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Madhya Pradesh High Court · body

2007 DIGILAW 1132 (MP)

Sukhlal v. State of M. P.

2007-10-24

S.R.WAGHMARE

body2007
ORDER 1. Being aggrieved by judgment dated 29.7.2005 passed by the Sessions Judge, Mandleshwar in ST No.04/2003 convicting the appellant Sukhlal under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "the Act" for brevity) and sentencing him to seven years rigorous imprisonment and Rs.50,000/- as fine and in default of payment of fine, additional simple imprisonment for one year, the accused-appellant has filed this appeal under section 374 of the CrPC. 2. Brief facts of the prosecution in a nutshell are that Station House Officer Shri Mandleshwar (PW 10) on receipt of information from the informant on 27.12.2002 along with the task force searched the house of accused Sukhlal and found a white bag of fertilizer containing illegal contraband cannabis (ganja) weighing 4 kg. and 200 grams for which accused Sukhlal could not give any satisfactory explanation. The contraband was seized in front of the Panch witnesses, the accused-appellant arrested and offence registered and after completion of investigation, the matter was sent to the committal Court for trial. The accused-appellant abjured his guilt and took up the plea of maladroit implication and also stated that the cannabis was not actually recovered from his house but from the road in front of the house and in his defence, he examined one Gangaram (DW 1) as defence witness. 3. The trial Court, on considering the evidence and witnesses led by the prosecution as well as that of the defence, however, came to the conclusion that the accused-appellant was guilty as charged, convicted and sentenced him as herein above stated. Hence, this appeal. 4. Besides, usual objections regarding procedural safeguards not having been followed, learned counsel for the appellant has mainly filed this appeal on the ground that the accused was not in the house at the time of recovery of contraband and it could not be said that the cannabis was recovered from the conscious possession of the accused and therefore, it was a clear case of the accused-appellant having been falsely implicated. 5. He further urged that the prosecution had also failed to prove its case since Sabalsingh, the Sarpanch (PW5) and (PW6) Naniya have been declared hostile as they did not support the prosecution. 5. He further urged that the prosecution had also failed to prove its case since Sabalsingh, the Sarpanch (PW5) and (PW6) Naniya have been declared hostile as they did not support the prosecution. That the prosecution had also miserably failed to prove the spot of recovery since the spot map EX.P-9 was prepared by the Investigating Officer (PW9) Shri R.C. Jat and had not been prepared by the Patwari nor was the register produced for its verification. The prosecution has simply rested its case on the testimony of (PW 11) Dr. N.S. Parmar, (PW8) Parasram, (PW9) R.C. Jat, (PW 10) Radheyshyam Mandloi and (PW 11) Ramsingh Meda, who were all officers of police force and being prejudiced the counsel submitted their testimony ought not to have been relied on by the trial Court. 6. Learned counsel for the appellant submitted that when the contraband was recovered from the premises of the accused-appellant and there was no evidence to the effect that he was in possession of those premises and also regarding to the fact that he had brought the contraband or was dealing in it or that he had handled it or was in any way concerned with it, then accused is entitled to be acquitted. (1) Relying on Mohan Parida v. State [EFR 2001(1) 171], learned counsel stated that non-examination of Executive Magistrate, Revenue Inspector and other independent witnesses to the seizure is held that it would be quite unsafe to place reliance on inconsistent and discrepant statements of prosecution and that the accused-appellant was entitled to acquittal. Moreover, seized spot, according to the learned counsel had not been identified as the accused-appellant had denied that the seized ganja was recovered from his house and has been simply supported by Dr. N.S. Parmar (PW 1), who categorically stated that potali (bag) was received from the road in front of the house of the accused-appellant and the spot map as already stated had not been prepared by the Patwari nor corroborated from the register. N.S. Parmar (PW 1), who categorically stated that potali (bag) was received from the road in front of the house of the accused-appellant and the spot map as already stated had not been prepared by the Patwari nor corroborated from the register. (2) Learned counsel relied on Radheyshyam v. State of U.P. [ 2003 CrLJ 165 ], where under similar circumstances High Court of Allahabad held that when seizure of the said ganja by Sub-Inspector and Circle Officer was from person of accused in dilapidated house and the two public witnesses were outsiders and did not hail from village where alleged seizure was conducted, they did not even support prosecution case. The trial Court found that the evidence of Sub-Inspector was not reliable in view of fact that he wrongly described the location of seizure spot. Infirmities and inconsistencies in prosecution evidence as to arrest and seizure led to conclusion that Sub-Inspector and Circle Officer never visited the place of arrest and recovery. The Court therefore held that conviction of accused was liable to be set aside. (3) Learned counsel relied on Thulaseedasan v. State of Kerala [2002 CLJ 2522], where only a small quantity of ganja had been recovered and the substantive term of sentence was reduced to already undergone and fine was also reduced. (4) Finally, learned counsel for the appellant, while disputing fact that the contraband was recovered from the possession of the accused relied on a judgment of the Supreme Court in the matter of Megh Singh v. State of Punjab [ AIR 2003 SC 3184 ], whereby apex Court while defining word 'possession' and its meaning as it appears in section 20(b) of the Act held that the requirement was that possession must be a conscious possession in order to make the possession illicit. To Bolster his submissions, learned counsel for the appellant also relied on : i) Rajamma v. State of Kerala [2001(2) FER 212]; ii) Dilip and another v. State of M.P. [ 2008(1) JLJ 142 =2007(2) SCC (Cri) 377]; iii) Megh Singh v. State of Punjab [ AIR 2003 SC 3184 ]; iv) Radhey Shyam v. State of U.P. [ 2003 CrLJ 165 ]; v) Antony Sauri Pilley v. State of Maharashtra [1993 CrLJ 502]; vi) Ismailkhan Ajyubkan Pathan v. State of Gujarat [2001(2) EFR 6] vii) Sukadev Samantaray v. State of Orissa [2001(1) EFR 326]; viii) Thulaseedasan v. State of Kerala [ 2002 CrLJ 2522 ]. To state that the provisions under NDPS Act were not followed and if the contraband was not recovered from the conscious possession and the prosecution failed to prove that the seized contraband was seized from the conscious possession of the accused, then he was entitled to acquittal. Learned counsel also stated that in the aforesaid cases the Court had held framing of the charge itself would be defective under section 20(b) of the NDPS Act since the charge also framed under CrPC of section 165. 7. Learned counsel for the State, on the other hand, has fully supported the judgment of the trial Court and stated that all the procedural safeguards as prescribed under section 42 of the Act have been complied with on information received by the Station House Officer Shri R.C. Jat (PW9) (who was also Investigating Officer) from the informant tat in village Awaliya illegal cannabis (ganja) was being kept in the house of one Sukhlal, entry was made in Rojnamcha sanha EX.P-19 at serial No. 1373 on date 27.12.2002. The witnesses (PW2) Kalidas and (PW3) Saligram were summoned before him. Police Officer gave their examination and after taking the examination of witnesses before proceeding towards the house of Sukhlal and SDOP Shri Farukhi. Superior officer was informed on telephone. The entry was made in Rojnamcha sanha at serial No. 1374. Thereafter, before panch witnesses they gave their own search and made entry into the house of Sukhlal, who had absconded by then and found a bag of plastic containing the contraband, which was duly put into samples of 100 grams each and rest of the contraband was sealed. The contraband had initially being weighed after calling one Gajendra Jaiswal. Thereafter, before panch witnesses they gave their own search and made entry into the house of Sukhlal, who had absconded by then and found a bag of plastic containing the contraband, which was duly put into samples of 100 grams each and rest of the contraband was sealed. The contraband had initially being weighed after calling one Gajendra Jaiswal. Its panchnama was Ex.P-13, which was also prepared in accordance with law. Learned counsel stated that all the procedural safeguards had strictly been followed and the contraband was recovered from the house of Sukhlal, he could not escape the liability since he could not deny his conscious possession as he was the owner of the house. Learned counsel for the State has stated that the testimony of the prosecution witnesses could not be altogether discarded merely because they belonged to the department. The Court has to assess worth of such evidence from the facts and circumstances and other materials available on record and if these statements inspire confidence, it has to be accepted by Courts for purpose of recording conviction of accused. 8. Relying on Gyan Chandra and another v. State and another [ 2005 CrLJ 3228 ], learned counsel for the State has stated that the conviction followed since the evidence of prosecution witnesses was corroborated by the recovery as well as the other documents and when samples had been prepared and sent properly for analysis, it was found that the contents were contraband and psychotropic substances. The fact that the recovery bf the contraband was from premises over which the accused-appellant was owner and in possession was also proved to the hilt from evidence available on record then conviction of the accused person was proper. Relying on spot map, learned counsel has submitted that EX.P-9 was never challenged by the accused-appellant and it was an admitted fact that the house belonged to accused Sukhlal. Besides EX.P-9 as been proved by Patwari (PW 4) Mishrilal, who had categorically stated that EX.P-7 in support had been prepared by him and also indicated that the house on Kamsan khasra No.37 belongs to accused-appellant Sukhlal. Besides EX.P-9 as been proved by Patwari (PW 4) Mishrilal, who had categorically stated that EX.P-7 in support had been prepared by him and also indicated that the house on Kamsan khasra No.37 belongs to accused-appellant Sukhlal. Thus clinching the issue EX.P-9 the spot map could not be challenged as it had been duly proved and verified, learned counsel for the State further relied on Radhakisan Parashar v. State [ 1988 CrLJ 17 ], whereby Bombay High Court held that unless and until the contrary is proved as occurring in section 54 clearly imposes the burden of proving that the possession of the prohibited substance is legal on the accused himself and that dispenses entirely the prosecution from proving that possession of such substances is illegal and sections 20 and 54 of the Act clearly lay the burden on the accused relating possession of the prohibited substances which he had been unable to discharge in the present case. 9. The accused has miserably failed to produce any evidence that he was in lawful of the said substance and in view of the statutory presumption under section 54 of the Act, learned counsel stated that the trial Court had rightly held that the accused has committed the offence under section 20(b) of the Act. Further relying on credibility of the evidence of the official witnesses could not be doubted relating to the effect of the search carried out unless there was violation of the provision of law and the credibility of search evidence depended on facts and circumstances of each case; learned counsel for the State has stated that there was no infirmity in the judgment of the trial Court and stated that appeal may be dismissed as it was without substance. 10. Having considered the above submissions and having perused the record as well as the impugned judgment I find that (PW9) Shri R.C. Jat, Investigating Officer has been steadfast in his testimony and cross-examination. He has categorically stated that all due procedural safeguards as prescribed and available to the accused under the Act have been followed and the information and other entries have been recorded in Rojnamcha sanha. The information has also been promptly sent to the superior officer Shri Farukhi. He has categorically stated that all due procedural safeguards as prescribed and available to the accused under the Act have been followed and the information and other entries have been recorded in Rojnamcha sanha. The information has also been promptly sent to the superior officer Shri Farukhi. The disputed spot map Ex.P-9 has been duly proved by the Patwari Mishrilal (PW 4), and there is no getting away from the hard fact that the contraband was recovered from the house of Sukhlal although he was not present. 11. Therefore, the main question pressed in the appeal that arises for consideration is whether the contraband was seized from the conscious possession of the accused. Dealing with facts first whether the contraband was recovered from the road in the form of potli (bag) as stated by defence witness; I find from the record that the fact is an omnibus statement by (DW 1) Gangaram and not at all supported by any concrete evidence although admittedly accused Sukhlal was not on the premises when the contraband was seized. 12. Then, under the circumstances it would be profitable to refer to the case of Megh Singh (supra), whereby the apex Court has held that requirement of sections 55, 20, 54 and 35 of the Act was that the possession must be conscious possession. Section 20(b) makes possession of contraband articles an offence. In order to make the possession illicit, there must be conscious possession. "The expression 'possession' is a polymorphous term which assumes different colours in different contexts. It may carry different meanings in contextually different backgrounds. It is impossible to work out a completely logical and precise definition of 'possession' uniformally applicable to all situations in the context of all statutes. Possession in a given case need not be physical possession but can be constructive." 13. The apex Court further has held that "the word 'conscious' means awareness about a particular fact. It is a state of mind which is deliberate or intended. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Once possession is established the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge. Section 35 of the Act gives a statutory recognition of this position because of presumption available in law. Similar is the position in terms of section 54 where also presumption is available to be drawn from possession of illicit articles." 14. Reference could also be made to Ramesh Haldar v. State of Orissa [2002 CrLJ NOC 46 (Cri)], where the Court found that there was failure on the part of Magistrate to examine witnesses to state the place from which ganja was recovered and revenue record showed the joint possession of house by accused and his brother then the search and seizure in the circumstances being doubtful cannot be relied on for conviction. 15. While in the instant case, the accused has also not denied the house belonged to him whereas the prosecution has fully established that the house belonged to Sukhlal vide evidence of Mishrilal (PW 4) and entered in the revenue records and hence there is no alternative but to draw the legitimate inference that the contraband was in the conscious possession of accused Sukhlal. The statutory presumption as pointed out by the learned counsel for the State is available to the prosecution and all the cases cited by the counsel for the accused are tangentially off the point. In all those cases either the accused was found sitting on the bag or contraband found in public place, etc. The possession could not be proved since the premises did not belong to the accused and liability could not be fastened on the accused in absence of proof of his exclusive possession of the premises. 16. In the instant case, the investigation was completed from beginning to end in accordance with law. There is clear cogent evidence regarding exclusive possession of the contraband by the accused. All the provisions of law have been complied with then conviction is proper in the present case. {Parshotam Lai and others v. State [ 2001 CRLJ 3378 ] and Ibrahim Ansari v. State of Bihar [ 2002 CrLJ 148 ] relied on.} 17. Thus, I do not find any violation of the provisions of the Act so as to entitle the accused to an acquittal. {Parshotam Lai and others v. State [ 2001 CRLJ 3378 ] and Ibrahim Ansari v. State of Bihar [ 2002 CrLJ 148 ] relied on.} 17. Thus, I do not find any violation of the provisions of the Act so as to entitle the accused to an acquittal. The quantity found happens to be more than small as indicated and hence the alternative prayer of the learned counsel for the accused cannot be acceded to. I fully affirm the finding of the trial Court and do not find any substance in appeal. Appeal is dismissed as sans merit.