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Madhya Pradesh High Court · body

2009 DIGILAW 1231 (MP)

Ramgopal v. State of M. P.

2009-10-30

SUBHASH SAMVATSAR

body2009
Judgment ( 1. ) This appeal is preferred by the sole accused, who is convicted for commission of offence under section 8/20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 for two years R.I. and fine of Rs. 2,000/-and in default to undergo another term of three months. ( 2. ) As per prosecution case, Govindram Kukrreja was posted as A.S.I. at police station Shivpuri. He got an information from the informant that one person is standing near the hand-pump at Lalmati and he is trying to sell Ganja. If he is not arrested immediately he will escape from the spot. This information was recorded by Shri Kukreja in Rojnamcha Sanha No. 331/ 5.7.2002 (Ex.P-13). This document was prepared at 5-10 in the evening. Thereafter Mr. Kukreja went.on the spot shown by the informer alongwith the witnesses, Praveen and Sunil where they found one person with two polythene bags standing near the hand-pump. After seeing the police force, that person started running but the police chased him and caught him. He told his name as Ramgopal, S/o Gulab Singh Dhakad and he is at 45. On searching of the two polythene bags, it was found that one bag contained 1 kg. of Ganja and the other 900 gms. Thus, the accused was found with 1,900 kg. of Ganja with him, which is a small quantity of Ganja. The commercial quantity under the Act is 20kg. The police after preparation of the Panchanama and after investigation filed challan against the accused and the Sessions Court after framing the charge and appreciating the evidence convicted the accused, hence this appeal. ( 3. ) The contention of Shri A.S. Rathore, learned counsel appering on behalf of the appellant is that in the present case the conviction cannot be sustained as the Analysts report of the substance is not proved by the prosecution. He also contended that the independent witnesses have not supported the prosecution story and, therefore, the conviction deserves to be set aside. In support of this contention, he relied on judgments of this High Court in the case of c 2000 (II) MPWN 10=2000 (1) C.Cr.J. 326 (M.P.) wherein this Court has held that in absence of the examination of Public Analyst the report of the Analyst is not admissible in evidence. In support of this contention, he relied on judgments of this High Court in the case of c 2000 (II) MPWN 10=2000 (1) C.Cr.J. 326 (M.P.) wherein this Court has held that in absence of the examination of Public Analyst the report of the Analyst is not admissible in evidence. In the present case, the Analyst is not examined by the prosecution, and therefore, there is no evidence on record to show that the contraband material which was seized from the present appellant was Ganja. Apart from that the panchanama Ex.P-9 shows that the substance which was seized from the present appellant was leaves of black and green colour. The definition of Ganja was defined under section 2 (iii) (b) of the Act and from the said definition Ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated. Thus, the seeds and leaves are excluded from the definition of Ganja. In the present case, only the leaves are recovered by the police. ( 4. ) From the perusal on record, it appears that the prosecution to prove their case has examined seven witnesses. PW-1, Habeeb Khan is Police Constable. He says that when he was in the police station an informer has informed to the police station that one person is trying to sell Ganja. PW-2, Ram Kumar is also constable posted in the same police station. He also narrated the same fact that Kukreja has received information from the informer that one person is selling Ganja. He further says that after getting this information ASI Kukreja and the members of Central Scout had gone to the spot and arrested one person. On information he told his name as Raj Kumar, S/o Gulab Singh Dhakad. He says that at the time of search, except clothes nothing was recovered from that person. PW-3 is Praveen Kumar. He is an independent witness. He says that on 5.7.2002 one police man has come to him and stated that he was called in the police station. On information he told his name as Raj Kumar, S/o Gulab Singh Dhakad. He says that at the time of search, except clothes nothing was recovered from that person. PW-3 is Praveen Kumar. He is an independent witness. He says that on 5.7.2002 one police man has come to him and stated that he was called in the police station. When he went to the police station he was informed that Station Officer has received information from an informer that one person is trying to sell Ganja near Lalmati and he accompanied the team for arresting the said person and arrested one person with two bags of Ganja. In para 4 of his statement he says that the accused who was present in the Court is not the same person who was arrested by the police. Similar statement was given by Sunil (PW-4), who is also an independent witness. This witness also in para 4 of his statement stated that the accused is not the same person who was arrested by the police. PW-5 is GR.Kukreja, who was the Station-in-charge at the time of the incident and received the information through the informer and then arrested the accused- PW-6 Bhagwan Das Rathore is another independent witness. This witness is, however, declared hostile and has not supported the case of the prosecution. PW-7 is Police Sub Inspector. This witness is formal in nature and has only proved Ex.P-17, i.e., Rajnamcha Sanha No. 331. ( 5. ) Thus, from the statement of PW-3 and 4 that is Praveen and Sunil respectively, it is clear that the person who was arrested on the spot was not the accused when both these witnesses are not declared hostile by the prosecution and their statements are bound on the prosecution. Considering this fact in the present case, it was not proved beyond reasonable doubt that the appellant was the same person who was arrested by the police on the spot and the Ganja was recovered from him. ( 6. ) Morever, report of the Analyst is not proved by the prosecution by examining the Chemical examiner. Apart from that, as per Panchanama Ex.P-9, the substance seized from the accused are leaves, which are excluded from the definition "Ganja" as defined in the section 2 (3) (d) of the Act. ( 7. ( 6. ) Morever, report of the Analyst is not proved by the prosecution by examining the Chemical examiner. Apart from that, as per Panchanama Ex.P-9, the substance seized from the accused are leaves, which are excluded from the definition "Ganja" as defined in the section 2 (3) (d) of the Act. ( 7. ) In such situation, the impugned judgment of conviction cannot be sustained in the eyes of law. Hence, this appeal is allowed. The impugned judgment of conviction is set aside and the appellant is acquitted for commission of the offence under section 8/20 of the NDPS Act. The appellant is on bail. His bail bonds shall stand discharged. The amount of fine deposited by the appellant be refunded to him after due verfication.