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Madhya Pradesh High Court · body

2008 DIGILAW 788 (MP)

Kamlesh Singh v. State of M. P.

2008-06-26

S.L.KOCHAR

body2008
JUDGMENT (Oral) 1. Both the aforesaid appeals arise out of same impugned judgment, therefore, same are taken together and dispose of by this common judgment. 2. The appellants have filed these appeals, challenging their conviction under section 21 (c) of the Narcotics Drugs & Psychotropic Substances Act, 1985 (for short "the Act") and sentence of R1 for 10 years with fine of Rupees one lakh, in default of payment of fine each appellant was further sentenced to undergo S1 for one year, passed by learned Special Judge (under NDPS Act), Ratlam in Special ST No. 45/2003, judgment dated 1.12.2006. 3. According to the prosecution case, AS1,G.S. Gurjar (PW 14) posted at outpost Bangrod, P.S. Namli received information from informant that from Dhodar to Ratlam on Yamaha Motorcycle No. MP09/H-298 appellant Kamlesh Singh Rajput alongwith smuggler was coming with smack. On receiving this information, memorandum of the information was prepared in presence of witnesses Chikulal and Lokendrasingh and intimation was sent to SDOP, Sailana as per provision under section 42 of the Act. The police party alongwith witnesses and instruments for investigation proceeded in Government vehicle towards Maleni river and reached on the bridge of Maleni river. They saw two persons coming on motorcycle Yamaha from the side of Jaora. On driving seat, appellant Kamleshsingh was sitting and he told by taking name of pillion rider Shakeel that police would catch them, thereafter he raised the speed and ran away on the motor-cycle. Constable Jandelsing and AS1 Gurjar chased them by Government vehicle and caught them after crossing a distance of one and a half kilometer. Their names were asked. They were informed' about informer information regarding illegal possession of narcotic drug and notice under section 50 of the Act was given to them. They expressed their desire and gave consent to be searched by AS1 Gurjar. From the, possession of appellant Shakeel, 1.10 kg. smack was seized, out of this two samples each of 25 gm. were taken. on search of appellant Kamlesh, mobile and his motor-cycle were seized. The proceedings of search and seizure were completed on spot. Thereafter appellants were arrested. After reaching at the police station, seized property was deposited in malkhana and intimation in accordance with the provisions of section 57 of the Act was sent to SDOP, Sailana. Sample (Article A) was sent for examination to FSL. Its report is Exh. P-31. The proceedings of search and seizure were completed on spot. Thereafter appellants were arrested. After reaching at the police station, seized property was deposited in malkhana and intimation in accordance with the provisions of section 57 of the Act was sent to SDOP, Sailana. Sample (Article A) was sent for examination to FSL. Its report is Exh. P-31. According to this report, in the sample 10.47% Di Acetyl Morphine (Heroin) was found. On completion of investigation, appellants were charge-sheeted for commission of above mentioned offences. 3A. The appellants denied the charges and the case of appellant Shakeel was that Constable landelsingh took him to Namli Police Station for repairing the vehicle and implicated him in a false case. The defence of Kamleshsingh was that he was serving as Constable in GRP, Ratlam and registered a criminal case against Gendalal Mongiya, the brother of Constable Radheshyam under the Arms Act in GRP, Ratlam because of which at the instance of Constable Radheshyam who was posted at Namli Police Station, he was fastened in a false case. He further submitted that on the date of incident he was at the house of his maternal aunt situated in laora who was sick and he had gone to meet them and when he was returning back he was stopped and taken to Namli Police Station. The appellants have not examined any witness in defence whereas prosecution has examined in total 11 witnesses and adduced 31 documents to prove its case. Learned trial Court, finding the appellants guilty, convicted them as mentioned hereinabove. 3B. Learned counsel for appellant Shakeel does not dispute the recovery of 1.10 Kg smack from his possession, but he submitted that appellant can only be convicted for the pure quantity of heroin, relying on Supreme Court judgment passed in case of E. Michel Raj v. Intelligence Officer, Narcotics Bureau [2008 AIR SCW 2365]. According to learned counsel, FSL, report (Ex. P-31) is showing presence of 10.47% DI Acetyl Morphine in the sample, therefore, in total 1.10 kg. seized powder, the pure quantity of morphine would be 115.17 gram. This quantity is lesser than commercial quantity whereas appellant has been convicted having in possession of commercial quantity, i.e., more than 250 gm. Learned counsel has also submitted that for non-commercial quantity under section 8121 (b) of the Act, minimum jail sentence and fine amount is not prescribed. seized powder, the pure quantity of morphine would be 115.17 gram. This quantity is lesser than commercial quantity whereas appellant has been convicted having in possession of commercial quantity, i.e., more than 250 gm. Learned counsel has also submitted that for non-commercial quantity under section 8121 (b) of the Act, minimum jail sentence and fine amount is not prescribed. The prescribed sentence may extend to 10 years and with fine which may extend to rupees one lakh. According to learned counsel, in the instant case, there are no circumstances for imposing maximum jail sentence as well as fine amount. 4. The learned counsel for' appellant Kamlesh has submitted that prosecution has failed to establish conscious possession of his appellant which was seized from the possession of co-accused Shakeel. 5. Having heard the learned counsel for parties and after perusing the entire record, this Court is of the view that appellant Kamlesh was driving the motorcycle. He himself was serving in GRP (Police) and there was no need of him to run away after seeing the police party. He was chased and caught after crossing distance of one and a half kilo metre and he was the owner of the motorcycle. If he was not knowing that his companion pillion rider co-accused Shakeel was having any contraband article and they were just going on a motorcycle in routine manner, there was no need for him to accelerate the speed of motorcycle and run away. In the informer report, name of the appellant Kamlesh is specifically mentioned. It is mentioned that he was coming along with a smuggler with smack. The mukhbir report was found correct because of conduct of the appellant Kamlesh by running after seeing the police and he signed on all the documents right from initial Panchnama prepared by the police regarding search by ASI Gurjar, notice prepared under section 50 regarding apprising them of their right to be searched in presence of Gazetted Officer or Magistrate and both the appellants in their own handwriting gave consent to be searched by ASI Gurjar. The signature of Kamlesh is available on number of documents; search, seizure, weighing of the article, tasdiq Panchnama, etc. The prosecution has also exhibited photograph (Exs. P7, P-8 and P-9) proved by PW 4. The signature of Kamlesh is available on number of documents; search, seizure, weighing of the article, tasdiq Panchnama, etc. The prosecution has also exhibited photograph (Exs. P7, P-8 and P-9) proved by PW 4. These photographs are the marriage photographs of appellant Kamlesh and in the marriage, seized motorcycle was given to him as gift by his in-laws. If Kamlesh was an innocent person he could have mentioned on all these documents (Exhs. P-ll, P12, P-14, P-15 etc.) that he was innocent and falsely implicated. After arrest when he was produced before the concerning Magistrate, he could have given application in writing regarding his false implication. Even he did not complain orally to the concerned Magistrate. To prove his defence about registration of criminal case against Gendalal Mongiya, the brother of Constable Radheshyam Mongiya, he could have called the record of this case from GRP Police Station, Ratlam. He could have examined his maternal uncle and aunt as well as other relatives who were residing in Jaora to prove that he had gone to meet them because of sickness of his maternal aunt but on all these aspects neither he has adduced any documentary nor oral evidence. This conduct of the appellant Kamlesh goes against him and same is relevant under section 8 of the Evidence Act. For non-production of documentary evidence in support of his contention regarding false implication, the adverse inference can be drawn against him as per provision under section 114 (g) of the Evidence Act. 6. The learned trial Court has considered all these aspects in detail and given finding that appellant Kamlesh was very well aware of the possession of smack by co-accused Shakeel and both were going on motorcycle with the said smack which was ultimately seized by the police. 7. Learned counsel for appellant Kamleshsingh in alternative also adopted the argument advanced by the learned counsel for appellant Shakeel. 8. In view of the above discussion, this Court is of the considered view that appellant Kamlesh Singh was having knowledge that co-appellant Shakeel was carrying smack and he was helping him to reach to the destination on his motorcycle. 9. So far as conviction of the appellant for non-commercial quantity of smack is concerned, this Court finds substance on the basis of the judgment passed by the apex Court in case of E. Michel Raj (supra). 9. So far as conviction of the appellant for non-commercial quantity of smack is concerned, this Court finds substance on the basis of the judgment passed by the apex Court in case of E. Michel Raj (supra). Supreme Court in this case has specifically held that the accused can be convicted for pure quantity mixed with in neutral substance. In this case, 4.07 kg. heroin was seized from the possession of the appellant E. Michel Raj and two samples were sent and in each sample 1.6% pure morphine was found. On mathematical calculation, in 4.07 kg. heroin only 60 gm pure heroin/morphine was present. The conviction of the appellant under section 8/21 (c) has been set aside by the learned apex Court and he has been convicted under section 8/21 (b) of the Act having in possession of non-commercial quantity and more than small quantity. In the case at hand, total quantity seized was 1.10 kg. and 10.47% pure Di Acetyl Morphine was found in sample of 25 gm, therefore, the pure quantity 0 morphine would be 115.17 gm. This quantity is less than commercial quantity, i.e. 250 gm. 10. Therefore, conviction of the appellants under section 8/21 (c) 0 the Act are not sustainable, therefore, same are set aside, instead thereof they are convicted under section 8/21 (b) of the Act and sentenced to RI for five years and fine of Rs. 20,000/- (Rupees twenty thousand) to each; in default of payment of fine they shall undergo additional RI for one year. 11. In the result, these appeals are allowed in part on the terms indicated herein above. Office is directed to send copy of this judgment alongwith the record to the trial Court. 12. Original judgment is kept in the record of Cr.A. No. 1379/2006 and a copy hereof be placed in the record of connected Cr.A. No. 105/ 2007.