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Madhya Pradesh High Court · body

2006 DIGILAW 788 (MP)

Ambaram v. State of M. P.

2006-06-27

S.C.VYAS

body2006
JUDGMENT 1. This appeal is directed against the impugned judgment, order of conviction and sentence dated 19.4.2005 recorded by Special Judge Ratlam in Special Case No. 24 of 2003, wherein and whereby appellant Ambaram son of Nathu has been found guilty for commission of offence under section 8/18 (c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter shall be referred to as the 'Act') and sentenced him to undergo RI for five years and fine of Rs. Fifty thousand, in default to further undergo RI for six months. 2. In short, facts of the case are that on 12.5.2003 at about 11 a.m. Inspector Mr. S.P.Panwar of Police Station, Jaora has received an information from Mukhbeer that accused appellant would come on motorcycle bearing Registration No. MP-43-B-3434 at Sawariya Restaurant. A panchnama was prepared in this regad before Panch witnesses Mukesh and Wahid. Since there was no time left for obtaining search warrant, therefore a copy of information was sent to SDO (P) through constable Vijaysingh. A team of police force headed by Mr. S.P.Panwar, Sub Inspector proceeded to the spot. After some time appellant came on motorcycle bearing No. MP-43-B-3434. He was intercepted by Sub Inspector Panwar and was apprised with the information of the informer. He was also informed that he has right to give his search before the Magistrate or a Gazetted Oficer, but, appellant gave his consent to be searched by Inspector Panwar. A panchnama in this regard was prepared which was signed by accused appellant. Thereafter search of the motorcycle was made on which a Dicky was found. The Dicky was opened, in which a Polythene bag was kept. The bag was opened, thereupon opium was found. It was weighed and was tasted by Tastekit. On weighment it would found 1.50 gms. Out of which two samples of 24 gms. each were drawn separately and kept in a cigarette box. Both the sample boxes were sealed. A chit was pasted duly signed by the panch witnesses; Sub Inspector and the accused. A seal of Police Station (City) Jaora was also affixed. Both the packets were marked as Art. A-1 & A-2. Thereafter appellant was arrested. An offence was registered against the appellant. A detailed report under the provisions of section 57 of the Act was sent to SDO (P) Jaora. One packet of sample was sent for chemical examination. A seal of Police Station (City) Jaora was also affixed. Both the packets were marked as Art. A-1 & A-2. Thereafter appellant was arrested. An offence was registered against the appellant. A detailed report under the provisions of section 57 of the Act was sent to SDO (P) Jaora. One packet of sample was sent for chemical examination. After chemical examination the Chemical Examiner found 4.27% of Morphine which was confirmed opium. After completing investigation, a charge-sheet was filed before the trial Court. 3. The learned trial Judge framed the charge under section 8 read with section 18 (c) of the Act against the accused appellant. The accused appellant denied the same pleaded not guilty. No evidence was produced in defence. After concluding the trial, the learned trial Judge found the appellant guilty, convicted and sentenced him as stated hereinabove. 4. Prosecution has examined as many as 10 witnesses to prove the guilt of the appellant. 5. Learned counsel for the appellant has argued vehemently and submitted that the accused appellant has been falsely implicated. All the documents and panchnamas were prepared at the Police' Station. The alleged motorcycle seized during investigation was registered in the name of Laxminarayan (PW 9) and Jaffar Ali. The accused appellant was not the registered owner of the motorcycle. Panchnama Ex. P. was prepared with regard to the information received by the Investigating Officer Mr. S.P. Panwar. On perusal of this panchnama there appears a disturbing factor. It contained thumb impression of appellant Ambaram. At this point of time the appellant at all did not come in the picture. Similarly another panchnama Ex. P-2 was also drawn by the I.O. before proceeding to the place of incident to show that there was no time left to obtain the search warrant. It also contained the thumb impression of the appellant. These two panchnamas were prepared before arrival of the appellant in picture. No plausible explanation was offered by this witness with regard to the thumb impression of the appellant. On the contrary in para 23 of his cross examination he categorically stated that when he received the information at Police Station, the Town Inspector was not present there, therefore, he himself had obtained the thumb impression of the appellant on these panchnamas and were written by his own ·handwriting. On the contrary in para 23 of his cross examination he categorically stated that when he received the information at Police Station, the Town Inspector was not present there, therefore, he himself had obtained the thumb impression of the appellant on these panchnamas and were written by his own ·handwriting. Even at that time he failed to offer any explanation with regard to the thumb impression of the appellant. 6. Learned counsel Mr. Prasanna Prasad Bhatnagar appearing for appellant submitted that the aforesaid glaring factor was brought to the knowledge of the trial Judge and was argued, but, he brushed aside only on the ground that no such question was asked by the defence counsel during cross examination of PW 6 and PW 7. 7. Learned counsel Mr. Prasanna Prasad Bhatnagar also referred the statement by Mukesh PW 7 who was not declared hostile by the prosecution. Initially in examination in chief he had supported the prosecution case, but, later on, when cross-examination was deferred for few days for want of seized articles. Later on during cross-examination, he tried to demolish the prosecution case and deposed that no search and seizure was effected in his presence and his signatures were obtained in police station. He stated in his cross-examination that all the documents were prepared at the police station by Police Inspector Panwar and his signatures were obtained on the documents in presence of the appellant Ambaram. "He also deposed that at that time the Opium was also there in the room of Sub Inspector and was kept in open condition and was not seized by that time and Inspector informed him that he brought Ambaram along with motorcycle from the bus stand. 8. Thus considering the submissions of the learned counsel and after going through the evidence of PW 6 Shaligram Panwar and PW 7 Mukesh, it creates doubt in my mind and the whole investigation done by Investigating Officer was in a doubtful manner and shows that all the documents were prepared at the police station in a hist-haste manner. In such a situation the initial part of the prosecution case becomes doubtful and the benefit of the same goes in favour of the appellant. Therefore, it is held that it has not proved beyond doubt that he has received information that appellant would come on the motorcycle with opium. 9. In such a situation the initial part of the prosecution case becomes doubtful and the benefit of the same goes in favour of the appellant. Therefore, it is held that it has not proved beyond doubt that he has received information that appellant would come on the motorcycle with opium. 9. The evidence of Mukesh PW 7 also demolish the evidence of PW 6 Shaligram Panwar with regard to the search of the appellant's Motorcycle; recovery of Opium, seizure and sealing of the seized Opium. PW 7 Mukesh has deposed and contradict the evidence stated by PW 6 Shaigram Panwar. Even in examination-in-chief this witness does not state that the name and address of the appellant was ascertained by the Inspector. Later on in cross-examination he clarified that the article was kept in the police station and all the panchnamas were prepared at the police station. Thus from the aforesaid evidence, the recovery of Opium also becomes doubtful. 10. Learned counsel further submitted that the samples taken from the seized Opium were not kept in proper custody and has not been proved so by the prosecution. In this regard he placed reliance on the judgment reported in the matter of Valsala v. State of Kerala [ AIR 1994 SC 117 ]. In the referred case there was delay of more than three months in sending seized article to the Court and there was no evidence to show that article was sealed and kept in proper custody in police station. Sending of the very article seized to Chemical Examiner was found highly doubtful. 11. In the case in hand the evidence of PW 3-HC Balkrishna Bhartiya and PW 4 Surendraprasad constable was critically examined. PW 3 Balkrishna has admitted in his cross-examination that the seal impression was not deposited along with the sample. There was only one seal of the police station which is also kept in the Malkhana, but as and when it was taken out from the Malkhana, no entry was made in this regard in the register. Thus it was always possible to obtain that seal at any point of time from the Malkhana and to use it. This witness also stated that earlier on 14th May, 2003 sample Art. A-.l ws sent through constable Surendraprasad, but it was redeposited by him in the Malkhana, as the laboratory was closed. Thus it was always possible to obtain that seal at any point of time from the Malkhana and to use it. This witness also stated that earlier on 14th May, 2003 sample Art. A-.l ws sent through constable Surendraprasad, but it was redeposited by him in the Malkhana, as the laboratory was closed. It was again given to him on 18th for depositing the same in the laboratory. Thus from 12th May to 18th May, 2003 for six days, the seal was there, regarding which there was no entry of using it and obtaining it from Malkhana. Therefore, the possibility cannot be ruled out that the very article was not sent for chemical examination which was seized from the appellant. 12. From the aforesaid discussions, the irresistible conclusion is that the whole prosecution case appears to be doubtful. The whole investigation conducted in a very doubtful manner. The evidence of prosecution witnesses is wholly not reliable. Therefore, it would not be safe to hold the appellant guilty of the offence charged. The learned trial Judge miserably failed to appreciate the evidence led by prosecution in right perspective and grossly erred in holding the appellant guilty. 13. Consequently, in the result the appeal is allowed. The impugned judgment and order of conviction sentence of the trial Court is hereby set aside. The appellant is acquitted of the charge levelled against him. He be set at liberty forthwith if not required in any other criminal case.