Abid Khan vs State of M.P.

S.L. Kochar, J.

The appellant has called in question the legality of the judgment and order passed by learned Special Judge, Dewas in the file of NDPS Act Case No. 1/2005 dated 15/10/2005 wherein convicted the appellant U/s. 8/20 of the Narcotic Drugs and Psychotropic Substances Act (for short "the Act") and sentenced to undergo RI for three years with fine of rupees 10,000/-, in default of payment of fine further RI for six months.

The prosecution case multum in parvo as unfolded before the trial Court is that on 28/11/2004 Sub Inspector O.P. Solanki of Police Station Kotwali, Dewas received information from informant that the appellant was present near old bus stand, Dewas having charas in his possession. On this information, the Sub Inspector O.P. Solanki along with constables and panch witnesses reached at old bus stand, Dewas and found the appellant roaming near Peepal Tree. They disclosed their identity to him and also informed him about mukbir information; thereafter the appellant was apprised regarding his search. The appellant was given full understanding and opportunity of search and seizure by Gazetted Officer or Executive Magistrate and if he desires and willing to give search to S.I Shri O.P. Solanki, S.I. can also take search of him. It is said that appellant expressed his willingness to be searched by S.I O.P. Solanki. The consent memorandum (Ex.P. 2) was prepared to this effect signed by the appellant, Sub Inspector O.P. Solanki and panch witnesses. On search, from the right pocket of paijama of appellant Rs. 39,490/- cash and from left pocket one polythene bag were found. On checking, in the polythene packet the charas was present which was confirmed by test, smell and burning. The Investigating Officer in presence of the panchas prepared seizure memo, memorandum of weighment and out of total quantity of 150 gm, two separate sample weighing 25 gm each were also taken separately and panchnama (Ex.P. 7) was prepared to this effect. The samples were sent to the FSL, by memo (Ex.P. 13). After due investigation, charge sheet was filed against the appellant for the commission of the offence punishable U/S. 8/20 of the Act.

The appellant denied the charges. According to him, he was falsely implicated, therefore, he was put on trial. Appellant did not examine any witness in his defence whereas prosecution has examined in total 10 witnesses and got proved 13 documents to prove its case. The learned trial Court, convicted the appellant as mentioned herein above.

Having heard the learned counsel for parties and after perusing the entire record of the case, this Court if of the view that conviction of the appellant is not sustainable on two substantial grounds, number one is that the seized property i.e. packet of seized charas after taking 50 gm sample out of 150 gm total seized charas, the remaining 100 gm charas was not produced before the trial Court so as to connect the appellant with the samples sent to the FSL and secondly the FSL report has not been exhibited and proved in Court statement of Investigating Officer and in accused statement, no question was put to the appellant regarding chemical examination report and presence of charas in the sample said to have been taken from the total quantity of charas seized from the possession of the appellant.

In the instant case, independent witnesses Rohit (PW. 6) and Bhupendra (P.W. 7) have not supported the prosecution case. Both have been declared hostile. The prosecution case is based on the testimony of police witnesses Khushilal (P.W. 2), Madanlal Mandloi (P.W. 3), Shailendra Singh (P.W. 4), Head Constable Chet Singh Parte (P.W. 5), Head Constable Phoolchand (P.W. 8), Investigating Officer O.P. Solanki (P.W. 9) and Sheshnarayan Tiwari, SHO (P.W. 10) about seizure and sending of the sample to the FSL. Out of these police witnesses the main witness about search and seizure is O.P. Solanki (P.W. 9) and Madanlal Mandloi (P.W. 3), Constable. Rest all the police witnesses were regarding sending of the report to CSP office, taking of sample for examination and delivery of the same to the FSL, keeping the seized property in the malkhana etc. SHO Sheshnarayan Tiwari (P.W. 10) is not the witness of the search and seizure of the appellant, he investigated the matter after search and seizure effected by S.I. O.P. Solanki (P.W. 9). This witness Sheshnarayan Tiwari has prepared the spot map (Ex.P.12) and recorded the statements of witnesses Madanlal Mandloi, O.P. Solanki, Bhupendra and Rohit. He also sent the sample for chemical examination along with letter Ex.P.13.

At the time of examination of witnesses of search and seizure, O.P. Solanki (P.W. 9) as well as panch witnesses Rohit (P.W. 6), Bhupendra (P.W. 7) and police witnesses Madanlal Mandloi (P.W. 3), the seized property was not produced before the Court and same was also not exhibited and marked as Article to establish the identity of the seized property in presence of the witnesses and the appellant, which could be the substantive evidence. The Supreme Court in the case of Jitendra and another Vs. State of M.P. [2004 SCC (Cr) 2028] has observed in paragraph six as under:

In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned.

In this judgment Supreme Court in para five has also held that the non production of the material object cannot be considered as mere procedural irregularity and the same did not cause any prejudice to the accused. In the instant case, in cross examination defence has given suggestion to the police officer O.P. Solanki (P.W. 9) who performed the search and seizure that he has falsely implicated the appellant, and one panch witness Bhupendra (P.W. 7), though declared hostile, but stated in examination-in-chief that he along with his friend Raju were going from in front of the police station, at that time in the noon at about 3-3.30 p.m. police was beating appellant Abid, at that juncture they also went to the police station out of curiosity and he too was also dealt a lathi blow by one police-man because of which he ran out from the police station, thereafter he was again called by his friend Raju and police obtained their signatures on five blank papers. O.P. Solanki (P.W. 9) has deposed in para nine that he was not able to remember as to how he sealed the sample and in what kind of articles the sample was kept and sealed. He also failed to disclose about sealing of remaining part of seized charas. In para 10 he has also deposed that he did not keep separate fascimile of original seal on the paper and also did not prepare panchnama to this effect and after reaching to the police station before depositing the property in the malkhana he did not again seal the sample and remaining part of the case property. In the light of this state of affairs the prosecution was obliged to produce the remaining quantity of packet of charas of 100 gm and non production of the same is fatal to the prosecution. Only on the basis of the seizure memo and panchnama proved by police witnesses the appellant cannot be connected with the seized property as held by Supreme Court in the case of Jitendra (supra).

The another glaring and substantial defect goes to the root of the prosecution case is that though FSL report was received before filing of the charge sheet and report was also filed along with the charge sheet but the same was not tendered in evidence of Sub Inspector O.P. Solanki (P.W. 9)a witness of search and seizure or even SHO Sheshnarayan Tiwari (P.W. 10) who sent the sample through letter Ex.P. 13 to chemical analysis laboratory, Indore for test. The learned trial Court, while describing the prosecution case in paragraphs 2 and 3 of its judgment also nowhere mentioned that chemical analysis report filed by the police is disclosing the fact that sample sent through letter (Ex.P. 13) were containing contraband article charas. In para 40, the learned trial Court has mentioned that the FSL report filed in the case is disclosing that in Exhibit A-1 charas was available and this report is admissible in evidence as per provision U/S. 293 of the Cr.P.C. There is no dispute regarding admissibility of the FSL report as per provision U/S. 293 of the Cr.P.C. without examining the chemical examiner as a witness in the Court but the report has to be exhibited either by the Investigating Officer or who has received the FSL report of the sample sent to the laboratory. This procedure has not been followed by the prosecution and therefore, chemical report is not the part of the proved and exhibited document filed by the prosecution. This material irregularity again caused serious dent to the prosecution case when the trial Court did not put any question in accused statement of the appellant recorded U/s. 313 of the Cr.P.C regarding presence of charas as per FSL report in the sample which were seized from the possession of the appellant. In question No.43, the learned trial Court has asked the appellant regarding sending of the sample to FSL, Sagar by SHO Sheshnarayan Tiwari (P.W. 10) through S.P with carbon copy of the letter (Ex.P. 15). This question number 43 is also incorrectly framed by the learned trial Court. The seized sample of the property was not sent to FSL, Sagar but it was sent to FSL, Indore. This fact is clear from document (Ex.P. 13) as well as statement of Sheshnarayan Tiwari, SHO (P.W. 10) (See para two, examination-in-chief). After this question, no question was put to this appellant by the trial Court regarding receipt of chemical analysis report and the contents of the report. Neither the Prosecutor appearing for the prosecution nor the Court took care for tendering the chemical analysis report and exhibited the same while recording statement of Sheshnarayan Tiwari (P.W. 10) and there is no mention of this document in the list of proved documents sent along with the record of the trial Court. This document is available in part two file of the trial Court in which unproved and unexhibited documents and other Interlocutory applications and order sheets are available.

This Court had occasion to consider aim, object and scope of recording of statement of accused as per provision U/s. 312 of the Cr.P.C in case of Raju @ Rajendra Prasad Vs. State of M.P., ] on the strength of the Supreme Court judgments reported in Sharad Birdhichand Sarda Vs. State of Maharashtra, , State of Himachal Pradesh Vs. Wazir Chand and Others, ; S. Harnam Singh Vs. The State (Delhi Admn.), ], State of Maharashtra Vs. Sukhdeo Singh and another Vs. State of Maharashtra Through C.B.I. Vs. Sukhdev Singh alias Sukha and others, , held as under:

Section 313 of Criminal Procedure Code casts duty on the Court to put each material circumstances appearing in the evidence against the accused specifically, distinctly and separately. Failure to do so, amounts a serious irregularity, vitiating the trial if it is shown to have prejudiced the accused. The words "shall question him" clearly bring out the mandatory character of clause and cast imperative duty on the Court confer corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him.

In the case in hand, absolutely no question was put to the appellant regarding receipt of FSL report and its contents that the sample taken from the seized property from the possession of the appellant were containing contraband article charas for which he was prosecuted, therefore, the same has caused serious prejudice to the appellant because he was not made aware of the chemical analysis report and given opportunity to explain the same. Recently again in the case of State of Andhra Pradesh Vs. Patnam Anandam [2005 SCC {Cri} 1225] in paragraph 11, the Supreme Court has considered the non-compliance of Sec. 313 of the Cr.P.C by not putting incriminating circumstances occurring in the evidence of the prosecution against the appellant whereby the accused is precluded from opportunity of explaining the same. In such situation that circumstance or circumstances cannot be relied upon for convicting the appellant on the strength of such circumstance.

In the present case, appellant was prosecuted for having in possession of contraband article charas and the basis of proof that seized article from the possession of the appellant was charas is the FSL report but neither the report was tendered in evidence and exhibited nor its contents/opinion of the chemical analyzer were put to the accused in accused statement.

In view of the aforesaid legal and factual premises the conviction of the appellant is not sustainable, therefore, the conviction and sentence passed against him are hereby set aside. The appellant is in jail. Trial Court is directed to release him forth with if not wanted in any other criminal case. The order of the learned trial Court regarding confiscation of cash amount of Rs. 39,490/- seized from the possession of the appellant is also set aside. The trial Court is directed to return this amount to the appellant.

In the result, the appeal of the appellant is allowed.