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Madhya Pradesh High Court · body

2012 DIGILAW 1009 (MP)

Makhanlal v. State of M. P.

2012-10-05

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. The appellant has preferred this appeal against the judgment dated 18.9.1996 passed by the Special Judge, Sagar in Special Case No. 37/96, whereby the appellant was convicted for the offences punishable under Sections 8/20 of the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as 'the N.D.P.S. Act') and sentenced for two years' R.I. with fine of ' 1,000/-. In default of payment of fine, he was directed to undergo for one month's imprisonment in addition. The prosecution's case, in short is that, on 31.5.1996 at about 8:00 p.m., in the night, S.H.O. R.P.S. Yadav (PW-2) of Police Station Kotwali, Sagar had received an information that one Pradeep Sahu was selling some Ganja by making the packets and therefore, he intimated the C.S.P. concerned on phone. He took Nayab Tahsildar M.C. Maravi (PW-1) and Nayab Tahsildar Prakash Nayak with him and made a search in a place of Tapra. He found a white plastic bag filled up with Ganja and therefore, he seized 4 kgs. of Ganja from the accused Pradeep. The accused Pradeep had stated that he purchased that Ganja from the appellant Makhanlal and thereafter, S.H.O. Yadav went to the appellant's house and prepared a memo under Section 27 of the Evidence Act. He seized 5 kgs. of Ganja kept in a white bag from the appellant and also a balance alongwith some weight and measures. Thereafter, S.H.O. Yadav went to the house of one Govind Sahu and 5 kgs. of Ganja was also seized from him. S.H.O. Yadav arrested all the accused persons and registered a case by an FIR Ex. P/10 at Police Station, Kotwali. Ganja was transmitted to the Forensic Science Laboratory and a report dated 26.9.1996 Ex. P/11 was received from the Forensic Science Laboratory by which it was established that the substance kept by the appellant was Ganja. After due investigation, a charge sheet was filed before the Special Judge (N.D.P.S. Act), Sagar. 2. The appellant abjured his guilt. He did not take any specific plea in the case, but he has stated that he was falsely implicated. He was arrested in front of the Police Station and he was forced to make his signatures on the various papers. In defence, Narendra Kumar (DW-3) was examined to show that the appellant Makhanlal was arrested on the gate of Police Station Kotwali, Sagar. 3. He was arrested in front of the Police Station and he was forced to make his signatures on the various papers. In defence, Narendra Kumar (DW-3) was examined to show that the appellant Makhanlal was arrested on the gate of Police Station Kotwali, Sagar. 3. After considering the evidence adduced by both the parties, the learned Special Judge convicted the appellant for the offence punishable under Section 8/20 of the N.D.P.S. Act and sentenced as mentioned above. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the appellant has submitted that the procedure adopted by the concerned investigation officer was faulty. No information was given to the concerned C.S.P. against the appellant Makhanlal and no search warrant was obtained. Similarly, no notice under Section 50 of the N.D.P.S. Act was given to the appellant. On the contrary, a memo under Section 27 of the Evidence Act was recorded by force. If the investigation officer took two Nayab Tahsildars with him then, it does not mean that he did his act legally. Also it is alleged that 5 kgs. of Ganja was found with the appellant but it is nowhere mentioned that the seized article was containing leaves, flowers or fruits tops, whereas in the report given by the Forensic Science Laboratory, the packets contained leaves, flowers and fruit tops of Ganja and therefore, it appears that the alleged seized material was not sent to the Forensic Science Laboratory. Hence, the report of the Laboratory cannot be used against the appellant. It was not established that the material alleged to be seized from the appellant was Ganja. Learned counsel for the appellant placed his reliance upon the judgment passed by the Single Bench of this Court in the case of "Kadorilal Raghuvanshi Vs. State of M.P." [2005 (5) M.P.H.T. 38 (NOC)]. It is prayed that the appellant may be acquitted. In alternate, it is submitted that the appellant remained in the custody for five months. He has suffered the trial and appeal for last 16 years. He was the first offender and therefore, it is also prayed that he may not be sent to the jail again. However, some fine amount may be imposed upon him. 6. On the other hand, the learned Public Prosecutor has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct. He was the first offender and therefore, it is also prayed that he may not be sent to the jail again. However, some fine amount may be imposed upon him. 6. On the other hand, the learned Public Prosecutor has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct. Not only 5 kgs. of Ganja was seized from the appellant but also a scale alongwith some weight and measures were also seized from the appellant and therefore, it is proved that he was a vendor of the Ganja without any licence. Hence, the learned trial Court did not commit any error in convicting and sentencing the appellant. 7. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted? And whether the sentence directed against him can be reduced? 8. S.H.O. R.P.S. Yadav (PW-2) and Nayab Tahsildar M.C. Maravi (PW-1) have stated that after seizure made from a Tapra occupied by the accused Pradeep, they went to the house of the appellant Makhanlal and a memo under Section 27 of the Evidence Act was recorded. It was mentioned in the FIR Ex. P/10 that the accused Pradeep intimated that he purchased that Ganja from the appellant Makhanlal and a memo Ex. P/3-A was prepared. The provision of Section 27 of the Evidence Act is meant for confession of the accused before the police for a limited purpose that a new fact is to be gathered from the concerned accused. When some Ganja was seized from the accused Pradeep then, a memo under Section 27 of the Evidence Act relating to that seizure was not of any use. Pradeep did not tell that the appellant Makhanlal had some Ganja at a particular place or he provided some Ganja to the appellant Makhanlal. Under such circumstances, a memo Ex. P/3-A prepared under Section 27 of the Evidence Act from the accused Pradeep was inadmissible in the evidence and it has no evidentiary value. 9. By the memo Ex. Pradeep did not tell that the appellant Makhanlal had some Ganja at a particular place or he provided some Ganja to the appellant Makhanlal. Under such circumstances, a memo Ex. P/3-A prepared under Section 27 of the Evidence Act from the accused Pradeep was inadmissible in the evidence and it has no evidentiary value. 9. By the memo Ex. P/3-A, at the most it can be said that the investigation officer received an information that the appellant had some Ganja with him and therefore, it was for the investigation officer to record the information in the Rojnamchasanah and to intimate the Deputy S.P. and to obtain a search warrant. If, there was any urgency then it was for the concerned officer to record the reasons as to why a search warrant was not obtained. Inspector Yadav initially observed such process for the accused Pradeep, but after getting the information about the appellant Makhanlal, he did not comply with the provision of Section 42 of the N.D.P.S. Act and he directly raid to the appellant's house. He did not give his search before entering in the house of the appellant Makhanlal, whereas it was possible that he got 14 kgs. of Ganja from the accused Pradeep and he bifurcated that Ganja amongst accused persons including the appellant. It is true that Nayab Tahsildars Shri M.C. Maravi & Prakash Nayak were with him, but it was for him to comply the provisions of law. Shri Maravi has accepted that Inspector Yadav did not take any search of anybody and he did not comply the provision of Section 50 of the N.D.P.S. Act for the appellant. On the contrary, he recorded a memo under Section 27 of the Evidence Act and thereafter, seized the property. Under such circumstances, where the procedure adopted by the Inspector Yadav was not followed according the Provisions of Section 42 of the N.D.P.S. Act, his testimony cannot be believed beyond doubt, though it was supported by one Nayab Tahsildar i.e. Shri Maravi. 10. If a search is taken of any house then, the search of that persons is also required and therefore, it was for the investigation officer to give a notice under Section 50 of the N.D.P.S. Act and if the appellant wanted to get his search by a Magistrate or by a Gazetted officer then, such opportunity was given to him. If a search is taken of any house then, the search of that persons is also required and therefore, it was for the investigation officer to give a notice under Section 50 of the N.D.P.S. Act and if the appellant wanted to get his search by a Magistrate or by a Gazetted officer then, such opportunity was given to him. Admittedly, Nayab Tahsildar was not at all a Gazetted Officer. Under such circumstances, though the investigation officer took the witnesses being revenue officers but by their evidence, no confidence is inspired to the activity of the inspector Yadav. If some officers are to be taken as witnesses then, a permission was required from the concerned Collector to take such officer as witnesses. Inspector Yadav and Shri Nayab Tahsildar M.C. Maravi did not tell anything about the permission received from the Collector and therefore, if both the Nayab Tahsildars went alongwith the Inspector Yadav then, there was their personal activity, they cannot be said to be authorized witnesses in such circumstances. 11. Also it is apparent that after the seizure of Ganja by memo Ex. P/6, it is nowhere mentioned that it was sealed at the spot and no impression of the sealing was affixed on the seizure memo Ex. P/6. The alleged property was alleged to be seized on 31.5.1996, whereas it appears from the Forensic Science Laboratory's report Ex. P/11 that the property was received by the Laboratory on 20.6.1996. It is nowhere shown as to whether the property was kept for 20 days in the proper custody or not. The Laboratory had received five samples of the Ganja seized from the appellant but it is nowhere mentioned on Ex. P/6 that the samples were removed from the Ganja and the samples were sealed at the spot. The procedure adopted by the investigation officer is silent to the fact that when and where those 5-6 samples were prepared and whether those samples were packed from the substance, which was seized from the appellant. The investigation officer has hidden about the procedure as and when he prepared the samples of the seized property. 12. It is most important to note that in the report of the Forensic Science Laboratory, it is mentioned that the samples contained some leaves, branches, seeds and flowering tops of Ganja, whereas it is nowhere mentioned in the seizure memo Ex. 12. It is most important to note that in the report of the Forensic Science Laboratory, it is mentioned that the samples contained some leaves, branches, seeds and flowering tops of Ganja, whereas it is nowhere mentioned in the seizure memo Ex. P/6 that the seized Ganja was in such a form and therefore, it cannot be said that the property sent to the Forensic Science Laboratory for analysis was the same, which was seized from the appellant. Under such circumstances, the report given by the Forensic Science Laboratory cannot be read for the substance amount to be seized from the appellant. In this connection, the judgment passed by the Single Bench of this Court in the case of Kadorilal (supra) may be referred. Under such circumstances, the prosecution has failed to prove that any contraband substance was seized from the appellant or the alleged seized property was found to be Ganja. The investigation officer has adopted a faulty method in alleged seizure and therefore, the appellant cannot be convicted for the offence punishable under Section 8/20 of the N.D.P.S. Act. The learned Special Judge has committed an error in convicting the appellant for the said offence. 13. Since the conviction directed by the trial Court is not maintainable therefore, there is no need to discuss about the sentence which can be directed to the appellant. 14. On the basis of aforesaid discussion, where it was not proved beyond doubt that the Forensic Science Laboratory's report was for the substance alleged to be seized from the appellant or anything was seized from the appellant. The investigation officer did not comply with the Provisions of Sections 42 & 50 of the N.D.P.S. Act. Hence, the appeal filed by the appellant appears to be acceptable. Consequently, it is hereby allowed. The conviction as well as the sentence directed against the appellant for the offence punishable under Sections 8/20 of the N.D.P.S. Act is hereby set aside. He is acquitted from all the charges levelled against him. The appellant would be entitled to get the fine amount, if he has deposited the same before the trial Court. 15. At present, the appellant is on bail therefore, it is directed that his bail bonds shall stand discharged. copy of the judgment be sent to the trial Court alongwith its record for information and compliance.