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2022 DIGILAW 934 (MP)

Padamsingh v. State of Madhya Pradesh

2022-07-14

RAJENDRA KUMAR VERMA

body2022
JUDGMENT 1. This criminal appeal is preferred under section 374 of Cr.P.C. by the appellant being aggrieved by the judgment dated 07.05.2019 passed by Special Judge (NDPS Act) Jawad, District Neemuch in Special S.T. No.10/2017 whereby the appellant is convicted for the offence punishable under Section 8 r/w 21(b) of NDPS Act (hereinafter referred to as the "Act") and sentenced for 5 years R.I. with fine of Rs.50000/- and default stipulations. 2. As per the prosecution story, on 25.06.2012, police station Jawad received an information (vide Ex.P/3) through information that the appellant alongwith two other co-accused persons who are standing near a school and are in possession of illegal contraband (heroin). 3. Acting upon the said information, after following the due process and preparation of various panchnamas, the police party raided the spot pointed out by the informer. After seing the police force, the accused persons as indicated were trying to run from the spot and out of the three persons, the police has caught one person and two were succeed in fleeing away. On being interrogation, the appellant has told his name as the appellant and also stated the names of the co-accused persons were fled away from the spot. After following the due process, on being searched (vide Ex.P/10), a yellow packet was recovered from the left pocket of paint of the appellant and identified as Heroin. On being weight, the contraband was found 100grams. 4. The investigating team, thereafter prepared the weight panchnama vide Ex.P/13, taken two samples of 5 grams each, sealed the contraband vide Ex.P/14, seal panchnama was made vide Ex.P/15, prepared the seizure panchanam vide Ex.P/16 and stated the reasons of arrest to the appelant vide Ex.P/17 and arrested him vide arrest memo Ex.P/18, contraband was taken to the police station and FIR was lodged vide Ex.P/19. The police prepared the spot map vide Ex.p/22 and sent the samples for forensic laboratory (FSL) vide Ex.P/57. Thereafter, after following the due process, the police has filed the charge-sheet against the appellant before the Special Court. 5. The prosecution has examined total 07 witnesses namely the Umesh Vyas (PW-1), Vikram Dhurve (PW-2), Aziz Khan (PW-3), Manoj (PW-4), O.P. Shrivastava (PW-5), Pannalal Chouhan (PW-6), Vinod (PW-7), 6. In defence, no witness has been examined by the appellant. 7. The appellant/accused abjured his guilt and he took a plea that he is innocent. 8. 5. The prosecution has examined total 07 witnesses namely the Umesh Vyas (PW-1), Vikram Dhurve (PW-2), Aziz Khan (PW-3), Manoj (PW-4), O.P. Shrivastava (PW-5), Pannalal Chouhan (PW-6), Vinod (PW-7), 6. In defence, no witness has been examined by the appellant. 7. The appellant/accused abjured his guilt and he took a plea that he is innocent. 8. The appellant was tried and charged and tried and thereafter, the learned trial Court, after considering the evidence and material available on record has Convicted the appellant, as stated above. 9. Learned counsel for the appellant has submitted that the learned trial Court has wrongly convicted the appellant without considering the fact of non-compliance of Section 50 of the NDPS Act. The learned Court below has erred in not considering the fact that the prosecution agency, at the time of raid, has not complied with the mandatory provisions of the Act. It is further submitted that the witnesses of seizure PW-4 Manoj and PW-9 Vinod have turned hostile and have not supported the case of the prosecution. It is further submitted that the recovery has not been made in the presence of Gazetted Officer or a Magistrate, hence, the conviction vitiates. It is further submitted that the prosecution has not complied with the provisions of Section 50, 42(2), 52-A, 55, and 57 of the NDPS Act which are mandatory in nature. The prosecution has not produced the contraband before the Court below which is clear violation of Section 52-A (2) of the Act. The learned trial Court has convicted the appellant without considering the contradictions and omissions in the statements of the prosecution witnesses. The Investigating Officer has not followed the procedure due under Section 55 of the Act for affixing the seal on the samples being mandatory in nature because in the instant case, the contraband was neither having the seal of Investigation Officer nor the seal of Station House Officer, hence, the appellant is entitled for acquittal. 10. Counsel for the appellant argued on the other point by submitting and by placing reliance over judgments of this Court and prays for undergone to the period already undergone by affirming the conviction as the appellant has already undergone approximately 3 years and 9 months out of the five years of sentence which is substantial period of sentence to meet the ends of justice. 11. 11. Counsel for the appellant further placed reliance over the judgement passed by hon'ble Apex Court in the case of Arif Khan @ Agha khan vs. State of Uttarakhand [2018 Cr.LR (SC) 464] whereby the hon'ble Apex Court has held that if the recovery of contraband was not recovered in the presence of a Gazetted Officer or a Magistrate and none of the police official of the raiding party was a Gazetted Officer than the there is no compliance of the mandatory provisions and conviction is not sustainable. 12. Counsel for the appellant placed reliance over the judgment of this Court passed in the case of Trilockchand vs. State of M.P. 2004 Cr.LR. [M.P.] 817 whereby the Court has held as under: 7.According to the Notification No.S.O.1055(E) dated 19.10.2001, small quantity of opium derivative other than heroin, morphine and those listed therein is 5 gm. and the commercial quantity thereof is 250 gm. Smack is the derivative of opium, not listed in the table, hence, the small quantity of smack would be taken to be prescribed as per aforesaid notification to be 5 gm and commercial quantity as 250 gm. Duantity seized from the appellant is said to be 35 gm which is much less than the commercial quantity. Therefore, appellant's case might be dealt u/s 21(b) of the Act. According to Section 21(b) of the Act, where the contravention involved quantity, lesser than commercial quantity, but greater than small quantity, accused could be punished with rigorous imprisonment for a term which may extend to ten years, and with fine which may extend to one lakh rupees. It is thus clear that in case where the quantity involved is less than the commercial quantity prescribed by the Act (as it stood after amendment) imprisonment for term lesser than the rigorous imprisonment for ten years and fine of less than one lakh rupees could also be awarded. 8. The quantity of smack seized from the possession of the appellant is 35 gm which is much less than the prescribed commercial quantity. 9. Appellant is first offender and he is under custody from 19.031993 to 19.09.1993 and 06.10.1993 to 31.05.1994 and from 21.08.2000 till date and thus, he has undergone imprisonment four about four years and five and half months. 9. Appellant is first offender and he is under custody from 19.031993 to 19.09.1993 and 06.10.1993 to 31.05.1994 and from 21.08.2000 till date and thus, he has undergone imprisonment four about four years and five and half months. Keeping in view the quantity of substance seized from his possession, sentence for imprisonment already under by him and a fine of Rs.15,000/- (Rupees fifteen thousand) will be sufficient and would meet the ends of justice, in the circumstances of the case. 13. On the other hand, learned Public Prosecutor has opposed the prayer. Inviting my attention towards the conclusive paragraphs of the impugned judgement, learned public prosecutor has submitted that all the provisions of the Act has been complied with by the prosecution agency and there is clear evidence against the appellant, therefore, according to the learned Public Prosecutor, the appeal deserves to be dismissed. 14. I have considered rival contentions of the parties and have perused the record. On bare perusal of the record and after going into aforesaid consideration and after considering the fact and circumstances of the case, in the considered opinion of this Court, the learned trial Court has passed the impugned order after proper appreciation of the statements of the witnesses and evidence available on record, hence, this cannot be said that the learned trial Court has erred while passing the impugned judgement. Therefore, the conviction is affirmed. 15. However, looking to the limited prayer made by learned counsel for the appellant and the quantity so recovered in the matter which is much lesser than the commercial quantity i.e. 100grmas of heroine (commercial quantity 250 grams) and looking the custody of the appellant i.e. he has undergone approximately 3 years and 10 months out of five years of his jail sentence, the appeal is liable to be and is hereby partly allowed. 16. The judgement of the learned trial Court is hereby is upheld ua the conviction and fine so awarded, however, set aside ua the sentence and awarded sentence to the period already undergone. The sentence of the appellant is reduced to the period already undergone. 17. He be set at liberty forthwith if not required in any other case in jail subject to deposit fine am18. ount before the Court below. 19. The order of the trial Court regarding disposal of the seized article stands confirmed. 20. The sentence of the appellant is reduced to the period already undergone. 17. He be set at liberty forthwith if not required in any other case in jail subject to deposit fine am18. ount before the Court below. 19. The order of the trial Court regarding disposal of the seized article stands confirmed. 20. A copy of this order be sent to the trial Court concerned for necessary information. 21. Pending application, if any, stands closed. Certified copy, as per rules.