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2012 DIGILAW 336 (MP)

Ram Kali @ Sundariya v. State of M. P.

2012-03-22

A.K.SHRIVASTAVA

body2012
JUDGMENT 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 13.3.1996 passed by learned Special Judge, Satna in Special Case No. 106/1995 convicting the appellant under section 8 (c) read with 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short “the Act”) and thereby sentencing her to suffer RI for 3 months and fine of Rs. 3,000/-; in default further RI for 3 months, the appellant has taken the shelter of this Court by preferring this appeal under section 374 (2) of the Code of Criminal Procedure, 1973. 2. In brief the case of the prosecution is that on 6.9.1995 at 8 a.m. while patrolling. Sub-Inspector, Phoolsingh Tekam received information from the informant that one lady is selling the contraband article (ganja) at Lalta Chowk. The said information was reduced in the Roznamacha of City Kotwali and necessary information in that regard was given to the Supreindent of Police from Police Kotwali. Sub-Inspector Phoolsingh Tekam along with lady constable Jyoti Bhattacharya and other police personnel arrived at Lalta Chowk where they found that appellant was selling the ganja. The Investigating Officer obtained her consent for search and thereafter the lady constable Jyoti Bhattacharya took her search and ganja weighing 200 gms. was found in a plastic bag which was tied with her waist. The ganja was seized and from the entire bulk of 200 gms. a sample of 30 gms. was taken out and the bulk and the sample were separately sealed. The appellant was arrested. The sample of contrband article (ganja) was also sent for chemical examination. 3. After completion of the investigation a charge-sheet was submitted in the Special Court who framed the charge punishable under section 20 of the Act. Needless to say that appellant abjured his guilt and pleaded complete innocence. 4. In order to bring home the charge the prosecution examined as many as three witnesses and also placed Ex. P-1 to P-9 the documents on record. The defence of the appellant is of false implication and the same defence she set forth in her statement recorded under section 313 CrPC. However, in support of her defence she did not choose to examine any witness. 5. P-1 to P-9 the documents on record. The defence of the appellant is of false implication and the same defence she set forth in her statement recorded under section 313 CrPC. However, in support of her defence she did not choose to examine any witness. 5. The learned Special Judge on the basis of the evidence placed on record came to hold that the charge has been proved and eventually convicted the appellant and passed the sentence which 1 have mentioned herein-above. 6. In this manner this appeal has been filed by the appellant assailing her judgment of conviction and order of sentence. 7. It has been vehemently put forth by Shri Shivam Singh, learned counsel for the appellant that since the alleged contraband article (ganja) is alleged to have been seized from the waist of the appellant it was imperative on the part of the investigating agency to comply with the mandatory provisions of section 50 of the Act. According to him, the appellant should be given option and should be informed that it is her right to get herself examined by the investigating officer or by gazetted officer. According to the learned counsel, this mandatory provision has not been complied with. It has also been put forth by learned counsel that the present case is on rather more worst footing for the simple reason that in the present case no notice under section 50 of the Act was given to the appellant and therefore, the conviction cannot be accorded. In support of his contention, learned counsel has placed heavy reliance on the latest decision of the Supreme Court Vijay Sinh Chandubha Jadeja v. State of Gujarat, AIR 2011 SC 77 . 8. On the other hand, Shri Kesharwari, learned Public Prosecutor argued in support of the impugned judgment and prayed that the appeal be dismissed. 9. Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed. 10. According to me, learned counsel for the appellant is correct in submitting that if the mandatory provisions of section 50 of the Act were not complied with and therefore, the appellant cannot be convicted for the simple reason that as per the case of the prosecution the contraband article (ganja) has been seized from her waist. 10. According to me, learned counsel for the appellant is correct in submitting that if the mandatory provisions of section 50 of the Act were not complied with and therefore, the appellant cannot be convicted for the simple reason that as per the case of the prosecution the contraband article (ganja) has been seized from her waist. In this context, I may profitably place reliance on the two decisions of Supreme Court, Saiyad Mohd. Saiyad Umar Saiyad and others v. State of Gujarat, (1995) 3 SCC 610 and State of Punjab v. Baldev Singh (1999) 6 SCC 172 which have been recently relied by the apex Court in Vijaysinh Chandubha (supra). On bare perusal of para -22 of the aforesaid recent decision of the apex Court it is clear that the provisions of section 50 of the Act should be strictly complied with. On bare perusal of the testimony of the Investigation Officer Phoolsingh Tekam (PW-3) nowhere it is gathered that the provisions of section 50 of the Act which are mandatory in character were complied with. 11. According to me, the present case is rather on more worst footing and is against the prosecution for the simple person that in the present case even notice under section 50 of the Act was not given and therefore, I am of the view that because the mandatory notice was not given and the mandatory conditions mentioned therein were not complied with, I have no option except to allow the appeal. 12. Apart from what I have held herein-above, in the present case, although the alleged contraband article (ganja) which was seized on the spot is said to have been sent to the FSL examiner, but, no report thereof has been placed on record and hence, an inference can also be drawn that because the contraband article was not ganja, therefore, the said report was not submitted. On further X-raying the case of prosecution and particularly the different memorandums as well as the seizure memo of the alleged contraband article nowhere it is gathered that the alleged contraband article which was seized was having any flowering or fruiting tops. To me, unless and until the contraband article is tallying with that of the definition of ganja, as envisaged under section 2 (iii) (b) of the Act, the said material which was seized, cannot be said to be ganja. 13. To me, unless and until the contraband article is tallying with that of the definition of ganja, as envisaged under section 2 (iii) (b) of the Act, the said material which was seized, cannot be said to be ganja. 13. For the reasons stated herein-above, I am unable to uphold the conviction of the appellant under section 8 (c) read with section 20 (b) (i) of the Act. 14. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from all the charges. She is on bail, her bail bonds stand discharged. The amount of fine, if deposited, be refunded to her.