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1999 DIGILAW 898 (MP)

KRISHNA KUMAR NARAYAN PRASAD JAISWAL v. STATE OF M. P.

1999-11-02

RAMESH SURAJMAL GARG

body1999
JUDGMENT R.S. Garg, J. The appellant, being aggrieved by the judgment dated 29-4-1999, passed in Special Case No. 30/1998 by the learned Special Judge (NDPS), Seoni, convicting the appellant u/s 20(b)(i) read with section 8 of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short "the Act") and sentencing him to undergo R.I. for three years and pay fine of Rs. 10,000/-; in default of payment of fine to undergo R.I. for four months, has filed this appeal. The prosecution case in brief is that on 31-5-1997 P.W. 10 B.S. Parihar received an information that the accused was dealing in contraband Ganja and had stored the same for the purposes of sale. After receiving the information, the same was recorded in Rojnamacha, the information was sent to the Supdt. of Police who advised one Ashish Kumar Meshram, Dy. Supdt. of Police to proceed to the place where the contraband was stored. Virendra Yadav, Sub-Inspector and Ashish Meshram proceeded to the house, after reaching the place gave a notice u/s 50 of the Act to the accused and after obtaining no objection, took the search. In different bags a quantity of almost about 128.550 kg. Ganja was recovered. Samples were drawn on the spot, the articles were seized and sealed. Dehati Nalish was recorded on the spot and thereafter the accused was brought to the police station. On the strength of Dehati Nalish, the first information report was recorded. Thereafter the samples were sent for analysis. After receiving the positive report, preparing certain Panchnamas and recording the statements of the witnesses, the prosecution filed the challan against the accused. The learned trial Court, on conclusion of the trial disagreeing with the defence of the accused, convicted and sentenced him as referred to above. Shri Daniel, learned counsel for appellant has raised number of the arguments which I shall deal one after the other. The first argument of learned counsel regarding non-compliance of section 50 of the Act can straightway be rejected as section 50 does not require a notice to be given to the accused or the suspect if the search of certain premises or house is required to be taken. Section 50 clearly says that when an officer is about to search a person, then if such person requires, such person shall be taken to the nearest Magistrate or a Gazetted Officer of any Department. Section 50 clearly says that when an officer is about to search a person, then if such person requires, such person shall be taken to the nearest Magistrate or a Gazetted Officer of any Department. Undisputedly the police authorities were not taking the personal search of the accused. Even otherwise, from Ex.P/6, it would clearly appear that Virendra Singh Yadav did inform the accused of his statutory right that if the accused was to require, his search could be taken by the Gazetted Officer or the Magistrate. In the latter part of Ex.P/6, the accused in his own handwriting has clearly stated that he was ready and willing to give his search to Station House Officer, Police Station, Khurai. After going through the records and Ex. P/6, either on facts or on law, I am unable to hold that section 50 of the Act was not complied with. The next argument of the learned counsel for the appellant was that the seizure was from the open place, therefore, it could not be connected with the present appellant. For this learned counsel has relied upon paragraph 11 of the statements of P.W. 9 Virendra Singh Yadav. Para 1 of his statements, if is read with paragraph 11 and Ex. P/10 the spot map, it would clearly appear that the contrabands were not recovered from the open place. A perusal of Ex.P/10 and paragraph 1 of the statements of P.W. 9 Virendra Singh Yadav would show that the contraband was kept in and was recovered from the house of the present appellant. Yet another argument of the learned counsel for the appellant which requires consideration is that before taking the search of the house of the accused, the police officers did not give their personal search, therefore, the prosecution case is not reliable. The argument can straightway be rejected being misconceived. In the present case, a small quantity of Ganja weighing about 100-200 grams or a kilo or two kilograms which could be planted was not recovered from the house of the accused. Almost about 128.550 kg. Ganja was recovered from the house of the accused. The recovery of this large quantity of Ganja from the house of the accused would certainly rule out every possibility of plantation. Almost about 128.550 kg. Ganja was recovered from the house of the accused. The recovery of this large quantity of Ganja from the house of the accused would certainly rule out every possibility of plantation. Learned counsel for the appellant submitted that as provisions of section 42 of the Act were not complied with, the appellant deserves to be acquitted. According to him, the information received by B. S. Parihar (PW 10) was not recorded separately, and as the prosecution has failed to examine Constable Ummed Singh who carried the information to the Supdt. of Police, the prosecution must fail. A perusal of section 42 of the Act would show that the officer mentioned in section 42, if receives an information through any person, then he has to take it down in writing and is also obliged to send the information to his immediate superior. Section 42 does nowhere provide the form or the manner in which such an information is required to be recorded. The language of section 42 simply says that "if he has reason to believe from personal knowledge or information given by any person and taken down in writing" would only mean that after receiving the information, it is to be taken down in writing. Section 42 does not provide that in what manner such an information is required to be recorded. Section 42 also does not provide that in what form such an information is required to be recorded. In the present case, from the statements of P.W. 10 B. S. Parihar, it clearly appears that after receiving the information, he recorded the same in Rojnamacha Sanha No. 2312 dated 31-5-1997. The said document is on record at Ex. P/41. According to P.W.10, after recording the information in Rojnamacha, he had sent the same through Constable No. 131 Ummed Singh to Supdt. of Police and about the information he recorded the information in Sanha No. 2313 which is available on record at Ex. P/42. From these two documents, it does not appear that the information was not recorded or was not sent to Supdt. of Police. True it is that Ummed Singh the Constable who took the letter to the Supdt. of Police has not been examined by the prosecution, but from Ex. P/42. From these two documents, it does not appear that the information was not recorded or was not sent to Supdt. of Police. True it is that Ummed Singh the Constable who took the letter to the Supdt. of Police has not been examined by the prosecution, but from Ex. P/43, Rojnamacha Sanha 2314, it clearly appears that after the return of said Ummed Singh, his return was also recorded in Rojnamacha Sanha. It has come on the record that the distance of Office of Supdt. of Police and the police station of P.W. 10 B.S. Parihar is hardly about 300 mtrs. Non-examination of Ummed Singh would also not affect the prosecution case because from the statements of P.W. 6 Ashish Kumar Meshram SDO (P), Lakhnadone, it clearly appears that the Supdt. of Police after receiving Ex. P/17 sent the same to this man with a direction to take an action immediately. The question posed for consideration was whether the information was sent and was received by the Supdt. of Police or not. From the statements of B.S. Parihar P.W. 10, it is proved that the information was sent and from the statements of P.W. 6 Ashish Kumar Meshram, it is proved that the Supdt. of Police received the information and forwarded the same to this witness. Learned counsel for appellant thereafter submitted that as there are overwritings in the Rojnamcha Sanhas, the prosecution case must be rejected. True it is that in some Rojnamcha Sanhas which have been marked as Ex. D/l to D/3, there are certain overwritings, but the same is not going to affect the reliability of the other Rojnamcha Sanhas. Ex. P/41 is Rojnamcha Sanha No. 2312 recorded at 14.15. Under this Rojnamcha the information was recorded. At 14.20 Rojnamcha Sanha 2313 was recorded and Ummed Singh was sent for supplying the information to the Supdt. of Police. At 14.30, Constable Ummed Singh came back to the police station after supplying the information to the Supdt. of Police and his return was recorded in Rojnamcha Sanha No. 2314. From these three documents which are recorded on 31-5-1997 between 14.15 to 14.30, it cannot be held that these are forged Rojnamchas. The search party proceeded to the spot. After their coming back, Rojnamcha Sanha No. 1009 was recorded at 8.20 which is available on the record at Ex. P/37, which records that the police force including Dy. From these three documents which are recorded on 31-5-1997 between 14.15 to 14.30, it cannot be held that these are forged Rojnamchas. The search party proceeded to the spot. After their coming back, Rojnamcha Sanha No. 1009 was recorded at 8.20 which is available on the record at Ex. P/37, which records that the police force including Dy. Supdt. of Police Meshram and other officers after seizing the said contraband came back to the police station. Thereafter under Sanha No. 1010 Ex. P/36, the offence was registered. A perusal of these two documents would clearly show that any overwriting in the earlier or subsequent Rojnamchas that is before recording Sanha Nos. 2312, 2313 and 2314 would not affect the prosecution case because Ex. P/36 and P/37 recorded on 31-5-1997 prove the genuineness of these Sanhas. Learned counsel for the appellant next contended that from Ex. P/8 and P/11, it would appear that infact these documents were prepared on 30-5-1997 and later on were forged to show that these were prepared on 31-5-1997. True it is that in column No. 4 of Ex. P/8, the date of seizure is shown as 30-5-1997. The Court cannot lose sight of the fact that in column No. 1, the date of the seizure is shown as 31-5-1997. On the back page of Ex. P/8 under the signatures of Virendra Singh Yadav, his designation is given and the date of the seizure is shown as 31-5-1997. The mentioning of dates at these three different places, if is read with Rojnamcha Sanhas prepared on 31-5-1997, would only show that the property was seized on 31-5-1997. In column 1 and column 4 of Ex P/11, the dates are shown as 30-5-1997, but on the back side of Ex. P/11 under the signatures of Virendra Singh, the date is shown as 31-5-1997. Ex. P/8, P/11, P/41 to P/43, P/36, P/37 and Ex. P/22 (Dehati Nalish) all are sequences of one transaction. The police authorities received the information, sent the information to the higher authorities, SDO (P) was authorised by the Supdt. of Police, the SDO (P) came to the spot, in his presence the consent of the accused was taken, contrabands were seized, samples were drawn, and thereafter the accused and the contrabands were brought to the police station. The first document and the last document that is Ex. of Police, the SDO (P) came to the spot, in his presence the consent of the accused was taken, contrabands were seized, samples were drawn, and thereafter the accused and the contrabands were brought to the police station. The first document and the last document that is Ex. P/41 and P/22, clearly show that the entire exercise took place on 31-5-1997. If certain documents which were prepared in between contain some date other than 31-5-1997 at some places, the benefit cannot be given to the accused. The wrong mention of the dates would simply show that the officer who had prepared the documents was either careless or was not discharging his duties properly, but wrong mention of the date would not be sufficient to hold that the documents were prepared on 30-5-1997, and were later on forged to meet with the other documents. From the statements of P.W. 10 B.S. Parihar, it is clear that he had recorded the information on 31-5-1997. From the statements of P.W. 6 Ashish Meshram, it again appears that on 31-5-1997, he received the information from the Supdt. of Police to go for the raid. From the statements of P.W. 9 Virendra Singh Yadav the person who had prepared the documents, it appears that he received the information and direction to leave for the spot on 31-5-1997, and on the same date, he had prepared the documents. On the strength of these documents and the oral evidence to support the documents, it cannot be held that the seizure was made on 30-5-1997 and later on the documents were forged on 31-5-1997. Learned counsel for the appellant last submitted that as the independent witnesses have not supported the prosecution case, the prosecution must fail. It is true that P.W. 2 Dhaniram and P.W. 3 Narsingh Chandel did not support the prosecution, but their hostility would not affect the prosecution case because from the documents and the statements of the prosecution witnesses, it clearly appears that the accused had stored 12.8.550 kg. Ganja in his possession, the Ganja was recovered from his exclusive possession, that is from his house, the procedure was properly followed, the samples were sent for analysis and the laboratory had given the positive report about the contrabands. The law does not require that before relying upon the statements of the police witnesses, the Court must always look for some corroboration. The law does not require that before relying upon the statements of the police witnesses, the Court must always look for some corroboration. It is not even a rule of prudence that before reliance can be placed upon the statements of the Police Officers, the Court must look for some independent corroboration. The law only requires that if a person is reliable and his statements are truthful, then without going for any corroboration, the Court can always rely upon the statements of such a witness. In the present case, the facts floating on the surface and the documents prepared during the course of enquiry and investigation, clearly show that contraband was recovered from the accused. After giving my thoughtful consideration to the evidence available on the record, I am unable to hold that the Court below was unjustified in recording the conviction of the appellant. The appeal deserves to and is accordingly dismissed. Appeal dismissed. Final Result : Dismissed