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2022 DIGILAW 1239 (MP)

Bijju @ Vijay Sharma v. State of Madhya Pradesh

2022-10-14

SUSHRUT ARVIND DHARMADHIKARI

body2022
JUDGMENT 1. The instant appeal under Section 374(2) of Criminal Procedure Code has been filed by the appellant/accused being aggrieved by the judgment and finding dated 09.11.1998 passed by the learned Special Judge, Shahdol in Special Case No.20/1998(N) whereby the appellant/accused has been convicted under Sections 20 (B)(i) of Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred as 'ÂNDPS Act'™) and sentenced to undergo R.I. for 3 years with fine of Rs.5000/-, with default stipulation of 6 months R.I. 2. The prosecution story in nutshell is that, on 10.06.1998, while patrolling, A.S.I.-Vijay Bahadur Singh received an information that the appellant/accused possessed contraband substance i.e. Ganja at Indwar Tiraha for selling purpose. He immediately rushed there along-with other officials and seized 1.5 Kg Ganja from the possession of appellant/accused which was kept in a carry bag, in the presence of two independent witnesses namely Dhanni (PW-1) and Kaushal Prasad (PW-2). He arrested the accused and registered the case for the offence punishable under NDPS Act. 3. After completing the investigation, the police filed the charge-sheet. The appellant/accused abjured the guilt and claimed to be tried; therefore, the trial Court proceeded further and recorded the statements of five prosecution witnesses as well as statement of appellant/accused under Section 313 of the Cr.P.C. 4. After evaluating the entire evidence adduced by the parties, the trial Court found the appellant/accused guilty for the offence punishable under Sections 20 (B)(i) of NDPS Act and sentenced him, as mentioned above. 5. Learned counsel for the appellant submitted that the judgment passed by the learned trial Court is bad in law and deserves to be set aside. The learned trial Court did not appreciate the evidence in proper perspective. In fact, there is no cogent material to connect the appellant/accused with the crime but the trial Judge has not applied judicial mind while passing the order of conviction and sentence. The learned trial Court erred in holding that the appellant possessed the contraband substance whereas the independent witnesses of seizure and arrest have turned hostile. It can be easily seen from the record that the investigation officer committed grave irregularities while investigating the case. He did not comply with the mandatory provision of NDPS Act viz. Section 50. The learned trial Court erred in holding that the appellant possessed the contraband substance whereas the independent witnesses of seizure and arrest have turned hostile. It can be easily seen from the record that the investigation officer committed grave irregularities while investigating the case. He did not comply with the mandatory provision of NDPS Act viz. Section 50. He further argued that the substance ought to have been weighed on the spot but the same was done at police station in the absence of appellant/accused and the Investigation Officer has also not prepared any document in this regard. Independent witnesses namely Dhanni (PW-1) and Kaushal Prasad (PW-2) clearly denied the prosecution story regarding seizure and weighment of contraband substance. The learned Special Judge passed the judgment only on the basis of presumption and testimony of official witnesses whereas the seizure is not proved in the case. The case of prosecution is doubtful and therefore, appellant/accused deserves to be acquitted on the said ground only. 6. On the other hand, learned P.L. for the respondent-State opposed the submissions of appellant'™s counsel by submitting that the offence committed by the appellant/accused is serious in nature and against the society. There is sufficient evidence available to hold the appellant guilty. The trial Court has rightly convicted him. It has been settled by the Hon'™ble Supreme Court that accused can be convicted solely on the basis of statement of police officials without there being corroboration from the evidence given by independent witness. Therefore, the judgment passed by the trial Court does not warrant any interference. 7. Heard learned counsel for the parties and perused the record. 8. After hearing the arguments made by the appellant counsel as well as on perusal of appeal memo, the appellant has filed the instant appeal on the following grounds:- 1. That, the investigation officer has not complied with the provision of Section 50 of NDPS Act. 2. And, the learned trial Court convicted the appellant only on the basis of presumption believing upon the statements of police officials whereas the two independent witness of seizure have turned hostile and therefore, recovery is not proved. 9. Now, I proceed to give finding upon the ground raised by the appellant'™s counsel. 10. 2. And, the learned trial Court convicted the appellant only on the basis of presumption believing upon the statements of police officials whereas the two independent witness of seizure have turned hostile and therefore, recovery is not proved. 9. Now, I proceed to give finding upon the ground raised by the appellant'™s counsel. 10. On perusal of the judgment passed by the trial Court, it is seen that the appellant raised the objection regarding non-compliance of Section 50 of NDPS Act and the trial Court has discarded the same on the ground of consent given by the appellant accused for making search through Investigation Officer. The consent letter is part of record. Apart from the consent, the appellant was carrying contraband substance in a carry bag and in this regard, in the case of State of H.P. v. Pawan Kumar , (2005) 4 SCC 350 , the Hon'™ble Supreme Court has held that applicability of section 50 of NDPS is restricted upto the personal search and the word 'person' would mean a human being with appropriate coverings and clothings and also footwear. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. The relevant paras are quoted hereinunder:- 10. We are not concerned here with the wide definition of the word person which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilised society. Therefore, the most appropriate meaning of the word appears to be the body of a human being as presented to public view usually with its appropriate coverings and clothing. Therefore, the most appropriate meaning of the word appears to be the body of a human being as presented to public view usually with its appropriate coverings and clothing. In a civilised society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word 'person' would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the Act 12. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. Therefore, it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the Act 12. An incriminating article can be kept concealed in the body or clothings or coverings in different manner or in the footwear. While making a search of such type of articles, which have been kept so concealed, it will certainly come within the ambit of the words 'search of person'. One of the tests, which can be applied is, where in the process of search the human body comes into contact or shall have to be touched by the person carrying out the search, it will be search of a person. Some indication of this is provided by sub-section (4) of Section 50 of the Act, which provides that no female shall be searched by anyone excepting a female. The legislature has consciously made this provision as while conducting search of a female, her body may come in contact or may need to be touched and, therefore, it should be done only by a female. In the case of a bag, briefcase or any such article or container, etc., they would not normally move along with the body of the human being unless some extra or special effort is made. Either they have to be carried in hand or hung on the shoulder or back or placed on the head. They can be easily and in no time placed away from the body of the carrier. In order to make a search of such type of objects, the body of the carrier will not come in contact of the person conducting the search. Such objects cannot be said to be inextricably connected with the person, namely, the body of the human being. Inextricable means incapable of being disentangled or untied or forming a maze or tangle from which it is impossible to get free. 13. The scope and ambit of Section 50 of the Act was examined in considerable detail by a Constitution Bench in State of Punjab v. Baldev Singh [ (1999) 6 SCC 172 : 1999 SCC (Cri) 1080] and para 12 of the Report is being reproduced below: (SCC p. 190) '12. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. On its plain reading, Section 50 would come into play only in the case of a search of a person as distinguished from search of any premises etc. However, if the empowered officer, without any prior information as contemplated by Section 42 of the Act makes a search or causes arrest of a person during the normal course of investigation into an offence or suspected offence and on completion of that search, a contraband under the NDPS Act is also recovered, the requirements of Section 50 of the Act are not attracted.' The Bench recorded its conclusion in para 57 of the Report and sub-paras (1), (2), (3) and (6) are being reproduced below: (SCC pp. 208-10) '57. On the basis of the reasoning and discussion above, the following conclusions arise: (1) That when an empowered officer or a duly authorised officer acting on prior information is about to search a person, it is imperative for him to inform the person concerned of his right under sub-section (1) of Section 50 of being taken to the nearest gazetted officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing. (2) That failure to inform the person concerned about the existence of his right to be searched before a gazetted officer or a Magistrate would cause prejudice to an accused. (3) That a search made by an empowered officer, on prior information, without informing the person of his right that if he so requires, he shall be taken before a gazetted officer or a Magistrate for search and in case he so opts, failure to conduct his search before a gazetted officer or a Magistrate may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act. *** (6) That in the context in which the protection has been incorporated in Section 50 for the benefit of the person intended to be searched, we do not express any opinion whether the provisions of Section 50 are mandatory or directory, but hold that failure to inform the person concerned of his right as emanating from sub-section (1) of Section 50, may render the recovery of the contraband suspect and the conviction and sentence of an accused bad and unsustainable in law.' 14. The abovequoted dictum of the Constitution Bench shows that the provisions of Section 50 will come into play only in the case of personal search of the accused and not of some baggage like a bag, article or container, etc. which he may be carrying.' 11. Since the recovery of contraband substance was effected from a carry bag, in view of the verdict of Hon'™ble Supreme Court, compliance of section 50 of NDPS Act was not required in the present case. 12. Further, as far as, the second ground is concerned, it is true the learned trial judge hold the appellant guilty mainly on the basis of presumption under section 54 of NDPS Act considering the evidence given by police officials i.e. Head Constable- Surendra Singh (PW-4) and ASI- Vijay Bahadur Singh (PW- 5) as well as independent witness Phool Chand Soni (PW-3). 13. On careful reading of Section 54 of NDPS Act, it is manifest that the trial Court may presume the appellant guilty for possessing the contraband substance, unless and until the contrary is proved. In the case of Sanjeet Kumar Singh @ Munna Kumar Singh Vs. State of Chhattisgarh passed in Criminal Appeal No. 871 of 2021, the Hon'™ble Apex Court has held that Section 54 of the Act raises a presumption and the burden shifts on the accused to explain as to how he came into possession of the contraband. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. But to raise the presumption under Section 54 of the Act, it must first be established that a recovery was made from the accused. Once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats. 14. Therefore, now this Court has to see whether the recovery of contraband substance from the possession of appellant accused is proved or not? 15. Sndoubtedly, the witness of seizure namely Dhanni (PW-1) and Kaushal Prasad (PW-2) claimed ignorance of the entire operation. These witnesses are found unanimous on the point that they did not see the accused while procedure being done but they admitted their signatures in the formalities. They did not say that they made their signatures under any fear or pressure. Therefore, the trial Court rightly disbelieved them. 16. Witness namely Phoolchand Soni (PW-3) has also been examined by the prosecution who weighed the substance. He stated that he weighed 1.5 kg. of Ganja at police station. He also admitted his signatures in the panchnama. 17. Now, the statements of only two witnesses remain to be seen who are police officials namely Surendra Singh (PW-4) and ASI- Vijay Bahadur Singh (PW-5). On perusal of their statements, it is seen that 1.5 Kg of Ganja was seized from the possession of appellant accused. These witnesses have completed necessary formalities. S.I. - Vijay Bahadur Singh (PW-5) also explained the reason for weighing the goods in police station. They have also sent the sample of contraband substance for examination which was identified as Ganja. 18. The learned counsel for the appellant argued that because of their (PW-4 and PW-5) interest in the investigation, they are supposed to be the interested witnesses and on that basis, the appellant may not be convicted. 19. In the said context, in the case of Baldev Singh v. State of Haryana, (2015) 17 SCC 554, the Hon'™ble Supreme Court has held as under:- '10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. 19. In the said context, in the case of Baldev Singh v. State of Haryana, (2015) 17 SCC 554, the Hon'™ble Supreme Court has held as under:- '10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.' 20. Further, in the case of Rizwan Khan v. State of Chhattisgarh, (2020) 9 SCC 627 , the Hon'™ble Supreme Court has further held as under : '11.2. Having gone through the entire evidence on record and the findings recorded by the courts below, we are of the opinion that in the present case the prosecution has been successful in proving the case against the accused by examining the witnesses PW 3, PW 4, PW 5, PW 7 and PW 8. It is true that all the aforesaid witnesses are police officials and two independent witnesses who were panchnama witnesses had turned hostile. However, all the aforesaid police witnesses are found to be reliable and trustworthy. All of them have been thoroughly cross-examined by the defence. There is no allegation of any enmity between the police witnesses and the accused. No such defence has been taken in the statement under Section 313 Cr.P.C. There is no law that the evidence of police officials, unless supported by independent evidence, is to be discarded and/or unworthy of acceptance. 12. It is settled law that the testimony of the official witnesses cannot be rejected on the ground of non-corroboration by independent witness. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] ]. 13. As observed and held by this Court in catena of decisions, examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case [see Pardeep Kumar [State of H.P. v. Pardeep Kumar, (2018) 13 SCC 808 : (2019) 1 SCC (Cri) 420] ]. 13. In the recent decision in Surinder Kumar v. State of Punjab [Surinder Kumar v. State of Punjab, (2020) 2 SCC 563 : (2020) 1 SCC (Cri) 767] , while considering somewhat similar submission of non-examination of independent witnesses, while dealing with the offence under the NDPS Act, in paras 15 and 16, this Court observed and held as under: (SCC p. 568)' 15. The judgment in Jarnail Singh v. State of Punjab [Jarnail Singh v. State of Punjab, (2011) 3 SCC 521 : (2011) 1 SCC (Cri) 1191], relied on by the counsel for the respondent State also supports the case of the prosecution. In the aforesaid judgment, this Court has held that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that the accused was falsely implicated. The evidence of official witnesses cannot be distrusted and disbelieved, merely on account of their official status. 16. In State (NCT of Delhi/ v. Sunil [State (NCT of Delhi/ v. Sunil, (2001) 1 SCC 652 : 2001 SCC (Cri) 248] , it was held as under: (SCC p. 655) 'It is an archaic notion that actions of the police officer should be approached with initial distrust. It is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law, the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature.'™' 14. Applying the law laid down by this Court on the evidence of police officials/police witnesses to the facts of the case in hand, referred to hereinabove, we are of the opinion as the police witnesses are found to be reliable and trustworthy, no error has been committed by both the courts below in convicting the accused relying upon the deposition of the police officials' 21. In view of the above referred judgment, this Court has no hesitation in holding that the testimony of the official witnesses cannot be rejected on the ground of non-corroboration thereof by the independent witness. 22. Now, coming back to the present case, the material annexed with the record shows that witness namely Phoolchand Soni (PW-3) has weighed the substance having quantity of 1.5 kg. He admitted his signature in the panchnama The other witnesses namely Dhanni (PW-1) and Kaushal Prasad (PW-2) have also not denied their signature in the panchnama. The police official witnesses have duly been cross examined by the defence counsel. The appellant accused failed to prove any animosity with the police officials to which they will falsely implicate him. The aforesaid police witnesses are found to be reliable and trustworthy. Therefore, the learned trial Court has rightly came to the conclusion that the recovery of contraband substance from the appellant is found proved and presumption can be drawn very well against the appellant accused that he was in possession of contraband substance-Ganja. 23. Therefore, the finding of the trial Court regarding conviction to the appellant accused is found just and proper and needs no interference. So far as sentence period is concerned, the quantity involved in the case is inter-mediate and no minimum punishment is prescribed for that. The appeal is of year 1998 More than two decades have elapsed. The appellant has suffered about 6 months of jail sentence without remission during trial and pendency of the appeal. The sentence so far undergone, in my opinion, would be sufficient to meet the ends o justice, however, it would be more appropriate to enhance the fine amount from Rs.5000/- to Rs.25,000/-. On default of payment of fine, the appellant shall suffe one months R.I. 24. Accordingly, this appeal is partly allowed. The judgment of conviction passed by the trial court is affirmed, however, the appellant is sentenced to the sentence already undergone by him and fine amount is enhanced to Rs.25,000/-. In default of payment of enhanced fine amount, the appellant shall suffer one month'™s R.I. 25. The appellant is on bail. His bail bond stands discharged.