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Madhya Pradesh High Court · body

2009 DIGILAW 1068 (MP)

Harish v. State of M. P.

2009-08-31

N.K.MODY

body2009
JUDGMENT : Being aggrieved by the judgment dated 16.7.2009 passed by Special Judge (NDPS Act), Rajgarh (Biora) in Special Case No. 06/2004, whereby the appellant was convicted for an offence punishable under Section 8/18 of NDPS Act with imprisonment of three years and fine of Rs. 20,000/-, the present appeal has been filed. 2. In short case of the prosecution was that on 11.10.2004 Shri VS. Sapre, Station Officer, Police Station, Biora received secret information to the effect that on by pass road, Biora appellant is selling wine illegally. Upon this information Station Officer of the concerned police station went on spot and found the appellant in possession of wine which was being sold by him illegally. It was alleged that upon search of the Hotel contraband article was also found, which was kept in back room of the Hotel. The appellant was found in possession of 17 Kg. of Poppy Straw, out of which sample was taken, sample as well as seized article were sealed properly, necessary panchnama was prepared, returned back to the police station, informed the Superior Officers, deposited the sealed packet as well as packet of contraband article for safe custody and registered the FIR. Thereafter the sealed packet was sent for chemical examination to the Forensic Science Laboratory, from where report was received wherein seized article was found to be Poppy Straw, after investigation charge-sheet was filed. 3. Appellant abjured the guilt and his defence was of false implication in the case. Learned Trial Court after appreciation of entire evidence on record, held the appellant/accused guilty for the offence punishable under Section 8/18 of NDPS Act and sentenced him as stated hereinabove, aggrieved by which the appellant preferred the appeal. 4. Learned Counsel for the appellant argued at length and submits that appellant was convicted illegally while appellant has not committed any offence. Learned Counsel submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that the learned Court below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that in view of the aforesaid facts the appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside. 5. It is submitted that the learned Court below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that in view of the aforesaid facts the appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside. 5. In alternative learned Counsel submits that appellant was in jail w.e.f. 11.10.2004 and was released on bail vide order dated 14.12.2004. Appellant was again in jail w.e.f. 16.7.2009. It is submitted that since the jail sentence was below three years, therefore, learned Trial Court was duty bound to suspend the jail sentence after conviction but the application in that regard was dismissed. It is submitted that looking to the nature of offence and the fact that appellant has already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably be enhanced. 6. Learned Counsel for the respondent/State submits that after due appreciation of evidence, learned Court below has found the offence proved against the appellant, which requires no interference. It is submitted that the appeal filed by the appellant be dismissed. 7. From perusal of the record, it is evident that to prove the case the prosecution has filed the documents which as marked as Exh, P-1 to Exh. P-19. Apart from this prosecution has also examined Tejkaran (P.W. 1), Hokamchand (P.W. 2), Ashok Parihar (P.W. 3), Mahesh (P.W. 4), B.L. Sahu (P.W. 5), Leelashankar Bhati (P.W. 6), Head Constable, Kesar Rajpoot (P.W. 7), N.P. Dangi (P.W. 8), Motilal (P.W. 9), Kesar Singh (P.W. 10), Alok Kumar Singh (P.W. 11) and Prakash (P.W. 12). Exh. P-17 is the FSL report. In chemical examination it was found that the contraband substance was poppy straw. Learned counsel for the appellant submits that as per table specifying small quantity and commercial quantity at serial No. 110 up to 10 kg, Poppy Straw is small quantity, while above 50 kg, it is commercial quantity. It is evident that Poppy Straw found in possession of the appellant is 17 kg, which is less than commercial but more than small quantity. 8. Kesar Rajpoot (P.W. 7), is the Head Constable who has stated in his cross-examination that it is wrong to say that poppy straw was found in one packet. It is evident that Poppy Straw found in possession of the appellant is 17 kg, which is less than commercial but more than small quantity. 8. Kesar Rajpoot (P.W. 7), is the Head Constable who has stated in his cross-examination that it is wrong to say that poppy straw was found in one packet. It is further stated by him the wine was found out of the room. The statement of Kesar Rajpoot (P.W. 7) is contrary to the statement of B.L. Sahu (P.W. 5). 9. SDOP Alok Singh was examined as P.W. 11 who has stated that contraband article was found in a room which was locked. Hokamchand Shivhare (P.W. 2) and Ashok Parihar (P.W. 3) are the independent witnesses who have not supported the case of the prosecution and have stated on oath that their signatures were obtained at the police station. 10. In the matter of Bhola Ram Kushwaha vs. State of Madhya Pradesh, reported in 2001 (1) EFR 160, in a case where in the statement of prosecution witnesses and the independent witnesses, there is glaring discrepancies and independent witnesses have stated that they neither know the accused nor search made in their presence, and their signatures were obtained on some papers at the instance of police, the Hon'ble Apex Court held that the prosecution failed to prove the case and the conviction was set aside. 11. In the matter of Ismailkhan vs. State of Gujarat, reported in 2001 (2) EFR Page 6, wherein there was no evidence to show that accused had possession of the room, actual or constructive, it was held by the Hon'ble Apex Court that there is no statutory presumption for drawing any presumption that the accused has possession of narcotic or psychotropic substance. It was further held that no presumption under law even under Section 114. Evidence Act can be drawn because the accused were present when room was raided. It was also held that the High Court wrongly pass the burden on accused to prove his presence. It was also held that on the solitary evidence the conviction cannot be sustained. 12. In the matter of Jitendra vs. State of M.P., reported in 2004 SCC (Cri.) 2028, wherein the prosecution has failed to produce seized Charas and Ganja before the Court. It was also held that on the solitary evidence the conviction cannot be sustained. 12. In the matter of Jitendra vs. State of M.P., reported in 2004 SCC (Cri.) 2028, wherein the prosecution has failed to produce seized Charas and Ganja before the Court. Hon'ble the Apex Court has held that non-production of seized Drugs was not a mere procedural irregularity as it has caused prejudiced to the accused, hence was fatal to the prosecution case. It was further held that best evidence would have been the seized material which ought to have been produced during the trial as marked material objects. It was also held that mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. 13. In view of the aforesaid position of law, this Court is of the view that the prosecution has failed to prove the alleged offence against the appellant. In view of this, the appeal filed by the appellant is allowed and the judgment dated 16.7.2009, whereby the appellant was convicted, is set aside with a further direction to release the appellant forthwith.