Madhya Pradesh High Court
Harisingh And Ors. vs State Of M.P. on 5 December, 2001
Equivalent citations: 2002(3)MPHT325
JUDGMENT S.P. Khare, J.
1. Appellants Harisingh, Surendra Singh and Sadhu Singh have been convicted under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the 'Act') and sentenced to rigorous imprisonment for ten years and to a fine of rupees one lac each.
2. The prosecution case is that on 13-5-1992 at 5:30 A.M. Fiat Car No. DIA-8848 came from Village Berakhedi side on Agra-Bombay Road. It was intercepted by Arjun Singh (P. W. 11) Station Officer of Raghogarh Police Station who was there on a tip-off that the opium is being transported from that village. He was having Mohanlal (P.W. 7) Constable, Rambabu Singh (P.W. 8) ASI and Anil Kumar Singhal (P.W. 10), Sub-Inspector with him. Five persons came out from the car and took to their heels on seeing the police. They were chased by the police party. Accused Harisingh was nabbed on the spot but others ran away. On interrogation of Harisingh it was disclosed by him that two of them were Surendra Singh and Sadhu Singh. On search of the car 46 kgs, of opium was recovered from the two chambers in the car. The search took place in the presence of two Panch witnesses Raghubir Singh (P.W. 2) and Narain Singh (P.W. 3). The seizure memo of the opium was prepared and that is Ex. P-2. Accused Harisingh was arrested as per arrest memo Ex. P-3. The samples of the opium were taken and sealed. Surendra Singh and Sadhu Singh were arrested on 21-5-1992 at 5.30 P.M. as per arrest memo Ex. P-19. The samples of the opium were sent to the Forensic Science Laboratory, Sagar and as per report Ex. P-20 of the Chemical Examiner it was confirmed that the said commodity was opium. Accused Surendra Singh and Sadhu Singh were identified by three members of the police team who had seen them fleeing from the spot. The identification was conducted on 30-5-1992 by the Naib Tehsildar and the Executive Magistrate.
3. The defence of the accused Harisingh was that he was not in the car. He was taken into custody from his house and a false case has been foisted on him. The other two accused persons have pleaded that after their arrest they were kept in the lock up of Raghogarh Police Station and were shown to the witnesses who are said to have identified him in the test identification parade.
4. The Trial Court after appreciation of the evidence on record held that 46 kgs of opium was recovered from the car; accused Harisingh was one of the occupants of the car and he was arrested on the spot when he was attempting to run away; accused Surendra Singh and Sadhu Singh were not shown to any witness before their test identification parade and they were duly identified in the Court; these accused persons were in possession of the opium and were transporting the same. On these findings they were convicted and sentenced as stated at the outset.
5. During the course of the hearing of this appeal the recovery of 46 kgs of opium from the said car is not disputed and that has been amply proved by the evidence adduced by the prosecution. The points which have been argued are that (a) accused Harisingh was not one of the occupants of the car but he was taken into custody from his house by Arjun Singh (P.W. 11) Station Officer of Raghogarh Police Station because he got a question raised in the assembly against him and so he was having grudge against him (b) accused Surendra Singh and Sadhu Singh were shown to the witnesses at Raghogarh Police Station and therefore the subsequent identification by them was farce and valueless (c) there was no nexus between the appellants and the opium recovered from the car. These are the points which arise for determination in this appeal.
6. Point A:
The evidence on record has been carefully scrutinised. Arjun Singh (P.W. 11) has deposed that accused Harisingh was one of the persons who alighted from the car and he was apprehended on the spot. His evidence in this respect is corroborated by Mohanlal (P.W. 7), Rambabu Singh (P.W. 8) and Anil Kumar Singhal (P.W. 10). Though they were members of the police party their evidence cannot be discarded on that point alone. The arrest memo is Ex. P-3. The panch witnesses Ramnarain (P.W. 3) and Raghubir Singh (P.W. 2) have, as is usual in such cases, turned hostile. They have admitted their signature on the arrest memo Ex. P-3. Accused Harisingh has examined a number of defence witnesses to establish that he was arrested from his house in Village Berakhedi but on scrutiny it is found that they are interested in extricating accused Harisingh. The evidence adduced by the prosecution in this respect is fully reliable and more satisfactory than the relations and neighbours of accused Harisingh. The assembly question at his instance against Arjun Singh (P.W. 11) does not lead to the inference that he has been falsely implicated. It is not unlikely that he got such a question raised so that the police officer does not dare to check him in his criminal activity, and his business of drug trafficking may go on with impunity. The arrest memo prepared on the spot and prompt registration of the offence as per FIR Ex. P-10 rule out the possibility of false implication of accused Harisingh. There is no infirmity in the appreciation of evidence by the Trial Court as against accused Harisingh and therefore agreeing with the Trial Court it is held that accused Harisingh was one of the occupants of the car and he was nabbed on the spot.
7. Point B :
Accused Surendra Singh and Sadhu Singh could not be caught on the spot on 13-5-1992. They were arrested on 21-5-1992 as per seizure memo Ex. P-19. Their identification parade was arranged on 30-5-92. According to the evidence of Mohanlal (P.W. 7) in para 3 these accused persons were kept in the lock-up of police station for three-four days. Similarly, Rambabu Singh, ASI (P.W. 8) has deposed in para 9 that these accused persons were in the lock-up of the police station for one day. On the other hand Anil Kumar Singhal (P.W. 10) Sub-Inspector has stated that these accused persons were not kept in Raghogarh Police Station even for a day. Apart from the discrepancy in the statements of these witnesses regarding their custody in the lock-up it is certain that they were kept in Raghogarh Police Station for sometime after their arrest, therefore Mohanlal (P.W. 7), Rambabu Singh (P.W. 8) and Anil Kumar (P.W. 10) must have had the occasion to see them in the police station. There is no specific reliable evidence on this point that the faces of these two accused persons were kept hidden before they were produced in the test identification parade. The view of the Trial Court at page nine of its judgment is that these two accused persons were kept 'baparda' in Vijaynagar Police Station. But the evidence of the two witnesses discussed above is to the effect that they were also kept at Raghogarh Police Station. In view of this state of evidence their identification by these three witnesses in the test identification parade has become a farce and their dock identification at the time of the trial has become valueless. The prosecution has not proved its case beyond reasonable doubt against these two accused persons.
8. Point C :
It has been found that the appellant Harisingh was in the car and he came out on seeing the police. He started running and he was taken into custody, on the spot. His fleeing from the spot exhibits his guilty-animus. This shows that he was aware of the fact that there was opium in the car and it was in his actual possession. Section 35 of the Act provides that in any prosecution for an offence under this Act which requires a culpable mental state of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. The explanation of this section further provides that "culpable mental state" includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. Sub-section (2) of Section 35 further lays down that for the purpose of this section, a fact is said to be proved only when the Court believes it to exist beyond a reasonable doubt and not merely when its existence is established by a preponderance of probability. In view of this section the burden was on accused Hari Singh to prove that he had no knowledge of the opium being present in the car and that burden was required to be discharged by proving that fact beyond reasonable doubt.
9. In view of the foregoing discussion, the appeal of the appellant Harisingh is dismissed. The appeal of the appellants Surendra Singh and Sadhu Singh is allowed. Their conviction and sentence are set aside and they are acquitted of the charge under Sections 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985.