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Madhya Pradesh High Court · body

2008 DIGILAW 703 (MP)

Ramesh Kumar v. State Of M. P.

2008-05-15

K.S.CHAUHAN

body2008
JUDGMENT : This criminal appeal has been preferred under section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment, finding and sentence dated 13-6-2005 passed by Special Judge, Mandla in Special Case No. 11/2004, whereby the appellant has been convicted under section 8/20(b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and sentenced to R.I. for 4 years with fine of Rs. 1,000/- in default R.I. for 6 months. 2. The prosecution case in short is that on 28-10-2004 at 13.18 p.m. Manoj Gupta the then Sub Inspector Police incharge of police station Bichhiya, District Mandla received information from 'Mukhbir' that Badri Prasad Jhariya has stored ganja in his house. This information was entered into rojnamcha sanha. The intimation was sent to S.D.O.(P) Mandla. The information regarding not obtaining search warrant also sent to him. He proceeded to the spot along with staff and independent witnesses. He was apprised of the information regarding possession of ganja. On being enquired he apprised that Ramesh Kumar has concealed ganja beneath Palash tree nearby to his field for sale. On this information S. K. Mishra, A.S.I. proceeded to the spot along with staff and witnesses. Ramesh Kumar was found in his house. He was taken into custody and on being asked he told that ganja has been concealed in the bushes nearby to his field. After complying the provisions of section 50 of the Act and after giving their own search the search was made wherein 7 kg 800 grams and 1 kg 300 grams were found in bori and bag respectively in bushes. Two samples of 50-50 grams each were drawn. The contraband article and its samples were sealed at the spot and seized vide seizure memo Ex.P/2. The appellant was arrested. He returned to the police station along with appellant and the contraband article. F.I.R. was written. Crime No. 201/04 under section 8/20 of N.D.P.S. Act was registered. Seized ganja and its samples were deposited in Malkhana for safe custody. Samples were sent for chemical examination to F.S.L. Sagar from where report received. Accordingly ganja was found in Article A, B, C and D. Statements of the witnesses were recorded. After completing the investigation charge-sheet was filed in the Court of Special Judge, Mandla. 3. Appellant was charged under section 8/20(b)(ii)(B) of the Act. Samples were sent for chemical examination to F.S.L. Sagar from where report received. Accordingly ganja was found in Article A, B, C and D. Statements of the witnesses were recorded. After completing the investigation charge-sheet was filed in the Court of Special Judge, Mandla. 3. Appellant was charged under section 8/20(b)(ii)(B) of the Act. He abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 10 witnesses and appellant did not examine any witness. After appreciating the evidence, trial Court found him guilty under section 8/20(b)(ii)(B) of the Act and convicted and sentenced thereunder as stated hereinabove in para No. 1 of the judgment. Being aggrieved by the impugned judgment, instant appeal has been filed on the grounds mentioned in the memo of appeal. 4. Learned counsel for the appellant has submitted that ganja has been seized from the open place and it has not been proved that ganja was kept by this appellant there and thus it has not been proved that ganja was seized from his exclusive possession. Ganja was wet therefore the actual quantity of ganja cannot be determined. The finding of guilt is erroneous hence deserves to be set aside and the appellant is entitled for acquittal. 5. On the contrary, 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 prosecution has proved the case beyond reasonable doubt against the appellant. 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 trial Court has committed any illegality in convicting and sentencing the appellant under section 8/20(b)(ii)(B) of the Act? 7. S. K. Mishra (PW-6) and Manoj Gupta (PW-10) have deposed that during the course of interrogation they came to know regarding possession of ganja by appellant Ramesh Kumar but no any information was sent to S.D.O. (P) Mandla in this regard. S. K. Mishra (PW-6) proceeded to the spot along with witnesses and staff. The appellant was found in his field. But the evidence of this witness is not firm whether appellant was found at house or at field. S. K. Mishra (PW-6) proceeded to the spot along with witnesses and staff. The appellant was found in his field. But the evidence of this witness is not firm whether appellant was found at house or at field. In F.I.R. (Ex.P/9) it is mentioned that the appellant was found at his house whereas in his deposition he has stated that he was found at his field. Therefore he has given the self-contradictory statement regarding the fact where the appellant was found. 8. It is worthwhile to note that no any disclosure statement has been recorded by this witness and has left serious lacuna in investigation. His evidence is also not firm as to the place from where ganja was seized. Somewhere he has stated that it was seized from the field of the appellant, somewhere he has stated that it was seized from the bushes of Palash nearby to the field of appellant. He has not prepared any map to indicate the place of concealment of ganja. No any document has been adduced showing the appellant being the owner and possession holder of this field. 9. Smt. Shivkali Valko (PW-8) Sarpanch of Gram Panchayat Medhatal issued a certificate Ex.P-15. She has been turned hostile. Moreover, from this certificate also it does not reflect that the field belongs to the appellant. Anand Singh Parte (PW-9) has prepared panchanama (Ex.P/18). According to him the place from which ganja is said to be seized comes under forest land which is in the reserved forest. He has submitted report Ex.D/2. Thus there is no evidence to show that the appellant was the owner or possession holder of the land from which ganja was seized. 10. It is manifestly clear that the place from where ganja was seized is the open place and no evidence has been adduced that this ganja was kept there by this appellant or he was in conscious and exclusive possession of this ganja. Both the seizure witnesses Shiv Shankar Sharma (PW-3) and Tarendra Kumar (PW-7) have not supported the prosecution case and they have clearly stated that ganja was not seized from the possession of appellant. Thus, the statement of S. K. Mishra (PW-6) is not being supported by the independent seizure witnesses. Statement of S. K. Mishra (PW-6) is not fully reliable because he has given the self-contradictory statement with regard to some material facts. Thus, the statement of S. K. Mishra (PW-6) is not being supported by the independent seizure witnesses. Statement of S. K. Mishra (PW-6) is not fully reliable because he has given the self-contradictory statement with regard to some material facts. He has not prepared the spot map. He has not recorded any disclosure statement thus he has left the serious lacuna in the investigation of this case and some of the mandatory provision of the Act have also not been complied with. 11. Since the prosecution has failed to prove that ganja was seized from the exclusive possession of the appellant therefore finding of trial Court regarding the guilt of appellant is not sustainable, which deserves to be set aside. [See Keshardan vs. State of M. P., 2005(3) MPLJ 550 and Gopal vs. State of M. P., (2002) 9 SCC 595]. 12. Consequently, appeal succeeds and is allowed. Conviction and sentence passed by trial Court under section 8/20(b)(ii)(B) is hereby set aside. He is acquitted from the charge levelled against him. He is in jail. He be released forthwith, if not required in any other case.