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Madhya Pradesh High Court · body

2009 DIGILAW 1172 (MP)

AASIF MALIK v. STATE OF M P

2009-10-07

S.A.NAQVI

body2009
Judgment ( 1. ) ASSAIL is to the judgment dated 15. 11. 2008 passed by special Judge (N. D. P. S.) Khandwa East Nimad in Spl. Case. No. 3/2008 whereby the appellant Aasif Malik has been convicted under Section 8 read with Section 20 (b) (ii) ( (B) of Narcotic Drugs and Psychotropic Substances act, 1985 (in short "ndps" Act) and sentenced to undergo 8 years rigorous imprisonment and fined Rs. 1,00,000/- in default 1 year rigorous imprisonment. ( 2. ) THE case of prosecution in a nut shell is that on 9. 3. 2008 a secret information was received that the appellant Aasif Malik and co-accused ashfaq Malik having illegal Ganja in their possession in the house of Ashfaq malik situated at Dedhtalie, they are going to sell Ganja to Maharashtra, The information was entered in rojnamcha sanha Ex. P/21. Panch witnesses were called. Entries were made in rojnamcha Ex. P/3. Panch witnesses were apprised of the received information and Panchnama Ex. P/25 was prepared. The provisions of the NDPS Act were complied with. The police party along with panch witnesses started from the police station entry was made vide Ex. P/28. They reached at the house of co-accused Ashfaq Malik who was previously known to the police. Police Party saw co-accused Ashfaq malik running from the spot. The appellant Aasif Malik found on the spot. He was informed about the information received from informer and panchnama Ex. P/5 was prepared. Notice Ex. P/6 u/s 50 of the NDPS Act was served on the appellant. After his consent personal search of the appellant was carried out. Rs. 58,625/- were found on the person of the appellant. Thereafter house of co-accused Ashfaq Malik was searched in presence of the appellant. Panchanama Ex. P/8 was prepared. In corner of the room ganja was found in white coloured plastic bag. Ganja was physically examined and panchnama Ex. P/9 was prepared. Ganga was mixed. On weighing the total weight of ganja was found to be 13 Kgs. 200 gms. Toal Panchanamas ex. P/11 and Ex. P/12 were prepared. Two samples weighing 50 grams each were taken from the ganja separately and sealed. The remaining part of ganja is also scaled. The impression of seal was taken on Ex. P/14. Ganja samples and currency were seized as per seizure memo Ex. P/15. ( 3. 200 gms. Toal Panchanamas ex. P/11 and Ex. P/12 were prepared. Two samples weighing 50 grams each were taken from the ganja separately and sealed. The remaining part of ganja is also scaled. The impression of seal was taken on Ex. P/14. Ganja samples and currency were seized as per seizure memo Ex. P/15. ( 3. ) THE police party came back to the police station along with the appellant and seized contraband article. Seized ganja samples and currency were handed over to Head constable Moharir Bhagirath Patel (PW 6), who kept the same in Malkhana vide Ex. P/18. FIR Ex. P/31 was lodged. Detailed information was sent to S. D. O. P. Nepanagar vide Ex. P/32. Samples were sent to FSL Sagar for chemical analysis. As per analyst report Ex. P/34 seized article was found to be ganja. Spot map Ex. P/29 was prepared. Statement of witnesses were recorded u/s 161 Cr. P. C. Co-accused Ashfaq Malik absconded. After completion, of investigation the appellant and co-accused ashfaq Malik were charge sheeted. ( 4. ) LEARNED Trial Court framed charge under Section 8 read with section 20 (b), (ii) (B) of the NDPS Act against the appellant The appellant abjured the guilt and pleaded innocence and false implication. His defence is that he went to Dedhtalie to bid cattle market of Dedhtalie. He had also previously took cattle market of Dedhtalie on contract. He stayed at the house of his uncle Faiz Mohammad. He was going to attend auction of weekly market. He saw that police was misbehaving mother of co-accused and other women residing with co-accused Ashfaq Malik. He intervened and objected to it. Police took him police chowki and seized money from him. ( 5. ) PROSECUTION examined 13 witnesses. Defence has examined two witness. ( 6. ) AFTER hearing learned counsel for both the parties, perusing evidence and material on record, learned Trial Court convicted the appellant under Section 8 read with Section 20 (b), (ii) (B) of NDPS Act and sentenced him as hereinabove mentioned. Being aggrieved by the impugned judgment the appellant has preferred the appeal. ( 7. ) I have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record. ( 8. ) LEARNED counsel for the appellant vehemently argued that the appellant asif Malik is not resident of village Dedhtalie. He is resident of village Mohgaon district Mandla. ( 7. ) I have heard learned counsel for both the parties, perused impugned judgment, evidence and material on record. ( 8. ) LEARNED counsel for the appellant vehemently argued that the appellant asif Malik is not resident of village Dedhtalie. He is resident of village Mohgaon district Mandla. On 9. 3. 2008 the appellant Asif Malik went to bid for weekly market in village Dedhtalie. Previously also he took contract of weekly market of dedhtalie. He was going to attend auction he saw that police was misbehaving the ladies to which he objected and police arrested the appellant. The appellant was not in conscious possession of seized ganja. He was not found in the house of co-accused. Ashfaq Malik. Co-accused Ashfaq Malik is his rival. He is not carrying business along with co-accused Ashfaq Malik. He was to cany business of weekly market with Mohd. Akram (DW 2 ). There are material contradictions in the statement of prosecution witnesses. The house from where Ganja is seized was in possession of co-accused Ashfaq Malik, where his mother, his wife, brothers and children are jointly residing. The appellant never stayed in the house of co-accused Ashfaq Malik. Learned trial Court committed error in relying upon the testimony of prosecution witnesses and in convicting and sentencing the appellant mentioned hereinabove. Contrary to that learned Public Prosecutor supported the impugned judgment and contended that learned trial Court did not err in convicting and sentencing the appellant. ( 9. ) INDRAJEET Ueekay (PW 1), Vinod (PW 9) and Ganesh (PW 1. 0) turned hostile they are not supporting the factum of seizure of 13 Kgs 200 grms ganja from-the possession of the appellant. Indrajeet Ueekay (PW 1) deposed that Rs. 58,625/- was seized from the possession of the appellant. He also deposed that 13 Kg. 200 grms ganja was seized in a sack. Two samples weighing 50 grms each were taken from the seized ganja. He also deposed that the appellant told that his name is Asif and he is resident of village Mohgaon district Mandla. Vinod (PW 9) and ganesh (PW 10) are not supporting the prosecution story they totally denied the seizure of Ganja from the possession of the appellant. ( 10. He also deposed that the appellant told that his name is Asif and he is resident of village Mohgaon district Mandla. Vinod (PW 9) and ganesh (PW 10) are not supporting the prosecution story they totally denied the seizure of Ganja from the possession of the appellant. ( 10. ) N. S. Rawat (PW 11) deposed that he received secret information that ashfaq Malik and Aasif Malik having ganja in the house situated at village dedhtalie and they are going to sell it in Maharashtra. The entry was made vide ex. P/21. Provisions of NDPS Act were complied with. Panch witnesses were called. Police party along with panch witnesses reached in village Dedhtalie at the house of Ashfaq Malik. He further deposed that Ashfaq Malik seeing police party fled away from the spot and the appellant Aasif Malik apprehended there. He was apprised of secret information received from the informer. Notice u/s 50 of the NDPS Act was served on the appellant. He agreed to be searched by N. S. Rawat. On personal search of the appellant Rs. 58,625/- were found. Thereafter house of co-accused Ashfaq Malik was searched. In a corner of room one polethine bag full of ganja was found. It was physically examined and after satisfaction that it is ganja, it was mixed. From the seized ganja two sample weighing 50 gram each were taken and sealed separately. Remaining part of ganja is also seized. Prior to taking sample on Weighing total weight of ganja was found to be 13 Kg 200 grams. Ganja, sample and Rs. 58,625/- were seized vide seizure memo Ex. P/15. He also prepared spot map Ex. P/29. ( 11. ) POLICE party came back to police station. The seized contraband article, samples and currency were kept in Malkhana in sealed condition vide Ex. P/18. In due course of time the samples were sent to FSL Sagar for chemical analysis. As per analyst report Ex. P/34 on physical examination, microscopic and thin layer chromatography test seized article was found to be ganja. Pankaj Jaghav (PW 4)also corroborated the testimony of N. S. Rawat. Independent witnesses Shankar das (PW 5), Vinod (PW 9) and Ganesh (PW 10) turned hostile and they are not supporting evidence of N. S. Rawat. There is overwhelming evidence on record that on 9. 3. Pankaj Jaghav (PW 4)also corroborated the testimony of N. S. Rawat. Independent witnesses Shankar das (PW 5), Vinod (PW 9) and Ganesh (PW 10) turned hostile and they are not supporting evidence of N. S. Rawat. There is overwhelming evidence on record that on 9. 3. 2008 police received secret information that in the house of co-accused ashfaq Malik ganja is kept and after complying mandatory provisions of the NDPS act the house of co-accused Ashfaq Malik was raided and in presence of the appellant Asif Malik 13 Kgs. 200grams ganja was seized. There is also overwhelming evidence that following due procedure two samples weighing 50 grams each were taken from the seized ganja. There is also positive evidence on record that the samples and seized ganja were kept in malkhana in police station. which is kept by Bhagirath Patel in safe custody. There is also positive evidence on record that the same samples were sent to FSL Sagar for chemical analysis and vide Ex. P/34 analyst report it is proved beyond doubt that seized article is ganja. The oral evidence is corroborated by document Ex. P/1 to Ex. P/34 hence prosecution evidence in this respect is wholly reliable. The fact that who received information through whom is immaterial and does not adversely affect the prosecution case. Learned trial Court rightly held that 13 Kg. 200 grams ganja was seized from the house of co-accused Ashfaq Malik. The finding of learned trial Court in this respect is hereby affirmed. Now it has to be considered that whether the prosecution has proved beyond doubt that the appellant Asif Malik was in conscious possession of seized ganja and learned trial court has rightly convicted him or not ? ( 12. ) PANKAJ (PW 4) and N. S. Rawaat (PW 11) deposed that seeing police party co-accused Ashfaq Malik fled away from the spot and the appellant Asif Malik was apprehended by the police and in his presence ganja was seized. The presence of accused on spot is also established by the evidence of Indrajeet Ueekay (PW 1) and signatures of the appellant on documents Ex. P/5 to Ex. P/18. The presence of accused on spot is also established by the evidence of Indrajeet Ueekay (PW 1) and signatures of the appellant on documents Ex. P/5 to Ex. P/18. Learned counsel for the appellant submits that there is no evidence on record that the appellant was found in the house of co-accused Ashfaq Malik near the sack of ganja, hence it can not be held that the appellant was in conscious possession of ganja. ( 13. ) PANKAJ Yadav (PW 4) deposed that police party reached at the house of co-accused Ashfaq Malik and the appellant were present, but he has no specifically deposed that the appellant Asif Malik was found in the house of co-accused ashfaq Malik. ( 14. ) N. S. Rawat (PW 11) also deposed that the appellant was found at the spot and in his presence house of co-accused Ashfaq Malik was searched and ganja was seized. He further deposed that co-accused Ashfaq Malik fled away from the spot on seeing police party. In para 28 N. S. Rawat (PW 11) deposed that he has not mentioned in spot map Ex. P/29 that at the house of co-accused Ashfaq malik two boys were standing and one boy fled away from the spot, He deposed that he has mentioned in Ex. P/29 that both boys were in room No. 1, but in second breath he mentioned that he has not mentioned the same in Ex. P/29. On going through the spot map Ex. P/29 it is revealed that there is no mentioned in the spot map that at which place the appellant was standing and from where co-accused ashfaq Malik fled away. House of co-accused Ashfaq Malik is situated road side and in front of his house a platform is situated thereafter a room is situated from where ganja is seized from a corner. There is no specific mention in Ex P 29 that where the appellant was found in room no. l or he was on a platform of the door. The prosecution is bound to prove beyond reasonable doubt by reliable evidence that the appellant was found in the room and he was in conscious possession of Ganja, but there is no specific oral evidence on record that the appellant was found in the room or near sack of ganja. Ex. P/9 is panchanama of physical verification of contraband article. The prosecution is bound to prove beyond reasonable doubt by reliable evidence that the appellant was found in the room and he was in conscious possession of Ganja, but there is no specific oral evidence on record that the appellant was found in the room or near sack of ganja. Ex. P/9 is panchanama of physical verification of contraband article. There is no mentioned in Ex. P/9 that the appellant was found near sack of ganja. In Ex. P/8 search panchanama it has not been mentioned that the appellant is found in the room near sack of ganja. On going through the evidence of Pankaj Yadav and N. S. Raswat it is clear that from a considerable distance co-accused Ashfaq Malik saw the police party and ran away from the spot and the appellant was near the house of co-accused. He did not try to fled away from the spot, consequently he was apprehended by the police. On going through the whole evidence on record, I am of the view that there is no positive evidence on record that the appellant was found in the room near sack of ganja from where ganja was seized. Ex. P/38 is a document proved by S. R. Chopra (PW 13 ). It is clear from the document that the house from where ganja was seized belongs to Husain Khan son of Rahaman Khan and co-accused ashfaq Maliks mother Ayassha Begum, brother Wasim Malik and Sadan reside in that house. In Ex. P/38 it has not been mentioned that the appellant Asif Malik resides in the house of co-accused Ashfaq Malik. There is positive evidence on record that Farah Mohammad maternal uncle of the appellant Asif Malik resides near the house of co-accused Ashfaq Malik. Indrajeet Ueekay (PW 1) admitted that when the appellant was apprehended he informed that he is residing at village mahgaon district Mandla, and he came to Dedhtalie to participate in acution of weekly market. Though Pankaj Yadav and N. S. Rawat denied the aforementioned fact but Saleem (PW 7) and Saleem Qureshi (PW 8) specifically admitted that mother, brother, wife and children of co-accused Ashfaq Malik resides in the house, and Ashfaq Malik also comes in that house It is clear from the evidence of Saleem that Wasim and Sadan brother of co-accused Ashfaq Malik are adult. Saleem Qureshi (PW 8) admitted that in 2006-07 the appellant Asif Malik took contract of weekly market of village Dedhtalie. He also admitted that the appellant is a resident of village Mahgaon district Mandla and he used to come to his maternal uncles house Faiz Mohammad and he stayed in the house Faiz Mohammad. ( 15. ) RAVINDRA (DW 1) deposed that the appellant Asif Malik and Ashfaq took part in auction of weekly market of village Dedhtalie in the year 2006-07 which is corroborated by document Ex. D-6/c. Co-accused Ashfaq Malik having grudge "with the appellant and they were not in talking terms. It is proved by Ravindra (DW 1) that in 2006-07 the appellant Asif Malik also bid in cution of weekly market. Mohd. Akram (DW 2) deposed that the appellant was his partner but he could not reach to the auction place because police apprehended him. Hence there is overwhelming evidence on record that the appellant Asif Malik took contract of weekly market of village Dedhtalie in the year 2006-07 and he also came to bid along with Mohd. Akram for weekly market of the year 2008-09 which is also clear from the evidence of Mohd. Akram that the appellant was not having cordial relations with the co-accused Ashfaq Malik and they were not in talking terms. At any stretch of imagination it can not be held that the appellant was indulged in business of contraband article with the co-accused Ashfaq Malik and at the time of seizure he was found in house of co-accused Ashfaq Malik near sack of ganja. As per above discussion, I am of the view that prosecution has failed to establish that the appellant was found in the room of co-accused Ashfaq Malik near the sack of ganja. It is true that police apprehended him near the house of co-accused Ashfaq Malik and he co-operated police and signed various documents, but it does not mean that the appellant was in conscious possession of ganja. The heavy burden is on the prosecution to prove that ganja was found in conscious possession of the appellant. ( 16. ) THERE is positive evidence that in that house, from where ganja is siezed ashfaq Malik his two brothers, his mother, his wife and children reside. The heavy burden is on the prosecution to prove that ganja was found in conscious possession of the appellant. ( 16. ) THERE is positive evidence that in that house, from where ganja is siezed ashfaq Malik his two brothers, his mother, his wife and children reside. There is no evidence that on fateful day the appellant stayed in the house of co-accused Ashfaq Malik he was not found in the house of co-accused Ashfaq malik. The appellant stayed at the house of his maternal uncle Faiz Mohd. He came to take part in auction of weekly market of village Dedhtalie which was to be held on 9. 3. 2008 as established by document Ex. D/4 and evidence of Ravindra (DW 1 ). There is no positive evidence on record that the room from where ganja is seized was in exclusive possession of the appellant Asif malik There is no circumstance and evidence on record to hold that the appellant was having knowledge that Ganja is kept in the house of co-accused ashfaq Malik and he was in possession of that ganja and was involved in marketing ganja. It is clear from the spot map Ex. P/29 that there are only two rooms in the house of co-accused Ashfaq Malik; Looking to the number of family members of co-accused it can be safely presumed that both the rooms have been occupied by the family members of co-accused Ashfaq malik. There is no evidence to hold that any of these rooms was in exclusive possession of the appellant. There is no evidence on record to connect the appellant with the act of co-accused Ashfaq Malik. The house does not belong to the appellant from where ganja is seized. Neither the appellant was owner nor he was in possession of the room from where ganja was seized. The conscious possession has to be determined with the actual back drop. The word conscious means awareness of the particular act, it is a state of mind which is deliberated or intended. There is no positive evidence or any circumstance on record to prove that the appellant Asif Malik was in conscious possession of the seized ganja. Contrary to that there is positive evidence on record that on fateful day he came to Dedhtalie to participate auction of weekly market and he was going to bid the same along with Mohd. There is no positive evidence or any circumstance on record to prove that the appellant Asif Malik was in conscious possession of the seized ganja. Contrary to that there is positive evidence on record that on fateful day he came to Dedhtalie to participate auction of weekly market and he was going to bid the same along with Mohd. Akram (DW 2) and he was apprehended by the police near the house of co-accused ashfaq Malik. Learned trial Court over sighted these facts and aforementioned evidence and circumstances. As per above discussion, I am of the view that the evidence of Pankaj Yadav- (PW 4) and N. S. Rawat (PW II) cannot be relied upon beyond reasonable doubt and their evidence is not sufficient to prove that ganja was seized from conscious possession of the appellant Asif malik. Learned trial Court committed error in relying upon the testimony of the prosecution witnesses and holding that ganja has been seized from the possession of the appellant and convicting him u/s under Section 8 read with section 20 (b) (ii) ( (B) of Narcotic Drugs and Psychotropic Substances Act, 1985. Since conscious possession of the appellant over the seized ganja has not bee proved by the prosecution, hence the appellant is entitled to acquittal. ( 17. ) CONSEQUENTLY, appeal has merit, deserves to be and is hereby allowed. The impugned judgment of conviction and order of sentence passed by learned trial Court is hereby set aside. The appellant Asif Malik is acquitted of the charge under Section 8 read with Section 20 (b) (ii) ( (B) of Narcotic Drugs and Psychotropic Substances Act, 1985. The seized money be returned back to the appellant because it has no connection with sell of ganja. The appellant is in jail the copy of judgment be sent to him in jail. Appeal allowed.