26 May 2020


Judgments

High Court of Rajasthan

Subhash Vs. State of Rajasthan

MANU/RH/0365/2018

31.05.2018

Narcotics

Muddamal in self same condition is required to be produced in Court and non-production thereof is fatal to prosecution

In instant case, charge sheet was filed against the Accused-Appellant for the offence under Section 8/15 Narcotic Drugs And Psychotropic Substances Act, 1985 (N.D.P.S. Act) before the trial Court. Present criminal appeal has been filed on behalf of Appellant against the judgment passed by the trial Court in Sessions Case 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.

In view of the statements of PW-13 and PW-14, it is apparent that prosecution did not exhibit seized muddamal in the same condition in which it was recovered. The bags which were produced in the Court do not bear 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.

The prosecution has failed to prove that, at the time of depositing the recovered articles in Malkhana, the same were re-sealed. 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.

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. 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.

The Hon'ble Supreme Court and present 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. Further 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.

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. 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 of N.D.P.S. Act and has wrongly convicted and sentenced him The impugned judgment and sentence passed by the trial Court is quashed and set aside. Appeal allowed.

Tags : Conviction Validity Seized muddamal Non-production

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