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Madhya Pradesh High Court · body

2005 DIGILAW 481 (MP)

Jamal Ali v. State of M. P.

2005-04-04

S.K.PANDE

body2005
JUDGMENT Special Judge, Jabalpur in Special Case No. 28/03 vide impugned judgment dated 19.4.2004 recording conviction of appellant under section 8/20 (b) (ii) (C) N.D.P.S. Act sentenced him to undergo R.I. for a period of 10 years and to pay fine Rs. 1,00,000/- in default to suffer further imprisonment for a period of 2 years. Being aggrieved, appellant has preferred this appeal under section 374 (2) Cr.P.C. Rakesh Tiwari (PW 6) Sub Inspector, Police Station Madan Mahal, Jabalpur on 2.6.2003 received the information that some one in possession of ganja is sitting in the waiting hall (pratikshalaya) of the bus stand. Accordingly this information was recorded. Taking the witnesses Soni Lal (PW 2), Manik Lal (PW 4) he visited the waiting hall of the bus stand and found the appellant sitting on the bench (patti). The bags were also found kept on the said bench (patti). The appellant was apprised of the information in relation to alleged possession of ganja and proposed search. Appellant consented to the proposed search by the sub inspector. The bags being opened. The contents kept therein as per physical examination was found to be ganja. Taking sample the ganja was seized from the appellant. Seized contraband and the packets were properly packed. Seal of the specimen (Exhibit P-10) was affixed. Ganja-packet containing samples were kept in the malkhana. Packet containing samples were sent to the Forensic Science Laboratory. As per report (Exhibit P-29), the contents of packet were certified as ganja. Completing the investigation, the appellant was charge-sheeted under section 8/20 N.D.P.S. Act. Appellant abjured the guilt and contended that he was selling goggles in the bus stand. Calling him at the police chouki his signatures were obtained on few papers. He has been falsely implicated for being found in possession of contraband. The Court below on the basis of statement of Rakesh Tiwari (PW 6) held that the appellant was in possession of bag containing ganja said to have been kept on the bench (patti) as such, it was seized from him vide Exhibit P-9. Recording conviction under Section 8120 N.D.P.S. Act he has been sentenced to undergo R.I. and to pay fine in default to suffer further imprisonment for the period stipulated said above. Recording conviction under Section 8120 N.D.P.S. Act he has been sentenced to undergo R.I. and to pay fine in default to suffer further imprisonment for the period stipulated said above. - PW 6 Rakesh Tiwari, Sub-Inspector has stated that on 2.6.2003 from informer he received the information that someone carrying ganja is sitting on the bench in the waiting hall (pratikshalaya) of the bus stand. In presence of witnesses Soni Lal (PW 2), Manik Lal (PW. 4) this information was recorded. Taking these witnesses he had been to the waiting hall of the bus stand. The appellant was found sitting on the bench (patti). Three bags said to contain ganja kept on the said bench. PW 6 Rakesh Tiwari has stated that the appellant was apprised of the information of alleged possession of ganja and proposed search. Receiving the information (Exhibit P-4) appellant permitted him to conduct the search. The bags being opened. The material kept therein was physically examined. Panchnama (Exhibit P-6) to the effect was recorded. Weight being taken. 49 400 kgs ganja was found in the said bags. Taking sample from aforesaid, the packets were separately sealed. Ganja along with packets containing sample have been seized from the appellant in presence of Soni Lal, Manil Lal vide memo Exhibit P-9. PW 6 Rakesh Tiwari has stated that the contraband as well as the packets containing sample were kept in malkhana for safe custody. Packets containing sample were sent to the F.S.L. vide memo Exhibit P-28. Report Exhibit P-29 was received to the effect that content of packets aforesaid was ganja. PW 6 Rakesh Tiwari infact conducted the proceedings in presence of Soni Lal (PW 2), Manik Lal (PW 4). These witness PW 2 Soni Lal, PW 4 Manik Lal did not support the prosecution as such subjected to cross examination. PW 2 Soni Lal, PW 4 Manik Lal are rickshaw pullers. These witnesses have stated that police calling them to the police chouki their signatures on papers were obtained. In their presence neither the appellant was apprehended nor seizure of ganja vide (Exhibit P-9) was affected. Adjacent to the police chouki, bus stand there is one Pawar Lodge. The bus stand is surrounded by several shops. These witnesses have stated that police calling them to the police chouki their signatures on papers were obtained. In their presence neither the appellant was apprehended nor seizure of ganja vide (Exhibit P-9) was affected. Adjacent to the police chouki, bus stand there is one Pawar Lodge. The bus stand is surrounded by several shops. PW 6 Rakesh Tiwari visited the waiting hall at about 2.00 p.m. The seizure panchnama (Exhibit P-9) was prepared at 4.00 p.m. During the day time several passengers and other respectable persons ought to have been present at the bus stand-waiting, hall for purpose of calling them to witness the alleged search and seizure of contraband from the appellant. PW 2 Soni Lal, PW 4 Manik Lal poor rickshaw pullers could hardly be said to be proper witnesses. As stated by them, they were called by the police and at the police chouki were asked to sign the documents. State of PW 6 Rakesh Tiwari is to the effect that appellant was found sitting on a bench. The bags also were found kept on a portion of said bench. On the basis aforesaid, he proceeded further and affected the seizure of ganja vide Exhibit P-9. In cross examination para 18, PW 6 Rakesh Tiwari states as under: "At the relevant time hundreds of passengers were present at the bus stand. In the waiting hall (pratikshalaya) near the public tap, the appellant was found sitting on the bench-patti. The bags were found kept on the said patti. Appellant alone was sitting at the patti as such, no inquiry from other persons was made in relation to alleged possession of bags said to have been kept on the bench-patti." The aforesaid statement of PW 6 Rakesh Tiwari makes it clear that he failed to select the respectable witnesses for purpose of alleged raid and seizure relating to contraband. PW 2 Soni Lal, PW 4 Manik Lal rickshaw pullers did not support his statement. The presence of the appellant at the place from where the bags said to contain ganja were recovered cannot be taken as an evidence for possession of aforesaid bags by the appellant. As has been held in State of Punjab v. Balkar Singh and another, (2004) 3 SCC 582 in fairness, PW 6 Rakesh Tiwari, Sub Inspector should have conducted further investigation to prove that the appellant really was in possession of these bags. As has been held in State of Punjab v. Balkar Singh and another, (2004) 3 SCC 582 in fairness, PW 6 Rakesh Tiwari, Sub Inspector should have conducted further investigation to prove that the appellant really was in possession of these bags. In Nellikunnel Jose v. State of Kerala, AIR 2000 SCC 3577 (2) .also the apex Court held that mere presence of appellant near the place where bags said to contain contraband were found kept, would not be sufficient proof of prosecution case beyond reasonable doubt. Offence of being found in possession of contraband-ganja cannot be said to have been committed by the appellant. On facts and in the circumstances, the Court below from the sole testimony of PW 6 Rakesh Tiwari ignoring the facts emerging in cross-examination (para18) erred in recording conviction of appellant under Section 8/20 N.D.P.S. Act. Consequently, the appeal is allowed. Setting aside the convictiol1sentence passed by Court below vide impugned judgment in Special Case No. 28/03, appellant stands acquitted of the charge under section 8/20 N.D.P.S. Act. Appellant is reported to be in jail since 3.6.2003. He be released forthwith.