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Madhya Pradesh High Court · body

2002 DIGILAW 630 (MP)

Gopal v. State of M. P.

2002-07-05

S.B.SAKRIKAR

body2002
JUDGMENT 1. Accused-appellant has directed this appeal against the judgment dated 8.1.1997 rendered by Sessions Judge, Mandsaur in Special ease No. 80/1996, thereby convicting appellant Gopal u/s 8/18 of the NDPS Act and sentencing to undergo 10 years' RI, and one lakh rupees' fine. In case of default of payment of fine, further imprisonment for two years. 2. Briefly stated, the facts of the case are that on 2.4.1996, ASI Shri Mohd. Sultan Qureshi (PW5) of PS Piplia Mandi, district Mandsaur received information through mukbir with regard to possession of opium in the house of accused-appellant Gopal situated at Jadu Ki Nagri, Babukheda. The information was reduced into writing in presence of the witnesses. On the basis of the information, house of the accused-appellant situated at Jadu Ki Nagari, Babukheda was searched same day in presence of the panch witnesses and the constable accompanied by ASI Shri Qureshi. In the alleged search, 2.450 kg of opium was recovered from the house of the accused, buried in one room. The alleged opium was seized and two samples were taken and seized separately for sending to chemical analyst. The accused-appellant was arrested on the spot and the accused alongwith the seized contraband article was taken to PS Piplia Mandi. The seized article was kept in the malkhana of the said police station. An FIR was registered at the police thana Piplia Mandi and after completion of the usual investigation an, receipt of the report of public analyst of Regional Forensic Science Laboratory Indore, a challan was filed. 3. The accused-appellant was charge, for the alleged offence punishable u/s 8/18 of the NDPS Act and after trial, convicted, and sentenced for the alleged offence a indicated above. 4. I have heard Shri C.R. Joshi, LC appearing for the appellant and Shri M. Upadhyaya, DGA for the respondent State. 5. LC for appellant contended that in this case, the investigation officer Shri Qureshi failed to comply with the mandatory provisions of section 42 of the Act. The LC submitted that compliance of the aforesaid provision of the NDPS Act is mandatory and non-compliance caused prejudice to the accused and he deserves acquittal on this very ground. 5. LC for appellant contended that in this case, the investigation officer Shri Qureshi failed to comply with the mandatory provisions of section 42 of the Act. The LC submitted that compliance of the aforesaid provision of the NDPS Act is mandatory and non-compliance caused prejudice to the accused and he deserves acquittal on this very ground. Reliance is placed on the decision of the Apex Court in case of State of Punjab v. Balbir Singh [ (1994)3 SCC 299 ] and in case of State of Punjab v Baldev Singh [ (1999) 6 SCC 172 ]. 6. As against this, the learned DGA for the State submitted that as per statement of ASI Shri Qureshi, no arrangement for communication was available in the village Babukheda, as such, the information as required u/s 42(2) of the Act could not be sent to the officer superior to him. In view of the aforesaid fact, even if a non-compliance of section 42(2) is established, is not fatal to the prosecution and the accused-appellant cannot be acquitted on this ground. 7. Considering the submissions of the L.C. and on perusal of the record as also the statement of ASI Shri Qureshi (PW5) it emerged that on the date of the incidence. on receiving the information through mukbir with regard to possession of opium with the accused in his house situated in Jadu Ki Nagri, Babukheda, it was reduced into writing in presence of the panch witnesses. The information which was reduced into writing is marked as Ex.P-l. As such, so far as compliance of provisions of section 42(1) is concerned, it stands proved from the evidence on record. The information which was reduced into writing is marked as Ex.P-l. As such, so far as compliance of provisions of section 42(1) is concerned, it stands proved from the evidence on record. But in view of the provisions of section 42(2) of the Act, it is necessary for an empowered officer who takes down any information in writing or records the grounds under the provisions of section 42(1), should forthwith send a copy thereof to his immediate official superior In this case, from the statement of Shri Qureshi (PW 5), it is proved that the said provision was not at all complied by the empowered officer receiving the information under section 42(1) of the Act Shri Qureshi (PW 5), in para No. 11 of his cross-examination, has admitted that he did not send the information received from mukhbir and reduced into writing to his superior officer as no communication was available from the said village for sending of such information. The reasons for non-compliance of the mandatory provision cannot be considered to be reasonable, in view of the facts of the case from the alleged village Jadu Ki Nagri Baiukheda, PS Piplia Mandi is situated only at a distance of kms and the concerned police officer was accompanied by sufficient number of constables through whom the information which was reduced into writing would have been forwarded to the officer superior to Shri M.S. Qureshi (PW 5). In view of the evidence and fact established in this case, it is proved that Shri M.S. Qureshi failed to comply with the provisions of section 42(2) of the Act. 8. In Balbir Singh's case (supra), the Apex Coul1 has held that: "Vis 42(2) of the Act, the empowered officer who takes down any information in writing or records the grounds under proviso to section 42 (1) should forthwith send a copy thereof to his immediate official superior. If there is total non-compliance of this provision the same affects the prosecution case. To that extent, it is mandatory." 9. In the present case, as per statement of Shri M.S. Qureshi (PW 5), the provisions of section 42 (2) are totally ignored; as such, it affects the prosecution case and the accused deserves acquittal. 10. If there is total non-compliance of this provision the same affects the prosecution case. To that extent, it is mandatory." 9. In the present case, as per statement of Shri M.S. Qureshi (PW 5), the provisions of section 42 (2) are totally ignored; as such, it affects the prosecution case and the accused deserves acquittal. 10. The other contention of the L.C. for the appellant is that the prosecution has failed to prove that after the alleged seizure of the contraband article alongwith the samples, in what condition the article were preserved in the malkhana of the PS Piplia Mandi. The prosecution has no examined any of the witnesses who received the seized articles from Shri M.S Qureshi and kept these articles in the safe custody of the malkhana of the PS. A register maintained at the PS with regard to properties kept in the malkhana or taken out from the malkhana was also no produced. The alleged search and seizure was held on 2.4.1996 and the bulk of the seized article alongwith the challan was submitted in the Court concerned after about three months of the alleged search on 1.7.1996. There is no evidence available on the record that during this long period of about three months, the bull of the article seized was kept in what condition and in whose custody. The aforesaid facts also caused prejudice to the accused and make the report of the public analyst Ex. P-14 doubtful and on this count also, accused deserves acquittal. 11. Considering the submissions of the L.C. and on perusal of the record, the contention of the L.C. for appellant deserves to be accepted. In the present case, the prosecution has only established the fact that after the alleged seizure, the bulk quantity of the alleged contraband article alongwith the sample was submitted at PS Piplia Mandi same day. But after submitting the seized articles, where they were kept and in what condition, is no established from the evidence of the prosecution. It is pertinent to note that the bulk quantity of the alleged seized contraband article was deposited with the Court alongwith the challan after a lapse of about three months. In view of the aforesaid facts, the report of the chemical analyser becomes doubtful and on this ground also, appellant-accused deserve acquittal. 12. It is pertinent to note that the bulk quantity of the alleged seized contraband article was deposited with the Court alongwith the challan after a lapse of about three months. In view of the aforesaid facts, the report of the chemical analyser becomes doubtful and on this ground also, appellant-accused deserve acquittal. 12. In the result, the appeal filed of behalf of the accused-appellant deserves to be allowed and it is accordingly allowed The impugned judgment of the trial Court convicting and sentencing the appellant u/s 8/18 of the NDPS Act is set aside and he is acquitted of the alleged charges levelled against him. The accused-appellant is in jail. He shall forthwith be released from custody in this case, if his detention is not required in any other case.