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Madhya Pradesh High Court · body

2011 DIGILAW 795 (MP)

Jamil v. Central Bureau of Narcotics

2011-07-21

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 28.6.1996 passed by the learned District Judge, Dewas in S.T. No. 103/ 1987 convicting appellant under section 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the Act") and thereby sentencing him to suffer ten years rigorous imprisonment and fine of Rs. 1 lacs in default further RI of 1 year, the appellant has preferred this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief, the case of the prosecution is that at 4.30 p.m. on 5.7.1986 at the check post of Forest at Dewas-Bhopal Highway, Sub Inspector of Central Bureau of Narcotic namely Kamal Kumar Kothari along with incharge inspector L. D. Madnani etc. were checking the vehicles At that juncture a bus of MPSRTC bearing registration No. MBH 860 coming from Mandsaur and going to Bhopal was stopped and was checked. It is stated that in the said bus the appellant was sitting as a passenger and while searching the bus he was found to be a suspected person and was interrogated. During interrogation he disclosed his name to be Zamil, son of Lateef, resident of Village Dag, District Jhalawad, (Rajasthan): H is stated that appellant was having one black ragzine bag with him and after obtaining his consent, on searching the said bag contraband article opium (Afeem) was found in four polythene packets wrapped in a news paper and blue striped bed sheet. On smelling, the contraband article by seizing officer Kamal Kumar Kothari and the witensses, it was found to be opium (Afeem). The contraband article (opium) was weighed at the spot by Ganpat and on weighing it was found to be 3.700 kg. Out of bulk of 3.700 kg. two samples of 30 gm. each were taken out and after keeping them in the empty cigrette packets they were sealed and were sent for chemical examination to Forensic Science Laboratory. 3. On receiving the report of Forensic Science Laboratory affirming that the samples were containing opium, a charge sheet was submitted in the Committal Court which committed the case to the Court of Sessions from where it was received by the trial Court for trial. 4. The learned trial Judge framed charge punishable under section 8/18 of the Act against the appellant which he denied and requested for the trial. 5. 4. The learned trial Judge framed charge punishable under section 8/18 of the Act against the appellant which he denied and requested for the trial. 5. In order to bring home the charge, the prosecution examined as many as six witnesses and placed Ex. P/1 to P/20 the documents on record. The defence of the appellant is of false implication and the same defence he set forth in his statement recorded under section 313 CrPC. However, in support of his defence, he did not choose to examine any witness. 6. Learned trial Judge on the basis of the evidence placed on record came to hold that the charge under section 8/18 of the Act is proved and eventually convicted the appellant by passing the aforesaid sentence which I have mentioned hereinabove. 7. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 8. The contention of Shri Gaurav Shrivastava, learned counsel for the appellant is that as per the case of the prosecution appellant was possessing 3.700 kg of opium. However, Ganpat has not supported the case of the prosecution and was declared hostile. Learned counsel further submits that no panchnama of weighing the opium was prepared by the investigating agency and there is no evidence that the weight of contraband article was 3.700 kg. Hence, learned counsel submits that since there is no evidence in this regard, therefore, it cannot be said that the contraband article which is alleged to have been seized from the appellant was 3.700 kgs. 9. It is then contended by him that as per the case of the prosecution, the alleged seizure was made on 5.7.1986 and it appears that it was received in the office of the Forensic Science Laboratory, Neemuch on 10.7.1986. Learned counsel submits that there is no evidence that during these five days where the contraband article was lying and in which condition and, therefore, it raised a doubt that the alleged contraband article which was seized from the spot is the same contraband article which was received in the office of Forensic Science Labotratory. 10. Learned counsel submits that there is no evidence that during these five days where the contraband article was lying and in which condition and, therefore, it raised a doubt that the alleged contraband article which was seized from the spot is the same contraband article which was received in the office of Forensic Science Labotratory. 10. It has been then put forth by learned counsel for the appellant that since the officers of the Central Bureau of Narcotics are not the police Officers, therefore, they were required to file a complaint and since this has not been done and have filed a charge sheet, the same is in contravention of section 173 CrPC and, therefore, on this ground also the entire trial is vitiated. In support of his contention, learned counsel has placed heavy reliance on the decision of the Supreme Court Raj Kumar Karwal v. Union of India and others, AIR 1991 SC 45 11. On the other hand, Shri Manoj Soni, learned counsel for respondent Departmental argued in support of the impugned judgment. 12. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 13. I find much substance in the submission of learned counsel for the appellant that in absence of cogent evidence it is not proved that the appellant was having alleged contraband article weighing 3.700 kgs. As per prosecution's own case as well as looking to the evidence of Sub Inspector of the Depm1ment Kamal Kumar Kothari (PW-l), the contraband article was weighed by Ganpat and it was found to be 3.700 kgs. However, Ganpat (PW-6) has not at all supported the case of the prosecution and was declared hostile. This hostile witness was cross examined by the prosecutor of the Department but nothing carved out from his testimony in order to hold that this witness weighed the alleged contraband article which was found to be 3.700 kgs. Merely because in the panchnama Ex. P 13 as well as in the statement of Kamal Kumar Kothari (PW -1) it is so mentioned that the alleged contraband article was 3.700 kgs, it would not mean that indeed it was of that weight in absence of preparation of any memorandum of weighing the contraband article and, therefore, it is not at all proved that the weight of the contraband article was 3.700 kgs. In the present case, unamended Act which was prevailing on 5th July, 1986 will be applicable and according to section 27 of the Unamended Act, if a person possesses a small quantity of any narcotic drug or psychotropic substance except for his personal consumption and not for sale or distribution then no offence is committed by him. Under subsection (2) of the said Act, the burden of proof that it was for his personal consumption, is on the accused. However, there is no defence of accused In this regard. Even in that situation since there is no cogent evidence on record that the weight of the contraband article was 3.700 kgs., it cannot be said that it was exceeding the small quantity.1he burden of proof that it was beyond the small quantity was on the prosecution and since this burden has not been discharged by the prosecution, I am of the view that it is not proved that on the date of incident, the alleged contraband article was 3.700 kgs. But merely on this ground the conviction of the appellant cannot be set aside, because unless his probable defence is proved that his case comes under the purview of sub-section en of section 27, appellant cannot be acquitted, because keeping the small quantity of the opium is also an offence. 14. The next contention of learned counsel for the appellant is also having sufficient merit. As per the case of the prosecution, the alleged contraband article though was seized on 5.7.1986 but it was received in the office of Forensic Science Laboratory on 10.7.1986. Thus, during these five days where and in which condition and in whose custody it was lying there is nothing on record and no evidence in this regard has been adduced by the prosecution. The prosecution has examined only Kamal Kumar Kothari (PW -1), the seizing officer. His evidence is totally silent that during these five days where the contraband article and samples were lying and in which condition. The relevant register of Malkhana has not been filed along with the charge sheet nor the incharge of Mal khan a has been examined. 15. The prosecution has examined only Kamal Kumar Kothari (PW -1), the seizing officer. His evidence is totally silent that during these five days where the contraband article and samples were lying and in which condition. The relevant register of Malkhana has not been filed along with the charge sheet nor the incharge of Mal khan a has been examined. 15. I have given my anxious and bestowed consideration to this aspect of the matter and I am of the view that in absence of any evidence that where, in that condition and in whose custody the seized packets of contraband article and samples were lying it is very difficult to hold that samples which were sent to the Forensic Science Laboratory are the same samples which were seized and sealed at the spot. The seal which was used in sealing the parcel of the bulk of the contraband article as well as the samples was all along with the investigating agency and, therefore, the possibility of changing contraband substance in the sealed samples as well as the bulk kept in the parcel cannot be ruled out. Since there is no evidence on record that where, in what condition and in whose possession the samples were lying for five days, the important link is missing and, therefore, the appellant cannot be convicted and is entitled for the benefit of doubt. In this context two decisions of the Supreme Court Santa Singh v. State of Punjab AIR 1956 SC 526 and Mohd. Aman and another v. State of Rajasthan, AIR 1997 SC 2960 may be seen. 16. I have also found much force on the third point submitted by learned counsel for the appellant since the respondent-Department is not the Police Department and Kamal Kumar Kothari (PW -1) is not a police officer, therefore, under section 173 of CrPC the charge sheet which was submitted in the Committal Court was totally without jurisdiction and on the basis of said charge sheet which was submitted without jurisdiction, the entire trial is vitiated. Indeed the Department should have filed a complaint. The decision of the Supreme Court Raj Kumar (supra) is squarely applicable in the present case. 17. For the reasons stated hereinabove, this appeal succeeds and is here by allowed. The impugned judgment of conviction and order of sentence is hereby set aside. Indeed the Department should have filed a complaint. The decision of the Supreme Court Raj Kumar (supra) is squarely applicable in the present case. 17. For the reasons stated hereinabove, this appeal succeeds and is here by allowed. The impugned judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the offence under section 8/18 of the Act. Appellant is on bail, his bail bonds stand discharged. Amount of fine, if deposited, shall be refunded to the appellant.