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2013 DIGILAW 1155 (MP)

Jahid Khan S/o Baseer Khan v. State of M. P.

2013-09-23

BRIJ KISHORE DUBE

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JUDGMENT : BRIJ KISHORE DUBE, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 11th October, 2004 passed by the Special Judge, Vidisha in Special Criminal Case No. 51/2004 (State of M.P. vs. Jaheed Khan) convicting the appellant/accused under section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’) and sentenced him to suffer ten years rigorous imprisonment with fine of Rs. 10,000/- in default additional rigorous imprisonment for one year, the appellant has preferred this appeal, under section 374 of the Code of Criminal Procedure, 1973. 2. The background facts of the case, in brief, are that Town Inspector, A.K. Dubey, Officer-in-Charge, Police Station, Kotwali, Vidisha (PW-4) received on telephone a secret information on 16-4-2004 at 21.45 p.m. that the accused, Jahed Khan resident of Baksariya used to sell ganja. He by carrying ganja going to his residence at Baksariya. On receipt of such information, A.K. Dubey, Officer-in-Charge called two independent witnesses, Mohan Babu Sharma (PW-2) and Dinesh (PW-3) who were just passing through Police Station and informed them about the secret information and prepared necessary panchnama (Exhibit P-1). A.K. Dubey, Town Inspector has also informed the City Superintendent of Police, Vidisha accordingly vide Exhibit P-12, thereafter organized a raid party along with the police officials and independent witnesses, Mohan Babu Sharma (PW-2) and Dinesh (PW-3). On reaching the place of occurrence, Jahed Khan was seen near the kalari tiraha with a bag in his hand. On inquiry, the accused disclosed his name as Jahed Khan. The secret information was then disclosed to him and he was given option to be searched in the presence of a Gazetted Officer or Magistrate. He, however, declined the offer. Thereafter, the search was carried out and a bag which was carried out by him ganja was found. On weighing it was found to be 5.00 Kgs. Then, the same was recovered from the possession of the accused and necessary panchnama was prepared. Two samples, each of 50 grams were taken from the aforesaid substance and sealed. The accused was arrested and he along with the seized recovered article and samples were taken to the Police Station. The samples were sent to for chemical examination. After chemical analysis, the seized article from the possession of the appellant was found to be ganja. 3. After due investigation, charge-sheet was filed. The accused was arrested and he along with the seized recovered article and samples were taken to the Police Station. The samples were sent to for chemical examination. After chemical analysis, the seized article from the possession of the appellant was found to be ganja. 3. After due investigation, charge-sheet was filed. The learned Trial Judge on the basis of the material placed on record framed the charge punishable under section 8(c)/20(b)(ii)(B) of the Act against the accused. The appellant/accused pleaded not guilty to the charge levelled against him and claimed to be tried. 4. To bring home the charge, the prosecution examined as many as six witnesses and placed Exhibits P-1 to P-22, the documents on record. None has been examined by the accused in his defence. 5. Learned Trial Judge on the basis of the evidence placed on record came to hold that charge under section 20(b)(ii)(B) of the Act has been proved against the accused as a result of which convicted him and passed the sentence as mentioned here-in-above. 6. In this manner, this appeal has been preferred by the appellant/convicted accused assailing the judgment of conviction and order of sentence passed by the learned Trial Court. 7. Shri Sameer Kumar Shrivastava, learned counsel for the appellant argued at length and submitted that the appellant was convicted illegally while he has not committed any offence. It is further submitted that 5 Kgs. Ganja contained in a bag alleged to have been seized from the possession of the accused, was not at all produced before the Trial Court during the Trial to establish the identity with the samples and the quantity. Even samples of the ganja have not been produced. He further urged that there was no material before the Trial Court to prove that the samples which were dispatched to FSL were actually drawn from the drugs alleged to have been seized from the accused, therefore, the conviction is not sustainable. It is further submitted that there was no evidence to show that the alleged material seized from the possession of the appellant was packed properly, sealed on the spot and kept in proper custody and samples had remained intact during its examination in FSL, therefore, the conviction is bad in law. It is further submitted that there was no evidence to show that the alleged material seized from the possession of the appellant was packed properly, sealed on the spot and kept in proper custody and samples had remained intact during its examination in FSL, therefore, the conviction is bad in law. Learned counsel cited the following decisions in support of his contentions:- (i) Kishan vs. State of M.P. 1999 (2) MPLJ 406 (ii) Jitendra and Another vs. State of M.P. (2004) 10 SCC 562 (iii) Abdul Gani vs. State of M.P. 2005 (5) MPHT 526 (iv) Parmeshwardas vs. State of M.P. 2008 (2) MPWN 38 (v) Shakil vs. State of M.P. 2009 (1) MPHT 313 (vi) Ram Singh vs. State of M.P. 2009 (3) MPJR 257 (vii) Union of India vs. Shah Alam and Another, (2009) 16 SCC 644 (viii) Ashok alias Dangra Jaiswal vs. State of M.P. (2011) 5 SCC 123 8. In alternate, learned counsel for the appellant submits that looking to the quantity of seized ganja and the fact that the appellant has also served a substantive period of sentence of more than six months, the same may be reduced to the period already undergone by him. 9. Per contra, Shri B.K. Sharma, learned Public Prosecutor argued in support of the impugned judgment. It is further submitted that after due appreciation of evidence, learned Court below found that the appellant has committed an offence which requires no interference. It is further submitted that the defence also did not insist during the trial that the commodity should be produced before the Trial Court. 10. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record. 11. The evidence to prove that the ganja which was recovered from the possession of the accused consisted of the evidence of the Police Officers and the panch witnesses. The panch witnesses, Mohan Babu Sharma (PW-2), Dinesh (PW-3) have not supported any search or seizure from the accused in their presence and deposed to have signed all the documents at the Police Station, they were declared hostile. The panch witnesses, Mohan Babu Sharma (PW-2), Dinesh (PW-3) have not supported any search or seizure from the accused in their presence and deposed to have signed all the documents at the Police Station, they were declared hostile. Thus, I find that apart from the testimony of Rajpal Singh, Head Constable, PW-1, Ramanand Singh, ASI, PW-5 who had partially investigated the offence and Ramesh Kumar Sharma, Head Constable, PW-6, there is no independent witness as to the recovery of the contraband article from the possession of the accused. The ganja alleged to have been seized from the possession of the accused has not even produced before the Court during the trial, so as to connect it with the samples sent to FSL. 12. The minimum sentence prescribed under the Act is imprisonment of 10 years and 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 a inviolable rule. The Apex Court in the case of Ajmer Singh vs. State of Haryana, (2010) 3 SCC 746 , ruled that the testimony of official witnesses, even in absence of its corroboration by independent witness, can form the basis of conviction if court is satisfied, on careful and cautious appreciation of the evidence, that it is otherwise believable, therefore, the evidence of police officers has to be carefully scanned. 13. According to Inspector, A.K. Dubey (PW-4), he was posted on 16-4-2004 as Town Inspector, Police Station, City Kotwali, Vidisha. On 16-4-2004 at 21.45 hrs. he received on telephone a secret information that one Jaheed Khan resident of Baksariya carrying ganja was going to his village after crossing bridge of Betwa Nadi to sell it and he engaged himself in illegal sale and purchase activities of ganja and bhang. He recorded the aforesaid information at rojnamchasana No. 1173 (Exhibit P-10) and called two independent witnesses, Mohan Babu Sharma (PW-2), Dinesh (PW-3) and informed them and also the City Superintendent of Police, Vidisha about the aforesaid secret information. Thereafter, he organized a raid party along with the police party and panch witnesses, Mohan Babu Sharma (PW-2) and Dinesh (PW-3). He had reached near the toppura Kalari tiraha along with the police party and panch witnesses and found that accused, Jaheed Khan carrying a bag in his hand and was coming. Thereafter, he organized a raid party along with the police party and panch witnesses, Mohan Babu Sharma (PW-2) and Dinesh (PW-3). He had reached near the toppura Kalari tiraha along with the police party and panch witnesses and found that accused, Jaheed Khan carrying a bag in his hand and was coming. He was stopped and the secret information was disclosed to him. After being apprised whether the search may be made either before the Gazetted Officer or before the Magistrate, then the accused, Jaheed Khan gave concurrence that the search may be taken by him (PW-4). Thereafter, the search was carried on and ganja weighing 5 Kgs. was recovered from the bag which was carried in his hand by him and then seized article got it weighed. Two samples of 50 grams each were taken out from the seized contraband article and sealed. The remaining substance was also kept in sealed packet. Usual seal was affixed on the aforesaid packets. According to A.K. Pandey (PW-4) he prepared consent memo (Exhibit P-3), search memo (Exhibit P-4), seizure memo (Exhibit P-5), property seizure memo (Exhibit P-9) and panchnama of entire proceedings and then took the accused and seized articles to the Police Station, City Kotwali, Vidisha and recorded the FIR (Exhibit P-17). The seized article and samples were handed over to Malkhana Constable for keeping in safe custody, thereafter, the samples were sent to the FSL for chemical examination vide memo (Exhibit P-19) and after chemical analysis it was found to be ganja vide FSL report (Exhibit P-22). 14. A.K. Dubey (PW-4) stated that the seized material and samples were handed over to Malkhana Constable for keeping in safe custody, however, the Malkhana Constable has not been produced by the prosecution to prove the fact that the seized material from the accused and samples were received by him in sealed condition and kept them in proper custody and the same samples were alone sent to the FSL for chemical examination, therefore, it is not possible to hold that the seal allegedly put by A.K. Dubey, PW-4, while taking the samples remained intact right through the time, it reached FSL [referred to State of Rajasthan vs. Bher Singh, (2009) 16 SCC 293 ]. 15. 15. From a perusal of the record and also the testimony of Rajpal Singh (PW-1), A.K. Dubey (PW-4), Ramanand Singh (PW-5) & Ramesh Kumar Sharma (PW-6), it is evident that in the present case contraband article, ganja was not produced before the Trial Court during the trial, so as to connect it with the samples sent to the FSL, even samples of the contraband article were not produced before the Court during the trial. The seized contraband article and the samples were not marked as material exhibits, which ought to have been done during the trial. No explanation has been given by the prosecution for the non-production of the contraband ganja as well as samples in the Court during the trial. 16. The Apex Court in Jitendra and Another vs. State of M.P. (2004) 10 SCC 562 , considered the effect for failure to produce the seized drugs before the Trial Court and held that in the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized material which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act and the accused was granted benefit of doubt. 17. In Parmeshwardas vs. State of M.P. 2008 (2) MPWN 38 , the seized article stated to be ganja was never produced before the Court during the trial, which caste a serious doubt on the prosecution case against the appellant. 18. In Shakil vs. State of Madhya Pradesh, 2009 (1) MPHT 313 , total 60 bags of poppy husk weighing 2658 kg. were seized. Two samples of 250 grams each were taken from each of the bags, in total 120 samples were taken but only one sample was sent to FSL for examination which reported that the sample contained poppy husk. Only two samples were sent to the Court, no other criminal property i.e. bag of poppy husk was produced in the Court during the trial. Only two samples were sent to the Court, no other criminal property i.e. bag of poppy husk was produced in the Court during the trial. Even the two sample packets sent to the Court could not be produced in Court during the course of recording of evidence. On this, this Court held that the non-production of the seized drug before the Court is proved fatal to the prosecution case and prosecution has failed to establish the identity of the alleged seized drug and its quantity before the Court and conviction was set aside. 19. In Ram Singh vs. State of M.P. 2009 (3) MPJR 257, the contraband article was poppy straw which was weighing 512 Kgs and the same was not produced before the Court below during the trial. The samples were also not produced before the Trial Court during the trial. No explanation was given for non-production of the poppy straw in the Court. On this, this Court held that the accused cannot be held guilty under sections 8/15 of the NDPS Act. 20. In Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123 , it is alleged that the narcotic powder seized from the possession of the appellant was never produced before the Trial Court as a material exhibit, and no explanation for its non-production was tendered. The Apex Court held that there is, thus, no evidence to connect FSL report with the substance that was seized from the possession of the accused. Non-production of such material evidence was not a mere procedural irregularity, and caused prejudice to accused, hence, the appellant is entitled to benefit of doubt. 21. In view of the aforesaid discussion and aforesaid settled legal preposition, I find that non-production of the seized contraband article and the samples before the Court during the trial is proved fatal to the prosecution case and prosecution failed to establish identity of the seized contraband article and its quantity before the Trial Court, therefore, the conviction and sentence of the appellant are not sustainable on this ground. 22. Consequently, the appeal is allowed and the accused stands acquitted by giving him the benefit of doubt, the bail bonds entered upon by him are hereby discharged. The fine amount, if any, deposited be refunded to him. 23. Sent down the record.