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Madhya Pradesh High Court · body

2009 DIGILAW 781 (MP)

Ahmed Qureshi v. State of M. P.

2009-07-07

S.S.DWIVEDI

body2009
JUDGMENT 1. The appellant has preferred this appeal aggrieved by the impugned judgment of conviction and sentence dated 24.1.2003 passed by Special Judge, Gwalior in Special Case No.6/2002, whereby held the appellantaccused guilty for the offence punishable under section 8 read with section 20(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the "NDPS Act" for brevity) and sentenced him to twelve years RI with a fine of Rs.l lac. In default of payment, further ordered to suffer imprisonment for six months. 2. Brief facts of the case are, in the intervening night in between 9th and 10th April, 2002 the police constables Ramesh Tiwari (PW3) and Chandresh Dubey (PW 4) were on their train duty in the Southern Express from Vidisha to Gwalior. During their search when they reached in the sleeper coach S-5, they felt smell of contraband article Ganja and on search found two-three suit cases lying beneath seat No.55, on which the appellant-accused was sitting. They suspected the contraband article Ganja kept in the suitcases concerned, therefore, the appellant-accused together with his luggage was brought to GRP Police Station, Gwalior and after giving necessary notice for search to the appellant-accused, a search had been made before the independent witness and Ganja was found kept in the suitcases concerned. The total quantity of Ganja was found to be 64 kgs; out of which two samples of 150 gms. each were taken out. The seized Ganja as well as both the samples were sealed properly. Necessary Panchnama had been prepared, the seized Ganja and the sample packets were deposited in the safe custody in police station, registered a case under section 8/20 of NDPS Act against the appellant-accused and he had been arrested. The necessary information had been given to the superior officer with regard to the seizure of the contraband article. Thereafter, sample packets had been sent for chemical examination to the FSL, from where the report received, wherein samples of contraband article are found to be Ganja as defined in NDPS Act. After due investigation the charge sheet has been filed. 3. The appellant-accused abjured the guilt and his defence is of false implication in this case. Thereafter, sample packets had been sent for chemical examination to the FSL, from where the report received, wherein samples of contraband article are found to be Ganja as defined in NDPS Act. After due investigation the charge sheet has been filed. 3. The appellant-accused abjured the guilt and his defence is of false implication in this case. The learned trial Court after due appreciation of the entire evidence on record held the appellant guilty for the offence under section 8 read with section 20 of NDPS Act and sentenced him as stated herein above; aggrieved by which the appellant has preferred this appeal. 4. Having heard the learned counsel for the appellant as well as the learned Panel Lawyer appearing for the State and perused the record. 5. It is submitted on behalf of the appellant that admittedly the contraband article had been seized from the suitcases which were lying beneath the seat of the concerning coach of the train but for the aforesaid seizure the conspicuous possession of the appellant cannot be presumed. Similarly, the independent witness had also not supported about the seizure of the contraband article from the possession of the appellant. The appellant has been falsely implicated only on the ground that he was sitting on the seat, beneath which the suitcases were lying. Similarly, it is also submitted that the seized contraband article had also not been produced during trial before the Presiding Officer at the time of statement of the seizing officer .and thereby the appellant-accused has been deprived of the valuable right of cross-examination on the point of sealing procedure of the seized contraband article. On this ground also, the valuable right of the appellant is infringed and affected, therefore, on this ground also challenged the finding of conviction recorded by the trial Court and prayed for setting aside of the impugned judgment of conviction and sentence passed by the trial Court. 6. Learned Panel Lawyer for the State supported the impugned judgment and submitted that the prosecution has fully proved the fact that the contraband article had been seized from the possession of the appellant-accused on the basis of the statement of Jang Bahadur Singh (PW I), Ramesh Tiwari (PW3) and Chandresh Kumar Dubey (PW4), all the three are the GRP constables, who were on duty in the concerning train. The sealing procedure has also been proved by the seizing officer Alim Khan (PW9), the SO Incharge of GRP Gwalior. The examination of the same is also proved by the report EX.P-28. Hence, the trial Court has rightly held the appellant-accused guilty for the aforesaid offence and no grounds are available for any interference in the impugned judgment. Hence, prayed for dismissal of the appeal. 7. To bring home the charge as levelled against the appellant, the prosecution is fully rest upon the statement of Jang Bahadur Singh (PW 1), Ramesh Tiwari (PW3) and Chandresh Dubey (PW4), who were on duty at the relevant time in the train Southern Express from Vidisha to Gwalior section. All the three witnesses stated in the trial Court that during search in S-5 coach they felt that some smell of contraband article is coming out and thereafter beneath seat No.55 they found certain suitcases kept, from where smell of contraband article was coming and the appellant-accused was sitting on this seat No.55. At Gwalior Station they took the appellant-accused together with the concerning suitcase to the GRP Police Station and then after necessary notice the seizing officer Alim Khan had taken the search of the suitcase before the independent witness and found the contraband article Ganja in the suitcase concerned. On perusal of the aforesaid statements of all these three police constables of GRP Gwalior it is apparent that the appellant-accused was sitting over seat No.55 and suitcases were lying beneath the seat. Under these circumstances, the conspicuous possession of the suitcase by the appellant-accused is not found proved beyond reasonable doubt unless some other corroborative evidence is available to prove the possession of the accused of the concerning suitcase. Normally, the passengers in the train keep their luggage anywhere beneath the seats of the concerning coach irrespective of the fact who is sitting over the seat concerned. Under these circumstances, the corroborative evidence is required by the statement of other co-passengers who can prove that these suitcases were kept by the appellant-accused himself beneath the seat but unfortunately the prosecution has failed to examine any such co-passenger who can prove that while sitting over seat No.55 the appellant-accused was having these suitcases in his possession and he himself kept the suitcases beneath the seat concerned. Therefore, due to lack of such evidence of independent witness, only on the ground that the suitcase was found beneath the seat over which the appellant was sitting, his conspicuous possession of the suitcases, which contained the contraband article Ganja, cannot be presumed and found to be proved. Therefore, on this ground the prosecution has failed to prove the conspicuous possession of the appellant-accused of the contraband article. 8. It is further stated by these three witnesses Jang Bahadur Singh (PW1), Ramesh Tiwari (PW3) and Chandresh Dubey (PW4) that the appellant-accused had admitted the fact that these suitcases belong to him. This appears to be a confessional statement of accused before the police officer, which cannot be relied upon solely without any further corroboration by the independent witness and no such independent witness of the coach concerned was examined by the prosecution, before whom the appellant -accused had admitted his ownership of the suitcases before the police constables. Therefore, this part of the statement of these witnesses also cannot be relied upon without further corroboration of the independent witness. 9. Similarly, the independent witness of the seizure memo, R.Y. Bhale (PW5) only proved the fact that two constables came to weigh the contraband article and on weigh he found total quantity of article 64 kgs., for which necessary document EX.P-6 had been prepared. 10. The other seizure witness Raju Singh (PW6) is also declared hostile who had also not proved that the concerning contraband article had been seized from the possession of the appellant-accused for which the necessary signatures on various documents EX.P-1 to EX.P-12 have been obtained by the police officer. Thus, this witness has also not supported the seizure of the article concerned from the possession of the accused. 11. Alim Khan (PW9) had proved the required preparation of necessary papers EX.P-I to P-12 with regard to seizure, giving of notice, consent of appellant -accused and other necessary panchnamas prepared by him taking of the samples, etc. He also proved that the samples of the seized article had been sent to the FSL from where report EX.P-28 received, wherein the sample of the article has been found to be Ganja. He also proved that the samples of the seized article had been sent to the FSL from where report EX.P-28 received, wherein the sample of the article has been found to be Ganja. The most important thing which is lacking in the statement of Alim Khan (PW9) is that at the time of his statement before the trial Court he had not exhibited the seized contraband article which had been sealed by him at the time of seizure, meaning thereby that the sealed container of the contraband article had not been produced before the trial Court and had not been exhibited as the article seized and for which no reasonable explanation is also on record for this lacking of material evidence. 12. The Hon'ble apex Court in case of Jitendra and another v. State of, M.P, reported in 2004(2) Vidhi Bhasvar 30= 2003 CrLJ 4985 , laid down here as under: "6. In our view, the view taken by the High Court is unsustainable.In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. 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. In this case we noticed that panchas have turned hostile so the panchnama is nothing but a document written by the concerned police officer. The suggestion made by the defence in cross-examination is worthy of notice. It was suggested to the prosecution witness that the landlady of the house in collusion with police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we noticed that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile the non-examination of the investigating officer and nonproduction of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched." 13. Finally, we noticed that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile the non-examination of the investigating officer and nonproduction of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched." 13. In view of the aforesaid decision of the Hon 'ble apex Court, in the present case, the non-production of the seized Ganja at the time of statement of seizing officer Alim Khan (PW9) is also found to be fatal to the prosecution and on this ground itself the appellant-accused is entitled for acquittal. 14. The other witness examined are, Harimohan Constable (PW7), who proved receipt of the lettcrEx.P-14 at the CSP Office, Gwalior, Ramakhtiya Sharma (PW8), Incharge of Store of GRP Gwalior, who proved the fact that the seized article had been deposited in the store room of the police station for safe custody together with the sealed sample packets. B.S. Parmar (PW 10) proved sending of samples as per letter Ex.P17 to the FSL for examination. 15. In view of the aforesaid evidence on record, in my considered opinion, the prosecution has utterly failed to prove beyond reasonable doubt that the contraband article 64 kgs. Ganja had been seized from the conspicuous possession of the appellant-accused, for which he can be held guilty for the offence punishable under section 8/20 of the NDPS Act. Therefore, the finding of conviction and sentence recorded by the trial Court appears to be erroneous and liable to be set aside. 16. Resultantly, the appeal preferred by the appellant succeeds and is hereby allowed. The impugned judgment of conviction and sentence passed by the trial Court is set aside and the appellant-accused is acquitted from the charge under section 8 read with section 20(c) of the NDPS Act. The fine amount, if any, deposited by the appellant, be refunded to him. The appellant is on bail, his bail bond stands discharged forthwith.