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Madhya Pradesh High Court · body

2010 DIGILAW 26 (MP)

Rashida (Smt. ) and Sikandar v. State of M. P.

2010-01-07

I.S.SHRIVASTAVA

body2010
JUDGMENT : Shri I.S. Shrivastava , J.: -- Thisappeal has been preferred under S. 374 of the Cr.P.C .being aggrieved by the judgment dated 28.1 1 .03 passed by the Court of Ku. Karuna Trivedi , Special Judge,N.D.P.S. Act, Mandsaur in Special S.T. No. 124/97 bywhich the appellants Rashida and Sikandar have been convicted under Ss. 8/18 (B), 8/21 (C) and 8/29 of the N.D.P.S. Act(for short the ‘Act’) and sentenced to undergo rigorous imprisonment of 12years along with fine of Rs . 1,00,000/- (one lakh ) and in default of payment of fine, to undergo R.I.for two years for each offence and under S. 8/25 of the Act, sentenced toundergo rigorous imprisonment of five years along with fine of Rs . 50,000/- and in default of payment of fine to undergoadditional rigorous imprisonment of 2 years. 2.Co-accused Kalusingh , Sagunbai were also convicted under S. 8/18 (b) and 8/21 (c), 8/29 of the Act andsentenced to undergo rigorous imprisonment of 12 years along with fine of Rs . one lakh to each accused andin default to undergo rigorous imprisonment of two years to each accused.Co-accused Mahavir Prasad was declared absconded. 3.Cr. A. No. 121/03 of Sagunbai was deposed of byjudgment dt . 22.9.08 and Cr.A. No. 130/04 of Kalusingh has been disposed of by judgment dt . 25.9.08. 4.According to prosecution story Lalaram Dinkar , Inspector, Office of Dy .Commissioner on 11.9.97 received an information fromthe informer that Sikandar is engaged in the businessof preparation and selling of heroin from opium and next day opium and heroinwill be supplied by him to purchasers. Therefore, Lalaram Dinkar informed his superior officers with theinformation and by government vehicles MP-14/02000 and MP-14/6670 proceeded for Gram Laduna with thepreventive team and reached there at 6.00 a.m. on 12.9.97. Where he called two independent witnesses and after informing themabout the information received by him, he reached the residence of Sikandar . Sikandar was notavailable at house. Hence he informed his wife Smt . Rashida with the information and after obtaining herconsent for the search of the house, he searched the house. During search in aroom of the house two packets of fertilizer were foundon the bed and two males and one female were sitting there. On enquiry theytold their name as Mahavir Prasad, Kalusingh and Sagunbai wife of Kalusingh . Rashida with the information and after obtaining herconsent for the search of the house, he searched the house. During search in aroom of the house two packets of fertilizer were foundon the bed and two males and one female were sitting there. On enquiry theytold their name as Mahavir Prasad, Kalusingh and Sagunbai wife of Kalusingh . On search of bags, one bag was containing opiumwhich was marked as article ‘A’, It was containingthree polythene bags in total 4.100 kg. of opium.Hence two samples from one polythene bag A-1 and A-2 were prepared. From secondbag marked as article ‘B’ 1.200 kg. of opium wasseized. Out of which samples B-1, B-2 were prepared. From the 3rd bag, markedas ‘C’ 600 gms . of heroin was seized from which samples C-1 and C-2 were prepared.All the packets were marked as articles A, B, C and samples were duly sealed. 5.After completion of the search of the house of Sikandar ,his second house was searched. From a room of this house a polythene bag wasfound. It was containing black colour substance. Onenquiry Rashida informed that it is a formula to bemixed in the opium which was marked as article ‘D’. Its weight was 1.400 kg.Out of which two samples D-1, D-2 were prepared which were duly sealed. From same room a jerrycan of plastic was found which was containing 1/2 liter of acetic anhydride whichwas marked as ‘E’. From this two samples of 50-50 gms . were taken. They weremarked as E-1, E-2. From the same room during search 850 gms . of Ammonium Chloride,650 gms . of sares and 4.350 kg. in a bigcontainer and 0.750 gms . in a small container liquid substance and other material were found. All thesearticles were seized as per procedure. Rashida andother three accused Kalusingh , Sagunbai and Mahavir Prasad were arrested on the spot. Their statement were recorded and thereafter completinginvestigation, challan was filed against Kalusingh , Sagunbai and Mahavir Prasad, Rashida . Sikandar was not present at that time. He was arrested on9.5.98. Thereafter supplementary challan was filedagainst him on 18.6.98. 6.After trial, all the four accused were punished as mentioned above. Accused Mahavir Prasad absconded during trial, hence permanentarrest warrant was issued against him. 7.It has been argued on behalf of the appellants that case against them was notproved. Panchnama seizure was not supported by theindependent witnesses. It was defectively prepared. Thereafter supplementary challan was filedagainst him on 18.6.98. 6.After trial, all the four accused were punished as mentioned above. Accused Mahavir Prasad absconded during trial, hence permanentarrest warrant was issued against him. 7.It has been argued on behalf of the appellants that case against them was notproved. Panchnama seizure was not supported by theindependent witnesses. It was defectively prepared. No lady officer was presentas the time of search of Smt . Rashida .The first house and second house of Sikandar are notat the same place but they are at different places. But no Panchnama Search was prepared for the second house. The Seizing Officer was prejudicedfrom the very beginning. From the first house seizure of opium and heroin wasmade from Kalusingh , Sagunbai and Mahavir Prasad and from the second house seizurewas made when Sikandar was not present. But theSeizing Officer was highly interested, he prepared the Panchnama in the name of Sikandar and Rashida also. While Sikandar was not present at the time of search and seizurefrom first house. His name must have not been mentioned. Similarly atthe time of search of second house names of Kalusingh , Sagunbai and Mahavir Prasadshould have not been mentioned because they were not present there. Seizure ofliquid acetic anhydrite is suspicious. Samples were not properly sealed. Theexclusive possession of Rashida and Sikandar of the house was not proved. SeizureMemo Ex.P . 10 was prepared on 12.9.97 at 8.00 a.m. atvillage Laduna at the house of Sikandar .It is admitted position that Sikandar was notavailable there but in the Panchnama why name of Sikandar was mentioned. No explanation has been given bythe prosecution in this regard. When a person is not present at the spot thenhow a Panchnama can be prepared against him. Therefore Panchnama Ex.P . 10 is defective. From the oral evidence of thewitnesses prosecution case was not proved; hence appeal be accepted. 8.It has been argued on behalf of the respondent State, that the case is provedon the basis of evidence produced before the Trial Court. Sikandar was having a business of preparing and selling heroin and opium. Procedure hasbeen rightly taken up by the Seizing Officer; hence appeal is devoid of merit;it should be dismissed accordingly. 9.Considered arguments. Record of the Trial Court perused. 10. From the Panchnama Ex.P . Sikandar was having a business of preparing and selling heroin and opium. Procedure hasbeen rightly taken up by the Seizing Officer; hence appeal is devoid of merit;it should be dismissed accordingly. 9.Considered arguments. Record of the Trial Court perused. 10. From the Panchnama Ex.P . 10 and from the statement of witnesses Sanjiv Prasad P.W. 8 and Shyamlal Sharma P.W. 9, it is clear that in one room of the house of Sikandar , Mahavir Prasad, Kalusingh and Sagunbai were present and two packets were keptat their bed which contained opium 4.100 kg. and 1.200kg. and heroin 600 gms . Atthe time of seizure of these two packets, only three persons Mahavir Prasad, Kalusingh and Sagunbai were present. Hence Panchnama Ex.P . 10 musthave been prepared in the name .of all these persons only. There is noexplanation why name of Sikandar who was notavailable at that time and Smt . Rashida ,have been mentioned in this Panchnama when there wasno seizure from them. 11.As per the spot map Ex.P . 13, second. house of Sikandar is situated at a distance from the first house. There is a lane in between boththe houses and hence they cannot be said to be attached with the same house.When the Seizing Officer after search and seizure from the first house preceded to search second house, he must have prepared thesecond Panchnama for the search of this house andthereafter must have seized the property and articles from this house. Butsurprisingly the Seizing Officer did not prepare any Panchnama for the search of this second house and seizure memo for the seizure of thearticles available in this room. At the time of search and seizure from thesecond house accused Kalusingh , Sagunbai , Mahavir Prasad and Sikandar were not available for search. Their names were included in this Panchnama . This shows that the procedure for the search andseizure from the second house was totally defective and against the provisionsof law. 12. By Panchnama Ex.P . 10, from the second house some liquid containingacetic anhydride in plastic container was seized. It has not been mentioned inthe Panchnama Ex.P . 10 that the plastic container was having a label in the name aceticanhydride. 12. By Panchnama Ex.P . 10, from the second house some liquid containingacetic anhydride in plastic container was seized. It has not been mentioned inthe Panchnama Ex.P . 10 that the plastic container was having a label in the name aceticanhydride. If it was so, then it should have been mentioned and if itwas not having label of acetic anhydride, then it must have been so mentioned.How the Seizing Officer Sanjiv Prasad P.W. 8 couldidentify the liquid of plastic container as acetic anhydride, has not been mentioned in this Panchnama . He has alsonot mentioned in his Court statement that how can he confirm the liquidsubstance to be acetic anhydride. Shyamlal PW. 9 in para 9 has deposed that in 1 liter jerrycan acetic anhydride were found which was confirmed by smell and by checking by thetest kit to be acetic anhydride which was 1/2 liter but this fact has not beenmentioned in the seizure memo. If there was no label on the plastic jerrycan containing acetic anhydride then liquid must havebeen seized as it was and thereafter after the FSL report, it could have beenconfirmed that it was acetic anhydride. Therefore, about theidentity of acetic anhydride at the time of preparation of Panchnama Ex.P . 10 was doubtfuland defective and Seizing Officer has committed a serious irregularity andmistake in this matter. 13.As per facts of the case at the time of raid and search of the house of Sikandar , Sikandar was notavailable. His wife Rashida was available. 14.As regards sealing of the articles is concerned, Sanjiv Prasad P.W. 8 has admitted in cross-examination that to open bottle articles Ito M, chit will not be affected. As regards packets A to H the witness hasadmitted that there is no seal on the chit pasted on these articles. The sealis impressed at the stitching of the packets. It is correct to say that to openthe packets after breaking the seal and without affecting the chit, packets canbe opened. This shows that the bottles of articles I to M was not properlysealed and the packets of articles A to H were not properly sealed as chitcontaining signatures of the witnesses was not pasted a place so as to avoidany possibility of tampering with these samples. This shows that the bottles of articles I to M was not properlysealed and the packets of articles A to H were not properly sealed as chitcontaining signatures of the witnesses was not pasted a place so as to avoidany possibility of tampering with these samples. It is clear that the chitcontaining signatures of the witnesses were pasted at a place where the packetswere not sealed and hence the possibility of tampering with the samples andbottles cannot be ruled out. Therefore, the process of sealing samples and bottles, was also defective. 15.The room of second house from where acetic anhydride and other articles wereseized, was exclusively in possession of Rashida , hasnot been proved. Rashida was having a conspiracy inthe business and transaction of opium and heroin has not been proved beyonddoubt. Admittedly Rashida is wife of Sikandar and is a illiterate lady,who has given thumb impression on all the papers. Being wife of Sikandar , she is bound to live in the house and to open theroom on enquiry by the Seizing Officer, if Sikandar was not available. Only this fact that she opened the room ofthe second house to facilitate the search, cannot be said that she was having aconspiracy with her husband and was in exclusive possession of the house of herhusband. It is to be borne in mind that each member of the familywhether minor or major or old person, is bound to live in the house of anaccused if they are family members of the accused. Therefore, exclusivepossession of the room from which contraband articles were seized has to beproved by cogent evidence. In this case before the search of second house, noseparate Panchnama search was prepared and no Panchnama of Jama Talashi of raid party was prepared. As per prosecutionevidence the house was in the name of Sikandar butbeing wife of Sikandar she was living in the houseand in absence of definite evidence, it cannot be proved that she was a part inthe transaction of the heroin or opium and was having aknowledge about the activities being carried in his house. 16.The independent witnesses of Panchnama of Seizure Ex.P. 9 to Ex.P . 15 and Ex.P . 22 and Ex.P . 23, are Om Prakash (P.W. 6) and Mahesh (P. W. 7). They turned hostileand have not supported the prosecution story and the proceedings taken by theSeizing Officer. 16.The independent witnesses of Panchnama of Seizure Ex.P. 9 to Ex.P . 15 and Ex.P . 22 and Ex.P . 23, are Om Prakash (P.W. 6) and Mahesh (P. W. 7). They turned hostileand have not supported the prosecution story and the proceedings taken by theSeizing Officer. There is major discrepancy in the Statement of Seizing Officer Sanjiv Prasad (P.W. 8) and Shyamlal Sharma (P.W. 9) to the effect that from where the independent witnesses werecalled. According to Sanjiv Prasad (P.W. 8), hereached in village at 5.30 a.m. andstopped near the temple. There he called the witnesses. He does not rememberthat through whom he called the witnesses. Shyamlal Sharma (P.W. 9) in this regard has deposed in para 17that after entering in the village Laduna theystopped on the road and called the witnesses and thereafter went to the spot. In para 13 he has deposed that he does not remember thatthe function of Ganesh Utsav was celebrated there and witnesses were present there. In this way how theindependent witnesses were procured, the evidence is contradictory. There isserious irregularity and discrepancy in the statement of these witnesses. If inreality they were with each other at that time, then such grave discrepancymust have not occurred from the statement of these witnesses. 17. Omprakash (P.W. 6) has deposed that on the date of theincident at the temple of his village Laduna , programme of Ganesh Utsav was going on. At that time two constables called themat temple where one lady was sitting and they got their signatures on Ex.P . 9 to Ex.P . 15. Maheshkumar P.W. 7 has deposed in this respectthat in the night of the incident programme of Ganesh Utsav was going at 12.00 a.m. The narcotic people came to call himthat there the Commissioner has come for enquiry before them. Then they tookhim to temple and went to another temple. No seizure was made from the accusedpersons. Ex.P . 9 to Ex.P . 15 bear theirsignatures. In this way these witnesses have turned hostileand has deposed that they did not go to the house of the accused personand has not supported the fact of seizure. 18.In this way the evidence regarding cummoning of thewitnesses is totally different and all the witnesses Omprakash (P.W. 6), Mahesh (P.W. 7), Sanjiv Prasad (P.W. 8) and Shyamlal Sharma (P.W. 9) have deposed differentfacts. 18.In this way the evidence regarding cummoning of thewitnesses is totally different and all the witnesses Omprakash (P.W. 6), Mahesh (P.W. 7), Sanjiv Prasad (P.W. 8) and Shyamlal Sharma (P.W. 9) have deposed differentfacts. Hence nothing can be concluded from the discrepant statement of thesewitnesses; thereby the proceedings taken up by the Seizing Officer SanjayPrasad (P.W. 8) with respect to the seizure and seizure memo Ex.P . 10 are doubtful. 19.In Asharam vs. State of M.P. ,1998 (2) M PWN 58, it has been held that"exclusive possession of the accused not proved; accused cannot beconvicted." In Gangaram Rama Gundkar & Anr . vs . State of Maharashtra , 2002 Cri.L.J . 2578 it has been that "Ganja recovered fromthe house of the accused wrappped in a sari-his wifecharged or having abetted the offence-no overt act alleged on her part showingas to how she assisted accused. Mere knowledge would not constituteabetment-wife was not entitled for conviction." In Phoolibai vs. State of M.P. , 1964J.L.J. SN63 it has been held that "illicit liquor and implements for manufacturethereof seized. Husband not found on premises. Wife cannot be convicted forpossession of articles." In Arjun Singh vs.State of H.P. 2009 Cri.L.J . 1332 it has been heldthat for the abetment, offence of intentional aiding and active complicity isgist of offence. Offence of abetment requires something more than mere criminalconspiracy. There must be some act or illegal ommission in pursuance of that conspiracy. In S. 107 of the I.P.C. "engages in anyconspiracy for doing of that thing if an act or omission took place inpursuance of that conspiracy," must be proved. 20.Instate of M.P. vs. Kanhaiyalal , 2000 (1) M PWN 5 it has been held that opium was seized from the room and such room was notestablished to be in exclusive possession of the accused. Accused was notliable to be convicted." In Kuldeep Sahu and Another vs. State of M.P ,ILR (2008) M. P. 2985 it has been held that no evidence is produced thatappellant No. 2 was also selling Ganja with appellant No. 1. Merely hispresence is not sufficient to proved that he wasdealing in Ganja. There is no evidence to connect appellant No. 2 with thisoffence. Conviction of appellant No. 2 set aside." 21.It has been argued by the respondent’s counsel that in Banobi and Another vs. State of Maharashtra ,2000 Cri.L.J . 589 (SC) the appeal deserves to bedisallowed. Merely hispresence is not sufficient to proved that he wasdealing in Ganja. There is no evidence to connect appellant No. 2 with thisoffence. Conviction of appellant No. 2 set aside." 21.It has been argued by the respondent’s counsel that in Banobi and Another vs. State of Maharashtra ,2000 Cri.L.J . 589 (SC) the appeal deserves to bedisallowed. 22.While it has been argued by the appellants counsel that factsof this case are different and gives no benefit to the appellants. Factsof this case are different from the present one. In case of Banobi (supra) the contraband article Charas and heroin wereseized from both the appellants. 23.The defects in the preparation of the Panchnama Ex.P . 10 has been discussed above and it is clear that theinvestigation was defective and the Seizing Officer was not acting withoutprejudice to the accused; while it was expected of him to investigateindependently because investigation done by the Seizing Officer is a factfinding enquiry. The information given by the informer is simply an information which has to be confirmed during theinvestigation by adopting the procedure prescribed by the law and by seizure ofthe contraband article at the spot. In any manner he should not be prejudicedwith the accused persons. But in this case Panchnama Ex.P . 10 was not prepared inaccordance with the rules. The seizure in this case is from two places. Fromthe first house of Sikandar contraband articles wereseized from Kalusingh , Sagunbai and Mahavir Prasad. From the second house the seizurefrom only a room of Sikandar in presence of Rashida . Sikandar , Kalusingh , Sagunbai and Mahavir Prasad were not present at that time but their namewere entered as accused in the Panchnama Ex.P . 10. From the recovery in the first house, Rashida and Sikandar were notpresent there but why their name were entered in Ex.P . 10. At the time of recovery from second house only Rashida was present but the names of Sagunbai , Kalusingh , Mahavir Prasadand Sikandar were entered in the Panchnama .This shows that the Panchnama Ex.P .10 was defective and was prepared with prejudicedmind. No Panchnama of search of second house wasprepared. Under these circumstances the procedure adopted in seizure by theSeizing Officer and the team of narcotic department, was defective. No Panchnama of search of second house wasprepared. Under these circumstances the procedure adopted in seizure by theSeizing Officer and the team of narcotic department, was defective. 24.In Ritesh Chakrawati vs.State of M.R, 2007 (1) JLJ 239 (SC) it has been held that in case of defectice investigation and where material evidence is notadduced, accused is entitled to benefit of doubt. When the procedure safeguardsare required, they should be strictly complied with. The Court has to take carethat a person is not convicted on a misguided suspicion. It is settledprinciple of criminal jurisprudence that more serious the offence, stricter thedegree of proof." In Dilip and Another vs. Stateof M.P. , 2008 (1) JLJ 142 (SC )- it has been held that offence under N.D.P.S. Act is graveone and procedure should be complied with. Seizure of opium is denied by the panch witnesses. The accused is entitled foracquittal." 25.It has been argued by the respondent’s counsel that the accused persons Kalusingh , Sagunbai , Mahavir Prasad and Rashida wereinterrogated by Sanjiv Prasad (P.W. 8) before theirarrest and their statements were leading to their guilt; hence accused personsare liable to be convicted. 26.In reply, it has been argued on behalf of the appellant that at the time ofseizure statements were recorded. The accused persons were under pressure ofthe Narcotic Officers. Statement itself shows that they are not statement ofilliterate persons. The words ‘acetic anhydride’ and other formula etc. werenot in the knowledge of the witnesses while they have been mentioned in thestatement; hence statements are artificial and not believable. 27.Considered the arguments. 28. Sanjiv Prasad (P.W. 8) has deposed that after seizurehe interrogated accused persons present there. Afterstatement of Mahavir Prasad Ex.P . 18 he arrested him. Thereafter Kalusingh and Sagunbai were interrogated. Theirstatements Ex.P . 19 and Ex.P . 20 respectively were recorded and they werearrested. Thereafter Rashida was interrogated. Her statement Ex.P . 21 was recorded and she was arrested. This shows that thestatement of these accused persons were recorded when they were under thepressure of the Narcotic Officers and they were in dominating position. The language of the statement Ex.P . 18 and Ex.P . 21 is not ofilliterate persons particularly Rashida as lady whois totally illeterate and she has put her fingerimpression on the statement. Under these circumstances it cannot be said thatthey are real and voluntary statement of the witnesses. The language of the statement Ex.P . 18 and Ex.P . 21 is not ofilliterate persons particularly Rashida as lady whois totally illeterate and she has put her fingerimpression on the statement. Under these circumstances it cannot be said thatthey are real and voluntary statement of the witnesses. When a person has beenarrested and other knows that he is also going to be arrested, how he can givea voluntary statement in a pressurising atmosphere.In Union of India vs. Bal Mukund and Ors., 2009 Cri.L.J . 2407 it has been held that "thesituation in which such purported statements have been made cannot also be lostsight of. The purported raid was conducted early in the morning. A large numberof police officers including, high ranking officers were present. Search andseizure had been effected . According to theprosecution each of the respondents 1 and 2 were found to be in possession of10 kgs of narcotics. No information was sought forfrom them. It is doubtful whether they had made such statements on the roaditself." 29. Ex.P . 20 and Ex.P . 21 categorically show that they were interrogated. If they were interrogatedand while they were in custody, it cannot be said that they had made avoluntary statement with satisfies the conditions presedent laid down under S. 67 of the Act. We in the backdrop of the aforementionedevents, find it difficult to accept that such statements had been made by themalthough they had not been put under arrest. As the authorities under the Actcan always show that they had not formally been arrested before such statementswere recorded, a holistic approach for the aforementioned purpose is necessaryto be taken". Hence in this case the statements recorded under S. 67 arenot believable. 30.From the above discussion, I conclude that the appeal deserves to be allowed.Hence this appeal is allowed and conviction and sentence of appellants Sikandar and Rashida wife of Sikandar under S. 8/18 (b), S. 8/21 (c) and S. 8/29 and S.8/25 (a) of the Act are hereby set aside. Accused are in custody since28.11.03. Hence they be set at liberty, if notrequired in any other offence.