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Madhya Pradesh High Court · body

2002 DIGILAW 764 (MP)

Ladharam, Bachulal Sindhi v. State of M. P.

2002-08-09

S.P.KHARE

body2002
Judgment ( 1. ) APPELLANT Ladharam has been convicted under Section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the Act) and sentenced to rigorous imprisonment for ten years and to pay a fine of Rs. 1,00,000. In default of payment of fine, he has been sentenced to rigorous imprisonment for two years. ( 2. ) THE prosecution case is that on 17/7/1997, S. K. Shrivastava (P. . W. 3), Sub-Inspector of Police of Seoni Police Station received information that accused Ladharam is selling brown sugar in his Pan shop. He recorded this information and sent a copy of the same to the S. D. O. police as per Ex. P-11. He proceeded to the shop of the accused with his staff. Accused Ladharam was sitting in his Pan shop known as "pappu Pan centre". He apprised him of his right to be searched in the presence of a gazetted officer or Magistrate. The accused gave his consent to be searched by him in the presence of a gazetted officer. That was recorded in Ex. P-2. On search of the person of the accused nothing incriminating was found. Thereafter the accused was informed that the search of his Pan shop is to be taken and then the accused told him that the shop can be searched in the presence of a gazetted officer. That was recorded in Ex. P-5. On search of the Pan shop a small bottle was recovered which contained brown sugar. In this connection the search memo was prepared and that is Ex. P-4. Brown sugar including weight of the bottle was 1. 850 grams. In this bottle the quantity of brown sugar was 0. 670 gram. It was seized as per seizure memo Ex. P-8. It was sealed, The accused was arrested as per Ex. P-9. The sealed bottle was deposited in the Malkhana of Seoni Police Station. The crime was registered as per Ex. P-12, On 5. 8. 1997 the sealed bottle was sent to the Director, Forensic Science Laboratory, Sagar with the letter of the Superintendent of Police, Seoni a copy of which is Ex. P-13. The sealed bottle was delivered to the Forensic Science Laboratory on 11/8/1997 as per receipt Ex. P-14. The report of the Assistant Chemical Examiner of the Forensic Science Laboratory is dated 18/9/1997 (Ex. P-18 ). P-13. The sealed bottle was delivered to the Forensic Science Laboratory on 11/8/1997 as per receipt Ex. P-14. The report of the Assistant Chemical Examiner of the Forensic Science Laboratory is dated 18/9/1997 (Ex. P-18 ). According to this report the bottle was received in the Laboratory in sealed condition and the seal tallied with the specimen of the seal which was received in the Laboratory. On analysis it was found that the contents of the bottle contained "diacetylmorphine". The charge-sheet was filed in the Court. ( 3. ) THE accused pleaded not guilty. His defence is that he is not the owner of the Pan shop and he is running a Kirana shop. ( 4. ) THE trial Court after appreciation of the evidence on record held that the provisions of Sections 42, 50 and 55 of the Act were fully complied with. It was held that the appellant was found in possession of brown sugar, The trial Court has observed that provision of Section 57 of the Act was substantially complied with as the senior officer M. S. Verma (P. W. 4) who is the S. D. O. was present at the time of search, seizure and arrest. On these findings the appellant has been convicted and sentenced as stated above. ( 5. ) IN this appeal it has been argued that (a) it is not established beyond reasonable doubt that the accused was in possession of any brown sugar as the Panch wintesses have not supported the prosecution case and the evidence of the Sub-Inspector is contradictory to the testimony of two police constables who have been examined as witnesses in this case and the presence of the S. D. O. police at the time of search and seizure is doubtful; (b) Section 55 of the Act has not been complied; (c) there is total violation of Section 57 of the Act; (d) the specimen of the seal was not sent to the Forensic Science Laboratory and the sealing of the bottle at the time of the alleged recovery was not according to law and (e) the alleged bottle of the brown sugar has not been produced before the trial Court. These are the points which arise for decision in this appeal. ( 6. These are the points which arise for decision in this appeal. ( 6. ) IT has been argued on bahalf of the prosecution that the conviction of the appellant is well merited and the procedural safeguards were fully observed. ( 7. ) POINT (a): S. K. Shrivastava (P. W. 3), Sub-Inspector of Police has deposed that he received information at Seoni Police Station that accused Ladharam is selling brown sugar in his shop. He recorded this information and sent the same to the S. D. O, Police, a copy of which is Ex. P-11. Thus there has been compliance with Section 42 of the Act. It has not been challenged during the course of hearing of this appeal. ( 8. ) S. K. Shrivastava (P. W. 3) has further deposed that accused Ladharam was sitting in his Pan shop. He apprised him of his right to be searched in the presence of a Magistrate or gazetted officer. The notices given by him to the accused are Ex. P-2 and Ex. P-5. On these notices the accused has given his consent to be searched by the Investigating Officer in the presence of a gazetted officer. This is in conformity with Section 50 of the Act, On search of the person of the accused nothing incriminating was found and the Panchnama in that respect is Ex. P-3. Thereafter the search of the Pan shop of the accused was taken and then a plastic bottle was found which contained brown sugar. He prepared the search memo in this respect and that is Ex. P-4. The bottle was weighed as per Ex. P-7 and it was found to be 1. 850 gram. According to this Panchnama the quantity of brown sugar in this bottle was 0. 670 gram. It was seized as per seizure memo Ex, P-8. This bottle was sealed. In cross-examination also he has stated that accused Ladharam was sitting in his shop when he reached there. The shop of the accused is a part of his house. M. S. Verma (P. W. 4) was S. D. O. police. He has deposed that on receipt of the information Ex. P-11 he gave direction to the Sub-Inspector to reach the Pan shop of the accused. He also proceeded to that shop and according to his evidence also accused Ladharam was there. M. S. Verma (P. W. 4) was S. D. O. police. He has deposed that on receipt of the information Ex. P-11 he gave direction to the Sub-Inspector to reach the Pan shop of the accused. He also proceeded to that shop and according to his evidence also accused Ladharam was there. On search of the shop of the accused a bottle was recovered which contained brown sugar, That was seized as per Ex. P-8 and this seizure memo was signed by him. This bottle was sealed on the spot. ( 9. ) RAMESH Singh (P. W. 1) and Nandkishore Mishra (P. W. 5) were the police constables who had accompanied the Sub-Inspector. They have lent a general corroboration to the testimony of the Sub-Inspector. Ramesh Singh (P. W. 1) in his cross-examination has stated that the accused was in his house and he was called by the Sub-Inspector. According to Nandkishore Mishra (P. W. 5), the shop belongs to accused Ladharam and the Panchnama which was prepared on the spot In this respect is Ex. P-1. There Is no material discrepancy in the statement of the Sub-Inspector and the two police constables. The shop is a part of the house of the accused and the name of the shop is "pappu pan centre". It has been argued that this shop belongs to Pappu Chaurasia. Simply throwing such a suggestion in the cross-examination of the witnesses is of no use. It was for the accused to establish as to who is Pappu Chaurasia and In what capacity he was occupying the said shop. It appears that the name of Pappu Chaurasia has been suggested without any basis. He has not been examined by the accused as a witness. There is no other material to show even remotely that any person other than the accused was the owner or in possession of the Pan shop, Therefore, this Court Is of the opinion that this Pan shop was owned and possessed by accused Ladharam. ( 10. ) SHYAM Bihari (P. W. 2) was the Panch witness, He has admitted his signatures on the documents Ex. P-1 to Ex. P-9 but he claims that nothing was done in his presence. He has been declared hostile. ( 10. ) SHYAM Bihari (P. W. 2) was the Panch witness, He has admitted his signatures on the documents Ex. P-1 to Ex. P-9 but he claims that nothing was done in his presence. He has been declared hostile. There was one more Panch witness as appears from the seizure memo and his name was Raja, but he has not been produced by the prosecution as a witness. On a careful scrutiny of the evidence of the Sub-Inspector corroborated by the S. D. O. Police and the two constables it is found that it is not a case of false implication. From the evidence of these witnesses it is fully established that a bottle containing brown sugar was recovered from the shop of the accused. The testimony of the police officers can form the basis of conviction if it is fully reliable. This court has held in Vinod Kumar Shukla v. State of M. P, 1999 (2) MPLJ 374 : 1999 Cri. LJ. 4507 that the principle which is deducible from the decisions of the Supreme Court on the point in issue is that legally conviction can be based on the sole testimony of the police officer who conducted the search and seizure. That cannot be disbelieved on the ground that no independent witness was examined to prove the search or that witness turns hostile in the court. In other words if the evidence of the police officer is reliable, inspires confidence and is of sterling character the same can form the basis for conviction. In case the evidence is not fully reliable or is of doubtful character, it would be difficult to base conviction on his evidence. Much depends upon the intrinsic worth of the evidence of the police officer. Here also the salutary principle that evidence is to be weighed and not counted and the quality of the evidence is more important than the quantity assumes significance. Therefore, if the testimony of the police officer is of unimpeachable character and he is honest and truthful that can be accepted without any corroboration by the independent witness. This will essentially be a question of fact in each case whether the evidence of such an officer passes through this test or not. It is well known that "there is no such thing as a judicial precedent on facts". This will essentially be a question of fact in each case whether the evidence of such an officer passes through this test or not. It is well known that "there is no such thing as a judicial precedent on facts". Recently in P. P. Beeran v. State of Kerala, AIR 2001 SC 2450 it has been held by a three judge Bench of the Supreme Court that the evidence of the Sub-Inspector, even if not corroborated by any other, can be made the sole basis for conviction. Similarly in State Govt. of NCT of Delhi v. Sunil and Anr. , (2001) 1 SCC 652 it has been observed that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it, Its hangover persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. ( 11. ) IN view of the evidence available on record, which has been discussed above, it is held that the recovery of the bottle containing brown sugar from the shop of the accused is fully established. This bottle was in his possession. ( 12 ) ). Point (b): S. K. Shrivastava (P. W. 3) has deposed that he had sealed the bottle on the spot and it was deposited by him in the Malkhana of the Police Station. It was recorded by him in the FIR Ex. P-12. Ramesh Maneshwar (P. W. 6) was the Head Constable at Seoni Police Station. He has produced the Malkhana register in the court at the time of his evidence and he has shown that as per Serial No. 264 of this register this bottle was deposited in the Malkhana. According to him this bottle was sent to the Forensic Science Laboratory on 10/8/1997. The copy of the letter dated 5/8/1997 Ex. P-13 has been proved by the Sub-Inspector. According to him this bottle was sent to the Forensic Science Laboratory on 10/8/1997. The copy of the letter dated 5/8/1997 Ex. P-13 has been proved by the Sub-Inspector. The sealed bottle was sent through the Superintendent of Police, Seoni to the Director, Forensic Science Laboratory, Sagar. The acknowledgment of the receipt of the bottle by the Forensic Science Laboratory is Ex. P-14. The report of the Forensic Science Laboratory is dated 18/9/1997 and it is Ex. P-18. In this report it is clearly mentioned that the bottle was received in the Laboratory in sealed condition and the seal tallied with the specimen of the seal. The letter dated 5/8/1997 Ex. P-13 shows that the bottle containing brown sugar weight of which was 1. 850 gram was sent to the Laboratory. It appears that the quantity of brown sugar in the bottle recovered from the possession of the accused was so small that no separate sample was taken and whole of the contents of the bottle in sealed condition was sent to the Laboratory. The evidence of the Sub-Inspector in para 3 that the sample was sealed separately and the remaining contents separately does not appear to be correct. He has given this deposition as a routine measure. The seizure memo Ex. P-8 shows that the bottle containing brown sugar weighing 0. 670 gram was sealed and no separate sample was taken. The reason is obvious. The quantity of brown sugar in the bottle was so small that no sample was drawn from it. The bottle in sealed condition was sent to the Laboratory and the contents of the bottle were analysed there. It was found that there was diacetylmorphine in the contents of the bottle. ( 13. ) SECTION 55 of the Act provides that an officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. It is clear from this section that the officer-in-charge of the police station shall allow the officer who may accompany the article to affix his seal to the samples. But if the article is already sealed, there is no question of sealing it again. Again if such officer takes sample from the commodity which has been deposited, then it shall be sealed with a seal of the officer-in-charge of the police station. Therefore, the argument in the present case that it was necessary for the officer-in-charge to affix his seal on the bottle deposited by the Sub-Inspector is not acceptable. There is no such legal requirement that the sample which is already sealed by the seizing officer and which has been deposited in the Malkhana should again be sealed by the officer-in-charge of the police station. ( 14. ) POINT (c): Section 57 of the Act provides that whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. In the present case it is admitted that the report of the arrest and seizure by the Sub-Inspector was not sent in writing by him to his immediate superior official. But it is found that immediate superior official, who was S. D. O. Police, was present on the spot when the seizure and arrest were effected. On return to the police station the Sub-Inspector has recorded the FIR Ex. P-12 giving the full details of search, seizure and arrest and that has also been recorded in the Rojnamcha No. 1387, a copy of which is Ex. P-17. There has been substantial compliance with Section 57 of the Act. In Gurbax Singh v. State of Haryana AIR 2001 SC 1002 it has been held by the Supreme Court that the provision of Section 57 is directory and violation of this provision would not ipso facto violate the trial or conviction. However, Investigating Officer cannot totally ignore such provision and such failure "will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. However, Investigating Officer cannot totally ignore such provision and such failure "will have a bearing on appreciation of evidence regarding arrest of the accused or seizure of the article. " Earlier in State of Punjab v. Balbir Singh (1994) 3 SCC 299 it has been held that the provisions of Sections 52 and 57 which deal with the steps to be taken by the officers after making arrest or seizure under Sections 41 to 44 are by themselves not mandatory. This legal position has been reiterated recently again by a three-judge Bench in Sajan Abraham v. State of Kerala (2001) 6 SCC 692 where it has been observed that in construing any facts to find, whether the prosecution has complied with the mandate of any provision which is mandatory, one has to examine it with a pragmatic approach. The law under the aforesaid Act being stringent to the persons involved in the field of illicit drug traffic and drug abuse, the legislature time and again has made some of its provisions obligatory for the prosecution to comply with, which the courts have interpreted it to be mandatory. This is in order to balance the stringency for an accused by casting an obligation on the prosecution for its strict compliance. The stringency is because of the type of crime involved under it, so that no such person escapes from the clutches of the law. The court however while construing such provisions strictly should not interpret them so literally so as to render their compliance, impossible. However, before drawing such an inference, it should be examined with caution and circumspection, In other words, if in a case, the following of a mandate strictly, results in delay in trapping an accused, which may lead the accused to escape, then the prosecution case should not be thrown out. ( 15. ) IN the present case, as noticed earlier, Section 57 of the Act was not complied with in the sense that no written report of the arrest and seizure was sent by the Sub-Inspector to his immediate superior official, but the said officer was present on the spot when the seizure and arrest were made and the fact of arrest and seizure was recorded in the FIR and in the Rojnamcha. Thus mere omission to send a written report to the superior official is not fatal because it has been ruled firmly that provision in Section 57 of the Act is not mandatory. The omission to comply with this provision will have a bearing only on the appreciation of the evidence regarding arrest and seizure. In the present case from the evidence on record it has been fully established that brown sugar was recovered from the possession of the appellant and, therefore, even if there was failure to comply with the provision of Section 57 literally that could not vitiate the conviction. ( 16. ) POINT (d): As discussed above the bottle containing brown sugar was sealed by the Sub-Inspector on the spot. It is argued on behalf of the appellant in this appeal that it is not clear which was the seal which was affixed on the bottle. That should have been clarified during the course of the trial when the Sub-Inspector was in the witness box. There was no cross-examination of the Sub-Inspector on this point. Therefore, it must be presumed that the Sub-Inspector must have sealed the sample with the seal of the police station. The sealed bottle was sent to the Forensic Science Laboratory by the Superintendent of Police with the letter dated 5. 8. 1997 (Ex. P-13 ). According to the report Ex. P-18 the seal was found to be intact and it tallied with the specimen seal. There is no cross-examination of the Sub-Inspector on this point also that the specimen of the seal was not sent to the Laboratory. ( 17. ) IT has been held by this court In Jitendra v. State of M. P. , 2002 (2) MPLJ 157 that the presumption under Section 114 illustration (e) of the Evidence Act that all official acts have been done rightly and regularly attaches to the acts of the police officers also as in respect of other officers, It is not proper approach to proceed with doubt or disbelief unless there is something to excite suspicion. The Supreme Court has also recently observed in Devender Pal Singh v. State of NCT of Delhi and Anr. , (2002) 5 SCC 234 that there is a statutory presumption under Section 114 of the Evidence Act that judicial and official acts have been regularly performed. The Supreme Court has also recently observed in Devender Pal Singh v. State of NCT of Delhi and Anr. , (2002) 5 SCC 234 that there is a statutory presumption under Section 114 of the Evidence Act that judicial and official acts have been regularly performed. The accepted meaning of Section 114 (e) is that when an official act is proved to have been done, it will be presumed to have been regularly done, The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. ( 18. ) IT cannot be assumed that there was tampering of the seal of the bottle before it was sent to the Forensic Science Laboratory. On the other hand, it must be presumed that the bottle which was sealed at the time of the recovery must have been sent to the Forensic Science Laboratory. ( 19. ) POINT (e): This point was not raised during the trial. If the accused had insisted for actual production of seized bottle in the court, the trial Court could have called the same from the police station. Non-production of the commodity before the Court is not fatal to the prosecution case. It is not permissible to build after-thought argument on some minor infraction here or there. There is Section 465 in the Code of Criminal Procedure to meet such situations, Every irregularity in the investigation or trial does not affect the conviction unless it is shown that a serious prejudice has been caused to the accused resulting in failure of justice. The objection with regard to non-production of the seized material in the court could have been raised during the trial, Section 465 (2) of the Code now does not permit to raise such objection. Technicality should not triumph over the substance is the cardinal rule even in the field of criminal law. [jitendra v. State of M. P. , 2002 (2) MPU 157. ] ( 20. ) THE learned counsel for the appellant apart from some of the decisions referred above has cited some decisions of other High Courts which do not appear to be directly relevant for the decision on the points which have arisen in the present appeal. [jitendra v. State of M. P. , 2002 (2) MPU 157. ] ( 20. ) THE learned counsel for the appellant apart from some of the decisions referred above has cited some decisions of other High Courts which do not appear to be directly relevant for the decision on the points which have arisen in the present appeal. There are some decisions which are in conflict with the law laid down by the Supreme Court which have been discussed above. The learned counsel for the appellant has also placed reliance on Baliraj v. State of M. P. , 1998 (2) EFR 37 which is a decision of this Court on Section 57 of the Act. Thereafter Section 57 of the Act has been interpreted by the Supreme Court, in cases of Gurbax Singh and Sajan Abraham (supra) and the law laid down in those cases is being followed in the present appeal. There are some decisions which have been cited were rendered on different set of facts and, therefore, they are not applicable to the present case. In the result the appeal is dismissed.