Madhya Pradesh High Court
Ramaswamy vs State Of M.P. on 4 January, 2005
Equivalent citations: 2005CRILJ1603, 2005(1)MPHT276
Author: A.K. Shrivastava
Bench: A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. By knocking the door of this Court under Section 374(2) of the Code of Criminal Procedure, 1973, the accused/appellant has assailed the judgment of conviction and order of sentence passed by the Special Judge, Bhopal in Special Case No. 14/2002, convicting him under Sections 8(c)/21 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for brevity "the Act") and sentencing to suffer rigorous imprisonment of ten years and fine of Rs. 1,00,000/- (Rupees One lakh), in default of payment of fine he has been further directed to suffer rigorous imprisonment of two years.
2. In brief, the case of prosecution is that informant, on 30-12-2001 gave information to Salim Khan, Station Officer In Charge of Hanumanganj that two persons are staying in room No. 3 of Hotel Banjara and they are having contraband article "Brown Sugar" for sale. After recording the said information in Rojnamcha the Station Officer Incharge sent Constable Narayan to call two witnesses, thereafter, after the arrival of witnesses namely Mushtak and Kabir and also after doing the needful, the Station Officer Incharge with his force and witnesses, arrived at the said hotel.
3. On knocking the door of room No. 3 of Hotel Banjara two persons came out and they described their names to be Ramaswamy (accused/appellant) and Abdul Zabbar. The Station Officer Incharge intimated them that he is having information about the possession of contraband article with them and thereafter he gave notice under Section 50 of the Act to the accused/appellant, however, the accused/appellant and other person Zabbar, accepted their search through said Station Officer Incharge. Accordingly, 'Sahamati Patra' was prepared and thereafter Station Officer Incharge offered himself and his force for search to the accused and after it the Station Officer Incharge searched the accused/appellant and found a notice under Section 50 of the Act from the pocket of his shirt. The Station Officer Incharge also found a polythene packet kept inside the fold of 'Lungi'. The police party also seized Rs. 9,000/- from a bag of the appellant and in that bag contraband article was found in a polythene. The said contraband article was suspected to be "Brown Sugar" and after weighing it was found to be 1 Kg. Out of the bulk of 1 Kg, contraband article, a sample of 50 gms was taken out and a Panchnama in that regard was prepared. Thereafter the contraband article was seized and the appellant was arrested at the spot.
4. It is further case of prosecution that sealed sample of contraband article was sent for chemical examination at Neemuch where the sample was deposited on 7-1-2002. The chemical examiner on analysis affirmed the contraband article to be "Brown Sugar" vide its report (Ex. P-9), dated 22-1-2002.
5. A charge-sheet was submitted and the appellant was charged under Sections 8(c) and 21 of the Act. Needless to emphasis, the appellant abjured his guilt and prayed for the trial. In order to bring home the charges the prosecution examined as many as eight witnesses and placed Exs. P-l to P-4, the documents on record. The defence of accused is of false implication, however, he did not choose to examine any witness in his defence.
6. The Special Judge on scrutiny of the evidence came to hold that the appellant did commit the offence for which he was charged and eventually convicted him and passed the sentence which I have mentioned hereinabove. Hence this appeal.
7. In this appeal Sushri Sunita Chourasiya, learned Counsel for the appellant, has argued that if the entire case of prosecution is taken into consideration it is difficult to hold that the appellant committed the offence. She has further submitted that the appellant being a resident of Chennai does not understand Hindi language and the entire investigation including giving notice under Section 50 of the Act etc. is in Hindi language and, therefore, it is difficult to hold that the appellant is guilty.
8. Per contra, Shri Ajay Tamrakar, learned Counsel for the respondent, argued in support of the impugned judgment.
9. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
10. In order to appreciate the rival contentions of learned counsel for the parties it shall be apposite to X-ray the oral and documentary evidence. According to the Investigating Officer Salim Khan (P.W. 7), on 30-12-2001 vide Ex. P-13 at 13.30 hours he received information from informant that two persons are staying in room No. 3 of Hotel Banjara and they are possessing "Brown Sugar" in high quantity. Thereafter he sent Constable Narayan Das (P.W. 1) to call two witnesses and after doing the needful the police party arrived at Hotel Banjara alongwith witnesses. At 15.20 hours notice (Ex. P-16) under Section 50 of the Act was given to accused/appellant and the appellant permitted his search to be taken by the said Station Officer Incharge. Thereafter a Panchnama (Ex. P-l 7) in that regard was prepared at 16.20 hours and the police party offered themselves for search vide Panchnama (Ex. 18) at 17.00 hours, on being searched the appellant, a notice under Section 50 of the Act was found in the pocket of his shirt which was wearing and thereafter from his possession a bag was seized and in the said bag a "Lungi" was found in which in a Polythene contraband article and Rs. 9,000/- were kept. A Panchnama (Ex. P-l 9) in that regard was prepared. The accused/appellant was arrested on the dame day, i.e., 30-12-2001 at 20.00 hours at Police Station, Hanumanganj. Thus, according to the case of the prosecution, the entire proceedings took place in between 1.30 p.m. to 8.00 p.m. It be seen that according to the Station Officer Incharge Salim Khan (P.W. 7) and other witnesses namely Vishwanath Dubey (P.W. 5) and two independent witnesses Amirkhan (P.W. 6) and Mushtak (P.W. 8), the entire proceeding was commenced in between 1.30 p.m. to 8.00 p.m. However, according to Hotel Manager of Hotel Banjara Praveen Kumar Dwivedi (P.W. 4), at 11.00 in the night the police party arrived in the hotel and thereafter the entire proceeding look place. According to this witness, the proceedings continued upto late night. In the regard the statement made by this witness in Paras 5 and 7 are quite relevant (by typographical error Paragraphs 5, 6 and 7 are typed twice). In Para 7 (repeat Para 7 of the deposition sheet) this witness specifically denied that police party arrived in the hotel at 2-2.30 in the afternoon. This witness has firmly stated that in the night at 11.00 the police party arrested the appellant. Thus, it raises a heavy doubt regarding the implication of appellant in the said offence. On the scrutiny of evidence of hotel manager, it is revealed that one person namely S. Raman was staying in Room No. 3 and the relevant entry in that regard to hotel register is Ex. P-5, but, this witness has not stated at all that when the said person check out the hotel. In Para 7 of his deposition this witness has specifically stated that when police party arrested the customer S. Raman who was staying in Room No. 3 and took him away, he did not make any relevant entry in that regard in hotel register (Ex. P-5).
11. The another important piece of evidence which can not be marginalized and blinked away and which had also put a dent in the truthness of the prosecution story in order to hold it to be doubtful is that the report of Govt. Opium and Alkaloid Works, Neemuch (M.P.) is Ex. P-9. This report (Ex. P-9) is dated 22-1 -2002 and there is an entry in the report that the sample in the Laboratory was received on 5-1-2002. However, according to Bahadur Patel (P.W. 2) (who is a Constable of Police Station, Hanumanganj and who was deputed to carry the scaled sample of contraband article to Neemuch for its chemical examination) he reached at Neemuch on 7-1-2002 and he deposited the sample of contraband article on that date. The examination-in-chief of this witness is quite relevant in this regard in which he has said that a receipt (Ex. P-4) in that regard was given to him on that date, i.e, 7-1-2002. If the contraband article was deposited on 7-1-2002 by this witness then how the examiner of the Laboratory at Neemuch analysed the contraband article on 5-1-2002, i.e., two days prior to the deposit of the contraband article. Thus, it raises a heavy doubt that whatever the contraband article was received on 5-1 -2002 by the Chemical Examiner at Neemuch was not the same contraband article which was deposited by Constable Bahadur Patel (P.W. 2) on 7-1-2002. If we keep the report of Chemical Examiner (Ex. P-9) in which it has been mentioned that the contraband article was received on 5-1-2002, in juxtaposition with the statement of Constable Bahadur Patel (P.W. 2) who brought the sealed contraband sample and deposited the same on 7-1-2002, we can safely say that the contraband article which was received in the Laboratory on 5-1-2002 was not the same contraband sample which was deposited by Constable Bahadur Patel (P.W. 2) on 7-1-2002. In this regard, it would be also profitable to discuss the evidence of Vishwanath Dubey (P.W. 5) who is Assistant Sub Inspector and according to him on 8-1-2002 Constable Bahadur Patel came back to police station after depositing the contraband article at Neemuch. The relevant entry in Rojnamcha is Ex. P-6.
12. The Investigating Officer in Para 15 of his deposition has specifically denied the suggestion that on 2842-2001 at 11.00 in the night the accused/appellant was arrested and was brought at police station. However, according to hotel manager, the entire proceedings took place in late night. Thus, it raises a doubt in regard to the implication of the appellant in the said offence.
13. If the testimony of Investigating Officer is scrutinized further it would reveal that though he came to know that the person who was having contraband article in the hotel was staying denoting himself to be "S. Raman" but this fact has not been mentioned in the case diary by him that by fictitious name the appellant Ramaswamy was slaying in the hotel. The Investigating Officer admitted the fact that the appellant is a South Indian and is resident of Chennai. Though he denied the suggestion that appellant knows English and Tamil languages only and according to this witness, accused is little acquainted with Hindi language. But, if this piece of evidence of Investigating Officer is read conjointly atongwith the evidence of independent witness Mushtak (P.W. 8) who was called by the Investigating Officer to witness the entire episode and who has also signed all the documents, it is revealed that the accused does not know Hindi language. According to him, when the investigation was being taken place, he was unable to understand the language which was being spoken by the appellant. The other co-accused, who was discharged by the Trial Court namely Zabbar, was speaking in Hindi. In the accused statement recorded under Section 313, Cr.PC also the accused has said that he is not acquainted with the Hindi language and, therefore, the entire investigation which was conducted in Hindi language, can not rope the appellant. There is no material on record in order to show that whatever the procedure of investigation was adopted by the Investigating Officer was explained to accused/appellant in his own language or in English language. Thus, the entire proceeding and investigation which was conducted against the appellant is one sided and it can not be said that the appellant was acquainted or was informed that what is being done against him.
14. On the basis of the aforesaid analyses, it is difficult to hold that the appellant was responsible for the offence for which he was prosecuted. The implication of appellant is not proved beyond doubt and implication in the said offence is highly suspicious. The law in this regard is quite clear that the suspicion, however, strong it may be, can not take place of strict proof. Apart from the above said reasonings, I would also like to mention that when the appellant was searched vide Ex. P-19 a notice under Section 50 of the Act was recovered from the pocket of his shirt. There is no indication in the entire investigation that what investigating officer did in regard to that notice. The said notice was also not seized and no seizure memo was prepared and the said notice was also not filed alongwith the charge-sheet. It may be possible that earlier on account of doubt, some other police officers might have searched appellant after giving him a notice under Section 50 of the Act which was recovered from his pocket. One can assume that since no contraband article was recovered from the possession of the appellant, therefore, no action was taken against him and later on, again he was searched by the present investigating officer. In all fairness the Investigating Officer Salim Khan (P.W. 7) ought to have seized the earlier notice under Section- 50 of the Act and should have submitted it alongwith charge-sheet. This is an additional ground, in order to hold that the case of the prosecution is suspicious.
15. For the reasons stated hereinabove, I have no hesitation in hold- ing that the prosecution has failed to prove its case beyond all possible doubt and by giving benefit of doubt to the appellant the impugned judgment of conviction is hereby set aside.
16. Resultanlly, this appeal is allowed and the conviction of appellant is hereby set aside. The appellant is in custody, he be released forthwith, if not required any other case. The amount of Rs. 9,000/- seized from appellant be returned to him.