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Madhya Pradesh High Court · body

2004 DIGILAW 216 (MP)

Babulal v. State of M. P.

2004-03-05

A.K.AWASTHY

body2004
JUDGMENT 1. Appellant-accused has filed this appeal against the judgment and order dated 27.3.1998 in Sessions Trial No. 346/96 passed by the learned VIIIth Additional Sessions Judge, Ujjain of his conviction and sentence under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act (in short "NDPS Act") for 10 years' RI with fine Rs. 1 lac and in default further RI for one year. 2. Prosecution case is that on 5.11.1996 at about 8.00 p.m., Station House Officer D.S. Athwale (PW 9) of police station, Neelganga, Ujjain, received an information from the approver that two persons are suspected of indulging in drug trafficking in Shastri Nagar, Ujjain, and the information of the approver was sent to the City Superintendent of Police, Madhav Nagar, Ujjain. After receiving the information, CSP D.S. Sagar (PW 5) reached the police station and he, along with ASI Subodh Kshotriya (PW 6) and SHO D.S. Athwale (PW 9) and the "Panch" witnesses Badrilal (PW 3) and Hemraj (PW 7), proceeded to Shastri Nagar. That at about 8.30 p.m. the two persons were seen moving in suspicious condition in Shastri Nagar, Lane No.7. They made an attempt to escape, but they were stopped by the police party. D.S. Athwale (PW 9) informed them that both are suspected of carrying the contraband and they have a light to get their search conducted either before the Magistrate or the Gazetted Officer and both of them gave consent that their search can be made by CSP D.S. Sagar (PW 5). 3. That in personal search of both the suspects nothing was recovered but in a bag carried by accused Babulal there was opium weighing 500 gms. and in the bag of accused Dharmendra there was opium weighing 700 gms. That after the weighment of the contraband they were sealed on the spot and the signatures of the accused persons along with the panch witnesses were taken on the seizure memo (Ex. P-5). It was informed to the accused that they have been arrested for carrying the opium and, thereafter, they were taken to the police station where D.S. Athwak(PW 9) has deposited both the packets in the "Malkhana" of the police station. The information of the arrest of the accused persons was sent to the higher authorities. P-5). It was informed to the accused that they have been arrested for carrying the opium and, thereafter, they were taken to the police station where D.S. Athwak(PW 9) has deposited both the packets in the "Malkhana" of the police station. The information of the arrest of the accused persons was sent to the higher authorities. That on 7.11.1996 D.S. Athwale (PW 9) took seized items from the "Malkhana" of the police station and in presence of Prahlad Amarchiya (PW 4) the two sample packets of 30 gms. each from each packet were drawn and sample packets, along with the seized packets, were sealed by the Tahsildar. That D.S. Athwale (PW 9) thereafter deposited the "Muddemal" in the "Malkhana" and one packet was sent to the FSL, Indore, for chemical examination. That FSL, Indore, vide report dated 15.11.1996, has opined that the contents of the packet were opium. After preparing the map of the spot and reacording the statement of the witnesses, separate charge sheets were filed against both the accused persons on 31.12.1996 in the Court, under section 8/18 of the NDPS Act. 4. Accused abjured the guilt and denied al1 the incriminating circumstances in his examination under section 313 of the CrPC. The defence of the accused is that the police has falsely implicated them. The accused has not led any evidence in defence. 5. The learned ttial Court has examined Head Constable Banesingh (PW 1), Head Constable Prem Narain (PW 2), "Panch" witness Badrilal (PW 3), Tahsildar Prahlad Amarchiya (PW 4), CSP Dinesh Chandra Sagar (PW 5), ASI Subodh Shrotriya (PW 6), Hemraj (PW 7) Chemical Examiner S.R. Patidar (PW 8), SHO D.S. Athwale (PW 9). The trial Court has held that the accused was found in possession of the opium weighing 500 gms. and the procedural safeguards provided under section 42, 50, 52, 55 and 57 of the NDPS Act were taken and the accused was convicted and sentenced as above. 6. The appellant has assailed the finding of the learned trial Court on the ground that the recovery of the contraband is not proved as the independent witnesses have not supported the prosecution story. That the provisions of sections 50 and 57 of the NDPS Act were not complied with and that the sample of the seized article was not taken. The appellant has assailed the finding of the learned trial Court on the ground that the recovery of the contraband is not proved as the independent witnesses have not supported the prosecution story. That the provisions of sections 50 and 57 of the NDPS Act were not complied with and that the sample of the seized article was not taken. That the prosecution has not proved that the sample which was sent for examination to the Chemical Analyst was the same which was seized from the accused. 7. D.S. Athwale (PW 9) has stated that on 5.11.1996 at about 8.05 p.m. he received information from the approver in the police station that near "Dargah" of Shastri Nagar, Ujjain two persons are sitting to transfer the opium and after recording the information in the "Rojnamcha" he gave information to CSP. D.S. Athwale (PW 9) has further stated that he went to the office of CSP Madhav Nagar along with the police force and from there the CSP D.C. Sagar (PW 5) joined the raiding party. That the "panch" witnesses Badrilal (PW 5) and Hemraj (PW 7) were also taken along with the raiding party. That near "Dargah" they found two persons, who started running seeing the police, and they were apprehended on the spot. D.S. Athwale (PW 9) has further stated that the CSP has informed them that it is suspected that they are carrying opium and, thereafter, it was also appraised that they have a right of their search either before the Magistrate or the Gazetted officer. D.S. Athwale (PW 9) has stated that both the accused gave their consent for search by the CSP and in the search of the bag which accused was carrying a plastic bag containing opium was found which on weighment was 500 gms. That in the bag of the co-accused the Opium weighing 700 gms. was found. 8. D.S. Athwale (PW 9) has stated that the accused were arrested and they were taken to the police station where "Muddemal" was kept in safe custody and the information of the arrest of the accused was sent to the SP as well as to the CSP Ujjain. was found. 8. D.S. Athwale (PW 9) has stated that the accused were arrested and they were taken to the police station where "Muddemal" was kept in safe custody and the information of the arrest of the accused was sent to the SP as well as to the CSP Ujjain. D.S. Athwale (PW 9) has stated that on 7.11.1996 the "muddemal" was taken to the Tahsildar Prahlad Amarchiya (PW 4) where he took two samples of 30 gms each from the seized packets and sample packets were sealed along with the seized item and one of the sample packet was sent to the FSL Indore. D.C. Sagar (PW 5), who was the CSP has testified that he went along with the raiding party and from the packet of the accused 500 gms. of opium was recovered and sealed. ASI Subodh Kshotriya (PW 6) has also stated that he was along with D.C. Sagar (PW 5) and D.S. Athwale (PW 9) and the opium weighing 500 gms. was recovered from the packet of the accused. Learned counsel for the appellant has failed to show any contradiction in between the statements of D.C. Sagar (PW 5), Subodh Kshotriya (PW 6) and D.S. Athwale (PW 9). Learned counsel has also failed to show any defect in their statements which show that they are interested in falsely implicating the accused by giving false evidence before the Court. 9. Panch witnesses Badrilal (PW 3) and Hemraj (PW 7) have stated that the search of the accused was not taken before them and nothing was recovered from the possession of the accused. The prosecution has declared Badrilal (PW 3) and Hemraj (PW 7) as hostile witnesses and these witnesses have admitted their signatures on Ex. P-4 to P-13, but they have not given explanation as to why these documents were signed by them merely on asking by the police officers. Consequently, it is clear that these witnesses are won over and they are hiding the truth. It is contended by the learned counsel for the appellant that the statements of the police witnesses should not be relied in view of the fact that the independent witnesses have turned hostile. The contention of the learned counsel for the appellant is against the settled preposition of law that the statements of the police witnesses are acceptable after the close scrutiny of their statement. The contention of the learned counsel for the appellant is against the settled preposition of law that the statements of the police witnesses are acceptable after the close scrutiny of their statement. It is recently observed in P.P. Fatmabee v. State of Kerala [2004 SCC (Cr.) 1] that mere fact that the "panch" witness does not support the prosecution case by itself would not make the prosecution story less acceptable, if otherwise the Court is satisfied from the material on record and evidence of the seizing authority that such seizure was genuinely made. In view of the reliable and consistent statements of CSP D.C. Sagar (PW 5), ASI Subodh Kshotriya (PW 6) and D.S. Athwale (PW 9) I have no hesitation in holding that the accused was found in possession of the opium. 10. From the statements of Dinesh Chandra Sagar (PW 5), CSP Madhav Nagar and SHO D.S. Athwale (PW 9) and the copy of the "Panchnama" Ex. D-1 and "Rojnamcha Sanha No. 374" of 5.11.1996 it is clear that the SHO after receiving the information of the approver immediately informed the CSP and the SP about the information given by the approver as provided under section 42 of the NDPS Act. D.S. Athwale (PW 9) has stated in para 17 of his examination that after the arrest of the accused, he was immediately produced in the Police Station and, thereafter, the information was sent about the registration of the case against the accused to the SP and the CSP. The accused has not challenged the aforesaid statement of D.S. Athwale (PW 9) in his cross examination. Consequently, the compliance of section 57 of the NDPS Act is also proved. 11. Learned counsel for the appellant has argued that the prosecution has not proved that the accused was informed about his right of search before the Magistrate or the Gazetted Officer. It is held in case of Meghsingh v. State of Punjab AIR 2003 SCW 4536 that the provisions of section 50 of the NDPS Act applied in case of recovery from the personal search and not in case of the recovery of the contraband from the bag, etc. 12. It is held in case of Meghsingh v. State of Punjab AIR 2003 SCW 4536 that the provisions of section 50 of the NDPS Act applied in case of recovery from the personal search and not in case of the recovery of the contraband from the bag, etc. 12. Learned counsel for the appellant has contended that after the seizure of the contraband from the accused the sample packet was not drawn on the spot in presence of witnesses and there was possibility of the fact that the contraband which was seized from the accused was not sent to the Chemical Examner. CSP D.C. Sagar (PW 5), Subodh Kshotriya (PW 6) and D.S. Athawle (PW 9) have not stated that two samples of the item seized from the accused were taken on the spot. Prahlacl Amarchariya (PW 4) has stated that on 7.11.1996 SHO D.S. Athwale (PW 9) brought sealed packet in his office and he asked him to prepare two sample packets from it. Prahlad Amarchariya (PW 4) has further stated that from the sealed packet he took out 30-30 gms opium and it was sealed in two small packets and remaining opium was also sealed in the packet and it was handed over to the SHO. D.S. Athwale (PW 9) has also stated that he has taken the seized item on 7.11.1996 to the Tahsildar and the Tahsildar has drawn 2 samples from the seized item and after sealing the sample packets one was sent for analysis to FSL Indore. 13. D.S. Athwale (PW 9) has not given any explanation that why the sample was not taken before the "panch" witnesses and the Gazetted officer at the time of seizure of the opium from the accused. From the memo Ex. P-15 prepared by Tahsildar Prahlad Amarchariya (PW 4) it is clear that the samples were not taken out in presence of the witnesses or the accused or the Gazetted officer. Head Constable Premnarain (PW 2) has deposited the seized item in 'Malkhana" on 5.11.1996 and on 7.11.1996 he has given the sealed packet at 11 AM to T.I. Athwale (PW 9). It is not explained that why Head Constable Premnarain (PW 2) has not taken the seized item to the Tehsildar for taking out 2 samples from it. 14. Head Constable Premnarain (PW 2) has deposited the seized item in 'Malkhana" on 5.11.1996 and on 7.11.1996 he has given the sealed packet at 11 AM to T.I. Athwale (PW 9). It is not explained that why Head Constable Premnarain (PW 2) has not taken the seized item to the Tehsildar for taking out 2 samples from it. 14. Te.hsildar Prahlad Amarchariya (PW 4) has not testified to the effect that the sealed sample packet was given to the SHO along with the specimen seal. The seal which was affixed on the sample was not kept in safe custody and it is not clear whether the sea] which was used on the sample packet was the same which was affixed by the Tehsildar. The Head Constable "Malkhana" Premnarain (PW 2) has stated that on 8.11.1996 he has not sent 2 sample packets to FSL Indore for examination. Prem Narain (PW 2) has not stated that the specimen seal was also sent along with the sample packet to the FSL Indore. There is no explanation of the fact that why the sample packets were kept in the "Malkhana" for 3 days by the I.O. 15. Consequently, the failure of the SHO D.S. Athwale (PW 9) to prepare the sample packet on the spot is a circumstance which creates suspicion in the proceedings conducted by him. Further, the fact that the Tehsildar has taken the 2 samples of the seized item not in presence of the "panch" witnesses or the Gazetted officer or the accused, fortifies suspicion in the fairness in drawing of the samples of the seized items. 16. It is observed by the Constitution Bench of the Apex Court in Baldeo Singh v. State of Punjab (1994) 3 SCC 299 = AIR 1994 SC 1852 that the provisions of NDPS Act are stringent in nature and the police is required to take all the steps to ensure the fairness and the transperancy in the investigation to rule out the possibility of tampering with the evidence or the alleged item seized from the accused. All the steps should be taken by seizing authorities to avoid the criticism of arbitrariness and highhandedness and the prescribed procedure should be followed scrupulously to ensure the confidence in the fairness of the seizing authorities. All the steps should be taken by seizing authorities to avoid the criticism of arbitrariness and highhandedness and the prescribed procedure should be followed scrupulously to ensure the confidence in the fairness of the seizing authorities. The mistake of the prosecution in not taking the sample of the seized item in presence of the witnesses is fatal in nature and the situation is further aggravated by the conduct of the police officer of drawing the sample of the seized item not in presence of the independent witnesses or the accused before the Tahsildar. 17. Learned counsel for the State has contended that the procedure of taking the sample after the seizure of the contraband in the police station is neither illegal nor improper and it is permissible under section 55 of the NDPS Act to draw the sample after the seized property is handed over to the officer in charge of the police station. Section 55 of the• NDPS Act casts a duty on the officer in charge of the police station to take charge and to keep in safe custody of the articles which may be seized under the Act and while doing so, the officer in charge is required to put his seal on the seized property. The seizing authority may draw the sample in the police station, but after taking the sample in the police station it is required that the SHO put his seal on the sample prepared by the seizing authority. 18. It is not proved by the prosecution that the Station House Officer has sealed the seized item. The sample was not taken by the Station House Officer as provided under section 55 of the NDPS Act. It is observed in case of Mohammad Shamim v. State [1992(1) EFR 89] that when the case property was never produced before the SHO for getting the same sealed as required under section 55 of the NDPS Act, then there is non-compliance of the mandatory provision. The peculiar feature of this case is that sample was not drawn before the SHO and the seized articles were taken not by the SHO but by the seizing authority to the Tahsildar where Tahsildar in his office has drawn two samples from the seized item. The peculiar feature of this case is that sample was not drawn before the SHO and the seized articles were taken not by the SHO but by the seizing authority to the Tahsildar where Tahsildar in his office has drawn two samples from the seized item. This procedure is in contravention of the provisions of section 55, which provides that the sample should be drawn before the SHO and the seal on the sample should be put by the SHO after the sample is drawn in his presence by the seizing authority. The non-observance of the provisions of section 55 of the NDPS Act while taking the sample and of putting seal of SHO is the most fatal lapse on the part of the prosecution and as such the accused is liable to get the benefit of the non-observance of the mandate of section 55 of the NDPS Act. 19. In the aforesaid circumstances it will be unsafe to hold that the item which was seized from the possession of the accused is the same which was examined by the Chemical Examiner of FSL Indore. Consequently, the accused is entitled for the benefit of doubt and acquittal. 20. The appeal is hereby allowed and the conviction and sentence of the appellant/accused are hereby set aside. The accused-appellant be set at liberty forthwith, if not required in any other case.