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2012 DIGILAW 1021 (MP)

Jailal v. State of M. P.

2012-10-08

N.K.GUPTA

body2012
Judgment N.K. Gupta, J.;- 1. The appellant has preferred this appeal against the judgment dated 16.9.1996 passed by the learned Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter it will be referred to as 'NDPS Act'), Satna in Special case No. 31/1994, whereby the appellant was convicted for the offence punishable under section 20 of NDPS Act and sentenced for 2 years' rigorous imprisonment with fine of Rs. 1,000/-. In default of payment of fine, 6 months' additional rigorous imprisonment was also directed. The prosecution's case, in short, is that, on 18.3.1994, at about 8 a.m., in the morning, ASI Shri Rajmani Singh (P.W. 5) received an information that the appellant had cultivated some Ganja plants in his land and therefore, he recorded the information in Rojnamacha and informed SDOP Shri M.L. Chhari (P.W. 2). Thereafter, he went to the spot along with the police force. SDOP Shri Chhari also accompanied him. A closed courtyard was opened by the appellant, which was locked initially. In that courtyard, it was found that the appellant had cultivated 350 plants of Ganja. Out of them, 150 plants were big and 200 plants were small. Those plants were removed from the Earth and seized. Five big plants and five small plants were sent to the Forensic Science Laboratory for their analysis. Forensic Science Laboratory in its report, Ex. P/15 found that those plants were Ganja (Cannabis). After due investigation, a charge-sheet was filed before the Special Judge under NDPS Act, Satna. 2. The appellant abjured his guilt. He took a specific plea that he was falsely implicated by Ex-sarpanch Kedarnath Pandey (P.W. 3). A dispute took place between the appellant and Kedarnath Pandey relating to the possession of some property and therefore, the investigation officer specifically took Kedarnath (P.W. 3) and his relative Jagjeevan Ram (P.W. 4) as witnesses and prepared the seizure of the plants. There is no courtyard in the house of the appellant. He has house of only 2 rooms. In defence, the appellant examined himself as D.W. 1, whereas Jeevanlal (D.W. 2) and Bhalla (D.W. 3) were also examined. 3. After considering the evidence adduced by the parties, the learned Special Judge, convicted the appellant for the offence punishable under section 20 of NDPS Act and sentenced him as mentioned above. 4. I have heard the learned counsel for the parties. 5. 3. After considering the evidence adduced by the parties, the learned Special Judge, convicted the appellant for the offence punishable under section 20 of NDPS Act and sentenced him as mentioned above. 4. I have heard the learned counsel for the parties. 5. The learned counsel for the appellant has submitted that Patwari prepared a spot map by which it would be clear that the land was of the State from where the alleged seizure is shown to be made. Kedarnath and Jagjeevan were the interested witnesses. ASI Shri Rajmani Singh did not follow the provisions of sections 42 and 50 of the NDPS Act. The seized property was not sealed at the spot. It was sent to the Forensic Science Laboratory with delay of at least 13 days. It was no where clear that the property sent to the Forensic Science Laboratory was the same, which was alleged to be seized. No seized property was produced before the trial Court and it was not shown to any of the witnesses during their examination. The learned counsel for the appellant has placed his reliance upon the judgment passed by Hon'ble the Apex Court in case of "Jitendra and another Vs. State of Madhya Pradesh", [ (2004) 10 SCC 562 ] and various judgments passed by the Single Bench of this Court in cases of "Keshardan Vs. State of Madhya Pradesh", [(2005) (3) M.P.L.J. 550], "Ramnarayan Raikwar Vs. State of Madhya Pradesh", [(2012 (1) M.P.L.J. (Cri.) 331] and "Shakil Vs. State of Madhya Pradesh", [(2009) (1) M.P.H.T. 313] and therefore, it is prayed that the appellant may be acquitted. In the alternate, it is submitted that the appellant remained in the custody for a longer period. He has faced the trial and appeal for the last 18 years and therefore, he may not be sent to the jail again. 6. On the other hand, the learned Panel Lawyer has submitted that the conviction as well as sentence directed by the trial Court appears to be appropriate. 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 the appellant can be reduced? 8. 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 the appellant can be reduced? 8. ASI Shri Rajmani Singh (P.W. 5), Kedarnath Pandey (P.W. 3), Jagjeevan Ram (P.W. 4), SDOP Shri M.L. Chhari (P.W. 2) have stated that after receiving the information, the police force went to the spot and locked door of the appellant's house was opened by the appellant himself and in the courtyard, it was found that he cultivated 350 plants of Ganja. Looking at the documents prepared by Shri Rajmani Singh, it appears that he has a good reason not to obtain any search warrant from the SDOP concerned because SDOP Shri Chhari himself went to the spot to supervise the entire raid and therefore, a person who was competent to issue a search warrant was present himself at the spot, therefore, there was no need to get issuance of a search warrant. Similarly, SDOP is also a Gazetted officer and he was present at the spot and therefore, the appellant had an opportunity to get his search by the Gazetted officer. Under such circumstances, it cannot be said that provisions of section 50 of the NDPS Act were not complied. The appellant has tried to establish an enmity between him and Kedarnath, the Ex-sarpanch. However, no such enmity could be established. The suggestion given about the enmity to the witnesses Kedarnath and Jagjeevan Ram were not accepted by these witnesses. No any document was submitted by the appellant to show that a dispute of land took place between him and Kedarnath and a case was prosecuted before the SDM. Under such circumstances, by oral evidence of the appellant Jailal (D.W. 1) and Jeevanlal (D.W. 2), it is not established that the witness Kedarnath Pandey was inimical to the appellant. 9. The testimony of ASI Shri Rajmani Singh is duly proved by SDOP Shri Chhari and it is clearly mentioned by Shri Chhari that the premises was locked and the lock was opened by the appellant himself. 10. The learned counsel for the appellant has submitted that the Patwari Ramlakhan Singh has prepared a spot map, Ex. 9. The testimony of ASI Shri Rajmani Singh is duly proved by SDOP Shri Chhari and it is clearly mentioned by Shri Chhari that the premises was locked and the lock was opened by the appellant himself. 10. The learned counsel for the appellant has submitted that the Patwari Ramlakhan Singh has prepared a spot map, Ex. P/2 and he has shown that the entire land was Government land, according to revenue Khasra Ex. P/3. In the present case, it was not the matter that the house of the appellant was constructed on a Government land by encroachment but, it was the matter in the present case that the plants were seized from a closed courtyard, within the house of the appellant, in which the person could go inside by opening the door of the house. In the spot map, Ex. P/2, Patwari has proved that there was a courtyard behind the house of the appellant, in which those plants were grown. Under such circumstances, it cannot be said that those plants were not in the possession of the appellant or he was not the cultivator of those plants. 11. The learned counsel for the appellant has placed his reliance upon the judgment passed by the Single Bench of this Court in case of Keshardan (supra) but, looking to the different factual position, that judgment passed by the Single Bench of this Court cannot be applied in the present case. 12. It is apparent that SDOP Shri Chhari himself went to the spot and therefore, he knew about the proceedings done by ASI Shri Rajmani Singh and therefore, it cannot be said that ASI Shri Rajmani Singh flouted the compliance of section 42 of the NDPS Act. Under such circumstances, looking to the factual difference, the judgment passed by the Single Bench of this Court in case of Ramnarayan (supra) is not applicable in the present case. 13. ASI Shri Rajmani Singh did not state anything about the sealing of the seized property. According to the seizure memo, Ex. P/4, it is no where mentioned that the seized property was sealed or samples were separated or they were sealed separately. 13. ASI Shri Rajmani Singh did not state anything about the sealing of the seized property. According to the seizure memo, Ex. P/4, it is no where mentioned that the seized property was sealed or samples were separated or they were sealed separately. It is true that looking to the number of plants, it was not possible for ASI Shri Rajmani Singh to seal the seized property at the spot in want of such sealing material but, it was for him to show that he sealed the samples at the spot. No procedure of sealing was adopted at the spot. It is no where established that the entire property was kept in a safe custody until 31.3.1994. If the report, Ex. P/15 given by the Forensic Science Laboratory is perused then, it would be clear that the Forensic Science Laboratory received the samples on 27.6.1994 i.e. 3 months and 9 days after its seizure. Under such circumstances, it was for the Investigation Officer to show that whether the seized property was properly sealed or handled or kept in the appropriate custody. A police officer cannot bring 350 plants of Ganja by himself but, he can arrange for 10 plants of Ganja by any method. Possibility cannot be ruled out that after 3 months of the seizure, 5-6 Ganja plants were procured by the Investigation Officer to sent them to the Forensic Science Laboratory and therefore, it was essential for the Investigation Officer to produce the remaining plants before the trial Court at the time of trial and such plants should have been shown to the various witnesses at the time of their examination. In the present case, neither such plants were deposited in the Court nor shown to the witnesses and therefore, a doubt is created that whether the plants seized from the appellant were of cannabis? Otherwise, why such plants were not produced before the trial Court. 14. In the present case, neither such plants were deposited in the Court nor shown to the witnesses and therefore, a doubt is created that whether the plants seized from the appellant were of cannabis? Otherwise, why such plants were not produced before the trial Court. 14. In the aforesaid circumstances, where the property seized was not sealed at the spot, no procedure is proved of taking sample from the seized property, it is no where shown that property was kept in a proper custody, on the contrary, property was dispatched to the Forensic Science Laboratory with delay of 3 months, the letter of dispatch was prepared on 31.3.1994 but, property was received in the Forensic Science Laboratory on 27.6.1994 and also no property was produced before the Court, under such circumstances, in the light of the judgment passed by Hon'ble the Apex Court in the case of Jitendra (supra), it cannot be said that the property seized from the appellant was Ganja. Also in the case of Shakil (supra), the Single Bench of this Court has observed that non-production of the seized property before the trial Court, sometimes becomes fatal. In the present case, it was not established that the property sent to the Forensic Science Laboratory was the same, which was seized from the appellant and therefore, non-production of the property before the trial Court was fatal. 15. In the circumstances, it is no where proved that the samples were taken from the property seized from the appellant or it was sent to the Forensic Science Laboratory. Looking to the delay in sending the samples to the Forensic Science Laboratory, a reasonable doubt is created that no sample was sent from the seized property but, some other plants were sent to the Forensic Science Laboratory. Under such circumstances, the report given by the Forensic Science Laboratory cannot be accepted in the present case. Shri Chhari has stated that he had appropriate knowledge that he could identify the Ganja plants but, his knowledge cannot be used in the present case because in the case of the NDPS Act, where a severe sentence is prescribed, an appropriate method of identification is to be adopted and therefore, the knowledge of Shri Chhari has no meaning in the present case. 16. 16. On the basis of the aforesaid discussion, it is apparent that it is not established beyond doubt that the plants found in the campus of the appellant were of Ganja and therefore, the appellant could not be convicted for the offence punishable under section 20 of the NDPS Act. The learned Special Judge has erred in convicting the appellant for the said offence. Consequently, the appeal filed by the appellant appears to be acceptable and therefore, it is hereby accepted. The conviction as well as the sentence directed against the appellant for the offence punishable under section 20 of the NDPS Act is hereby set aside. The appellant is acquitted from all the charges appended against him. He shall be entitled to get the fine amount back from the trial Court, if he had deposited the same. 17. At present, the appellant is on bail and therefore, it is directed that his bail bonds shall stand discharged. A copy of the judgment be sent to the trial Court along with its record for information and compliance.