Research › Search › Judgment

Madhya Pradesh High Court · body

2019 DIGILAW 269 (MP)

Subhash Bhadoriya v. State of M. P.

2019-03-29

ANAND PATHAK

body2019
JUDGMENT : The appellant has preferred the present appeal being aggrieved by the judgment of conviction and order of sentence dated 19-12-2003 passed by the Special Judge, Bhind in Criminal Case No. 09/2001 whereby the appellant has been convicted of the offence 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 with fine of Rs. 1,00,000/- and in default of payment of fine 2 years’ additional imprisonment. 2. As per the case of prosecution, on dated 24-4-2001 in-charge Police Station Dehat District Bhind M.P Sharma received tip off from the informant that three persons Ashok Bhadoriya, Subhash Bhadoriya and Prashant Jatav are waiting at Ater Road Bus Stand, Bhind and are in illegal possession of opium. Information was registered at Rojnamcha No. 1460 and two persons, namely, Ramcharan and Ramsharan were called at Police Station and informed about the information received. CSP, Bhind was informed through police constable, Sub Inspector S. S. Pandey, Sub Inspector K. S. Baghel and other members of police force reached the spot, where three persons were spotted but seeing police, they tried to run away but police cordoned them off and caught one person who was in possession of white bag and remaining two persons escaped. Apprehended person referred his name Subhash Bhadoriya, resident of Bhind and referred the name of escaped persons as Ashok Bhadoriya and Prashant Jatav. He was informed about his statutory right and thereafter he was searched. He was found in possession of opium in two polythene packets (black colour) and identified as opium; one packet containing 250 gms. another 750 gms. Two samples of 25 gms. were separated and weighed. No licence to carry opium was found. Packets were sealed and seizure memo and arrest memo were prepared and at 2:30 pm FIR registered vide crime No. 147/2001 for the offence referred above. 3. Seized samples were sent for chemical examination at Forensic Science Laboratory, Sagar, from where seized item found to be Opium. After investigation, charge-sheet filed against the accused/appellant for the offence referred above. 4. The appellant/accused abjured his guilt. The trial was conducted. On behalf of prosecution, 10 witnesses were examined including Panch witnesses Ramsharan (PW-1) and Ramcharan (PW-4) whereas on behalf of defence, accused/appellant gave his statement as DW-2 and another witness Jitendra Kumar Jain examined as DW-1. 5. After investigation, charge-sheet filed against the accused/appellant for the offence referred above. 4. The appellant/accused abjured his guilt. The trial was conducted. On behalf of prosecution, 10 witnesses were examined including Panch witnesses Ramsharan (PW-1) and Ramcharan (PW-4) whereas on behalf of defence, accused/appellant gave his statement as DW-2 and another witness Jitendra Kumar Jain examined as DW-1. 5. After considering the evidence (oral as well as documentary) led by the parties and the submission made by the counsel for the parties, trial Court convicted the appellant as referred above. 6. Learned counsel appearing for the appellant submits that Ramsharan (PW-1) and Ramcharan (PW-4) who were independent witnesses and were seizure witnesses in the matter who visited the spot, turned hostile and did not support the prosecution story. Except these two witnesses (who turned hostile), other witnesses are interested witnesses and are of department. Since seizure witnesses turned hostile, therefore, seizure was not proved. Two other independent witnesses Ravitaram and Ramprakash Singh were not examined, therefore, investigation was vitiated and conviction cannot be recorded only on the basis of interested witnesses. Appellant relied upon judgment of Hon’ble Apex Court in the case of Krishan Chand vs. State of H.P., (2017) 1 SCC 222 and Union of India vs. Leen Martin and another, (2018) 2 SCC (Cri) 562. 7. It is submitted by learned counsel for the appellant that in the present case M. P. Sharma (PW-10) is the complainant and said M. P. Sharma is the investigating officer who filed charge-sheet, therefore, the whole investigation and prosecution is vitiated. He relied upon the judgment of Hon’ble Apex Court in the matter of Mohan Lal vs. State of Punjab, AIR 2018 SC 3853 and submitted that fair trial is vitiated by the conduct of investigating officer. He was interested to wreak vengeance over appellant because of personal enmity. 8. It is further submitted that before the trial Court seized item (opium) has not been produced by the prosecution, therefore, the prosecution failed to prove the charge beyond reasonable doubt. He was interested to wreak vengeance over appellant because of personal enmity. 8. It is further submitted that before the trial Court seized item (opium) has not been produced by the prosecution, therefore, the prosecution failed to prove the charge beyond reasonable doubt. He relied upon the judgment of Hon’ble Apex Court in the matter of Baldev Singh vs. State of Haryana, 2018 Cr.L.J. (SC) 1158, Mohinder Singh vs. State of Punjab, (2018) 11 SCC 570 and in the matter of Makhan Singh vs. State of Haryana, (2016) 1 SCC (Cri) 96 to bring home legal position that non production of item seized or non production of Malkhana register vitiates the prosecution. 9. Learned counsel for the appellant also submitted that in the case in hand, the provisions of sections 42 and 50 of the Act have not been followed. He relied upon the judgment of Hon’ble Apex Court in the matter of Makhan Singh (supra) and Arif Khan alias Agha Khan vs. State of Uttarakhand, AIR 2018 SC 2123 . It is submitted that no recovery was made in presence of gazetted officer or Magistrate, therefore, whole proceeding get vitiated. 10. While referring several contradictions in respect of witnesses who reached the spot, interception of vehicle and events occurred at the time of apprehension of appellant bear sufficient material contradictions and inconsistencies in the story of prosecution. Therefore, the case is of false implication. Trial Court erred in convicting the appellant without appreciating the evidence in correct perspective. He prayed for setting aside of judgment of conviction and order of sentence. 11. Learned counsel for the respondent/State vehemently opposed the prayer made by the appellant. It is submitted that the judgment rendered by the Hon’ble Apex Court in case of Mohan Lal (supra) has been explained by the Hon’ble Apex Court in the case of Varinder Kumar vs. the State of Himachal Pradesh, decided on 11-2-2019 in Cr.A.No. 2450-2451 of 2010 wherein the Apex Court has held that all pending criminal prosecutions, trials and appeals prior to law laid down in the case of Mohan Lal (supra) shall continue to be governed on individual facts of the case. It is further submitted that in the case of Mukesh Singh vs. State (Narcotic Branch of Delhi) in SLP (Criminal) No. 39528/2018 the Hon’ble Apex Court has shown respectful disagreement with the view taken in the matter of Mohan Lal (supra) and matter has been referred to Hon’ble The Chief Justice of India to constitute a Bench of appropriate strength for consideration, therefore, the law relied upon by the appellant in the case of Mohan Lal (supra) cannot absolve the appellant from implication. 12. It is further submitted that if the witnesses are police personnel, only on this ground, evidence cannot be discarded. For this purpose he placed reliance on the judgment of Hon’ble Apex Court in the matter of Aher Raja Khima vs. State of Saurashtra, AIR 1956 SC 217 and Baldev Singh (supra). He also referred section 43 of the Act and relied upon the judgment of Apex Court in the matter of Ravindran Alias John vs. Superintendent of Customs, (2007) 6 SCC 410 and State of Punjab vs. Lakhwinder Singh and anr. (2010) 4 SCC 402 . It is further submitted that in every case intimation within 72 hours is not necessary. Learned counsel for the respondent/State also opposed the other grounds taken by the appellant and prayed for dismissal of appeal. 13. Heard learned counsel for the parties at length and perused the evidence available on record. 14. Counsel for the appellant has relied upon the judgment rendered by the Apex Court in the case of Mohan Lal (supra) which has been clarified by the Apex Court in the case of Varinder Kumar (supra) and held that all pending criminal prosecutions, trials and appeals prior to law laid down in the case of Mohan Lal (supra) shall continue to be governed by the individual facts of the case. This pronouncement by way of clarifications renders the judgment of Mohan Lal (supra) non applicable in the present set of facts because this is pending criminal appeal since 2004 and the Session Trial was of 2001, therefore, the clarification in the case of Varinder Kumar (supra) takes out the ratio of Mohan Lal (supra) from the purview of this case. This pronouncement by way of clarifications renders the judgment of Mohan Lal (supra) non applicable in the present set of facts because this is pending criminal appeal since 2004 and the Session Trial was of 2001, therefore, the clarification in the case of Varinder Kumar (supra) takes out the ratio of Mohan Lal (supra) from the purview of this case. Therefore, the ground taken by the appellant that the informant and investigating officer (M. P. Sharma in the present case) being the one person, vitiates the trial, is not available to the appellant for the purpose of this case. 15. Defence has taken the plea that M. P. Sharma-investigating officer and father of the accused/appellant were police officers, both shared estranged relations, therefore, false case has been lodged against the accused. Therefore, the fact that FIR, statement under section 161 of Cr.P.C. and final report all were prepared by the same person i.e. M. P. Sharma (PW-10) and as submitted is indicative of fact that he tried to prepare a full proof case against the appellant to frame him under the Act on false pretext. Therefore, facts of the case and evidence led by the parties are to be seen in light of defence taken by the appellant and has to scrutinize the evidence of departmental witnesses with more caution. 16. Two independent witnesses were Ramsharan (PW-1) and Ramcharan (PW-4); they were seizure witnesses. Both turned hostile and did not support the story of prosecution from the very beginning in their examination-in-chief. Even in their cross-examination they nowhere referred any fact regarding involvement of the appellant. In fact even in the cross-examination at the instance of accused in para 3, witness Ramsharan (PW-1) admitted the fact that police makes him witness in many cases and in 10-20 cases, he has been made as witness. Similarly Ramcharan (PW-4) also turned hostile and did not support the story of prosecution in any manner and in cross-examination by the defence, he admitted in para 3 that he has seen the accused for the first time during evidence and never seen him before. Out of total 10 witnesses these two witnesses were independent witnesses and other witnesses are interested witnesses, therefore, their evidence is to be seen with caution. Out of total 10 witnesses these two witnesses were independent witnesses and other witnesses are interested witnesses, therefore, their evidence is to be seen with caution. So far as corroboration of statements of these witnesses vis-a-vis investigating officer M. P. Sharma (PW-10) is concerned, the investigating officer in para 1 deposed that he called Ramsharan (PW-1) and Ramcharan (PW-4) at Police Station, informed them about the tip off received from the informant whereas Ramsharan (PW-1) in his statement under section 161 of Criminal Procedure Code. Ex-P/1 says that when he went to Police Station for some work he found Ramcharan (PW-4) at Police Station and the time was around 11:50 am. He was informed about the tip off received from the informant. This bears contradiction which is further accentuated by other evidence and attending circumstances. M. P. Sharma (PW-10) did not know the accused by face and he admitted in para 6 that he knew the appellant by name only, who recognized the accused, has not been clarified by the investigating officer in his testimony nor by any other witnesses. Therefore, in absence of establishment of identity specially identification of accused by any police officer or informant as the case may be, prosecution story become doubtful. In para 7 of his cross-examination, M. P. Sharma (PW-10) has shown ignorance about compliance of section 50 of the Act. He admitted non compliance of section 50 in following words : ^^vkjksih lqHkk"k dks oS/kkfud vf/kdkjksa dh tkudkjh gS vFkok ugha eq>s ugha irkA bldk eSaus dksbZ iapukek ugha cuk;kA ekSds ij fy[kk i 17. This admission if read in conjunction with the testimony of S. S. Pandey (PW-9) and Ex-P/3 (Sahmati Panchnama), then it is clear that timing referred in the said Panchnama at the top of Panchnama from D to D portion (marked by the trial Court), original time written was 11:50 and S. S. Pandey, Sub Inspector (PW-9) signed it at 11:50 marked as E to E (by the trial Court) but later on, it appears that interpolation has been caused and time has been changed from 11:50 to 12:50 because 11:50 was the time mentioned in Rojnamcha Ex- P/19. Witness Ashok Kumar Sharma, Head Constable (PW-7) admitted the fact that in Rojnamcha, time for leaving Police Station was mentioned as 11:50 am and that was the time when information was received. 18. Witness Ashok Kumar Sharma, Head Constable (PW-7) admitted the fact that in Rojnamcha, time for leaving Police Station was mentioned as 11:50 am and that was the time when information was received. 18. Therefore, the interpolation assumes material importance because if the information was received at 11:50 am (although am has not been mentioned anywhere but it is pre-supposed that it is am) then the arrest memo and Sahmati Panchnama under section 50 the Act bear the same time which is not possible. Therefore, to wriggle out of this falsehood, interpolation has been caused while mentioning the time (from 11:50 to 12:50) which is reflected from the perusal of ExP/3 and this interpolation has material bearing in the controversy. 19. Besides that Ramsharan (PW-1) and Ramcharan (PW-4) have not supported the story of prosecution and therefore, the compliance of section 50 of the Act becomes doubtful and it appears that prosecution cooked up a story to implicate the accused person. Because of stringency of the legal provisions in respect of the Act, it is imperative for the prosecution to take case beyond all reasonable doubts and full proof case be prepared where possibility of false implication from any angle be not reflected conclusively. Here case appears to be shaky in this regard. 20. Constable Radhamohan Sharma (PW-3) who took the sample on 26-4- 2001 from Police Station Dehat Bhind and deposited at FSL, Sagar on 27-4- 2001, his deposition gets falsified by ExP/14-C which is receipt of Office of Director, FSL Sagar which indicate that samples packets were received on 28-4-2001. If the statement of this witness is read in juxtaposition to the evidence of Ashok Kumar Sharma (PW-7) who was Malkhana in-charge at the relevant point of time, then, it appears that two samples weighing 25 gms. each were handed over on 28-4-2001 to constable Radhmohan (PW-3) and he deposited the said samples on 28-4-2001 itself at FSL, Sagar. 21. Later on, samples were received on 31-7-2001 after chemical examination and the said entry was made in the Nazarat Department of the Court on 1-8-2001 by constable Surendra Singh (PW-8). Witness Surendra Singh (PW- 8) was examined and he nowhere referred the said fact that he deposited the said item (sample packets) on 1-8-2001 before Nazarat Department of District Court, Bhind. Witness Surendra Singh (PW- 8) was examined and he nowhere referred the said fact that he deposited the said item (sample packets) on 1-8-2001 before Nazarat Department of District Court, Bhind. He only referred about submission of FIR on 25-4-2001, therefore, despite being examined, prosecution did not bother to support the testimony of Malkhana in-charge Ashok Kumar Sharma (PW-7) whereas chain of sequence regarding seizure of item (opium in the present case) should have been properly sealed, referred to FSL and thereafter should have been properly deposited before the trial Court but all such sequence is missing in the present case. 22. In the cross-examination of Malkhana in-charge Ashok Kumar Sharma (PW-7) in para 15 he admitted the fact that in his presence, weighing of samples of seized item was not made and the Town Inspector (investigating officer) has taken seal with him on 24-4-2001 and Ashok Kumar Sharma (PW-7) did not cause entry in the Malkhana register about the said fact whereas when the seal was taken away by the investigating officer from Malkhana then possibility cannot be ruled out that he himself prepared everything including the samples in the fit of enmity and revenge qua accused person. Malkhana in-charge Ashok Kumar Sharma (PW-7) admitted in his examination-in-chief in para 2 that samples were sent on 28-4-2001 and seized on 24-4-2001. Thus, it is clear that protocol of time limit of 72 hours (three days) as referred in the guidelines in this regard, stands violated. Over interest of investigating officer M. P. Sharma (PW- 10) shown and proved by the witnesses and broken chain of events regarding sampling and referring to FSL as well as contradictory statements of prosecution witnesses take the case further in the realm of doubt. 23. Ex-P/13 which is copy of dispatch register shows that samples were dispatched on 30-4-2001, this fact belies the testimony of other witnesses including the testimony of investigating officer M. P. Sharma (PW-10), especially in para 4 when he says that he prepared the samples for chemical examination on 26-4-2001. Why samples were kept for four days from 26-4-2001 to 30-4-2001 and dispatched after delay of four days is the question which stares at the story of prosecution. Why samples were kept for four days from 26-4-2001 to 30-4-2001 and dispatched after delay of four days is the question which stares at the story of prosecution. Judgment rendered by the Apex Court in the case of Baldev Singh (supra), Ashok Kumar vs. State of M.P., (2011) 5 SCC 123 and in the case of Mohinder Singh (supra) are worth consideration in this regard. In the present case, actual case property has not been produced, therefore, the Court had no occasion but to satisfy itself that seal on the case property tallies with the samples to rule out any possibility of foul play. Here, the samples and their referral to FSL, Sagar itself are doubtful and when the prosecution witnesses in this regard do not speak in tandem, but differently, then the very foundation of prosecution story is shaken. Here, the prosecution nowhere established the fact either through documentary or oral evidence that the seized articles was ever produced in the Court. Therefore, the case could not be proved by the prosecution beyond reasonable doubt. 24. In his defence, accused led the evidence of himself as DW-1 and Jitendra Kumar Jain as DW-1. In his defence, DW-2 has mentioned the fact that his father Chhote Singh Bhadoriya was ASI in Police Station Dehat District Bhind and served under Investigating Officer M. P. Sharma (PW-10). Because of some dispute cropped up between them, investigating officer M. P. Sharma (PW- 10) threatened his father to wreak vengeance. 25. Other defence witness Jitendra Kumar Jain (PW-1) also admitted the fact that police has taken the accused/appellant on 23-4-2001 for enquiry purpose and later on arrested him. Accused was Shikshakarmi and was peaceful resident of the area, without any criminal antecedents and temperament. This evidence stood unrebutted. 26. Therefore, in the cumulative analysis and consideration of judgments relied upon by the appellant and documentary and oral evidence led by the prosecution and the material contradictions and discrepancies cropped up in the evidence led takes to only conclusion that appellant was falsely implicated by the police and trial Court erred in passing the impugned judgment convicting the appellant. Independent witnesses did not support the story of prosecution and departmental witnesses bear material contradictions in their deposition including the investigating officer M. P. Sharma (PW-10). His over enthusiasm/interest to implicate appellant appears in the evidence. Independent witnesses did not support the story of prosecution and departmental witnesses bear material contradictions in their deposition including the investigating officer M. P. Sharma (PW-10). His over enthusiasm/interest to implicate appellant appears in the evidence. Interpolation in the documents and contradictions in oral and documentary evidence, all lead to one conclusion that appellant deserves acquittal. Trial Court erred in recording the conviction. 27. Resultantly, the appeal stands allowed and impugned judgment dated 19-12-2003 passed by the trial Court is hereby set aside. Appellant is on bail, his bail bonds stand discharged. He is set free. 28. Copy of the judgment be sent to the trial Court for information and necessary compliance. Appeal allowed.