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2004 DIGILAW 54 (CHH)

STATE OF M. P. v. RAMCHANDRA JAISWAL

2004-03-12

A.K.AWASTHY

body2004
JUDGMENT 1. Appellant-State has filed this appeal under section 378 of the CrPC, against the judgment and order dated 9-3-1999, in special case No. 22/98, passed by Shri N.K. Satsangi, Special Judge NDPS Act Ujjain, acquitting accused Ramchandra Jaiswal from the offence under section 8 read with section 15 of the Narcotic Drugs and Psychotropic substances Act (for short 'NDPS Act') from the allegation of possessing the poppy hask weighing 5.850 Kgs. 2. Prosecution case is that on 16-7-1998 at about 5.45 p.m. when SHO Rajesh Sharma (PW4) was patrolling with constable Pradeep, Shreeram and Kamalsingh, then near the 'Dargah' on Tarana-Ujjain road the accused, who was going on a cycle, was on suspicion intercepted and froma raxine bag in his cycle the poppy hask 5.850 Kgs. Was recovered and two samples of 250-250 Gms. Were taken and sealed therein. That the accused was apprised the ground of his arrest and after arrest the accused along with the 'Muddemal' was taken by SHO Rajesh Sharma (PW 4) to the police station. 3. That the seized item along with the sample packet were handed over by constable Kishanlal (PW1) to head constable 'Malkhana' Kanhaiyalal (PW 3) to keep the property in the 'Malkhana' and he made the entry in the 'Malkhana’ register (Ex. P-3). The case was registered against the accused and the investigation was handed over to SHO Satish Agnihotri (PW 5) of P.S. Makdon, who has recorded the statements of the witnesses and the sample packet was sent by him for examination through constable Kishanlal (PW1) to FSL Indore. That in the report of FSL Indore (Ex. P-28) dated 31-7-1998, it was opined that the content of the sample packets was opium poppy capsule known as 'DODA'. Investigating Officer Satish Agnihotri (PW 5) after usual investigation has filed the charge sheet in the Court of Special Judge NDPS Act Ujjain on 11-9-1998 against the accused under section 8/15 of the NDPS Act. 4. The accused abjured the guilt and he has denied the statements of the prosecution witnesses under section 313 of the CrPC and pleaded false implication. The accused has not examined any witness in defence. 5. The prosecution to bring home the guilt against the accused has examined constable Kishanlal (PW1), Ratanlal (PW 2), head constable Kanhaiyalal (PW 3), SHO Rajesh Sharma (PW4) and investigating officer Satish Agnihotri (PW 5). The accused has not examined any witness in defence. 5. The prosecution to bring home the guilt against the accused has examined constable Kishanlal (PW1), Ratanlal (PW 2), head constable Kanhaiyalal (PW 3), SHO Rajesh Sharma (PW4) and investigating officer Satish Agnihotri (PW 5). The learned trial Court has held that the Seizing Officer Rajesh Sharma (PW 4) has not conducted the seizure in presence of the "Panch" witnesses, who were available at the time of seizure and that the prosecution has not examined in Court the other constables, who were accompanying Rajesh Sharma (PW 4). That in view of the contradictions in the statement of Rajesh Sharma (PW 4) his uncorroborated testimony is unsafe to hold that the accused was found in possession of the contraband. The learned trial Court has also held that the sample prepared from the item at the time of seizure was not the same, which was sent for chemical examination. The learned trial Court has acquitted the accused. 6. The learned counsel for the State has alleged that uncorroborated testimony of Rajesh Sharma (PW 4) was sufficient to prove the guilt against the accused and the learned trial Court has erred in rejecting the statement of Seizing Officer Rajesh Sharma (PW 4) and, as such, the accused should be convicted and sentenced for the offence punishable under section 8/15 of the NDPS Act. 7. Rajesh Sharma (PW 4) has stated that on 16-7-1997 at about 5.45 p.m. when he along with constables Kamalsingh, Shreeram and Pradeepsingh was on patrolling duty, the accused, who was coming on cycle, was intercepted and he was apprised of his right that he can opt his search before the Magistrate or the Gazetted Officer and the accused consented his search by him and the consent memo Ex. P-10 bears signatures of the accused and the witnesses. Rajesh Sharma (PW 4) has further stated that in the search of the bag the accused was carrying on his cycle 24 plastic packets were found in which there was poppy husk and after drawing two samples of 250-250 Gms. from it, all the seized item along with the sample packets were sealed and the accused was arrested and he was taken to the police station along with the 'Muddemal'. 8. The prosecution has not examined constables Pradeepsingh, Shreeram or Kamalsingh to corroborate the statement of Rajesh Sharma (PW 4). from it, all the seized item along with the sample packets were sealed and the accused was arrested and he was taken to the police station along with the 'Muddemal'. 8. The prosecution has not examined constables Pradeepsingh, Shreeram or Kamalsingh to corroborate the statement of Rajesh Sharma (PW 4). Rajesh Sharma (PW 4) has not called the 'Panch' witnesses at the time of the proceedings of seizure from the accused while from paras 21,22 and 23 of his cross-examination it is clear that he was able to procure 'Punch' witnesses at the time of seizure from the accused. This statement of Rajesh Sharma (PW 4) that he has sealed the raxine bag and the sample packet on the spot is falsified from the statements of prosecution witnesses Manoharlal (PW 3) and 'Malkhana' register Ex. P-3. It is palpably clear from Ex. P.3 that seized item were not at all sealed and open gunny bag containing the seized item was given to 'Malkhana' in-charge. According to the 'Panch' witness the weighment of the seized article was done in the police station at about 7.30 p.m. while Ratanlal (PW 2) has stated that this weighment was done by him at about 10 p.m. The statement of Rajesh Sharma (PW 4) is that the sample packets of 250-250 Gms. were prepared by him while from the sample packets sent for analysis it is clear that it was weighing only 200 gms. 9. The prosecution has not proved that the superior authorities were apprised about the seizure and arrest of the accused as provided under section 57 of the NDPS Act. No. explanation is given for not complying with the provisions of section 57 of the NDPS Act and not calling the 'Panch' witnesses at the time of seizure. The accused was searched in day time on the public way where 'Panch' witnesses were available. This conduct of Seizing Officer shows his unfairness. 10. No. explanation is given for not complying with the provisions of section 57 of the NDPS Act and not calling the 'Panch' witnesses at the time of seizure. The accused was searched in day time on the public way where 'Panch' witnesses were available. This conduct of Seizing Officer shows his unfairness. 10. The fact that Rajesh Sharma (PW 4) has conducted the seizure not in presence of the 'Panch' witnesses and that the seized items were not sealed and that there is variation in the weight of the sample packet, which was seized from the accused and which was sent to the Public Analyst, I hold that the learned counsel has not committed any mistake in holding uncorroborated testimony of Seizing Officer as unreliable and that the prosecution has failed to prove the case against the accused beyond reasonable doubt. 11. There is no substance in the appeal. The judgment of the learned trial court is hereby confirmed and the appeal is dismissed. The accused-respondent be set liberty, if he is in jail and no other case is pending against him. Appeal Dismissed.