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Madhya Pradesh High Court · body

2010 DIGILAW 35 (MP)

Amar Singh v. State of M. P.

2010-01-11

I.S.SHRIVASTAVA

body2010
JUDGMENT 1. The appellant Amar Singh has preferred this appeal under section 374 of CrPC being aggrieved by the judgment dated 16.12.2003 passed by Ku. Karuna Trivedi, Special Judge (NDPS Act,) Mandsaur in Special S.T. No. 9/02 by which the appellant has been convicted under section 8/18 (b) of the NDPS Act (for short 'the Act') and sentenced to Rigorous Imprisonment of 10 years along with fine of Rs. 1,00,000/- (Rupees One lakh) and in default of payment of fine, further imprisonment of two years' R.I. 2. According to prosecution story on 13.1.2002 on information of informer, ASI Mamrajsingh Tomar seized 8 kg. 500 gms. of opium from the possession of the appellant Amarsingh. Hence, Crime No. 4/02 was registered at P.S. Suwasra Distt. Mandsaur and after investigation challan was filed. After trial the appellant was convicted as mentioned above. 3. It has been argued on behalf of the appellant that the property was not produced before the trial Court. There is no compliance of section 52-A of the Act. The independent witnesses were hostile. The document prepared by the Investigating Officer, was tampered. The FIR was registered at 6.50 p.m. at Crime No. 4/02, while Panchnama of re-sealing (Exh. P-3) was prepared at 4.40 p.m. and crime number has been mentioned in it. There is material contradiction in statement of Head Constable Suresh Sharma (PW-7) who was member of raiding party and Matadin Tomar (PW 6), the Seizing Officer. Dilip Gangrade (PW 8) was the officer of doubtful conduct and adverse remarks were passed against him by the Court about false implication of accused person, hence appeal be accepted. 4. It has been argued on behalf of the respondent that 8 kg. 500 gms. of opium was seized from illegal possession of the appellant Amar Singh. Before the trial Court he was found guilty and has been rightly punished by the impugned judgment. Appeal being baseless and devoid of merits, be dismissed. 5. Considered the arguments. Record perused. 6. In this case, there is no evidence that the seized property was deposited in the Court. There is no evidence to the effect that the property was disposed of before the trial. Hence compliance under Section 52-A of the Act was not proved and it was proved that the property was disposed of before filing of the challan. 6. In this case, there is no evidence that the seized property was deposited in the Court. There is no evidence to the effect that the property was disposed of before the trial. Hence compliance under Section 52-A of the Act was not proved and it was proved that the property was disposed of before filing of the challan. Hiralal Nanda (PW 2) has deposed that he has deposited seized property in the Malkhana of Police Station vide Panchnama (Exh. P-2). In Malkhana register (Exh. P-4) it has been mentioned that on 13.2.2002, article 'A' was taken out from the Malkhana to conduct procedure under section 52-A of the Act and two samples of 30-30 gms. each was prepared before the Station Incharge Gangrade and Naib Tahsildar Bhandari and thereafter article 'A' and samples B1, B2 were deposited in the Malkhana but in this regard no Panchnama was prepared. No order sheet was written by the Naib Tahsildar. Naib Tahsildar Bhandari has not been examined in the Court. Rajedra Rai (PW-4) has deposed that he has not produced the property in the Court. In the statement of ASI, M.S. Tomar (PW-6) it has been mentioned that sample returned from the FSL was produced in the Court and marked as article 'A' and other sample which was deposited in the police station was produced in the Court and marked as article 'B'. Samples in bulk quantity of the opium were not deposited in the Court and no evidence in this regard has been produced. As discussed above no evidence has been produced that the bulk quantity of opium was disposed of in compliance of section 52-A of the Act. In this way bulk quantity of property was not produced before the Court. 7. Two independent witnesses of the Panchnama seizure (Exh. P-16), Shahidl Khan (PW 9) and Shyamlal (PW 10) are hostile. According to Shahid Khan (PW 9), he was sitting at a shop in village Suwasra and on call of Police Constable he went to the police station. Police did not tell him anything and got his signature on Exh. P-6 to Exh. P-18. Police did not seize any narcotic substance from any person before him. He does not know the accused persons. He simply put his signature on chit pasted on the articles 'A' and 'B'. Police did not tell him anything and got his signature on Exh. P-6 to Exh. P-18. Police did not seize any narcotic substance from any person before him. He does not know the accused persons. He simply put his signature on chit pasted on the articles 'A' and 'B'. According to Shyamlal (PW 10) about three years before when he was with Sayeed at bus stand Suwasra, Police Constable called him to police station. There ASI, M.S. Tomar was present. He did not tell him anything and got his signatures on papers. He did not go with ASI Tomar to any place. Police did not seize any narcotic substance from any person before him. Exh. P-6 to Exh. P-18 are signed by him. Signatures were not visible on the chit passed on articles 'A', 'B' from D to D. Therefore, both the witnesses have not supported the action taken by the police with respect of the seizure of opium and the proceedings taken by Panchnama (Exh. P-6 to P-18). In this way, the independent witnesses have not supported the proceedings taken up by the police. Under these circumstances the accused appellant is not liable to be convicted as held in cases of Jitendra and another v. State of M.P. 2004 (2) Vidhi Bhasvar 30 = 2004 SCC (Cri.) 2028. Noor Aga v. State of Punjab and another, 2008 Cri. L.R. (SC) 655 and Valsala v. State of Kerala, 1993 SCC (Cri.) 1082. 8. It has been also argued on behalf of appellant that samples were produced very late in ti1e Court at the time of evidence only. Dilip Gangrade (PW-8) has deposed that he does not know that the property was deposited in the Court on 19.7.02. While from the statement of ASI, M.S. Tomar (PW-6) in Paragraph, 13, he has stated that the samples deposited in the Malkhana of the police station were produced in the Court and opened which was marked as article 'B'. Similarly returned sample from FSL was produced before the Court and marked as article. 'A'. This shows that these two samples were produced before the Court on 30.6.02 at the time of statements of these witnesses. While in this case the incident occurred on 13.1.02 and property was seized from the accused Amarsingh on 13.1.02. Similarly returned sample from FSL was produced before the Court and marked as article. 'A'. This shows that these two samples were produced before the Court on 30.6.02 at the time of statements of these witnesses. While in this case the incident occurred on 13.1.02 and property was seized from the accused Amarsingh on 13.1.02. Therefore, it is clear that the seized samples and remaining bulk quantity of the opium were not deposited in the Malkhana of the Court as early as possible with the filing of challan. There remains the fact that the property was not deposited in the Malkhana. Hence, under these circumstances and in view of the law laid down in Valsala (supra), the appellant was not liable to be convicted. 9. As regards the argument that the document is tampered and Exh. P-3 was prepared before registration of Crime No. 4/02; why it bears Crime Number From perusal ofExh. P-3 and FIR (Exh. P-19) it is clear that the FIR (Exh. P19) was registered at Crime No. 4/02 on 13.1.02 at 18.50p.m. from Exh. P-3 it is clear that it was prepared on 13.1.02 at 18.40 pm. Till that time FIR at Crime No. 4/02 was not registered but Exh. P-3 bears Crime No. 4/02 while it should be crime No. 0/02. This shows that either Panchnama (Exh. P-3) was prepared after registration of the Crime No. 4/02 or after registration of Crime No. 4/02. In both the situations, Panchnama (Exh. P-3) is not reliable and whole of the Panclmamas prepared by the Investigating Officer bear shadow of doubt about their genuineness. By Panchnama (Exh. P-3) the property deposited as article 'A' and samples A1, A1 were resealed by the seal of the Station Incharge of Suwasra Police Station. Hence, these proceedings are doubtful and hence, resealing of the samples at police station is doubtful and are not proved. 10. Hence, on the basis of above discussion, I conclude that the appellant is not liable to be convicted. Hence, this appeal is acceptable. Therefore, appeal is allowed. The conviction and sentence of the appellant under section 8/18 of the Act is set aside. The appellant is in jail. He be released immediately, if not, required in any other offence. The fine, if deposited, be refunded to the appellant.