Ashish vs State of Madhya Pradesh

The appellant has filed the present appeal against order dated 30.05.2018 passed in S.T. No.10/14 by Special Judge (NDPS Act), Ujjain whereby the learned special Judge has convicted the appellant under Section 8/21(b) of the NDPS, Act, 1985 and awarded Rigorous Imprisonment of 5 years and fine of Rs.25,000/- and in default further to undergo R.I. of 6 months.

According to the prosecution case, on 17.08.2014, Sub Inspector of the Police Station Chimanganj received information that Ashiesh S/o Shankar Singh wearing blue jeans and while T-shirt is standing near Idgah, Ujjain with some smack and by taking immediate action, he can be caught. Taking action on the information. and after completing initial proceedings, the police cordoned the spot and noticed a person similar to the description given by the informer. On inquiry, he revealed his name Ashiesh Singh.

After following due process, the police searched and recovered 60 grams Smack (Dyacitylene morphine) kept in a transparent plastic pouch from right pocket of his paints. All proceedings, each and every step, pre and post search and recovery like entry of information in the daily diary (Roznamcha), intimation to the senior officers, calling to the panch witnesses, information to the person to be searched about his statutory right of search by gazetted officer of by magistrate, search of police party given to the person to be searched, taking out and sealing samples of the spot etc. were documented on and off the spot (at Police Station). The police took him in custody, registered the crime and after other usual investigation, filed the charge-sheet against him.

The appellant was charged for the offence under Section Section 8/21(b) of NDPS, Act, 1985. He abjured his guilt and prayed for trial. After the trial, he was held guilty and punished as stated in para 1 above.

The appellant has preferred this appeal mainly on the grounds that both the independent witnesses are pocket witnesses of the police. They both have long criminal records. To make such persons witnesses of the proceedings, is itself sufficient to suspect the credibility of the prosecution case. Otherwise also they both have turned hostile and have not supported the case of the prosecution. No separate seal is used by the seizing officer to seal the article on the spot; instead the same seal, which was used on the spot to seal the seized contraband was used to seal the article at the police station while depositing the same in the Malkhana. This deprived the appellant from his valuable right to show that the seized article was never seized or sealed on the spot. There is delay in depositing the seized substance in the Court. The police has sent both the samples to the FSL, which is against the law. Therefore, the appellant is entitle for acquittal.

It is further submitted that the police had foisted a false case for having illegal possession of contraband on his mother for which he made complaints against SI Siyaram and other police officials. They all got annoyed and implicated him in this false case.

The other grounds like the appellant has been falsely implicated, the judgment and order of the trial Court is contrary to law and facts available on record, the learned trial Court committed error in not considering the material contradictions and omissions appeared in the statements of the prosecution witnesses and also in discarding defence version and out of his 5 years sentence, he has completed almost 3 years and 6 months in jail, therefore, the impugned judgment and order be set-aside and he be acquitted or at least his sentence be reduced to the period already undergone have also been taken by the appellant.

Learned Public Prosecutor has supported the judgment and order by submitting that there is clear evidence against the appellant, therefore, according to him, appeal deserve to be dismissed.

I have considered rival contentions of the parties and have perused the record.

Sub-Inspector Siyaram Singh (PW-7) has deposed on oath before the trial Court the facts of receiving of information, preparation for trap, intimation to the seniors, calling of panch witnesses, departure with the police party alongwith necessary paraphernalia, information to the appellant about his right of search by gazetted officer or by magistrate, obtaining his consent, taking his search after giving search of police party, recovery of substance, weighing of the same, taking out sample, seizure and sealing of the samples as well as remaining substance, registration of Crime No.679/14 under Section 8/20 of NDPS Act at Police Station Chimanganj Mandi and handing over the seized substance to the Head Constable Shiv Mohan to keep it in custody. Witnesses Ganesh PW-1, Shiv Mohan PW-2, Constables Shyambaran Gurjar PW-4, Atmaram PW-5, Praveen Singh PW-6 have supported his statement on the different steps taken by the seizing officer Siyaram Singh PW-7.

Sub-Inspector, B.R. Sisodiay PW-9 has stated before the trial Court that after registration of the crime, he was assigned investigation and during investigation, he recorded the police statements of Head Constables Ritesh, Mohan Singh, Shiv Mohan, Laxman Singh Parihar, Constables, Rajpal Singh, Ganesh Kumar, Atmaram, Praveen Singh Chouhand and Vinod Kumar and Sub Inspector Shiyaram Singh Gurjar. He further prepared spot map, sent the sample of seized article to the FSL and received report confirming that the article sent was found psychotropic substance.

The statements of witnesses have been corroborated by letter to the CSP Ex.P.1, Information Ex.P/2, Search Warrant Ex.P/3, Detailed Information Letter to CSP Ex.P/4, Punchnama of Witnesses Ex.P/5, Seized Article Register Ex.P/6, Daily Station Diary Ex.P/7, Information Letter Ex.P/8, Punchnama Ex.P/9 to Ex.P/18, FSL receipt Ex.P/19, Station Diary Ex.P/20 to Ex.P/26 and Ex.P/28 to Ex.P/29, FIR Ex.P/27, Crime Detail Form Ex.P/30, Police Statements Ex.P/31, letter of SP Ex.P/32 and FSL Report Ex.P/33.

The learned trial Court has appreciated all this evidence at length and correctly found it reliable.

It is correct that independent witnesses Ritesh PW-3 and Manoj PW-8 have not supported the case of the prosecution, but they have been declared hostile and they have not denied their signatures on the documents prepared during search and seizure. The learned trial Court has rightly disbelieved tham in para no.30 of the impugned judgement.

The learned trial Court has considered the contradictions appeared in the statements of Constables Atmaram PW-5 and Praveen PW-6 regarding information given to the CSP in compliance of Section 42 and 57 of the NDPS Act and also the contradiction with regard to sealing of the seized article at the police station and further sending of both the samples to the FSL for chemical examination in para nos.39 to 47, 54, 55, 69 and 72 of the impugned judgement and after discussing the evidence in detail, has rightly held that these contradictions do not adversely affect the case of the prosecution.

Defense evidence is also considered by the learned trial Court in para nos.34 to 37 of the impugned judgment and have rightly been discarded by the trial Court.

The prosecution has successfully established compliance of Section 50 of The Act, 1985 by statement of Siyaram Singh Gurjar PW-7 supported by consent of the appellant Ex.P/9. Therefore, on this ground also, the appellant can not be granted any concession.

Keeping in view the incriminating evidence available on record proving the guilt of the appellant, I find that I have no reason to arrive at a finding different from the one recorded by the learned trial Court in regard to the complicity of the appellant in committing the offence. The learned trial Court has not committed error in holding the appellant guilty. Therefore, no case for interference with the findings of the learned trial Court is made. Sentence awarded by the learned trial Court can also be not considered as disproportionate to the evidence found prove against the appellant. Hence, the impugned conviction and sentence are maintained and the appeal is dismissed being bereft of merit.

Consequently, I.A. No.8396/2018 also stands closed.