Research › Search › Judgment

Madhya Pradesh High Court · body

2011 DIGILAW 1024 (MP)

State of M. P. v. Bhagwan Lal Miscellaneous

2011-08-30

M.C.GARG

body2011
ORDER 1. This order shall dispose of an application filed by the applicant/State under section 378 (3) of Code of Criminal Procedure seeking leave to file an appeal against the judgment delivered by the Special Judge, NDPS Act, Mandsaur in Special Sessions Case No. 100 of 2008 on 13.7.2010 whereby, the non-applicant has been acquitted from the charges against him under section 8/5 of the NDPS Act. 2. Briefly stated, the facts of the case are that on 6.09.2005 on receipt of information from the informant and after joining witnesses the raiding party apprehended respondent Bhagwan Lal, who was driving the Truck bearing Registration No. RJ-14-G-4463, was found carrying 6355 kgs of Poppy Straw in 55 bags without any valid licence or permission. Thereafter, after taking only two samples (500 grams each) from only two bags out of the seized bags, the remaining seized contraband material was sealed and deposited in Police Station concerned and FIR was registered by ASI-DC Nirwan. After investigation, challan was filed. However, the Special Judge acquitted him of the charges and it is against that order, the applicant-State has filed this application, seeking leave to file an appeal. 3. It is the submission of the applicant that the order impugned suffers from meterial irregularities, both, on facts and in law. It is submitted that benefit given by the Court below to the non-applicant herein, is not justified. 4. It is also submitted, that even the judgment of the Court below with regard to mishandle the seized contraband article as well as not informing the immediate Supetior Officer, is also not sustainable. 5. I have heard the learned counsel appearing for the applicant. 6. In this case, the Court below has acquitted the non-applicant of the charges levelled against him because, it has been found that there was a violation 0 section 52A of the NDPS Act during the course of the investigation. There are infirmities also as noticed by the Court below in the impugned judgment which reflects that even provisions of section 42 as well as that of section 50 of the NDPS Act were not complied with. Thus, the Court below has found that in the facts of the case, once there was violation of mandatory provisions of the Act, the non-applicant could not have been convicted and was entitled to acquittal and thus, the order was passed in his favour. 7. Thus, the Court below has found that in the facts of the case, once there was violation of mandatory provisions of the Act, the non-applicant could not have been convicted and was entitled to acquittal and thus, the order was passed in his favour. 7. Before going further, I may take note of the reasoning given by the Court below in having coming to the aforesaid conclusion regarding violation of provisions of the NDPS Act in paragraphs 20 and 21 of the impugned judgment, which reads thus :- 20- fuf’pr gh izdj.k esa tIr’kqnk ewy laifRr dks ftldk vfLrRo gks U;k;ky; ds le{k izLrqr ugha fd;k x;k tgka ,d vksj vfHk;kstu ds fgrksa ds foijhr vkSj xaHkhj :i ls izHkkfor djrk gS ogha nwljh vksj U;k;ky; ds bl funsZ’k dk o ,u-Mh-ih-,l- ,DV 1985 mlds varxZr fufeZr fu;e vkSj dsUnzh; ‘kklu ds LFkk;h vkns’k 1@89 dk iqfyl o vfHk;kstu ds mRrjnkf;Ro dk xaHkhj mYya?ku fn[kkbZ nsrk gS fd izdj.k esa tIr’kqnk laifRr dks fufgr lhu ij vkSj lqjf{kr lhu ij ugha j[kk x;kA oLrqr% U;k;ky; ds le{k ;g fLFkfr Hkh ugha gS fd dfFkr :i ls laifRr vkSj ftruh ek=k esa laifRr vfHk;qDr ls ifjofgfr fd;s tkrs le; tIr gksuk dgk tk jgk Fkk okLro esa ogh laifRr Fkkus ij j[kh Hkh x;h FkhA mijksDr fLFkfr] bl fLFkfr vkSj fof/k vkSj fu;eksa ds mYya?ku esa gS fd ekSds ij Vªd esa ls cksfj;k o lkeku rksyus okys gEekyksa esa ls ifjf{kr tkfdj v-lk- 9 vkSj ‘ks”k eq[R;kj v-lk-10 Fkkus ij Vªd ls 135 cksfj;ka Hkjh gqbZ MksMkpwjk vkSj ‘ks”k cksfj;ksa esa Hkjk pkoy dk pwjk rks gksuk crk;k gS ysfdu ekSds ij mifLFkr O;fDr ;k Vªd dk pkyd vkjksih Fkk ;k dkSu Fkk bl ckjs esa dksbZ izdk’k ugha Mkyrs gSaA 21- bl izdkj Åij dh xbZ ppkZ ls izdV gS fd ;|fi vfHk;kstu ds }kjk bl izdj.k esa vR;ar cM+h ek=k 63 fDaoVy 55 fdyks eknd inkFkZ MksMkpwjk Vªd esa voS/k :i ls j[kdj ifjofgr djrs gq, ys tk jgk Fkk fdarq okLro esa bl vijk/k dks fl) fd;s tkus gsrq ftu vkKkid fu;eksa fof/k o LFkk;h vkns’kksa ds ikyu dh vis{kk Fkh mldh iwfrZ vfHk;kstu }kjk ugha dh x;h gSA vuqla/kku ds vukokfopkj.k esa Hkh jkstukepk ds vko’;d nLrkostksa dks izLrqr o fl) ugha djrs gq,] /kkjk 52 , dh dk;Zokgh dks fof/kor o lE;d :i ls laiUu ugha djokrs gq;s vkSj mls U;k;ky; esa izekf.kr ugha djokrs gq, vfHk;kstu dh vksj ls vusd dfe;ka vkSj =qfV;ka jgh gSA ekuuh; U;k;ky;ksa dk Li”V er gS fd vkKkid izko/kkuksa ds mYya?ku dh fLFkfr dk ,d ek= ifj.kke nks”keqfDr ds :i esa gksxk blfy;s orZeku ekeys esa Hkh orZeku iz’uxr vijk/k vkjksih ds fo:) rF;kRed :i ls izekf.kr ugha dgk tk ldrk gSA 8. A reading of the aforesaid paragrpahs of the judgment goes to show, that the concerned authority did not take the samples from each bag and after taking samples the remaining contraband article was neither sealed nor was kept properly. 9. It is also apparent, that the information given to the senior officer was also not proper as it was to be given to just Superior Officer immediately which was not done by the concerned authority in the present case and thus, it shows the violation of the section 42 of the NDPS Act. 10. In the case of Noor Aga v. State of Punjab and another reported in 2008 (2) EFR 707 the Hon'ble Supreme Court has taken a strong view with regard to non-compliance of statutory provisions of the NDPS Act. Some benevolent observations were made by the Apex Court in respect of violation of statutory provisions viz a viz the right of accused who is presumed to be innocent unless his guilt is proved in accordance with law are reproduced hereunder :- "BURDEN OF PROOF The provisions of the Act and the punishment prescribed therein being indisputably stringent flowing from elements such as a heightened standard for bail, absence of any provision for remissions, specific provisions for grant of minimum sentence, enabling provisions granting power to the Court to impose fine of more than maximum punishment of Rs. 2,00,000/- as also the presumption of guilt emerging from possession of Narcotic Drugs and Psychotropic substances, the extent of burden to prove the foundational facts on the prosecution, i.e', proof beyond all reasonable doubt' would be more onerous. A heightened scrutiny test would be necessary to be invoked. It is so because whereas, on the one hand, the Court must strive towards giving effect to the parliamentary object and intent in the light of the international conventions, but on the other, it is also necessary to uphold the individual human rights and dignity as provided for under U.N. Declaration of Human Rights by insisting upon scrupulous compliance of the provisions of the Act for the purpose of upholding the democratic values. It is necessary for giving effect to the 'concept of wider civilization'. The Courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. It is necessary for giving effect to the 'concept of wider civilization'. The Courts must always remind itself that it is a well settled principle of criminal jurisprudence that more serious the offence, the stricter is the degree of proof. A higher degree of assurance, thus, would be necessary to convict an accused. In State of Punjab v. Baldev Singh. (1999) 3 SCC 977, it was stated: "It must be borne in mind that severer the punishment, greater has to be the care taken to see that all the safeguards provided in a statute are scrupulously followed." [See also Ritesh Chakravarty v. State of Madhya Pradesh, 2007 (1) JLJ 239 = JT 2006 (12) SC 416]. It is also necessary to bear in mind that superficially a case may have an ugly look and thereby, prima fade, shaking the conscience of any Court but it is well settled that suspicion, however, high may be, can under no circumstances, be held to be a substitute for legal evidence. Sections 35 and 54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is "preponderance of probability" on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established." 11. As stated above, the judgment of the trial Court establishes that in this case the main provisions of NDPS Act which are mandatory in nature, have not been complied with, the benefit given to the non-applicant/accused person by the Court below cannot be faulted with. 12. As stated above, the judgment of the trial Court establishes that in this case the main provisions of NDPS Act which are mandatory in nature, have not been complied with, the benefit given to the non-applicant/accused person by the Court below cannot be faulted with. 12. Similar view has been taken by the Punjab and Haryana High Court in the case of Hoshiar Singh v. State of Haryana reported in 2008 (2) EFR 74. 13. Similar is the view taken by the Hon'ble Supreme Court in the case of Directorate of Revenue and another v. Mohammad Nisar Holia reported In (2008) 1 SCC (Cri) 415. 14. Even earlier the Hon'ble Supreme Court has taken a view with regard to non-compliance of mandatory provisions of section 42 in the case of State of West Bengal and others v. Babu Chakarborthy reported in III (2005) CCR 49 (SC). 15. Even this Court in the case of Kanwarlal v. State of Madhya Pradesh reported in 2009 (1) EFR III has taken a similar view. 16. In any case, it is proved that there is violation of mandatory provisions of the NDPS Act. Firstly the information has not been sent to the Superior Officer, the public witnesses have not supported the case of the prosecution, the proceedings have been taken much delayed, the seized article were not properly kept and deposited, the samples were not taken from each seized bag, etc. 17. The violations which are writ large have been referred to above in the cases relied upon by the applicant referred supra. 18. In these circumstances, when two views are possible and one which goes in favour of the accused and is supported by the judgments of the apex Court wherein, serious view has been taken for non-compliance of the mandatory provisions of the law, the submission made by the learned Government Advocate cannot be sustained. 19. Accordingly, the application is dismissed.