Madhya Pradesh High Court
Bhanwarlal vs The State Of Madhya Pradesh on 26 March, 2019
Equivalent citations: AIRONLINE 2019 MP 467
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14
HIGH COURT OF MADHYA PRADESH :
BENCH AT INDORE
S.B.: Hon'ble Shri Virender Singh J.
Criminal Appeal No.1900 of 2014
Bhanwarlal
Versus
State of Madhya Pradesh
***************
Criminal Appeal No.1865 of 2014
Heeralal
Versus
State of Madhya Pradesh
***************
Criminal Appeal No.1934 of 2014
Kanhaiyalal
Versus
State of Madhya Pradesh
***************
Shri Abhay Saraswat, learned Counsel for the appellants.
Shri Raghuveer Singh Darbar, learned Public Prosecutor for
the respondent/State.
JUDGMENT
(Delivered on 26/ 03/2019)
1. All these three appeals have arisen out of judgment dated 29.11.2014 passed in Special Case No.1/2011 by Special Judge, NDPS Act, Neemuch, whereby the learned trial Court has convicted the appellants u/S 8/18(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced them to undergo 10-10 years RI with fine of Rs.1-1,00,000/- and in default of payment of fine further to undergo 1-1 year RI.
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14
2. Facts in brief are that on 24.10.2010, ASI of Police Station Jeeran, Suresh Babu Sharma received information through constable Shivraj Singh of Police Station Neemuch Cant that Bhanwarlal, Heeralal and Kanhayilal (all appellants) are going from Chotisadi Rajasthan to Pratap Garh Rajasthan via Mataji Road Chitakhedi by Hero Honda CD Deluxe motorcycle having no number plate to deliver opium to some smugglers and by barricading Avarimata Road, they can be nabbed. The information was entered in daily diary (roznamchasana). Head Constable Nandsingh Chandrawat was asked to call two independent witnesses from the nearby town, who came back with Shakir Husain and Anil. They both were informed about the information and the action was taken on record in the form of memo of such information. There was no time to obtain search warrant due to paucity of time. A Panchnama was prepared in this regard. Constable Neeraj Raj Vaidhya was sent to inform Senior Police Officers. ASI Suresh Babu Sharma collected the force available at police station and with all paraphernalia like weights, seal and other necessary papers and materials, left the police station with office jeep number MP-03-2556 to Awari Mata Road, where they hid the jeep in the shed and laid a trap near farmland of Ramesh Kalbeliya.
3. After waiting for 15-20 minutes, they noticed a motor cycle as with three riders and without number plate. They stopped them and asked their name, who revealed that they were Heeralal, Kanhayilal and Bhanwarlal (the appellants). A.S.I. Suresh Babu Sharma informed them about the information received by him regarding contraband and that if they wish their search can be taken before any Gazetted Officer or Magistrate. They all HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 consented for the proposed search to be taken by ASI Suresh Babu Sharma himself.
4. After giving search of himself and the cops present with him, Suresh Babu searched them (Kanahiyalal, Heeralal, Bhanwarlal) and their motorcycle, but nothing objectionable was found. Thereafter, the cops searched the bag being carried by the person sitting in the middle of the motor cycle by keeping some of it part on the seat between him and the driver and recovered 17 kgs opium. Two samples of 30gm each were taken out and the samples as well as the remaining content of the sack were sealed. All the proceedings were documented. Motorcycle was seized. All the appellants were arrested. The Spot map was prepared. Intimation of all the proceedings taken up on and off the spot was sent to the S.D.O.P., Jeeran. The Police party came back at Police Station, completed other necessary investigation and filed the charge-sheet before the Court.
5. The appellants were charged, tried and convicted as stated in para - 1 above.
6. The appellants have preferred these appeals on the grounds that the judgment of the learned trial Court is contrary to the law and facts available on record. The independent witnesses have not supported the case of the prosecution. The learned trial Court has error in convicting the appellants only on the basis of the statements of the interested and official witnesses. In the present case, mandatory provisions of Section 42, 50, 52A, 55 and 57 of the Act, 1985 have not been complied with, therefore, conviction of the appellants is not sustainable in the eyes of law. The learned trial Court has erred in appreciating the evidence of the prosecution and in relying upon the statements of interested witnesses and in HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 discarding the defense version. Appellant Bhanwarlal had nothing to do with the contraband being carried by the other appellants as he had only taken lift to go upto the bus stand, while coming back home from temple. Therefore, the appellants are entitled for acquittal.
7. The learned public prosecutor has opposed the prayer.
8. I have considered rival contentions of the parties and have perused the record.
9. Before the Trial court, Assistant Sub-Inspector (ASI) Suresh Babu Sharma PW/5 has categorically narrated the incident. He has stated that on 24.10.2010, when posted and present at Police Station-Jeeran, he received information through Constable Shivraj of Police Station Neemuch Cant. that appellants Bhanwarlal, Heeralal and Kanhiyalal resident of Chitakhedi Police Station Vijaypur District Chitorgarh, Rajasthan will go by Hero Honda C.D Deluxe motorcycle having no number plate from Chhotisadi, Rajasthan to Pratap Garh, Rajasthan via Mataji Road Chitakhedi to deliver opium to some smuggler. Out of them, two are wearing "Dhoti Kurta" and one in "Paints Shirt". If action is taken immediately and Avarimata Road is blocked, they can be nabbed. This information was entered in Roznamcha. Head constable Nandsingh was asked to call two independent witnesses. After few minutes, he came back with Shakir Husain and Anil Salvi. His departure and arrival also entered in Roznamcha. Both the panch witnesses were informed about the intimation received by the police. A panchnama was prepared to the effect and signed by both of them. Having short of time to obtain search warrant, ASI Suresh Babu Sharma constituted a team of police personals available at the police station comprising Head Constable Prabhudayal, HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 Constable Neeraj, Shivraj Singh, Antar Singh, Shailendra Singh and Umesh Chouhan, Sainik Balwant Singh, and Takshraj. Shankar Singh was sent to intimate the CSP Neemuch regarding information and the action taken. Taking all necessary paraphernalia, the police party immediately left the police station to the place pointed out by the informer.
10. The police party barricaded Mataji Kheda Road and waited for the miscreants. After 15-20 minutes, they noticed three persons coming on un-numbered Hero Honda C.D. Deluxe motorcycle. Without giving them any opportunity to escape, the force with the help of Panch witnesses stopped them and asked their names and other particulars. The person who was driving the vehicle revealed his name as Heeralal S/o Shankarlal Revari. The person sitting in the middle revealed his name as Kanhiyalal S/o Baluram Dhakad and the person sitting pillion revealed his name as Bhanwarlal Gurjar resident of Kheda Khedi.
11. ASI Suresh Babu Sharma informed them about the intimation received and also about their right of search to be taken before any gazetted officer or the Magistrate. They consented for search by the ASI himself. After giving them search of himself and other members of the raiding party, the police searched them in persons but found nothing except few cash currencies. Thereafter, the police searched fertilizer bag being carried by appellant-Kanhiyalal by keeping the same between him and the driver of the motorcycle and found a black thick substance in a poly bag kept inside the fertilizer bag. A small quantity of that substance was taken out and smelled and tested by ASI Suresh Babu Sharma by burning the same and found that it was opium. The substance was weighed and it was found 17 kgs. Two samples of 30 grams each were taken HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 out. The samples and the remaining substances were sealed on the spot. The motorcycle was also seized. The raiding party along with the substance and the accused persons came back at police station. The substance was deposited and the samples were sent for FSL for chemical analysis. The accused persons were arrested. Each and every proceeding whether undertaken on the spot or at the police station was documented by preparing relevant Panchnamas.
12. ASP Rajendra Prasad PW/6, Head Constable, office of the SP Neemuch, Gangaram Dodre PW/1 Antar Singh PW/7, the then SHO Police Station Jeeran Basant Shrivastava PW/8 and Patwari Mubarik Khan PW/10 have supported the statement of ASI Suresh Babu Sharma in respect of different steps taken since receiving of information till the arrest of the accused persons. Availing opportunity of cross-examination, the appellants have made android efforts to shatter the statement of all these witnesses but in vain. Nothing contrary could be brought on record to suspect the truthfulness of these witnesses. Further to support them, documents from Ex.1 to 61 are also available on record which could not be rebutted by the appellants, even after cross-examination of these witnesses.
13. Though, the defense of non-compliance of section 42, 50, 52A, 55 and 57 of the NDPS Act is taken by the appellants before the trial Court as well as before this court but the trial Court has rightly dealt with this defense and turn down the arguments advanced by the appellants.
14. I have also gone through the statement particularly the cross- examination of the witnesses and the documents prepared and proved by ASI Suresh Babu Sharma on the spot or at the police station, which are proved by the respective witnesses and find that HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 all the directions or mandates given under these provisions have been compiled with; in the present case in its true spirit and nothing contrary is available on record to disbelieve the proceedings taken by the police at the time of recovery, therefore, the conclusion of the trial Court are based on correct appreciation of evidence and needs not interference by this Court.
15. Appellant Bhawarlal has taken a plea that nothing was recovered from his possession. He had gone to Darshan of Kodiya Mahadev Temple and was coming back home by foot. He saw the two motorcyclists and asked them for lift upto the bus stand. They permitted him and he sat on the back seat of the motorcycle. He was neither concerned and was nor aware of the substance being carried by Kanhiyalal as the bag being carried by Kanhiyalal was a bag of fertilizer and he thought that they were taking some fertilizer for their fields and did not doubt for the same. He cannot be presumed in conscious possession of the contraband recovered from possession of Kanhiyalal, therefore, he cannot be convicted for the offence committed by the co-accused persons due to the lift taken in the hour of need.
16. I have considered the argument advanced by Bhanwarlal. In Mukhbir Suchna, along with other co-accused persons, appellant Bhanwarlal was also named as one of the person carrying the contraband and this part of the statement of ASI Suresh Babu Sharma is unchallenged and supported by Mukhbir Suchna Panchanama, and other Panchnamas and the proceedings undertaken on the spot at the time of recovery. Bhanwarlal was caught on the spot, he was informed about his right of search before gazetted officer or magistrate, his personal search was taken on spot and all other proceeding completed before him, but he HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 never raised this issue at that point of time. He never raised his voice even after the proceedings were completed on the spot or at the police station or when he was produced before the Court for remand. Nobody carries such small quantity of fertilizer for use in the fields, therefore, such type of statement cannot be believed. A huge quantity of psychotropic substance was recovered in the presence of Bhanwarlal and he never opposed the action taken by the police, therefore, presumption under Section 35 and 54 of the Act, 1985 of conscious possession of the appellant along with co- accused persons is available in favour of the prosecution. It was upon him to rebut such presumption, but no efforts have been made by him during the trial. No evidence in defense is produced by him and suggestions given in this regard have been denied by ASI Suresh Babu Sharma.
17. Hon'ble the Supreme Court has dealt with this issue in Jagdish Rai v. State of Punjab, (2011) 4 SCC 571 : (2011) 2 SCC (Cri) 292 at page 572
4. Before us, the only point urged on behalf of the appellant was that on the basis of the prosecution case and the evidence led on its behalf, it was not possible to attribute conscious possession of the contraband to the appellant. Mr Chahar, Senior Advocate, appearing for the appellant, submitted that the bag containing opium was carried by the other accused, the pillion rider and the appellant was driving the motorcycle. It, therefore, cannot be assumed that the appellant was aware of the contents of the bag being carried by the other accused.
5. The question whether the appellant can be said to be in conscious possession of the contraband has been considered by the High Court in detail and relying upon a number of decisions, both of the courts of this country and of some foreign courts, the High Court held and found that the conscious possession of the contraband by the appellant was HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 fully established. In this regard, the High Court made the following observations:
"... Two persons were concededly seen coming on a motorcycle. Having seen the police, efforts were made to retreat. The appellants, however, were nabbed. Why would appellant Jagdish Rai, who was seen driving the motorcycle, would make an effort to retreat in case he was not aware of what was being carried by his pillion rider, appellant Ajaib Singh? Appellant Ajaib Singh was found carrying the bag on his shoulder. It is not the case of the appellants that they both were strangers or Ajaib Singh had taken lift from him. They both were travelling on a private motorcycle and it was not a public vehicle. It is difficult to assume that Jagdish Rai was not in conscious possession of the said contraband....
... Once appellant Jagdish Rai was seen riding a motorcycle with a person on his pillion from whom this contraband was recovered, the prosecution, in my view, succeeded in showing that physical possession was that of appellant Ajaib Singh and appellant Jagdish Rai knew about it which is noticed from his action to retreat on seeing the police party and, thus, could be construed in possession of the contraband. He apparently was conscious of the fact that his pillion rider is carrying opium. It is to cover such situations, that provisions in the form of Sections 35 and 54 of the Act are made where presumptions are available to be drawn from the possession of illicit articles as established. It would, as such, be difficult to say that the appellant Jagdish Rai was not found to be in conscious possession of the contraband. Once he was shown to be driving a motorcycle with the appellant carrying the bag, it was for him to show that he was not aware of what was being carried in the bag and the special provisions of HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 Sections 35 and 54 of the Act would require him to do so."
6. On hearing the counsel for the parties and on going through the materials on record we are fully in agreement with the view taken by the High Court.
10. In light of the discussion made above, we find no merit in the appeal. It is, accordingly, dismissed.
18. In Pappi v. State, 2010 SCC OnLine Raj 4656 : (2011) 1 RLW 247 : (2011) 1 WLC 374, the Apex Court observed:
29. Once the possession is established the person, who claims that it was not a conscious possession, has to establish it because how he came to be in possession is within his special knowledge. In the case in hand, the accused-appellant who was carrying pillion rider on his rear seat and the jute thaila was lying on his motor cycle seat between him and the pillion rider, cannot be heard to say that he had no knowledge or that he did not know the rider.
Section 35 of "the NDPS Act" gives a statutory recognition of this position because of presumption available in law. The explanation appended to Section 35 of "the NDPS Act" clarifies that 'culpable mental state' used in Section 35 of "the NDPS Act" includes knowledge of a fact and belief in, or reason to believe a fact. Similar is the position in terms of Section 54 where also presumption is available to be drawn from possession of illicit articles and in the case in hand he has failed to account satisfactorily.
19. Dharampal Singh v. State of Punjab, (2010) 9 SCC 608 :
(2010) 3 SCC (Cri) 1431 at page 613 is another case where the Hon'ble Supreme Court said that:
12. We do not find any substance in this submission of the learned counsel. The appellant Dharampal Singh was found driving the car whereas appellant Major Singh was travelling with him and from the dicky of the car 65 kg of opium was recovered. The vehicle driven by the appellant Dharampal Singh and occupied by the appellant Major Singh is not a public transport vehicle. It is trite that to bring the HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 offence within the mischief of Section 18 of the Act possession has to be conscious possession. The initial burden of proof of possession lies on the prosecution and once it is discharged legal burden would shift on the accused. Standard of proof expected from the prosecution is to prove possession beyond all reasonable doubt but what is required to prove innocence by the accused would be preponderance of probability. Once the plea of the accused is found probable, discharge of initial burden by the prosecution will not nail him with offence. Offences under the Act being more serious in nature higher degree of proof is required to convict an accused.
20. Again in Gian Chand and Ors v. State of Haryana AIR 2013 SC 3395 Hon'ble Supreme Court reiterated the similar view that once possession of contraband material with accused is established, provisions of S. 106 of Evidence Act get attracted. The Accused has to establish how he came to be in possession of same as it is within his special knowledge. From the conjoint reading of the provisions of Sections 35 and 54 of the Act, it becomes clear that if the accused is found to be in possession of the contraband article, he is presumed to have committed the offence under the relevant provisions of the Act until the contrary is proved. According to Section 35 of the Act, the Court shall presume the existence of mental state for the commission of an offence and it is for the accused to prove otherwise. It is a settled legal proposition that once possession of the contraband articles is established, the burden shifts on the accused to establish that he had no knowledge of the same. Additionally, it can also be held that once the possession of the contraband material with the accused is established, the accused has to establish how he came to be in possession of the same as it is within his special knowledge and HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE Cr. A. Nos.1900/2014, 1865/2014 and 1934/2014 14 therefore, the case falls within the ambit of the provisions of Section 106 of the Evidence Act, 1872.
21. Evidence produced by the prosecution would show that the mandate of the law in properly complied with in the present case. Nothing could be pointed out to doubt the action taken by the police. After going through the entire evidence of the prosecution produced before the trial Court, I do not find any ground to interfere with the findings of the learned trial Court particularly on the grounds taken by the appellants. Having regard to the quantity of the psychotropic substance seized from the appellants, sentence awarded by the learned trial Court also appears to be just and proper. The appeals preferred by the appellants are bereft of merits, deserves to be and are dismissed hereby.
(VIRENDER SINGH) JUDGE Digitally signed by SOURABH YADAV Date: 2019.03.26 17:44:19 +05'30' sourabh