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Madhya Pradesh High Court · body

2005 DIGILAW 242 (MP)

Ghanshyam v. State of M. P.

2005-02-15

A.K.AWASTHY

body2005
JUDGMENT Appellant-accused has filed this appeal under section 374 of the CrPC from the jail against the judgment and order dated 30.4.1998 in Special Case No. 44/97 passed by Special Judge, Ujjain of his conviction and sentence under section 8/18 of the Narcotics Drugs and Psychotropic Substance Act (in short NDPS Act) for the rigorous imprisonment for 10 years and fine of Rs. 1 lakh and in default of payment for fine, further imprisonment for a period of 2 years. The prosecution case is that on 1.1.1997 at 4: 15 p.m. at Police Station Jaora ASI P.K. Vishwakarma (PW 11) received the secret information and after sending the information to the SDOP Jaora, he proceeded to the house of the accused at Brahmin Gali Jaora and in presence of panch witness Radheshyam (PW 1) and Kanhaiyalal (PW 2) the opium weighing 1 kg 250 gm from the bag hidden in a room was seized and after taking the sample of 30-30 gm, the sample packet along with the seized item was sealed. That the accused was taken to the Police Station and the FIR was lodged against him and the seized item was deposited in the Police Station. The information under section 57 of the NDPS Act was sent to the higher authority. That the opium was sent for the examination to FSL Indore vide Report Ex. P-33 it was reported that the contents were opium poppy. The charge-sheet was filed against the accused persons and after the investigation by Himmatsingh Rana (PW 8). The accused has abjured the guilt and denied the statement of prosecution witness and pleaded that the house from which the alleged recovery is made does not belong to him. No witness in defence was examined. The learned trial Court after examining 11 prosecution witnesses has held the accused guilty for the offence of illicit possession of the opium and he was convicted and sentenced as above. The accused has assailed the conviction on the ground that the learned trial Court has erred in believing the un-corroborated testimony of the Seizing Officer and that the seized item was not recovered from the house of the accused and as such, the accused should be acquitted for the offence punishable under section 8/18 of the NDPS Act. The accused has assailed the conviction on the ground that the learned trial Court has erred in believing the un-corroborated testimony of the Seizing Officer and that the seized item was not recovered from the house of the accused and as such, the accused should be acquitted for the offence punishable under section 8/18 of the NDPS Act. Seizing Officer P.K. Vishwakarma (PW 11) has stated that on 1.1.1997 at about 3:00 p.m. he has received the secret information against the accused and when he reached at the house of the accused and made the search then the opium in a bag hidden in a container weighing 1 kg 250 gm was recovered and seized. Panch witness Radheshyam (PW 1) and Kanhaiyalal (PW 2) have stated that the opium was not seized from the accused. The prosecution has declared Radheshyam (PW 1) and Kanhaiyalal (PW 2) as a hostile witness. The prosecution has not examined any other witness to support the statement of Seizing Officer P.K. Vishwakarma (PW 11). Constable Ishwar Joshi (PW 4) has stated that he went with the raiding party but remained outside the house which was searched by the Seizing Officer. From the statement of Seizing Officer it is clear, that the weights and the weighing machine was taken by him from the Police Station while Constable Inshwar Joshi (PW 4) has stated that he brought the weights from the shop. From the statement of Inshwar Joshi (PW 4) it appears that the raiding party went in the Jeep and Seizing Officer has stated that the raiding party went to the house of the accused on two Motor Cycles. Constable Ishwar Joshi (PW 4) has stated that he has not seen from where the opium was recovered and from whom the recovery was made. Ishwar Joshi (PW 4) has stated that he gave the statement to the Police about the recovery of the opium from the house of the accused on the information given by him by the Sub-Inspector. Consequently, it is clear, that the statement of Seizing Officer is contradicted by the statement of Constable Ishwar Joshi (PW 4) and they are not supported by any other official or independent witness. In these circumstances, it is not safe to believe the uncorroborated testimony of Seizing Officer P.K. Vishwakarma (PW 11). Consequently, it is clear, that the statement of Seizing Officer is contradicted by the statement of Constable Ishwar Joshi (PW 4) and they are not supported by any other official or independent witness. In these circumstances, it is not safe to believe the uncorroborated testimony of Seizing Officer P.K. Vishwakarma (PW 11). The prosecution has examined Sabir Hussain (PW 3) and Yeshwant Trivedi (PW 6) to prove that the house from which the contraband was recovered was used by the accused as his residence. Sabir Hussain (PW 3) and Yeshwant Trivedi (PW 6) have clearly stated that the mother of the accused was living as a tenant in the house and accused used to live in other house. There is no evidence on the record to prove that the accused use to live in the house from which the alleged opium was recovered. The recovery of the opium was not made by the Police after taking the statement of the accused under section 27 of the Evidence Act. Consequently, it is not proved that the opium was recovered from the house of the accused. It is the duty of the prosecution to prove that the accused was in intelligent and actual possession of the opium. The prosecution has failed to discharge the burden of proving the case that the opium was in the actual, physical possession of the accused. In these circumstances, firstly on account of lack of clear evidence that the opium was recovered from the house and secondly on account of the failure to discharge the burden that accused was in possession of the opium, it will not be safe to hold that it is proved beyond reasonable doubt that accused was in possession of the opium and he has committed the offence punishable under section 8/18 of the NDPS Act. The appeal is allowed. The conviction and sentence is, hereby, set-aside. The accused is acquitted. He be set at liberty if not required in any other case.