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Madhya Pradesh High Court · body

2000 DIGILAW 580 (MP)

Jitendra Singh @ Jittu Verma v. State Of M. P.

2000-06-20

S.P.KHARE

body2000
JUDGMENT S.P. Khare, J. 1. Appellant Jitendra Singh alias Jittu Verma has been convicted under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the 'Act') and sentenced to rigorous imprisonment for four years and a fine of Rs. 40,000/-. 2. It is not in dispute that the accused had surrendered in the Court on 11-2-1999 in connection with Crime No. 685 of 1.998 under Section 20 of the Act. Arvind Dhahake (P.W. 9), Station Officer of Narsinghpur Police Station had taken the accused in police custody with the permission of the Court where the accused had surrendered. 3. The prosecution case is that Arvind Dhahake (P.W. 9) interrogated the accused on 11-2-1999 at the Police Station and then the accused gave the information that he has kept five bags of Ganja in the house standing on the agricultural land belonging to Uchit Mishra in village Khairehar. The accused also made a statement that he was prepared to take the police to the said house and get the Ganja recovered. That information was recorded in the memorandum under Section 27 of the Evidence Act, as per Ex. P-12. According to the prosecution Kamlesh (P.W. 5) and Parasram (P.W. 1) were present when the accused made the disclosure. Arvind Dhahake (P.W. 9) informed D.S. Korgu (P.W. 10), Additional Superintendent of Police, Narsinghpur regarding the statement made by the accused. He reached the Police Station. Thereafter the police party went to village Khairehar accompanied by the accused. The house in which the Ganja was said to have been stored by the accused was pointed out by him. The house was searched at about 10.00 P.M. and five gunny bags containing Ganja were recovered from the said house. These were seized as per seizure memo Ex. P-8. The Ganja in these bags was weighed as per Panchanama (Ex. P-5) and it was 75 kilograms. A sample of 50 grams was taken out from each bag. The sample packets were sealed. These were sent to the Forensic Science Laboratory with the letter (Ex. P-19) and the report of the Joint Director of the Forensic Science Laboratory is Ex. P-20. According to this report the commodity in all the five bags was found to be Ganja. 4. The accused pleaded not guilty. His defence is that he has been falsely implicated. 5. These were sent to the Forensic Science Laboratory with the letter (Ex. P-19) and the report of the Joint Director of the Forensic Science Laboratory is Ex. P-20. According to this report the commodity in all the five bags was found to be Ganja. 4. The accused pleaded not guilty. His defence is that he has been falsely implicated. 5. The trial Court after appreciation of the evidence on record held that the accused was in unlawful possession of 75 kilograms of Ganja and he has been convicted and sentenced as stated at the outset. 6. In this appeal it has been argued on behalf of the appellant that it is not established beyond reasonable doubt that the accused was in possession of the Ganja which is said to have been recovered from the house in village Khairehar. 7. Arvind Dhahake (P.W. 9) has deposed that on 11-2-1999 he was Station Officer of Narsinghpur Police Station and he took the accused in police custody with the permission of the Court where the accused had surrendered himself in connection with another narcotic case. He interrogated the accused and then he disclosed that he has kept five bags of Ganja in the house belonging to Uchit Mishra which he had taken on lease from him. The information given by the accused was recorded by him in Ex. P-12 and he passed on this information to D.S. Korgu (P.W. 10) who was the Additional Superintendent of Police at Narsinghpur. D.S. Korgu (P.W. 10) has deposed that on receipt of the information from the Police Station he reached there and verified from the accused the information which he had given to the Station Officer. Thereafter he went to village Khairehar with the accused and the other police force. The Station Officer of the Police Station was also with him. At about 10.00 P.M. the accused pointed out the house where the Ganja was kept. On search of the house five bags of Ganja were recovered. Panchanama (Ex. P-3) was prepared. This Ganja was weighed and it was found that it is 75 kilograms. The weighment Panchanama is Ex. P-5. He took out the samples of 50 grams from each bag and for that he prepared the Panchanama (Ex. P-6). He sealed the samples and the bags as per specimen seal given on Ex. P-7. He prepared the seizure memo (Ex. P-8). The weighment Panchanama is Ex. P-5. He took out the samples of 50 grams from each bag and for that he prepared the Panchanama (Ex. P-6). He sealed the samples and the bags as per specimen seal given on Ex. P-7. He prepared the seizure memo (Ex. P-8). He sent the samples to the Forensic Science Laboratory on 12-2-1.999 with his letter (Ex. P-19). The report of the Forensic Science Laboratory is Ex. P-20. According to this report the commodity in the bags was found to be Ganja. 8. D.S. Korgu (P.W. 10) has stated in cross-examination also that the accused gave him the information that he has kept the Ganja in his house. Arvind Dhahake (P.W. 9) has deposed that he investigated the case further. He recorded Dehati Nalishi (Ex. P-17). 9. Keshavnand Mishra (P.W. 8) has deposed that he is Bhumiswami of 32 acres of land in village Khairehar. The land revenue Pustika (Ex. P-16) is in his name. He had given this land on lease to accused Jitendra Singh as per document (Ex. P-15). This document has been described as 'Shikminama'. According to Keshavnand Mishra (P.W. 8) the accused had signed on this Shikminama and his signatures are marked as B to B. This witness has further deposed that he himself signed on this Shikminama and his signatures are marked as A to A. This lease was for a period of one year from 15-4-1997. The accused took the lease of this land from him in the next year also. There is no separate document for the second year. He has further stated that there is a house standing on this land. The testimony of Keshavnand Mishra (P.W. 8) has been corroborated by Neelesh Jat (P.W. 6). He is an attesting witness to the document (Ex. P-15). In cross-examination he has stated that he did not see the possession of the accused after the expiry of the period of one year of the lease. The evidence of Keshavnand Mishra (P.W. 8) on the point that the possession of the accused continued in the next year also is satisfactory. It is not the case of the accused that he had handed back the possession of the land and the house to the less or after the period of lease of one year. The evidence of Keshavnand Mishra (P.W. 8) on the point that the possession of the accused continued in the next year also is satisfactory. It is not the case of the accused that he had handed back the possession of the land and the house to the less or after the period of lease of one year. Therefore, the accused must have continued in possession in the next year also as tenant at sufferance or as tenant holding over. 10. As mentioned above the accused had given the information that he has kept the Ganja in the house belonging to Uchit Mishra in village Khairehar and on the basis of the statement the Ganja was actually recovered from that house. The statement of the accused that "he had kept" is admissible in evidence under Section 27 of the Evidence Act. The Ganja was actually recovered in consequence of this information. Therefore, there is re-assuring guarantee that this Ganja was kept by the accused in that house. Section 27 of the Indian Evidence Act is founded on the principle that even though the evidence relating to the confessional or other statements made by a person while he is in the custody of a Police Officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untained and is therefore declared provable in so far as it distinct relates to the fact thereby discovered. 11. The statement of the accused in Ex. P-12 regarding the past history is not admissible. Therefore, the statement that the accused had taken the house on lease from Uchit Mishra is not legally admissible. But his statement to the effect that he has kept the Ganja in the house of Uchit Mishra is admissible under Section 27 of the Evidence Act, as in consequence of this information the Ganja was recovered from that house. The conduct of the accused in pointing out the house where the Ganja had been stored is also admissible under Section 8 of the Evidence Act. As discussed above, the possession of the accused over the five bags of Ganja in the house is further fortified by the evidence of the Bhumiswami of the land. The conduct of the accused in pointing out the house where the Ganja had been stored is also admissible under Section 8 of the Evidence Act. As discussed above, the possession of the accused over the five bags of Ganja in the house is further fortified by the evidence of the Bhumiswami of the land. It is proved from his evidence that the accused had taken the land and the house on lease for agricultural purposes. It has been proved beyond reasonable doubt that the house was in possession of the accused and therefore, the Ganja found in that house must be held to be in the possession of the accused. 12. In this case the two attesting witnesses Parasram (P.W. 1) and Kamlesh Vishwakarma (P.W. 5) have not supported the prosecution case. They have been declared hostile. So is the case of Puranlal (P.W. 2). The accused had produced the documents (Ex. D-1 to Ex. D-6) which go to show that the land on which the house is standing is recorded in the name of the Bhumiswami and in the Khasras the possession of the accused has not been shown. There was no mutation of the name of the accused on the basis of the document Ex. P-15. Such leases are not permissible under the provisions of the M.P. Land Revenue Code, 1959 and therefore, the Bhumiswami does not disclose to the Patwari that the land has been given on lease. That is the reason that the Khasra entries do not record the possession of the accused. 13. In this case the Ganja has been recovered from the house and therefore, Section 50 of the Act is not applicable (State of Punjab v. Baldev Singh, AIR 1999 SC 2378 ). The trial Court has rightly held that the accused was in unlawful possession of 75 kilograms of Ganja. It is true that the Panch witnesses have not supported the evidence of the police officers. But the testimony of D.S. Korgu (P.W. 10) the Additional Superintendent of Police is wholly reliable. He is a Police Officer of a higher rank. His evidence finds full support from the testimony of the Station Officer of the Police Station. That has been further corroborated by the evidence of the Bhumiswami of the land. But the testimony of D.S. Korgu (P.W. 10) the Additional Superintendent of Police is wholly reliable. He is a Police Officer of a higher rank. His evidence finds full support from the testimony of the Station Officer of the Police Station. That has been further corroborated by the evidence of the Bhumiswami of the land. There is documentary evidence to this effect that the land on which the house is standing was taken on lease by the accused and he continued in possession of the land and the house after the expiry of the initial period of lease of one year. The conviction of the appellant for the aforesaid offence is well founded. Keeping in view the quantity of Ganja which has been recovered from the accused, the sentence imposed upon him cannot be said to be excessive. 14. The appeal is dismissed.