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Madhya Pradesh High Court · body

2009 DIGILAW 1393 (MP)

Mukesh @ Bheru Shankar v. State of M. P.

2009-12-18

I.S.SHRIVASTAVA

body2009
JUDGMENT : Thisappeal has been preferred by the appellant being aggrieved by the judgment andsentence passed by the Court of Karuna Trivedi , 1st ASJ and Special Judge (under NDPS Act), Mandsaur whereby vide judgment dated 5.7.2003, the appellantwas found guilty under Section 8/21 (c) of the Narcotic Drugs and PsychotropicSubstances Act (in short ‘the Act’) and was punished with rigorous imprisonmentoften years with fine of Rs . 1,00,000/- and indefault of payment fine, the appellant was ordered to undergo rigorousimprisonment of two years. 2.According to the prosecution case, on 5.6.2000 on the information of theinformer, Shri Anand Tomar , Town Inspector checked accused Bherulal , Mukesh and Dulichand in thegarden situated at the Bus-stand, Mandaur . Duringsearch, 2 kg, 200 grams smack was seized from the possession of the eachaccused/appellant Mukesh @ Bheru and co-accused Dulichand and from the possession ofco-accused Bherulal , 100 grams amuck was seized.Hence, Crime No. 245/2000 was registered at the Police Station, City Mandsaur under Section 8/21 of the Act and challan was filed against the accused persons. After trial,the accused Mukesh was found guilty under Section8/21 (c) of the Act and he was sentenced as mentioned hereinabove. Co-accused Bherulal was convicted under Section 8/21 (b) of the Actand sentenced to two years rigorous imprisonment with fine of Rs . 3000/- as well as accused Dulichand is absconded, hence trial against him is pending. 3.It has been argued on behalf of the appellant Mukesh that the case was not proved on the basis of the evidence produced before theTrial Court. The seized property was not produced in the Court; only sampleswere produced. The independent witnesses Mubariq P.W.5 and Balkrishna P.W. 6 were hostile and they did notsupport the prosecution case. The evidence of Kailash Sharma P.W. 3 A.S.I, was not reliable; he could notanswer in cross-examination about the factual condition. The spot map was notexhibited. The process for search and seizure was defective, hence the appealbe accepted. 4.It has been argued on behalf of the respondent/State that the case was provedbefore the Trial Court and the appellant has rightly convicted. The samples andthe property was produced before the Trial Court. Eventhe independent witnesses are hostile, the case was proved’ on the basis of theInvestigating Officer and other evidence, hence theappeal being devoid of any merit be dismissed. 5.Considered the arguments and perused the record of the Trial Court. 6. The samples andthe property was produced before the Trial Court. Eventhe independent witnesses are hostile, the case was proved’ on the basis of theInvestigating Officer and other evidence, hence theappeal being devoid of any merit be dismissed. 5.Considered the arguments and perused the record of the Trial Court. 6. As regards to the non-production of the seizedsmacks/property in the Court is concerned, there is no evidence that seizedproperty 2 kg 200 grams smack was produced in the Court. By the production ofsamples of the property, the purpose of producing property in the Court is notfulfilled. In Jitendra and Another vs. State of M.P. reported in 2004 (10) SCC 562 , it has been held that the best evidence wouldhave been the seized materials, which ought to have been produced during thetrial as marked material objects. There is no explanation for this failure.Hence, the appellant is liable to be acquitted on this ground. 7.The independent witnesses Mubariq P.W. 5 and Balkrishna P.W. 6 were hostile. Mubarik P.W. 5 has deposed that he had tea shop below the police station and the policecalled him and got the signature on Ex.P . 1 to P. 4 and Ex.P . 5 to P. 17 andreturned him. He does not know the accused persons. He did not go to the gardensituated at the Bus Stand, Mandsaur . Balkrishna P.W. 6 has also deposed that he was called tothe police station and his signatures were obtained on Exs .P. 1 to P. 4 and P. 5 to P. 17 and he was allowed togo. He did not reach the garden situated at the Bus Stand, Mandsaur with the police party. He does not know the accused persons. Nothing was seizedfrom the possession of the accused persons before him. In this way, both thesewitnesses have not supported the prosecution case. During cross-examination, hehas denied the fact of seizure of 2 kg and 200 grams smack from the possessionof the appellant Mukesh . As regards to seized articles A to E, he has deposed that he signed on theblank chit and no documents were prepared before him. 8.It is also notable that Ex.P . During cross-examination, hehas denied the fact of seizure of 2 kg and 200 grams smack from the possessionof the appellant Mukesh . As regards to seized articles A to E, he has deposed that he signed on theblank chit and no documents were prepared before him. 8.It is also notable that Ex.P . 1 Panchnama about the information of the informer was prepared on 5.6.2000 at about 21.10p.m. which bears the signatures of Mubariq P.W. 5 and Balkrishna P.W. 6, while according to Rojnamcha-sanha No. 379, it was written at 21.15 p.m. Theconstable was sent to call the independent witnesses and by Rojnamcha-sanha No. 380 of the same date at 21.25 p.m. ,the constable returned with the independent witnesses. This shows unreliabilityof Panchnama Ex.P . 1 which was prepared at the Police Station after 21.25 p.m. in the presence of witnesses while the time 21.10 p.m. has been mentioned on it. The independent witnesses havenot supported the fact that they went to the garden situated at the bus stand, Mandsaur with the police party, hence the preparation of Panchnama before them on the spot is not proved by theindependent witnesses. 9. Kailash Sharma P.W. 3 A.S.I, in his deposition hasalso supported the proceedings taken up by Shri Anand Tomar , Town Inspector ofPolice Station, City Mandsaur , but in cross-examination,he could not reply that in whose hand writing Ex.P . 1 to Ex.P . 17 were written. Hecould not remember that who wrote the Panchnama .About physical position of the garden, he could not reply that how many doorsare there. He could not explain about the statue in the middle of the gardenthat whose statue is that. He does not remember that from which gate, heentered the garden. He could not explain or remember the spot where he washiding himself. He could not remember that whether he entered the garden fromthe door or by climbing up the wall of the garden. He could not remember thatthe accused persons gave their consent by their hand writing or by the handwriting of some other persons. He could not explain that he was present on thespot and that how much time was consumed in the proceedings. He could notexplain about the Panch before whom the search ofpolice force and Seizing Officer was given. He could note name the panch witnesses and whether the separate panchnama was prepared or not. He could not explain that he was present on thespot and that how much time was consumed in the proceedings. He could notexplain about the Panch before whom the search ofpolice force and Seizing Officer was given. He could note name the panch witnesses and whether the separate panchnama was prepared or not. In this way, incross-examination, he has failed to explain the physical situation of thegarden and spot of incidence and the proceedings taken up by the SeizingOfficer in the garden from where the seizure is alleged to be made from theappellant. Hence, this witness is not reliable. 10.So far as the statement of Shri Anand Tomar , P.W. 8 Town Inspector is concerned, he hasdeposed in the examination-in-chief about the proceedings taken up by him, butin cross-examination, he has accepted that the samples were kept in plastic bags which was tided with thread, but the plastic bag wasnot sealed by heating it. He does not know the order of the Central Governmentthat the plastic bag should be sealed by heating. Panchnama prepared on the spot were not written by him because he was suffering fromjaundice. At the time of the incident, hotels and shops were open for businessat 15 steps distance from the garden, but he did not try to call the panch witnesses from there because he was having panch witnesses with him. Panchnama Ex.P . 1 was written by Munshi on his dictation and this panchnama would haveprepared at 21.25 p.m. The time indicated on the panchnama Ex.P . 1 is 21.10 p.m. Ex.P . 5 to Ex.P . 9 are written byonly one person, but he is unable to remember that who wrote them. He did notwrite the panchnama by his own hand, but on hisdictation, his subordinate wrote notice panchnama Ex.P . 22. 11.It has also been argued by the appellant’s counsel that after proceedings ofseizure, the investigation was done by Investigating Officer Dilip Gangrade , but he has notbeen examined, hence in the light of law laid down in the case of Jitendra and Another (supra) in the background that the Panch witnesses have been turned hostile, non-examinationof the Investigating Officer and non-production of the seized property, theconviction under the N.D.P.S. Act can still be sustained, is far-fetched. Ithas been further argued by the appellant’s counsel that the independentwitnesses obtained by the police have not supported the prosecution case whenit has been admitted by Anand Tomar ,T.I. P.W. 8 that the smack was seized from the possession of the accusedpersons in the garden, but he did not call independent witnesses from thevicinity, hence the appellant is not liable to be convicted. 12.Considered the circumstances in the light of the law laid down in the case of Ritesh Chakarvarti vs. State ofM.P. reported in 2007 (1) SCC ( Cri .) 744 wherein ithas been held that in the circumstances as discussed above, the accused personsare not liable to be convicted and are entitled to the benefit of doubt. 13. As regards to the consent letter Ex.P .7 is concerned, it was not written by the SeizingOfficer Anand Tomar P.W. 8.While he was on duty, he could not explain that who wrote it, hence in view ofthe law laid down in Sarju @ Ramu vs. State of M.P. reported in 2009 SAR ( Cri ) 870Supreme Court, the compliance of the provision under Section 50 of the Act isnot proved. 14.Therefore, on the basis of the above discussion, I conclude that on the basisof the evidence produced by the prosecution and in light of the discrepanciesof the evidence of the prosecution as mentioned above, the appellant is notliable to be convicted. Hence this appeal deserves to be allowed. 15.Accordingly, the appeal is allowed and the appellant is acquitted from thecharges under Section 8/21 (c) of the N.D.P.S. Act. Fine, if deposited, bereturned to the appellant. Hence, ordered accordingly.