Madhya Pradesh High Court
Remgul Alias Remulal And Anr. vs State Of M.P. on 22 October, 2002
Equivalent citations: 2003(89)ECC41
JUDGMENT S.L. Kochar, J.
1. This appeal under Section 374 of the Code of Criminal Procedure is directed against the judgment dated 8.11.1997 passed by the learned Addl. Sessions Judge, Jaora in Sessions Trial No. 238/95, thereby convicting the appellants for the offence under Section 8/21 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentencing them each to suffer R.I. for ten years and to pay a fine of Rs. 1,00,000 and in default of payment of fine to suffer further R.I. for three years.
2. Briefly stated, the case of the prosecution before the trial Court was that on 31.10.1995 at 10.05 a.m., Himmatsingh Rana (PW-7) Town Inspector, Jaora received information that the appellant No. 1 Remugal alias Remulal R/o Bargundapura, Jaora was having in his possession some smack illegally in his house and after preparing small packets, was selling them. He prepared the Panchanama of the information (Ex.P/3) and after obtaining search warrant from the SDOP, went along with police party to the house of the appellant No. 1. There, he found both the appellants present and after performing usual formalities, searched the house of the appellant No. 1 wherein in an attachi besides other articles 305 grams of smack was found. On taking personal search of appellant No. 2, ten small packets of smack of two grams each were found on his person. Thereafter, after observing requisite formalities of testing, weighing and seizure of smack, appellants were arrested.
3. In the Chemical Analysis report, the samples were containing diacetyl-morphine (Heroin) vide Report Ex. P/24.
4. After usual investigation, the appellants were charge-sheeted before the trial Court where they pleaded not guilty with a plea that they have been falsely implicated.
5. Learned counsel for the appellants assailed the judgment of conviction on various grounds i.e. the exclusive ownership and possession of the house has not been established by adducing cogent and reliable evidence. The samples were not properly sealed and in seizure-memos Ex. P/14 and P/15 at column No. 13, sample of seal was not affixed. The samples were reached in various hands, but the link evidence has not been adduced. Therefore, there was possibility of variation in samples cannot be ruled out. There is a clear non-compliance of Sections 42, 52, 55 and 57 of the Act. Used seal was not handed over to the independent witness and the CFSL Form was not deposited in the Malkhana. On the other hand, learned counsel appearing for the State has supported the judgment of the trial Court. According to him, compliance of the provisions of Sections 52, 55 and 57 of the Act is not mandatory and no prejudice has been caused to the accused/appellants. Therefore, they are not entitled for getting any benefit.
5. Having heard the learned counsel for the parties and after perusing the entire record, this Court is of the opinion that the prosecution has not placed cogent and reliable evidence to establish that the house, in which, the contraband article was shown to be seized, was owned and in possession of the appellant No. 1 Remgul. To this effect, the prosecution has examined PW-1 Banesingh, Revenue Inspector, Nagar Palika, Jaora. This witness has deposed that on 14.12.1995, he had gone to the locality of Bargundapura, Jaora and collected information about ownership and possession of the house No. 11/1. The persons who were present on the spot had disclosed him that in the half portion of the house, the appellant No. 1 with his family was residing, but since last five to seven days, his family had gone out of the town and in the remaining half portion, some other family was residing.
6. This witness prepared a Panchnama (Ex. P/1) which bears the signature of the witness Shehzadkhan and Balu. Both these witnesses have not been examined by the prosecution. PW-1 Banesingh has not named in Court the name of both these persons from whom, he had received the information about ownership and possession of the house. In cross-examination, he has stated that the House No. 11 stands recorded in the name of one Nanuram Bheraji in the Assessment Register and Record of Nagar Palika. He brought these records with him in the Court. The statement of this witness is hit by the rule of 'hearsay'. He has given the evidence on the basis of the information given by Shehzadkhan and Balu, about the possession and ownership and both these persons have not been examined. The Nagar Palika Record is also, not showing the ownership and possession for the appellant No. 1.
7. PW-2 Amarsingh has stated that he had sold half portion of the house before two and a half years from the date of his examination in the Court i.e. 30.8.1996 to the appellant No. 1 and for this purpose, he has sworn an affidavit. There was agreement between them about execution of sale-deed in future and he had also received full amount of consideration. This witness has nowhere stated as to how he was having title of the said house. The affidavit was neither seized nor filed in the Court and the sale-deed was not executed. As mentioned above, the house was standing in the name of Nanuram Bheraji whereas the name of this witness in Amarsingh s/o Shankarlal. PW-1 Banesingh and PW-2 Amarsing have been relied upon by the trial Court for establishing the ownership and possession of the appellant, but the statements of both these witnesses are not sufficient to place reliance for this purpose. The prosecution has not examined any witness of that locality to establish this fact. The prosecution witness No. 7 H.S. Rana, Town Inspector and Investigating Officer alone also is not sufficient to rely that the house was owned and was in exclusive possession of the appellant No. 1. He has also not given any concrete evidence in this regard. According to him, in para 11, at the time of search and seizure 4/5 persons were present there, but he did not give the details of those persons. Therefore, mere presence of the appellant No. 1 is not sufficient to hold that he was the owner and in exclusive possession of the house, from where the search of contraband article i.e. smack was shown to be made.
8. Learned counsel placed reliance on the judgment passed by the Supreme Court in the case of Churan Yadav v. State of Bihar, AIR 1971 SC 1641 and Mohammad Klam Khan v. Narcotics Control Bureau and Anr., E.F.R. (II) 213, Mst Phoolkunwarbai and Anr. v. State of M.P., 1994 EFR (I) 600 and State of M.P. v. Faz Mohammad, 1978 JLJ S. No. 2 (DB). All these authorities are unequivocally say that the prosecution has to establish by adducing satisfactory evidence that the house belonged to and was in possession of the appellant, and the contraband article was in his conscious possession. In the view of this Court, the learned Trial Court has not appreciated the evidence in this regard in its proper perspective. There is no satisfactory evidence available on record to hold that the house was owned and was in possession of the appellant No. 1 and the alleged contraband article (Smack) was seized from his conscious possession.
9. It is pertinent to note here that the conviction is based on the solitary testimony of the Investigating Officer. The burden is on the prosecution to establish that the seized article was properly sealed and kept in proper custody till it is reached to the laboratory for analysis. In the present case, in the seizure memos (Ex. P/14 and P/15), sample of seal in column No. 13 is not available whereas it is a specific column for this purpose and the same cannot be ignored. The seal has also not been produced in the Court so that the time of recording of. evidence, the original seal could be tallied with the sample-seal affixed on Column No. 13 of the seizure-memos.
10. In the examination-in-chief PW-7 H.S. Rana was silent on this point. But in cross-examination, he has stated that a separate Panchanama was prepared for sample of seal, because of which he did not feel it necessary to affix sample of seal in this Column (para 14). This explanation appears to be an afterthought. If it was so, he could have stated this fact in the examination-in-chief. Apart from this, there is no such Panchanama filed in the Court and proved. If the same was sent along with the sample for tallying the impression of seal on the sample, even then, the copy of the sample must have been filed in the Court and proved in the Court. The seizure-memo (Ex.P/15) regarding seizure of ten small packets and same were duly sealed for this. There is no such recital in this Panchanama. Therefore, his statement does not get corroboration regarding sealing the seized article from the possession of the appellant No. 2 Raees Khan on the spot.
11. The prosecution has not examined the Constable who had taken the article for Chemical Examination. Therefore, the link evidence is missing in the present case. The sample of seal which was used has also not been deposited along with the property in the Malkhana and kept intact. There is no evidence adduced by the prosecution in this regard.
12. In the NDPS Act as well as in the Central Rules as also the State Rules framed thereunder, there is absolutely no provision for deposit of CFSL (Central Forensic Science Laboratory) Form in the Malkhana. Therefore, the question of non-compliance of non-depositing CFSL Form would not arise. But, in the present case, even the seal of sample was also not deposited in the Malkhana along with the seized articles. Therefore, the same is fatal to the prosecution. While sending the sample along with the sample of seal to the FSL one packet of sample and seal of sample must remain in the Malkhana and the same should have been deposited in the Court at the time of filing of the charge-sheet. This non-compliance is fatal to the prosecution in the present case.
13. In the case of State of Rajasthan v. Daulatram, AIR 1980 SC 1314, the Supreme Court has ruled that -
"Non-examination of witness in whose possession the sample remained, would be fatal to the prosecution. The inevitable fact of omission was that the prosecution failed to rule out the possibility of the samples to be changed or tampered with during the period in question."
14. It is imperative on the part of the prosecution to prove the sanctity of the case-property at no point of time has been disturbed or violated meaning thereby that right from the stage of seizure of the incriminating material, up to the stage of its receipt in the office of Chemical Examiner. It has to be established by the prosecution evidence that the contents of the case-property have not been tampered. A vital link in this case has been broken by the prosecution and it has not examined the Constable Mahendra Singh. In the present case, one Constable Mahendrasingh s/o Harishchandra Singh has been examined as PW-4, but he has only proved the Mukhbir Panchnama (Ex. P/3). He has not uttered even a single word about receiving the sample from Malkhana along with the specimen seal of Panchnama and handed over to the official of the FSL. It appears that the Constable Mahendra Singh who had taken the sample as per statement of PW-3 R. P. Sharma is a different Constable than PW-4. There is no evidence adduced by the prosecution about compliance of Section 55 of the Act about sealing of sample with a seal of the Officer in-charge of the Police Station. The non-compliance of this provision of Section 55 is fatal to the prosecution.
15. The Investigating Officer PW-7 H. S. Rana is also silent about compliance of the provisions of Section 57 of the Act about sending of report of arrest and seizure to his immediate official superior. There is also no evidence led by the prosecution about the disposal of the persons arrested and the article seized as per provisions of Section 52 of the Act. Learned counsel for the appellants have placed reliance on the judgments rendered by the Supreme Court in Gurubux Singh v. State of Haryana, 2001 (3) SCC 28. the Supreme Court has held that -
"It is true that the provisions of Sections 52 and 57 are directory, Violation of these provisions cannot ipso facto violate the trial or conviction. However, the Investigating Officer cannot totally ignore these provisions and such failure will have a bearing on appreciation of evidence regarding arrests of accused or seizure of the article."
16. In the case in hand, as discussed above, the Investigating Officer has not taken care of the aforesaid provisions of Sections 52, 55 and 57 of the Act. Therefore, the same are fatal to the prosecution.
17. In the light of the discussion as aforesaid, the prosecution has utterly failed to prove its case beyond all reasonable doubts against the accused. Therefore, this appeal deserves to be allowed and it is accordingly allowed. The appellant No. 2 Raees Khan is on bail. His bail and surety bonds shall stand discharged and the appellant No. 1 Remgul alias Remulal is directed to be released forthwith if not required in any other case.
18. A copy of this judgment be placed in the record of Cr. Appeal No. 1177/9 Remgul alias Remulal v. State.