Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 578 (MP)

Beta alias Ram Kinker v. State of M. P.

2012-06-20

U.C.MAHESHWARI

body2012
JUDGMENT : 1.This appeal is preferred by the appellant/accused being aggrieved by thejudgment dated 9.7.96 passed by the Special Judge (Constituted under theNarcotic Drugs and Psychotropic Substances Act, 1985) in Special Case No.88/95convicting the appellant under section 8/20 of the Narcotic Drugs andPsychotropic Substances Act, 1985 (for short `the Act') with a direction toundergo for RI 2 years with fine of Rs.5000/-, in default of payment of fine,further RI one year. As per findings of the above mentioned judgment, theappellant was found in possession of 1.950 Kg of the contraband substance theGanja. 2.The facts giving rise to this appeal in short are that on dated 10.8.95 Shri Phool Singh Tekam , Sub Inspect of Police, being posted as Incharge of Social Security Scott ( Samajik Suraksha Dasta ) Satna , received information from the informer that someunknown person, in a attachi , carrying contrabandsubstance the Ganja, is standing at Dhawari Square.He apprised such information through telephone to CitySuperintendent of Police Satna and also endorsed thesame in the Rojnamcha Sanha Ex.P/10 at police station Kotwali . Subsequent to it,accompanied with the staff member ASI N.P.Shrivastav ,Head Constable Ramdev and four constables proceeded towards the aforesaid square where near the Girls School , he found the appellant witha attachi . At the same time City Superintendent ofPolice also reached there. In presence of such senior police officer and theindependent witnesses, namely, Munna Singh alias Gopal (PW 2) and Prem Lal (PW 3), he took the consent of the appellant tocarry-out his search and pursuant to that the same was carried out. In suchsearch from the possession of the appellant a key was found by which the attachi was opened in which two packets covered with paperwere found. Out of them, in one packet one k.g and inanother packet 950 gram of contraband substance the Ganja was found. The samewas seized and out of aforesaid both the seized packets, the sample of 30 gramswere taken out. The samples and the remaining substance was sealed, Dehati Nalishi wasdrawn-up and thereafter the appellant was arrested. Subsequent to the aforesaidproceedings, he accompanied with accused and alleged substance came to thePolice Station Kotwali , Satna where he endorsed his arrival in the Rojnamcha Sanha of such Police Station. The samples and the remaining substance was sealed, Dehati Nalishi wasdrawn-up and thereafter the appellant was arrested. Subsequent to the aforesaidproceedings, he accompanied with accused and alleged substance came to thePolice Station Kotwali , Satna where he endorsed his arrival in the Rojnamcha Sanha of such Police Station. He also informed about thearrest of the appellant and the seizure of the substance and Dehati Nalishi to the City Kotwali , on which, the FIR for the offence of section 20 ofthe Act was registered against the appellant. Thereafter the aforesaid samplesof the seized substance were sent to the FSL Sagar for its chemical examination from where the report was received according towhich the same was found to be the contraband substance the Ganja. After holding the investigation on establishing the primafacie circumstance against the appellant for the aforesaid offence, he wascharge sheeted for his prosecution under the aforesaid section. 3.On evaluation of the charge-sheet, the charge of section 20 of the Act wasframed against the appellant. He abjured the guilt, on which, the trial washeld, after recording the evidence of the prosecution as well as the defence , on appreciation, after holding guilty to the appellant,he was punished with the sentence as mentioned above. The same is underchallenge in this appeal. 4. Shri Surendra Singh, learned Senior counsel of the appellant after takingme through the record of the trial court along with the impugned judgment saidthat the investigating agency had utterly failed to comply the mandatoryprovisions of sections 42 and 55 of the Act. In the lack of such mandatorycompliance, the impugned conviction of the appellant is not sustainable.Besides this, he also assailed the impugned judgment on other grounds sayingthat from the place of seizure of the substance in which manner it was handledby the investigating officer and his companions upto the Police station and after reaching to the Police Station in which manner itwas dealt with or was kept in whose safe custody, have not been proved. Even inthis regard neither any Rojnamcha entry nor anyregister of Malkhana of the concerning Police stationhas either been produced or proved on the record. In the lack of it, it couldnot be deemed that after seizing the substance the same was properly handledand kept in some safe custody from where the sample was sent to the FSL for itschemical examination. Even inthis regard neither any Rojnamcha entry nor anyregister of Malkhana of the concerning Police stationhas either been produced or proved on the record. In the lack of it, it couldnot be deemed that after seizing the substance the same was properly handledand kept in some safe custody from where the sample was sent to the FSL for itschemical examination. According to him, unless the chain of keeping the seizedsubstance and its sample in the safe custody and handled by the responsibleperson properly upto reaching the samples to the FSLis proved, the appellant could not be convicted mere on the basis of FSLreport. Because in the lack of such material evidence it could not be assumedor deemed that the sample of the same substance, as alleged seized from theappellant, was sent to the FSL. He further said that except the Rojnamcha Sanha Ex.P/10 in whichthe entry regarding information of the informer was endorsed and the entry ofthe Rojnamcha (Ex.P/13) regarding arrival of saidPolice Officer from the place of seizure to the Police Station after seizingthe substance, no other relevant Rojnamcha entrieshas neither been produced nor proved on the record. The entry in the Rojnamcha regarding departure of the aforesaid policeofficer Phool SinghTekam (PW 4) accompanied with the other police officials and the independentwitnesses to the alleged place of the seizure, has neither been produced norproved on the record. In the lack of it, it could not be assumed that on thedate of the incident such police officials visited the place of incident shownby the informer. In continuation he said that the search memoof the appellant as well as the seizure memo of the alleged substance and theother papers, as alleged prepared during the course of investigation inpresence of the witnesses, have not been supported by the allegedwitnesses Munna alias Gopal (PW 2) and PremLal (PW 3). In the available scenarioof the case, mere on the basis of the testimony of the Investigating Officer Phool SinghTekam (PW 4), theappellant could not be convicted. He also said that by which process and personthe alleged substance was weighed on the spot, the same has not been stated inthe seizure memo of the substance or the memo prepared for preparing thesamples (Ex.P/5 and P/6). He also said that by which process and personthe alleged substance was weighed on the spot, the same has not been stated inthe seizure memo of the substance or the memo prepared for preparing thesamples (Ex.P/5 and P/6). In addition it was also argued that the entire seizedsubstance was neither produced before the trial court nor marked the articlesand in the lack of it, in view of the principle laid down by the Apex Court inthe matter of Ashok Vs. State of M.P- (2011) 5 SCC123, the impugned conviction could not be sustained. With these submissions, heprayed for extending the acquittal to the appellant by setting aside theimpugned judgment by allowing the appeal. 5.On the other hand, Shri Umesh Pandey , learned Govt. Advocate, by justifying theimpugned conviction and the sentence of the appellant said that the same isbased on sound appreciation of the evidence and also is in conformity with law.It does not require any interference at this stage for extending the acquittalto the appellant. He further said that in the course of the investigation, theaforesaid mandatory provision of the Act has been duly complied with by the investigatingagency so on such count also the appellant does not deserve for acquittal. Hefairly conceded that the alleged entire substance was neither produced normarked as article in the trial court but no such objection was taken by theappellant in the trial court nor any demand to produce the same was made onbehalf of the appellant, therefore, the appellant is not entitled to get anybenefit on this count and prayed for dismissal of the appeal. 6.Having heard the counsel at length, keeping in view their arguments, afterperusing the record, I am of the view that the impugned conviction of theappellant under the aforesaid section, due to following reasons, is notsustainable. 7.It is apparent on record that on receiving the information from the informerabout having the possession of contraband substance Ganja with the appellantafter recording the same in the Rojnamcha Sanha Ex.P/10 at P.S City Kotwali , Satna , its intimation incompliance of section 42 of the Act, was not sent to the senior policeofficials. Although, in this regard, an explanation has been put forth by theprosecution that such information was given through telephonic message from PS Kotwali to the office of City Superintendent of Police butin that regard the concerning Rojnamcha is neitherproduced nor proved on the record. Although, in this regard, an explanation has been put forth by theprosecution that such information was given through telephonic message from PS Kotwali to the office of City Superintendent of Police butin that regard the concerning Rojnamcha is neitherproduced nor proved on the record. In the lack of such Rojnamcha ,it could not be assumed or deemed that such information was given to the CitySuperintendent of Police, Satna . It is also notproved that in which manner the independent witnesses were called at the PoliceStation before leaving the Police Station for the place of incident. In thisregard neither any Rojnamcha nor the panchnama has been produced or proved on the record. Thismakes the presence of independent witnesses with the police party doubtful. 8.Besides the aforesaid, I have not found any panchnama showing that the appellant was informed in writing about his right to besearched in presence of some Gazetted officer orthrough Magistrate. It is undisputed fact that initially on carrying out thesearch of the appellant some key was found from his possession by which the attachi was opened. In that circumstance, in order to provethat the key was recovered from the pocket of the appellant, the prosecution hasto carryout the search of the appellant after apprising him the right to besearched in the manner provided under the law. In the lack of it, mere on thebasis of the consent letter of the appellant prepared by the seizing officerwith the signatures of the above named independent witnesses giving consent bythe appellant to carry out his search by said police officer does not fulfillthe legal requirement of search in accordance with the section 50 of the Act orthe concerning provision of the Cr.P.C .. Whenever thesearch of the person is required and there is no time with the police officerto get the search warrant from the concerning Magistrate or the Authority thenhe could have been searched only after preparing the panchnama stating the reasons to carry-out the search without getting the search warrantfrom the Magistrate or the concerning Authority. So, in such premises also theinitial search was not carried out by the investigating agency in accordancewith the procedure prescribed under the aforesaid provisions of the law. So, in such premises also theinitial search was not carried out by the investigating agency in accordancewith the procedure prescribed under the aforesaid provisions of the law. 9.On further examination of the matter, I have found that before taking thesearch of the appellant, the police officials and other witnesses were giventheir search to the appellant by Ex.P/3 in which no implicating thing was foundin their possession. Thereafter, on carrying out the search of the appellant, akey of the attachi was found in his pocket for which panchnama Ex.P/3 was prepared. Such key was also seized byEx.P/4 and on opening the attachi , the alleged substancein two different packets of 1 kg and 950 grams, as stated above, were found insuch attachi . The same was seized by Ex.P/5. I havenot found any averment in the aforesaid seizure memo Ex.P/5 showing that onwhat basis the alleged substance was stated to be the Ganja because it is notstated that either by tasting by tongue or by smelling through nose it wasfound to be the Ganja. So in such way also the seizure memo appears to beincomplete on material count. It is also apparent that by which person and inwhich manner and by which instrument it was weighed on the spot. The same hasnot been mentioned in the panchnama . Even on perusingthe panchnama Ex.P/6, I have not found in whichmanner the sample of 30 grams of such substance was weighed and sealedseparately because no person has been examined in this regard to show that suchsubstance was weighed by him. Even the panchnama ofweighing the substance has not been prepared. So, in such premises both seizure panchnama and the sample panchnama Ex.P/5 and P/6 become suspicious. 10.Besides the aforesaid after seizing the alleged substance and arresting of theappellant from the place of seizure upto the policestation and further till sending the sample to the FSL Sagar ,in which manner the seized substance and the samples were handled by theinvestigating agency, the same has neither been explained nor proved on therecord by examining the concerning witnesses by whom the same was handled. Insuch circumstance, the inference could be drawn that from the place of incidentthe sample was handled by various persons at different places without preparingany panchnama or making any entry in the Rojnamcha or in other record kept for this purpose. Insuch circumstance, the inference could be drawn that from the place of incidentthe sample was handled by various persons at different places without preparingany panchnama or making any entry in the Rojnamcha or in other record kept for this purpose. In thelack of such material evidence and deposition of concerning witnesses, it couldnot be assumed that the sample and the seized substance was safely and properlyhandled by the prosecution agency till sending the sample to the FSL Sagar and also subsequently. The Rojnamcha entries in this regard have also neither been filed nor proved on the record.In such circumstances the possibility to temper the substance and its samplecould not be ruled out. The benefit of this lacuna left by the prosecutionshould be given to the appellant as laid down by the Apex Court in the matterof The State of Rajasthan Vs. Daulat Ram-AIR 1980 SC1314 in which it was held as under :- “Wherethe samples of opium changed several hands before reaching the public analystand yet none of those in whose custody the samples remained were examined bythe prosecution to prove that while in their custody the seals on the sampleswere not tampered with, the inevitable effect of the omission was that theprosecution failed to rule out the possibility of the samples being changed ortampered with during the period in question- a fact which had to be provedaffirmatively by the prosecution. Consequently, the accused could not beconvicted under S.9A. In such a case, the prosecution could not be allowed tofill-up the gaps in the prosecution story at the appellate or revisional stage.” .. ...... Placitum 11.Apart the above4 from the place of seizure, on reaching the seizing officer tothe Police Station the seized substance was kept in the safe custody in thisregard, the Rojnamcha entry and the entry of the malkhana register has neither been produced nor proved onthe record. In the lack of it, it could not be assumed that the entiresubstance and the sample were kept in the safe custody in compliance of theprovision of section 55 of the Act till sending the same to the FSL. 12.It is also apparent that the person who took the samples as carrier to the FSLhas neither been examined nor any explanation in this regard has been put forthon the record. 12.It is also apparent that the person who took the samples as carrier to the FSLhas neither been examined nor any explanation in this regard has been put forthon the record. Even the concerning Rojnamcha entries the departure of the police official taking the sample to FSL, hasneither been produced nor proved on record. In order to prove that thesame sample prepared on the spot were sent to FSL, the prosecution was bound toproduce and prove the concerning entries of the Rojnamcha whereby the same was kept in the Malkhana of thePolice Station and also by which the samples were taken-out from such Malkhana for sending the same to FSL. In the lack of suchpositive and admissible evidence, mere on the testimony of the InvestigatingOfficer, it could not be assumed that the same sample was sent to the FSL andpursuant to it, it could not be said that the prosecution has proved beyondreasonable doubt that the seized alleged substance from the possession of theappellant was contraband substance the Ganja. 13.In the aforesaid premises, it is apparent that the prosecution has failed toprove the compliance of section 42 and 55 of the Act. 14.It is also apparent that even after arrival to the Police station anyinformation regarding the seized substance from the appellant with all relevantrequisite particulars has not been sent to the senior officials in writing. Nodocument in this regard has been produced on record. If such information wassent through telephonic message even then in the lack of proving the concerning Rojnamcha entries such version of the prosecutioncould not be relied on. 15.Apart the above, it is apparent fact on record that the independent witnessesof all the aforesaid panchnama including the seizurememo, namely, Munna alias Gopal (PW 2) and Prem Lal (PW 3)have not supported to the prosecution case. On the contrary on recording theirdeposition they turned hostile. Thus, in the lack of independent supportingevidence and in the light of the aforesaid lacunas in the case left by theprosecution, mere on the testimony of the Investigating Officer Phool Singh Tekam (PW 4) theimpugned conviction of the appellant could not be sustained. 16.In view of the aforesaid discussion, there is no option with the Court exceptto hold that the trial court has committed grave error in holding guilty to theappellant for the alleged offence of the Act for having possession of 1 kg and950 grams contraband substance the Ganja. 16.In view of the aforesaid discussion, there is no option with the Court exceptto hold that the trial court has committed grave error in holding guilty to theappellant for the alleged offence of the Act for having possession of 1 kg and950 grams contraband substance the Ganja. Pursuant to it, the appellantdeserves to be acquitted from the alleged charge. 17.After coming to the conclusion that the trial court has committed error inholding guilty to the appellant for the alleged offence, taking intoconsideration that the alleged substance was neither produced nor marked anarticle before the trial court, I do not find fit to consider such question orin any case to remand the matter to the trial court under section 386 of the Cr.P.C to extend such opportunity to the prosecution in thematter as even after producing and marking the same as article, the aforesaidtechnical lacunas left by investigating agency could not be cured by theprosecution. Therefore, this question raised by the appellant's counsel doesnot require any consideration in the present matter. 18.In view of the aforesaid discussion, this appeal is allowed and the impugnedjudgment of conviction and sentence of the appellant is hereby set aside.Pursuant to it, he is acquitted from the charge of section 8/20 of the Act.Consequently, his awarded punishment is also set aside. His bail bonds arehereby discharged. The amount of fine, if deposited, be refunded to him afterdue verification. 19.The appeal is allowed as indicated above.