Research › Search › Judgment

Madhya Pradesh High Court · body

2007 DIGILAW 916 (MP)

Narayanlal S/o Bhanwarlal v. State of M. P.

2007-08-21

S.L.KOCHAR

body2007
JUDGMENT : S.L. KOCHAR, J. 1. This appeal has been directed against the impugned judgment dated 18-8-1994 passed by learned Second Additional Sessions Judge, Neemuch in Sessions Trial No. 130/1993 convicting and sentencing the appellant under section 8 read with section 21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”) and sentence to R.I. for ten years and fine of Rs. One Lakhs. 2. The prosecution case in short as unfolded before the trial Court is that on 16-1-1993, police of police station Choti Sadhadi, District Chittor (Rajasthan) had arrested acquitted co-accused Vikram Nai and Omprakash Dholi with illegal possession of smack. Against them, in the said police station, Crime No. 14/1993 was registered. During the course of investigation acquitted co-accused Vikram Nai gave information to the police that he had kept some quantity of smack with the present appellant Narayanlal, resident of village Jeeran, District Neemuch (Madhya Pradesh). On the basis of this information, Station House Officer Sohansingh of police station Choti Sadhadi along with Station House Officer Bahadursingh of police station Badi Sadhadi along with acquitted co-accused Vikram and Omprakash came to village Jeeran and sought assistance from Jeeran police. In presence of panch witnesses the house of the appellant was searched and they found behind the oven an aluminum Katordan wherein in white polythene packet some gray colour powder was found and the same was giving smell like opium. According to them it was brown sugar. On weighment total weight was 85 grams. Two samples each of 5-5 grams were taken separately and sealed in empty cigarette packet. Rest 75 grams brown sugar was sealed in the same aluminum container. After completion of seizure and sealing proceeding, appellant was arrested and police prepared Exhibit P-1 the panchanama regarding search of the house and seizure of brown sugar. Spot map Exhibit P-2 was also prepared. The Station House Officer Bahadursingh prepared Kayami document Exhibit P-5 and handed it over to constable Ramesh along with seized brown sugar sample packet and all the documents prepared on the spot with arrested accused Narayanlal. In police station Jeeran Station House Officer registered the First Information Report Exhibit P-4. He took all the documents and seized sealed property from constable Ramesh and also prepared the arrest memo of appellant Narayanlal and acquitted co-accused Omprakash and Vikram. In police station Jeeran Station House Officer registered the First Information Report Exhibit P-4. He took all the documents and seized sealed property from constable Ramesh and also prepared the arrest memo of appellant Narayanlal and acquitted co-accused Omprakash and Vikram. The seized samples of brown sugar were sent to Forensic Science Laboratory and its report is Exhibit P-14. According to the report, sample was of heroine/brown sugar. After necessary investigation accused persons were charge-sheeted for abovementioned offence. 3. Accused persons denied the charges. They have not examined any witnesses in defence. Learned trial Court, after examination of the prosecution witnesses and hearing both the parties, while acquitting co-accused Vikram and Omprakash convicted the appellant as mentioned hereinabove. 4. Learned counsel for the appellant has submitted that no evidence has been lead by the prosecution to establish beyond reasonable doubt that the house which was searched was owned and in possession of the appellant and no documents has been filed in the instant case to show that co-accused Vikram and Omprakash gave any information to Sadhadi police regarding keeping of alleged seized brown sugar in the house of the appellant within his knowledge. The learned counsel on these two grounds assailed the impugned judgment of conviction. 5. On the other hand, learned counsel for the State has supported the impugned judgment and finding arrived at by the Trial Court and according to him oral information given by acquitted co-accused to the Sadhadi police can be considered for the purpose of taking search of the house of the appellant. 6. Having heard the learned counsel for the parties and after perusing the entire record this Court is of the view that there is substance in the arguments of the learned counsel for the appellant. In the instant case only independent panch witness PW-1 has been examined and he has not supported the prosecution case. Another panch witness Bhanwarlal has not been examined by the prosecution for reason best known to the prosecution. There is no documentary or oral evidence adduced by the prosecution to establish that the house which was searched was in settle possession of the appellant Narayanlal. Another panch witness Bhanwarlal has not been examined by the prosecution for reason best known to the prosecution. There is no documentary or oral evidence adduced by the prosecution to establish that the house which was searched was in settle possession of the appellant Narayanlal. The settled possession has been described in judgment rendered by Supreme Court in the case of Munshi Ram and Others vs. Delhi Administration, AIR 1968 SC 702 “to mean such clear and effective possession of a person even if he is a trespasser, who gave the right under the criminal law to defend his property against attack even by the true owner.” In the instant case prosecution is required to prove the settled possession of the appellant as well as conscious possession of the narcotic drug/heroine said to have been found inside the house behind the oven. It is not the prosecution case that appellant gave information about hiding of the heroine in an aluminum container behind oven inside the house and in pursuance of the said information, he got the same recovered and prior to the statement given by the appellant police was not knowing about the place of the contraband article. In the opinion of this Court prosecution is not required to establish the title and ownership of the house except the settled possession of the appellant Narayanlal and he can had the same possession as an owner, as encroacher or as a tenant. No evidence to this effect has been adduced by the prosecution. Prosecution has also not filed any document to establish that the Station House Officer Choti Sadhadi or Badi Sadhadi, PW-10 Bahadursingh received information from the acquitted co-accused on interrogation about availability or possession or keeping of heroine in the house of appellant Narayanlal and appellant was having full knowledge of keeping of the said seized brown sugar by the acquitted co-accused persons. It is a matter of great surprise that PW-10, Station House Officer Bahadursingh in cross-examination Para three has admitted that he prepared the memorandum of the statement of co-accused Vikram and Omprakash as per the provisions under section 27 of the Evidence Act but no such memorandum has been filed in this case or other documents showing that the co-accused persons admitted before the police or investigating officer about hiding or keeping of heroine in the house of the appellant. 7. 7. The Court can draw adverse inference against the prosecution by not filing memorandum statement of co-accused Vikram and Omprakash as per provision under section 114(g) of the Evidence Act. For convenience, the same is mentioned herein-below: “114. Court may presume evidence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. The Court may presume: (a)............... (b)............... (c)............... (d)............... (e)............... (f)............... (g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.” 8. In the search and seizure memo Exhibit P-1 also nowhere it is mentioned that search of the house was taken on the basis of any statement given by the co-accused persons, about keeping or availability of contraband narcotic drugs in the house of the appellant. All the proceedings were done by Badi Sadhadi police Rajasthan in presence of constable of Jeeran police station. PW-2 head constable Rameshchand of Jeeran police station has also stated in Para four of the cross-examination that he had no talk with the accused persons and at the time of search of the house, he did not go inside the house. The house was searched only by the Station House Officer Badi Sadhadi. The prosecution has also not lead any evidence as to how Station House Officer Badi Sadhadi came to known about the location of the house of the appellant. None of the prosecution witness has stated about disclosure of situation of the house of the appellant and there is no documentary evidence in this regard. Looking to all these facts and circumstances of the case it would be very difficult to hold that the 85 grams of heroine was seized from the concessions possession of the appellant in pursuance of the statement made by acquitted co-accused persons. It is also worth for mentioning here that if the heroine was seized on the basis of the disclosure statement made by the acquitted co-accused persons, then how they were acquitted and can be held responsible for finding of the heroine on a place disclosed by them. 9. It is also worth for mentioning here that if the heroine was seized on the basis of the disclosure statement made by the acquitted co-accused persons, then how they were acquitted and can be held responsible for finding of the heroine on a place disclosed by them. 9. Apart from the aforementioned two prepositions submitted by learned counsel for the appellant in the case at hand, there is clear breach of provision of section 42 (1) which reads as under: “Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of central excise, narcotics, customs, revenue intelligence or any other department of the Central Government including paramilitary forces or armed forces as is empowered in this behalf by general or special order by the Central Government, or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from persons knowledge or information given by any person and taken down in writing that any narcotic drug, or psychotropic substances, or controlled substance in respect of which an offence punishable under this Act has been committed or any document or other article which may furnish evidence of the commission of such offence or any illegally acquired property or any document or other article which may furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act is kept or concealed in any building, conveyance or enclosed place, may between sunrise and sunset: (a) enter into and search any such building, conveyance or place. (b) in case of resistance, break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under this Act or furnish evidence of holding any illegally acquired property which is liable for seizure or freezing or forfeiture under Chapter VA of this Act. (d) detain and search and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under this Act: Provided that if such officer has reason to believe that a search warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief.” 10. According to the abovementioned provision of section 42(1), if the authorized officer has personal knowledge or information received by any person, he has to take down the said information in writing, that the narcotic drugs are psychotropic substances or controlled substances because of which the offence has been committed. He may take search of such building, conveyance or place between sunrise and sunset without warrant or authorization. It is as clear as day light that belief from personal knowledge or information received is believed to be true, must be recorded in writing, only thereafter the authorized officer can proceed for search and seizure in pursuance of the information received or on the basis of his own personal knowledge. In the instant case there is absolutely no evidence led by the prosecution that any information was taken down in writing and in pursuance of the said information the house of the appellant was searched. Therefore, there is clear breach of mandatory provision of section 42(1) of the Act. 11. Consequently, on the basis of foregoing discussion this Court is of the view that no case is made out for convicting the appellant as convicted by the learned trial Court by the impugned judgment. Therefore, same is hereby set side. Therefore, there is clear breach of mandatory provision of section 42(1) of the Act. 11. Consequently, on the basis of foregoing discussion this Court is of the view that no case is made out for convicting the appellant as convicted by the learned trial Court by the impugned judgment. Therefore, same is hereby set side. The appellant is on bail. His bail bond and surety bond stands discharged.