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Madhya Pradesh High Court · body

2008 DIGILAW 483 (MP)

KULDEEP SAHU v. STATE OF M. P.

2008-03-28

K.S.CHAUHAN

body2008
Judgment K.S.CHAUHAN, J. ( 1. ) This criminal appeal under Section 376(2) has been filed being aggrieved by the judgment, finding and sentence passed by Special Judge (N.D.P.S.), Mandla in Sessions Trial No.09/2004 passed on 25.09.2006, where by the appellants have been convicted under Section 8/20(b)(ii)(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentenced thereto R.I. for 4 years each with fine of Rs. 1,000/- in default R.I. for 6 months. ( 2. ) The prosecution case in short is that on 08.11.2004 at 2:00 p.m. R.M.Dubey, S.H.O./S.I., Police Station Nainpur received information that Kuldeep Sahu has stored ganja for sale in his house situated in ward no. 10, Nainpur. Panchnama Ex.P/1 was prepared in presence of the witnesses. After obtaining the search warrant he proceeded to the house of Kuldeep Sahu along with staff and two independent witnesses. Kuldeep Sahu came out of his house on his asking. Search was given to him and after complying with the provisions of Section 50 of the Act, the house of Kuldeep Sahu was searched. 12 kilograms ganja was found in 3 different containers kept there. Out of which 2 samples of 50 grams each were drawn. Ganja and samples were seized from Kuldeep Sahu vide Ex.P/9. Weights, measures and Rs.743/- were seized from Gajraj vide seizure memo Ex.P/13. Panchnama of the proceeding was prepared. The accused persons were arrested. They were brought to police station Nainpur along with contraband articles. F.I.R. was registered. Ganja was deposited in Malkhana. Sample was sent for chemical examination to F.S.L., Sagar from where the report received. After completing the usual investigation, charge sheet was filed in the Court of Special Judge (N.D.P.S.), Mandla. ( 3. ) Appellants stood charged under Section 8/20(b)(ii)(b) of the Act to the effect that on 08.11.2004 at 5.10 p.m. at the house of Kuldeep Sahu they were found having stored 12 kilograms ganja for sale. Appellants abjured the guilt and claimed to be tried. Prosecution examined as many as 10 witnesses and defence did not examine any witness. After relying on the prosecution evidence, trial Court convicted the appellants under Section 8/20(b)(ii)(b) of the Act and sentenced thereunder as stated in para no. 1 of the judgment. Being aggrieved by the impugned judgment, the instant appeal has been filed on the grounds mentioned in the memo of appeal ( 4. After relying on the prosecution evidence, trial Court convicted the appellants under Section 8/20(b)(ii)(b) of the Act and sentenced thereunder as stated in para no. 1 of the judgment. Being aggrieved by the impugned judgment, the instant appeal has been filed on the grounds mentioned in the memo of appeal ( 4. ) Shri PS Das, learned counsel for the appellants submitted that the finding of conviction with respect to appellant Kuldeep" Sahu is not challenged. He has already suffered jail sentence of more than 3 years out of 4 years awarded by the trial Court, therefore, he be released on the period already undergone. Learned counsel further submitted that he is seriously challenging the conviction made with respect to appellant Gajraj Singh because no ganja was recovered from him and he has been illegally convicted. The rinding of guilt is erroneous hence deserves to be set aside and he is entitled for acquittal. ( 5. ) On the other hand, Shri R.N.Yadav, learned P.L. appearing on behalf of the respondent/State has supported the judgment, finding and sentence passed by the trial Court mainly contending that weights, measures and Rs.743/- were seized from appellant Gajraj Singh. He has rightly been convicted and sentenced, therefore, it does not call for any interference. ( 6. ) The main point for consideration in this appeal is that whether the trial court has committed any illegality in convicting and sentencing the appellants under Section 8/20(b)(ii)(b) of the Act? ( 7. ) R.M.Dubey (PW-10) received information regarding storing of ganja by Kuldeep Sahu in his house, therefore, he obtained the search warrant and proceeded at his house with the staff and the witnesses. After giving the search of him and his staff he searched the house wherein ganja of 12 kilograms was found in 3 different containers out of which 2 samples of 50 grams each were drawn from it and the ganja was seized from Kuldeep Sahu vide seizure memo Ex.P/9. He prepared different Panchnamas. ( 8. ) Hari Singh Thakur (PW-1) and Akram Quereshi (PW-3) were the independent witnesses. They have admitted their signature on the documents from Ex.P/1 to Ex.P/15. However, Akram Quereshi (PW-3) has not supported the prosecution case and Hari Singh Thakur has supported the prosecution case and has given the evidence that the ganja was seized from the possession of Kuldeep Sahu. ) Hari Singh Thakur (PW-1) and Akram Quereshi (PW-3) were the independent witnesses. They have admitted their signature on the documents from Ex.P/1 to Ex.P/15. However, Akram Quereshi (PW-3) has not supported the prosecution case and Hari Singh Thakur has supported the prosecution case and has given the evidence that the ganja was seized from the possession of Kuldeep Sahu. The other members of raid party M.L.Jhadekar (PW-4), Avnish Shrivastava (PW-5) and Deepak Bairagi (PW-6) have also supported the proceedings done by R.M.Dubey (PW-10). The seized samples were sent to F.S.L., Sagar from where the report Ex.P/31 received which clearly indicates that in sample A-l and A-2 there was ganja. ( 9. ) These witnesses have been subjected to very lengthy and piercing cross examination and tried to shake their veracity but their evidence is intact on the material point that 12 kilograms ganja was seized from the possession of appellant Kuldeep Sahu. Therefore, the offence against him is proved beyond reasonable doubt and the trial Court has rightly found him guilty. ( 10. ) It is borne out from the evidence that the information regarding storing of ganja was only with respect to Kuldeep Sahu and not with respect to Gajraj Singh. It is also borne out from the evidence that Gajraj Singh was not having any contraband article when he is said to have come out from the house of Kuldeep Sahu with him. ( 11. ) It is strange enough that R.M.Dubey (PW-10) gave the search of himself and his staff to Gajraj Singh also vide Ex.P/4. The question is that when there was no information regarding storing of ganja by this appellant and there was no search warrant against him then what was the sanctity to give him the search. It clearly indicates that the Police Inspector tried to make the case against him. ( 12. ) It is also borne out from the evidence that no ganja was seized from Gajraj Singh but he has been implicated only on the basis of seizure of weights, measures and Rs.743/- from him. Thus, the single act of Kuldeep Sahu has been bifurcated into two by seizing ganja from him and weights, measures and rupees from Gajraj Singh. There is no evidence to connect the complicity of Gajraj Singh with this offence. No evidence is adduced that Gajraj Singh was also selling the ganja with Kuldeep Sahu. Thus, the single act of Kuldeep Sahu has been bifurcated into two by seizing ganja from him and weights, measures and rupees from Gajraj Singh. There is no evidence to connect the complicity of Gajraj Singh with this offence. No evidence is adduced that Gajraj Singh was also selling the ganja with Kuldeep Sahu. Merely, his presence is not sufficient to prove that he was dealing in ganja. The defence of this appellant that he suggested police officer not to use third degree methods against Kuldeep Sahu. On account of which, he has been implicated in this case, cant be said to be unreasonable in the facts and circumstances of this case. ( 13. ) Since no contraband article was seized from Gajraj Singh and no complicity has been proved to connect him with this offence, therefore, the finding of guilt against him is erroneous which deserves to be set aside. ( 14. ) On the foregoing discussions, this appeal deserves to be partly allowed. ( 15. ) Since appellant Kuldeep Sahu has suffered the jail sentence of near about 3 years and 4 months out of.4 years awarded by the trial Court, thus he has suffered the substantial part of sentence, therefore, the sentence already suffered by him is sufficient to meet the ends of justice. ( 16. ) The finding of guilt with respect to appellant Gajraj Singh is erroneous, therefore, the same deserves to be set aside and he is entitled for acquittal. ( 17. ) Consequently, the appeal is partly allowed., The conviction of appellant Kuldeep Sahu under Section 8/20(b)(ii)(b) of the Act is hereby maintained. The sentence is reduced to the period already undergone. He is in jail. He be released forthwith, if not required in any other case. ( 18. ) The conviction with respect to appellant Gajraj Singh under Section 8/ 20(b)(ii)(b) of the Act is hereby set aside. He is acquitted of the charge levelled against him. He is on bail. His bail bonds are discharged. He be set at liberty. Appeal partly allowed.