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Madhya Pradesh High Court · body

2011 DIGILAW 950 (MP)

Chandra Shekhar Prasad Tiwari v. State of M. P.

2011-08-18

T.K.KAUSHAL

body2011
JUDGMENT T.K. Kaushal, J. 1. This appeal has been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 (in short Code) against judgment dated 04/09/2006 passed Special Judge (NDPS) Rewa in Special Case no. 9/2006 convicting the appellant under Section 20(b)(ii) (c) of The Narcotic Drugs & Psychotropic Substances Act, 1985 (in short NDPS Act) for having unauthorized possession of 162 Kg of contraband Ganja in contravention of the provisions of Section 8(c) of the NDPS Act and sentenced to 10 years R.I. and with Rs. 1 lakh fine, in default, imprisonment of 1 year R.I. 2. Facts, in short, are that on 30/01/2006 A.P. Singh, Sub Inspector (PW-6) on receiving information from reliable sources regarding illegal possession of contraband, having prepared Panchnama Ex.P-17, along with witnesses and police party proceeded towards the Village-Bhaluha, within the ambit of Police Station- Raipur Karchuliyan, District- Rewa, reached at pump house of the appellant, served a notice Ex.P-3 under Section 50 of the NDPS Act, on him giving the appellant option of search to be taken before Gazetted Officer or Magistrate. Prior to this, co-accused Rajnish Pandey could manage to run away and proceedings continued in presence of appellant only. Vide Ex.P-4, appellant offered his consent for search by the police party. Police party also gave search to the effect that they do not have any contraband with them and prepared Panchnama Ex.P-5. In presence of the punch witnesses, lock of the pump house was opened. In 11 gunny bags, covered by hard wooden bed (Takhata), contraband Ganja 1 quantal 62 kg was found. Panchnama Ex.P-9 was prepared. Seizure Memo Ex.P-10 was also prepared. Physical test of contraband was conducted on the basis of personal experience by appearance, smell, and fumes and Panchnama Ex.P-11 was prepared. Panchnama Ex.P-12 was prepared regarding weight measurement and samples. Spot Map Ex.P-13 was prepared. Vide Ex.P-14 Police arrested the appellant and appellant was taken to police station. 3. At police station-Police Station- Raipur Karchuliyan, District- Rewa, at crime no.26/2006 a case was registered under Section 20 (B) of NDPS Act against the appellant and one co-accused. In support of the possession and title of the pump house of the appellant, Naksha Trace Ex.P-14, Khasra Entries Ex.P-15 and the report Ex.P-16 were obtained from Patwari (PW-5). Contraband was brought to police station and was deposited in Malkhana vide Roznamcha entry Ex.P-27. In support of the possession and title of the pump house of the appellant, Naksha Trace Ex.P-14, Khasra Entries Ex.P-15 and the report Ex.P-16 were obtained from Patwari (PW-5). Contraband was brought to police station and was deposited in Malkhana vide Roznamcha entry Ex.P-27. Sample of contraband was sent to Forensic Science Laboratory, Sagar for examination. Vide F.S.L report Ex.P-21 seized contraband was found to be Cannabis Ganja. 4. Completing investigation, citing 8 witnesesses, police submitted charge sheet under Section 20(B) of NDPS Act, against the appellant and another. Charge under Section 8(c) and Section 20(B) (ii) (c) of NDPS Act was framed on the appellant. Appellant abjured his guilt. To substanciate case of the prosecution, statements of Surendra Singh, Punch witness (PW-1), Babulal, Punch witness (PW-2), Rajkumar Pandey (PW-3), Brijendra Kumar Singh, Constable (PW-4), Yadvendra Mani Tripathi, Patwari (PW-5), Aditya Pratap Singh, Sub Inspector (PW-6), Triveni Singh, Head Constable (PW-7), Rajkumar Mishra, Sub Inspector (PW-8), Loknath Dwivedi, Head Constable (PW-9), and Amrit Lal Gupta, Clerk, Office of Registrar (PW-10) were recorded. Defence of the appellant in the Trial Court was that of false implication. Ownership and possession of the pump house was that of one Jitendra Sharma. Police extended undue benefit to him and falsely implicated appellant in his place in the matter. To substantiate aforesaid defence, statements of Ram Khilawan Chaudhari (DW-1), Sitaram Kol (DW-2) and Upendra Kumar Dwivedi (DW-3) were recorded. 5. After appreciating aforesaid evidence, Trial Court found charge proved against appellant and convicted and sentenced him as above. 6. This appeal has been preferred against the judgment on the grounds that no independent punch witness supported the case of the prosecution. There is no reliable independent evidence to show the possession and ownership of contraband of the appellant rather it belonged to Jitendra Sharma, who was not even interogated by the police. Non-compliance of the mandatory provisions of Sections 42, 50, 52, 55, and 57 of the NDPS Act caused great prejudice to the appellant. Conviction and sentence is bad in law. On the other hand, learned Panel Lawyer for the State, supported the findings of conviction and sentence and supported that offence has been proved against the appellant beyond reasonable doubt. 7. Conviction and sentence is bad in law. On the other hand, learned Panel Lawyer for the State, supported the findings of conviction and sentence and supported that offence has been proved against the appellant beyond reasonable doubt. 7. Learned Counsel for the appellant submitted that exclusive and conscious possession of the pump house has not been proved by the prosecution whereas discharging his burden sufficient evidence has been produced to show the possession of pump house to be of Jitendra Sharma. 8. Surendra Singh (PW-1) stated that while he reached on the spot he saw pump house opened. Police Inspector called appellant and asked about the possession of ganja then appellant had denied his possession. This witness has been declared hostile. He did not know to whom the ownership and possession of the pump house belong. He saw 11 gunny bags ganja in open field adjoining the pump house. Police collected it from the field itself. 9. Babulal (PW-2) was also declared hostile and has denied the entire proceedings. 10. Yadvendra Mani Tripathi, Patwari (PW-5) stated that he prepared Site Map Ex.P-13 showing pump house of appellant in it. In report Ex.P-16, submitted by him it is stated that aforesaid pump house was situated on Khasara no. 537 and Jitendra Kumar recorded as Bhoomiswami on it. This land was exchanged by appellant in the year 2002, and possession of this land was obtained by the appellant from Jitendra Sharma and pump house was constructed by the appellant. On eloborate cross examination, it is revealed that pump house was constructed on the land situated on adjoining survey no. 536 and 537. As per record land of pump house belongs to Jitendra. 11. Aditya Pratap Singh, Sub Inspector (PW-6) stated that as per revenue record pump house is constructed on the land of Jitendra. He did not interrogate as to in whose name electricity connection is obtained in the pump house. Jitendra was not interogated by him in the matter, though he tried to search him. 12. Rajkumar Mishra, Sub Inspector (PW-8) conducted later part of the investigation and submitted charge sheet in the trial court, he did not take care to interogate Jitendra Sharma in order to establish exclusive and conscious possession of the pump house. Jitendra was not interogated by him in the matter, though he tried to search him. 12. Rajkumar Mishra, Sub Inspector (PW-8) conducted later part of the investigation and submitted charge sheet in the trial court, he did not take care to interogate Jitendra Sharma in order to establish exclusive and conscious possession of the pump house. It is strange and hopeless that in such a small village in respect of seizure of such a huge quantity of contraband registered owner of the land of pump house was not traced and touched by any of the Investigating Officer. Rather they completed the proceeding against an easy target, the old man who could not escape from the spot. 13. Amrit Lal Gupta, Clerk, (PW-10) stated that vide Ex.P-29, on 25/09/2001, exchange deed between Jitendra Kumar and appellant executed, but he did not know who was in actual possession of the land exchanged in the documents. 14. Ram Khilawan Chaudhari (DW-1) and Sitaram Kol (DW-2) both stated that they worked as labourer in construction of the pump house by Jitendra Sharma. 15. Upendra Kumar Dwivedi (DW-3) punch witnesses of exchange deed Ex.P-29 stated that he never participated in the execution of the deed. Pump house constructed in the land of Jitendra Sharma. 16. Trial Court placed entire reliance on exchange deed Ex.P-29 to hold the exclusive and conscious possession of the pump house of the appellant. Whereas, as discussed above, not a single witness stated specifically about the exclusive and conscious possession to that pump house. Even prosecution witnessses themselves like Yadvendra Mani Tripathi, Patwari (PW-5) and Aditya Pratap Singh, Sub Inspector (PW-6) have clearly stated the ownership of the land on which pump house was constructed to be of one Jitendra Sharma. In such a situation, investigation can be said to be transparent and reliable only when the proper interogation would have been made with Jitendra Sharma also. If not as accused, at least, as witness he should have come before the investigation agency or before the Court. Knowing well right from the beginning that pump house constructed in the land whose ownership is with one Jitendra Sharma, there is no reason for Investigating Officer to not to call him as witness before him. Appellant was caught on the spot he was an old person could not mange to run away. 17. Knowing well right from the beginning that pump house constructed in the land whose ownership is with one Jitendra Sharma, there is no reason for Investigating Officer to not to call him as witness before him. Appellant was caught on the spot he was an old person could not mange to run away. 17. Exchange deed Ex.P-29 was ever acted upon by the parties to the documents is still doubtful. Appreciation of the evidence of the Trial Court in this respect seem to be not correct and balanced. For conducting the proceedings in respect of such a huge quantity of contraband, basic precaution and awareness is expected from the prosecution. It was not very difficult for the prosecution to collect some more reliable evidence in respect of exclusive and conscious possession of the pump house. Hence evidence in respect of exclusive and conscious possession of the pump house in which contraband was kept is not proved with sufficient evidence by prosecution. 18. Learned Counsel for the appellant placed reliance on AIR 2009 SC (Supp) 852 (Noor Aga Vs. State of Punjab & Anr.) and submitted that contraband was never produced before the Trial Court during the trial. It has caused great prejudice to the appellant. 19. In view of the evidence of Aditya Pratap Singh, Sub Inspector (PW-6) that two samples of 50 gms Cannibis from each gunny bag was taken and after taking weight on scale 11 gunny bags are also packed and sealed. Aforesaid contraband, was taken to the police station and was deposited in the Malkhana. Brijendra Kumar Singh, Constable (PW-4) stated that he took 22 packets of cannabis to F.S.L. Sagar. Aditya Pratap Singh (PW-6) stated F.S.L report Ex.P-21 was received and was produced in the trial court. Record of the Trial Court reveals that contraband or its samples was never produced in the Court. It's seizure and further handling of the contraband has been done in a very casual manner. 20. According to the provisions of Section 52(A) of the NDPS Act, in order to establish the reliability of the prosecution it is desirable and rather necessary to produce the contraband before the trial court. In case of bulk quantity even samples can be produced or even photographs of such bulk contraband should be produced before the trial court. 21. 20. According to the provisions of Section 52(A) of the NDPS Act, in order to establish the reliability of the prosecution it is desirable and rather necessary to produce the contraband before the trial court. In case of bulk quantity even samples can be produced or even photographs of such bulk contraband should be produced before the trial court. 21. To make case of the prosecution credible and free from dents and lacuna, it becomes desirable rather necessary to make sincere compliance of Section 52(A) of the NDPS Act by the prosecution. Taking cumulative view of the evidence i.e non sincere effort of the prosecution agency regarding the collection of evidence of exclusive and conscious possession of the appellant of contraband, this lapse becomes fatal in the matter of such huge quantity of contraband, proof of quantity is equally important for the purpose of deciding the case. It is more a question of awareness and sincere effort regarding compliance of provisions of NDPS Act by the prosecution. In back drop of insufficient evidence regarding exclusive and conscious possession of the pump house in which contraband was found, it's non-production in the trial court makes the case of the prosecution doubtful to the extent that no conviction can be based on such evidence. 22. As discussed above, the way investigating was conducted, does not inspire confidence. For want of proof of exclusive and conscious possession of the contraband of the appellant and non-compliance of the provisions of Section 52(A) of NDPS Act, and non-production of the contraband in the trial court, appeal deserves to be allowed. 23. Conviction and sentence of the appellant is set aside. Appellant shall be released forthwith if not required in any other case.