Madhya Pradesh High Court
Sunderlal And Anr. vs State Of Madhya Pradesh on 22 March, 2006
Author: U.C. Maheshwari
Bench: U.C. Maheshwari
JUDGMENT U.C. Maheshwari, J.
1. The appellants have preferred this appeal under Section 374(2) of Cr. P.C. being aggrieved by the judgment dated 27.11.1990 passed by 2nd ASJ Chhatarpur in Special Case No. 1/89 convicting the appellants under Section 8 r/w 20 of Narcotic Drugs and Psychotropic Substance Act and sentenced for three years RI with fine of Rs. 1,000/-, in default for further three months RI.
2. As per allegation of prosecution on 15.11.1989 the appellants were carrying the contraband substance Ganja on a bicycle for selling the same to Sumranlal licensee of "Bhang" a Psychotropic Substance. On receiving information by K.M. Chourasia, Sub-inspector, Excise, raid the house of Sumranlal with his staff and panch witnesses at that time the appellant Sundarlal ran away from the window after throwing the bag of Ganja in the house while other appellant Nahid was caught hold with aforesaid substance Ganja two kg. in quantity alongwith his bicycle. The seizure memo (Ex.P.1) was prepared, the same was identified as Ganja on examination by said Sub-inspector. Such report was endorsed at the back side of seizure memo (Ex.P.1), subsequent to it on 24.11.1989 the appellant Sundar Lal was arrested and a complaint case was initiated against the appellants under Section 34-A of M.P. Excise Act read with Section 16/20 of Narcotic Drugs and Psychotropic Substance Act (In short "NDPS Act").
3. The charges under Section 8/20 of NDPS Act were framed against both the appellant. On denying the same trial was proceeded, The prosecution has examined as many as 3 witnesses in support of the case while no one has been examined on behalf of the appellants in their defence. At the stage of appreciation of evidence the appellants were found guilty under Section 8 r/w 20 of NDPS Act and sentenced as said above. Hence, this appeal is preferred at the instance of accused/appellants.
4. Shri K.N. Fakhruddin, learned Counsel for the appellants has submitted that certain provisions are enacted for the purpose of investigation under the NDPS Act from Sections 41 to 57 but the same have not been complied with by the investigating agency before submitting charge sheet against the appellants. He raised following questions for setting aside the impugned judgment and allowing his appeal:
(a) That without notification of Central Government or State Government under Section 42 of the NDPS Act the Excise Sub-inspector was not empowered to raid, search, arrest and for investigation of the case. Hence, the case initiated by the prosecution was not maintainable.
(b) That the contraband substance Ganja was not recovered from the possession of appellants as alleged it was seized from the house of Sumranlal (P.W.3) the witness of seizure memo, hence the exclusive possession of such house with the appellants have not been proved by the prosecution. Thus, seized substance could not be connected with the appellants.
(c) That provisions regarding search as mentioned in the Section 42 of the NDPS Act have not been complied with before entering in the alleged house from which the substance was seized. As per provisions of aforesaid section even no reasons have been recorded before entering in such house for not obtaining the search warrant. Hence, the entire proceeding regarding search is vitiated and recovered contraband substance could not be connected with the appellants.
(d) That the evidence regarding preparation of the samples of the aforesaid seized substance neither have been produced nor proved and mere on the basis of seizure memo no inference could be drawn against any of the appellant.
(e) That, the seized substance Ganja or its sample was not sent to the concerning laboratory for its analysis and examination, even the report in this respect neither produced nor proved.
(f) How the seized substance was handlled from the spot to the place where it was kept in safe custody.
(g) That the evidence for keeping the seized substance in the safe custody or in the Malkhana or in the police station have not been proved cither by examining concerning witness or by producing the concerning stock register.
(h) That the seizure memo has not been proved by any independent witness and mere on the testimony of K.M. Chourasiya (P.W.2) Excise Sub-inspector appellants could not have been convicted.
(i) That the testimony of hostile witness Shyam Singh (P.W.1) and Sumranlal (P.W.3) was not considered with proper approach to disbelieved K.M. Chourasiya (P.W.2).
(j) That the Sumranlal from whom house the aforesaid substance was recovered has not been impleaded as an accused and the appellants have been falsely implicated in it while the aforesaid substance was not recovered from the house or possession of either of the appellant.
5. While on the other hand Shri Pramod Choubey, learned Counsel for the State has justified the judgment as well as conviction and sentence of the appellants. According to him the findings of the trial court are based on proper appreciation of the evidence and does not require any interference at this stage. The questions raised on behalf of the appellants do not have any force. The same are not sustainable in the eye of law and prayed for dismissal of this appeal.
6. Having heard the learned Counsels, I have gone through the record of trial court. According to it the investigation was held by K.M. Chourasiya (P.W.2), Excise Sub-inspector who prepared the seizure memo (Ex.P. 1) dated 15.11.1989 in the presence of Shyam Singh (P.W.1) and Sumranlal (P.W.3). Although the aforesaid independent witness of seizure memo have not supported the particulars mentioned in it but they have admitted their signature on such seizure memo, even after declaring hostile nothing fruitful has come on record in their cross examination. In view of decided case by the Apex Court in the matter of P.P. Fathima v. State of Kerla in which it is held as under :
7. The learned Counsel then contended that in view of the fact that the panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of Pws 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails.
7. The said dictum of Apex Court says that the corroboration by the independent witness is not necessary if the deposition of investigating officer is reliable on account of other circumstance of the case. Hence, this case requires close scrutiny regarding procedure of investigation and the deposition of said Excise Sub-inspector.
8. The first question as raised by the appellants that K.M. Chourasiya, Excise Sub-inspector was not empowered to seize the contraband substance or to investigate the case is not sustainable in view of the notifications of the State of Madhya Pradesh dated 11.11.1985 the Excise Sub-inspectors are authorised to perform the Act under Section 7, 41, 42 and 53 of NDPS Act. The number of such notifications are :
(i) No. B-6-36-VSR-85-4798 dated 11.11.1985 under Section 7 of the Act.
(ii) No. B-6-36-VSR-85-4801 dated 11.11.1985 under Section 41 of the Act.
(iii) No. B-6-36-VSR-85-4804 dated 11.11.1985 under Section 42 of the Act.
(iv) No. B-6-36-VSR-85-4798 dated 11.11.1985 under Section 53 of the Act.
9. So far second question is concerned, it is apparent from the record that the aforesaid contraband substance Ganja was recovered from the house of Sumranlal (P.W.3): Although the prosecution has alleged some different story behind it but the same has not been proved. There is sufficient circumstance on the record to draw an inference that at the time of seizure the concerning house was not in exclusive possession of either of the appellant and admittedly Sumralal was in exclusive possession of the same. In the lack of the evidence regarding exclusive possession of the appellants over the alleged house the testimony of K.M. Chourasiya (P.W.2), Excise Sub-inspector does not help to the prosecution in any manner and conviction could not be sustained on its testimony or seizure as laid down by the Apex Court in the matter of Ghurun Yadav v. State of Bihar in which it is held as under :
4. On going through the record and examining the evidence which have just discussed we are clear that there is no legal evidence on the record on which we can sustain the conclusions of the courts below that it was the appellant's house which was searched.
5. Normally this Court, of course, does not examine for appraisal under Article 136 of the Constitution the evidence on questions of fact decided by the courts below. But when there are reasons to think that the conclusions may be based on no evidence, it has an obligation in the larger interests of justice to examine the evidence to see if there is legal evidence on which those conclusions can be sustained. In this case we find that there is no legal evidence on which the courts below could base their conclusions. The appeal accordingly succeeds and allowing the same we acquit the appellant.
10. In view of the aforesaid dictum if the case at hand is examined then there is no legal evidence showing exclusive possession of the said house with either of the appellant on the date of seizure. Hence, the seizure from the possession of the appellants is apparently suspicious, specially when the appellant No. 1, Sundarlal was not arrested from the spot. He was arrested only on 24.11.1989 by Ex.P.2 i. e. after 9 days from the date of incident, it also creates a suspicion against the case of prosecution and the arrest memo of appellant No. 2 Nahid neither produced nor proved on record. Although bail bond by which Nahid has been released on bail has been submitted but the same have not been proved. Hence, this circumstance also creates suspicion against the prosecution.
11. It is undisputed fact on the record that the house of Sumran Lal was searched by K.M. Chourasiya (P.W.2) and said substance was found but before entering in such house search warrant as per provision of Section 42 of the NDPS Act has not been taken from the concerning authority mentioned under Section 41 of the NDPS Act. If he had no sufficient time for taking the same then the proviso of Sub-section 1 of Section 42 of NDPS Act should have been complied with, according to it before entering in the such house reasons should have been recorded. But the same was not followed. This question was answered by the Apex Court in the matter of K.L. Subhayya v. State of Karnataka . in which it is held as under :
4. This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both Sections 53 and 54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill-founded or frivolous prosecution or harassment The point was taken before the High Court which appears to have brushed aside this legal lacuna without making any real attempt to analyse the effect of the provisions of Sections 53 and 54. The High Court observed that these two sections were wholly irrelevant. With due respect, we are unable to approve of such a cryptic approach to a legal question which is of far-reaching consequences. It was, however, suggested that the word 'place' would not include the car, but the definition of the word 'place' under the Act clearly includes vehicle which would include a car. Thus the ground on which the argument of the petitioner has been rejected by the High Court cannot be sustained by us. We are satisfied that there has been a direct non-compliance of the provisions of Section 54 which renders the search completely without jurisdiction. In this view of the matter, the appeal is allowed, the conviction and sentence passed on the appellant is set aside and he is acquitted of the charges framed against him.
12. In view of aforesaid dictum search carried out by K.M. Chourasiya (P. W.2) could not be held legal and in accordance with law as the same was carried out, without following the prescribed procedure in this regard. Therefore on such seizure the appellant could not be held guilty for the alleged offence.
13. Except seizure memo Ex.P.1, I have not found any other Panchnama or paper on the record showing that samples were prepared from the seized substance for the purpose of chemical examination or analysis through laboratory, on the contrary mere on the basis of experience Shri K.M. Chourasiya (P. W.2) has written the report (Ex.P1 -A) at the back side of Ex.P.1 to the eflect that seized substance is Ganja. It also appears that such endorsement of Ex.P1 A was written on 24.1l.1989 with antedated signature of such witnesses showing the date 15.11.1989. In Ex, P.1-A, it has been mentioned that accused Sundarlal was arrested on 24.11.1989 and released on bail and it is signed on 15.11.1989, even on this endorsement the signature of Sundarlal was not taken. This is sufficient circumstance to draw an inference against the prosecution that the Ex. P/1-A was prepared antedate in the absence of the appellant No. 1 Sundarlal. It does not show that from 15.11.1989 to 24.11.1989 where the aforesaid substance was kept in safe custody and when the same it was taken out from such custody and examined by such Sub-inspector. This also creates suspicion against the prosecution. Therefore, it is held that seized i substance was not examined either in presence of the witnesses or appellants as it does not have the signature of witnesses also. In such circumstance firstly in the absence of chemical analysis, the seized substance could note be treated as Ganja. For the shake of argument if it is treated as Ganja then the aforesaid substance could not be connected with the appellants because seizure Panchnama of aforesaid substance is suspicious and not reliable.
14. I have not found any record or Panchnama that how the seized substance were handled by the investigating agency from the place of seizure up to the place where it was kept in safe custody. In this regard even K.M. Chourasiya (P.W.2) has not stated any thing in his deposition. If it was not properly handled by competent or authorised person then the alleged substance could not be connected with the appellant and on account of it they could not be held guilty. This question was also answered by the Apex Court in the matter of The State of Rajasthan v. Daulat Ram in which it is held as under :
Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained where examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out changed or tampered with during the period in question - a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted under Section 9A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage.
15. This decision of the Apex Court is directly applicable to this case and in the lack of evidence and examination of such witness about handling the seized substance the same could not be connected with the appellant. As such the same could not be foundation for conviction.
16. After seizing the aforesaid substance where it was kept till production before the court, in this regard no evidence has been put forth by the prosecution. If it was kept in the Malkhana of the concerning Excise department or in the police station then it could have been proved by producing the Malkhana Register and by examining such in-charge of it as witness but such step was not taken by prosecution hence, it is held that the seized substance was not kept in the safe custody then the possibility of changing the same could not be ruled out. Therefore in such circumstance it could not be connected with the appellant. In this regard the Apex court has also given the verdict on account of non-production of Malkhana register of police station. This principle was laid down in the matter of Bahadur Singh v. State of M.P. and Anr. (2002)1 S.C.C. 606 in which it is held as under :
8. Under the aforesaid circumstances the appellant cannot be convicted on the sole testimony of police witness, PW.3. The question of applicability of Section 35 of the Act will not arise in the present case when the recovery itself doubtful. The appellant had disputed the recovery of contraband. There are serious discrepancies in its recovery, seizure and deposit in the maalkhana. The prosecution has thus failed to prove its case beyond all reasonable doubts against the appellant who is accordingly entitled to benefit of doubt.
17. The objection raised by the appellant that story put forth by the prosecution has not supported by independent witness is not sustainable under the law in view of the said decision of the Apex Court in the matter of P.P. Fathima v. State of Kerala (Supra). According to it even in the absence of independent corroboration mere on the testimony of seizure officer and the investigating officer appellants could be conivcted if the same is reliable and free from all reasonable doubts.
18. Besides aforesaid, I have not found the compliance of provisions of Section 41, 42, 55 and 57 of the NDPS Act. Hence, it is held that the grave negligence has been committed by the said Sub-inspector during investigation of the instant case and whatsoever investigation was held that has not been proved by the prosecution beyond reasonable doubts. Resultantly it is held that the trial court has committed grave error in holding the guilty to the appellants for the alleged offence. Hence, Judgment of trial court is perverse, inconsistent and not sustainable under the law.
19. Therefore, by setting aside the judgment of trial court the appeal is allowed and the appellants are hereby acquitted from the alleged charges, their personal bonds and surety bonds are hereby cancelled. The fine amount if deposited the same be refunded to them. Appeal is allowed.