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Madhya Pradesh High Court · body

2008 DIGILAW 728 (MP)

Phool Singh v. State Of M. P.

2008-06-16

K.S.CHAUHAN

body2008
JUDGMENT : This Criminal Appeal under section 374(2) of Criminal Procedure Code has been filed being aggrieved by the judgment, finding and sentence dated 29-3-1994 passed by Special Judge, Narsinghpur in Special Criminal Case No. 75/1993, whereby the appellant has been convicted under section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the Act) and sentenced to R.I. for 6 months and a fine of Rs. 200/- in default of payment of fine R.I. for 2 months. 2. Prosecution case in short is that on 2-9-1993 K. K. Singh, Excise Sub Inspector, Narsinghpur received information during patrolling regarding selling of ganja by appellant. On this information he went along with the staff at Weekly Market, Dangidhana. After giving him the option to be searched before Gazetted Officer his consent was obtained to be searched by Excise Sub Inspector himself. After giving their own search the search of appellant was taken. 15 grams ganja was found in the pocket of his pant which was seized vide seizure memo Ex.P/10. Various panchnamas were prepared. Appellant was arrested. The report regarding seizure and arrest was sent to District Excise Officer, Narsinghpur. Map was prepared. The statements of the witnesses were recorded. After completing the investigation, charge-sheet was filed in the Court of Sessions Judge, Narsinghpur. 3. Appellant stood charged under section 20 of the N.D.P.S. Act. He abjured the guilt and claimed to be tried mainly contending that he has been falsely implicated. Prosecution examined as many as 4 witnesses and appellant did not examine any witness in defence. After appreciating the evidence, appellant was found guilty under section 20 of the Act and convicted and sentenced thereunder as stated hereinabove in para No. 1 of the judgment. Being aggrieved by the judgment, finding and sentence passed by the trial Court, instant appeal has been preferred on the grounds mentioned therein. 4. Shri Vijay Naik, advocate was engaged by the appellant as his counsel but he did not appear to argue on 14-5-2008. Since the appeal was pending from 1994, therefore, Ku. Alka Pandya was appointed from the panel of High Court Legal Services Committee to argue the matter on behalf of the appellant so that this appeal may be disposed of expeditiously hence arguments were heard. 5. Learned counsel for the appellant submitted that trial Court has not appreciated the evidence in proper perspective. Alka Pandya was appointed from the panel of High Court Legal Services Committee to argue the matter on behalf of the appellant so that this appeal may be disposed of expeditiously hence arguments were heard. 5. Learned counsel for the appellant submitted that trial Court has not appreciated the evidence in proper perspective. The mandatory provisions of the Act have not been complied with. Finding of guilt is erroneous which deserves to be set aside and the appellant is entitled for acquittal. 6. On the other hand, Shri R.N. Yadav, learned P. L. appearing on behalf of the respondent/State supported the judgment, finding and sentence passed by trial Court mainly contending that prosecution has proved the case beyond reasonable doubt against the appellant. The appellant has rightly been convicted and sentenced hence it does not call for any interference. 7. 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 20 of the Act? 8. K. K. Singh (PW-1) and Harnam Prasad (PW-2) both have deposed that the information from 'Mukhbir' was received regarding the selling of ganja by appellant but no such information has been taken down by K. K. Singh (PW-1) and no such information as is required by section 42 of the Act has been sent to his immediate official superior. Section 42(2) of the N.D.P.S. Act runs as follows:- "(2) Where an officer takes down any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall within seventy-two hours send a copy thereof to his immediate official superior." 9. Thus K. K. Singh (PW-1) has not complied with the provisions of section 42(2) of the Act. 10. K. K. Singh (PW-1) and Harnam Prasad (PW-2) both have deposed that the consent of the appellant was obtained prior to his search. Ex.P/10 is the consent letter. On perusal of this document it reveals that the provisions of section 50 of the Act have not been complied with in letter and spirit. 10. K. K. Singh (PW-1) and Harnam Prasad (PW-2) both have deposed that the consent of the appellant was obtained prior to his search. Ex.P/10 is the consent letter. On perusal of this document it reveals that the provisions of section 50 of the Act have not been complied with in letter and spirit. Section 50 of the N.D.P.S. Act runs as follows :- "(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior." 11. Whereas on perusal of this document it reveals that appellant gave the consent to be searched by Excise Sub Inspector because the Gazetted Officer was not available there. This is not the due compliance of this section because no Gazetted Officer can be expected to be present at the spot where the person is going to be searched. Whereas on perusal of this document it reveals that appellant gave the consent to be searched by Excise Sub Inspector because the Gazetted Officer was not available there. This is not the due compliance of this section because no Gazetted Officer can be expected to be present at the spot where the person is going to be searched. Actually the offer must have been given to appellant to be searched before Gazetted Officer or nearest Magistrate if he so requires. The independent witnesses Munnalal (PW-3) and Suresh Dheemar (PW-4) have not supported the version of K. K. Singh (PW-1) and Harnam Prasad (PW-2) regarding obtaining of consent from appellant to be searched by K. K. Singh (PW-1). Therefore prosecution has failed to prove the compliance of section 50 of the Act. 12. No doubt K.K. Singh (PW-1) and Harnam Prasad (PW-2) have deposed that 15 grams of ganja was seized from the pocket of pant of appellant vide seizure memo Ex.P/1 but both the independent witnesses Munnalal (PW-3) and Suresh Dheemar (PW-4) have not corroborated their statement. Thus seizure of ganja has not been supported by the independent witnesses. 13. On the basis of the physical test the witnesses K. K. Singh (PW-1) and Harnam Prasad (PW-2) are deposing that seized article was ganja but no any chemical test has been done therefore in absence of the chemical test it cannot be said with certainty that seized article was ganja. 14. The provisions of section 55 of the Act also appears not to have been duly complied with. Section 55 of the N.D.P.S. Act runs as follows :- "An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station." 15. There is improvement in the statement of K. K. Singh (PW-1) and Harnam Prasad (PW-2) regarding the fact that appellant started running seeing them. No such fact has been mentioned in any document. There is improvement in the statement of K. K. Singh (PW-1) and Harnam Prasad (PW-2) regarding the fact that appellant started running seeing them. No such fact has been mentioned in any document. The independent witnesses have also not supported their statement. The statement of K. K. Singh (PW-1) and Harnam Prasad (PW-2) are not fully reliable and it was not safe to convict the appellant on such evidence. Some mandatory provisions have also not been complied with hence the finding of guilt is erroneous which deserves to be set aside. 16. Consequently, appeal succeeds and is allowed. The conviction of appellant under section 20 of the Act and sentence passed thereunder is hereby set aside. He is acquitted of the charge levelled against him. Appellant is on bail. His bail bonds are discharged. He be set at liberty.