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Madhya Pradesh High Court · body

2008 DIGILAW 820 (MP)

Kailash S/o Prasadilal Bairwa v. State of M. P.

2008-07-03

S.L.KOCHAR

body2008
JUDGMENT : S.L. KOCHAR, J. 1. The appellant has preferred this appeal against his conviction under section 8/18(c) read with section 29 of the Narcotic Drugs and Psychotropic Substances Act (for short “the NDPS Act”) and sentence of R.I. for ten years and fine of Rs. 1,00,000/- and in default of payment of fine to suffer additional R.I. for one year passed by the learned Special Judge (Under NDPS Act), Neemuch in Special Case No. 30/2006 by judgment dated 29-12-2007. 2. Laconically, the prosecution case as put forth before the trial Court is that on 30-5-2006 Station Officer Shri Piyush Charles of Police Out Post, Nayagaon received information from informer that the appellant Kailash and co-accused Arvind were standing in front of Fertilizer Factory at Nayagaon-Nimbaheda highway with heroin brought from Afghanistan in an almond-colour leather bag in which mark of Afghanistan was embossed in English letters and this leather packet was kept in a black-colour bag. Further information was given that the co-accused Arvind had worn slaty colour pant and a designed T-Shirt. Their personality was also described by the informer that Arvind was a person of lean and thin and short height structure whereas Kailash was tall in height of wheatish in complexion. This information was recorded in Daily Diary and in presence of independent witnesses Chetandas and Kamlashankar memorandum Ex.P/6 regarding informer's report was also prepared. The report as per provision under section 42 of the Act was also sent to the SDO (P) Jawad. Thereafter, Shri Piyush Charles with police force and independent witnesses reached in front of Fertilizer Factory and found appellant Kailash standing there who disclosed on inquiry his name. After apprising him about his right of being searched as per provision under section 50 of the Act, he was searched, but from his possession, no objectionable article was seized. On further interrogation on the spot, the appellant disclosed certain facts which were recorded as per provision under section 27 of the Indian Evidence Act that he and co-accused Arvind had brought narcotic drug (Heroin) and same was with Arvind, he would take them to Arvind and would get it recovered. On this information the Inspector Shri Piyush Charles along with police force, panch-witnesses as well as the appellant made search of co-accused Arvind on Jawad Road and surrounding places. Arvind was found near Gorja Mata Mandir on Khor-Jawad Road. On this information the Inspector Shri Piyush Charles along with police force, panch-witnesses as well as the appellant made search of co-accused Arvind on Jawad Road and surrounding places. Arvind was found near Gorja Mata Mandir on Khor-Jawad Road. Arvind was apprised of his right of being searched as per provision under section 50 of the Act and after following the procedure of search and seizure, from his possession a bag was found and inside that bag, one leather bag was present. On removing the stitches of the leather bag, two polythene bags containing white powder were found and after test and smell, the powder was found to be heroin. On weighment, the total weight of heroin was found one kilogram and after mixing the powder properly two samples of ten grams each were taken for being sent to the Forensic Science Laboratory and sealed in presence of witnesses. The remaining powder was again sealed in the same packet. The samples were marked as Article A/1 and A/2. The appellant Kailash and Arvind were arrested. On return at the Police Station Crime No. 139/06 vide FIR Ex.P/35 was registered and the seized property was handed over to Head Constable Mohorrir in-charge of Malkhana. The detailed proceeding was recorded in the Daily Diary. The sample was sent along with draft-letter of S. P. for chemical examination, acknowledgment whereof is Ex.P/50. A detailed report Ex.P/4 was prepared and sent as per provision under section 57 of the Act to the SDO(P) Jawad. Memorandum statement of co-accused Arvind was also recorded and on the basis of his information Gajendra alias Sethi was arrested through arrest memo Ex.P/26. Co-accused Ramrup Singh was also arrested and his arrest memo is Ex.P/27. According to the Forensic Science Laboratory Report Ex.P/34 the sample was containing 07.43 per cent di acetyl morphine (heroin). 3. On completion of investigation, charge-sheet was filed against four accused persons for commission of the offence punishable under section 8/21(c) read with section 29 of the NDPS Act. 4. The accused persons abjured their guilt and pleaded their false implication by the police. They did not examine any witness in defence nor did they adduce any documentary evidence whereas the prosecution has examined as many as seven witnesses and got proved 50 documents from the witnesses. 4. The accused persons abjured their guilt and pleaded their false implication by the police. They did not examine any witness in defence nor did they adduce any documentary evidence whereas the prosecution has examined as many as seven witnesses and got proved 50 documents from the witnesses. Learned trial Court, while acquitting the co-accused Gajendra and Ramrupsingh, convicted the appellant and co-accused Arvind as described hereinabove. 5. Learned counsel for the appellant has submitted that the conviction of the appellant is mainly based on his memorandum-statement Ex.P/12 recorded as per provision under section 27 of the Indian Evidence Act and in pursuance thereof recovery of contraband article from the possession of the co-accused Arvind and the said evidence cannot be relied upon, because the fact of possession of seized narcotic drug from the possession of co-accused Arvind was already known to the police on the basis of informer's information, therefore, the same cannot be considered as a fact discovered exclusively at the instance of the appellant. Learned counsel has placed reliance on the Supreme Court judgments passed in the cases of Aher Raja Khima vs. State of Saurashtra, AIR 1956 SC 217 , Vijender and Others vs. State of Delhi, (1997) 6 SCC 171 and State of Karnataka vs. M.V. Mahesh, (2003) 3 SCC 353 . 6. On the other hand, learned counsel appearing for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. Having heard learned counsel for the parties and after perusing the entire record, this Court finds substance in the arguments advanced by the learned counsel for the appellant. There is no dispute regarding the fact that the prosecution witness PW-7 Sub Inspector Piyush Charles received information through informer on 30-5-2006 at Police Out Post that the appellant Kailash and co-accused Arvind residents of Savai Madhopur were standing in front of Fertilizer Factory at Nayagaon-Nimbaheda highway having with them an almond-colour bag with emboss mark of Whisper Afghanistan and that bag was containing narcotic drug (heroin). The informer also gave description of personalities of the appellant as well as the co-accused Arvind which was recorded in the Daily Diary. Thereafter, Sub Inspector Shri Charles sent for two independent panch-witnesses named PW-4 Chetandas and PW-5 Kamlashankar from village Nayagaon through a Constable from Police Out Post. The informer also gave description of personalities of the appellant as well as the co-accused Arvind which was recorded in the Daily Diary. Thereafter, Sub Inspector Shri Charles sent for two independent panch-witnesses named PW-4 Chetandas and PW-5 Kamlashankar from village Nayagaon through a Constable from Police Out Post. Both these witnesses were informed about the informer's information, memorandum of which was prepared vide Ex.P/6. Thereafter, Shri Charles also prepared memorandum Ex.P/7 regarding reasons for not obtaining search-warrant and sent information to superior police official as per provision under section 42 of the NDPS Act and along with necessary equipment of investigation and police force with witnesses reached on the place of information, informed by the informer and found the appellant Kailash present there. He disclosed about the informer's information to Kailash and also expressed his intention to take his search and while apprising him about his right to be searched in presence of a Magistrate or any Gazetted Officer as per provision under section 50 of the NDPS Act Ex.P/8, memorandum to this effect was prepared on which in writing the appellant Kailash gave his consent of his being searched by Sub-Inspector Shri Charles. After completing the required procedure of taking search of appellant Kailash he was searched and no objectionable article was found in his possession. His search-memo Ex.P/11 was prepared before bearing the signature of Shri Charles at place C to C and the signature of the appellant at place D to D. The further prosecution story is that on interrogation the appellant Kailash disclosed that he himself and co-accused Arvind had brought one kilogram heroin in an Almond-colour packet and the said heroin was brought from acquitted co-accused Ramrup Singh, the brother of Arvind and Arvind had gone to hand-over the same to a smuggler at Jawad. It was also informed by the appellant, according to witness PW-7 Piyusah Charles, that the small packet of Almond-colour was kept in a big leather bag and he would get the co-accused Arvind arrested and also get the heroin recovered. This information was recorded vide Ex.P/12 as per provision under section 27 of the Indian Evidence Act. 8. It was also informed by the appellant, according to witness PW-7 Piyusah Charles, that the small packet of Almond-colour was kept in a big leather bag and he would get the co-accused Arvind arrested and also get the heroin recovered. This information was recorded vide Ex.P/12 as per provision under section 27 of the Indian Evidence Act. 8. The crucial question before this Court for consideration is whether the information given by the appellant Kailash as recorded in Ex.P/12 can be considered as an information as per provision under section 27 of the Indian Evidence Act, which reads as under:- “How much of information received from accused may be proved: Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.” 9. Section 27 above provides regarding admissibility and how much information is to be proved given by the accused regarding discovery of any fact in custody of police officer and only except confessional part, rest of the information relating to discovery of fact is admissible and can be proved in Court against the accused. “The word “discovery” is not defined in Evidence Act. According to Black's Law Dictionary 8th Edn. Discovery means “the act or process of finding or learning something that was previously unknown.” In the instant case, the fact which was disclosed by appellant Kailash recorded as per provision under section 27 of the Indian Evidence Act vide Ex.P/12 is not containing any new fact which was not known to the police and only discovered at the instance of appellant so that after recovery of particular article or fact discovered the Court may presume existence of incriminating fact against appellant Kailash. 10. In the case at hand information was already with the police regarding possession of contraband article in a bag as per information given by the informer and recorded in Daily Diary as well as memorandum of informer's information Ex.P/6 in presence of two independent witnesses Chetandas and Kamlashankar. On search of the person of appellant Kailash, no incriminating article was found. The appellant Kailash was also not present along with co-accused Arvind. On search of the person of appellant Kailash, no incriminating article was found. The appellant Kailash was also not present along with co-accused Arvind. Police was already having information about co-accused Arvind and the bag containing contraband article with identification mark on a small leather bag kept in a large bag. Therefore, the information given by the appellant Kailash recorded as memorandum Ex.P/12 would not be admissible under section 27 of the Indian Evidence Act, because he did not disclose about any new fact which was not known to the police and in pursuance thereof the narcotic drug was seized. 11. The three judges Bench of Supreme Court in the case of Aher Raja Khima (supra) in Para 21 observed that “discovery of incriminating articles alleged to have been recovered by the accused is inadmissible in evidence if the police already knew where they were hidden.” Also See: Geejaganda Somaiah vs. State of Karnataka, (2007) 3 SCC (Cri) 135, Amitsingh vs. State of Maharashtra, (2007) 1 SCC (Cri) 582, State of Karnataka vs. M.V. Mahesh, (2003) 3 SCC 353 and Vijender and Others vs. State of Delhi, (1997) 6 SCC 171 . 12. In view of the foregoing dicta of the Apex Court, the statement of the appellant Ex.P/12 cannot be considered as a statement given for discovery of some new incriminating fact by him to police and in pursuance thereof the fact was discovered. The recovery of narcotic drug from the possession of co-accused Arvind cannot be considered as the fact discovered at the instance of the appellant, since it was already known to the police prior to recording of statement of appellant Kailash. 13. In the instant case, there is no direct recovery from possession of appellant Kailash and apart from his statement Ex.P/12 there is no other evidence available on record, therefore, in the considered view of this Court, the conviction and sentence of the appellant by the impugned judgment are not sustainable, therefore, the same are hereby set aside. The appellant is in jail. The trial Court is directed to release him forthwith if not required in connection with any other criminal case. 14. The Registry is directed to send a copy of this judgment to the trial Court along with its record for immediate compliance.