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2010 DIGILAW 436 (MP)

Bhai Lal v. State of M. P.

2010-04-15

K.S.CHAUHAN

body2010
JUDGMENT : K.S. Chauhan , J.- Thiscriminal appeal under Section 374(2) of the Code of Criminal Procedure has beenpreferred being aggrieved by judgment dated 30.06.1995 passed by 1st AdditionalSessions Judge (Special Judge), Satna in Special CaseNo. 26/94 whereby the appellant has been convicted under Section 20 of NarcoticDrugs and Psychotropic Substance Act, 1985 (hereinafter referred to as the"Act, 1985") and sentenced to R.I. for two years with fine of Rs . 1,000/- in default of payment of fine RI for sixmonths. 2.The prosecution case in short is that on 25.02.1994 at about 11.00 a.m. RajeshSingh Bagel, Sub-Inspector of Police (Anti Social Control Force), Satna received an information from informant that appellanthas illegally cultivated green cannabis plant in the courtyard of his house. Hereduced the information into Rojnamcha Sanha and informed S.P. Satna ,who instructed him to conduct the raid, therefore, healong with police force and witnesses proceeded to village Bairih .Thereafter he conducted the search and found 45 green cannabis plants thecourtyard of the house of the appellant which were seized. Sample was takenout. The contraband article and sample were sealed at the spot. Map wasprepared. The appellant was arrested. On returning there from he submitted anapplication to Town Inspector City Kotwali , Satna on the basis of which the F.I.R. was written.Accordingly the Crime No. 92/94 under Section 20(B) of the Act, 1985 wasregistered against appellant. The statements of the witnesses were recorded.The seized article was sent for chemical examination to F.S.L. Sagar . After completing the investigation the charge sheetwas filed in the Court of Special Judge, Satna . 3.Appellant was charged under Section. 20 of the Act, 1985. He denied the guilt and claimed to be tried mainly contending that he isinnocent and has been falsely implicated. Prosecution examined as many as 4witnesses but appellant did not examine any witness in his defence .After appreciating the evidence appellant was found guilty under Section 20 ofthe Act, 1985 and sentenced thereto as stated here-in-above in para No. 1 of the judgment. Being aggrieved by the impugnedjudgment finding and sentence the instant appeal has been preferred on thegrounds mentioned in the memo of appeal. 4. Shri Deepak Okhade ,Advocate was engaged by the appellant as his counsel but he did not appear onthe date of hearing on 29.03.2010 to argue the case. The appeal was pendingsince 1995. Being aggrieved by the impugnedjudgment finding and sentence the instant appeal has been preferred on thegrounds mentioned in the memo of appeal. 4. Shri Deepak Okhade ,Advocate was engaged by the appellant as his counsel but he did not appear onthe date of hearing on 29.03.2010 to argue the case. The appeal was pendingsince 1995. Therefore, K. Maneesha Shrivastava , Advocate has been appointed from the panel ofthe High Court Legal Aid Services Committee to argue the case of behalf of theappellant so that the appeal may be disposed of expeditiously. 5.Ku. Maneesha Shrivastava ,learned counsel appearing on behalf of appellant submitted that the Court belowhas not appreciated the evidence in proper perspective. The independentwitnesses have not supported the prosecution case. The F.S.L. Reporthas not been filed. The article was not produced during the course of trial.Prosecution has failed to prove the guilt beyond reasonable doubt against theappellant, therefore, appellant is entitled for acquittal. She has placedreliance on the following decisions;- i . Liyaqat All vs. State of Madhya Pradesh ,2009 Cr.L.R . (M.P) 24. ii. Kanwarlal vs. State of Madhya Pradesh , 2009 Cr.L.R .(M.P.) 27. iii. Jitendra and Another vs. State of M.P. ,2004 SCC ( Cri ) 2028. 6.On the contrary, Shri Vivek Agrawal , learned Govt. Advocate appearing on behalf of respondent/State supported theimpugned judgment, finding and sentence mainly contending that the Court belowhas not committed any illegality in convicting and sentencing he appellanthence not interference is called for. 7.The main point for consideration in this appeal is that whether the Court belowhas committed any illegality in convicting and sentencing the appellant underSection 20 of the Act, 1985? 8.Rajesh Singh Baghel (PW-2) had jotted down theinformation given by information in Rojnamacha Sanha No. 1476 dated 25.2.1994 (Ex.P-5) but he has notcomplied with the provisions of Section 42 (2) of the Act, 1985, because he hasnot sent information to his immediate superior officer within 72 hours. It isalso reflected from his evidence that he carried the search and seizurewitnesses from Satna along with him and does not makethe independent and respectable witnesses of that locality from which allegedcannabis plants were recovered. Thus he has not complied with the provisions ofSection 100(4) of Code of Criminal Procedure, 1973. Even then they have notsupported him. Mohan Nanda (PW-3) has clearly statedthat no cannabis plant was seized from the courtyard of the appellant. Thus he has not complied with the provisions ofSection 100(4) of Code of Criminal Procedure, 1973. Even then they have notsupported him. Mohan Nanda (PW-3) has clearly statedthat no cannabis plant was seized from the courtyard of the appellant. Anotherseizure witness Munna @ Gopal Singh has not been examined and given up by the prosecution. The evidence ofthis witness was material in such circumstance when another seizure witness wasnot supporting the prosecution case. Hence adverse inference may be drawnagainst the prosecution in withholding the evidence of such material witness. 9.No doubt Rajesh Singh Baghel (PW-2) has given theevidence that 45 cannabis plants were seized from the courtyard of theappellant and the sample was taken out of it which was sent to FSL Sagar , but no report has been received from FSL Sagar , therefore his fact has not been established for wantof such report that the seized articles were cannabis plants. Apart from it theprosecution has not produced the articles before the witnesses during the courseof trial, hence the possibility of causing prejudice to appellant cannot beruled out. 10.In the case of Jitendra and Another vs. State of M.R ,2004 SCC ( Cri .) 2028 = 2004 (1) ANJ( SC)101, the Apex Court hasheld thus: "5.The evidence to prove that charas and ganja wererecovered from the possession of the accused consisted of the evidence of thepolice officers and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apartfrom the testimony of Rajendra Pathak (PW-7), Angad Singh (PW-8) and Sub-Inspector D.J. Rai (PW-6), there is no independent witness as to therecovery of the drugs from the possession of the accused. The charas and ganja alleged to have been seized from thepossession of the accused were not even produced before the Trial Court, so asto connect them with the samples sent to the Forensic Science Laboratory. Thereis no material produced in the Trial, apart from from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of theaccused or that the samples sent to the Forensic Science Laboratory were takenfrom the drugs seized from the possession of the accused. Thereis no material produced in the Trial, apart from from the interested testimony of the police officers, to show that the charas and ganja were seized from the possession of theaccused or that the samples sent to the Forensic Science Laboratory were takenfrom the drugs seized from the possession of the accused. Although the HighCourt noticed the fact that the charas and ganjaalleged to have been seized from the custody of the accused had neither beenproduced in the Court, nor marked as articles, which ought to have been done,the High Court brushed aside the contention by observing that it would notvitiate the conviction as it had been proved that the samples were sent to theChemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, " non-production of these commodities before the Court is notfatal to the prosecution. The defence also did notinsist during the trial that these commodities should be produced". TheHigh Court relied on Section 465, Cr.P.C . to holdthat non-production of the material object was a mere procedural irregularityand did not cause prejudice to the accused. 6.In our view, the view taken by the High Court is unsustainable. In the trial itwas necessary for the prosecution to establish by cogent evidence that thealleged quantities of charas and ganja were seizedfrom the possession of the accused. The best evidence would have been theseized materials which ought to have been produced during the trial and markedas 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, particularlywhere the offence is punishable with a stringent sentence as under the NDPSAct. In this case, we notice that panchas have turnedhostile so the panchnama is nothing but a documentwritten by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. Itwas suggested to the prosecution witnesses that the landlady of the house incollusion with the police had lodged a false case only for evicting the accusedfrom the house in which they were living. Finally, we notice that theInvestigating Officer was also not examined. The suggestion made by the defence in the cross-examination is worthy of notice. Itwas suggested to the prosecution witnesses that the landlady of the house incollusion with the police had lodged a false case only for evicting the accusedfrom the house in which they were living. Finally, we notice that theInvestigating Officer was also not examined. Against this background, to saythat, despite the panch witnesses having turnedhostile, the non-examination of the Investigating Officer and non-production ofthe seized drugs, the conviction under the NDPS Act can still be sustained, isfarfetched." 11.This Court also in the case of Liyaqat Ali vs. Stateof Madhya Pradesh, 2009 Cr.L.R . (MP) 24 and Kanwarlal vs. State of Madhya Pradesh, 2009 Cr.L.R . (MP) 27 relying upon the decision of the Apex Courtin the case of Jitendra (supra) has held that theprosecution did not produce the seized articles at the time of recording thestatements of the prosecution witnesses, hence the appellant was entitled toacquittal. 12.The prosecution case suffers from the aforesaid infirmities, therefore the alleged offence has not been proved beyond reasonable doubtagainst the appellant. Finding of guilt by the Court below is erroneous whichdeserves to be set aside and the appellant is entitled for acquittal. 13.Consequently, the appeal succeeds and is allowed. Conviction and sentencepassed by the Court below are hereby set aside. He is acquitted from thecharges leveld against him. He is on bail, his bailbonds are discharged. Fine amount, if deposited, be refunded to him as per law.