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Madhya Pradesh High Court · body

2010 DIGILAW 936 (MP)

Hujul Akbar v. State of M. P.

2010-09-15

I.S.SHRIVASTAVA

body2010
JUDGMENT I.S. Shrivastava, J. 1. This appeal has been preferred by the Appellants being aggrieved by the judgment dated 01.09.2008 passed by the Court of Shri P.S. Patidar, Special Judge (N.D.P.S. Act), Ratlam, Distt. Ratlam in Special S.T. No. 22/2002 by which the Appellants Hujul Akbar and Yusuf have been convicted under Section 8/21 (c) of the N.D.P.S. Act. and sentenced to rigorous imprisonment of ten years with fine of Rs. 1,00,000/- to each and in default of payment of fine to undergo further rigorous imprisonment of one year to each. 2. According to the prosecution story, Shri Sanjay Mane S.P. Distt. Ratlam received an information on 13.04.2002 on telephone that Truck No. TN60/Z/2840 on which "Jaylaxmi" word is written in English is coming from the side of Mandsaur along with Heroin. It is due to be delivered to smuggler Mohd. Riyal and Nandsen at Indore, hence he prepared a panchanama about information of the informer in presence of Constable Yogesh Pandey and Sainik Ajay Sharma. They were apprised with the information of the informer and a copy of this panchanama was sent to Station Incharge of Police Station Station Road, ratlam. Thereafter Sanjay Mane also sent the report to I.G.,Ujjain. Shri K.K. Upadhyay, Incharge of the Police Station Station Road, Ratlam on receipt of information from the S.P. sent the panchanama Ex.P/1 to C.S.P.,Ratlam for information and he also sent the copy of the information sent by S.P. to I.G. through Constable Ismail. Thereafter Shri K.K. Upadhyay (PW-28) along with force reached the spot near Salakhedi Police Chowki on Mhow Neemuch Highway Road. On arrival of the Truck No. TN60/Z/2840, it was intercepted. In this Truck, driver Yusuf, Liyaqat and Hujul Akbar resident of Tutikoran(Tamil Nadu) were found. They were apprised with the information of the informer and notice under Section 50 of the N.D.P.S. Act was served on them and after obtaining their consent for search the Truck was searched. In the Truck a secret cavity was found behind the seat of the driver. It was containing three chambers in which 6 polythene bags of Heroin were found. Each bag was containing 3Kg. Heroin. In all 18Kg. Heroin was found. The polythene bag was marked as Article A to Article F. Two samples each of 5gm. was prepared from each polythene bag. All the 12 samples were marked as Article Al A2 to F1 F2. Each bag was containing 3Kg. Heroin. In all 18Kg. Heroin was found. The polythene bag was marked as Article A to Article F. Two samples each of 5gm. was prepared from each polythene bag. All the 12 samples were marked as Article Al A2 to F1 F2. The property was sealed and seized on the spot. Other panchanamas were prepared and the Appellants were arrested. During investigation it was found that accused Mohd. Shakir was in the Indore Jail. He has conspired in this respect. He was brought to court by Constable Sohanlal, Kailash and Rakesh. The guard of the jail Saiyad Israr AH was also indulged in conspiracy with accused persons. He used to provide the mobile and allowed the accused Appellants to talk on mobile set with other accused persons and the other guards of the jail Constable Sohanlal, Kailash and Rakesh were also found involved in this conspiracy. Hence, challan against all these persons was filed. Accused Liyaqat was declared absconding from 05.04.2003. The samples Article Al to F1 were sent to FSL, Indore by the report of which the presence of Heroin was confirmed. Hence after completion of the investigation the challan was filed against the Appellants and other accused persons. 3. After trial the Appellants Hujul Akbar and Yusuf have been convicted under Section 8/21(c) of the N.D.P.S. Act and the other accused persons were acquitted. Hence, this appeal. 4. It has been argued on behalf of the Appellants that the case was not proved against them. Out of the independent witnesses Sanjay Singh was not examined and Virendra Singh(PW-2) was partially examined and he did not turn up for cross-examination. Hence, his statement was not read in evidence. The conscious and exclusive possession of the Appellants with the seized property was not proved. The Appellants were resident of Tamil Nadu and they were not conversant with the Hindi language and the notice under Section 50 of the N.D.P.S. Act was given in Hindi language. All the proceedings were taken up in the Hindi Language. There was non-compliance of Section 55 of the N.D.P.S. Act. It was not proved that which accused entered in the Truck and discovered the Heroin for seizure. The property was deposited in the court after a delay of 5 months. There were serious contradictions in the statement of K.K. Upadhyay(PW-28) Seizing Officer and R.R.S. Parihar(PW-. There was non-compliance of Section 55 of the N.D.P.S. Act. It was not proved that which accused entered in the Truck and discovered the Heroin for seizure. The property was deposited in the court after a delay of 5 months. There were serious contradictions in the statement of K.K. Upadhyay(PW-28) Seizing Officer and R.R.S. Parihar(PW-. 36) C.S.P., hence the appeal be allowed. 5. It has been argued on behalf of the Respondent that the Appellant has been found guilty for henious offence on the basis of the evidence produced before the trial court, therefore, the appeal being devoid of merit be dismissed accordingly. 6. Considered the arguments. Record of the trial court perused. 7. The proceedings were taken up by Shri K.K. Upadhyay(PW-28) vide panchanama Ex.P/2 to Ex.P/16 before the independent witnesses Virendra Singh(PW-2) and Sanjay Singh. Sanjay Singh has not been examined at the time of the trial. Virendra Singh was examined as P W-2 but after the partial cross-examination he did not turn up for further cross-examination, despite repeated opportunities and after issuance of warrants his presence could not be ascertained, hence vide order dated 18.07.2008 it was ordered that his statement shall not be read in evidence. In this way, the proceedings taken up by the Seizing Officer vide panchanama Ex.P/2 to Ex.P/16 was not proved by the independent witnesses. Seizure memo Ex.P/12 was also not proved. Therefore, the Appellants were not liable to be convicted. 8. It has been held in the case of Ritesh Chakarvartr v. State of M.P. (ACR 2 2006 362) and Bholaram Kushwah v. State of M.P. (2001 (1) ERF 160), that the independent witnesses of the seizure memo have not supported the fact of seizure, hence the seizure panchanama has not been proved. 9. In the case of Jitendra and Anr. v. State of M.P. reported in 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 PW-7,Angad Singh 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 panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak PW-7,Angad Singh 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. 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 Narcotic Drugs and Psychotropic Substances Act". The same view has been adopted by the Apex Court in the case of Noor Aga v. State of Punjab (2008 (4) AD Cri. (SC) 337). In Abdul Gani v. State of M.P. 2005 (2) JLJ 363 as well as in the case of Laxminarayan v. State of M.P. ( 2009 (2) JLJ 148 ) the same view has been adopted. Therefore, I conclude that the seizure panchanamas were not proved. 10. From perusal of the seizure memo Ex.P/12 it reveals that the seizure was made from all the 3 accused persons Liyaqat, Yusuf and Hujul Akbar. It has been argued that the statement of K.K. Upadhyay(PW-28) and R.R.S. Parihar(PW-36) are discrepant with each other. Considered the arguments. Therefore, I conclude that the seizure panchanamas were not proved. 10. From perusal of the seizure memo Ex.P/12 it reveals that the seizure was made from all the 3 accused persons Liyaqat, Yusuf and Hujul Akbar. It has been argued that the statement of K.K. Upadhyay(PW-28) and R.R.S. Parihar(PW-36) are discrepant with each other. Considered the arguments. Shri R.R.S. Parihar(PW-36) has deposed in para No. 4 that at the time of the search of the Truck accused Liyaqat after consultation with other accused said that he will recover the goods and then he by lifting the long seat behind the driver seat took out and handed over the six packets to police which contained Heroin. He has further deposed that it is correct to say that two other accused persons were standing near the police peoples. Shri K.K. Upadhyay(PW-28) in this respect has deposed in para 27 of his cross-examination that at the time when C.S.P. reached on the spot two persons were with him below the vehicle and one person perhaps Liyaqat was sitting in the vehicle. He does not remember today that who was sitting and who was standing with him below the truck. The procedure of seizure started after the arrival of C.S.P. In this way, the statement of both these witnesses, who are members of the raid party is discrepant in this manner but one thing is confirmed that two persons were standing below the Truck with the police and one person entered the cabin of the Track where the secret cabin was opened and then the contraband article was recovered from it. Since, the cabin behind the seat of the Truck was a secret cabin hence caution was to be taken by the police that really who was the person who was knowing the secret cabin where the Heroin was hidden. The person from the possession it was recovered was the actual culprit but in seizure memo Ex.P/12 the seizure has been wrongly shown in the name of all the three accused persons against the real position. From the statement of Shri R.R.S. Parihar (PW-36) it is clear that it was the Liyaqat, who handed over the Heroin to police was in the conscious possession of the Heroin. He is absconding. Under these circumstances, it was not proved that the seizure was made from the Appellants Hujul Akbar and Yusuf. From the statement of Shri R.R.S. Parihar (PW-36) it is clear that it was the Liyaqat, who handed over the Heroin to police was in the conscious possession of the Heroin. He is absconding. Under these circumstances, it was not proved that the seizure was made from the Appellants Hujul Akbar and Yusuf. Hence, in the light of law laid down in Mohd. Aslam Khan v. NCB AIR 1996 SC 3033 and Ismile Khan v. State of Gujrat 2001 1 EFR 6, Appellants were not liable to be convicted. 11. It has also been argued by the Appellants that Appellants were not knowing Hindi and they are South Indians. The whole of the proceedings were taken up in Hindi language, hence the Appellants have wrongly been roped in this case. 12. Shri R.S. Parihar (PW-36) C.S.P. has deposed in cross-examination in para 12 that Shri K.K. Upadhyay told him that they are Madrasi (South Indians) and the Translator was not called. At that time accused Hujul Akbaf and Yusuf were not understanding Hindi or they were not speaking in it. Liyaqat was speaking Hindi. Shri K.K. Upadhyay(PW-28) in para 29 has deposed that Liyaqat and Hujul were knowing Hindi speaking. They were not knowing writing in Hindi. Their consent for personal search under Section 50 of the Act was recorded through Sanjay with the help of Liyaqat. The consent of Yusuf was received through Liyaqat and which was written by Sanjay on the dictation of Liyaqat. He put the question in Hindi to Yusuf then Liyaqat asked it in Tamil from Yusuf and he replied in Tamil and then Sanjay wrote the consent. This shows that all the persons were not knowing the writing of Hindi. Sanjay was not examined in this respect, hence the consent for the personal search of accused persons was not proved. The investigation in this respect was defective. The panchanamas were to be prepared in the same language which was understandable to the accused persons and their true translation in Hindi or English must have also been attached to it. Under these circumstances, in view of the law laid down in Ramaswami v. State of M.P. 2005 (1) MPHT 276 and Uma v. State of M.P. 2005 (1) MPHT233 the Appellants were not liable to be convicted. 13. It has been argued that there is non-compliance of the Section 55 of the N.D.P.S. Act. Under these circumstances, in view of the law laid down in Ramaswami v. State of M.P. 2005 (1) MPHT 276 and Uma v. State of M.P. 2005 (1) MPHT233 the Appellants were not liable to be convicted. 13. It has been argued that there is non-compliance of the Section 55 of the N.D.P.S. Act. The property was not resealed at the time of its deposition in the Malkhana of the Police Station. Considered the arguments. Shri Ramnarayan(PW-5) Head Constable deposited the property in the Malkhana. He has not deposed that the property was resealed before its deposition. Shri K.K. Upadhyay(PW-28) has deposed that on returning to the Police Station he again sealed the property and then handed over it to Head Constable Mohrir for its deposition in the Police Station. But this procedure has wrongly been adopted. The property was to be resealed by the Incharge of the Malkhana with his personal seal which was not done. It is not required that Seizing Officer shall reseal it. Hence, there was non-compliance of Section 55 of the N.D.P.S. Act. Hence, the possibility of tempering cannot be ruled out. 14. It has also been argued that the property was sent to court with a delay of 5 months which has not been explained. It is also notable that in the Malkhana Register Ex.P/19 there is no entry that the panchanama impression seal was deposited in the malkhana. In this respect Shri Ramnarayan (PW-5) has deposed that there is no entry in the Malkhana Register about the deposition of the seal and the impression of the seal. He has further deposed that the property was deposited on 18.09.2002 in the court. Why there is delay of 5 months, no explanation has been given. Under these circumstances, there was non-compliance of Section 55 of the N.D.P.S. Act and the possibility of tempering cannot be ruled out. 15. Therefore on the basis of the above discussion, I am of the view that at the time of the evidence before the trial court the seizure memo and other panchanamas were not supported by the independent witnesses. The conscious possession of the Appellants over the contraband item Heroin was not proved. For personal search there was non-compliance of Section 50 of the N.D.P.S. Act. The conscious possession of the Appellants over the contraband item Heroin was not proved. For personal search there was non-compliance of Section 50 of the N.D.P.S. Act. The Appellants were South Indians and not knowing Hindi language but no Translator was procured to complete the proceedings and on the basis of the papers prepared in Hindi the Appellants cannot be roped in the case. There was non-compliance of Section 55 of the Act and there is no explanation of 5 months delay in sending the seized property to court. The impression of seal was not deposited in the Malkhana. Under these circumstances, the Appellants are not liable to be convicted. Hence, the appeal deserves to be allowed. 16. Therefore, the appeal is allowed and the Appellants Hujul Akbar and Yusuf are acquitted from the charges under Section 8/21 (c) of the N.D.P-S. Act. They be released, if not required in any other offence. Fine if deposited be returned to them.