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Madhya Pradesh High Court · body

2010 DIGILAW 193 (MP)

Bagdiram v. State of M. P.

2010-02-16

I.S.SHRIVASTAVA

body2010
JUDGMENT 1. The appeal has been preferred under section 374 of the CrPC by the appellant Bagdiram being aggrieved by the judgment dated 6.11.2004 passed by the Court of Ku. Pratibha Ratnaparkhi in Special Criminal Case No.66/2002 by which the appellant has been convicted under section 8/ 18 of the Narcotic Drugs and Psychotropic Substances Act (herein after referred to 'the NDPS Act' for brevity) and sentenced to undergo rigorous imprisonment of ten years with fine of Rs.1,00,000/-; in default of payment of fine to undergo rigorous imprisonment of one year. 2. According to the prosecution story, on 28.5.2001 ASI Shri B.L. Sharma of Police Station Shyamgarh, District Mandsaur received an information from the informer that accused Bagdiram having a bag with impression of Bharat bidi was going to deliver opium and can be raid handed at Chandawasa Ghatiya Road, therefore, Shri B.L. Sharma arranged for trap party and raided the accused Bagdiram. He was apprised with the said information and after obtaining his consent for search of himself and his bag, in his personal search, a note of Rs.20/- and copy of the notice under section 50 of the Act was seized from his right pocket. On search of his bag, which he was having in his right hand, a polythene bag was found. On test of the contains of the polythene bag, it found to be opium. On weighing, the same was found to be 5 kg. Out of which, two samples of 30 grams each were prepared and they were duly sealed and remaining opium 4.950 kgs. was seized separately. Samples were marked A-1 and A-2 and bulk quantity of the opium was marked as Article-A. After completion of the proceedings as per the law, the appellant was arrested and on return to Police Station Shyamgarh, Crime Nol24/2002 was registered under section 8/18 of the NDPS Act. After completion of the investigation, challan was filed against the appellant and after trial, he has been convicted as mentioned herein above. 3. It has been argued on behalf of the appellant that there are material discrepancies in the statement of the witnesses. The independent witnesses were hostile. The sealing of the samples were defective. The proceedings under section 52A of the NDPS Act was not proved. The bulk quantity of the seized opium was not produced at the time of the evidence. It has been argued on behalf of the appellant that there are material discrepancies in the statement of the witnesses. The independent witnesses were hostile. The sealing of the samples were defective. The proceedings under section 52A of the NDPS Act was not proved. The bulk quantity of the seized opium was not produced at the time of the evidence. Compliance of section 50 of the NDPS Act was defective. Sealing of the samples were defective. There is no satisfactory evidence about the custody of the samples with the police. There is remarkable time difference in documents which goes to the root of the case, hence the appeal be allowed. 4. It has been argued on behalf of the respondent-State that the discrepancies in the statement of the witnesses are natural and they do not affect the root of the case. The appellant has been proved to be guilty for the heinous offence, hence the appeal being devoid of any merit be dismissed. 5. Considered the arguments. Record of the trial Court perused. 6. As regard to compliance of section 50 of the Act, in panchanamas Ex.P-7, EX.P-8 and Ex.P-9, it has been mentioned that it was informed to the accused that he has constitutional right for search before nearest Magistrate or Gazetted Officer or to police. In ExP-8, consent of the appellant was obtained. In evidence, B.L. Sharma, PW8 has not supported the fact that he informed the accused about the constitutional right. The witness has deposed that he informed the accused that he is suspected to possess narcotic substance. If he wanted, he may give search to police or to any Gazetted Officer or to any Magistrate. In this way, this witness has not supported the fact that he informed the accused about his constitutional rights in this respect. 7. Bhawarlal PW7 who was accompanying Shri B.L. Sharma at the time of the raid has deposed in this matter that B.L. Sharma PW8 informed the accused that he may give his search to Narcotic Officer or the nearest Magistrate or to police. In this way, this witness has also not supported the fact that the accused was informed about his constitutional rights for search before the nearest Magistrate or Gazetted officer, hence, compliance of section 50 of the Act has not been proved by these witnesses. 8. In this way, this witness has also not supported the fact that the accused was informed about his constitutional rights for search before the nearest Magistrate or Gazetted officer, hence, compliance of section 50 of the Act has not been proved by these witnesses. 8. The independent witness of this fact Kesharsingh PW5 has not supported the fact that the accused was apprised with his constitutional right of search. He has denied the fact that the police officer apprised the accused with his rights for search before Gezetted Officer or competent Magistrate or to police. Shantilal PW6 has stated similarly. In this way, both these independent witnesses have not supported the fact that the accused was apprised of his constitutional right of search by nearest Magistrate or Gazetted Officer, therefore, EX.P-7 and EX.P-9 has not been proved by the above witnesses. 9. As regard to consent of the appellant for search to poli :e, panch an am a EX.P-8 was prepared, in which it was mentione by Kesharsingh PW5 that the accused Bagdiram gave consent for search of himself to police. Shri B.L. Sharma PW8 in this respect has deposed that the accused was illiterate and was not able to sign, hence. he got his sign written with the help of panch witness Kesharsingh PW5 who has not supported the fact in this matter. He has deposed that on dictation of police officer, he wrote B to B part of EX.P-8. Further, he has expressed that when on the date he wrote B to B part of Ex.P-8, the police did not show him the seized property and before writing Ex.P-8, the police did not obtain any consent from the accused and did not get signature of the accused before him. This shows that when this witness Kesharsipgh PW5 wrote B to B part of Ex.P-8 about consent of the accused, he was not on the spot and the accused was not present there and he was not inquired about his consent. The witness only wrote B to B part of Ex.P-8 on the request of the police officer. Therefore, from the statement of Kesharsingh PW5, consent of the accused for search to police Ex.P-8 has not been proved. Other independent witness Shantilal PW6 has deposed in this respect that it is wrong to say that Kesharsingh wrote consent on behalf of the accused. Therefore, from the statement of Kesharsingh PW5, consent of the accused for search to police Ex.P-8 has not been proved. Other independent witness Shantilal PW6 has deposed in this respect that it is wrong to say that Kesharsingh wrote consent on behalf of the accused. He has deposed that he is seeing the accused first time in the Court. 10. Bhawarlal PW7 who is police constable has deposed in this respect that the accused was knowing only to sign and he was not able to write, hence, his consent was written by constable, but this fact is not supported by the prosecution case. Since Bhawarlal PW7 was accompanying with police and present on the spot, hence his evidence in this respect is important. Therefore, on the basis of the evidence produced in this respect, Ex.P-8 has not been proved. Therefore, on the basis of the above discussion, I am of the view that compliance of section 50 of the Act was not proved and it was defective and not reliable. 11. In the case of Dilip and another v. State of M.P. [1008(1) JLJ 142=M.P. 2007(1) EFR 207], it has been held that compliance of section 50 of the Act was mandatory for the search of the person of the appellant. For non-compliance of proceedings under sections 42 and 50 of the Act, accused was not liable to be convicted, when the seizure witness did not support the prosecution case. Similar view has been adopted in the case of Smt. Halkibai v. State of M.P. [2004(11) MPWN 81=2004(2) ANJ 115], hence the appellant was not liable to be convicted. 12. As regard to compliance of section 52A of the Act, it has been argued that the property was produced before the Judicial Magistrate First Class, Garoth and samples of 30 grams each were prepared before him. Bulk quantity of the opium Article A and the sample were handed over to police station in-charge SI Shri R.R. Lahore, but these proceedings were not proved before the Court and property was not produced at the time of the evidence, hence, compliance of section 52 of the Act has not been proved. 13. Considered the arguments. Bulk quantity of the opium Article A and the sample were handed over to police station in-charge SI Shri R.R. Lahore, but these proceedings were not proved before the Court and property was not produced at the time of the evidence, hence, compliance of section 52 of the Act has not been proved. 13. Considered the arguments. It is clear from the order sheet dated 2.8.2001of JMFC Garoth that the property was produced before him for the proceedings under section 52A of the Act and he prepared two samples of 30 grams each from the packet of the bulk quantity Article A of the seized opium. All the relevant samples were taken up and after preparation of the samples and verification of the property, the seized opium Article A and both the samples were handed over to Shri R.R Lohare, SI, in-charge of the police station. The order sheet written by JMFC, Garoth has not been exhibited at the time of the evidence. Shri RR Lohare, PW9 stated the fact with respect to proceedings under section 52A of the Act, hence, the proceedings under section 52A of the Act was not proved by the evidence in the Court. Bulk quantity of the seized opium Article A and the samples were not produced before the Court at the time of the evidence. 14. As has been discussed above, there is no evidence to the effect that the bulk quantity of the seized opium was disposed of before trial, therefore, proceedings under section 52A of the Act was not proved and in the absence of the bulk quantity of the seized opium, seizure panchanama EX.P-I5 was not proved. 15. As regard to the quantity of the seized opium in Article A, it has been argued that after preparation of samples 30 grams each remaining opium was 4.940 kgs. which was sealed as per panchanama Ex.P-19 and Ex.P-I5, but Shri B.L. Sharma PW8 has mentioned that this quantity was 4.400 kgs. This creates suspicion about the quantity of the seized opium. 16. Considered the arguments. According to the seizure memo Ex.P15 and memo of sealing of the articles Ex.P-I9, 4.940 kgs. which was sealed as per panchanama Ex.P-19 and Ex.P-I5, but Shri B.L. Sharma PW8 has mentioned that this quantity was 4.400 kgs. This creates suspicion about the quantity of the seized opium. 16. Considered the arguments. According to the seizure memo Ex.P15 and memo of sealing of the articles Ex.P-I9, 4.940 kgs. opium was sealed in packet Article A, while at the time of the statement in the Court, Shri B.L. Sharma PW8 has deposed that after seizing the opium, it was weighted and its weight found to be 5 kg., out of it, two samples 30 grams each were prepared and samples were sealed and remaining quantity of the opium i.e. 4.400 kgs. was sealed. In this way, there is no account for 540 grams of the opium and also there is no explanation that why only 4.400 kg. opium was seized, while it should be 4.940 kgs. This creates doubt about the quantity of the seized opium in Article A. 17. As regard to sealing of the samples, it has been argued that the sealing of the samples were defective. The chit containing signatures of the witnesses was not pasted on the stitching of the samples and the polythene bag containing the opium was not sealed. 18. Considered the arguments. Sri B.L. Sharma PW9, who sealed the opium and samples has deposed that he sealed the samples; they were kept in the plastic bag and then kept in the clothe bag and sealed with Chipadi . He has not stated that the chit containing the signatures of the witnesses was pasted on the stitching of the samples. As regard the remaining quantity of the opium, he has deposed that the remaining quantity was sealed by applying the chit on it. He did not heat the polythene bag for the purpose of sealing. From the statement Kesharsingh PW5, it is clear that with the remnant packet from the FSL was opened before the Court. The sample was marked as Article A and sample received from the police station was marked as Article B. In both these samples, the chit containing the signatures of the witnesses was tied with the samples with thread, but it was not pasted on the stitching of the samples so as to- avoid any possibility of tampering with it. The sample was marked as Article A and sample received from the police station was marked as Article B. In both these samples, the chit containing the signatures of the witnesses was tied with the samples with thread, but it was not pasted on the stitching of the samples so as to- avoid any possibility of tampering with it. Shri B.L. Sharma PW8 has admitted his signatures on the chit of the Article A and B. This shows that the chit was not pasted on the stitching of the samples. The polythene bag containing samples were not heated for the purpose of scaling. It proves that the sealing of the sample was defectivce. 19. One more thing is also important that Shri B.L. Sharma PW8 has deposed that at the time of the sealing of the samples, 30 grams each opium kept in a polythene bag and sealed on the spot, while Bhawarlal PW7 constable has deposed that the samples of 30 grams each was placed in an empty packet of Bristle cigarette and then placed in the plastic bag. In cross-examination, he has deposed that plastic bag was not sealed by heating. In Ex.P-15, it has been mentioned that 30 grams each opium sample was kept in an empty' packet of Birstle cigarette and then it was kept in polythene bag and then it was kept In clothe bag and then sealed. Therefore, there is grave discrepancies in the statement of Shri B.L. Sharma, PW8 and Bhawarlal PW7 about sealing of the samples. Shri B.L. Sharma PW8 has not supported the fact that the samples were kept in the empty packet of Bristle cigarette. 20. As regard to custody of the samples at police station, it has been argued that the sample was sent to FSL, from where it was returned back due to some defects and thereafter, the samples were again sent on 6.2.2001 it was deposited in the Malkhana and was with the custody of Santosh Rawat PW3, hence possibility of tampering with the samples could not be over ruled. 21. Considered the arguments. Santosh Rawat PW2 has deposed that on 30.5.2001, HCM of the police station gave him an envelope and sealed packet for delivery to FSL, Indore, but the envelope and the samples were not received by them and returned with the letter of FSL. 21. Considered the arguments. Santosh Rawat PW2 has deposed that on 30.5.2001, HCM of the police station gave him an envelope and sealed packet for delivery to FSL, Indore, but the envelope and the samples were not received by them and returned with the letter of FSL. Thereafter, he returned back to police station and delivered the packet and letter to HCM. On 1.6.2001, the same packet and letter of the SP were again delivered to him, hence he deposited it in the FSL, Indore and received the receipt EX.P-3 which he delivered to HCM of Police Station, Shyamgarh. 22. Sureshbabu Sharma PW3 in this respect has deposed that re sent the sample Article A-1 along with the draft letter of SP through constabke Santosh Rawat PW2 on 30.5.2001 to deliver it to FSL, Indore. The sample was returned back on 31.5.2001 by the constable Santosh Rawat with the letter of FSL with the objection about humidity of the sample and hence he deposited the sample in the Malkhana. On 1.6.2001, he again sent Santosh Rawat with the sample Article A-1, along with the letter. He deposited it to FSL, Indore and gave the receipt EX.P-3. The relevant entries of register of Malkhana are EX.P-4. In this way, it is clear that the sample was not deposited ill FSL on 31.5.2001 and it was returned back and deposited in Malkhana and again, it was sent on 1.6.200 and it was deposited FSL Indore, but the objection letter of FSL dated 31.5.2005 by which sample was not deposited in FSL has not been produced and the relevant entries of Malkhana of the Police Station Shyamgarh that the samples were against deposited on 31.5.2001 and again handed over to Santosh Rawat has not been produced in the prosecution evidence. In the absence of the relevant record, it shall be presumed that the sample was in the custody of Santosh Rawat PW2 from 30.5.2001 to 1.6.2001. It was the duty of the prosecution to prove that the custody of the sample was with the police at the police station, which has not been proved, therefore, the prosecution has failed to prove the case against the appellant beyond reasonable doubt. 23. It was the duty of the prosecution to prove that the custody of the sample was with the police at the police station, which has not been proved, therefore, the prosecution has failed to prove the case against the appellant beyond reasonable doubt. 23. In the case of Govind v. State of M.P. [2008(1) ANJ 113], it has been held that the letter which was given by the incharge of the laboratory has not been filed by the prosecution. As per the provisions of section 114(g) of the Evidence Act, the adverse interference can be drawn against the prosecution. In the view of the marshalling of entire documentary and oral evidence adduced by the prosecution, this is that, the prosecution has failed to prove its case beyond reasonable doubt. The impugned judgment of conviction and sentence is set aside. It is well settled legal position that from the time of seizure and sealing of the contraband article and preparation of samples according to the present law and rules, same seems to be kept intact till reaching at the hand of incharge of FSL. In the case of Ramchandra v. State of M.P. [2001 Cri.LJ 204], it has been held .that chit containing signatures of pancha witnesses and the accused was not pasted on the articles, which are alleged to have been sealed on the spot. The investigating officer had full opportunity to substitute the contraband articles. It was held that the prosecution failed to prove the case beyond reasonable doubt. In the case of Jitendra and another v. State of M.P., reported in 2004(2) Vidhi Bhasvar 30= 2004(10) SCC 562 , it has been held by the apex Court that: "the evidence to prove that charas and ganja were recovered from the possession of accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak PW7, Angad Singh PW8 and Sub-Inspector D.J. Raj PW6, there is no independent witness as to the recovery of the drugs from the possession of accused. The charas and ganja alleged to have been seized from the possession of the accused, were not even produced before the trial Court, so as to connect it with the samples sent to the FSL. The charas and ganja alleged to have been seized from the possession of the accused, were not even produced before the trial Court, so as to connect it with the samples sent to the FSL. There is no material produced in the trial apart from the interested testimony of police officers, to show that the ganja and charas were seized from the possession of the accused or that the samples sent to FSL which were taken from drugs seized from the possession of the accused. 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 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 panchanama does not discharge the heavy burden, which lies on the prosecution, particularly where the offence is punishable with stringent sentence under the NDPS Act." 24. Under these circumstances, the appellant cannot be convicted. The same view has been adopted in Abdul Gani v. State of M.P. [ 2005(2) JLJ 363 ], as well as in Noor Aga v. State of Punjab [2008(iv) AD-Cri. (SC) 337]. 25. It has also been argued that there is discrepancies in the statement of Bhawarlal PW7 and B.L. Sharma PW8 about time of the departure from the police station. 26. Considered the arguments. B.L. Sharma PW8 has deposed that he received information from the informer in between 12:30 p.m. to 1:00 p.m. In this respect, panchanama EX.P-15 about information of the informer was prepared on 28.5.2001 at 13:20 hours by Shri B.L. Sharma PW8 before the independent witnesses. It means that up to 13:20 hours panchanama EX.P-6 about not receiving of the search warrant was prepared on the same day at 13:30 hours. It means that B.L. Sharma was at Police Station Shyamgarh till 13:30 hours. 27. Bhawarlal PW7 has deposed that on 28.5.2001, Shri B.L. Sharma PW8 intimated him about the information of the informer and thereafter witnesses Kesharsingh PW5 and Shantilal PW6 were called on and panchanama about the information of the informer was prepared and the name of the accused Bagdiram was intimated to him. 27. Bhawarlal PW7 has deposed that on 28.5.2001, Shri B.L. Sharma PW8 intimated him about the information of the informer and thereafter witnesses Kesharsingh PW5 and Shantilal PW6 were called on and panchanama about the information of the informer was prepared and the name of the accused Bagdiram was intimated to him. About time of departure from the police station, the witness has deposed in crossexamination that he left the police station in between 12:00 to 1:00 p.m. This witness is police constable, hence his statement that they left police station between 12:00 to 1:00 p.m. creates doubt about legality of panchanama EX.P-5 and EX.P-6 and the statement of B.L. Sharma PW8, hence prosecution story becomes doubtful. 28. Therefore, on the basis of the above discussion, I am of the view that looking to the above discrepancies in the evidence, the appellant was not liable to be convicted and hence the appeal deserves to be accepted. 29. Accordingly, the appeal is allowed and the appellant is acquitted from the charges under section 8/18 of the NDPS Act and his conviction and sentence is set aside. He• be released, if not required in any other offence. Fine, if deposited, be returned to him.