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Madhya Pradesh High Court · body

2006 DIGILAW 22 (MP)

PRAMOD v. STATE OF M P

2006-01-03

S.L.KOCHAR

body2006
Judgment ( 1. ) THIS appeal is directed against the judgment dated 4th April, 1994 passed by the learned Addl. Sessions Judge, Ratlam in Sessions Trial No. 79/91 thereby finding the appellant guilty of the offence punishable under Section 8/18 of the narcotics Drugs and Psychotropic Substances Act (Herein-after referred to as the NDPS Act) and sentencing him to suffer R. I. for ten years and to pay a fine of Rs. 1,00,000/- (One lac rupees ). In default of payment of fine, he was also directed to suffer additional R. I. for two years. ( 2. ) THE prosecution case in nut-shell is that on 03-01-91, Town inspector PW-4 Pravin Thakur after making entry in the Daily Diary dated 03-01-91 (Ex. P/4) at No. 213 at 9. 05 PM regarding going on city petrolling along with Sub-Inspector PW-3 Rakesh Kumar, Head Constable Dalpatsingh, constable Kalusingh in Government Vehicle bearing Registered No. MPP 3722 proceeded for petrolling. When they were in the area of Ramgarh, Town inspector received information from the informant (Mukhbeer) that the appellant was coming on scooter MP-14-5128 from Chamaria Barrior having opium for the purpose of sale. On this information, police party took position to stop and search the appellant. The appellant was coming in a speed on the scooter. He was chased by the police and caught at the square of Chowmukhi bridge. Witness Mangilal (PW-1) was called and in his presence search of the appellant was taken by the Town Inspector PW-4 Pravin Thakur. In personal search of the appellant, he found only Rs. 1,700/- cash amount. Thereafter, they took search of Bajaj Scooter of the appellant and took out Raxine stepny cover and found opium in a polythene. On the spot, there was no facility of weighment of the contraband article, therefore, the police party along with Panch witnesses and the appellant reached at Manak Chowk at the betel shop of Kailash (PW-2)who was having weighing instrument. There the contraband article said to be opium was weighed. The weight of the opium was 195 grams. Out of this quantity, two samples of 5 grams each were prepared separately. The seizure-memo of the opium was prepared. The appellant was arrested and thereafter, the police party along with the appellant returned back to the Police Station. At the police station, entry in the Daily Diary about their return was made vide Ex. Out of this quantity, two samples of 5 grams each were prepared separately. The seizure-memo of the opium was prepared. The appellant was arrested and thereafter, the police party along with the appellant returned back to the Police Station. At the police station, entry in the Daily Diary about their return was made vide Ex. P/6 and the seized cash amount, opium and the scooter as also its stepny were handed over to the Head Constable In-charge of Malkhana. The seized samples was sent for Chemical Examination to the Director F. S. L. Sagar. Its report is Ex. P/7 confirming the presence of meconic acid and positive result of opium alkaloid. The sample was containing 3. 42 morphine. After necessary investigation, charge-sheet was filed against the appellant for the offence mentioned herein-above. The appellant denied the prosecution allegations. His defence was that he was falsely implicated by the police at the instance of one Ramgopal parmar Tantrik with whom, he was having strained relations. The appellant has also specifically denied in his statement recorded under Section 313 Cr. P. C. about seizure of opium from raxine cover of his scooter-stepny. At the time of framing of charge, as per provision under Section 228 of the Code of Criminal procedure, he denied the charges and submitted that because of enmity, some body might have put the contraband article in the scooter-stepny. On denial, the appellant was put to trial. The prosecution examined five witnesses and got proved 7 documents in order to establish its case whereas the appellant did not examine any witness in his defence. ( 3. ) HAVING heard learned Counsel for the parties and after perusing the entire record, this Court is of the considered view that the prosecution has miserably failed to prove its case against the appellant beyond all reasonable doubt. ( 4. ) PW-1 Mangilal the panch witness of seizure of opium has deposed that when the appellant was stopped by the appellant, appellant asked as to why his search was being taken, and on his personal search, some money was found in his pocket. Thereafter, the police torn the stepny cover of the scooter in which opium was found. It was seized and the seizure of which was prepared vide ex. P/2 and the appellant was arrested vide Ex. P/3. Thereafter, the police torn the stepny cover of the scooter in which opium was found. It was seized and the seizure of which was prepared vide ex. P/2 and the appellant was arrested vide Ex. P/3. In para 8 he has stated that before taking the search of the appellant, police did not give their own search. In para 9, he deposed that alongwith the packet the appellant was taken to the police Station where the said opium was weighed. At that very moment, the appellant told the police that all this was planted by Ramgopal Tantrik. In his examination-in-chief, this witness stated that the packet was weighed on betel shop and in cross-examination he stated that the same was taken to the Police station and weighment was done. This witness has nowhere stated that after recovery of opium, the same was properly sealed on the spot i. e. at Choumukhi bridge. The same is the position with PW-2 Kailashchandra. ( 5. ) PW-3 Rakesh Kumar, Town Inspector was posted on 03-01-91 as sub-Inspector in Police Station Manak-Chowk. The say of this witness is that after receiving the information from the informant (MUKHBIR ). They stopped the appellant who was going on scooter on the square of Choumukhi bridge and from the cover of his stepny, opium was seized. He prepared the seizure-memos ex. P/2 and P/3 and the panchnama Ex. P/1, as directed by Town Inspector Shri thakkur. Though in Court he has stated that after seizure and sampling, the opium was sealed in a polythene in presence of panch-witnesses, but in cross-examination Para 7, when he confronted with the seizure-memo Ex. P/1 and P/2, he admitted that in the seizure-memo of sample, it is not mentioned that the same were sealed and after taking the sample remaining quantity of opium was also sealed. This Court has also perused all these documents wherein all these facts are not available. Therefore, the oral statement of this police witness for the first time in Court, cannot be accepted that at the time of seizure, the contraband article was properly sealed and on the seizure-memo impression of seal was affixed so that the same could be tallied with the seal at the time of opening of the sampling packets by the public analyst. ( 6. ( 6. ) PW-4 Prabin Thakur Investigating Officer, Town Inspector of P. S. Manakchowk has also admitted that on the Article-A (box) though, seal was affixed but on the said seal, his signature or those of panchas were not available. Same is the position with polythene-bag Article-B. In the Court, the boxes which were sent to the Chemical Analyst and the documents of seal were not produced. According to him, the sample boxes and the documents of sample were not received back from the laboratory. In para 9, he deposed that the samples were sent for examination to the Forensic Science Laboratory, Sagar through D. P. O. Office on 25-05-91. According to this witness, the appellant was apprehended and 195 grans of opium was seized from him on 03-01-91. Thereafter, the samples were sent on 25-05-91 i. e. after four months 22 days. No evidence has been led by the prosecution about keeping of sample and seized opium during these four months and 22 days. ( 7. ) THIS witness, in Para 11 has admitted that on documents of seizure and the panchnama about sampling no where it is mentioned that the seized contraband article and its samples were sealed and seal impression was affixed on the seizure-memo. Admittedly the appellant was apprehended all of a sudden when police party received information from the informant while petrolling in the town. The seizure-memo was prepared on the spot i. e. , square of the bridge and the appellant was also arrested then and there. But, his arrest-memo is containing crime No. 8/91. That could not be mentioned because the police party was not having Daily-Diary of the Police Station and the First Information report Book with them. The crime was registered after returning to the Police station on 03-01-91 at 22. 10 hours (10. 00) vide Ex. P/5. In this First Information report Crime number was given. The seizure-memo Panchnama, sampling and arrest were done prior to registration of the crime and giving crime number. All these documents Ex. P/1, P/2 and P/3, prepared on the spot could not have contained the crime number, but all are bearing the Crime No. 8/91 which is indicative of the fact that the appellant was brought at the Police Station and thereafter, documents were prepared and the same were not prepared as shown in the panchnamas Ex. P/1, P/2 and P/3 on the spot. P/1, P/2 and P/3 on the spot. ( 8. ) THE Supreme Court has considered the aspect of proof of sealing of samples and keeping the same before sending for chemical analysis in the case of state of Rajasthan Vs. Gurmail Singh [2005 Cr. L. R. (SC) 328] and held that when the prosecution is unable to prove proper sampling of sample and keeping the same in Malkhana, the conviction of the accused is not sustainable. In another case Ouseph Vs. State of Kerala, 2005 SCC (Cri.) 595, the Apex Court ruled that "under Section 55 NDPS Act, 1985 the statutory requirement to seal the seized articles may not be mandatory but the period of non-sealing (nearly two months) in the circumstances of this case does give rise to a doubt that there might have been a possibility of tampering which cannot be ruled out, more so because sample sent to the Chemical Examiner is a small quantity. Thus, prejudice caused to the accused is apparent if the seized articles are different from the articles sent to the Chemical Examiner. In this case, it cannot be said with certainty that such manipulation has not happened. " ( 9. ) IN the instant case also the prosecution has failed to establish that the opium said to have been seized was sealed and till sending the sample to chemical Engineer the same was kept in safe custody ruling out the possibility of tampering. In the case of Vasala vs. State of Kerala ( AIR 1994 SC 117 ) the supreme Court has considered the delay of more than three months in sending the seized article to the Court vital to the prosecution case. No evidence was adduced by the prosecution to show that the article was sealed and kept in proper custody at the Police Station and the very article seized was sent to the chemical Examiner. In the instant case, the delay is of four months and 22 days and seized articles were not produced before the Court during the course of trial. ( 10. In the instant case, the delay is of four months and 22 days and seized articles were not produced before the Court during the course of trial. ( 10. ) IN view of the aforesaid serious and glaring infirmities in the prosecution case with regard to compliance with the provisions of sealing of the contraband articles as well as keeping the same in the safe and proper custody before sending it for Chemical Examination and non-explanation of delay in sending the sample, the conviction of the appellant is not sustainable. Therefore, this appeal succeeds and is hereby allowed. His conviction and sentence are set aside. His bail and surety bonds shall stand cancelled. Criminal Appeal allowed.