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Madhya Pradesh High Court · body

2011 DIGILAW 797 (MP)

Dinesh v. State of M. P.

2011-07-21

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. The judgment passed in this appeal shall also govern the disposal of connected Criminal Appeal No.99/1997 (Balram v. State of M.P.), since the said appeal has been filed by another accused against the same impugned judgment by which the appel1ant of this appeal has been convicted. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 3.1.1997 passed by the learned 12th Additional Sessions Judge, Indore in S.T. No. 14/1994 convicting appellant of this appeal as well as appellant of connected appeal under section 8/18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the Act") and thereby sentencing them to suffer ten years rigorous imprisonment and fine of Re.1Iac, in default further RI of 1 year, this appeal and connected appeal has been preferred under section 374(2) of the Code of Criminal Procedure, 1973. 3. In brief, the case of the prosecution is that the informant informed the Station Incharge Officer of Police Station Malharganj D.S. Bhadoriya on 17.9.1994 that appellants Dinesh and Balram are illegally possessing brown sugar for sale. On the basis of this information, raid was made by the raiding party having members Sub-Inspector Himmat Rao, Constables Parmatma Singh, Bhagwan Singh, Rakesh Kumar and Investigating Officer D.S. Bhadoriya. A notice under section 50 of the Act was given to the accused persons that whether they are willing to give their search to the police officer or the Gazetted officers or to the Magistrate. Both the accused persons accepted to give search to the police officer. Resultantly, a panchnama in that regard was prepared. Thereafter, the search was taken and from the pocket of the trousers of the appellant Dinesh in a plastic bag brown sugar was found. The appellant was not having any licence to keep it or to sell. Similarly, on searching another appel1ant Balararn, in the right pocket of his trousers in a plastic bag, brown sugar was found and he too was not having any licence to keep or sell the same. On weighing it was found that Dinesh was having 300 gms. of brown sugar while 250 gms. of brown sugar was found from the possession of appellant Balaram. Two samples of 10 gms. On weighing it was found that Dinesh was having 300 gms. of brown sugar while 250 gms. of brown sugar was found from the possession of appellant Balaram. Two samples of 10 gms. each were taken out from the bulk of the contraband article and after sealing them they were sent to the Forensic Science Laboratory on 7.10.1994 in which presence of brown sugar was found. A charge-sheet was submitted in the trial Court and the appellants were charged under section 8/18 of the Act which they denied and requested for the trial. 4. In order to bring home the charge, the prosecution examined as many as nine witnesses and placed EX.P-1 and to P-28 the documents on record. The defence of the appellants is of false implication and in support of their defence they examined two witnesses, they are Deepak Mishra (DW1) and Sunil Kumar DW2). 5. Learned trial Judge on the basis of the evidence placed on record came to hold that charge under section 8/18 of the Act has been proved against the appellant of this appeal as well as the appellant of connected appeal and eventually convicted both the appellants under section 8/18 of the Act by passing the aforesaid sentence which I have mentioned hereinabove. 6. In this manner, the present appeal has been filed by the appellant assailing the judgment of conviction and order of sentence. 7. The contention of Shri Anil Ojha, learned counsel for the appellant is that the contraband article which was seized from the possession of the appellants was not produced before the Court and if that would be the position, according to the decision of the Supreme Court Jitendra and another v. State of M.P. [2004(2) Vidhi Bhasvar 30= (2004) 10 SCC 562 ], the appellants cannot be convicted. 8. Further, it has been put forth by him that the alleged contraband article was seized on 17.9.1994 but it was only sent on 7.10.1994 in the office of Forensic Science Laboratory where it was chemically examined and during this long period of 20 days where, in what condition and in whose custody it was lying there is no evidence of the prosecution. Learned counsel further submits that the independent panch witnesses Ghanshyam (PW5) and Sunil (PW6) have not supported the case of the prosecution, they were declared hostile and, therefore, the seizure of the contraband article becomes highly doubtful. Learned counsel further submits that the independent panch witnesses Ghanshyam (PW5) and Sunil (PW6) have not supported the case of the prosecution, they were declared hostile and, therefore, the seizure of the contraband article becomes highly doubtful. 9. By putting a deep dent on the case of the prosecution as well as on the hallmark and authenticity of the notice under section 50 of the Act given to the appellants it has been put forth by learned counsel that in the notices EX.P-l and P-2 given to the appellants nowhere it has been mentioned that it is their right which they may exercise to get themselves searched either before the searching officer or before the Gazetted officer or Magistrate. Learned counsel submits that in the absence of providing such a right to opt and chose before whom the accused wants to get himself searched the conviction cannot be accorded. In this context, learned counsel has placed heavy reliance on the latest pronouncement of the Supreme Court Narcotic Central Bureau v. Sukh Dev Raj Sodhi [2011 (2) EFR 461]. On these premises, it has been put forth by him that this appeal be allowed by setting aside the impugned judgment of conviction and order of sentence. 10. On the other hand, Shri Kshitij Vyas, learned counsel for respondent/State argued in support of the impugned judgment. 11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 12. In the present case this position is not disputed by learned counsel for the State that the contraband article was not produced in the-Court and confronted to the witnesses when the witnesses particularly the witnesses of seizure as well as the members of the raiding party were examined. According to me, it was imperative on the part of the prosecution to produce I the contraband article during their testimony and should be confronted to them so as to prove by substantive evidence that the parcels of the contraband article are the same which were seized at the spot, but having not done so, the accused persons cannot be convicted under section 8/18 of the Act. In this context, I may profitably place reliance on the decision of the Supreme Court Jitendra (supra). Yet there is another decision of the Supreme Court on this point. In this context, I may profitably place reliance on the decision of the Supreme Court Jitendra (supra). Yet there is another decision of the Supreme Court on this point. Recently, Supreme Court Ashok @ Dangra Jaiswal v. State of Madhya Pradesh [2011(2) JLJ 1=2011 CrLR (SC) 363], has reiterated the same principal of law which has been laid down by the apex Court in the decision of Jitendra (supra). For ready reference, it would be fruitful to quote para 6 of the decision of Jitendra (supra), which reads thus: "6. In our view, the view taken by the High Court is unsustainable. 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 the accused. The best evidence would have been the seized materials which ought 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 of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non-examination of the investigating officer and non-production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far-fetched." The decision of Jitendra (supra), is squarely applicable in the present case because in the present case also the contraband article was not produced in the Court and confronted to the witnesses and, therefore, on this count alone the appeal can be allowed by setting aside the impugned judgment of conviction and order of sentence. 13. 13. There is yet another serious infirmity in the case which raises heavy doubt in respect of implication of appellants in the commission of said offence. As per the case of the prosecution alleged contraband article was seized on 17.9.1994 and the same was sent to the Forensic Science Laboratory on 7.10.1994. In this regard, para 17 of the impugned judgment may be seen. But, there is absolutely no evidence on record that during this long period of 20 days where, in what condition and in whose custody I the alleged contraband article and the samples were lying. The evidence of Sub-Inspector Himmat Rao (PW1), Constables Parmatma Singh (PW2), Bhagwan Singh (PW3) and Rakesh Kumar (PW4) as well as that of investigating officer D.S. Bhadoriya (PW9) is totally silent in this regard. The Incharge of Malkhana of the police station has not been examined and, therefore, there is no evidence that where, in whose possession and in which condition the samples of the contraband article were lying. It be seen that the seal by which samples and the bulk were sealed must have been all along with the investigating agency because there is no evidence to the contrary and, therefore, the possibility that the seized substance was changed during these 20 days cannot be ruled out. The prosecution has also not examined the constables who deposited the samples in the office of Forensic Science Laboratory. Hence, it raises a heavy doubt that the contraband article which was seized at the spot and the samples out of bulk which were taken out at the spot are the same samples which were received in the office of Forensic Science Laboratory. It is well settled in law that suspicion however strong it may be, cannot take place of strict proof. 14. One important fact which cannot be marginalized and blinked away and which has been vigorously put forth by learned counsel for the appellant that there is total non-compliance of section 50 of the Act for the simple reason that in the notice nowhere it has been so stated and informed to the accused that it is his right to get himself searched either before the searching officer or before the Gazetted officer of Magistrate. I have gone through the notices EX.P-1 and P-2 given to the appellants under section 50 of the Act and I find that there is total lack of this essential ingredient in the said notices. The investigating officer D.B. Bhadoriya (PW9) has also not so stated in this testimony. According to me, it was imperative on the part of the searching officer to give option to the accused because it is his right and unless and until the right which he is having is not disclosed to him rather it was concealed, the conviction would be bad in law. Mere informing the accused of his option to be searched in the presence of a Gazetted officer or before a Magistrate would not be sufficient and would not fulfill the requirement of section 50 of the Act. Since this serious infirmity which goes to the root is existing in the present case, the conviction of the appellants under section 8/18 of the Act cannot be sustained. In this context, rightly the decision of Sukh Dev Raj (supra), has been placed by the learned counsel for the appellant. For this reason also, the conviction of the appellant of this appeal as well the appellant of connected appeal cannot be sustained in the eyes of law. 15. For the reasons stated hereinabove, this appeal as well as the connected appeal succeed and are hereby 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. Although the appellant was on bail which he had jumped and there is an order of this Court to arrest him and also to issue notice to his surety but since this appeal is allowed, he may not be arrested. Amount of fine, if deposited, shall be refunded to the appellant. Let a copy of this judgment be kept in the record of connected Criminal Appeal No.99/1997.