Madhya Pradesh High Court
Rajjak Khan vs The State Of M.P. on 27 May, 2019
1 Cr.A. No.66/2004
THE HIGH COURT OF MADHYA PRADESH
SINGLE BENCH
Criminal Appeal No.66/2004
Rajjak Khan S/o Nanne Khan
Vs.
State of Madhya Pradesh
Shri Sanjay Gupta, learned counsel for the appellant.
Shri S.K. Bahirani, learned Public Prosecutor for the
respondent/State.
Present: Hon. Mr. Justice Anand Pathak
JUDGMENT
[Delivered on 27th day of May, 2019] The present appeal under Section 374 of Cr.P.C. has been filed by the appellant against the order dated 23.12.2003 passed by VI Additional Sessions Judge, in Sessions Trial No.14/2001, whereby appellant has been convicted under Section 8(C)/15 of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as "NDPS Act") and sentenced to undergo ten years RI with fine of Rs.1,00,000/- with default stipulation.
2. As per the case of prosecution, on 18.08.2001 around 5 pm, Station House Officer, Police Station Mohna received the tip off from 2 Cr.A. No.66/2004 the informant about transportation of Opium (Afeem/Dodachoora) in vehicle TATA 407, bearing Registration No.MP08 4316 being carried by accused Harkishan Rathore. Information Panchnama Ex.P/3 was prepared and information was sent to SDOP, Ghatigaon (Letter and acknowledgment vide Ex.P-19) and thereafter, seal/stamp (yky piM+h) was taken and vehicle was intercepted. It stopped at some distance and driver was informed about the information and conveyed him the intention of police to search. Option was given whether he would like to get the search done in presence of any Magistrate/Gazette Officer or by the Sub-Inspector. Driver/accused Rajjak and other co-accused Harkishan and Omi @ Omprakash consented for search by Station House Officer. Consent Panchnamas vide Ex.P/4 to Ex.P/6 were prepared and search was carried out.
3. Four white plastic bags containing Opium (Afeem/Dodachoora) were found in the cabin for which search Panchnamas Ex.P/8 and P/9 were prepared and after orally testing it and by burning, it is found that Dodachora is present in the bags and Panchnama vide Ex.P/10 was prepared. In presence of accused persons, bags were taken to the flour mill owned by Dhannalal Rathore for weighing purpose and Panchnama vide Ex.P/11 was prepared about exactness of scale/balance. After weighing, all four bags, 29 kgs Opium (Afeem/Dodachoora) each. Two samples of 50 grams from each bag were taken vide A1-A2, B1-B2, C1-C2 and D1- 3 Cr.A. No.66/2004 D2 and were sealed as samples. Panchnama of the process was prepared vide Ex.P/12. Thereafter, all these bags were seized vide seizure memo Ex.P/13 and all three accused persons were arrested vide Ex.P/13 to Ex.P/16. FIR was registered vide Ex.P-25 and seized contraband article was given to Malkhana in-charge i.e. head constable for keeping it in Malkhana custody.
4. Since information was earlier provided to the SDOP, Ghatigaon and Station House Officer, Police Station Ghatigaon was given assignment of investigation, therefore, seized samples were sent to FSL examination at Sagar and report was obtained vide Ex.P/29. After investigation, charge-sheet was filed before Special Judge, NDPS Act.
5. Charge under Section 8(C)/15 and 8(C)/29 of NDPS Act were framed. Appellant abjured their guilt and took defence of false implication. Co-accused Harkishan and Omi @ Omprakash took specific defence that before incident Harkishan met an accident and was immobile and could not move and therefore, he was taken by accused Omi @ Omprakash on handcart to police station where both were arrested on false pretext. Harkishan in his defence examined himself and three other witnesses Hakim Singh, Sureshpal and Dr.Abhay Chandak.
6. Evidence was led by the parties and after considering the evidence and submissions of the parties, trial Court found all accused 4 Cr.A. No.66/2004 guilty of offence under Section 8(C) of NDPS Act and sentenced to undergo 10 years RI with fine of Rs.1,00,000/- with default stipulations. Therefore, against the judgment of the trial Court, the present appellant has filed this present appeal under Section 374 of Cr.P.C..
7. It was the submission of learned counsel who is appearing on behalf of appellant that the seized contraband articles (Poppy Straw) were not produced in the trial Court. Therefore, trial Court had no occasion to know about the exact nature of contraband articles. He relied upon the judgment rendered by the Apex Court in the cases of Gorakh Nath Prasad Vs. State of Bihar, (2018) 1 SCC (Cri.) 711 and Union of India Vs. Jarooparam, (2018) 3 MPLJ (Cri.) SC 11. It is further submitted that samples, which were taken from the contraband articles, were not seized on the spot and caused illegality. He relied upon the judgment rendered by the Apex Court in the case of State of Rajasthan Vs.Gurmail Singh, (2005) 3 SCC 59. It is further submitted that driver of the vehicle i.e. present appellant Rajjak Khan cannot be convicted unless poppy straw/opium found in the vehicle, was under the knowledge of the driver. Here, police has not produced any evidence in this regard. He relied upon the decision rendered by the Apex Court in the case of Gumail Singh Vs. State of Punjab, 2002 CrLJ 201. It is further submitted that independent witnesses have not supported the prosecution story. Therefore, the 5 Cr.A. No.66/2004 prosecution could not prove the case beyond reasonable doubt. He relied upon the judgment rendered by Apex Court in the case of Gorakh Nath Prasad Vs. State of Bihar, (Supra) and Union of India Vs. Jarooparam (Supra).
8. Learned Public Prosecutor for the respondent/State, on the other hand, opposed the prayer made by the appellant while relying upon the paragraphs 5 and 12 of impugned judgment and the evidence of Dhannalal (PW-1) and Suresh Agarwal (PW-12). It is submitted that story of prosecution has been proved beyond reasonable doubt. It is further submitted that the presence of independent witnesses are not necessary. He relied upon the judgment rendered by Apex Court in the case of Babubhai Odhariji Patel and others Vs. State of Gujarat, 2005 (8) SCC 725 and Mohan Singh Vs. State of M.P. 2013 (2) ANJ 141 (SC). Therefore, he prayed for dismissal of appeal.
9. Heard the learned counsel for the parties at length and perused the record.
10. In the case in hand, appellant is facing trial under Section 8(C)/15 of the NDPS Act. Dhannalal (PW-1) is the flour mill/ grinding machine owner (Aata Chakki) and at his place, bags were weighed. Although, he supported the prosecution story and did not declare hostile, but at the same time, in his cross-examination, he stated the fact that he did know what articles were in the bag. He did 6 Cr.A. No.66/2004 not refer the fact that bags were sealed in his presence, rather in paragraph 2, he also admits the fact that samples were not sealed in his presence nor signatures were taken over the samples. Therefore, neither the bags were sealed nor the samples were sealed in his presence. The same is the position with witness Suresh Agarwal (PW-
2) who is also apparently a witness present on the spot and allegedly seen the process of sealing. The said witness in his cross-examination admits the fact that neither said contraband articles were sealed, nor goods nor the samples. On the other hand, trial Court while relying upon the testimony of witnesses namely Dhannalal and Suresh Agarwal (PW-1) and (PW-2) respectively, has arrived to the conclusion that they have supported the story of prosecution while contraband articles and samples were sealed. Therefore, perversity is apparent on record.
11. If this fact is looked in juxtaposition to the fact that seized contraband article was not produced in the trial Court, it appears that contention of the appellant gains ground in respect of search and seizure and in respect of legal position regarding effect of sample, not being sealed on the spot. Neither contraband articles were sealed nor the samples and the seized articles were not produced in the trial Court. This indicates the nature of evidence produced by the prosecution to support its story. Prosecution failed to prove the case beyond reasonable doubt.
7 Cr.A. No.66/2004
12. Kedar (PW-3) is the seizure witness, but he did not support the prosecution story and declared hostile. In his cross-examination, he nowhere made any statement which is implicative in nature qua present appellant. When independent witness did not support the prosecution story regarding seizure and regarding sealed cover procedure of samples and when other witnesses Dhannalal (PW-1) and Suresh Agarwal (PW-2) although did not turn hostile, but still did not support the prosecution story authentically, then story becomes doubtful.
13. Another seizure witness is Banwarilal Rajak (PW-4). He also did not support the prosecution story and declared hostile. Therefore, the seizure cannot be proved beyond reasonable doubt. Shyamlal Gupta (PW-5) who is the head constable and in charge of Malkhana, admits the fact in paragraph 3 that samples were returned back from FSL because of some defect in it, but he denied to elaborate it and on suggestion, he denies the fact that because the samples were not properly sealed, therefore, FSL returned back the samples. It was the duty of the prosecution to produce the letter of FSL to show that the seal cover procedure was proper. Here, doubt was created by the defence and admission of the witnesses indicate that some irregularities were made while sending the samples to FSL. Therefore, it cannot be assumed automatically that contraband 8 Cr.A. No.66/2004 articles were seized and sealed properly and sent to the FSL for investigation.
14. Evidence of Investigating Officer J.P.Bhatt (PW-12) nowhere referred the fact that seized contraband article were ever produced before the trial Court. He also admitted the fact that in paragraph 18, when he asked the appellant Rajjak Khan about contraband articles found in bags, then he showed ignorance and information was made that he does not know about the said articles. He is only the man for driving the vehicle.
15. When seized contraband articles were not produced before the trial Court and samples were not properly seized on the spot, the facts which are clear from the testimony of Dhannalal (PW-1) and Shyamlal (PW-5) and specifically when witnesses have not been declared hostile, then prosecution is bound by their testimony. (See: Mohanlal Gangaram Gehani Vs. State of Maharashtra reported in AIR 1982 SC 839), Bhagatram and others Vs. State of M.P. reported in 1990 CRLJ 2407, Sukhram Vs. State of M.P. reported in AIR 1989 SC 772, M.Krishna Reddy Vs. State Deputy Superintendent of Police, Hyderbad reported in AIR 1993 SC 313, Kunju Muhammed @ Khumani Vs. State of Keral reported in 2004 SCC (Cri.) 1425.
16. In the present case, actual case property (contraband articles) has not been produced before the Court, therefore, Court had no 9 Cr.A. No.66/2004 occasion to satisfy itself that seal on the case property tallies that the samples to rule out any possibility of foul play. The guidance given by the Hon'ble Apex Court in the case of Baldev Singh Vs. State of Haryana reported in 2018 Cr.L.J. (SC) 1158, Mohinder Singh Vs. State of Punjab reported in (2018) 11 SCC 570 and in the case of Makhan Singh Vs. State of Haryana reported in (2016) 1 SCC (Cri.) 96 is worth consideration in this regard. Trial Court had no occasion to tally the seal affixed over the case property vis-a-vis the samples to rule out foul play. This has rendered the case of prosecution more doubtful.
17. Similarly, independent witnesses did not support the prosecution story and prosecution did not prove the case beyond reasonable doubt about implication of appellant Rajjak Khan who was the driver of the vehicle. He knew the fact about that he carried poppy straw/opium under his knowledge. The decisions in the cases of Gurmail Sing State of Punjab reported in 2002 CRLJ 201, Kalekhan Vs. State of M.P. reported in 1999 CRLJ 1119 are worth consideration in this regard.
18. Considering the overall facts situation, nature of evidence and the legal position, it appears that trial Court has wrongly convicted the appellant. Prosecution did not discharge their duties to prove the case beyond reasonable doubt. Hence, appeal stands allowed and impugned judgment passed by the trial Court is, hereby, set aside. 10 Cr.A. No.66/2004
19. Appellant is on bail, his bail bond stand discharged. He is set free.
20. The copy of this judgment be sent to the trial Court for information and necessary compliance.
(Anand Pathak) Judge Rashid RASHID KHAN 2019.05.28 11:00:10 +05'30'