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2011 DIGILAW 386 (CHH)

TRILOKINATH PANDEY v. STATE OF M. P.

2011-12-13

SUNIL KUMAR SINHA

body2011
JUDGMENT 1. This appeal is directed against the judgment dated 12.12.1996 passed in Session Trial No. 33/1996 by the Second Additional Sessions Judge, Durg. By the impugned judgment, the appellants have been convicted under Section 20 (b)(ii) of the Narcotic Drugs And Psychotropic Substances Act, 1985 and sentenced to undergo R.I. for 10 years and to pay fine of Rs. 1,00,000/- in default of payment of fine to further undergo S.I. for 2 years. 2. The facts, briefly stated, are as under:- The three accused persons namely- Trilokinath, Ushabai Thakur and Harendra Singh Thakur were prosecuted for commission of an offence punishable under Section 20 (b) (ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Appellant- Harendra Singh Thakur is husband of Ushabai Thakur. Appellant- Trilokinath Pandey was engaged as a servant in their house. On 14.10.1995, a secret information was received by Sub-inspector-Aditya Kumar Sharma (P.W.7) that the accused persons are engaged in sale of Narcotic drugs. This information was sent to Town Inspector- S.K. Yadav and City Superintendent of Police- B.P. Chandravanshi, Aditya Kumar Sharma (P.W.7) made arrangement for a test purchase. He gave two currency notes of Rs. 50/- denomination to Sharda Prasad (P.W.2) for purchase of the Narcotic drugs. Sharda Prasad (P.W.2) went to the house of Harendra Singh. He found Ushabai there. He gave the above 2 currency notes to Ushabai and made demand for Charas. Accused-Ushabai through co-accused- Trilokinath gave 10 gms of Charas to Sharda Prasad (P. W.2). The police party came there. A notice under Section 50 of the N.D.P.S. Act was given to Ushabai and a search of her person was made. On search 150 gms of Narcotic drugs mixed with Ganja and Baang and 2 currency notes of Rs.50/- were seized from her possession. 10 gms Charas was also seized from the possession of Sharda Prasad (P.W.2) which he had purchased from Ushabai. In further investigation, appellant-Trilokinath was taken into custody and his memorandum statement under Section 27 of the Evidence Act was recorded, in which he stated that appellant- Harendra Singh Thakur has kept 4 Kg of Charas, mixed with Ganja and Baang, in hidden condition in a tin by digging a pit in an open plot of his ownership and possession behind their Thakur Timber Mart. On such discovery made through the above memorandum statement (Ex-P-10) 31 rounded material “Laddu” of Charas mixed with Ganja, Baang and Afeem total amount to 4 Kg. were seized after digging a place of the above plot at the instance of appellant - Trilokinath Pandey. Accused- Ushabai and Trilokinath were arrested immediately: however, appellant- Harendra Singh Thakur was arrested on 14.11.1995. The seized articles were sent for their chemical examination to Forensic Science Laboratory, Raipur from where a report was received. According to the FSL report the articles seized on discovery (31 Laddu) as also article seized from the possession of Ushabai were found to be Charas. The FSL report is Ex-P-26. 3. On trial, the learned Session Judge acquitted accused-Ushabai Thakur on the ground that the provisions of Section 50 of the N.D.P.S. Act were not complied with properly which has prejudiced her right. 4. The two appellants herein were convicted on the basis of discovery and seizure made at the instance of appellant No.1-Trilokinath Pandey. The learned Session Judge held that the Charas was found hidden in a pit in the plot belonging to the ownership and possession of appellant-Harendra Singh Thakur. Appellant- Trilokinath was simply a servant, and looking to the huge quantity of contraband, it was not possible for him to have that much of quantity alone, therefore, appellant-Harendra Singh Thakur, in whose plot Charas was found on the memorandum of Trilokinath, was also liable for punishment for possessing the above contraband, and thus the two appellants were convicted as above. 5. Mr. B.P. Singh, learned counsel for the appellants, argued that though the plot was of the ownership of appellant-Harendra Singh Thakur, but it was an open plot since a very long time which was accessible to all it was covered with Beshram bushes. Only on account of seizure of Charas from the said plot, it cannot be said that appellant - Harendra Singh Thakur was also involved in sale of Charas and he was also liable for punishment. So far as, conviction of Trilokinath is concerned, he argued that the memorandum and seizure were not proved by the independent witness and testimony of Aditya Kumar Sharma (P.W.7), on account of his conduct of making manipulation in the police paper, was unreliable, therefore, conviction of appellant- Trilokinath Pandey which is solely based on the memorandum and seizure can also not be sustained. 6. 6. On the other hand, Mr. Arvind Dubey, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 7. I have heard learned counsel for the parties at length and have also perused the records of the Sessions case. 8. Admittedly, there is absolutely no incriminating evidence against appellant- Harendra Singh Thakur. Harendra Singh Thakur was not present at the time of test purchase. Nothing has been seized from his possession. He cannot be connected on the averments made by appellant- Trilokinath Pandey in the introductory part of his discovery memorandum, recorded under Section 27 of the Evidence Act. Those averments are not admissible in evidence. The learned Session Judge has held that since the contraband was found hidden in a pit in the plot belonging to appellant- Harendra Singh Thakur, therefore, he was liable for punishment for holding possession of the contraband. The above finding does not appear to be correct. It comes in the evidence that the above plot was an open plot which was accessible to all. It was far away from the house of appellant-Harendra Singh Thakur. Therefore, a possibility of using his plot for hiding the contraband in the above manner by someone else cannot be fully ruled out. In the present facts and circumstances of the case, merely on account of being owner of the said plot, in absence of any other evidence of knowledge or participation, Harendra Singh Thakur cannot be connected with the commission of the above offence. 9. Mr. Arvind Dubey has argued that Harendra Singh Thakur was absconding and was later on arrested on 14.11.1995, therefore, the above conduct is relevant and incriminating. I am unable to accept the said argument. The above solitary circumstance was not sufficient to hold him guilty of offence punishable under Section 20 (b) (ii) of the N.D.P.s. Act. In Thimma, Appellant Vs. The State of Mysore, Respondent AIR 1971 SCC 1871, it was held that the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact because even innocent person when suspected may be tempted to such conduct to avoid arrest. 10. The State of Mysore, Respondent AIR 1971 SCC 1871, it was held that the conduct of accused in absconding immediately after the occurrence of the offence is relevant evidence, as indicating to some extent his guilty mind, it is not conclusive of that fact because even innocent person when suspected may be tempted to such conduct to avoid arrest. 10. On due appreciation of the entire evidence available on record, I am unable to sustain the conviction of appellant-Harendra Singh Thakur on the above set of evidence lead against him. I am of the view that the learned Session Judge has erred in law in convicting the appellant Harendra Singh Thakur on the above evidence and the conviction and sentences awarded to him deserve to be set aside. 11. So far as, conviction of appellant- Trilokinath Pandey is concerned, the two witnesses of memorandum and seizure namely-Rakesh Tamrakar (P.W.3) & Shailenra Singh (P.W.4) have turned hostile. They have neither supported the memorandum nor the discovery and seizure, allegedly made at the instance of appellant-Trilokinath Pandey. Memorandum statement (Ex-P10) was recorded by Aditya Sharma (P.W.7). He has deposed about the discovery and seizure of contraband at the instance of appellant- Trilokinath Pandey vide his discovery memo Ex-P-10 and seizure memo Ex-P-12. 12. Mr. B.P. Singh has argued that the memorandum and seizure cannot be believed on the sole testimony of Aditya Kumar Sharma (P.W.7) because his conduct has been held to be suspicious by the Trial Court as the Trial Court has recorded the finding in para 24 of the judgment that he had made substantial manipulation in the notice under Section 50 (Ex-P-6) later on which he has admitted in para 51 of his cross-examination. The Trial Court in its judgment in para 24 and 25 has given finding to this effect and has also deprecated the above act of Aditya Kumar Sharma (P.W. 7) who has conducted the investigation in the matter. I have no doubt about the legal proposition that the conviction can be based on the sole testimony of the police officer, but the important factor in such a situation would be that the evidence of the police officer should be fully reliable and of such quality that no doubt can be cast on his testimony. The present is not a case of that category. The present is not a case of that category. In the present case, the trial Court in so many words has held that the conduct of the Investigating Officer was not fair and he had made substantial manipulation in the Challan papers by adding 3 lines in the notice under Section 50 (ExP-6), which he admitted in his cross-examination also. The Trial Court has taken serious note of this fact and after a long discussion, showing annoyance, it has deprecated the action of the Investigating Officer. In the above fact and circumstances evidence of Aditya Kumar Sharma (P.W.7) was not reliable, it does not inspire confidence of the Court so as to rest the conviction of appellant-Trilokinath Pandey on his sole testimony relating to alleged discovery and seizure of the contraband at the instance of appellant - Trilokinath Pandey. 13. Sharda Prasad (P.W.2) who allegedly purchased the contraband has also turned hostile. The case of the prosecution was that 10 gms of Charas was handed over to Sharda Prasad (P.W.2) by appellant - Trilokinath Pandey on the instructions of accused- Ushabai Thakur. This would have been a connecting evidence against Trilokinath, but even after a lengthy cross-examination of Sharda Prasad by the public prosecutor, nothing incriminating could be brought on record in this regard. Therefore, conviction of appellant-Trilokinath, based on the solitary evidence of Aditya Kumar Sharma (P.W.7) can also not be sustained. 14. For the foregoing reasons, the appeal is allowed, the conviction and sentences awarded to the appellants under Section 20 (b) (ii) of the N.D.P.S. Act are set aside. The appellants are acquitted of the charges framed against them. It is stated that the appellants are on bail, their bail bonds are cancelled and sureties stand discharged. Appeal Allowed.