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Madhya Pradesh High Court · body

2010 DIGILAW 173 (MP)

Ayyub v. State of M. P.

2010-02-10

I.S.SRIVASTAVA

body2010
JUDGMENT : Theappeal has been preferred under Section 374 of the Cr.P.C .by the appellant Ayyub being aggrieved by thejudgment dated 24/06/2006 passed by the Court of Shri Jaiswant Singh Shkatriya ,Special Judge (under NDPS'), Mansaur in Special CaseNo. 10/2005, by which the appellant has been convicted under Sections 8/21 ofthe Narcotic Drugs and Psychotropic Substances Act (for short the"act") and sentenced to undergo rigorous imprisonment of twelve yearswith fine of Rs . 1,50,000/-in default of payment offine to undergo rigorous imprisonment of three years. 2.According to the prosecution story, on 17/12/2004 on the information of theinformer, B.S. Malviya , SHO, Narcotics Wings, Indore raided the house of the appellant, at that time, aperson came out of the house and ran away, thereafter, after calling theaccused appellant, he came out of the house and he was informed about theinformation by the informer and after obtaining his consent for search of thehouse, 10 kg and 200 grams crude heroine/ smack 6,800 kg opium in liquid form,500 grams ammonia, 2 kg lime were seized. After adopting due procedure andtaking samples, the above articles were seized and crime No 13/04 under Section8/21 of the Act was registered at Police Station (Narcotic), Indore . After investigation, challan was filed and the appellant has been convicted asmentioned hereinabove. 3.It has been argued on behalf of the appellant that the property was notproduced before the Trial Court; only samples were produced. There was notcompliance of Section 5 2-A of the Act. The independent witnesses were hostileand they are not supporting the prosecution case. The papers prepared byInvestigating Officer and time mentioned on them have been mentioned after timemanagement. The proceedings taken up by the Investigating Officer are notbelievable, hence the appeal be allowed and the appellant be acquitted from thesaid charges. 4.It has been argued on behalf of the respondent- State that the appellant has beenfound guilty for the said serious offence, he was punished. He wasmanufacturing the prohibited drugs. Hence the appeal being devoid of merit, be dismissed. 5.Considered the circumstances. Record of the Trial Court perused. 6.As regard to the compliance of Section 52-A of the Act, no evidence has beenproduced by the prosecution. He wasmanufacturing the prohibited drugs. Hence the appeal being devoid of merit, be dismissed. 5.Considered the circumstances. Record of the Trial Court perused. 6.As regard to the compliance of Section 52-A of the Act, no evidence has beenproduced by the prosecution. Omkarlal PW-6 has deposed that due to order of the policestation in-charge, on 077 02/2005 he had delivered the articles to S.I. Sonalki for the proceedings under Section 52-A of the Act.On 09/02/2005 after theproceedings before the Executive Magistrate and Nayab Tehsildar under Section 52-A of the Act, the articlesand the samples were deposited by him in the Malkhana .Entry register is Ex.-P/21. The prosecution has not produced any documentsdated 09/ 02/2005 about the proceedings taken up by the Executive Magistrateand Nayab Tehsildar underSection 52-A of the Act. The photographs, their negatives, order sheets,inventory have not been produced in the Court. Atthe time of evidence, only samples A-1, B-1, C-1, D-1 E, F, G were producedbe-fore the Court, but bulk quantity of the seized materials and other articleswere not produced in evidence A-l, B-l, C-l, D-l, E, F, G are the samples,which were re-turned from FSL after the chemical examination of the articlessent to FSL. In this way, the samples which were kept in the Malkhana of the Police Station and the bulk quantity of thearticles were not produced before the Trial Court, hence there was no complianceof Section 52-A of the Act and the property was not produced before the TrialCourt. 7.Independent witness Ajay Sharma PW-2 has been declared hostile. He has notsup-ported the steps taken up by the Investigating Officer. According to his statement,B.S. Malviya , the seizing officer is a resi -dent of his colony. He called him at about 10 a.m. and said that he had take his signatures on 2-3 papers. Ex.P/2 to Ex. P/15 bear his signatures. He did not accompany the police force to any place and nothingwas seized from any persons before him. Incross-examination, this witness has deposed that he had signed on blank andwritten papers on the requires of Shri B.S. Malviya . The samples were not taken be-fore him.He did not go with police to any person and to any place except his colony. Hedid not go to village Malyakhedi . The house of theappellant was not searched before him. In this way, this witness had denied thesteps taken up by Shri B.S. Malviya ,the Investigating Officer. The samples were not taken be-fore him.He did not go with police to any person and to any place except his colony. Hedid not go to village Malyakhedi . The house of theappellant was not searched before him. In this way, this witness had denied thesteps taken up by Shri B.S. Malviya ,the Investigating Officer. This witness has further stated that in the othercases, Shri B.S. Malviya has taken his signatures on papers. 8. Mohd . Hussain PW-4 is thewitness of Panchanamas . He has deposed that he metwit Malviya near Vatsalya School ,when he was going to his home from his field. At that time, a boy named Sharmawas there. Panchnama Ex.-P/15 about information ofthe informer was signed by him. Malviya gave him theinformation, thereafter, he went with him to village Malyakhedi at the house of Chowkidar .With him, he reached the house of the accused. As soon as they reached there,one person came out of the house and ran away and could not be caught onchasing. At the house, they found the accused Ayyub .He has supported the proceedings taken up by the police vide Panchnamas Ex. P.2 to Ex.-P/15. Incross-examination, he has deposed that before his statement, he came withinspector Malviya and constable Tej pal Singh in the Court and they had said him to depose as above. In para-14, hehas deposed that at the spot, the person who came out of the house, had wore underwear and baniyan was caught by thepolice and was confined in the Jipsy . Thereafter, allthe articles in the house were taken out. Thereafter, the police came to thepolice station. Thereafter, one person having beard brought the accused Ayyub and thereafter proceedings were taken up in the name Ayyub . In para - 16,he has deposed that the police prepared the papers on the spot. In the eveninghe reached there and signed on the papers within 15-20 minutes and returnedback. In para-18, he has admitted that usually, Malviya used to get his signatures on the papers as per his requirement. He was notinquired by any one in this regard in the past. It is correct that he hasstated before the Court in this respect first time. This shows that, thiswitness is pocket witness of police and being local resident of the same colonyin which Malviya resided, he signed the papers on hisrequest. Be as it may be. He was notinquired by any one in this regard in the past. It is correct that he hasstated before the Court in this respect first time. This shows that, thiswitness is pocket witness of police and being local resident of the same colonyin which Malviya resided, he signed the papers on hisrequest. Be as it may be. He had gone to the spot, but ac-cording to statementof this witness, during the whole of the day when papers were being preparedand impressions were taken up by the police, he was not present on the spotbecause he has deposed that he signed the papers in the evening. 9.B.S. Malviya , PW-7 has also admitted in para 28 of the cross-examination that witness Mohd Hussain has been witness inthe case of Kachru Singh, Bapulal , Vardichand , Ramlal and Taj . Mohd . It is correct to say that this witness is resident of thevicinity near the police station. In this way, thecredibility of Mohd . Hussain PW-4 is doubtful and he is interested witness and seems to be pocket witness ofthe police. From the statements of other witnesses, it appears that the person,who ran away from the house of the accused at the time of the police raid andthe person who was brought by the person having beard are different and afterthe arrest of the accused Ayyub papers have beenprepared in his name, therefore, the proceedings taken up by he seizing officerhas not been supported by the independent witnesses. 10.In the case of Jitendra and Another vs. State of M.P. [2004)10) SCC562 = 2004 (1) ANJ (SC) 101], it has been held by the Apex Court that the property was not produced beforethe Court and no explanation for the failure to produce them was given. The panch witnesses turned hostile. Under these circumstances,the appellant was not liable to be convicted. The same view has been adopted bythe Hon'ble Apex Court in the case of Noor Aga vs. State of Punjab [ 2008 (iv) AD- Cri (SC) 337]as well as Kanwarlal S/o Udayram vs. State of M.P. in Criminal Appeal No. 372/2004 decided on 12/08/2008 by M.P High Court, Indore Bench and Laxminarayan vs.State of M.P. [ 2009(2) JLJ] 148 ]. On the basis of the above, the appellant isentitled to be acquitted. 11.It has been argued by the appellant that timing of Panchnamas Ex. On the basis of the above, the appellant isentitled to be acquitted. 11.It has been argued by the appellant that timing of Panchnamas Ex. P/2 to Ex.-P/15 show that the times have been marked on the panchnamas after time management. Time gap between the panchnamas is not satisfactory. 12.Constable Krushna Singh PW-1 has deposed that when hewas leaving the police station at about 8- 8.30, Shri B.S. Malviya was in the Police Station- Yashnagar , Mandsaur , hence it hasbeen argued that Malviya , the Seizing Officer was atthe police station and Panchanamas Ex.-P/2 to Ex.-P/15 have not been prepared on the spot. 13.Considered the arguments Krushna Singh PW-1 hasdeposed that 16-17 December, 2004 he was posted on the post of constable in thePolice Station ((Narcotic), Indore .On that date at 3.00 a.m. , Shri B. S. Malviya prepared the panchanama about the information of the informer and he wasentrusted to deliver the report under Section 42 of the N.D.P.S. Act to theAdditional S.P. Indore . Incross-examination, he has deposed that on the same day, when he left for Indore , Malviya was at the Police Station, Yashnagar , Mandsaur till 8.30 a.m. while panchnama Ex.-P/6was prepared at village Malyakhedi in the forest atthe firm house of the accused Ayyub at 8.45 a.m. on 111 12/2004 by Shri B.S. Malviya . 14. Shri B.S. Malviya , PW-7 hasdeposed in para-29 of his statement that distance of the place of the incidentis 10 km from his police station, hence it was notpossible for the police to reach the police station within 15 minutes. Thusproceedings taken up by the Investigating Officer is doubtful. Ithas been argued that in all the panchnamas fromEx.-P/2 to Ex.-P/12, the time has been mentioned after time management. Timegap in between panchanamas is not self-explanatory. 15.Considered the argument, Panchnama Ex. -P/2 forobtaining search warrant was prepared on 17/12/2004 at 4.20 a.m. Ex-P/ 3 about the information of the informer to accused was prepared at 5.30 a.m. at the house of the accused at Gram- Malyakhedi . Panchanama Ex.-P/4about consent of accused for the search of the house was prepared at 6 a.m. then why there is gap of 30 minutes inboth these panchnamas , just after informing theaccused about the information of the informer? The next step was the consent ofthe accused, which could have been completed within 5 minutes. Similarly, Panchnama Ex. Panchanama Ex.-P/4about consent of accused for the search of the house was prepared at 6 a.m. then why there is gap of 30 minutes inboth these panchnamas , just after informing theaccused about the information of the informer? The next step was the consent ofthe accused, which could have been completed within 5 minutes. Similarly, Panchnama Ex. P/5 is at 6 a.m. which is after the gap of 30 minutes. Panchnama about search of the person of the accused and the house was prepared at 8.45 am which is after the gap of 2 hours and15 minutes. Panchnama Ex.-P/7 about the recovery ofseized articles and indentification of narcoticsubstance was prepared at 10 a.m. which is after the gap of 1 hour and 15 minutes. Panchnama about the weighings of the seized articles Ex.-P/ 8was prepared at 11.30 am . Panchnama about sealing of the seized property Ex.-P/9 wasprepared at 1.00 pm which is after the gap of 1/2 hours and panchnama about the impression of seal was prepared at 2 p.m. Panchnama seizure Ex.-P12 was prepared at 2.30 p.m. while panchnama Ex.-P/9 about sealing of the Articles was prepared at 1 p.m. Ex.-P/7 aboutrecovery of the articles and their identification was prepared at 10 a.m. 16.It has also been argued that Rojnamchasanha Ex-D/2,on which the date has not been mentioned was written at 3.10 a.m., in which ithas been mentioned that police station in-charge Shri B.S. Malviya informed the police station from Gram- Malyakhedi that he had received information from theinformer, hence he was proceeding further about the raid and he was sending theinformation under Section 42 of the Act from the spot, 'While at that time hewas not on the spot?" 17.Considered the arguments. Rojnamcha-sanha D/2 waswritten at 3.10 a.m. ; it does not bearany date. Panchnama Ex.-P/15 about the information ofthe informer was prepared at Police Station, Yash Nagar , Mandsaur at 3.40 a.m. by Shri B.S. Malviya , the Seizing Officer and Panchnama Ex. P/2 about the non-receipt of the searchwarrant was prepared at 4.20 a.m. toPolice Station. Yash Nagar , Mandsaur by Shri B.S. Malviya , then how it is possiblethat the information entered in Rojnamcha-sanha No.222 was written on the information of the Seizing Officer Malviya from the spot. P/2 about the non-receipt of the searchwarrant was prepared at 4.20 a.m. toPolice Station. Yash Nagar , Mandsaur by Shri B.S. Malviya , then how it is possiblethat the information entered in Rojnamcha-sanha No.222 was written on the information of the Seizing Officer Malviya from the spot. All these Discrepancies and the time gap between all these panchnamas and the statement of Mohd Hussain PW-4 and Krushna Singh PW-1 of the Panchnama shows that they were notprepared on the spot, but they were prepared elsewhere after time management.Under these circumstances, proceedings taken up by the police, the SeizingOfficer are suspicious and not believable. Hence, the appellant, was not liable to be convicted and the appeal deserves to be allowed. 18.Accordingly, the appeal is allowed and the conviction under Section 8/21 of theN.D.P.S. Act and the sentence awarded to the appellant are hereby set aside. The appellant be set at liberty, if not required any other offence.