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Madhya Pradesh High Court · body

2016 DIGILAW 284 (MP)

Ajay Kumar v. State of M. P.

2016-04-04

SUBHASH KAKADE

body2016
JUDGMENT 1. By means of filing the present appeal under section 374 of the Code of Criminal Procedure, 1973, the appellant has assailed the judgment of conviction and sentence passed by the learned First Additional Sessions Judge, Mudwara, Katni (M.P.) in Special Case No.03/1995 decided on 27.12.1995. By the judgment under challenge, learned Sessions Judge convicted the appellant, hereinafter referred as 'the accused', under section 20(b) of NDPS Act and sentenced him to undergo R.I. for three years with fine of Rs.1000/-, with default stipulation. 2. To appreciate the say of the appellant, I would like to say that basic case that was placed before the trial Court in nutshell is that on 17.5.1995 on receiving an information from the informant, a search was made by the Station House Officer, GRP Katni along with other officials and 10 Kg Ganja was seized from the possession of the appellant in presence of witnesses. According to prosecution, the appellant was found in suspicious condition under bridge of Platform No.2 along with a blue colour suitcase and on opening the same, 10 Kg contraband Ganja was recovered in presence of witnesses; Vishnu and Ajay. Seizure memo was prepared by Naib Tahsildar Rajeev Dixit in presence of aforesaid witnesses and signatures of these witnesses were obtained. The appellant was arrested and a case was registered against him and after completion of due investigation he has been charge-sheeted. 3. Accused/appellant abjured the guilt and contended that he has been falsely implicated, hence put to trial. 4. In order to bring home the charge against the appellant, including S.H.O. Shri Naveen Awasthi (PW5), Head Constable Shri Hariman Dwivedi (PW4) the prosecution has examined seizure witnesses Vishnu (PW2) and Ajay Kumar (PW3). Nayab Tahsildar Shri Rajeev Dixit (PW1) is also examined. The prosecution got exhibited documents (Ex.P-1 to Ex.P-11). During accused statement the appellant denied all the evidence put forth against him and pleaded false implication due to hot talk with police officers. 5. Learned trial Court, after appreciating the evidence on record, convicted and sentenced the appellant as aforesaid, hence this appeal. 6. The prosecution got exhibited documents (Ex.P-1 to Ex.P-11). During accused statement the appellant denied all the evidence put forth against him and pleaded false implication due to hot talk with police officers. 5. Learned trial Court, after appreciating the evidence on record, convicted and sentenced the appellant as aforesaid, hence this appeal. 6. As none was appearing for the appellant for long time as this appeal is pending since 1996, hence, I proceed with the hearing of this appeal in light of the decision of the Apex Court rendered in the case of Bani Singh and others v. State of Uttar Pradesh [ AIR 1996 SC 2439 ]. 7. It can be profitably referred that as per main grounds of challenge mentioned in the memo of appeal are that the learned trial Court committed error in holding the appellant guilty under the aforesaid section of NDPS Act. It is also mentioned that learned trial Court committed grave error in overlooking material contradictions, omissions in depositions of prosecution witnesses. Learned trial Court committed error while not considering the fact that the mandatory provisions of the Act were not complied with while making seizure were not complied with. 8. Shri D.K. Paroha, Panel Lawyer for the respondent/State firstly taken me through the entire judgment and pointed out strength of the case of the appellant thereafter further submitted that after due appreciation of prosecution evidence, the learned trial Court has rightly found the offence, which is serious in nature, proved against the appellant. He submits that impugned judgment is a well reasoned judgment, which requires no interference. 9. In this case where in the statement of public servants SHO Shri Naveen Awasthi (PW5), Shri Hariram Dwivedi (PW4) and Naib Tahsildar Shri Rajeev Dixit (PW1) on one hand and the independent witnesses Vishnu (PW2) and Ajay Kumar (PW3) on other hand, found glaring discrepancies. Independent witnesses have stated that search of the accused not made in their presence and their signatures were obtained on some papers at the instance of police at Police Station. 10. The independent witnesses of the seizure are Vishnu (PW2) and Ajay Kumar (PW3) whose signatures were taken on the seizure memo and other documents (Ex.P-1 to P-3). I have carefully gone through their evidence. Neither out of the two, supported the case of the prosecution. 10. The independent witnesses of the seizure are Vishnu (PW2) and Ajay Kumar (PW3) whose signatures were taken on the seizure memo and other documents (Ex.P-1 to P-3). I have carefully gone through their evidence. Neither out of the two, supported the case of the prosecution. Vishnu (PW2) was, as a matter of fact, quite emphatic in his denial of any recovery having been made from the appellant in his presence, hence he was declared hostile by the prosecution. Looking to admissions of Ajay Kumar (PW3) during his cross examination, he also seems to be a hostile witness. He categorically stated that in his presence Magistrate, namely Shri Rajeev Dixit did not turn up on platform No.2, neither any contraband seized before him from the appellant nor he signed the document (Ex. P-1 to P-3). Damaging entire case of the prosecution, he stated that all the formalities were completed at Police Station itself and he also signed these documents (Ex.P-1 to P-3) at Police Station. 11. The seizure witnesses turning hostile may not be very significant, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS but there are some other circumstances which, when taken together, make it very unsafe to uphold the appellant’s conviction. 12. Learned trial Court had, therefore, to rely upon the testimony of Shri Naveen Awasthi (PW5) who was the Station House Officer, Police Station G.R.P. Katni at the relevant point of time and who had conducted the raid to accept the prosecution case of recovery of the suspected narcotic from the appellant. 13. Prior to marshalling of statement of Shri Naveen Awasthi (PW5) his aid Head Constable Shri Hariman Dwivedi (PW4) and Naib Tahsildar Rajeev Dixit (PW1), it is pertinent to mention here that apex Court in case of Raja Khema v. State of Swarashtra [ AIR 1956 SC 217 ], held that :- “the presumption that a person acts honestly apply as such in favour of a police officer as of other person and it is not a judicial approach to disclose and suspect hum without good grounds thereof”. 14. Please also see: G.L. Gupta v. Assistant Commissioner [ AIR 1971 SC 28 ] and Hazari Lal v.State [ AIR 1980 SC 873 ]. 15. 14. Please also see: G.L. Gupta v. Assistant Commissioner [ AIR 1971 SC 28 ] and Hazari Lal v.State [ AIR 1980 SC 873 ]. 15. When Shri Awasthi (PW5) suspected that the appellant is having some contraband Ganja in his Atachi, he immediately informed to Sub-Divisional Magistrate, Katni for visit and to do needful as per mandatory provisions of NDPS Act and comply with search of the appellant. It is admitted by Shri Awasthi (PW5) that this information notice Ex.P-6 is not original one as well as this fact of notice Ex.P-6 to the SDO Katni is not mentioned in Rojnamcha Sanha P-4A, which are a fatal lacunas. 16. Shri Dixit (PW2) admitted that he is not re-collected the name of the appellant. He also admitted that he was not Gazetted Officer at the relevant point of time. Apart from this, Shri Rajeev Dixit (PW1) in his examination-in-chief not stated a single word that he informed the appellant for his search. Shri Awasthi (PW5) also admitted that he did not file any document with regard to written consent of search accorded by the appellant. These admissions are fatal for the prosecution. In this sequence Shri Dixit (PW1) accepted fatal admission that he is not able to say from where Ganja was seized. 17. This suggestion were turned down by Shri Awasthi (PW5) that along with appellant Ajay Kumar he brought ten other persons at police station GRP Katni. But it is admitted fact that apart from appellant, one more person was also present at the time of the search. 18. Shri Awasthi (PW5) admitted that appellant Ajay was not meet him with other person Funfun, who was meet him separately. As against this version of Shri Awasthi (PW5) in Rojnamcha Sanha Ex.P-4A, it is specifically mentioned that on platform No.2 near the bridge two persons were found in suspicious condition. Head Constable Hariman Dwivedi (PW4) also stated that along with appellant Ajay, Funfun was also found in suspicious condition. Shri Dixit (PW1) also accepted during his examination that this information was received from GRP Katni that two persons are having Ganja and on this information he went to the platform No.2. 19. Entire case of the prosecution is that contraband Ganja was found in atachi but Shri Dwivedi (PW4) exaggerated the situation and stated the appellant Ajay was also having a bag. 19. Entire case of the prosecution is that contraband Ganja was found in atachi but Shri Dwivedi (PW4) exaggerated the situation and stated the appellant Ajay was also having a bag. As per fatal admissions of Shri Dwivedi (PW4) it is clear that appellant Ajay and other person Funfun together interrogated by Shri Awasthi (PW4) about the contraband substance and both the offenders opened the atachi and bag in which Ganja was found. Shri Dwivedi (PW4) also admitted another fatal fact that SDM Katni was called after seizure and at Police Station SDM enquired about the Ganja from offenders. 20. In light of above discussed depositions of these responsible public servants Shri Naveen Awasthi (PW5), Shri Dwivedi (PW4) and Shri Dixit (PW1), it is clear that statements of theses three witnesses do not inspire confidence to convict the appellant as creating serious doubt. I, accordingly, hold that the appellant is entitled to the benefit of doubt. 21. Accordingly, the appeal is succeeded. The impugned judgment of conviction and order of sentence dated 27.12.1995 passed in Special S.T. No.3/1995 by learned First Additional Sessions Judge, Mudwara, Katni is hereby set aside. The appellant is acquitted from the charge of offence punishable under section 20(b) of NDPS Act. The appellant is on bail, his bail bonds stand discharged. 22. A copy of this judgment be sent to learned trial Court for information with the direction that result of this appeal will be duly communicated to the applicant and report of such compliance be transmit to the Registry for placing the same in the record of this appeal. None for appellant; D. K. Paroha, Panel Lawyer for respondent/State.