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2011 DIGILAW 727 (MP)

Aju (Ajim) v. State of M. P.

2011-07-05

I.S.SHRIVASTAVA

body2011
JUDGMENT : I.S. Shrivastava, J.:- This appeal has been preferred being aggrieved by the judgment dated 20/11/1996 passed by the Court of Shri S. N. Sharma, 2nd Additional Sessions Judge, Neemuch in S.T. no. 138/1995, by which the appellant has been convicted under sections 8/21 of the NDPS Act and sentenced for rigorous imprisonment often years with fine of Rs.1,00,000/-. 2. According to prosecution story, on 03/11/1995, Radheshyam. ASI received an information from the informer that accused/appellant Ajim is selling packets of smack near his residence Banglow no. 32 and he can be trapped. Therefore, ASI Radheshyam informed it to SDO(P) and proceeded with the force and witnesses to the house of Ajim at banglow no. 32. The appellant seeing the police, ran away and with the aid offeree, he was chased and caught. He was informed about the information of the informer and his due consent for search was obtained. On his search, in a red polythene bag, 39 packets of smack were recovered, which contained gray colour powder. It was collected in a single paper and after physical test, it was found to be smack prepared from opium. Its total weight was 4 grams. It was sealed on the spot and panchanama was prepared. Looking to the small quantity of the smack, its separate sample was not prepared. The appellant was arrested and after return to police station, FIR was lodged and after investigation, challan was filed in the Court. After trial, the appellant has been convicted and sentenced as mentioned herein above. 3. This appeal has been preferred by the appellant on the ground that the independent witnesses of the seizure memo Ex.-P/7 were hostile and they did not support the prosecution story and the quantity of the smack. Firoj Khan PW-9 who was the member of the raid party has deposed that 10 grams smack were seized, hence his statement was contradictory to the statement of Radheshyam PW-11, the seizing officer. The FIR was registered at crime no. 506/1995 by the investigating officer after return to the police station, but in the panchanama of proceedings Ex.-P/6 and in seizure memo Ex.-P/7, crime no. 506/1995 has been mentioned later on. This shows that these panchanamas were tampered later on. They are not reliable. The FIR was registered at crime no. 506/1995 by the investigating officer after return to the police station, but in the panchanama of proceedings Ex.-P/6 and in seizure memo Ex.-P/7, crime no. 506/1995 has been mentioned later on. This shows that these panchanamas were tampered later on. They are not reliable. The samples were not prepared on the spot, hence whole of the quantity of the seized smack was sent to FSL, but when at the time of the statement of the investigating officer Radheshyam PW-11, it was not the packet which returned from the FSL, but it was the packet which bears the signatures of the Investigating Officer, hence the seized packet was doubtful. The appellant was not apprised with his right about the search before Magistrate. There are serious contradictions and omissions in the evidence of the prosecution witnesses. Hence the appeal should be allowed. 4. It has been argued by the respondent's counsel that the appellant has been rightly convicted on the basis of the evidence produced by the prosecution before the Trial Court, hence this appeal being devoid of merits, be dismissed. 5. Considered the arguments and record of the trial Court perused. 6. As regard to the seizure of opium, it was seized vide seizure memo Ex.-P/7 at 4.30 pm before the independent witnesses Dinesh PW-6 and Mohd Yunus PW-7, but both these witnesses were hostile and they have not supported the prosecution story. According to Dinesh, he does not know the appellant. His auto rickshaw was checked by the police. He was not having complete papers, therefore, on the call of the police, he signed on Ex.-P/5 to Ex.-P/9. He signed on the papers out of which some were wntten and some were blank. In cross-examination, he has deposed that at about 8 - 8.30 pm in the night, he went to police station and singed on the papers. Mohd Yunus PW-7 also deposed that he does not know the appellant. Panahanamas Ex.-P/5 to P/9 and Ex.-P/11 bear his signatures. In cross-examination, he has deposed that in police station, his auto rickshaw was stopped; he went to take it back; at that time, the police got his signatures on all the papers. He does not know about the seizure of the smack from the appellant. Both these witnesses have not supported the fact of their police statements Ex.-P10 & Ex.-P/12 respectively. He does not know about the seizure of the smack from the appellant. Both these witnesses have not supported the fact of their police statements Ex.-P10 & Ex.-P/12 respectively. In this way, the seizure memo was not supported by the independent witnesses. According to Radheshyam PW-11, the seizing officer, he seized 4 grams smack from the appellant, but Firoj PW-9 who was the member of the raid party has deposed that 10 grams smack was seized from the appellant. In this way, there was difference in between the police witnesses about the quantity of the smack. According to Radheshyam PW-11, after seizure of the smack and preparation of all the papers, he returned to police station and he made a report to station in-charge later on and presented the seized property and the accused before him and lodged the FIR Ex.-P/13 which bears his signatures. In this way, the FIR was lodged after completion of the investigation, but in panchanama of the proceedings Ex.-P/5, initially crime no. 0/1995 was mentioned. Thereafter, crime no. 506/1995 has been noted in the column of crime number. Similarly, at seizure memo Ex,-P/7, Crime no. 506/1995 was noted in the column of the crime number and in Ex.-P/8 and Panchanama Ex.-P/9 about the search of the house. This shows that all these documents were tampered later on after the registration of the FIR at crime no. 506/1995. Under these circumstances, these documents were not reliable. 7. As regard the Article - A, it has been mentioned in the panchanama of proceeding Ex.-P/6 that since the quantity of the seized smack was small, hence the sample was not prepared. From the FSL report, Ex.- P/14, it reveals that the total weight of the packet Article - A which was sent for analysis was 4 grams along with the papers. This shows that whole of the quantity was sent to FSL for analysis. If this packet was returned after the investigation to the police station, then it must bear the seal of the public analyst at the time of sealing. But at the time of the evidence of Radheshyam PW-11, the investigating officer, Article - A was produced in this respect in court. The witness Radheshyam has deposed that the packet Article - A bears his signature and the seal and also bears the signatures of the accused and the witnesses. But at the time of the evidence of Radheshyam PW-11, the investigating officer, Article - A was produced in this respect in court. The witness Radheshyam has deposed that the packet Article - A bears his signature and the seal and also bears the signatures of the accused and the witnesses. In cross- examination, he has also admitted that it does not bear the seal of the police station, Neemuch. He explained that it bears his seal because it was sealed by him. He has also admitted that this packet does not bear the crime number. This shows that the packet Article - A when it was produced in the court, it was in the same form as it was prepared by this witness who was the seizing officer. The public analyst examined the sample on 23/11/1995 and gave his report Ex.-P/14. The statement of Radheshyam was recorded on 25/07/1996, therefore, packet Article - A must be packed which was received back from the FSL and it should have been sealed by the seal of the FSL but the packet which was produced in the court, was not bearing any seal of FSL and also the crime number. This creates doubt that whether it was the same packet which was sent to FSL and returned from the FSL after the analysis of the packet. Under these circumstances, it was not proved that it was the same packet. 8. From the above discussions, it reveals that the seizure of the smack was not proved by the independent witnesses and seizure memo Ex.-P/7 was not reliable documents because it was tampered. The quantity of the smack was also doubtful, because Firoj Khan PW-9 who was the member of the raid party has deposed that 10 grams smack was seized and he was not declared hostile on this point. Under these circumstances, the appellant was not liable to be convicted. In the case Jitendra and another Vs. State of M.P. [2004 SCC (Cri) 2028, it has been held by the Apex Court that: "the evidence to prove that chores and ganja were recoveredfrom the possession of accused consisted of the evidence of the police officers and the panch witnesses. The panch witnesses turned hostile. In the case Jitendra and another Vs. State of M.P. [2004 SCC (Cri) 2028, it has been held by the Apex Court that: "the evidence to prove that chores and ganja were recoveredfrom 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 ofRajendra 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 outfit 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 ofpanchanama does not discharge the heavy burden, which lies on the prosecution, particularly where the offence is punishable with stringent sentence under the NDPS Act". 9. As regard the compliance of section 50 of the NDPS Act, it has been argued by the appellant's counsel that the compliance of section 50 of the NDPS Act was not proved from the evidence. Radheshyam PW-11 in this respect has deposed that he gave option to the appellant for his search before police, Magistrate or gazetted officer. From these evidence, it is clear that he was not apprised with his right with the fact that it was his right to get his search before the Magistrate or gazetted officer, therefore, compliance of section 50 of the NDPS Act was not proved. In the case of Sarju @ Ramu Vs. From these evidence, it is clear that he was not apprised with his right with the fact that it was his right to get his search before the Magistrate or gazetted officer, therefore, compliance of section 50 of the NDPS Act was not proved. In the case of Sarju @ Ramu Vs. State of U.P. [2009 SAR (Cri) 870], it has been held that "the appellant at no point of time was informed that he had a statutory right of being searched by gazetted officer, hence the provision of section 50 of the NDPS Act were not complied with. Procedural safeguards were not applied with. Conviction of the appellant was unsustainable". 10. According to section 55 of the NDPS Act, at time of deposit of the property in police station, it was to be sealed by the seal of the station in-charge, but in this respect, no evidence has been produced. The packet Article -A which has been produced in the court on 25/07/1996 was not having seal of the station in-charge, but according to the statement of Radheshyam PW-11, the packet was bearing his signature and his seal. In cross-examination, he admitted that Article - A - 1 was not having seal of police station -Neemuch. It was sealed by him. This shows non-compliance of section 55 of the NDPS Act. In the case of Valsala Vs. State of Kerala [AIR 1994 SCC (Cri) 117], it has been held that "no evidence to show that article was sealed and kept in proper custody in police station, conviction of the appellant cannot be sustained". 11. From the above discussions, it is clear that there was non compliance of sections 50 & 55 of the NDPS Act. Panchanama seizure Ex. P/7 was not proved by the independent witnesses and it was not reliable, because it was tampered. Similarly, panchanama proceedings Ex.-P/6 was tampered and was not reliable. It was not proved that the packet Article-A was the same, which was returned from the FSL. Therefore, on the basis of prosecution evidence, the appellant was not liable to be convicted, hence this appeal deserves to be allowed. 12. Accordingly, this appeal is allowed and the appellant is acquitted from the charges under section 8/21 of the NDPS Act. The appellant is on bail; his bail bonds are discharged. The fine, if deposited; be returned to the appellant.