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Madhya Pradesh High Court · body

2012 DIGILAW 223 (MP)

Ramesh @ Durga Singh Lodhi v. State of M. P.

2012-02-21

R.C.MISHRA

body2012
JUDGMENT : Thisappeal has been preferred against judgment dated 13-4-96 passed by SessionsJudge (designated as Special Judge under the Narcotic Drugs and PsychotropicSubstances Act, 1985 (for brevity 'the Act')], Damoh in S.T. No. 1 1/95, whereby the appellant was convicted under Section 20 (b) ( i ) of the Act and sentenced to undergo R.I. for 4 years andto pay fine of Rs . 2000/- and in default, to sufferRI for 6 months. 2.Connected appeals, numbered as Cri . Appeal Nos.864/96 and 878/96, arising out of same transaction, are being decidedsimultaneously but, by separate judgments with a view to avoiding conflict ofopinions. 3.Prosecution story, in short, may be narrated thus : - ( i ) On 8-2-95 , Ved Prakash Sharma (P.W. 3)posted as Additional S.P. at Damoh , had come to Nohta for annual inspection of Police Station locatedthere. At about 3.15 p.m. , a credible information was received to the effect that aconsignment of huge quantity ofGanja , packed insacks, and transported in TATA-407 Vehicle No. MP-15D-0273, was unloaded at thehouse of Munna @ Narendra Singh situated in Village Khamaria Maujilal (for short ' Khamaria ')and was distributed to the appellant and other persons namely Harishankar (appellant in Cri .Appeal No. 864/96), Umrai Singh (appellant in Cri . Appeal No. 878/96), Lakhan Singh (since dead) (appellant in Cri . Appeal No.788/96) and Narayan (since dead) (appellant in Cri . Appeal No. 797/96). This information was recorded atSI. No. 215 of Rojnamcha of thePolice Station. Thereafter, a police party headed by Ved Prakash Sharma and comprising SHO B.B. Sharma (P.W.4) proceeded in Govt. Vehicle No. M.P.P. 1926 to the village. (ii)The appellant and other suspects were called to Panchayat Bhavan for interrogation. Upon statement made byappellant in presence of panch witnesses viz., Kishore Singh (P.W. 1) and Babu Singh (P.W. 2) and at his instance, a white plastic sack containing 9 kg. of Ganja was recovered from his house located in Village Khamaria only. (iii)The contraband was duly seized and was taken to the police station where asample of 20 grams of the contraband was drawn. The sample was forwarded toFSL, Sagar for chemical analysis. Correspondingreport ( Exh . P-8) indicated that the samplecontained Ganja. 4.Appellant abjured the guilt and pleaded false implication due to politicalrivalry at the instance of co-villager Deshraj Singh.However, no evidence was led in defence . The sample was forwarded toFSL, Sagar for chemical analysis. Correspondingreport ( Exh . P-8) indicated that the samplecontained Ganja. 4.Appellant abjured the guilt and pleaded false implication due to politicalrivalry at the instance of co-villager Deshraj Singh.However, no evidence was led in defence . 5.Legality and propriety of the impugned conviction have been challenged on these grounds : - (a)Non-corroboration of the prosecution case by independent witnesses. (b)Non-compliance with statutory provisions relating to search and seizure of thecontraband. (c)Possibility that the seized article was tampered with at the police station. Inresponse, learned Panel Lawyer, while making reference to the incriminatingpieces of evidence on record and highlighting the fact that entire process ofsearch and seizure was conducted in presence of Additional S.P., a Gazetted Officer, has submitted that the conviction is wellfounded. 6.Although, panch witnesses Kishore Singh (P.W. 1) and Babu Singh (P.W. 2) admitted theirsignatures on the memorandum, under Section 27 of the Evidence Act ( Exh . P-1) and seizure memo ( Exh . P-2) yet, none of them came forward tocorroborate the recitals thereof, evidencing that pursuant to information givenby the appellant only, 9 kg. of Ganja was seized from his possession. Thus, the prosecution case hinges on thetestimony of the official witnesses. 7. Ved Prakash Sharma (P.W.3), the Additional Superintendent of Police, vividly described the circumstancesleading to recovery of the contraband. As per his statement,- ( i ) After receiving the information at the Police Station,he had proceeded along with the SHO B.B. Sharma and other members of the policeforce to Village Khamaria , where the appellant aswell as the other persons reported to be involved in an illicit trade of Ganja,were summoned at Panchayat Bhavan . (ii)Each one of the suspects was interrogated individually by SHO B.B. Sharma inhis presence and pursuant to the information furnished by the appellant, bothof them had proceeded along with the appellant and the panch witnesses to a house wherefrom a plastic sack containing about 9 kg. of Ganja was recovered. 8.Evidence of Ved Prakash Sharma drew ample support from the statement of SHO B.B. Sharma and thecontents of Ravangi Report ( Exh . P-5) as well as that of Wapsi Report ( Exh . P-9) recorded respectively atSerial Nos. 215 and 234 of the Rojnamcha at 3.15 and 8.50 p.m. on 9-2-1995 . His signature on thecorresponding memo ( Exh . P-5) as well as that of Wapsi Report ( Exh . P-9) recorded respectively atSerial Nos. 215 and 234 of the Rojnamcha at 3.15 and 8.50 p.m. on 9-2-1995 . His signature on thecorresponding memo ( Exh . P-2) duly reflectedhis presence at the time of seizure of the contraband. 9.According to B.B. Sharma (P.W. 4), it was he who had interrogated the appellantat the Panchayat Bhavan andscribed the memorandum ( Exh . P-1)upon information given by the appellant to the effect that 9 kg. of Ganja, packed in a sack, was kept in his house. Hefurther testified that at the instance of the appellant only, 9 kg of Ganjapacked in a white sack was recovered from the house. He was cross-examined at lengthbut nothing materially inconsistent with the recitals of the documents relatingto proceedings starting from the recording of information and culminating inseizure of the contraband could be elicited. The seized sack containing thecontraband was also produced before the Trial Court as Article 'A' in evidence. 10.As further asserted by B.B. Sharma, he had registered the offence by recordingthe Dehati Nalishi ( Exh . P-6) at the spot and deputedConstable Leeladhar (P. W. 6) to produce the same atthe police station. Head Constable Madhur Goswami (P.W. 5) corroborated the fact that he had recordedthe FIR ( Exh . P-10) on the basis of Dehati Nalishi brought by Leeladhar . 11.It is true that none of the panch witnesses namedabove came forward to support the prosecution version but this fact, by itself,would not make the prosecution case relating to seizure of huge quantity ofGanja less acceptable, if otherwise the Court is satisfied from the material onrecord and from the evidence of the seizing authority that such seizure wasgenuinely made [P.P. Fathima Vs. State of Kerala , (2003) 8 SCC 726 relied on]. Further, the offencedoes not affect any private individual but the society at large. 12.Coming to the probability of the defence , it may beseen that in the cross-examination of Ved Prakash Sharma, no suggestion was made to the effect thatthe appellant was implicated at the behest of Deshraj Singh whereas B.B. Sharma emphatically denied such a suggestion. Further, the offencedoes not affect any private individual but the society at large. 12.Coming to the probability of the defence , it may beseen that in the cross-examination of Ved Prakash Sharma, no suggestion was made to the effect thatthe appellant was implicated at the behest of Deshraj Singh whereas B.B. Sharma emphatically denied such a suggestion. Moreover, onone hand, the defence was not able to bring any facton record so as to suggest that Deshraj was capableof exerting political influence on the police officials for implicating theappellant in a false case and on the other, the fact that Additional S.P. wasalso a member of search party also lent additional strength to the veracity ofthe prosecution version. 13.The requirement of provision of sub-section (1) of Section 42 of the Act, toreduce the secret information into writing before taking any action thereon wasduly fulfilled by making entry ( Exh . P-5) in the Rojnamcha and provision of sub-section (2) of Section 42thereof, was not necessary simply because Additional S.P., being the immediatesuperior officer of the SHO, was a member of the search party and was alsoexercising his authority. Section 50 of the Act was not attracted as there wasno personal search. Since the SHO himself effected theseizure and arrested the appellant, sub-section (4) of Section 52 also had noapplication. 14.Paragraph 1.3 of the standing instruction No. 1 of 1988 issued by the NarcoticsControl Bureau reads as under :- "Allillicit narcotic drugs or psychotropic substances recovered from a person,place, conveyance etc. are material evidence as they are liable toconfiscation. Further, they constitute primary evidence for any act, omissionor commission on the part of a person rendering him liable for punishment underChapter IV of the NDPS Act, 1985. Most of the narcotic drugs and Psychotropicsubstances cannot be conclusively proved, to be such drugs or substances merelyby visual examination in the Trial Court and they require to be proved bychemical analysis to be conducted by chemists authorised under Section 293 of Cr.PC , 1973...." 15.Accordingly, the requirement is to send the sample of seized narcotic drug forchemical analysis. Narcotic Drugs and Psychotropic Substances Rules, 1985 aresilent on the procedure to be adopted for taking sample of the seizedcontraband whereas non-compliance with the standing orders and instructionsissued by the Central Government under Section 52-A (1) of the Act, for drawingof samples does not vitiate the trial [State of Punjab Vs. Narcotic Drugs and Psychotropic Substances Rules, 1985 aresilent on the procedure to be adopted for taking sample of the seizedcontraband whereas non-compliance with the standing orders and instructionsissued by the Central Government under Section 52-A (1) of the Act, for drawingof samples does not vitiate the trial [State of Punjab Vs. Makhan Chanel , (2004) 3 SCC 453 referred to]. However, aspointed out by the Apex Court in Khet Singh Vs. Unionof India, AIR 2002 SC 1450 , even though, the standing orders are not inexorablerules yet, to avoid any suspicious circumstance and to have a fair procedure inrespect of search, seizure and sampling, it is always desirable to prepare the panchnama and, as an obvious corollary, to take sample atthe spot itself where the contraband was seized. But, the fact remains thatthere is no express legal bar to drawing of sample at a later stage, providedthere are justifiable and reasonable grounds to do so. 16.Section 55 of the Act authorises the Station HouseOfficer to keep in safe custody the seized contraband. B.B. Sharma (P.W. 4) wasemphatic in stating that he had drawn sample of the seized contraband inpresence of the persons who had witnessed the search and had made thecorresponding entry in the case diary. No effective cross-examination was madeto demolish this evidence. Constable 1 Leeladhar (P.W. 6), who was deputed to carry the sample to the FSL, clearly deposed thatit was handed over in a sealed packet. He firmly denied the suggestion thatcontents of the packet were tampered with by him and the SHO. A copy of theletter forwarded to the S.P. as well as FSL report clearly indicated that thesample was sent to the FSL on 17-2-1995 .By examining SHO B.B. Sharma and Constable Leeladhar ,the prosecution had ruled out the possibility of the sample being changed ortampered with during the aforesaid period. As pointed out already, there wasnothing on record to suggest that the SHO was, in any way, interested insecuring conviction of the appellant on absolutely false grounds. This apart,the remaining quantity of the seized contraband, allegedly packed and sealed inpresence of the appellant in the sack (Article 'A'), was also produced as anarticle of evidence before the Trial Court. But, the appellant neitherpreferred to challenge identity of the sack nor took the plea that the seizedarticle was not Ganja. This apart,the remaining quantity of the seized contraband, allegedly packed and sealed inpresence of the appellant in the sack (Article 'A'), was also produced as anarticle of evidence before the Trial Court. But, the appellant neitherpreferred to challenge identity of the sack nor took the plea that the seizedarticle was not Ganja. 17.In the light of these peculiar facts and circumstances of the case, omission todraw sample of the contraband at the spot was rightly considered as only aprocedural lapse on the part of the SHO, not sufficient to render the searchand seizure illegal. 18. As reflected in the report ( Exh .P-8), the sample forwarded for chemical examination contained Gcinja viz., cannabis/hemp within the meaning of Section 2(iii) (b) of the Act. The appellant did not discharge the onus of proof torebut the presumption envisaged under Section 35 and 54 of the Act, by showingthat he had no knowledge about the fact that the sack kept in his housecontained Ganja. 19.For these reasons, none of the contentions raised against legality and propriety of the conviction has any merit. In the face ofoverwhelming incriminating evidence on record, learned Trial Judge did notcommit any illegality in convicting the appellant for the offence charged with. 20.This brings me to the question of sentence. A considerable period of more than17 years has elapsed after the incident in question. Learned Counsel hasinformed that the appellant has already suffered imprisonment for a period ofnearly 1 year and 4 months. Under the un-amended penal provision, that was inforce at the time of the alleged incident, the offence carried a maximumpunishment of imprisonment for a term of 5 years and fine upto Rs . 50,000/-. In these circumstances, no usefulpurpose would be served by sending the appellant back to jail. Taking intoconsideration the facts and circumstances of the case, interests of justicewould be met if the sentence of imprisonment is reduced to the period alreadyundergone by the appellant and the fine amount is enhanced to Rs . 5000/-. 21.In the result, the appeal is allowed in part. The impugned conviction is herebyaffirmed. However, the term of consequent sentence of imprisonment is reducedfrom four years to the period already undergone whereas the amount of fine isenhanced from Rs . 2000/- to Rs .5000/- with the stipulation that in default of payment of fine, the appellantshall have to suffer RI for 3 months. The impugned conviction is herebyaffirmed. However, the term of consequent sentence of imprisonment is reducedfrom four years to the period already undergone whereas the amount of fine isenhanced from Rs . 2000/- to Rs .5000/- with the stipulation that in default of payment of fine, the appellantshall have to suffer RI for 3 months. 22.Appellant Ramesh is directed to deposit the enhancedamount of fine on or before 20-4-2012 before the Trial Court or to remain present on that date for being committed tocustody to undergo the default sentence.