Madhya Pradesh High Court
Dhanram Goutam vs The State Of Madhya Pradesh on 16 April, 2018
THE HIGH COURT OF MADHYA PRADESH
CRA-1551-2011
(DHANRAM GOUTAM Vs THE STATE OF MADHYA PRADESH)
9
Jabalpur, Dated : 16-04-2018
For the Appellant : Shri Sandeep Kumar Jain, Advocate
For the State : Shri C.K. Mishra, Govt. Advocate
JUDGMENT
( .04.2018) sh This appeal has been preferred under Section 374(2) of e Cr.P.C., 1973, challenging the judgment dated 21/06/2011, ad passed by the Special Judge (under NDPS Act) Anuppur, in Pr Special Case No.11/10, wherein the appellant/Dhanram has been convicted for offence under Section 20-B(ii)(c) of the a NDPS Act and sentenced to 10 years rigorous imprisonment hy with fine of Rs.1,00,000/- and in lieu of fine, he has to ad undergo additional sentence of 2 years rigorous imprisonment.
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2. The prosecution story in brief is that, Police Station, of Bhalumada received an information from the informer on 03/05/2008 at about 11:00 am that, at Badka Tola, Payari rt No.1 at the residence of appellant/Dhanram son of Babadeen ou Goutam business of contraband ganja is being done and last C night a consignment of ganja has been received by a vehicle h at the residence of the appellant in gunny bags which have ig been kept in the house, secretly. Assistant Sub-Inspector, H C.P. Singh (PW/12) lodged Rojnamcha No.130, directed the Head Constable, Upendra Tripathi to call the independent witnesses. Second Rojnamcha No.131 was also lodged for obtaining search warrant from the learned JMFC, Kotma. Subsequently, Rojnamcha No.132 was also lodged for the team left for research.
3. After receiving the search warrant with the help of independent witnesses, Kodulal Choudhary and Lalua Choudhary, A.S.I. C.P. Singh prepared a panchnama and sent to the Sub-Divisional Officer Police, Kotma and sent constable, Sarad Passi. The team went to the house of the appellant at Village, Badka Tola, Payari No.1. The house of the appellant was surrounded. The appellant was found in the house. Notice under Section 50 of the NDPS Act was served on him. He was also informed about the legal rights and also told that whether he wants the search to be conducted by the Magistrate or a Gazetted Officer and he also was intimated that, search warrant has been obtained from JMFC, Kotma. The appellant consented to carry out the search. Sahmati sh Panchnama (Ex.P/7) was drawn. ASI C.P. Singh and the staff e along with the independent witnesses searched the house of ad the appellant. Before the search, the police officers and Pr witnesses given their search to the appellant and Panchnama Ex.P/8 was drawn. Room beside the kitchen, near the a backyard was locked from the outside. When the lock was hy opened, it was found that the room was filled with chaff.
ad Inside the chaff, 13 bags containing ganja were found. The bags are of the size of cement bags. Talashi Panchnama M Ex.P/9 was drawn. Every bag was then checked by physically of seeing by smelling and by burning a small quantities and found it to be ganja. Panchnama Ex.P/10 was again drawn.
rt The ganja in the 13 bags were weighed and was found in ou different quantities and the total quantity of ganja was 120 C kilograms (i.e. one quintal and twenty kilograms). The h weighing panchnama Ex.P/11 was drawn. The seized ganja ig was weighed in presence of the witnesses. 25 grams of ganja H from each sample was taken and mixed and kept in 4 different plastic bags and the same were kept in cotton bags. With the help of a needle, the same were stitched. The ganja were kept in jute bags. The samples (samras) panchnama Ex.P/12 was prepared. These ganja bags were kept in jute bags and are also stitched and sealed. The articles A to M are ganja bags and Ex.P/1 to Ex.P/4 are the samples of ganja. Panchnama Ex.P/13 was again prepared. The sample packets were also seized vide Ex.P/14. The appellant had no license to keep the ganja, therefore, the appellant has committed the crime for offence under Section 20-B(ii) (c) of the NDPS Act. The appellant was arrested by arrest memo Ex.P/15. The information regarding his arrest was given to Vishnu Prasad Mishra, member Janpad. Panchnama drawn about his arrest intimation is Ex.P/16. The seized ganja sample and arrested accused along with staff and independent witnesses returned to the police station. Therefore, Rojnamcha No.147 dated 03/05/2008 was drawn, which is Ex.P/41. The sealed packets were kept in police station Maal Khana for safety. Crime sh No.114/08 was registered vide the FIR Ex.P/42. After due e investigation, charge-sheet has been filed before the Special ad Court, NDPS, Shahdol. Spot map was prepared by the Pr Patwari along with Khasra Panchshala and Panchnama certificate was also obtained from Sarpanch. The spot map a Ex.P/19 was prepared. Two samples of the seized ganja was hy sent to the FSL, Sagar vide memo Ex.P/12 vide memo ad Ex.P/124 for chemical examination. The FSL report Ex.P/45 has been received that, the samples sent are found to be M ganja.
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4. Learned Special under NDPS, Shahdol framed charge against the appellant for offence under Section 20-B (ii) (c) of rt the NDPS Act. The appellant abjured guilt and pleaded for ou trial. Subsequently, the case was transferred to the Court of C Anuppur for disposal according to law. The appellant under h Section 313 of Cr.P.C. admitted that, the prosecution witness ig Lalua Choudhary (PW/2), Santram Mehra (PW/3), Tribhuwan H Nath Gautam (PW/4) and Hari Singh (PW/5) knew him. Sarpanch of Gram Panchayat, Payari, Hari Singh are also is resident of his village. The appellant has two wives. Son of first wife is living separately. Lalua Choudhary had gone to the police station on 03/05/2008, where he met with ASI, C.P. Singh. Khasra number of the place of incident is 545/2 area 0.02 hectares is owned by Kamlesh. Copy of the Panchshala is Ex.P/2 duly signed by Patwari (PW/1), Devi Prasad. He also committed that, the appellant has been arrested on 03/05/2008 by ASI, C.P. Singh at the police station. According to the appellant, he was called to the police station and was arrested. He has been falsely implicated. The ganja seized does not belong to him. No ganja has been seized from his custody. Appellant examined Kamlesh Gautam DW/1 and Vishnu Kumar Mishra DW/2 in support of his defence. The learned trial Court having gone through the evidence and the defence pronounced the judgment impugned on 21/06/2011 and convicted the appellant for possessing 120 kilograms of ganja, which is more than the commercial quantity and sh sentenced the appellant for offence under Section 20-B (ii) (c) e of the NDPS Act as mentioned above.
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5. On behalf of the appellant, the judgment impugned is Pr challenged on the ground that, the appellant has been falsely implicated. The prosecution failed to prove the story beyond a reasonable doubt. The learned trial Court convicted the hy appellant on the conjunctures and surmises. The prosecution ad as well as the independent witnesses did not support the prosecution story. There is no evidence against the appellant, M therefore, the conviction and sentence is liable to be set of aside.
6. Per contra, learned GA for the respondent/State opposing rt the contentions submits that, the appellant was found in ou possession of huge quantity of ganja, which is more than the C commercial quantity. Independent witnesses even if not h supported the prosecution case, but the other prosecution ig witnesses who have established and checked that ganja has H been recovered from the house of the appellant. No reason to disbelieve them and the sentence awarded is the minimum prescribed for the offence, therefore the judgment dated 21.06.2011 do not call for any interference.
7. On behalf of the appellant, reference has been made to Ramchandra Vs. State of M.P. reported as 2001 (3) Crimes 293 and argued that, no chit containing signatures of Panch witness or thumb impression of appellant was pasted on any articles which were alleged to have been sealed on the spot. Therefore, it cannot be said that, the sample sent to FSL for analysis are the same seized article, possibility of substituting the sample and the contraband could not be ruled out, therefore, the conviction cannot be sustained.
8. Head Constable 198, Shivanand Shukla PW-6, has stated that, the 13 bags of ganja were weighed after taking out 25 grams of ganja as samples, the bags and sample packets were sealed. The packets Ex.P/1 to P/4 are the samples and the bags containing ganja are weighed (i) 7kg, (ii) 8kg, (iii) 8.5kg, sh
(iv) 6.5kg, (v) 12kg, (vi) 7.5kg, (vii) 8.5kg, (viii) 8.5kg, (ix) e 5.500gm, (x) 12kg, (xi) 13kg, (xii) 12kg and (xiii) 6.5kg. Chits ad of the weight was prepared and the packets were kept safely.
Pr The bags were deposited in the Maal Khana vide Ex.P/28. Constable, Mahendra Shukla (PW/7) has also supported the a version of PW/6, Shivanand Shukla. The weighing Panchnama hy was prepared by C.P. Singh. Name of the Kirana Shop was ad Pragatisheel Shop from where the electronic weighing machine was brought. Papers of Panchnama was prepared on M the bonnet of the vehicle. The property seized was brought to of the police station and the later was deposited in the Maal Khana of the Police Station. C.P. Singh (PW/12) in his rt examination has given the detailed weight of each bag ou articles âAâ to âMâ. He states that the packets were C sealed after taking the samples from each packet. The h weighing Panchnama Ex.P/11 was prepared after weighing ig the bags containing ganja. Lalua Choudhary (PW/2) and H Kodulal (PW/11) have not supported the prosecution story but have admitted the signatures in Ex.P/1 to P/19. In this regard, it would be appropriate to refer the case of Muthunachi Vs. State reported as 2011 Cr.L.J. 2047, wherein the Panch witnesses did not support the prosecution story but have admitted their signatures in the seizure memo. It would be held that, the witnesses were present at the time of seizure.
9. In this regard, the statement of C.P. Singh (PW/12), Shivanand (PW/6) and Mahendra Shukla (PW/7) cannot be brushed aside only on the ground they are police officers. In this regard, reference can be made to Gurjinder Singh Vs. State of Punjab reported as 2011 Cr.L.J. 1693 SC, wherein the Apex court has held that, the evidence of police witnesses can also be reliable, if the evidence is credible, even if the independent witnesses have turned hostile and on the basis of the statement of the police witnesses, conviction can be ordered.
10. Similar circumstances in the case of Ashok @ Dangra Jaiswal Vs. State of M.P. reported as 2011(5) SCC 123, sh the Apex Court has held that, independent witnesses turning e hostile is not uncommon, on the basis of the evidence of the ad police officers, conviction can be made.
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11. Reference can also made to State of Punjab Vs. Surjeet Singh reported as AIR 2009 SC 2439, Jarnail Singh Vs. a State of Punjab reported as 2011 (3) SCC 521, Gurmeet hy Singh Vs. State of Punjab reported as 2010 (4) ad MPHT289 and Ajmer Singh Vs. State of M.P. reported M as 2010 (3) SCC 746.
12. As it has been held earlier that, the independent of witnesses Kodulal (PW/11) and Lalua (PW/2) have not supported the prosecution story but have admitted their rt signatures in the documents Ex.P/1 to Ex.P/16. The aid of the ou finding in the case of Ramesh Harijan Vs. State of U.P. C reported as (2012) 5 SCC 724 may be taken, wherein it h has been held that, seizure/recovery witnesses though turned ig hostile but admitted their signatures/thumb impression on H recovery memo and thus, they could be relied by the prosecution.
13. In the light of the above, the statements of C.P. Singh (PW/12), Head Constable/Shivanand Shukla (PW/6) and Constable/Mahendra Shukla (PW/7) cannot be discredited.
14. In view of the above and the fact that, the samples were kept in safe custody in the police station and later was sent to FSL for chemical examination, the same cannot be suspected. The citation of Ramchandra Vs. State of M.P. (supra), therefore, are not of any help to the appellant.
15. Counsel for the petitioner placed reliance on Union of India Vs. Balmukund & others reported as (2009) 12 SCC 161, wherein it has been held that, instructions providing procedure for taking samples under Section 55 of the NDPS Act has to be followed scrupulously as requirement of law. If nothing shown whether adequate quantity from each bag was taken, no evidence as to which of the bags sent for analysis and whether contraband was found in them. Held, these are infirmities in prosecution case.
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16. In the present case, according to the witnesses 25 grams e from each bags was collected from the 13 bags and the ad samples were kept in 4 polythene bags. After mixing them Pr together, the samras panchnama was prepared. The samples were sent for examination to FSL and the FSL has given the a report that the contends are ganja. 25 grams from the each hy bags are the samples taken out and kept in 4 packets Ex.P/1 ad to P/4. These samples cannot be said to be inadequate for testing. Therefore, the citation Union of India Vs. M Balmukund (supra) is also of no consequence in the of appellantâs case.
17. Counsel for the petitioner also placed reliance on rt Kamlesh Rai Vs. State of U.P. reported as 2001 Cr.L.J. ou 1410, wherein it has been held that, arrest and recovery C effected on public thorough-fare, only one public witness was h examined who turned hostile. Sealed packet of sample ig prepared after recovery did not bear signature of accused. H Even during remand no signature of any Magistrate was obtained on case property. Prosecution case is doubtful. Record also show possibility of false implication of the accused. In this case, the sealed packets were prepared on the spot and the panchnama was prepared and signature of witnesses obtained including the independent witnesses though turned hostile. There is no such allegation that during the remand, no signature of any Magistrate was obtained on the case property. There is nothing to show that, the appellant was falsely implicated. The seizure memo and other documents have been promptly prepared, therefore, this citation is also of no avail to the appellant.
18. On behalf of the appellant, it is also contended that due to some defect, the samples packets were received back packet and again the samples were sent to FSL, Sagar for examination. No explanation was provided in this regard, therefore, the samples sent were defected and was remitted back and where the samples were kept and whom the samples were sent is not clear. Therefore, the benefit of sh doubt is given to the appellant. In this regard, reference has e been placed on Sharad Awadhwal Vs. State of M.P. in ad Cr.A. No.564/2006 decided on 04/02/2009. No doubt Pr Shivanand Shukla (PW/6) has stated that Constable Jitendra Mishra has carried the sample to FSL, Sagar. As regarding a this anamoly that, the bags of ganja were 13 in numbers and hy samples were sent for examination are only two packets, the ad same was returned. However, when it was explained that M 25gms samples of each bags were taken out and the same were mixed up and four samples packet were prepared, out of of which two samples were sent for examination to the FSL. The samples were received by the FSL. At Para 40 of the rt cross-examination of C.P. Singh (PW/12) explains the fact ou how the samples were returned from the FSL at the first C instance. This explanation makes it clear why the samples h were not received and why the samples were received after it ig was resent. The explanation made it clear that, there is no H defect in the samples and the samples were not remitted back by the FSL after the explanation offered to the police station. Therefore, the ratio of Sharad Awadhwal Vs. State of M.P. (surpra) is not applicable in the present case.
19. Kamlesh (PW/1) is the son of the appellant/Dhanram. Vishnu Kumar Mishra is the person who has signed the documents without having seen any incident or the articles. According to him, he was going in front of the police station, when he was called and made to sign documents, at that time the appellant/Dhanram was inside the custody. This witness seem to be gained over witness. In the cross-examination, he has stated of his own that, the appellant is residing separately from his son. Kamlesh (DW/1) also has stated that he is living separately from his father since 25 years. But, this is not the case of the appellant. The appellant has not raised this defence earlier. Therefore, it seems to be made after thought.
20. The possession of the contraband material was found from the house of appellant. The appellant did not raise any sh defence earlier to the statement of Kamlesh (DW/1) that he is e living separately from his son. But, no material showing as to ad what prejudice has been caused to the appellant even if he Pr lives in the house of his son. Burden of proof was on the appellant to show how the contraband came to be found in a his house. Once the conscious possession of contraband hy material have been established, provision of Section 106 of ad Evidence Act get attracted. The appellant has to establish how he came to be in possession of the ganja as it was kept in M the house securing under lock and key. The search and of possession of premises of the appellant from which the contraband article is seized have been established. The rt contraband recovered is more than the commercial quantity. ou The Patwari report and the revenue record show the C ownership and exclusive possession of the appellant. h
21. In the case of Gyanchand Vs. State of Haryana ig reported as AIR 2013 SC 3395, it has been held that, H possession of contraband was found that of appellant, therefore, non-examination of independent witnesses in the background that evidence of prosecution witness found to be cogent, convincing and reliable -Mere non-joining of independent witnesses cannot cast doubt on prosecution case.
22. Keeping in view the above circumstance and the legal analysis, this Court has no reason to interfere with the judgment impugned dated 21/06/2011, therefore, this appeal is dismissed.
23. Copy of the judgment be send to the learned trial Court along with the record immediately. The appellant is in custody since 03/05/2008. The learned trial Court is directed to see that, after the appellant served the sentence, he be released immediately.
(SUSHIL KUMAR PALO) JUDGE Digitally signed by RASHMI RONALD VICTOR sh Date: 2018.04.19 10:18:46 +05'30' e ad RS Pr a hy ad M of rt ou C h ig H