Madhya Pradesh High Court
The State Of Madhya Pradesh vs Devendra Pal Singh @ Sonu on 21 November, 2016
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MCRC. No.4288/2015
(State of MP v. Devendra Pal Singh alias Sonu & Another)
21.11.2016
Shri A.S. Yadav, learned Panel Lawyer for the petitioner- State.
Heard on the application filed under Section 378 (3), Cr.P.C. for grant of leave to file an appeal against the judgment dated 03.02.2015 passed by the Special Judge (NDPS Act) Guna in Sessions Case No.21/2012, whereby the learned Sessions Judge has acquitted both the accused persons, who were accused of unauthorizedly carrying 07 kgs of ganja from Shivpuri to Guna.
Learned counsel for the petitioner has strenuously argued that though the independent witnesses of seizure had turned hostile, but their star witness PW9 U.S. Yadav, Retired Sub- Inspector supported the incident and confiscation of ganja, therefore the Sessions Court has erred in acquitting the accused persons. When the evidence of U.S. Yadav, Retired Sub-Inspector is read carefully, he has admitted that in terms of the provisions contained in Section 50 of the NDPS Act, the authority for search and seizure is vested in Gazetted Officer and he is not a Gazetted Officer. He has also admitted that one of the independent witness Brijesh was also a witness in Crime No.284/12 (State of MP v. Sonu Kori), in which case No.07/12 was registered. He has also admitted that search team had only carried out checking of one vehicle and had not searched the other vehicles. There is also an admission that Article-A, which was sealed by him alongwith a chit, was presented before the Court in an open condition and there was neither any chit nor any seal over the said packet.
It is seen that independent witness of seizure Rakesh Shivhare (PW4) had admitted that Mukhbir Panchnama was prepared in front of him, but it does not contain his signatures. In 2 MCRC. No.4288/2015 (State of MP v. Devendra Pal Singh alias Sonu & Another) para 7 of his cross-examination, he admits that accused persons were not given any opportunity of search of the vehicle, in which witnesses and prosecution team were travelling. It has also come on record that independent witnesses were not expert to identify ganja. He has also deposed that in front of him information was given on phone by Mr. Yadav to the SDO (P) between 12.15 and 12.30 PM. Contrary to this, PW 9 U.S. Yadav has deposed that Mukhbir had given him information at 12.30 PM and thereafter he had sent a constable to call for two independent witnesses and those witnesses had arrived at the Police Station at 1.00 PM. This is material contradiction.
Similarly, another independent witness PW6 Dilip Maratha did not identify the accused persons. He categorically mentioned that no narcotic material was seized in front of him and thereafter submitted that he was only called by U.S. Yadav to sign on certain papers and he is not aware that which papers were signed by him. He was declared hostile and leading questions were put to him. He refused to support the prosecution story that measuring tool was called in front of him and its Panchnama was prepared. He also denied that the Police had measured any narcotic or psychotropic substance in his presence. He also denied that arrest memo Ex.P/17 was signed by him. He has further deposed that Daroga had obtained his signatures on narcotic papers.
In view of the such evidence given by the independent witnesses, the learned Sessions Court has discussed that the independent witnesses have not supported the prosecution story of confiscation. It is true that merely Panch witnesses turning hostile will not adversely affect the prosecution story if there is 3 MCRC. No.4288/2015 (State of MP v. Devendra Pal Singh alias Sonu & Another) other material in front of the Court on record and evidence of the seizure authority and that such seizure was genuinely made. In the present case, the factum of seizure has not been proved and Article-A, which was produced before the Court, was in an open condition. Neither there was any seal over it nor there was any chit, therefore,the probability was that, that article was capable of being contaminated, mixed or manipulated. In the present case when the best evidence, i.e., the seized material itself has been discarded, then merely on the basis of suspicion, accused persons could not have been convicted. Thus, the trial Court has rightly exonerated the accused persons inasmuch as neither the independent prosecution witnesses have supported the prosecution story nor Article-A, from which ganja was allegedly seized, was found in sealed and proper condition before the Court. Therefore, there is no fault in the acquittal order. Thus, leave is refused and M.Cr.C.is dismissed. Record of the trial Court be sent back.
(Vivek Agarwal) Judge Meh/-