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Madhya Pradesh High Court · body

2008 DIGILAW 704 (MP)

BADRI PRASAD JHARIA 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 27-9-2005 passed by Special Judge, Mandla in Special Case No. 14/2004, 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 5 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 appellant 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 (Ex.P/1) regarding not obtaining search warrant was also sent to him. Two independent witnesses were called. They were apprised of 'Mukhbir' information. He moved to the spot along with two independent witnesses and staff. The appellant was called. He came out of his house. He was apprised of the information regarding possession of ganja in his house. After complying the provisions of section 50 of the Act and after giving their own search house of appellant was also searched wherein two polythene bags containing ganja were found in a room. Search panchnama (Ex.P/4) was prepared. Ganja was weighed. 4 kg. 800 grams ganja was found kept in a bag and 10 kg 800 grams ganja was found kept in another bag. Thus total 15 kg 600 grams ganja was found in his room. Two samples of 50-50 grams each were drawn from each bag. The contraband article and samples were sealed at the spot and seized vide seizure memo Ex. P/5. The appellant was arrested. He was brought to the police station along with contraband articles. The contraband articles and samples were deposited in Malkhana. F.I.R. (Ex.P/13) was recorded. The detailed report Ex.P/14 was sent to S.D.O.(P) Mandla on 29-10-2004. The seized article was sent for chemical examination to F.S.L. Sagar from where report Ex.P/21 was received. Accordingly the samples Article A, B, C and D were found containing ganja. 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. The seized article was sent for chemical examination to F.S.L. Sagar from where report Ex.P/21 was received. Accordingly the samples Article A, B, C and D were found containing ganja. 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 denied 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, the instant appeal has been filed on the grounds mentioned in the memo of appeal. 4. Learned counsel for the appellant submitted that trial Court has not appreciated the evidence in the proper perspective. It has not been proved that the seized article was ganja hence the finding is erroneous. Alternatively learned counsel of appellant submitted that the appellant has already suffered the substantial part of the sentence therefore he should be released on the period already undergone. 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. It has been proved by F.S.L. report Ex.P/21 that seized article was ganja. The finding of guilt being reasonable hence 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. Manoj Gupta (PW-10) has deposed that on 28-10-2004 he was posted as S.H.O., Police Station Bichhiya. On that day at 13.18 p.m. he received information that Badri Prasad has stored ganja in his house for sale. This information was entered into rojnamcha sanha. He could not obtain the search warrant. Its information Ex.P/1 was sent to S.D.O.(P) Mandla. Santram (PW-2) carried Ex.P/1 to S.D.O.(P) Mandla. It was received by Ambika Prasad Tiwari (PW-1) at 17:30 p.m. 8. This information was entered into rojnamcha sanha. He could not obtain the search warrant. Its information Ex.P/1 was sent to S.D.O.(P) Mandla. Santram (PW-2) carried Ex.P/1 to S.D.O.(P) Mandla. It was received by Ambika Prasad Tiwari (PW-1) at 17:30 p.m. 8. Manoj Gupta (PW-10) called the two independent witnesses to whom he apprised the information regarding possession of ganja in the house of appellant then he proceeded to the spot along with these witnesses and staff. The appellant was apprised about such information and asked to exercise his option whether he wants to be searched before Magistrate or Gazetted Officer or before himself. But he said nothing in this regard therefore after giving his own search vide search memo Ex.P/3 the house of appellant was searched. Two polythene bags were found in a room. Search Panchnama (Ex.P/4) was prepared. Total 15 kg 600 grams ganja was found in 2 packets. Two samples of 50 grams each were drawn from each bag. The contraband article and the samples were sealed at the spot. Seizure memo Ex.P/5 was prepared and the appellant was arrested vide arrest memo Ex.P/6. S. K. Mishra (PW-7) has also supported that the appellant was apprised about the informant's information but the two independent witnesses Shivshankar Sharma (PW-5) and Tarendra Kumar Shukla (PW-9) have not supported the prosecution case hence declared hostile. However, they have admitted their signature on the documents Ex.P/3 to P/6. Since these witnesses participated in the proceedings, but later on turned hostile to the prosecution for the reasons best known to them. These documents contain the signature of appellant, independent witnesses and Manoj Gupta (PW-10). It clearly indicates that such proceedings were done at the spot and different documents were prepared at that time. The statement of Manoj Gupta (PW-10) is supported by documentary evidence. Relying on evidence of this witness trial Court found the seizure of ganja from the house of this appellant. Prima facie no any infirmity or illegality is found in such finding. Therefore the fact has been established by evidence that 15kg 600 grams ganja was recovered from the house of appellant. 9. There is presumption of culpable mental state under section 35 and presumption from possession of illicit articles under section 54 of the Act. Prima facie no any infirmity or illegality is found in such finding. Therefore the fact has been established by evidence that 15kg 600 grams ganja was recovered from the house of appellant. 9. There is presumption of culpable mental state under section 35 and presumption from possession of illicit articles under section 54 of the Act. Since the appellant was found having possession of ganja and he has failed to satisfactorily account for such possession therefore it may be presumed that he has committed an offence under this Act. 10. Manoj Gupta (PW-10) after returning from the spot registered F.I.R. Ex.P/13 which contains his signature. He also deposited the contraband article and its samples in Malkhana for safe custody. Virendra Yadav (PW-6) has supported the fact regarding deposition of contraband article in Malkhana. Its entry is made at serial No. 32 in Malkhana Register Ex.P/8. It clearly indicates that ganja and samples were deposited on the same day in Malkhana for safe custody. The attempt is made to bring some discrepancy in the quantity of ganja deposited in Malkhana but that is meaningless and does not affect the prosecution case at all. 11. The samples of ganja were sent to F.S.L. Sagar vide memo Ex.P/20 from where F.S.L. report Ex.P/21 has been received. On perusal of this report it reveals that the samples Article A, B, C and D were found containing ganja. Thus, it is certified that ganja which was seized from the possession of appellant was later on certified by the chemical examiner to be ganja. Thus it has been amply proved that seized article was ganja. Evidence of Manoj Gupta (PW-10) is trustworthy and reliable. There is no enmity or ill-will of this witness against the appellant hence no question of falsely implicating is made out. Trial Court has not committed any illegality in relying upon the evidence of Manoj Gupta (PW-10). 12. Trial Court after properly appreciating the evidence found him guilty under section 8/20(b)(ii)(B) of the Act. No illegality, infirmity or perversity is found in such finding hence it is hereby affirmed. Sentence being not excessive is also hereby affirmed. 13. Consequently, appeal fails and is dismissed accordingly.