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Madhya Pradesh High Court · body

2002 DIGILAW 905 (MP)

KALLU @ DHRUV KUMAR RAI v. STATE OF M. P.

2002-09-30

AJIT SINGH

body2002
JUDGMENT : Appellant Kallu Alias Dhruv Kumar Rai has been convicted under section 20(b)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'Act') and sentenced to rigorous imprisonment for four years and a fine of Rs.4,000/- or in default of payment of fine to further undergo rigorous imprisonment for one year. He has been found guilty of possessing 21 kg and 835 gms of "Ganja" on 10-11-2000 in his house and in another house which he had taken on rent from Gudda Pachauri. Two other co-accused persons namely, Gabbar alias Pawan and Anand have been acquitted of the charges under sections 20 /28 and 29 of the Act. 2. Briefly stated the facts giving rise to this appeal are as under :- On 10-11-2000 at 18:35 hours, R. B. Sharma (P.W.15), Station Officer of Police Station, Suatala, received an information at Police Chowki outpost Barman from the Probationary Sub Inspector, Savita Chauhan (P.W.16) and her police party that they had information from an informer that the appellant was unlawfully carrying on the trade of "Ganja" from his house at village, Barmankala, and was using the house of Gudda Pachauri which had been taken on rent by him for keeping the stock of "Ganja". He was also informed that two persons from Nagpur had come to supply "Ganja" to appellant. R. B. Sharma (P.W.15) prepared a Panchnama, Ex.P1, of the said information in the presence of witnesses Vishal Singh (P.W.3) and Dilip Singh (P.W.4) and sent a copy of the same to SDO (P) R. S. Baghel (P.W.17). A wireless message was also sent to him. R. B. Sharma (P.W.15) prepared a Panchnama, Ex.P2, stating reasons for not obtaining the search warrant. He, thereafter proceeded to the house of appellant with his staff. Appellant was present in the house. He was informed about the information of his involvement in the trade of "Ganja" and was apprised of his right to be searched in the presence of a Gazetted Police Officer or Magistrate. The appellant gave consent to be searched in the presence of a Gazetted Police Officer. The consent was recorded vide Ex.P3. By that time, SDO (P) R. S. Baghel (P.W.17) also reached the place of occurrence of receiving the wireless message. The appellant gave consent to be searched in the presence of a Gazetted Police Officer. The consent was recorded vide Ex.P3. By that time, SDO (P) R. S. Baghel (P.W.17) also reached the place of occurrence of receiving the wireless message. Ex.P4 is the Panchnama, which reveals that members of the police party gave their search to the appellant in the presence of witnesses, but nothing incriminating was found from any of them. On search of the house of appellant and also the house taken on rent by him from Gudda Pachauri, 25 polythene bags and one small bag of cloth containing "Ganja" were seized. In this regard, a search memo, Ex.P4 was prepared. SDO (P) R. S. Baghel (P.W.17), by rubbing and smelling the contraband seized, opined the same as "Ganja". The Panchnama of the same is Ex. P6. Ex P8-A is the Panchnama showing that total weight of the "Ganja" seized from the appellant was 21 kg and 835 gms. From each bag, 25 gms of two samples were drawn and kept in separate packets. Thereafter, each packet of the sample was sealed and marked and handed over to the police for chemical examination. The Panchnama of the same is Ex.P9. Ex.P10 is the Panchnama of the specimen of the seal. The seizure memo of contraband and the samples prepared is Ex.P12. The same also bears the specimen of the seal. Apart from "Ganja", balance, weights, tin boxes, stapler and empty polythene bags, which were found in the house of appellant, were also seized vide Ex.P12. SDO (P) R. S. Baghel (P.W.17) prepared a Dehati Nalishi, Ex.P43, of the incident. The seized articles were deposited in the Malkhana of Police Chowki outpost Barman which is apparent from the relevant extract of the Register, Ex.P37, of the Malkhana. 26 packets of samples were sent with the letter of Superintendent of Police, Narsinghpur, for chemical examination to the Forensic Science Laboratory, Sagar, a copy of which is Ex.P39. The sealed samples, with a specimen of seal, were delivered to the Forensic Science Laboratory, Sagar, on 15-11-2000 as per receipt, Ex.P40. The report, Ex.P41, of the Joint Director of the Forensic Science Laboratory, Sagar, is dated 30-11-2000. According to this report, the samples received in the laboratory were in sealed conditions and the seal tallied with the specimen of the seal which was received in the laboratory. The report, Ex.P41, of the Joint Director of the Forensic Science Laboratory, Sagar, is dated 30-11-2000. According to this report, the samples received in the laboratory were in sealed conditions and the seal tallied with the specimen of the seal which was received in the laboratory. On analysis it was found that all the 26 samples contained "Ganja". R. B. Sharma (P.W.15) sent the report of arrest of appellant and seizure of "Ganja" made from his house to the Superintendent of Police, Narsinghpur, on 12-11-2000 vide Dak memo, Ex.P18. He thereafter recorded the statements of witnesses and filed a charge sheet in the Court on 26-12-2000. 3. The appellant abjured his guilt and pleaded that he is innocent and has been falsely implicated. 4. The trial Court, after scanning the evidence and material on record, held that the provisions of sections 42, 50, 52 and 57 were fully complied with. The trial Court also held that the appellant was found in possession of 21 kg and 835 gms. of "Ganja". 5. The learned Senior counsel Shir S.C.Datt has urged that since the provision of section 57 of the Act has not been complied with, the conviction of the appellant was illegal. According to him arrest and seizure were made by SDO (P) R. S. Baghel (P.W.17) and the report was sent by the Station Officer R. B. Sharma (P.W.15) which amounts to non-compliance of section 57 of the Act. According to him, report by R. B. Sharma (P.W.15) is no report under section 57 of the Act and even the said report has not been produced in the Court. Section 57 of the Act reads as under :- "57. Report of arrest and seizure. - 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." 6. The whole object of the provision of section 57 is to provide a check on the person making arrest or seizure and to secure fair investigation. By compliance of this section, a document is brought on record at the earliest opportunity and chances of improving the prosecution case are curtailed. The whole object of the provision of section 57 is to provide a check on the person making arrest or seizure and to secure fair investigation. By compliance of this section, a document is brought on record at the earliest opportunity and chances of improving the prosecution case are curtailed. In Gurubaksh Singh vs. State of Haryana, AIR 2001 SC 1002 , it has been held by the Supreme Court that the provision of section 57 is directive and violation of this provision would not ipso facto violate the trial or conviction. It has, however, been observed that the Investigating Officer cannot totally ignore such provision and such failure will have a bearing of appreciation of evidence regarding arrest of accused or seizure of the article. In State of Punjab vs. Balbir Singh, 1994 (3) SCC 299 , it has been held by the Supreme Court that the provisions of sections 52 to 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. The Supreme Court, in a recent decision in Sajan Abraham vs. State of Kerala, 2001 (6) SCC 692 , has reiterated that section 57 is not mandatory in nature and when substantial compliance has been made, it would not vitiate the prosecution case. 7. In the present case, R. B. Sharma (P.W.15) has very specifically deposed in para 5 of his evidence that on 12-11-2000 he sent the special report of the entire proceedings to the Superintendent of Police, Narsinghpur, vide Dak memo Ex. P18. Ramgopal Upadhyaya (P.W.5), who was posted as Reader of the Superintendent of Police, Narsinghpur, has admitted in his evidence that he did receive a "Dak" on 12-11-2000 from the Police Station, Suatala, regarding which he issued a receipt, Ex.P18, and that it bears his signature. Dak memo, Ex.P18, clearly states that it is with regard to a special report from Police Station, Suatala. The evidence of R. B. Sharma (P.W.15), that he sent the said special report, was not challenged by the appellant in the cross-examination. Section 57 of the Act does not contemplate that the special report should be produced in the Court. 8. Search and seizure were made by R. S. Baghel (P.W.17) who was SDO (P) and an immediate senior official of the Investigating Officer, R. B. Sharma (P.W.15). Section 57 of the Act does not contemplate that the special report should be produced in the Court. 8. Search and seizure were made by R. S. Baghel (P.W.17) who was SDO (P) and an immediate senior official of the Investigating Officer, R. B. Sharma (P.W.15). He had reached the place of occurrence on receiving the wireless message. Under the circumstances, merely because the special report was sent by the Investigating Officer, R. B. Sharma (P.W.15), about the proceedings of arrest and seizure, who admittedly was present at the time of arrest and seizure, and not by SDO (P) R. S. Baghel (P.W.17), in my opinion, would not amount to non compliance of the provision of section 57 of the Act. On the contrary, it amounts to substantial compliance of the said provision. The learned counsel for the appellant could not point out any prejudice having been caused to the appellant due to the sending of special report of arrest and seizure by the Investigating Officer, R. B. Sharma (P.W.15). The omission to comply with the provision of section 57 of the Act will have a bearing only on the appreciation of evidence regarding arrest and seizure. In the present case, from the evidence on record it has been fully established that a huge quantity of "Ganja" was seized from the house of appellant and, therefore, even if there was nay failure to comply with the provision of section 57 of the Act, literally that would not ipso facto vitiate the conviction of appellant. 9. The next argument of the learned counsel is that since the article seized was not produced in the Court during the trial, the conviction of appellant was illegal. Admittedly, this point was not raised during the trial. If the appellant had insisted for actual production of the seized contraband, the trial court could have called the same from the Malkhana of the Police Station. In Ladharam vs. State of Madhya Pradesh (Cri. Appeal No.2654/1988, decided on 9-8-2002) [reported] this Court, while dealing with similar argument, held that non-production of the commodity before the Court is not fatal to the prosecution case and it is not permissible to build after thought arguments on some minor infraction here or there. The learned Judge in para 19 of the judgment, held as under :- "Non-production of the commodity before the Court is not fatal to the prosecution case. The learned Judge in para 19 of the judgment, held as under :- "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 vs. State of M.P. 2002 (2) MPLJ 157 )." 10. The learned Senior Counsel Shri S.C. Datt has further urged that there is nothing on record to suggest that the samples sent for chemical examination were of the seized contraband and hence the trial court committed an illegality in convicting the appellant. R. B. Sharma (P.W.15) has deposed that on search of the house of appellant and the house which he had taken on rent, 25 polythene bags and one small bag containing "Ganja" were seized. From each bag, 25 gms. of two samples were drawn and kept in separate packets. Thereafter, each of the samples was sealed and marked. SDO (P) R. S. Baghel (P.W.17) has also deposed that the contraband seized and the samples of 25 gms each drawn were properly sealed. In their cross-examination, no suggestion was made on behalf of the appellant that the seized "Ganja" and the samples drawn were not properly sealed. Three constables at about 1:20 hours brought the seized contraband along with Dehati Nalishi and accused persons in the police station regarding which entry was made in the Sanha, Ex.P32. The seized contraband was deposited in the Malkhana and the accused persons were sent in the lock-up. He has also deposed that after depositing the seized contraband in the Malkhana at 1:25 hours he gave the receipt of the same to Head Constable No.303, Ashok Kumar Pandey (P.W.12). According to him, 26 packets were of the seized contraband and 52 packets were of samples which were all properly sealed. He has also deposed that after depositing the seized contraband in the Malkhana at 1:25 hours he gave the receipt of the same to Head Constable No.303, Ashok Kumar Pandey (P.W.12). According to him, 26 packets were of the seized contraband and 52 packets were of samples which were all properly sealed. He has further deposed that on 15-11-2000 at 7:00 hours vide Ex.P35, out of 52 sealed packets of samples, 26 packets were handed over to Constable No.299 for their chemical examination at the Forensic Science Laboratory, Sagar. He has also deposed that the same constable showed his return on 16-11-2000 vide Ex.P36 with the receipt that 26 sealed packets of samples had been deposited in the Forensic Science Laboratory, Sagar. The relevant extract of Malkhana Register, Ex.P37, dated 11-11-2000 confirms the deposit of 26 bags of seized contraband and 52 sealed packets of samples in the Malkhana. Head Constable, Ashok Kumar Pandey (P.W.12) has deposed in his evidence that on the intervening night of 10th and 11th November, 2000, at about 12:45 hours, Investigating Officer R. B. Sharma (P.W.15), had returned with the police party regarding which entry was made in the Rojnamcha, Ex.P31. It is, thus, clear that when the Investigating Officer R. B. Sharma (P.W.15) returned with his staff, total 78 sealed packets were deposited on 11-11-2000 in the Malkhana and on 15-11-2000, 26 sealed packets of samples were sent for chemical examination to the Forensic Science Laboratory, Sagar, with the letter of Superintendent of Police, Narsinghpur. The seizure memo of the contraband bears the specimen mark of the seal. The sealed samples with a specimen of seal were delivered to the Forensic Science Laboratory, Sagar, on 15-11-2000 as per receipt, Ex.P40. The report, Ex.P41, of the Joint Director of Forensic Science Laboratory, Sagar, is dated 30-11-2000. According to this report, the samples received in the laboratory were in the sealed condition and that the seal tallied with the specimen of the seal which was received in the laboratory. On analysis, it was found that all the 26 samples contained "Ganja". For the foregoing reasons, it is clearly established that what was seized from the appellant alone was sent to the Chemical Examiner and hence, I am not inclined to accept the aforesaid argument of the learned counsel for the appellant. 11. On analysis, it was found that all the 26 samples contained "Ganja". For the foregoing reasons, it is clearly established that what was seized from the appellant alone was sent to the Chemical Examiner and hence, I am not inclined to accept the aforesaid argument of the learned counsel for the appellant. 11. The next contention of the learned counsel for the appellant is that there is nothing on record to suggest that the seizure of "Ganja" contained in 22 polythene bags from the house of Gudda Pachauri, in fact, belonged to the appellant. Constable, Pradeep Chhabra (P.W.10), was a member of the police party, which raided the house of appellant. He has deposed in his evidence that on the search of the house of appellant, three polythene bags and one small bag of cloth containing "Ganja" were seized. The key of the house of Gudda Pachauri was kept in the house of appellant. The police party already had an information that the appellant was using the house of Gudda Pachauri, which he had taken on rent, for keeping the stock of "Ganja". On opening the house of Gudda Pachauri, 22 polythene bags containing "Ganja" were seized. Yogendra Kumar Pachauri (P.W.11) is brother of Gudda Pachauri. He has admitted in his cross-examination that he had given the house of his brother on a monthly rent of Rs.300/- to the appellant. He has also deposed that he had given the key of the said house to appellant. There is, thus, no iota of doubt that the appellant had taken the house of Gudda Pachauri on rent and the contraband that was seized from the said house, in fact, belonged to him. 12. The last contention of the learned counsel for the appellant is that the sentence awarded to the appellant is too harsh and the same deserves to be reduced. The appellant was found to be in possession of 21 kg and 835 gms. of "Ganja" with balance, weights, etc. He was unlawfully carrying on the trade of selling "Ganja" and for the said purpose, he had also taken a house on rent for keeping the stock of "Ganja". Under the circumstances of the case, the sentence awarded to the appellant by the trial court is just and proper. It does not require any modification. 13. The appeal fails and is dismissed.