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Madhya Pradesh High Court · body

2015 DIGILAW 253 (MP)

Narayan v. State of M. P.

2015-03-02

T.K.KAUSHAL

body2015
JUDGMENT 1. Present appeal is directed against the judgment dated 14.1.2009 passed by Special Judge (NDPS Act), Neemuch in Special Sessions Trial No.05/07 convicting the appellant under section 8/15C of the Narcotic Drugs and Psychotropic Substances Act (for short ‘the NDPS Act) for having illegal possession of 605 kgs. poppy husk power and straw and sentenced to 10 years RI with fine of Rs.1,00,000/, in default of fine, further RI for one year. 2. Facts of the case in short are that on 19.9.2006 K.S. Sisodiya, Sub- Inspector, Police Station, Baghana, District Neemuch received information regarding movement of contraband and proceeded on the spot after making necessary entries in the Rojnamcha along with his team. After reaching on the scene of occurrence made arrangement for Panch witnesses Bharatendra Singh (PW3) and Pyarsingh s/o Dalpatsingh (PW6). On account of paucity of time, proceeded on the scene of occurrence without obtaining search warrant from the competent authority. At about 9:30 a.m. vehicle (Mahindra Max white colour) bearing registration No.RJ06/T-0249 came from Amlikheda side. The aforesaid vehicle was apprehended and two persons sitting in the vehicle were cautioned for search on account of suspicion of possession of contraband in the vehicle. One miscreant opened fire from pistol aiming towards police party. On account of alertness of Malkhansingh, Head Constable (PW4) the miscreant missed the shot. Malkhansingh, Head Constable (PW4) fired in return towards the miscreants then miscreants again made a fire towards him and gun shot of Malkhansingh (PW4) hit in the hands of miscreant/acquitted co-accused Pappu @ Mehboob Ali. Bharatendra Singh (PW3) and K.S. Sisodiya (PW7), police officials, apprehended the vehicle and the appellant who was driving the offending vehicle and on search found in his possession 605 kgs. contraband kept in 20 gunny bags each covered by fertilizer bags. 3. After observing necessary precautions and formalities seizure was made. After making mixture of contraband of 20 bags took two samples of 500 gms. each of poppy husk powder and two samples of 500 gms. each of poppy straw. The contraband was kept in safe custody at police station and samples were sent for chemical examination to FSL Laboratory and after completing investigation submitted charge-sheet against accused persons. 4. Trial Court framed charge under section 8/15C in alternative under sections 8/15C, 29 of the NDPS Act against the accused persons. Appellant abjured guilt and pleaded innocence. The contraband was kept in safe custody at police station and samples were sent for chemical examination to FSL Laboratory and after completing investigation submitted charge-sheet against accused persons. 4. Trial Court framed charge under section 8/15C in alternative under sections 8/15C, 29 of the NDPS Act against the accused persons. Appellant abjured guilt and pleaded innocence. To substantiate the allegation, prosecution has examined Rajendra Prasad, Head Constable (PW1), Ramprasad, Patwari (PW2), Bharatendra Singh (PW3), Malkhansingh (PW4), Laxmansingh, Constable (PW5), Pyarsingh s/o Dalpatsingh (PW6), K.S. Sisodiya, Sub-Inspector/Investigating Officer (PW7), Jitendra Singh, Sub-Inspector (PW8) and Bhanupratap Singh, Head Constable (PW9). 5. Defence of the appellant was that he had gone to Darshan of Bhadwamata and was apprehended by the Police unnecessarily and implicated him in this case falsely. Police made a false case because Police party shot at the acquitted co-accused who sustained gun shot injury in his hand and to save the skin of the department prepared a false case of the NDPS Act. In support of defence, appellant examined Pyarsingh s/o Bapusingh (DW1). 6. After appreciating aforesaid evidence, trial Court has acquitted the co-accused Pappu @ Mehboob Ali, however, convicted and sentenced the appellant as above. 7. Present appeal has been preferred on the ground that trial Court did not appreciate the evidence in right perspective. The trial Court ignored the lapses and illegalities in the investigation without any justification. The conviction is bad in law and sentence is harsh. On the other hand, learned counsel for the respondent/State supported the findings of conviction and sentence and opposed the appeal. 8. On careful perusal of evidence of Panch witnesses Bharatendrasingh (PW3) and Pyarsingh (PW6) respectively and the evidence of police officials Malkhansingh, Head Constable (PW4) and K.S. Sisodiya, Sub-Inspector (PW7), it becomes clear that vehicle bearing registration No.RJ06/T-0249 at the point was fixed by them in response of information. In the aforesaid vehicle contraband of poppy husk powder and poppy straw was found in 20 bags. As per Panchnama Ex.P.11, 17 bags of poppy husk powder and three bags of straw have been found. 9. K.S. Sisodiya (PW7) categorically stated the steps of formalities observed by him and the details of Panchnamas prepared by him on the scene of occurrence right from the beginning of the proceedings up to the end of the proceedings. 10. As per Panchnama Ex.P.11, 17 bags of poppy husk powder and three bags of straw have been found. 9. K.S. Sisodiya (PW7) categorically stated the steps of formalities observed by him and the details of Panchnamas prepared by him on the scene of occurrence right from the beginning of the proceedings up to the end of the proceedings. 10. Learned counsel for the appellant submits that case of the prosecution is doubtful because to hide their mistakes, police roped in the appellant and co-accused both in two different cases, one is the present case under the NDPS Act and another is the case under the IPC and Arms Act. Vide judgment dated 15.5.2009 passed by II ASJ, Neemuch in S.T. No.16/2007 both accused persons have been acquitted of the charge under sections 353 and 307 IPC and under section 25/27 of the Arms Act. Learned counsel submits that while story of illegal possession of arms and making an attempt of life on police party was found to be doubtful then the story regarding possession and seizure of contraband also should have been disbelieved. 11. Learned counsel for the appellant challenged the impugned judgment on the ground that same set of evidence and of witnesses have been found unreliable in part and trial Court has extended the benefit of doubt to co-accused Pappu @ Mehboob and acquitted him of the charge and in this case also counsel for the appellant challenged the manner of sampling in which contraband of 17 bags have been mixed together for taking two samples of 500 gms. each. 12. Per contra, learned counsel for the respondent/State supporting the findings of conviction and sentence, submits that acquittal in the case of IPC and Arms Act will not come in the way of the present case because sufficient direct evidence is available to show that appellant was the driver of the vehicle in which 20 bags contraband was found in possession. Whether miscreants opened fire or as a result of aggression and mischief of Police party coaccused sustained gun shot injury in the hand is quite a different matter. Such doubts do not render the entire story of prosecution to be doubtful. 13. After considering the rival contention and after going through the evidence minutely it seems that in the present case co-accused was acquitted because recovery has not been made from him. Such doubts do not render the entire story of prosecution to be doubtful. 13. After considering the rival contention and after going through the evidence minutely it seems that in the present case co-accused was acquitted because recovery has not been made from him. In none of the Panchnamas his sigh was not taken. For some or other reason he sustained bullet injury in his hand and the first priority of the police at that point of time was to provide him proper treatment and his arrest was made after number of days despite the fact that he was available to the Police right from the beginning. 14. So far as present appellant is concerned, he was found in the vehicle as a driver. Police apprised him his right of search by the Magistrate or a Gazetted Officer. Police seized the vehicle and contraband both from the appellant. In the case of Arms Act and IPC appellant was not the active participant. The real miscreant was the co-accused but as a result of gun shot injuries caused in one hand of the co-accused, police came on back foot and as a defence justified the firing hit on the coaccused. On careful perusal of evidence of Malkhansingh (PW4) who was the author of gun shot injury of the co-accused, position becomes more clear. For such firing and counter firing miscreant has also contributed to the incident to a large extent. Failure of the case of Arms Act and IPC beyond reasonable doubt does not mean necessarily that appellant was not found in possession of the contraband. Facts of each case should have been examined and assessed on the basis of evidence of that case. Similarly, act of each accused also should have been assessed after perusal of evidence of individual witnesses. 15. In my considered opinion, trial Court has taken care of all aforesaid circumstances including the matter of recovery and sampling also. Facts of each case should have been examined and assessed on the basis of evidence of that case. Similarly, act of each accused also should have been assessed after perusal of evidence of individual witnesses. 15. In my considered opinion, trial Court has taken care of all aforesaid circumstances including the matter of recovery and sampling also. On perusal of evidence of Panch witnesses Bhartendra Singh (PW3) and Pyarsingh s/o Dalpatsingh (PW6) which are supported and corroborated the police evidence successfully and on perusal of evidence of Malkhansingh (PW4) and K.S. Sisodiya (PW7) particularly and other Police witnesses in general and after perusal of documentary evidence of Panchnamas Ex.P-4 regarding informer’s information, Ex.P-5 regarding right of accused under section 50 of the NDPS Act, Ex.P-7 consent of search to be made by the police and Ex.P-8 to P-18, appeal stands merit-less and without substance. 16. The aforesaid oral and documentary evidence worth of credence. No benefit can be extended to the present appellant of his acquittal in the offence of the Arms Act and IPC and also of acquittal of co-accused in this case. Sufficient reliable evidence is available to show the conscious possession of the contraband by the appellant. 17. In the result, appeal stands dismissed for want of merit. ............