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2018 DIGILAW 398 (MP)

Deepak @ Deepu v. State of M. P.

2018-04-12

VIVEK RUSIA

body2018
JUDGMENT 1. The appellants have filed the present appeal being aggrieved by judgment dated 2.4.2011 passed in Special Sessions Trial No. 84/2009 by learned Additional Special Judge [N.D.P.S. Act], Garoth, District Mandsaur, by which they have been convicted under section 8 read with section 15 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 [in brief “the Act of 1985”] and sentenced to undergo 10 years RI with fine of Rs. 1,00,000-00 each, with default stipulation. 2. As per the prosecution story, Sub-Inspector Ambika Prasad Saxena (PW1) has received an information from unknown informant that two persons aged 25 years travelling in the bus from Mandsaur to Garoth are sitting in front seat carrying illegally grind poppy straw in the bags. The bus was detained on the Check Post and after search, poppy straw was recovered which was kept in two polythene bags loaded on roof top of the bus. 3. After detention of the bus, the search was conducted by team of police personal and two plastic bags were found on roof top of the bus. In the bags, poppy straw measuring 20-20 kgs. was found. Immediately sample of 250-250 gms were prepared and sent for examination to the FSL. Remaining grind poppy straw was kept in the sealed cover. The accused were arrested for the offence committed under section 8 read with section 15 of the Act of 1985 vide arrest memos Exhibits P-17 and P-18. From the accused persons, Rs. 200-00 cash and mobile of Nokia Company were recovered. After completing the investigation, the permission obtained from the Law Department and thereafter challan was filed. The accused were explained the charges by the Presiding Officer and they denied the same and pleaded for trial. Panchnama Ex.P-1 was prepared and search warrant under section 42 of the Act of 1985 was obtained and initial investigation was completed as per procedure prescribed under law. 4. The prosecution had examined Ambika Prasad Saxena, Assistant Sub Inspector as PW1 Devendra Singh Parihar as PW2 Bhagwan Singh as PW3 Ramayan Prasad, Head Constable as PW4; Gopal Singh, Town Inspector as PW5 and Om Prakash Yadav, Retired Sub Inspector as PW6. The learned Special Judge vide judgment dated 2.4.2011 has convicted both the accused persons and sentenced as stated above. Hence, the present appeal before this Court. 5. The learned Special Judge vide judgment dated 2.4.2011 has convicted both the accused persons and sentenced as stated above. Hence, the present appeal before this Court. 5. Heard Smt. Purnima Kanungo, learned counsel for the appellants, through Legal Aid; Shri Rajesh Mali, learned Government Advocate for the Respondent /State and perused the record. 6. As per the prosecution story, the police has recovered two bags of poppy straw from the roof top of the bus. Both the accused persons were travelling in the said bus. PW1 conducted their search and nothing objectionable was found from their possession. According to him on an information given by them, two bags were brought down from roof top of the bus and opened, in which poppy straw was found. The prosecution examined Bhagwan Singh (PW3) as an independent witness who has turned hostile and specifically stated that the search warrant, seizure and Panchnama were not prepared in front of him and signatures were obtained later on. In cross-examination also he has stated that poppy straw was not recovered from the accused persons in his presence. The prosecution did not examine second independent seizure witness namely Tufan Singh. Except Bhagwan Singh (PW3) all other witnesses were the members of police team. 7. The prosecution has failed to establish that two bags containing poppy straw recovered from the bus were belonging to the accused persons. According to PW1 he found two persons were sitting in front seat and on asking they disclosed their name Deepak and Shekhar and on their further disclosure the contraband article was recovered. The police has not recovered any travelling ticket from them. Apart from the accused persons, 40 – 50 other passengers were travelling in the bus but PW1 has directly asked the question from the accused persons. He was not having their photographs. He has also not checked the ownership of the other luggage and articles kept over the roof top of the bus. He has also not taken signatures of other independent witnesses like driver, conductor and the passengers. There was absolutely no material available in the record to come to the conclusion that the appellants were carrying or transporting the contraband articles through the bus. The entire conviction and sentence is based on the sole testimony of PW1. He has also not taken signatures of other independent witnesses like driver, conductor and the passengers. There was absolutely no material available in the record to come to the conclusion that the appellants were carrying or transporting the contraband articles through the bus. The entire conviction and sentence is based on the sole testimony of PW1. The ownership of the appellants – accused cannot be established merely on the ground that on their disclosure the bags were recovered from the roof top of the bus. The statements of departmental witnesses are not supported by other independent witness. Therefore, the prosecution has failed to prove the case beyond reasonable doubt that the accused appellants were involved in transporting the contraband articles poppy straw from the bus. 8. In the result, this appeal is allowed. The judgment dated 2.4.2011 passed in Special Sessions Trial No. 84/2009 is hereby set-aside and the appellants are acquitted from the charges. Since the appellants have already undergone the entire jail sentence and deposited the fine amount, therefore, the fine amount be refunded to them.