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Madhya Pradesh High Court · body

2009 DIGILAW 160 (MP)

Laxminarayan v. State of M. P.

2009-02-02

R.S.GARG

body2009
JUDGMENT (Oral) 1. This judgment shall dispose of Criminal Appeal No.584/2007 (Laxminarayan v. State of Madhya Pradesh) and Criminal Appeal No.339/ 2008 (Umashankar v. State of Madhya Pradesh). 2. Each of the appellant, being aggrieved by the judgment dated 18.4.2007 passed by the Special Judge, NDPS Act, Neemuch in Special Sessions Trial No.3/2005 (State of M.P. v. Laxminarayan and another) convicting appellant Umashankar under section 8/l8B of Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo further rigorous imprisonment for one year and convicting appellant Laxminarayan under section 8/18B-29 of the NDPS Act and sentencing him to undergo rigorous imprisonment for ten years and pay a fine of Rs.1,00,000/-, in default of payment of fine to undergo further rigorous imprisonment for one year, have filed the separate appeals. 3. The prosecution case in short is that on 2.9.2004 Assistant Sub-Inspector (Police) Shri RS. Chauhan of Police Chowki Nayagaon received an information that appellant Laxminarayan and Umashankar were driving unnumbered red colour Hero Honda motor-cycle and were carrying contraband opium. After receiving the information, Shri R.S. Chauhan registered the same in the daily diary of the police station; prepared the Panchnama of the information in presence of Sanjay and Gopal Sharma and immediately thereafter, sent an information under section 42 of the Act to SDOP Jawad. With the necessary force, witnesses and other relevant material necessary for investigation, he went to the spot; stopped the motorcycle, accosted the driver and the pillion rider, Laxminarayan s/o Prabhulal Dhakad and Umashankar s/o Badrilal Dhakad respectively and informed them of his personal information and also apprised them that in accordance with law, such accused persons were entitled to be searched before any Gazetted Officer or a Magistgrate. 4. According to the prosecution case, the accused persons accepted the offer and permitted Shri R.S. Chauhan to take their search. On search, in a sling bag hanging on the shoulder of pillion rider Umashankar, three kilograms opium were recovered; two samples of 30 grams each were drawn and were immediately sealed. Necessary slips were affixed and signatures of the witnesses were also obtained on the Panch nama, etc. The samples were marked as Articles A-1 & A-2 and on return, Crime No.49/04 was registered at Police Station Jawad. Necessary slips were affixed and signatures of the witnesses were also obtained on the Panch nama, etc. The samples were marked as Articles A-1 & A-2 and on return, Crime No.49/04 was registered at Police Station Jawad. Article I-A was sent to the Forensic Science Laboratory, Indore, which certified the sample to be of contraband opium. 5. After collecting the material evidence and examining the witnesses but before filing the Chalan, Shri RS. Chauhan made some application to the Executive Magistrate-cum-Tahsildar, Jawad under section 52A of the Act. The said application is not available on the record but the proceedings recorded by the said Executive Magistrate-cum- Tahsildar are available on the record. 6. From the said proceedings, it appears that the said Executive Magistrate-cum- Tahsildar found that the weight of contraband opium was 2.940 kilograms. The sample was opened in presence of the Executive Magistrate-cum-Tahsildar and two samples of 30 grams each were drawn. The samples were marked as A-3 and A-4; those were properly sealed and the contraband article 2.880 kilograms was again sealed. The samples drawn at A-3 and A-4 and the contraband opium were returned back to Shri R.S. Chauhan, Assistant Sub-Inspector. 7. After completing the process and procedure, the prosecution agency filed the charge-sheet against the accused persons. As the accused persons denied commission of the offence, they were subjected to trial. 8. The learned trial Court, after recording the evidence and hearing the parties, recorded a finding that the prosecution was successful in proving observance of section 42, section 50, section 52 and section 57 of the Act After holding each of the appellant guilty as referred to above, it sentenced the accused to the extent indicated above. Being aggrieved by the said judgment and sentence, the appellants are before this Court. 9. Shri D.D. Vyas, learned senior counsel for the appellants has raised one single argument before this Court. According to him, the burden is upon the prosecution to prove that the articles, which were seized, in fact, were contraband articles and to prove that particular articles, which were recovered and seized either at the instance or from the possession of the accused is always heavy upon the prosecution in a case where the technicalities provide and present a material role. It is submitted by him that the prosecution failed in proving that in accordance with the provisions of section 52A of the Act, the contraband articles were destroyed or destructed with the permission of the Court. It is submitted by him that if the facts regarding destroying or destruction of the articles are not proved before the Court then the prosecution is obliged to produce the articles so seized to convince the Court that particular contraband article was seized and the prosecution had successfully proved that the samples were drawn from the said lump of the contraband articles and the samples could be certified to be contraband .articles. It is also submitted by him that section 52A of the Act requires satisfaction of the concerned Court and the same can be disposed of under the directions of a Court. 10. It is also submitted by him that Shri R.S.Chauhan, who had filed application under section 52A of the Act (Ex.P-26) has not certified or proved the contents of the application nor has proved before the Court that any order was obtained either from any Court or from any Executive Magistrate or under the directions of the Central Government or under the authority of the circulars made by the Central Government, he had destroyed the contraband articles. 11. It is also submitted by him that Ex.P-26 has not been proved by the Executive Magistrate; the person, who had passed the order but has been proved by one Mr. D.S. Athwal (PW9), who had nothing to do either with the original application filed under section 52A of the Act or the order passed by the Executive Magistrate. It is submitted by him that in absence of production of articles in the Court and proof of the fact that particular articles were so seized from possession of the accused persons, the accused persons could not be convicted. 12. Shri Raghuveer Singh Chauhan, learned Deputy Government Advocate for the State, on the other hand, submitted that non-production of contraband article would not affect the credibility and veracity of the statements of the witnesses. According to him, there is nothing on record to prove that samples A-1 and A-2 were not drawn from the articles, which were seized from the accused persons; that Ex.P-26 is an order passed by the Judicial Officer, therefore, production of the said document is proof of the same. 13. According to him, there is nothing on record to prove that samples A-1 and A-2 were not drawn from the articles, which were seized from the accused persons; that Ex.P-26 is an order passed by the Judicial Officer, therefore, production of the said document is proof of the same. 13. Referring to section 51A(1) of the Act, it is submitted by him that before disposal of the articles/Narcotic Drugs/Psychotropic Substances, the competent officer is not required to obtain permission from the Court. It is submitted by him that in accordance with the circular, whenever the Narcotic Drugs/Psychotropic Substances are seized then having regard to the hazardous nature of the drugs, etc. the same can be disposed of by such officer and in such manner as the Central Government may prescribe. It is submitted by him that there is no violation of section 52A of the Act. 14. I have heard the parties at length. 15. Undisputedly, PW5 Shri R.S.Chauhan had received the information, who after recording the information in the daily diary/Rojnamcha Sanha proceeded towards the spot. From his statements, it appears that he had accosted the miscreants/present appellants. He had given them the information about their right to be searched before the Gazetted Officer or the Magistrate. He had taken search of the accused persons with their consent and had obtained certain articles from them. The articles were found to be three kilograms. Two samples of 30 grams each were drawn. Each of the sample was marked as A-1 and A-2; those were properly tied and thereafter, the samples were properly sealed. 16. From his statements, it also appears that the Panchnamas were drawn and thereafter, the first information report was also registered. Informations, etc. were sent by him the case was registered by him. Unfortunately, nowhere in his statement, he said that he had made an application under section 52A of the Act to the Executive Magistrate-cum- Tahsildar. 17. Assuming that in accordance with some circular of the Central Government, the said officer was entitled to make an application under section 52A of the Act before the Executive Magistrate-cum-Tahsildar then the said officer was duty bound to produce a copy of the said application before the Court or in the alternative, the prosecution was obliged to call for the original records relating to the said application. 18. 18. The prosecution, in its wisdom, did not even take care to examine the officer, who had passed the orders (Ex.P-26). The person, who had made an application under section 52A of the Act or the person, who had passed some order on that application and had recorded the proceedings regarding particular action taken by the police officer in his presence, unfortunately, have not been examined. When a person, who makes an application is not examined then contents of such application can be proved by producing the person before whom such an application was filed. 19. In the present case, neither the person, who filed the application nor the person before whom the application was filed have been examined to prove the contents of the application and on top of everything, such application either in original or a copy thereof has not been brought on record. 20. A perusal of Ex.P-26 would show that it records certain actions taken in presence of the Executive Magistrate-cum-Tahsildar. The order-sheet does nowhere say that the application filed under section 52A of the Act was with a request to him to permit Shri R.S.Chauhan to destroy the balance of the contraband articles. From the proceedings, it would appear that after taking particular action and drawing particular samples, everything was returned back to Shri R.S. Chauhan. Shri RS. Chauhan, if had received the photographs, digital proceedings, additional samples and the balance of the contraband articles then' he was duty bound to produce everything in the Court or in the alternative, he was obliged to tell before the Court that the balance quantity of the contraband article was destroyed/destructed by him in accordance with section 52A of the Act. 21. Undisputedly, Shri RS. Chauhan has not mentioned even a single word about the application filed under section 52A of the Act or the order passed by the Executive Magistrate drawing of the samples at Article A3 and A-4 or return of the balance contraband articles or destruction of the contraband articles. 22. If such evidence is missing then a simple production of Ex.P-26 and proof of the same by PW9 Shri D.S. Athwal Inspector, who was working as Station House Officer, Police Station, Jawad would not satisfy the requirement of the law. 23. 22. If such evidence is missing then a simple production of Ex.P-26 and proof of the same by PW9 Shri D.S. Athwal Inspector, who was working as Station House Officer, Police Station, Jawad would not satisfy the requirement of the law. 23. It is not disputed before me that the balance quantity of the contraband articles or to be said better, the articles which were seized from the appellants, were not produced in the Court. Articles A-3 and A4 were also not produced in the Court. It is also to be seen from the records that the compliance of section 52A of the Act has at all not been made by the prosecution agency. True it is that section 52A of the Act does not require the concerned officer to seek permission from the Judicial Magistrate or an Executive Magistrate to destruct or destroy the remaining article but if he has, under the authority of the circulars issued by the Central Government had taken an action under section 52A of the Act by destroying or destructing the remaining article then he has to state on oath, before the Court that he had destroyed the balance articles. In case this requirement is not fulfilled then the Court shall presume that the articles were not destroyed and an adverse inference can always be drawn against the prosecution agency for not producing the balance article. In the present case, we would be justified in assuming/presuming that in absence of a positive statement by Shri R.S. Chauhan in relation to destruction of the articles, the articles were not destructed or destroyed. If such would be the situation then the prosecution agency is duty bound and obliged to produce the balance article in the Court. 24. In the matter of Jitendra anti another v. State of M.P. [2004(2) Vidhi Bhasvar 30=2004(1) EFR p.22], equivalent to [ (2004)10 SCC 562 ], the Supreme Court had observed that in the trial, it was necessary for the prosecution to establish by cogent evidence that the alleged quantity of Charas and Ganja were seized from the possession of the accused. The Supreme Court further observed that the best evidence would have been the seized material, which ought to have been produced during the trial and marked as material objects. The Supreme Court further observed that the best evidence would have been the seized material, which ought to have been produced during the trial and marked as material objects. The Supreme Court was of the opinion that there was no explanation for this failure to produce the same According to the Supreme Court, mere oral evidence as to their features and production of panchnama does not discharge the heavy burden, which lies on the prosecution, particularly when the offence is punishable with a stringent sentence under the NDPS Act. Taking into consideration the totally of the circumstances, the Supreme Court acquitted the accused. 25. The observations made in the matter of Jitendra (supra), have been approved by the Supreme Court in the matter of Noor Aga v. State of Punjab and another [2008 IV AD (Cri)SC) 337]. In this case also, the Supreme Court observed in paragraph 103 that physical evidence of a case of this nature being the property of the Court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration of the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant. 26. From the observations made by the Supreme Court, it appears that notice of an application under section 52A of the Act is required to be made. It is also to be seen from the judgment in Noor Aga (supra), that the physical evidence relating to three samples taken from the bulk amount of heroin were also not produced in the Court. The Supreme Court observed that if the argument that the bulk quantity was destroyed is accepted, the samples were essential for production as primary evidence for the purpose of establishing the fact of recovery of heroin as envisaged under section 52A of the Act. In the present matter, neither the bulk quantity has been produced in the Court nor the samples, which were drawn (A-3 and A-4) were produced before the Court. 27. In the present matter, neither the bulk quantity has been produced in the Court nor the samples, which were drawn (A-3 and A-4) were produced before the Court. 27. It would be trite to say that when the personal liberty of a man is at stake then the mandatory provisions of law take sacrosanct nature and their observation become mandatory. If at any time it is held that the provisions are mandatory in nature then the Court would find no hesitation in acquitting the accused if it finds that the provisions of mandatory nature have been violated. 28. From the above referred judgment of the Supreme Court and the language of section 52A of the Act, it clearly appears that the prosecution agency is entitled to destruct/destroy the particular contraband bulk quantity so seized from the accused but the fact is required to be proved. If it is not proved in the Court that the bulk quantity was destroyed then the prosecution would be obliged to produce the bulk quantity or in case the prosecution successfully proves that the seized bulk quantity was destroyed then the prosecution would be obliged to produce the additional samples drawn from the bulk quantity before its destruction. 29. In the present matter, the prosecution has failed in producing the articles, which were seized from the possession of the accused persons; they have also failed in producing the additional samples drawn in presence of the Executive Magistrate-cum-Tahsildar, they have also failed in proving the contents of the application filed under section 52A of the Act. 30. In the opinion of this Court, the order-sheet recorded by the Executive Magistrate-cum-Tahsildar would not be proof of the action taken in presence of the Magistrate because when particular actions are taken in presence of a Judicial Officer then he is required to prove that he had witnessed such actions and the actions were taken in his presence. 31. 30. In the opinion of this Court, the order-sheet recorded by the Executive Magistrate-cum-Tahsildar would not be proof of the action taken in presence of the Magistrate because when particular actions are taken in presence of a Judicial Officer then he is required to prove that he had witnessed such actions and the actions were taken in his presence. 31. Taking into consideration the totality of the circumstances, the evidence available on the record and that the prosecution has failed in proving its case beyond shadow of doubt or to a reasonable certainty and that the accused persons have given a serious blow/dent to the prosecution case, I allow Criminal Appeal No. 584/2007 (Laxminarayan v. State of Madhya Pradesh) and Criminal Appeal No. 339/2008 (Umashankar v. State of Madhya Pradesh), set aside the judgment delivered by the Special Judge (NDPS Act), Neemuch and the sentences awarded to the accused persons and direct that they be released. If the amount of fine has been deposited by the accused persons, the same be returned to them. The appropriate release warrants be issued to the jail concerned with a clear mention that if the accused persons are not required in any other case then they be immediately set at liberty.