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Madhya Pradesh High Court · body

2011 DIGILAW 1201 (MP)

Ram Narayan Raikwar v. Stale of M. P.

2011-10-19

RAKESH SAKSENA

body2011
JUDGMENT : Appellant has filed this appeal against the judgment dated 17-6-1996 passed by I Additional Sessions Judge and Special Judge, Satna in Special Case No. 114/93 convicting him under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and sentencing him to rigorous imprisonment for 6 month with fine of Rs. 300/-. In default of payment of fine further rigorous imprisonment for one month. 2. In short, prosecution case is that on 10-11-1993, ASI of Police Station, Nagod. District Satna, Rajmani Singh received information from an informer that accused who was running a tea and betel shop near the bus stand crossing Nagod, was selling Ganja illegally. Rajmani along with Head Constables Ramsundar Shukla and Jai Singh reached at his shop. After giving his own search and obtaining the consent of the accused, he searched the shop in presence of Sharad Singh and Indrujit Singh and recovered a paper packet containing 25 grams of Ganja. Sifice accused had no licence for possessing Ganja, he seized the said Ganja and arrested the accused. Me recorded the First Information Report (Exh. P-11) under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act (for brevity 'NDPS Act') and sent a sample of seized contraband to Forensic Science Laboratory for chemical examination. On receiving the FSL Report (Exh. P-10) that the seized article was Ganja, he filed the charge-sheet before the Court. 3. Learned Special Judge framed charge under Section 20 of the NDPS Act. The accused denied the charge and pleaded false implication. According to him, Inspector Rajmani and other police officers used to consume tea and betels from his shop without payment. Whenever he demanded money for the same they threatened him to see. 4. Prosecution, to substantiate its case, examined Sharad Singh (P.W. 1), Indrajit Singh (P.W. 2) and Inspector Rajmani (P.W. 4) for proving the search and seizure of the contraband. Patwari Prabhakar Pandey (P.W. 3) was examined to prove the map about the location of the shop. In his defence, accused examined Safi Ahmad (D.W. 1). Independent witnesses Sharad Singh (P.W. 1) and Indrajit Singh (P.W. 2) did not support the prosecution case, however, relying on the evidence of Inspector Rajmani, learned Special Judge holding the appellant guilty, convicted him under Section 20 (b) (i) of NDPS Act and sentenced him as mentioned above. In his defence, accused examined Safi Ahmad (D.W. 1). Independent witnesses Sharad Singh (P.W. 1) and Indrajit Singh (P.W. 2) did not support the prosecution case, however, relying on the evidence of Inspector Rajmani, learned Special Judge holding the appellant guilty, convicted him under Section 20 (b) (i) of NDPS Act and sentenced him as mentioned above. Aggrieved by his conviction and sentence, accused/appellant has filed this appeal. 5. Learned Counsel for the appellant submitted that it was a clear case of false implication of accused by Inspector Rajmani because he was annoyed with him on his demanding money for tea and betels consumed by him frequently. He submitted that the independent witnesses Sharad Singh and Indrajit Singh did not support the prosecution case. No other local shopkeeper was made witness of the search and seizure. The provisions of Section 42 of the NDPS Act were not complied. No information received by informer was recorded nor any intimation in this regard was sent to any Superior Officer. No other constable or other senior officer was examined in the Court. The Ganja, allegedly seized from the shop of accused, was not produced in the Court. In these circumstances, he submitted that the Trial Court committed error in convicting the accused. On the other hand, learned Panel Lawyer submitted that the evidence of Inspector Rajmani (P.W. 4) was reliable. His evidence was corroborated by the seizure memorandum (Bxh. P-1, Exh. P-2, Exh. P-3) and FSL report (Exh. P-10), whereby it was confirmed that the seized article was Ganja. 6. I have heard the learned Counsel for the parties and carefully perused the impugned judgment,evidence and record of the case. 7. On perusal of the evidence of Sharad Singh (P.W. 1) and Indrajit Singh (P.W. 2), it is apparent that they were taxi drivers who used to come at the bus stand. It was admitted by Sharad Singh and also by Inspector Rajmani Singh (P.W. 4) that there were number of other shops near the shop of accused, but it appears strange that no shopkeeper from those shops was made witness of search and seizure. Sharad Singh (P.W. 1) stated that police raided the shop of accused and sei/ed a paper packet, but its seizure memorandum (Exh. P-1) was made at the police station. He stated that no search of the person of accused was taken before him. Sharad Singh (P.W. 1) stated that police raided the shop of accused and sei/ed a paper packet, but its seizure memorandum (Exh. P-1) was made at the police station. He stated that no search of the person of accused was taken before him. lie denied that 25 grams of Ganja was seized from the shop of accused. This witness was declared hostile. In cross-examination, he admitted that search and seizure memorandum (Exh. P-1, Exh. P-2 and Exh. P-3) were not recorded before him. His signatures were obtained in the police station. According to him, paper packet, which was taken to police station, was not opened before him. Indrajit Singh (P.W. 2) was also declared hostile. He denied that Ganja was seized from the shop of accused. 8. Now there remained solitary evidence of ASI Rajmani (P.W. 4). He deposed that on receiving information from an informer that accused was selling Ganja in his Gumti at bus stand, he informed to his senior officer. This information was sent to SDO Police, but since he was not available, he along with head Constables Ramsunder and Jai Singh went to the shop of accused. After obtaining the consent letter for the search from accused and giving their personal search to him, he entered the shop and searched it. They found a paper packet in the shop containing 25 grams of Ganja. The Ganja was seized in front of Sharad Singh and Indrajit Singh and seizure memorandum (Exh. P-1, Exh. P-2 and Exh. P-3) were recorded. Through the Office of Superintendent of Police, a sample of Ganja was sent to Forensic Science Laboratory for examination. He received the report (Exh. P-10) from the Laboratory confirming the seized article to be Canjti. After investigation, he filed the charge-sheet in the Court. 9. Learned Counsel for the appellant submitted that the evidence of Inspector Rajmani Singh (P.W. 4) was not corroborated by any other independent source. He happened to be a police officer who himself recorded the First Information Report, conducted investigation and filed charge sheet. The independent witnesses before whom the said search and seizure of contraband was made, did not support the case of prosecution. He happened to be a police officer who himself recorded the First Information Report, conducted investigation and filed charge sheet. The independent witnesses before whom the said search and seizure of contraband was made, did not support the case of prosecution. In view of the fact that accused alleged that Inspector Rajmani frequently used to consume tea and betels from his Gumti without payment and that he used to intimidate him of dire consequences on his demanding price, his evidence was not worthy of reliance. This witness also acted in clear violation of the provisions of Section 42 of the NDPS Act. 10. On perusal of the evidence of Rajmani Singh (P.W. 4), it is apparent that he did not record the information allegedly received by him from the informer. There appeared no evidence on record to indicate that he sent any such information in writing about the commission of the offence to any of his superior officers. Section 42 of the NDPS Act provided that if any officer authorised under Section 42 of the Act had reason to believe from personal knowledge or the information given by any person, he had to take down in writing that the offence punishable under the NDPS Act has been committed. If such officer had reason to believe that a search warrant or authorisation could not be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. In the present case, the seizure is said to have been made at about 8.30 p.m., but it is strange that it was not taken down in writing by the Inspector that he received any such information. Under provision of sub-section (2) of Section 42, it was also incumbent on the Investigating Officer to send a copy of the information taken down by him to his immediate official superior. 11. In case of Karnail Singh Vs. Under provision of sub-section (2) of Section 42, it was also incumbent on the Investigating Officer to send a copy of the information taken down by him to his immediate official superior. 11. In case of Karnail Singh Vs. State of Haryana, (2009) 8 SCC 539 = 2009(5) M.P.H.T. 123 (SC), a Constitution Bench of the Apex Court observed that the officer authorised by Section 42 of the Act on receiving the information from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42 (1). If it was not feasible or practical to take down in writing the said information, in such a situation, he could take action as per clauses (a) to (d) of Section 42 (1) and thereafter, as soon as it was practicable, record the information in-writing and forthwith inform the same to the official superior. Thus, writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. While total non-compliance with requirement of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay may be acceptable compliance with Section 42. If a police officer does not record the information at all and docs not inform the official superior, it will be a clear violation of Section 42 of the Act. The question about adequate or substantial compliance with Section 42 would be question of fact to be decided in each case. 12. From the record, there appears no evidence about the deposition of the seized material in the Malkhana and about it being taken out for production before the Court. It has been admitted by Inspector Rajmani (P.W. 4) that though he filed the charge-sheet in the Court, but he did not produce the seized material in the Court. 12. From the record, there appears no evidence about the deposition of the seized material in the Malkhana and about it being taken out for production before the Court. It has been admitted by Inspector Rajmani (P.W. 4) that though he filed the charge-sheet in the Court, but he did not produce the seized material in the Court. He could not give any explanation as to why he did not take any witness from the neighboring shops and selected only taxi drivers who used to park their taxis at the bus stand. He admitted that he did not weigh the seized Ganja. It is also the bail application in the earlier part of the day. Being aggrieved with the said order, the State preferred Criminal Revision No. 198/2011, which was allowed by the Session Court and order dated 8-9-2011 granting bail to the applicants under Section 167 (2), Cr.PC was set-aside. 3. Mr. Arvind Singh, learned Counsel appearing on behalf of the applicants, argued that the learned Session Judge erred in law in holding that 90 days time would have been granted to the State to file the charge-sheet in this matter. He prayed for setting aside the order passed by the learned Session Judge. 4. Mr. U.K.S. Chandel, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the order passed by the Session Judge. 5. I have heard learned Counsel for the parties at length and have also perused the records of the Criminal Revision as also the charge-sheet produced during the course of the arguments. 6. Section 167 (2) Proviso (a), Cr.PC reads as under :- "167. Procedure when investigation cannot be completed in twenty-four hours. - *** *** *** Provided that - (a) The Magistrate may authorize the detention of the accused person otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorize the detention of the accused person.in custody under this paragraph for a total period exceeding, - (i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years. *** *** *** 7. *** *** *** 7. The above provision clearly indicates that pending investigation relating to an offence punishable with imprisonment for a term "not less than 10 years", the Magistrate is empowered to authorize the detention of the accused in custody for not more than 90 days. For rest of the offences, period prescribed is 60 days. 8. Section 420, IPC provides that whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. 9. Section 306, IPC provides that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 10. It is, therefore, clear that under Section 306, IPC offence can be punished for a term of imprisonment which may extend to ten years which shows that the imprisonment under this Section can be for a period of less than ten years and such cases would not be covered by clear provision of Section 167, Cr.PC. which says about the offences punishable with imprisonment for a term of not less than ten years; and thus, the accused in such cases can be detained in custody to the period of 60 days and not to the period of 90 days under Section 167 (2) (a), Cr.PC. 11. The Supreme Court has taken this view in a matter under Section 386, IPC in Rajeev Chaudhary Vs. State (NCT) of Delhi, 2001 (2) Crimes 303 (SC). 12. On the above discussion, the view taken by the learned Session Judge that 90 days period shall be allowed filing of the charge-sheet in such matters, therefore, cannot be sustained. 13. Admittedly, the charge-sheet was not filed within 60 days in this matter and it was filed on 61st day. Therefore, the Magistrate was right in releasing the applicants on bail under Section 167 (2), Cr.PC. 14. For the foregoing reasons, the revision is allowed. The impugned order passed by the learned Session Judge is set aside. 13. Admittedly, the charge-sheet was not filed within 60 days in this matter and it was filed on 61st day. Therefore, the Magistrate was right in releasing the applicants on bail under Section 167 (2), Cr.PC. 14. For the foregoing reasons, the revision is allowed. The impugned order passed by the learned Session Judge is set aside. The order passed by the learned Magistrate is restored. It is stated that the applicants have not been arrested till date after passing of the impugned order by the Session Judge. It is, therefore, directed that they shall continue on bail already granted by the learned Magistrate.