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Madhya Pradesh High Court · body

2006 DIGILAW 620 (MP)

Raju @ Rajmal v. State of M. P.

2006-05-01

S.A.NAQVI

body2006
JUDGMENT 1. This appeal is preferred against impugned judgment dated 16.10.2000 passed by Special Judge, NDPS Act, Guna in Special Case No. 4 of 1999 whereby appellant Raju alias Rajmal has been convicted under section 8/15 of NDPS Act, 1985 and sentenced to undergo 10 years RI and fine of Rs. 1,00,000/- (Rs. one lac), in default, two years RI. 2. Prosecution case, in short, is that on 1.7.1999, SHO Police Station Chachoda, Kamalsingh Parmar (PW 13) alongwith Head Constable Maqbool Khan (PW 11), Sainik Rajmal and Radhakishan left police station in the search of accused of Crime No. 183 of 1999 under sections 376 and 456 of IPC for village Kusumpura Sagodi. They reached Chachoda Batavda where informer informed K.S. Parmar that in village Sagodi, Truck No. RPF 3921 is stationed loaded with the bags of poppy husk. Kamal Singh Parmar alongwith police force reached on the spot and found that truck No. RPF 3921 was parked near village Sagodi road side. One person was in the truck. On enquiry, he disclosed his name as Raju alias Rajmal S/o Kishanlal R/o Hat Mohalla Chheepabadaud. Accused-appellant was informed about information received by informer and gave him a notice for search of the truck. Appellant-accused gave consent. Panchanamas were prepared. Police party gave personal search to appellant-accused and prepared panchnama pertaining the search. After completing formalities, K.S. Parmar searched the truck and found poppy husk in 63 bags. K.S. Parmar sent Head Constable Maqbool Khan to inform in writing regarding seizure of poppy husk to senior officers. 3. K.S. Parmar (PW 13) called labourers to unload bags and cloth bags for sealing. All 63 bags were got unloaded from the truck and they were weighed. Two samples of 250 grams each were taken from different bags and sealed separately. Bags of poppy husk were seized. Total weight of poppy husk was 19 quintals worth Rs.3,95,000/- (Rs. three lacs ninty five thousand). Appellant Raju alias Rajmal was not having licence for transporting or possessing poppy husk. He was arrested. Panchnamas were prepared. Dehati Nalishi at No. 0/99 was recorded by K.S. Parmar (PW 13). Police party came back to Police Station Chachoda alongwith seized poppy husk and truck and registered a case at Crime No. 188 of 1999 under section 8/15 of the NDPS Act. 4. Samples of poppy husk were sent for chemical analysis to FSL, Sagar. Panchnamas were prepared. Dehati Nalishi at No. 0/99 was recorded by K.S. Parmar (PW 13). Police party came back to Police Station Chachoda alongwith seized poppy husk and truck and registered a case at Crime No. 188 of 1999 under section 8/15 of the NDPS Act. 4. Samples of poppy husk were sent for chemical analysis to FSL, Sagar. On analysis, material was found to be poppy husk. On 2.7.1999, memorandum of appellant under section 27 of the Evidence Act has been recorded. On 4.7.1999, accused Murlidhar was arrested and memorandum under section 27 of the Evidence Act has been recorded by K.S. Parmar. 5. On completion of investigation, charge sheet under section 8/15 of NDPS Act has been filed in the trial Court. Charge under section 8/15 of NDPS Act was framed against appellant Raju alias Rajmal and Murli alias Murlidhar. They abjured the guilt and pleaded innocence. Appellant's defence is that he was apprehended from a hotel. He has not committed any offence. Defence ofMurli alias Murlidhar is that he was apprehended from his house. 6. Prosecution examined Hafiz Khan (PW 1), Kailash (PW 2), Chetram (PW 3), Mangilal (PW 4), Sureshbabu (PW 5), Shivcharan (PW 6), Majid (PW 7), Mukesh (PW 8), Rodilal (PW 9), Asharam (PW 10), Maqbool Khan (PW 11), Ramniwas (PW 12), Kamalsingh Parmar (PW 13) and Mahavir Prasad (PW 14). Ranvir Singh Jadon (DW 1) has been examined in defence. 7. On completion of trial and hearing both the parties, learned trial Court convicted appellant-accused Raju alias Rajmal under section 8/15 of the NDPS Act and sentenced as aforementioned. Learned trial Court acquitted accused Murli alias Murlidhar of the charge levelled against him. Accused Ishaq and Om Luhar are absconding so they could not be tried by the trial Court. Aggrieved by the judgment dated 16.10.2000, appellant preferred this appeal. 8. It has been argued by learned counsel for the appellant that impugned judgment is contrary to the evidence and documents proved by the prosecution. Investigating Officer did not comply the provisions of section 42 (2), section 50, section 55 and section 57 of the NDPS Act. Learned trial Court committed illegality in appreciating prosecution evidence. Appellant was not found in the truck. There are material contradictions in the prosecution evidence and learned trial Court overlooked these contradictions. Independent witnesses have not corroborated prosecution version. Investigating Officer did not comply the provisions of section 42 (2), section 50, section 55 and section 57 of the NDPS Act. Learned trial Court committed illegality in appreciating prosecution evidence. Appellant was not found in the truck. There are material contradictions in the prosecution evidence and learned trial Court overlooked these contradictions. Independent witnesses have not corroborated prosecution version. Learned trial Court committed illegality in relying interested prosecution witnesses. Learned trial Court did not consider that who is owner of the poppy husk and appellant was not in possession of poppy husk. Learned counsel for the appellant prayed to allow appeal and set aside impugned judgment and acquit appellant of the charge under section 8/15 of NDPS Act. 9. Learned Panel Lawyer of State supported impugned judgment and prayed for dismissal of appeal. 10. I have heard both the parties at length, perused impugned judgment, record of the trial Court and evidence adduced by both the parties. 11. Hafiz Khan (PW 1), Chetram (PW 3), Magilal (PW 4), Sureshbabu (PW 5), Shivcharan (PW 6), Mukesh (PW 8) and Rodilal (PW 9) turned hostile. They did not support prosecution story. They were cross-examined by Public Prosecutor but it turned to be futile exercise. Even in cross-examination, they did not corroborate statements of other prosecution witnesses. Hafiz Khan (PW 1) admitted his signatures on panchnama Ex. P-1 to P-7 including seizure memo and sealing of poppy husk but he denied all the facts mentioned in these documents. Statements of these witnesses are contrary to the documents and statements recorded during investigation. Consequently, statements of these witnesses are of no help to the prosecution. 12. K.S. Parmar (PW 13) on 1.7.1999 alongwith Head Constable Maqbool Khan (PW 11), Ramniwas (PW 12), Sainik Rajmal and Radhakishan started from PS Chachoda in search of an accused of Crime No. 183 of 1999 under section 376 of the IPC towards village Sagodi. In between Sagodi and Chachoda, informer informed K.S. Parmar that a truck bearing No. 3921 from Rajasthan loaded with poppy husk bags is stationed at village Sagodi. He prepared panchnama Ex. P-20 pertaining to this information. He alongwith police party rushed to the spot and found truck No. RPF 3921 standing alongside the roadside. He called panch witnesses. Truck was loaded with bags. Appellant-accused Raju alias Rajmal was on the truck. K.S. Parmar served notice Ex. He prepared panchnama Ex. P-20 pertaining to this information. He alongwith police party rushed to the spot and found truck No. RPF 3921 standing alongside the roadside. He called panch witnesses. Truck was loaded with bags. Appellant-accused Raju alias Rajmal was on the truck. K.S. Parmar served notice Ex. P-l under section 50 of the NDPS Act on appellant and asked him whether he wants his search to be done by Magistrate or by Gazetted officer. Appellant agreed for search of truck by K.S. Parmar. Panchnama Ex. P-4 was got prepared regarding consent of appellant. K.S. Parmar gave his personal search to accused-appellant and prepared panchnama Ex. P-5. Thereafter he searched the truck and found 63 bags of poppy husk in the truck. He prepared panchnama Ex. P-1 regarding search. He seized these bags of poppy husk as per Ex. P-3 seizure memo. Appellant Raju was not having license for possession or transportation of poppy husk. K.S. Parmar prepared two samples of poppy husk from the bags, weighing 250 grams each and sealed both the samples and prepared panchnama Ex. P-6. He also seized truck No. RPF 3921 vide seizure memo Ex. P-3. He arrested appellant- accused Raju on spot as per arrest memo Ex. P-17. K.S. Parmar also wrote first information report Ex. P-21 on the spot. Poppy husk bags were weighed. K.S. Parmar alongwith police party, appellant, seized articles and truck came back to the Police Station Chachoda and registered a case under section 8/15 of NDPS Act at Crime No. 188 of 1999 as per Ex. P-22 against appel1ant and his companions. On 4.6.1999, K.S. Parmar arrested accused Murli as per arrest memo Ex. P-24 and prepared memorandum under section 27 of the Evidence Act Ex. P-25 of Murli. During course of seizure proceedings information has been sent to SDOP regarding seizure of poppy husk as per letter Ex. P-13 and a copy of first information report has been sent to JMFC concerned as per Ex. P-23. Maqbool Khan (PW 11) and Ramniwas (PW 12) corroborated statement of Kamalsingh Parmar and supported prosecution story. Asharam (PW 10) handed over information pertaining to seizure of poppy husk to SDOP, Raghogarh in his office. Mahavir Prasad (PW 14) received seized poppy husk bags, sealed samples and kept property in Malkhana as per entry Ex. P-23A in Police Station Chachoda. He also made entries Ex. P-23, Ex. P-24, Ex. Asharam (PW 10) handed over information pertaining to seizure of poppy husk to SDOP, Raghogarh in his office. Mahavir Prasad (PW 14) received seized poppy husk bags, sealed samples and kept property in Malkhana as per entry Ex. P-23A in Police Station Chachoda. He also made entries Ex. P-23, Ex. P-24, Ex. P-25 and Ex. P-25A regarding departure and arrival back of police party from Police Station Chachoda. Since all independent witnesses turned hostile, conviction is based on the statements of police officers, K.S. Parmar, SHO, lodged FIR and conducted investigation, so their statements need close and careful scrutiny. Seizure of 63 bags of poppy husk from the truck No. RPF 3921 and formalities completed by K.S. Parmar under different provisions of NDPS Act have not been challenged by appellant. Hence, no detailed scrutiny of evidence is warranted regarding these documents. Main contention of learned counsel for the appe11ant is that appellant was not in conscious possession of poppy husk bags and learned trial Court committed illegality in holding him in possession of seized poppy husk bags and also in holding that appellant was found in truck. 13. It is admitted fact that K.S. Parmar was posted as SHO, Kumbhraj in Guna district and he was transferred to SHO, Police Station Chachoda. On 1.7.1999 he was relieved from Police Station Kumbhraj and on the same day, he is said to have joined at Police Station Chachoda. It is also admitted fact that relieving and joining is written in Rojnamcha Sanha. Ranvirsingh Jadon (DW 1) was posted as Head Constable Moharrir in Police Station Kumbhraj at the relevant time. Ranvirsingh Jadon deposed that on 1.7.1999, SHO, Kumbhraj, K.S. Parmar (Kamalsingh Parmar) has been relieved at 15:35 p.m. (3:35 p.m.). This fact was recorded by K.S. Parmar himself only in Rajnamcha Sanha Ex. D-2. Ex. D-2 is a public document and it has been proved by Head Constable Maharrir, Kumbhraj Jadon's aforesaid statement has not been challenged by prosecution in cross-examination. Ranvirsingh has also deposed that a copy of Ex. D-2 of Rojnamcha Sanha has been sent to SDO, Police, Raghogarh also. Though Kamalsingh Parmar (PW 13) deposed that he does not remember that when he was relieved from P .S. Kumbhraj and when joined at Police Station Chachoda but he admitted that he used to enter his relieving and joining in Rojnamcha Sanha. D-2 of Rojnamcha Sanha has been sent to SDO, Police, Raghogarh also. Though Kamalsingh Parmar (PW 13) deposed that he does not remember that when he was relieved from P .S. Kumbhraj and when joined at Police Station Chachoda but he admitted that he used to enter his relieving and joining in Rojnamcha Sanha. Statement of Ranvirsingh Jadon is corroborated by document Ex. D-2 which proves that K.S. Parmar was relieved as SHO, Kumbhraj, on 1.7.1999 at 3:35 p.m. Before 1.7.1999 at 3:35 p.m. Kamalsingh Parmar was SHO, Kumbhraj, and he was not actually SHO, Chachoda. From the evidence of Ranvirsingh Jadon, it is proved that on 1.7.1999 at 3:35 p.m., K.S. Parmar (PW 13) was present in the Police Station Kumbhraj and he left Police Station Kumbhraj after 3:35 p.m. only. That is to say, it is proved by evidence of Ranvirsingh Jadon that K.S. Parmar has not joined as SHO, Chachoda on 1.7.1999 at or before 3:35 p.m. which proves that K.S. Parmar joined as SHO, Chachoda on 1.7.1999 after 3:35 p.m. 14. Mahavir Prasad (PW 14) was posted as Head Constable Maharrir in Police Station Chachoda. He deposed that on 1.7.1999, K.S. Parmar (PW 13), Head Constable Maqbool Khan (PW 11), Ramniwas (PW 12), Sainik Rajmal and Radhakishan started from the Police Station Chachoda to Kumbhraj Sagodi. Their departure from police station has been entered in Rojnamcha Ex. P-24 and arrival as Ex. P-25. On perusal of Ex. P-24, it reveals that it has been recorded at 14:50, i.e., 2:50p.m. on 1.7.1999 and their arrival as per Ex. P-25 to Police Station Chachoda on 1.7.1999 at 19:25, i.e., 7:25 p.m. It has been proved by defence evidence that on 1.7.1999, K.S. Parmar (Kamalsingh Parmar) was at 15:35 p.m. relieved from the Police Station Kumbhraj for PS Chachoda and even if he joined as SHO, Chachoda on the same day, K.S. Parmar was present in Police Station Kumbhraj on 1.7.1999 at 3:35 p.m. Hence, it is not possible that he might have joined as SHO, Chachoda before 3:35 p.m., i.e. to say that at 2:40 p.m. K.S. Parmar stated that he joined at Chachoda in the afternoon but he has not given exact time. Considering Rojnamcha Sanha Ex. D-2 with reference to Kumbhraj Police Station, a strong presumption can safely be drawn that entry in Ex. Considering Rojnamcha Sanha Ex. D-2 with reference to Kumbhraj Police Station, a strong presumption can safely be drawn that entry in Ex. P-24 is not genuine and false and it has been made after seizure of truck and poppy husk. Statement of Ranvirsingh Jadon and entry of Rojnamcha Ex. D-2 falsify the fact that K.S. Parmar joined as SHO, Chachoda at or before 2:40 p.m. on 1.7.1999. In these circumstances, this fact is also falsified that on 1.7.1999 at about 2:40 p.m., K.S. Parmar started with police party from Police Station Chachoda in search of an accused or Crime No. 183 of 1999 under section 376 of IPC towards Sagodi village as SHO, Police Station Chachoda, because as per defence document Ex. D-2, he was not relieved from Police Station Kumbhraj before 3:35 p.m. and question of joining before 3:35 p.m. on 1.7.1999 does not arise. This fact demolishes whole prosecution story. 15. K.S. Parmar (PW 13) deposed that when he reached to spot he found appellant Raju on the truck while Maqbool Khan (PW 11) and Ramniwas (PW 12) deposed that Raju was standing near the truck. They also deposed that K.S. Parmar asked about bags in the truck, Raju replied that he is near the truck and his companion Murli alias Murlidhar, Satish, Ishaq and driver went somewhere. K.S. Parmar (PW 13) in examination-in-chief deposed that Raju replied that his name is Raju r/o Chheepabadaud and Maqbool Khan deposed that they started from police station at 9 to 10 a.m. and reached to Kusumpura Ghati at about 10:10 a.m. then again deposed that at about 10 a.m. they reached at Kusumpura Ghati. In cross-examination, Maqbool Khan deposed that Raju told that he alongwith Murli alias Murlidhar, Satish and Ishaq loaded poppy husk in truck and owner of the truck is Murli Maheshwari. Ramniwas (PW 12) deposed that they reached Sagodi Ghati at about 5 p.m. while K.S. Parmar in cross-examination admitted that on spot, he did not interrogate Raju about poppy husk. On way to Chachoda, he interrogated Raju. K.S. Parmar stated that he and Raju were travelling in Government vehicle. Raju was sitting rear side of the vehicle and in vehicle only Raju stated that who were with him to bring poppy husk. On way to Chachoda, he interrogated Raju. K.S. Parmar stated that he and Raju were travelling in Government vehicle. Raju was sitting rear side of the vehicle and in vehicle only Raju stated that who were with him to bring poppy husk. Maqbool Khan stated that he was also in the same vehicle in which appellant and K.S. Parmar were sitting, while Ramniwas (PW 12) deposed that from spot on way to Chachoda, he, appellant Raju, Darogaji (K.S. Parmar) and Maqbool Khan were travelling in seized truck and Sainik Rajmal and driver were travelling in Government vehicle. He specifically reiterated that he was with K.S Parmar, Raju appellant and Maqbool Khan, were not travelling in Government vehicle. It is clear that there are material contradictions in the statements of Maqbool Khan, Ramniwas and K.S. Parmar regarding interrogation of Raju by K.S. Parmar and reply by Raju. Consequently, statements of Maqbool Khan, Ramniwas and K.S. Parmar become doubtful regarding said information given by appellant-accused. There is also contradiction in the statement of K.S. Parmar from the statement of Maqbool Khan and Ramniwas on the point whether appellant Raju was found in the truck or outside the truck on the road. It is settled principle of law that when there are two sets of evidence and one is favourable to accused, that should be acted upon. Hence, statement of K.S. Parmar that appellant was found on truck becomes doubtful and it cannot be held on the basis of statement of K.S. Parmar that appellant was found on the truck. It cannot also be held on the evidence of Maqbool Khan, Ramniwas and K.S. Parmar, looking to the material contradictions in their statements, that appellant Raju admitted that he alongwith others loaded poppy husk in the truck which belongs to them. Learned trial Court committed error in relying evidence of these witnesses without any independent corroboration. It has not been proved by cogent and reliable evidence that appellant Raju alias Rajmal was found in the truck when K.S. Parmar and police party reached on the spot. 16. Looking to the fact that KS. Parmar was relieved on 1.7.1999 at 3:35 p.m. from Police Station Kumbhraj, his presence on the spot at about 4 p.m. as per Ex. P-1 is doubtful rather falsified by document Ex.D-2 and evidence of R.S. Jadon (DW 1). 16. Looking to the fact that KS. Parmar was relieved on 1.7.1999 at 3:35 p.m. from Police Station Kumbhraj, his presence on the spot at about 4 p.m. as per Ex. P-1 is doubtful rather falsified by document Ex.D-2 and evidence of R.S. Jadon (DW 1). Consequently, statements of Maqbool Khan, Ramniwas and K.S. Parmar are not reliable and learned trial Court committed illegality in relying on their statements. 17. Relying on 2002 SCC (Cri) 1769 [Avtar Singh and others v. State of Punjab ], learned counsel for the appellant argued that even assuming that appellant was found in the truck, it cannot be presumed that he was in possession of poppy husk bags and no nexus can be assumed between accused and the above truck. It has been argued by learned counsel for the appellant that prosecution failed to prove possession of appellant over truck and bags of poppy husk. It is clear from the record that no investigation is directed to ascertain the role played by appellant and other accused and the nexus between accused and offending goods. Appellant Raju alias Rajmal was found standing outside the truck and as per prosecution story, other persons were also travelling in the truck and they went to fetch diesel, hence, it was quite probable that one of the said persons could be custodian of goods in question. A person who is merely standing near the truck, in the absence of proof of anything more, cannot be presumed to be in possession of goods. 18. On facts and as per above discussion, I am of the view that learned trial Court committed illegality and perversity in relying prosecution evidence and holding that 63 bags of poppy husk were found in conscious possession of Raju alias Rajmal and he committed offence under section 8/15 of NDPS Act. In my opinion, on facts, it was not safe to convict appellant of the offence levelled against him. In my opinion, prosecution has failed to prove beyond reasonable doubt that on 1.7.1999, 63 bags of poppy husk were found in possession of appellant Raju alias Rajmal without licence and he committed offence under section 8/15 or NDPS Act, 1985. Impugned judgment of trial Court is not sustainable. 19. Consequently, appeal is allowed. Impugned judgment dated 16.10.2000 passed by the trial Court is hereby set aside. Impugned judgment of trial Court is not sustainable. 19. Consequently, appeal is allowed. Impugned judgment dated 16.10.2000 passed by the trial Court is hereby set aside. Appellant is acquitted from offence under section 8/15 of NDPS Act, if he is not required in any other offence, he be released from jail forthwith.