Madhya Pradesh High Court
Feranlal vs The State Of Madhya Pradesh on 8 May, 2017
HIGH COURT OF MADHYA PRADESH : JABALPUR.
(Division Bench - S.K. Seth &
H.P. Singh JJ.)
Criminal Appeal No.1666/2008
Natthu @ Narendra Singh
Vs.
State of Madhya Pradesh
AND
Criminal Appeal No.2052/2008
Feranlal
Vs.
State of Madhya Pradesh
Shri N.K. Tiwari, counsel for the appellants.
Shri Ajay Tamrakar, Panel Lawyer for respondent-State.
Per : H.P. Singh J.
JUDGMENT
(08.05.2017) This Judgment shall govern the disposal of aforementioned two Criminal Appeals. Since both these appeals arise out of the same judgment and common questions are involved in these appeals, the same were heard together and are being decided by this common judgment.
2. Both, these appeals are directed against the judgment dated 22.07.2008, passed in Special Case No.275/2007, by the learned First Addl. Sessions Judge & Special Judge, Constituted under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (in 2 short "the Act") Katni, whereby the present appellants have been convicted for offence punishable under Section 8/20(B) of "the Act" and sentenced to undergo R.I. for 12 years each with fine amount of Rs.1,00,000/- to each appellant and in default of payment of fine additional R.I. for two years each.
3. In nutshell, the case of prosecution is that on 04.06.2007, at 23:15 AM, an information was given by the informant on telephone to the A.S.I., I.M. Dwivedi of P.S. Barhi, District Katni that one white coloured vehicle 'Tempo Trax' bearing registration No.MP-19-T/1464 is going towards Pipariya from Nadwan carrying Ganja. This information was recorded in daily diary (sanha) No.1381 and witnesses were called. In presence of panch witnesses Yashendra (PW/4) and Rajjulal (PW/3), a memorandum showing reason for not obtaining search warrant was prepared and same was also entered in daily diary. A.S.I., I.M. Dwivedi (PW/7) for further action, along with Police force and panch witnesses, in a Police vehicle bearing registration No.MP-3/2008 reached at Baghaiya square. They were waiting for coming of Tempo Trax and after some time, the said Tempo Trax came to the said square. Tempo Trax was stopped. Appellants were caught by the Police. They disclosed their names as Feranlal and Natthu @ Narendra Singh. Appellants were not having valid license or permit for transportation of said ganja. During search of vehicle, it was found that the aforesaid vehicle was illegally transporting Ganja for sale in three gunny bags, which were weighed and found 23 kg, 200 gms in first bag, 30 3 kg in second bag and 23 kg, 800 gms in third bag, total weighing 86 kg. Out of three bags, from each bag sample of 25 gm were taken and sealed. Thereafter, Panchnama of all proceedings were prepared and articles were seized vide Ex.P/14 in presence of witnesses. Tempo Trax MP-19-T/1464 and other articles were also seized. Dehati Nalisi was written. Appellants were arrested and apprised with reason for their arrest. In the Police Station, Crime No.141/2007 dated 05.06.2007 was registered. Vide FIR, Ex-P/32, a detailed report, as per provisions of Section 37 of the Act was sent to the superior Police officials. Vide memo Ex.P/37 written by Superintendent of Police Katni to the Director, FSL Sagar, three packets of samples of seized ganja were sent to FSL Sagar for analysis and a report Ex-P-39 has been received from FSL Sagar. As per report samples were Ganja.
4. During investigation, the statements of prosecution witnesses were recorded and after completing investigation, appellants were charge-sheeted for commission of offence punishable under Section 8/20 (B) of "the Act" before the concerned Court.
5. The learned trial Court framed charges as aforesaid offences against the appellants. Contents of the charges were read over and explained to the appellants to which they pleaded not guilty and claimed to be tried. They took plea that they have been falsely implicated in this case and examined one witness in their objection.
46. But the learned trial Court upon hearing the parties, on going through the evidence of the witnesses, exhibited documents and material available before it, convicted and sentenced the appellants as above by the impugned judgment.
7. Being aggrieved by and dissatisfied with the aforesaid judgment of conviction and order of sentence, the appellants have preferred these appeals.
8. We have heard learned counsel for both the parties and perused the record.
9. Learned counsel for the appellants submitted that learned trial Court has failed to appreciate the factual aspects of the case. They have been falsely implicated in this case. Learned counsel further submits that ingredients to constitute offence under Section 8 r/w Section 20(B) of the NDPS Act are completely missing in the instant case. He further submits that since the accused/appellants Natthu denied to give the said vehicle to the police Barhi for personal use, they have been roped in this false case. Most important witnesses of seizure panchnama and other panchnamas have not supported the case of the prosecution. They have been declared hostile. They said that no contraband was seized from the appellants in their presence. The seizure of above contrabands from the exclusive possession of the appellants have not been proved as per law therefore, the learned trial Court erred in holding the appellants guilty. They pray for acquittal of the 5 appellants by setting aside the judgment of the trial Court.
10. Combating the above arguments, learned Panel Lawyer appearing on behalf of the respondent/State has submitted that there is enough evidence to hold guilty the appellants for commission of above mentioned offence. Prosecution witnesses and FSL reports have supported the case of prosecution. The learned Panel Lawyer has, vehemently, argued that learned trial Court in its detailed judgment has considered thoroughly each and every factual and legal position submitted by the defence as well as prosecution and rightly convicted and sentenced the appellant for the aforesaid offence.
11. The prosecution has examined total 9 witnesses in its support. Out of them, Rajjulal (PW/3) and Yashendra (PW/4) are the witnesses of seizure and other panchnamas. A.S.I., I.M. Dwivedi (PW/7) is Investigating Officer. Mohammad Niyaz (PW/5) had weighed the seized property. Shivkant is a private witness and others are the Police officials.
12. Now the question which is crucial to be decided here is whether the accused/appellant was found in possession of said contraband article 'Ganja'?
13. So far seizure of said contraband ganja is concerned, Investigating Officer, ASI I.M. Dwivedi (PW/7) has stated that on the information of informer, he with witness and other Police officials reached 6 Babgaiha Tiraha, and stopped the vehicle MP-19-T/1464 (Tempo Trax). In the said vehicles, both the appellants were present. I.M. Dwivedi (PW/7) informed them that he had got information that they were carrying Ganja in that vehicle and thereafter, he prepared search Panchnama Ex.P/4, which was signed by appellants before witness, namely, Rajjulal (PW/3) and Yashendra (PW/4). He further stated that he had taken consent of the appellants and prepared consent Panchnama Ex.P/5 before said witnesses, which was duly signed by both witnesses and appellants. He also prepared gunny bags search Panchnama vide Ex.P/7. As per him, on search of that vehicle, he seized three gunny bags containing Ganja. Total weighing 85 kg 925 gms in all three gunny bags. He has taken sample and for that proceeding he prepared sample Panchnama vide Ex.P/8.
14. But, independent witnesses Rajjulal (PW/3) and Yashendra (PW/4) have not supported the case of prosecution and statement of I.O. I.M. Dwivedi (PW/7). Rajjulal (PW/3) and Yashendra (PW/4) have stated that he does not know anything about the incident. Both have been declared hostile by the prosecution and after declaring them hostile, they were cross-examined at length, but nothing has come on record, which could support the case of prosecution. They have denied that seizure of said Ganja has been made before them or any proceeding of seizure, connected to that seizure, has been made in their presence. Rajjulal (PW/3) has denied that he has put his thumb impression on any document, whereas Yashendra (PW/4) has stated that 7 he had signed all papers in the police station. He has further stated that he had signed all papers at a time in Police Station and at the time of signature, nothing was written on above papers. In this way, both the aforesaid witnesses have not supported the case of prosecution regarding seizure of contraband article Ganja.
15. However, it is settled principle of law that even though the independent witnesses in such type of cases for one reason or the other do not support the prosecution case, that cannot be an only ground to discard the prosecution case in toto. On the other hand, if the statements of the Investigating Officer relating to search and seizure are found to be cogent, reliable and trustworthy, the same can be acted upon to adjudicate the guilt of the accused. The Court will have to appreciate the relevant evidence in light of other evidence produced before the Court and determine whether the evidence of Investigating Officer is believable, after taking due care and caution evaluating his evidence. From the evidence produced by the prosecution before the trial Court, it reveals that at the time of producing and recording the evidence of prosecution before trial Court, the seized article "Ganja" or sealed packet of sample of that seized Ganja, have not been produced before the trial Court, which was not seen by the trial Court, so as to connect it with the samples sent to the FSL. In this way, said seized Ganja had neither been produced nor marked as article which ought to have been done. The defence also did not insist during the trial that these commodities should be 8 produced. In our considered view, it cannot be said that non-production of material object was a mere procedural irregularity and did not cause prejudice to the accused.
16. As discussed above, it emerged that the prosecution has failed to produce the seized property during the course of recording of statement of prosecution witnesses to establish its identity, quantity and authenticity as well as truthfulness of seizure, sealing and pasting of slips containing signatures of panch witnesses as well as Police Officials and accused persons. Production of seized property and packets of samples was also very necessary in this case because, as reflect from the statements of the independent witnesses, Rajjulal (PW/3) and Yashendra (PW/4), of seizure panchnama and other panchnamas, they have not supported the case of prosecution and became hostile. In the facts and circumstances of the case, non- production of seized contraband article in the Court is fatal to the prosecution and same causes prejudice to the defence. When best evidence was available, the same should have been produced before the Court for the purposes of marking articles. The Supreme Court, in case of Jitendra and another Vs. State of M.P. 2004 SCC (Criminal) 2028 has held as follows :
"......In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral 9 evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the concerned Police Officer......."
17. The learned trial Court has not taken into consideration the provision of Section 52-A of "the Act"
in its proper spirit and perspective. The provision of Section 52-A of "the Act" is a provision for disposal of seized narcotic drugs and psychotropic substances in meant for disposal of the property during the pendency of the trial and meaning of disposal means final disposal and the property would not remain in Police custody or in the custody of the Court or in custody of Excise Department or Central Narcotics Bureau. Sub-section 1 of Section 52-A of "the Act" is assigning reason for disposal of the property and for which notification would be published by the Central Government for the official gazette specifying such narcotic drugs or psychotropic substances or clause of narcotic drugs or clause of psychotropic substances. Notification shall also specify the Officer and the manner of disposal from time to time. Before disposal of the seized property, the concerned agency will follow the procedure prescribed in sub-section (2), (3) and (4) of Section 52-A of "the Act", after producing the substance before any Magistrate. Any Magistrate means any executive or Judicial Magistrate, as defined in Criminal Procedure Code under Sections 6 and 20. The inventory of the property would 10 be prepared and learned magistrate shall certify the correctness of inventory or in his presence photographs of such drugs or substances will be taken and certified by the learned Magistrate or representative samples of such drugs or substance in presence of Magistrate will be taken and Magistrate will certify the correctness of list of samples. Sub-section (3) of Section 52-A of "the Act" is issuing mandate for allowing the application filed by the police or prosecution under sub-section (2) of Section 52-A of "the Act" as early as possible and sub-section (4) of Section 52-A of "the Act" is giving status to inventory, photographs, list of samples as a primary evidence in respect of such offence, in which the narcotic drugs or psychotropic substances were seized, during the course of trial for proving the prosecution case.
18. In the instant case, the property was not produced before Executive Magistrate for disposal as per above provision. In the final report of the Police it is nowhere mentioned that property was produced before the Court at the time of the filing of the charge-sheet. The order sheet dated 15.12.2007 and 17.12.2007 of the trial Court are showing that three packets of sample, mobile phone and others were produced and directed to be deposited in maalkhana and seized bags of ganja were produced on 17.12.2007 and due to shortage of place in maalkhana, it was directed that the same be kept in Police Station. There is no material on record to indicate that the property was produced before the trial Court at any point of time of trial or recording evidence. There is 11 no evidence on record, which can show that the seized property have been disposed of as per provision of Section 52-A of "the Act". The purpose of Section 52-A of "the Act" is to allow the disposal of the property at the earliest point of time during the course of investigation so that same may not be vulnerable to theft, substitution, constraints of proper storage, space or any kind of distinction, after following the procedure mentioned in sub-Section (2) of Section 52-A of "the Act" by which the evidence has to be preserved to establish the prosecution case regarding quantity, kind, its identity with the seizure memo and the statement of the prosecution witnesses who will prove the photographs, seizure memo, inventory packets of sample etc., but neither all these documents were produced by the prosecution before the Court and proved as primary evidence nor original property which was not disposed of was produced in the Court during evidence. There was no final disposal of the property as per provision under Section 52-A of "the Act" is also clear from the direction issued by the learned trial Court in para 33 of the impugned judgment that after the lapse of appeal period, the said property be returned to Excise Department for disposal as per law.
19. In view of the above discussion, taking the cumulative effect of the circumstances, it appears to us that material placed on record by the prosecution does not bring home the charge beyond reasonable doubt. We are of the view that upon the material placed on record, it would be unsafe to convict the appellants. They are 12 certainly entitled to benefit of doubt.
20. In the result, we allow the appeals, set aside the judgment of trial Court and quash the convictions of the appellants. Appellants Natthu @ Narendra Singh and Feranlal are directed to be released from custody forthwith if not required in any other case.
21. Office is directed to send a copy of this judgment along with the record to the Trial Court for immediate compliance.
(S.K. SETH) (H.P. SINGH)
JUDGE JUDGE
A.Praj.