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Madhya Pradesh High Court · body

2008 DIGILAW 1067 (MP)

Sameer Alias Summer v. State of M. P.

2008-08-25

K.S.CHAUHAN

body2008
JUDGMENT : 1.This criminal appeal under Section 374(2) of the Code of Criminal Procedure hasbeen filed being aggrieved by the judgment, finding and sentence dated19/08/1994 passed by Special Judge, Panna in SpecialCase No. 45/1992 whereby the appellant has been convicted under Section 20- B( 1) of Narcotic Drugs and Psychotropic Substances Act, 1985and sentenced to R.I. for 3 years with fine of Rs .2,000/- in default of payment of fine S.I. for 3 months. 2.Prosecution case in short is that on 08.04. 1992 at 5.00 p.m. Kailash Babu Arya ,S.H.O., Police Station, Brajpur on patrollingreceived information at out post Pahadikhera thatSummer Bangali is having Ganja in a bag at bus stand.This information was written in Rojnamcha Sanha No. 120 and he conducted raid along with police staffand the witnesses. That person was found standing on bus stand. He tried to runaway seeing the police party. He was apprehended and on interrogation he toldhis name and address. On searching his bag 150 grams ganja was found. He washaving no licence . Sample of 30 grams ganja was drawnfrom it for examination. Appellant was arrested. He was brought to the policestation and F.I.R. was written accordingly. Crime No. 29/1992 under Section 20of Narcotic Drugs and Psychotropic Substances Act, 1985 was registered.Statements of the witnesses were recorded. Seized ganja was sent for chemicalexamination to F.S.L., Sagar from where the reportreceived. Accordingly sample was found containing ganja. After completing usualinvestigation charge sheet was filed in the Court of Special Judge, Panna . 3.Appellant was charged under Section 20- B( 1) ofNarcotic Drugs and Psychotropic Substance Act, 1985. He denied the guilt andclaimed to be tried mainly contending that he is innocent and has been falselyimplicated. Prosecution examined as many as three witnesses whereas theappellant did not examine any witness in his defence .After appreciating the evidence Trial Court found him guilty under Section 20- B( 1) of Narcotic Drugs and Psychotropic Substances Act, 1985and sentenced as stated hereinabove in para No. 1 ofthe judgment. Being aggrieved by the judgment, finding and sentence passed bythe Trial Court, the instant appeal has been preferred on the grounds mentionedin the memo of the appeal. 4.Learned counsel for the appellant submitted that the Trial Court has notappreciated the evidence in proper perspective. Both the independent seizurewitnesses have been turned hostile. Being aggrieved by the judgment, finding and sentence passed bythe Trial Court, the instant appeal has been preferred on the grounds mentionedin the memo of the appeal. 4.Learned counsel for the appellant submitted that the Trial Court has notappreciated the evidence in proper perspective. Both the independent seizurewitnesses have been turned hostile. The conviction is based on the evidence of Kailash Babu Arya on the uncorroborated testimony of Kailash Babu Arya (PW-3). Provisions ofSections 42 and 50 of the Narcotic Drugs and Psychotropic Substance Act, 1985have not been complied with. The prosecution has failed to prove sampling,sealing and sending of article for chemical examination. The possibility oftampering with the sample cannot be ruled out. The finding of guilt iserroneous which deserves to be set aside and appellant is entitled foracquittal. 5.On the contrary, Shri G.P. Singh, Dy .Govt. Advocate appearing on behalf of respondent/State supported the impugnedjudgment, finding and sentence mainly contending that the prosecution hasproved the case beyond reasonable doubt against the appellant and trial Courthas rightly convicted and sentenced the appellant, therefore, it does not callfor any interference. 6.The main point for consideration in this appeal is that whether the Trial Courthas committed an illegality in convicting and sentencing the appellant underSection 20-B(1) of Narcotic Drugs and Psychotropic Substance Act, 1985? 7. Kailash Babu Arya (PW-3) was S.H.O of Police Station, Brajpur on that day. He had gone on patrolling on Pahadikhera Chowki wherein hereceived the information at about 16.45 p.m. that Summer Bengali is standing on bus stand Pahadikhera having a bag containing Ganja. This information was taken down in Rojnamcha Sanha No. 120 (Ex.P-6).On this information he proceeded to the spot along with force. The entry hasbeen made in Rojnamacha Sanha No. 121 (Ex.P-7). He saw a person standing there. He tried to run away butapprehended before Suresh Kumar (PW-1) and Omprakash (PW-2). On search of his bag 150 grams of ganja was found. He was having no licence . The ganja was seized vide seizure memo Ex.P-1. Outof it sample of 30 grams ganja was drawn. Panchanama (Ex.P-2) was prepared. The sample was sealed. The appellant was attested videarrest memo Ex.P-3. He brought the appellant and the contraband article at outpost Pahadikhera . The entry of which has been made in Rojnamacha Sanha No. 122(Ex.P-8) then he came to Police Station, Brajpur where he recorded F.I.R. (Ex.P-9). Outof it sample of 30 grams ganja was drawn. Panchanama (Ex.P-2) was prepared. The sample was sealed. The appellant was attested videarrest memo Ex.P-3. He brought the appellant and the contraband article at outpost Pahadikhera . The entry of which has been made in Rojnamacha Sanha No. 122(Ex.P-8) then he came to Police Station, Brajpur where he recorded F.I.R. (Ex.P-9). 8.This witness has been subjected to lengthy cross-examination but his testimonyhas not been shattered on the material point barring that he did not preparethe weighment panchnama andthe quantity of ganja has been mentioned without taking actual weight. 9.Both independent seizure witnesses Suresh Kumar (PW-1) and Omprakash (PW-2) have been examined by prosecution. They have admitted their signature ondocuments Ex.P-1 to Ex. P-3 but they have not supported that ganja was seizedfrom appellant. They have been declared hostile wherein they have stated thatstatements Ex.P-4 and Ex.P-5 were not given by them. However, Kailash Babu Arya (PW-3) has deposed that such statements of these witnesses were recorded. 10.On appraisal of the entire statement, it is manifestly clear that theindependent seizure witnesses are not supporting the prosecution case regardingthe seizure of ganja from appellant but the evidence of Kailash Babu Arya (PW-3) has notbeen rebutted in cross-examination and his evidence is intact on the pointregarding seizure of ganja from the bag of appellant. The conviction may bebased on the sole testimony of police witness if free from doubt. Nothing hasbeen brought on record that this witness was having any ill will against theappellant or he was interested in falsely implicating the appellant. Therefore,his evidence is reliable. Accordingly, it is proved that ganja was seized fromthe appellant. 11.The contention of the learned counsel of the appellant is that InvestigatingOfficer has not complied with the provisions of Sections 42 and 50 of the Act. 12.Since the contraband article was seized at Bus Stand Pahadikhera i.e. at the public place, therefore, the provisions of Section 42 of the Actwill not be applicable. 13.Section 42 applies when search is made from any building or conveyance. In thecase of search and seizure in public places the provision of Section 43 of theAct are applicable and the provisions of Section 42 of the Act are notapplicable (See: Hardeep Singh vs. State of Rajasthan ,2000 (Supp) ACC 827). 13.Section 42 applies when search is made from any building or conveyance. In thecase of search and seizure in public places the provision of Section 43 of theAct are applicable and the provisions of Section 42 of the Act are notapplicable (See: Hardeep Singh vs. State of Rajasthan ,2000 (Supp) ACC 827). 14.Section 50 applies to cases of body search and it has no application when thecontraband goods is recovered from a bag in the handof the accused (See: Ramji Duda vs. State, 1994 Cri . L.J. 1987). 15.Search of bag in the hands of the accused cannot be treated either as a placeor a person but extends to his baggage and belongings (See: Daniel vs. Ramesh , 1995 Cri.L.J . 1134 ( Bom ). 16.A bare reading of Section 50 shows that it only applies in case of personalsearch of a person. It does not extend to search of a vehicle or container orbag or premises. In the instant case psychotropic substance,i.e. 23 kg. and 17 kg. of ganja had been recovered from suitcase/bag carried by the accused appellants.Supreme Court observed that it was rightly held by Trial Court and High Courtthat Section 50 had no application (See: Rajendra vs.State of Madhya Pradesh, 2004 (13) AIC 35 (SC). 17.Section 50 of the NDPS Act would be applicable only in those cases where thesearch of the person is carried out (See: Gurbax Singh vs. State of Haryana ,2001 Cri.L.J . 1166 = 2001 (1) ANJ (SC) 230). 18.The provision of Section 50 is attracted only when search of a “person” iscarried out and not in cases where it is from bag held by accused, hence,failure to comply with Section 50 before search of bag carried by accused wouldnot vitiate trial. (See: Jayraj @ James vs. State of Kerala , 2001 Cri.L.J .4059). 19.So far as the present case is concerned, since ganja was found in the bagcarried by appellant in the public place, therefore, Sections 42 and 50 of theAct would not be applicable. Therefore, there is no such infirmity in theprosecution case. 20. Kailash Babu Arya (PW-3) has deposed that sample was sent to F.S.L., Sagar for chemical examination on 20.04.1992 vide Ex.P-10.Report Ex.P-12 has been received there from and accordingly sample was foundcontaining ganja, therefore, it is established that the article which wasseized from the appellant was ganja. Therefore, there is no such infirmity in theprosecution case. 20. Kailash Babu Arya (PW-3) has deposed that sample was sent to F.S.L., Sagar for chemical examination on 20.04.1992 vide Ex.P-10.Report Ex.P-12 has been received there from and accordingly sample was foundcontaining ganja, therefore, it is established that the article which wasseized from the appellant was ganja. Thus, prosecution has established the caseagainst the appellant beyond reasonable doubt. The Trial Court has rightly heldhim guilty. There is no infirmity in such finding hence the same is herebyaffirmed. 21.Learned counsel for the appellant submitted that the appellant was arrested on08.04.1992 and released on bail on 09.04.1992 and further the judgment wasdelivered on 18.08.1994 and he was released on bail in pursuance to order dated08.09.1994 passed by this Court. Thus, he has suffered the jail sentence ofnear about 22 days. Learned counsel further submitted that the seized articlewas of smaller quantity, therefore, he be released on the period alreadyundergone. 22.Keeping in view the facts and circumstances of this case, the period alreadyundergone would meet the ends of justice with the stipulation of enhancement offine amount from Rs . 2,000/- to Rs .5,000/-. 23.Consequently, this appeal is partly allowed. The conviction under Section 20- B( 1) of the Narcotic Drugs and Psychotropic Substances Act,1985 is hereby maintained. However, the sentence is reduced to the periodalready undergone enhancing the fine amount from Rs .2,000/- to Rs . 5,000/- which shall be deposited inthe Trial Court within a period of one month from the date of receipt of thejudgment, failing which he shall undergo R.I. for 6 months. The appellant is onbail. His bail bonds are discharged. He be set at liberty.