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2005 DIGILAW 401 (MP)

Mansingh v. Union of India

2005-03-18

A.K.SHRIVASTAVA

body2005
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence, passed by Special Judge (NDPS Act) Mandsaur, in Special Case No. 28/97, convicting appellants under section 8/18 and 8/15 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity 'the Act') and sentencing them to suffer RI of 10 years each and fine Rs. 1 lac each; in default further imprisonment of 2 years RI each, the appellants have knocked the door of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. Sans unnecessarily details, facts lie in a narrow campass. On 1.3.1997 at 1 p.m. one Devendra Narain, driver of Narcotics Department received information from the informant that on the way to NeemuchChittor route near village Sagrana in the dhaba (restaurant) of accused Mansingh, he and his nephew co-accused Vinodsingh are serving opium to the truck drivers. After doing the needful, the investigating agency arrived at the spot and gave notice under section 50 of the Act to the appellants. Both the accused persons gave their consent to be searched by Shri R.K. Sinha, who was the in-charge of the raiding party. Necessary panchnamas in this regard were prepared. Thereafter, Sub-Inspector J.C. Panwar and Sub-Inspector Rameshwarrao, in presence of accused Mansingh, Vinodsingh as also in presence of the witnesses, took search of the dhaba. At the juncture, Opium Officer Shri R.K. Sinha was also present. 3. During the search of the dhaba in a room a lock was inserted, which was opened by accused Vindosingh by taking out the key from his pocket. Inside the room, in a bag of old cloth one polyethylene packet was kept in which opium was found. This packet was hidden behind the cement bags. In another room of the dhaba, in an old bag of fertilizer, poppy husk was found, which was hidden in the heap of the wood. Thereafter, on searching accused Vinodsingh, opium was seized from the pocket of his trouser. Thereafter, motorcycle of accused Mansingh, bearing registration No. MP-14/F-3889, was searched and opium was recovered from the dickey of the said motorcycle. The accused persons accepted these contraband articles of theirs. 4. The seized contraband articles were weighed and on weighing 5 kgs. of opium, which was seized from the room of the Dhaba was found. Thereafter, motorcycle of accused Mansingh, bearing registration No. MP-14/F-3889, was searched and opium was recovered from the dickey of the said motorcycle. The accused persons accepted these contraband articles of theirs. 4. The seized contraband articles were weighed and on weighing 5 kgs. of opium, which was seized from the room of the Dhaba was found. The opium, which was seized from the pocket of the trouser of Vinodsingh, was found to be 100 gms. and similarly the opium, which was seized from the motorcycle, on weighing it, was found to be 100 gms. The Poppy husk, which was seized, was also weighed and it was found to be 3.100 kgs. From the bulk of each contraband article, two samples were collected. They were sealed and sent for chemical examination. The Chemical Examiner affirmed the presence of opium and the Poppy husk. Thus, the appellants were prosecuted. 5. The special Court framed charges for the offences punishable under sections 8/18 read with section 29 and 8/15 read with section 29 of the Act against the accused persons. Needless to emphasis the accused persons abjured their guilt. Their plea is of false implication. In their defence they examined 3 witnesses namely Nondram, Ishwarsingh and Padamsingh. 6. The trial Court, after appreciating and marshalling the evidence, came to hold that the appellants have committed the offence for which they were charged and eventually convicted them and passed sentences, which I have mentioned hereinabove. Hence, this appeal. 7. Shri D.D. Vyas learned Senior Advocate, appearing for the appellants, has, submitted that Ex. P-3, which is a notice under section 50 of the Act, if considered in proper perspective it cannot be said that there is compliance of section 50 of the Act. According to the learned counsel so far as appellant Vinodsingh is concerned, it is the case of the prosecution that 100 gms. of opium was seized from the pocket of his trouser. It has also been contended by the learned senior counsel that the dhaba is not of appellant Vinodsingh and the appellants are not the owner of the said dhaba. of opium was seized from the pocket of his trouser. It has also been contended by the learned senior counsel that the dhaba is not of appellant Vinodsingh and the appellants are not the owner of the said dhaba. It has been further canvassed by the learned senior counsel that 100 gms of opium, which is said to have been recovered from the motorcycle alleged to be of appellant Mansingh is not of him (Mansingh) and since it was standing nearby the Dhaba, as such it cannot be said that appellant Mansingh was possessing the contraband article consciously. It has also been put forth by the learned senior counsel that in Ex. P-3, which is a notice, in it, it has been stated that accused persons wrote by their own handwriting giving their consent to be searched by Mr. R.K. Sinha, District Opium Officer. According to the learned counsel since accused Vinodsingh is an illiterate person and he puts thumb impression, therefore, it cannot be said that he wrote his consent in regard to search by his own handwriting, which raises serious doubt in regard to commission of the offence. 8. Learned counsel for the appellants has placed reliance on the following decisions: (i) Surendrasingh and another v. Union of India [ 2004(3) MPLJ 15 ; (ii) Jeetsingh v. State of M.P. [ 2002(2) MPLJ 117 ]; (iii) Balkrishna Naik v. State of M.P. [ 2001(1) JLJ 90 ]; (iv) State of M.P. v. Nathulal and another [ 2001(2) JLJ 123 ]; and (v) Jahidabee v. Central Narcotics Bureau [ 2001(1) MPLJ 391 ]. 9. On the other hand, Shri Manoj Soni, learned counsel appearing for the respondent department, has submitted that under the Act only possession is required to be proved and not the ownership. Since accused Vinodsingh himself opened the lock of the room, which is situated in the Dhaba, it would mean that he possessed the dhaba and the room in which the contraband article was found. It has also been put forth by the learned counsel that motorcycle is of appellant Mansingh as there is a document/agreement (Ex. P-11) by which appellant Mansingh had agreed to purchase the motorcycle MP-14/F-3889 on 24.1.1997 and the date of incidence is after it. It has also been put forth by the learned counsel that motorcycle is of appellant Mansingh as there is a document/agreement (Ex. P-11) by which appellant Mansingh had agreed to purchase the motorcycle MP-14/F-3889 on 24.1.1997 and the date of incidence is after it. Since the contraband article was found in the dickey of the said motorcycle, which was standing nearby the dhaba, therefore, the said vehicle was in possession of appellant Mansingh. 10. Apart from these submissions, it has also been canvassed by the learned counsel for the respondent by inviting my attention to Ex. P-16 and P-17, which are the confessional statements of the accused persons in terms of section 67 of the Act and has submitted that on the basis of these confessional statements the conviction could be accorded. In support of his contention learned counsel has placed reliance on the following decisions: (i) M. Prabhulal v. Assistant Director, Directorate of Revenue Intelligence [2003 SAR (Cri.) 815]; (ii) Banobee and another v. State of Maharashtra [2000 CrLR 589]; (iii) A.K. Mehaboob v. Intelligence Officer, Narcotics Bureau [2002 SCC (Cri.) 1035]; and (iv) Pon Adithan v. Deputy Director Narcotic Central Bureau, Madras [1999 SCC (Cri.) 1051]. 11. Having heard the learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. 12. Learned counsel for the appellants, by inviting my attention to Ex. D-1 to D-3, which are the certified copies of the Khasra entries, has submitted that Survey No. 371 is of Mansingh and in the entire area cultivation of the crop is shown. Nowhere in the revenue is record the dhaba shown. In this regard learned senior counsel has also invited my attention to the statement of PW 6 Mangilal, who is the Patwari. It has also been contended by the learned senior counsel by inviting my attention to Ex. D-1 that Survey No. 672 is of one Nandlal, in which dhaba is shown and, therefore, it cannot be said that the dhaba is of the appellants. 13. The above said argument at the first blush appears to be quite attractive, however, on deeper scrutiny, is found to be devoid of substance. While considering the case under the Act whether the accused person possesses the property in which the contraband article is kept is to be seen and the enquiry of ownership is not required. 13. The above said argument at the first blush appears to be quite attractive, however, on deeper scrutiny, is found to be devoid of substance. While considering the case under the Act whether the accused person possesses the property in which the contraband article is kept is to be seen and the enquiry of ownership is not required. It is the possession, which is to be proved. It has come in the testimony of PW 7 J.C. Pan war that accused Vinodsingh, who was present in the dhaba, took out the key from his pocket and opened the lock of the rooms in which the contraband articles were kept and if that is the position, according to me, it can safely be said that the dhaba, in which the contraband articles were kept, was in conscious possession of appellant Vinodsingh. I am not impressed by the argument of the learned senior counsel that the prosecution did not examine any witness, who was present at the dhaba. The question is whether the offence is proved from the statement of the Searching Officer and the other officers ? The answer is in affirmative. I am also not impressed by the argument of the lamed senior counsel that along with PW 7 J.C. Panwar another officer Rameshwarrao was also present, but he was not examined. Learned counsel could not point out that why the testimony of J.C. Panwar, Searching Officer should be disbelieved. Thus, it can safely be said that the dhaba was in possession of accused Vinodsingh. 14. The decision of Surendra Singh (supra) is tangentially off the point. In that it was found the accused did not possess the room in which the contraband article was found. In that case the accused persons by chance entered inside the room in which the contraband articles were kept. In that situation it was held that there was no possession of the accused persons. In the case of Jeetsingh (supra) there was no proof being in physical and conscious possession of the accused and in that regard there was no convincing evidence. In that context it was so decided by this Court that accused of the case was not in possession of the contraband article. In the case of Balkrishna Naik (supra) also it has not come in the evidence that who possessed the house. In that context it was so decided by this Court that accused of the case was not in possession of the contraband article. In the case of Balkrishna Naik (supra) also it has not come in the evidence that who possessed the house. Thus, these decisions are not at all applicable in the present case. 15. The decision of Nathulal (supra) is not applicable in the present case for the simple reason that it has come in the statement of PW 7 J.C. Panwar that the contents of notice (Ex. P-3) were stated to the accused persons. So far as the decision of Jahidabee (supra) is concerned, after passing of the said decision, the other decisions of the Apex Court have come, which are referred by me in the foregoing paragraphs. 16. It has been submitted by the learned senior counsel that the impugned motorcycle does not belong to appellant Mansingh. The necessary papers from RTO Office are not produced by the prosecution agency and, therefore, it cannot be said that the impugned motorcycle belongs to accused Mansingh. This argument is also not having any merit for the simple reason that this Court is not hearing the case under the Motor Vehicles Act in regard to a motor accident wherein enquiry of the ownership of the vehicle is made. On going through the agreement (Ex. P-11) it is revealed that accused Mansingh entered into an agreement with one Babulal of 24.1.1997 to purchase TVS Suzuki motorcycle bearing registration No. MP-14/F-3889. It be seen that the contraband article opium weighing 100 gms. was seized from the dickey of this motorcycle, which was standing nearby the dhaba and, thus, it would mean that appellant Mansingh was having conscious possession over the said vehicle. 17. Apart from these reasoning, on going through the confessional statements Ex. P-16 and P-17 of accused persons it can be safely said that since they have admitted the guilt, the conviction could be accorded on the basis of these confessional statements. The confessional statements were not given to the police officers, but were given to the officer of Narcotics Department and, therefore, in the light of the judgments reported in M. Prabhulal, Banobee, A.K. Mehaboob and Pon Adithan (supra) the conviction could be accorded on the basis of these confessional statements. 18. The confessional statements were not given to the police officers, but were given to the officer of Narcotics Department and, therefore, in the light of the judgments reported in M. Prabhulal, Banobee, A.K. Mehaboob and Pon Adithan (supra) the conviction could be accorded on the basis of these confessional statements. 18. In the result, the appeal is found to be devoid of any substance and the same is hereby dismissed. Appellant Mansingh was enlarged on bail, in pursuance of order dated 27.9.2004 passed by the apex Court. His bail bonds are cancelled and he is directed to surrender to serve out the remaining part of his sentence. ........................