned counsel this fact makes the case of the prosecution highly suspicious.

We are unable to agree with the aforesaid contention of the learned counsel. Admittedly, ASI Sampat Ram had no prior information that this truck or any truck would be coming along with narcotic drug having been loaded therein. The time of interception of the truck is about midnight. These two facts in themselves are enough to hold that no independent public person could have been joined or procured at the spot to witness the search of the truck.

Even otherwise we do not find any legal lacuna in this respect. Section 50 of the Act contains an inbuilt safeguard to ensure that the officers who are charged with the duty of conducting searches, conduct them properly and do no harm or wrong, such as planting of offending drugs by any interested parties, and prevent fabrication of any false evidence. It also provides a weapon to the law enforcement agency against the common allegation that the drugs have been planted by these officers. Once the search has been conducted in the presence of a gazetted officer or a Magistrate as envisaged by Section 50 of the Act, the second limb of the argument that independent public person ought to have been joined to witness the search of the truck, is not sustainable in the eyes of law. When the rule of law has been fully complied with, the rule of prudence would recede and disappear. The question of joining any independent public person to witness the search. of the truck, thus, would not arise once the provisions of Section 50 of the Act had been complied with.

Then the learned counsel for the appellants has argued that the provisions of section 55 of the Act have not been complied with. It has been argued that the samples as well as the remaining charas ought to have been delivered to the Officer Incharge of the Police Station but the same has not been done in the present case. It has been further argued that according to ruqaExhibit PD and the affidavits Exhibit PF and PG the samples parcels were having the seals of ''SR'' and whereas according to the testimony of DSP Shri K.S. Sihag and ASI Sampat Ram (PW 2), the samples were having the seals of ''KSS'' and ''SR'' and thus it cannot be said that the prosecution has proved that the samples so examined by the Forensic Science Laboratory were the same which were taken out of the seized contraband article at the spot.

ASI Sampat Ram (PW 2) has categorically stated in his examinationinchief that on 30.9.1992 he was posted as Station House Officer, Police Station Bond Kalan. While being crossexamined on this point, he has explained that since the SHO was on leave, he was officiating as SHO. The fact that ASI Sampat Ram was functioning as SHO of Police Station Bond Kalan, is duly corroborated by DSP Shri K.S. Sihag (PW 1) who was his superior officer in office. Once it is established that ASI Sampat Ram was functioning or officiating as SHO, Police Station Bond Kalan, question of producing the samples and the remaining seized contraband before the Officer Incharge of the Police Station could not arise, and accordingly he got deposited the case property in the Malkhana.

As regards the second limb of the argument, it is correct that according to the testimony of both the prosecution witnesses, all the three samples and the three gunny bags containing charas were sealed with the seals of ''KSS'' and ''SR'', but in the ruqa Exhibit PD and the affidavits Exhibits PF and PG it is mentioned that the sample parcels were sealed with the seals of ''SR''. But the report Exhibit PH received from the Forensic Science Laboratory goes to show that all the three sample parcels were received in the Laboratory with the seals ''KSS'' and ''SR'' being intact. It appears that there is an omission on the part of ASI Sampat Ram while preparing ruqa Exhibit PD as well as on the part of the Constable Basant Lal and HC Ram Kumar but such an omission would not affect the prosecution case in view of the report Exhibit PH which corroborates the version of both the prosecution witnesses. Thus, we have no hesitation in holding that the provisions of Section 55 of the Act have been duly complied with and there is nothing to doubt that there was any possibility to tamper with the samples before the same reached the hands of the Expert.

In the present case, after carefully perusing the testimony of both the prosecution witnesses i.e. DSP Shri K.S. Sihag (PW 1) and ASI Sampat Ram (PW 2), we are of the view that both these witnesses are wholly reliable; there was no obvious or ulterior motive on their part to frame up an innocent person i.e. the appellant who belongs to the State of U.P. The question of planting such a huge quantity of charas by the police does not arise. Therefore, we uphold the conviction of the appellant under Section 20 of the Act, as recorded by the learned trial Court.

Then the learned counsel for the appellants has argued that the sentence imposed upon Mohammad Akhlakh appellant is harsh and ought to be reduced. It may be stated that ASI Sampat Ram could not obtain the police remand of the appellant and as such could not interrogate him regarding the source of procurement of such a huge quantity of charas. It is not the case of the prosecution that the appellant is a previous convict or has any such past history regarding his involvement in any such activity. In our view, the ends of justice would be met if the sentence of imprisonment is reduced to a period of ten years while maintaining the sentence of fine and the imprisonment in default of payment thereof.

As regards Criminal Appeal No. 149DB of 1994, filed by Ramji Dass, the learned counsel has argued that according to the documents available on the record, Ramji Dass is the registered owner of the truck in question. This fact is fully borne out by the testimony of ASI Sampat Ram when he seized the documents of the truck vide memo Exhibit PE. The Registration Certificate of the said truck is in the name of Ramji Dass. This truck was released on supurdari during the pendency of the trial to Ramji Dass. In other words, it was evident on the record itself that Ramji Dass is the registered owner of this truck. The learned counsel for the appellants has argued that no notice was ever served upon Ramji Dass before forfeiture of the truck which was mandatory in the eyes of law. It has been further argued that Mohammad Akhlakh was merely a driver of the truck and the appellant Ramji Dass never permitted him to transport or carry any contraband in the said truck nor Ramji Dass could have any knowledge that Mohammad Akhlakh was transporting any contraband muchless the charas in question in the said truck, and as such the truck in question could not have been forfeited. Section 60(3) of the Act provides as under :

"60(3) : Any animal or conveyance used in carrying any narcotic/drug or psychotropic substance, or any article liable to confiscation under subsection (1) or subsection (2) shall be liable to confiscation, unless the owner of the animal or conveyance proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the personincharge of the animal or conveyance and that each of them had taken all reasonable precautions against such use."

Then section 63 provides the procedure for making confiscations : The proviso to subsection (2) of Section 63 reads as under :

"Provided that no order of confiscation of an article or thing shall be made until the expiry of one month from the date of seizure, or without hearing any person who may claim any right thereto and the evidence, if any, which he produces in respect of his claim."

If Section 60(3) and the proviso to subsection (2) of Section 63 are read together, it shall be evident that when the owner or the claimant of the vehicle or conveyance is known, the confiscation can be made only after giving an opportunity to him to show cause as to why the same be not confiscated. Forfeiture is a penalty. Justice requires that it should not be imposed by a Court in the absence of a finding or an admission of guilt. In the case, in hand, admittedly no notice, as required by the proviso to subsection (2) of section 63 of the Act, was served upon Ramji Dass appellant nor any opportunity was given to him to establish his claim or right to the said vehicle. Therefore, the order of forfeiture is liable to be set aside merely on this technical flaw.

Even on merits, the attending circumstances go to show that in all probabilities the truck in question was used by Mohammad Akhtakh for transporting charas duly concealed in the tool box without the knowledge or connivance of Ramji Dass. At the time when this truck was intercepted and the documents relating thereto were seized, the permit of the said truck was meant for the entire State of U.P. only. In other words Mohammad Akhlakh was not authorised to ply this truck in the State of Haryana. This fact in itself is enough to hold that Mohammad Akhlakh was transporting charas in the said truck without the permission and knowledge of the appellant Ramji Dass. Therefore, we hold that the forfeiture order in respect of truck No. URP 9040 is liable to be set aside.

For the reasons mentioned above, Crl. Appeal No. 124DB of 1994, filed by Mohammad Akhlakh is hereby dismissed subject to the modification in the sentence indicated above. Crl. Appeal No. 149DB of 1994, filed by Ramji Dass is hereby accepted, and the order of the learned trial court forfeiting the truck No. URP 9040 is hereby set aside. The truck is already on supurdari with the appellant Ramji Dass. The supurdari stands concelled and Ramji Dass stands discharged from his bond.

JUDGMENT accordingly.