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2005 DIGILAW 390 (MP)

Abdul Gani v. State of M. P.

2005-03-16

A.K.SHRIVASTAVA

body2005
JUDGMENT 1. These two appeals are preferred by two accused persons jointly who were tried in Special Case No. 2/97 by Sessions Judge, Mandsaur. The accused persons are convicted for 10 years' RI each and fine Rs. 1 lac each, in default, further RI of two years RI each for the offence under section 8/21 of the Narcotic Drugs and Psychotropic Substances Act (in short 'the Act'). 2. In brief, the case of prosecution is that police station incharge A.K. Mishra stopped the motorcycle which was being driven by accused Raees, on which accused Abdul Gani was a pillion rider. The station Officer-in-charge A.K. Mishra stopped the motorcycle as he, was informed by the informant that somebody is carrying brown sugar on a motorcycle. According to the prosecution, accused Abdul Gani was holding a box in which a plastic bag was kept which was containing brown sugar. A notice under section 50 of the Act was given and from the bulk, two samples of contraband article of 20 gms. each were taken out and sealed and were sent to chemical examiner. Since the presence of brown sugar was found in the sample, accused persons were charge-sheeted and were tried. 3. The trial Court, on going through the charge-sheet, framed charge punishable under section 8/21 of the Act which the accused persons denied. 4. In order to prove the charges, prosecution examined as many as 8 witnesses and placed certain documents on record. 5. The defence of accused persons is of maladroit implication, however, in support of their defence they did not choose to examine' any witness. 6. The trial Court, after scanning the evidence, came to hold that appellants did commit the offence of which they were charged and eventually convicted them and passed the sentence which I have mentioned hereinabove. Hence this appeal. 7. It has been contended by Shri Z.A. Khan, Senior Advocate and Shri Sanjay Sharma, learned counsel for accused persons, that there is non-compliance of section 50 of the Act and if that is the position, no conviction could be accorded against them. 8. Hence this appeal. 7. It has been contended by Shri Z.A. Khan, Senior Advocate and Shri Sanjay Sharma, learned counsel for accused persons, that there is non-compliance of section 50 of the Act and if that is the position, no conviction could be accorded against them. 8. Per contra, learned Government Advocate has contended that the case of prosecution is that appellant Raees was driving the motorcycle and appellant Abdul Gani was possessing the contraband article in his hand in one container in which a plastic bag was kept and in that bag the contraband article brown sugar was there. 9. According to the learned Government Advocate, since the container was being carried by Abdul Gani, there was no necessity of any compliance of section 50 of the Act. Learned counsel submits that this point has been referred to larger Bench by the apex Court. 10. Facing this tight situation, Shri Z.A. Khan, learned Senior Advocate for appellant Abdul Gani, has submitted that apart from the non-compliance of section 50 of the Act, if the entire case is considered in proper perspective, it would be difficult to uphold the conviction and it is difficult to hold that appellants committed any offence. Learned counsel has contended that the contraband article which was alleged to have been seized from the possession of appellant Abdul Gani was not brought before the Court and, therefore, no offence is proved. Learned counsel has placed heavy reliance on the decision of apex Court in the case of Jitendra and another v. State of M.P. [2004(1) EFR 22]. Apart from this, it has also been contended by learned counsel that it has come in the evidence that two samples were sent to different chemical laboratories. First sample was sent at FSL Indore and another at Neemuch. It has been proponed by learned counsel for appellant Abdul Gani that the report of FSL, Neemuch, was produced, however, what happened to first report which was sent to FSL, Indore, which has not been produced, there is' no explanation to it. According to learned counsel since the report did not confirm the presence of brown sugar, for this reason the same was not produced in the Court. Learned counsel Shri Khan has further invited my attention to sectin 50 (Ex. According to learned counsel since the report did not confirm the presence of brown sugar, for this reason the same was not produced in the Court. Learned counsel Shri Khan has further invited my attention to sectin 50 (Ex. P-8) and has submitted that the notice was given at 17:30 hours while earlier to giving the notice the seizure was made at 17:20 hours. In this regard, he has invited my attention to Panchnama Karyawahi (Ex.P-3). 11. Shri Sanjay Sharma, learned counsel for appellant Raees by placing reliance on the decision of apex Court in the case of Narcotics Control Bureau, Jodhpur v. Murlidhar Soni and others [2004(2) EFR 416] has contended that Raees was only a driver and he was not knowing that Abdul Gani was possessing the contraband article. It has also been canvassed by the learned counsel that according to prosecution's own case the contraband article was seized on 14.10.1996 and it was sent to the FSL on 11.12.1996 and if that is the position, according to learned counsel it is' difficult to uphold the conviction. 12. On these premised submissions, it has been contended by learned counsel for appellants that looking to the facts and circumstances it creates heavy doubt that appall ants committed the offence. 13. After having heard learned counsel for the parties, I am of the view that the appeal deserves to be allowed. 14. The first contention of learned counsel Shri Khan is taken into consideration. It has been contended that the contraband article which was seized was not produced in the Court. Learned Government Advocate after going through the record could not point out that the same was produced in the Court. In the case of Jitendra (supra), the apex Court in para 6 has held as under: "6. In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence under the NDPS, Act. In this case, we notice that panchas have turned hostile so the panchanama is nothing but a document written by the concerned police officer. The suggestion made by the defence in cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the Investigating Officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the Investigating Officer and non-production of the seized drugs, the conviction under the NDPS, Act can still be sustained, is far fetched." 15. If the ratio decidendi of the case of Jitendra (supra) is tested on the anvil of the factual scenario, it would reveal that in the present case also the contraband article was not produced in the Court and was marked as article. Thus, the decision of Jitendra (supra) squarely covers the point in hand. 16. The second contention which has been raised by learned senior counsel Shri Khan is that two samples were taken out from the bulk and they were sent to different FSL. The first sample was sent at FSL, Indore and second was sent at FSL, Neemuch. To substantiate the argument, learned senior counsel has invited my attention to para 17 of PW 8, seizing officer A.K. Mishra in which he has admitted that first sample was sent at FSL Indore but he cannot say what report was received from the said FSL. According to me, it was incumbent upon the investigating agency to give explanation that why the report of first sample which was sent to Indore was not filed. Indeed, it was the bounden duty of the investigating agency to submit the report of the first sample which was sent to FSL at Indore. According to me, it was incumbent upon the investigating agency to give explanation that why the report of first sample which was sent to Indore was not filed. Indeed, it was the bounden duty of the investigating agency to submit the report of the first sample which was sent to FSL at Indore. Having not done so, an adverse inference is drawn under section 114 of the Evidence Act. 17. So far as the third contention of learned counsel for appellants that there is variation in the timings in giving the notice under section 50 of the Act and the seizure. In order to appreciate the contention of learned counsel, I have kept Ex. P-8 which is a notice under section 50 though name and styled "Panchanama Sahmati" in juxtaposition to "Panchanama Karyawahi" Ex. P-3. On reading these two documents jointly, it is gathered that notice under section 50 was given at 17.30 hours and earlier to it at 17.20 hours the contraband article was seized. This raises a heavy doubt in regard to the truthfulness of the case of the prosecution. The law is well settled in this regard. Suspicion, however strong it may be, cannot take place of strict proof. 18. It has been contended by Shri Sharma, learned counsel for Raees that he was only a driver of the motorcycle and therefore he was not aware that the contraband article is being possessed by Abdul Gani and thus he was not having conscious possession about the contraband article. In this regard, he has placed reliance on the decision of Murlidhar Soni (supra) which is quite relevant. Para 9 of the said decision reads thus: "9. We are in agreement with this finding of the High Court, it is also to be noted that even though these accused persons were arrested on 24.9.1994, they were produced before the Court only on 27.9.1994 on which date both the accused submitted before the Court that they had suffered injuries at the hands of the investigating agency and it is under such physical threat their statements were recorded under section 67 of the Act. The said Court had directed a medical examination of these accused on that day itself. The said Court had directed a medical examination of these accused on that day itself. The medical report and the evidence of DWs 1 and 2, the doctors who examined them, clearly shows that these accused had suffered injuries and Murlidhar Soni had actually suffered a fracture of the 10th left rib. The defence of the prosecution that these injuries might have been suffered by an accidental fall of the accused, cannot be accepted, thus, we are in agreement with the finding of the High Court that the statements of these accused persons have been obtained by the prosecuting agency under duress. It is also to be noted that even according to the prosecution case so far as this respondent is concerned, his only role in regard to the contraband was to take his father on his scooter to the place where they were allegedly arrested. The bundle in question which contained the contraband was carried by Murlidhar Soni and there is no material whatsoever to show that the present respondent had the knowledge that the bundle contained any contraband. In our opinion since the prosecution has not placed any material to show the conscious possession of the contraband by the respondent herein and since Murlidhar Soni is dead, we think the contentions advanced on before of the respondent as to the possession of the contraband by the respondent has to be accepted." 19. If the ratio decidendi of the case of Murlidhar Soni (supra) is tested on the touchstone of the present facts and circumstances, one can safely say that this decision is applicable to the present case also. The next contention of Shri Sanjay Sharma, learned counsel for appellant Raees is also having sufficient merit. It has been contended by him that according to the prosecution's own case the contraband articles was seized on 14.11.1996 and the same was sent to FSL on 11.12.1996. 'What transpired in between the two months, there is a big question mark and there is no satisfactory explanation much than any explanation by the prosecution. 20. In view of the above said discussion, without taking into consideration about the compliance of section 50 of the Act, otherwise also the case of prosecution is not proved and it raises a heavy doubt in regard to the implication of accused persons in the said offence. 21. 20. In view of the above said discussion, without taking into consideration about the compliance of section 50 of the Act, otherwise also the case of prosecution is not proved and it raises a heavy doubt in regard to the implication of accused persons in the said offence. 21. Resultantly, both the appeals stand allowed, the conviction of appellants are set aside. Appellant Abdul Gani is in custody, he be set at liberty forthwith if not required in any other case. Appellant Raees is on bail, he need not surrender and his bail bonds are discharged. .....................