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Madhya Pradesh High Court · body

2012 DIGILAW 666 (MP)

Jawaharlal v. State of M. P.

2012-07-04

P.K.JAISWAL

body2012
JUDGMENT 1. Appellants Jawaharlal and Pokharlal, who are real brothers, are aggrieved by the judgment of conviction dated 24.1.1997, passed by the Additional Sessions Judge, Jaora, district Ratlam in Sessions Trial No.101/95, whereby both of them have been convicted under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) and sentenced to 10 years’ RI each with fine of Rs.1,00,000/- and in default of payment of fine to undergo further RI for 2 years each. 2. Brief facts of the case are that, on 22.3.1995, at about 10:30 in the morning, S.B. Singh Bais, SHO Police Station Piploda received a secret information from his informer that at village Pancheva Jawaharlal son of Raghunath Anjana, resident of Pancheva had sown opium plants which are lying in his field. The said intimation was recorded at the police station vide Rojnamcha Sanha (daily diary) No.1936. After sometime, at 11:00 a.m. he again received an information from the said informer that if immediate action is not taken, the said Jawaharlal may remove the plants from the field. This intimation was recorded vide Rajnamcha Sanha No.1037. An intimation was also given to the SDO(P) Jaora, vide Rojnamcha Sanha No.1038. Simultaneously, at 11:02 vide Rojnamcha Sanha No.1039, the police party consisting of SHO S.B. Singh Bais, ASI Aniruddha Mishra, HC Umesh Kumar, HC Udaisingh, HC Bholanath Singh, Constables Ramesh Chandra, Ram Awatar Singh and Kalu Singh along with witnesses Ramkishan Teli and Champalal Bajaj left the police station in vehicle No.CPZ-8272 and reached at village Pancheva. Before entering the agriculture field of appellant No.1 Jawaharlal they apprised him that they have information that he is having opium plants which he was cultivating without any licence and he was also apprised that they intend to search his agriculture field and whether he wishes to be searched and about his right of search and narrated the necessary legal requirements as required under the Act. A Panchnama to this effect was prepared vide Ex.P-1 and, thereafter, he was apprised that he is having opium plants at his agriculture field and a Panchnama to this effect was prepared vide Ex.P-2. He gave his consent vide Ex.P-3. During search Panchnama Ex.P-4, by which opium plant has been identified, has been prepared. A Panchnama to this effect was prepared vide Ex.P-1 and, thereafter, he was apprised that he is having opium plants at his agriculture field and a Panchnama to this effect was prepared vide Ex.P-2. He gave his consent vide Ex.P-3. During search Panchnama Ex.P-4, by which opium plant has been identified, has been prepared. During search, total 15 plants, out of which 10 plants with poppy capsules and 5 plants without poppy capsules.They were seized and Panchnama to this effect was prepared vide Ex.P-5.Two samples were taken out and seizure memo was prepared vide Ex.P-6 and the seized property was duly sealed on the spot and also prepared spot map vide Ex.P-28. Memo by which after completion of search and seizure they came out of the agriculture field was prepared Ex.P-7. Appellant No.1 Jawaharlal was arrested vide Ex.P-8 and intimation of his arrest was sent to his family members. 3. During investigation they found that the agriculture field from where the said plants were seized belongs to appellant No.2 Pokharlal son of Raghunath Singh. He was absconding therefore memo showing his absconsion ¼Qjkjh iapukek½ was prepared and after completion of proceedings the police party came to police station along with seized contraband and they entered this fact in Rojnamcha Sanha No.1041.The contraband was deposited in Malkhana (storehouse). FIR No.44/95 was registered under section 8/18 of the Act. Statements of the witnesses were recorded. Samples were sent to the Forensic Science Laboratory (FSL), Indore for analysis and the report was received vide Ex.P-20. After completion of the investigation charge-sheet was filed against the appellant No.1 on 29.5.1995. On 7.12.1995 the appellant No.2 surrendered before the trial Court. 4. On 12.12.1995 charge was framed against the appellants under section 8/18 of the Act. They abjured the guilt and pleaded for trial. They stated that they have been falsely implicated in the alleged offence. The prosecution examined 8 witnesses and after recording the statements of accused persons under section 313 CrPC, by the impugned judgment they have been convicted and sentenced as mentioned herein above. 5. Shri Vivek Singh, learned counsel for the appellant has submitted that attesting witnesses Champalal (PW1), Ramkishan (PW2) and Daulatsingh (PW3), witness of seizure memos Ex.P-1 to P-9, were declared hostile. 5. Shri Vivek Singh, learned counsel for the appellant has submitted that attesting witnesses Champalal (PW1), Ramkishan (PW2) and Daulatsingh (PW3), witness of seizure memos Ex.P-1 to P-9, were declared hostile. He submits that Panch witnesses of the seizure are pocket witnesses of the Investigating Officer and all the three have turned hostile and not supported the case of the prosecution. Lastly, he submitted that there is non-compliance of mandatory provision of sections 55 and 57 of the Act. The land does not belong to appellant No.1 and, therefore, as per statement of Patwari Ramesh Chandra Trivedi (PW4) Khasra Nos.774/1/2 and 774/2 belong to appellant No.2 Pokharlal, whereas Khasra No.774/3 belongs to appellant No.1 Jawaharlal. Since the seized opium plants were found on Survey No.774/1/2, which belongs to appellant No.2 Pokharlal, the learned trial Court committed an error in convicting the appellants and prays for their acquittal. 6. On the other hand, Shri R.S. Bais, learned Deputy Government Advocate drawn my attention to the statements of the prosecution witnesses and the reasons assigned by the trial Court. He also submitted that sufficient compliance of sections 55 and 57 of the Act has been made by the prosecution and merely in absence of independent witnesses of seizure at the time of search and seizure the case cannot be rejected. Lastly, he submitted that the view taken by the trial Court is the possible view and no case for setting aside the impugned judgment, as prayed by the appellants, is made out and prayed for dismissal of the appeal. 7. PW4 Ramesh Chandra Trivedi, Patwari Halka No.25 of village Pancheva in his statement very categorically stated that as per revenue record, Survey Nos.774/1/2 and 774/2 belong to appellant No.2 Pokharlal, which is evident from Ex.P-13 to P-16. He also admitted that he prepared the trace map of the place of occurrence vide Ex.P-17 and report given to the police is Ex.P-18. This witness in paragraph 2 of his statement very categorically stated that at the instance of police he prepared the trace map of Survey No.774/1/2. He also admitted that he has not marked the area of Survey No.774/1/2 by red ink. He in paragraph 5 of his cross-examination admitted that order for supplying trace map and copy of Khasra was received by him on 22.3.1995. 8. PW5 Dr. He also admitted that he has not marked the area of Survey No.774/1/2 by red ink. He in paragraph 5 of his cross-examination admitted that order for supplying trace map and copy of Khasra was received by him on 22.3.1995. 8. PW5 Dr. Sudhirkant Sharma in his statement has deposed that he received one sealed packet article A from Constable Ramawatar. The same was received in his office on 30.3.1995 and his report is Ex.P-20. PW6 Balu, whose agriculture field is adjoining to agriculture field of appellants has turned hostile. PW7 Ganpat Singh, Head Constable, Police Station Piploda has deposed that 15 opium plants were seized from appellant No.1 Jawaharlal. He was cultivating the same without any licence, which was deposited by him in Malkhana and made an entry to this effect in Malkhana register at Serial No.18. Ex.P-22 is the said register while Ex.P-22-C is its photocopy. ‘A’ to ‘A’ place of Ex.P-22 is signed by Station House Officer, S.B. Singh Bais (PW8). He has deposed that on 31.3.1995 sample of seized contraband was sent for analysis to FSL Indore. In paragraph 2 of his cross-examination he has admitted that there is no entry of seizure memo in Ex.P-22 nor there is entry that the contraband article was received in sealed condition, nor there is any entry to this effect. 9. PW8 S.B. Singh Bais, Investigating Officer has deposed that Ex.P-2 is signed by appellant No.1 Jawaharlal. He has also deposed that at the instance of Jawaharlal (A1) 15 opium plants were seized from his agriculture field. After seizure the same were sealed and a Panchnama was prepared vide Ex.P-5, which has been signed by him. Its ‘D’ to ‘D’ place is signed by accused (Jawaharlal). This witness also admitted that as per report of Patwari Ramesh Chandra Trivedi (PW4) the land from where the opium plants were seized belongs to appellant No.2 Pokharlal (son of Raghunath), who is real brother of appellant No.1 Jawaharlal. He has also deposed that they are residing jointly. PW4 in his statement nowhere stated that both the appellants are residing jointly or they cultivating the land jointly. The witness in paragraph 3 of his cross-examination has very specifically admitted that when they reached at the place of occurrence at that time Jawaharlal was alone at his agriculture field. He has also deposed that they are residing jointly. PW4 in his statement nowhere stated that both the appellants are residing jointly or they cultivating the land jointly. The witness in paragraph 3 of his cross-examination has very specifically admitted that when they reached at the place of occurrence at that time Jawaharlal was alone at his agriculture field. This witness also admitted that at police station he has not prepared a Panchnama that the article was sealed. This witness further admitted that there is no document by which the sample was received back. He also admitted that in seizure memo height of the plant was not mentioned, nor the same was mentioned in the FIR. In paragraph 5 of his statement he admitted that when the trace map was prepared by the Patwari, he was not present on the spot. 10. The apex Court in the case of Ajmer Singh v. State of Harayana [(2010)2 SCC (Cri.) 475], has held that the testimony of official witnesses, even in absence of its corroboration by independent evidence, can form basis of conviction if Court is satisfied, on careful and cautious appreciation of evidence, that it is otherwise believable. Arrest and recovery made by police would not necessarily be vitiated if Court finds that despite making reasonable efforts, police failed to associate public witnesses with the raid or arrest. The apex Court has observed the following in paragraphs 19 and 20 of the judgment which reads as under : “19. The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW3, Paramjit Singh Ahalwat, DSP, Pehowa; PW4, Raja Ram, Head Constable and PW5 Maya Ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced. 20. We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the Court considered in the circumstances of the case reasonable, the Police Officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the Police Officer was believable after taking due care and caution in evaluating their evidence.” 11. In the case of Dharampal Singh v. State of Punjab [ (2010)9 SCC 608 ], the apex Court has held that the case of the prosecution cannot be rejected only on ground that independent witnesses have not been examined, in case on appraisal of evidence on record, the Court finds the case of prosecution to be trustworthy. It has come in the evidence of prosecution witnesses that an attempt was made to join persons from public at the time of search, but none were available, therefore, mere absence of independent witness at the time of search and seizure did not render case of prosecution unreliable. 12. The decision cited by the learned counsel for the appellants in the case of Valsala v. State of Kerala [ AIR 1994 SC 117 ], is in respect of safe custody of seized article. In that case there was no evidence to show that the article was sealed and kept in proper custody in police station. The articles seized have not been kept in proper custody and proper form. In that case there was no evidence to show that the article was sealed and kept in proper custody in police station. The articles seized have not been kept in proper custody and proper form. The apex Court held that evidence adduced is wholly insufficient to conclude that what was seized alone was sent to the Chemical Examiner and in absence of satisfactory proof the Hon’ble apex Court set aside the conviction and sentence passed against the accused and allowed the appeal. 13. Section 55 enjoins a duty upon an Officer-in-charge of the police station to receive and keep the goods and articles seized under this Act within the local area of the police station. He is also required to affix his own seal to all the samples. The aforesaid provisions having incorporated with the manifest object that the senior officers can be trusted to be fair in investigation and not indulging in dubious practices. Requirement of affixing of two seals on samples is applicable only when seized articles or samples of contraband articles collected and sent to police station by the officer of Department other than authorized officer. In the case at hand the prosecution has failed to produce the sealed parcel containing the samples of opium plants and remaining plants before the In-charge of police station and when no seal was affixed by Station House Officer on the sample parcel, it was clear violation of the provision contained in section 55 of the Act. In the instant case because of incomplete compliance of the provision of section 55 of the Act the conviction is not sustainable, therefore, benefit of doubt is extended to the accused. 14. Section 57 of the Act requires that as soon as such sample is brought to the police station it should be presented before the Station House Officer who should affix his own seal thereon and, thereafter, it should be kept in safe custody awaiting the orders of the Magistrate for its disposal. On due consideration of the statement of PW4 Ramesh Chandra Trivedi it is crystal clear that the land from where the opium plants were seized belongs to appellant No.2. It is the appellant No.2, who is the owner and Bhumiswami of Khasra No.774/1/2, where at the time of search appellant No.1 Jawaharlal was present. On due consideration of the statement of PW4 Ramesh Chandra Trivedi it is crystal clear that the land from where the opium plants were seized belongs to appellant No.2. It is the appellant No.2, who is the owner and Bhumiswami of Khasra No.774/1/2, where at the time of search appellant No.1 Jawaharlal was present. Station House Officer S.B. Singh Bais (PW8), in his statement has deposed that on the basis of secret information he came to know that it is the appellant No.1, who was cultivating opium plants in his field, whereas the field from where the opium plants were seized belongs to appellant No.2 Pokharlal. It is also not in dispute that at the time of search the appellant No.2 was not present on the spot. He surrendered before the trial Court on 7.12.1995. As per Ex.P-1 and P-2 it is clear that the information was given about cultivation of opium plants by Jawaharlal s/o Raghunath. No information was given that it was appellant No.2 Pokharlal who was cultivating the opium plants at his agriculture field. 15. One of the main contentions of the learned counsel for the appellant was that there is no evidence whether the article seized was sealed and if so when? Therefore, according to the learned counsel for the appellants, it is highly doubtful whether the very article seized was sent to the Chemical Examiner. From the evidence of S.B. Singh Bais (PW8) there is no evidence to show that the article was sealed and kept in proper custody in police station. Sending of the very article seized to Chemical Examiner is highly doubtful. 16. The apex Court in the case of Valsala v. State of Kerala (supra), considered the question regarding safe custody of seized article and its sealing. Paragraphs 4 and 5 of the said judgment are relevant, which reads as under : “4. We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be Brown Sugar. Paragraphs 4 and 5 of the said judgment are relevant, which reads as under : “4. We have seen the report of the Chemical Examiner and there no doubt it is mentioned that one sealed parcel was received containing a powder and it was analysed to be Brown Sugar. But from the records it is clear and it is also noted by both the Courts below that the seized article was produced in the Court only on 14.1.1988 i.e. after a period of more than three months and there is no evidence whatsoever at all to show with whom the seized article was lying and even assuming that it was in the custody of PW6, the Officer-in-Charge of the police station who seized it, there is again nothing to show whether it was sealed and kept there. The learned counsel for the State no doubt argued that the provisions of section 55 of the Act are not mandatory but only directory. We need not go into this legal question in this case. Suffice it to say that the article seized appears to have been not kept in proper custody and proper form so that the Court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the mahazar Ex.P-2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Unfortunately for the prosecution even PW6 does not say that he continued to keep it in his custody under seal till it was produced in the Court on 14.1.1988. The evidence given by PW6 Police Sub-Inspector, who seized the article is absolutely silent as to what he did with the seized article till it was produced in the Court. As a matter of fact he did not produce it in the Court. PW3, ASI is supposed to have produced the same in the Court. But PW3 does not say anything about this. As a matter of fact he did not produce it in the Court. PW3, ASI is supposed to have produced the same in the Court. But PW3 does not say anything about this. It is only PW7, the Circle Inspector who comes into the picture at a later date, who admitted in the cross-examination that the seized article was sent by PW3 (ASI) to the Court and PW7 in his cross-examination further admitted that he did not even see if the recovered material object was sealed but still he claims that he made the necessary application for sending the material object for chemical examination and it is only through PW7 that the Chemical Examiner’s Report is marked. PW7 further admitted that he did not even know when it reached the Court. We are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officers is highly discrepant and unconvincing and does not throw much light. Therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the Chemical Examiner. Though this is purely a question of fact but this is an important link. Both the Courts below have not examined this aspect in a proper perspective. No doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the Courts cannot convict. 5. In the result the judgment of the learned Session Judge as affirmed by the High Court is set aside and the conviction and sentences passed against the appellant are also set aside. If the appellant is in jail, she shall be set at liberty forthwith. The appeal is accordingly allowed.” 17. In view of the aforesaid, the impugned judgment is set aside and the conviction and sentence as passed by the trial Court against the appellants are also set aside. The appellants are on bail, their bail bonds shall stand discharged.