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Madhya Pradesh High Court · body

2010 DIGILAW 863 (MP)

State of M. P. v. Bardichand

2010-08-26

I.S.SHRIVASTAVA

body2010
ORDER 1. This appeal under section 378, CrPC has been preferred by the appellant State being aggrieved by the judgment dated 9.4.1996 passed by the Court of Shri Premkant Dube, Sessions Judge, Mandsaur in Special Case No. 49/94, by which respondent Bardichand has been acquitted from the charge under section 8/18 of the NDPS Act (for short 'the Act'). 2. According to prosecution story on 19.3.1994 Hakim Singh Chouhan, S.O. Police Station, Piplyamandi, received an information from the informer that accused Bardichand in the night will go with the opium to sell it from Gram Amboa to Dhuriya Khali. Hence, a Panchnama about the information of the informer was prepared and Superior Officers were informed. Thereafter, raid party along with independent witnesses reached the spot Dhuriya Khali. On arrival of the accused Badrichand he was intercepted and apprised with the information of the informer and after obtaining his due consent, he was searched and from a bag contained by him, 5 kgs. of opium was seized from which two samples each of 30 gms. were prepared and marked as articles A1, A2 and remaining quanitity was sealed in packet and market as article A. All the packets and samples were sealed and seized on the spot. Other Panchanama was prepared and accused was arrested on the spot and raid party returned to police Station. FIR was registered at Crime No. 48/94. One sample article A1 was sent to FSL, Indore by the report of which sample was confirmed as containing opium. Hence, after completion of the investigation, challan was filed and vide impugned judgment respondent was acquitted from the charges levelled against him. Hence this appeal has been preferred. 3. It has been argued on behalf of the appellant State that the prosecution case was proved against respondent on the basis of evidence of H.C. Chouhan (PW 7) and head Constable Dashrath Singh (PW 5); hence this appeal should be allowed. 4. Considered the arguments. Record of the trial Court perused. 5. The independent witness of Panchnama Exh. P-3 to Exh. P-13 were Mohemmad (PW 2) and Babulal (PW 4). Both these witnesses have not supported prosecution story. They were hostile. According to Mohd. (PW 2) he had no work to go to Police Station Piplyamandi 1.1/2 years before. Police Officer did not tell him anything. He got his signatures on Exh. P- 3 to Exh. P-13 at Oak Bungalow. P-13 were Mohemmad (PW 2) and Babulal (PW 4). Both these witnesses have not supported prosecution story. They were hostile. According to Mohd. (PW 2) he had no work to go to Police Station Piplyamandi 1.1/2 years before. Police Officer did not tell him anything. He got his signatures on Exh. P- 3 to Exh. P-13 at Oak Bungalow. He does not know him. It is wrong to say that opium was seized from accused before him. In the evening at about 5.00-6.00 p.m. police called him at Dak Bungalow and said to sign on papers. Therefore, he signed on the papers. Babulal (PW 4) deposed that 6-7 months before he went to Pipliyamandi Police Station in the evening. Police said to him that they have seized opium and asked him to sign on papers. Hence, he signed on Exh. P-3 to Exh. P-13. Opium was not seized from the accused before him. He was not informed with the information of the informer. He signed the papers at the instance of police. He did not see the opium and accused. He has denied with his police statement (Exh. P-15). Mohemmad (PW 2) has denied with his police statement (Exh. P-14). In this way both these witnesses have not supported the prosecution case and the fact of seizure of 5kg. opium from accused. 6. Dashrath (PW 5) Head Constable, the member of raid party has deposed that 5 kgs. of opium was seized from the possession of the accused Bardichand. Hakim Singh Chouhan (PW 7) who seized the opium and conducted the whole proceedings, has deposed that when he weighed the opium it was 4.900 kg. In this way he has not supported the quantity of opium 5 kg. which was seized by him according to FIR (Exh. P-17) in which Panchnama about seizure of 5kg. of opium was seized in a packet and two samples of 30 gms. each was seized in sample packet. Dashrath (PW 5) has also deposed that seized opium was 5kg. Hence, fact that 5kg. opium was seized, has not been supported by this witness Hakim Singh Chouhan (PW 7). There is material discrepancy in the statement of this witness about the actual quantity of opium. Hence, due to this difference in the statement of members of raid party, their evidence is not reliable and not supporting to each other. 7. Hence, fact that 5kg. opium was seized, has not been supported by this witness Hakim Singh Chouhan (PW 7). There is material discrepancy in the statement of this witness about the actual quantity of opium. Hence, due to this difference in the statement of members of raid party, their evidence is not reliable and not supporting to each other. 7. At the time of evidence packet of bulk quantity of opium and sample and remainant sample was not produced before the Court. In absence of bulk quantity packet of opium, it cannot be said that the samples were prepared from it and the seizure memo (Exh. P-9) was not legally proved. The independent witnesses Mohemmad (PW 2) and Babulal (PW 4) have turned hostile and the statement of Seizing Officer Hakim Singh Chouhan (PW 7) is different with respect to quantity of the opium. Hence, seizure memo (Exh. P-9) was not proved. 8. In the case of Ritesh Chakraworti v. State of M.P 2007 (1) JLJ 239 (SC) = ACR II (2006) 362 and Bholaram Kushwaha v. State of M.P., 2001 (1) BLJ 33 (SC) = 2001 (1) EFR 160, it has been held that the independent witness of the seizure memo has not supported the fact of seizure, hence, the seizure Panchnama has not been proved. 9. In the case of Jitendra and another v. State of M.P 2004 (2) Vidhi Bhaswar 30 (SC) = (2004)] 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 (PW 7), Angadsingh (PW 8) and Sub-Inspector D.J. Raj (PW 6), 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 charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science Laboratory were taken from the 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 ganja and charas were seized from the possession of the 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 Panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with stringent sentence as under the NDPS Act. " 10. Same view has been adopted in the case of Abdul Gani v. State of M.P. 2005 (2) JLJ 363 , Noor Aga v. State of Punjab, AIR 2009 SC (Suppl.) 852 and Laxminarayan v. State of M.P. 2009 (2) JLJ 148 . Hence, the seizure memo was not proved. 11. Therefore, on the basis of evidence, seizure memo has not been proved and the respondent was not liable to be convicted. 12. As regards compliance of section 55 of the Act is concerned, there is no evidence that the seizure property was deposited in the Malkhana and resealed before deposition in the Malkhana. Hence, compliance of section 55 of the Act was nor proved. Hence, respondent was not liable to be convicted as held in case of Thandiram v. State of Haryana, 2000 SCC (Cri.) 189 and Valsala v. State of Kerala, 1993 SCC (Cri.) 1082, appellant is liable to be acquitted. 13. On the basis of above discussion, I am of the opinion that respondent was not liable to be convicted on the basis of evidence produced before the trial Court. Hence, there is no ground to interfere in the judgment passed by the trial Court. Hence, this appeal being devoid of merits, is dismissed accordingly.