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Madhya Pradesh High Court · body

2007 DIGILAW 933 (MP)

Parmeshwardas v. State of M. P.

2007-08-27

SUSHMA SHRIVASTAVA

body2007
JUDGMENT 1. Appellant has challenged his conviction and order of sentence passed by Special Judge, Narsinghpur in Special Criminal Case No. 27/93, decided on 30.9.1993. 2. Appellant has been convicted under section 20 of NDPS Act (hereinafter to be referred as Act) and sentenced to RI for one year with fine of Rs. 200/-, in default further RI for two months by the impugned judgment. 3. According to prosecution, on 17.3.1993, around 11O'clock in the morning, ASI M.P. Mishra received a secret information at Police Station Saikheda, Narsinghpur that some person aged about 50 years wearing white Dhoti and Kurta was illegally possessing cannabis at the cattle market for its illicit sale. After recording the information in the Rojnamcha, ASI M.P. Mishra left for cattle market alongwith police force and reached there at about 11: 15 a.m. and noticed that appellant wearing white Dhoti and Kurta tried to run away after seeing the police squad. Appellant was therefore apprehended by the police and interrogated whereupon he revealed his name and address. Appellant was then searched by ASI M.P. Mishra after giving him an option to get searched before Gazetted Officer and cannabis weighing 80 grams was recovered from his person before the panch witnesses, which was seized by the police. Appellant and the seized article were then taken to the police station; appellant was arrested and a case was registered against him at Police Station, Saikheda and was investigated. The seized article was sent for chemical examination. After chemical analysis, the article seized from the appellant was found to be cannabis. Appellant was, therefore, prosecuted and tried for the offence under section 20 of the Act. 4. Appellant abjured the guilt and pleaded false implication. 5. The learned Special Judge, after trial found the appellant guilty under section 20 of the Act and convicted and sentenced him as aforesaid. Hence, this appeal. 6. Arguments of both the sides were heard. Record of the lower Court perused. 7. The conviction of the appellant is based mainly on the evidence of ASI M.P. Mishra (PW 4). Learned counsel for the appellant submitted that the trial Court gravely erred in convicting the appellant on the basis of sole testimony of ASI M.P. Mishra (PW 4), which was wholly doubtful and unreliable. Record of the lower Court perused. 7. The conviction of the appellant is based mainly on the evidence of ASI M.P. Mishra (PW 4). Learned counsel for the appellant submitted that the trial Court gravely erred in convicting the appellant on the basis of sole testimony of ASI M.P. Mishra (PW 4), which was wholly doubtful and unreliable. Learned counsel for the appellant further submitted that all the documents of search and seizure were prepared and manipulated ;tt the police station and the appellant was falsely implicated and there was no cogent evidence that the material allegedly seized from the appellant was properly sealed. 8. Perused the evidence on record. ASI M.P. Mishra (PW 4) deposed in his evidence that after receiving the secret information at police station, he had reached the cattle market Saikheda alongwith the stall and the panch witnesses and searched the appellant after giving him an option to get him searched before the Gazetted Officer and recovered 80 grams of cannabis from the person of the appellant, which was kept by the appellant in a polythene bag underneath his Kurta, and then seized it and got it weighed. According to ASI M.P. Mishra (PW 4), he also prepared the search memo (Ex. P-4), seizure memo (Ex. P-5) and weighing memo (Ex. P-6) and then took the appellant and the seized cannabis to the police station and recorded the FIR (Ex. P-9). The seized article was also sent for chemical analysis and after analysis, it was found to be cannabis vide FSL report (Ex. P-12). 9. Now the panch witnesses Ramesh (PW 2) and Neit Singh (PW 3) have not supported any search or seizure from the appellant and deposed to have signed all the documents at the police station. Therefore the evidence of ASI M.P. Mishra (PW 4), who is a police officer, has to be carefully scanned. 10. First of all, ASI M.P. Mishra (PW 4) admitted in cross-examination that the notice (Ex. P-3) giving an option for search before the Gazetted Officer was not addressed to the appellant by name. He also admitted that entry in the Rojnamcha (Ex. P- 4) relating to the entry of return (Vapsi Sanha) of ASI M.P. Mishra (PW 4) after effecting the search and seizure from the appellant also did not contain the name of the appellant. 11. He also admitted that entry in the Rojnamcha (Ex. P- 4) relating to the entry of return (Vapsi Sanha) of ASI M.P. Mishra (PW 4) after effecting the search and seizure from the appellant also did not contain the name of the appellant. 11. Further, in the examination-in-chief, ASI M.P. Mishra (PW 4) deposed that on effecting the personal search of the appellant, he had recovered cannabis kept in a polythene underneath the Kurta of the appellant, while in cross-examination, he deposed that appellant himself took out the bag of cannabis from the fold (31R:) of his Dhoti. It also appears unnatural that appellant himself would produce a thing like cannabis kept in the fold of his Dhoti. 12. Be that as it may, in the search memo (Ex. P-4) and seizure memo (Ex. P-5) said to have been prepared on the spot it is mentioned that 80 grams of cannabis was recovered upon personal search of the appellant. These two documents were prepared, as mentioned therein, on 17.3.1993 at 11:05 a.m. and 11: 15 a.m. respectively, while ASI M.P. Mishra (PW 4) admitted in his cross-examination that the seized article or material was got weighed at the cattle market at the shop of one Kamal Kumar vide Ex. P-6. A perusal of weighing memo (Ex. P-6) indicates that the weighing of the seized material was done on 17.3.1993 at about 13.5 hours and then it was found to be 80 grams. It is also pertinent to point out that the FIR (Ex. P-9) said to have been recorded by ASI M.P. Mishra (PW 4), himself was jotted down at 12: 10 p.m. which also mentions that after search and seizure and weighing of the material seized, 80 grams of cannabis was recovered from the person of the appellant. If the weighing of the seized cannabis was done at 13.05 hours and found to be 80 grams, it was quite strange how the weight of the seized cannabis was mentioned as 80 grams in the search memo (Ex. P-4), seizure memo (Ex. P-5) prepared at 11:05 a.m. and 11: 15 a.m. respectively as well as in FIR (Ex. P-9) recorded at 12: 10 p.m. when the weighing of the seized material itself was done at 13.05 hours. Such discrepancy indicates or at least caste serious doubt that all these documents were prepared at one time. P-4), seizure memo (Ex. P-5) prepared at 11:05 a.m. and 11: 15 a.m. respectively as well as in FIR (Ex. P-9) recorded at 12: 10 p.m. when the weighing of the seized material itself was done at 13.05 hours. Such discrepancy indicates or at least caste serious doubt that all these documents were prepared at one time. In view of these facts, the submission of learned counsel for the appellant seems to have some force that the mention of crime number in search memo (Ex. P-4), seizure memo (Ex. P-5) and weighing memo (Ex. P-6) indicates that all these documents were prepared at the police station after recording of the FIR. Although ASI M.P. Mishra (PW 4) tried to say in his re-examination that he had mentioned the crime number in Ex. P-4, Ex. P-5 and Ex. P6 after the offence was registered but that docs not inspire confidence in view of the fact that weight of the seized material was mentioned in all these documents before it was actually weighed. 13. Thus, the evidence of ASI M.P. Mishra (PW 4) relating to search and seizure of the cannabis from the appellant appears to be highly doubtful. More so, there is no mention either in the seizure memo (Ex. P5) or in the FIR (Ex. P-9) and not even in the Vapsi Sanha (Ex. P-14) containing the Summary of whole proceedings that the material seized from the appellant was packed and sealed on the spot. Although, ASI M.P. Mishra (PW 4) tried to say that he had sealed the seized material after weighing it but such an oral statement cannot be accepted in absence of mentioning of this fact in any of the documents like Ex. P-4, Ex. P-S, Ex. P-9 and Ex. P-14. Similarly, in absence of any documentary proof, the oral statement of ASI M.P. Mishra (PW 4) that the seized material was kept in safe custody at Malkhana also appears doubtful. 14. Thus, in absence of proper proof that the material allegedly seized from the appellant was sealed and kept in proper custody, it also becomes highly doubtful that what was allegedly seized from the appellant alone was sent to the chemical examiner. 15. 14. Thus, in absence of proper proof that the material allegedly seized from the appellant was sealed and kept in proper custody, it also becomes highly doubtful that what was allegedly seized from the appellant alone was sent to the chemical examiner. 15. More over, as submitted by learned counsel for the appellant, the seized article or material said to be cannabis was never produced before the Court during the trial, which also caste a serious doubt on the prosecution case against the appellant. It would be profitable to quote here the following observation made by the apex Court in the case of Jitendra and another v. State of M.P. reported in [2004 (2) Vidhi Bhasvar 30 = (2004) 10 SCC 562 ]. ''The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act." 16. In view of the aforesaid facts, the uncorroborated sole testimony of ASI M.P. Mishra (PW 4) could not be wholly relied upon to bring home the charge against the appellant beyond all reasonable doubts. Consequently, the conviction based on such evidence cannot be sustained. 17. Appeal is, therefore, allowed. The conviction of the appellant recorded by the trial Court and the sentence awarded to him under section 20 of the Act are set aside and the appellant is acquitted of the charge. 18. Appellant is on bail. His bail bonds shall stand discharged.