Atik vs State of M.P.

I.S. Shrivastava, J.—This appeal has been preferred by the appellant Atik being aggrieved by the judgment dated 30th June, 1997 passed by the Court of Shri S.N. Sharma, Sessions Judge, Shajapur in S.T. No. 492/1992, by which the appellant has been convicted u/s 8(c)/18 of the NDPS Act and sentenced to rigorous imprisonment of ten years along with fine of Rs. 1,00,000/- According to the prosecution story, in the night of 21/04/1991, PSI Prakash Batham along with constables Rajaram, Bhanusingh, Harishchandra, Mangilal during petrolling stopped a truck bearing registration no. CPM-8423 and brought it to the police station, in which 43 cows and oxen were packed for slaughtering at Maharashtra, hence crime no. 105/1991 was registered. Driver of the truck was Samiullha and the businessmen of the cows and oxen were Atik, Farukh. On search of the truck before the witnesses Rajendra Desai and Radheshyam, from the black coloured bag of Atik, 260 grams opium was found in a polythene bag, which was identified as opium. The samples of 10 grams was taken out and sealed. Accused Atik informed that Samiullha, Farukh are taking the cows for slaughtering and the opium as a sample to Bombay, hence crime no. 106/1991 was registered against accused persons. After investigation, challan was filed against the accused Samiullha, Atik, Farukh and Ataullha Khan. Vide the impugned judgment, accused Shamiullha, Farukh and Ataullha Khan have been acquitted and the appellant Atik has been convicted as mentioned herein above. Hence the present appeal has been filed.

It has been argued by the appellant''s counsel that the appellant has been falsely implicated in this case. All the documents were tampered and not reliable. The appellant was not identified during trial and on the basis of the identification marks, he was identified by the investigating officer. The diary and the bag which were found with the appellant was not produced before the Court. The quantity of the opium was changed. After taking out the samples of 10 grams, the remaining quantity would have been 250 grams, but only 240 grams opium was produced before the Trial Court. The independent witnesses were hostile and they did not support the prosecution story. The original FSL report was not produced before the Trial Court; its attested copy was filed as Ex.-P/32 which is not readable document and on the basis of which, its result cannot be seen. It was not legally proved. Hence the appeal should be allowed.

It has been argued by the respondent''s counsel that the case was proved against the appellant on the basis of evidence produced before the Trial Court. The appellant was identified by the Investigating Officer in the Court. Hence, the appeal, being devoid of merits, be dismissed.

Considered the arguments and record of the Trial Court perused.

Rajesh Kumar PW-1 and Ramprasad PW-2 were the independent witnesses of seizure memo Ex.-P/l and the seizure memo of the sample Ex.-P/2. Both these witnesses were declared hostile. According to the Rajesh Kumar PW-1, the accused persons were arrested before him. The seizure memo Ex.-P/l, panchanama of sample Ex.-P/2 and arrest memo Ex.-P3 bear his signatures, but before him, the opium was not seized from the truck and sample was not taken out before him and it was not sealed before him; the bag was not found before him. In cross-examination, he deposed that the proceedings were taken up at the afternoon while according to panchanama Ex.-P/1 & Ex. P/2, it was prepared at 3.20 am.

Ramprasad PW-2 deposed that before him, the truck was searched and the opium was not found and it was not seized and sealed before him. In cross-examination, he has deposed that he was told by the police officer that they were seizing cows, hence he should sign, therefore he signed. Both these witnesses have denied with their respective police statements Ex.-P/5 and Ex-P/6. In this way, these proceedings were not supported by the independent witnesses.

Harisingh PW-3 who is the independent witness of memo Ex.-P/4 and Ex.-P/8, search of the house of accused Atik, but he has turned hostile and he has not supported the prosecution case. He deposed that before him, the bag was not seized and not searched. He did not give the statement Ex-P/9 to police.

Prakash Batham PW-4 who during city petrolling brought the truck to police station, has deposed that the accused persons present in court were brought by him to the police station. Their names were Samiullha etc. He does not remember the names of other accused persons. The cows and oxen were taken out from the truck and the accused persons were searched, during which, 260 grams opium was seized from the person to whom he cannot identify today. The whole of the proceedings were completed by the station house officer Harveer Singh PW-6. In this way, this witness has failed to identify the appellant.

Harveersingh PW-6 deposed in this respect that the truck was brought by sub-inspector Prakash Batham to the police station, in which cows and oxen were packed very cruelly, which were being carried for slaughtering. Hence he took out the cows from the truck. Three persons were in the truck and he does not know their names. Seeing the accused persons in the court, he said that these four persons were in the truck, against which, offence under the Pashu Atyachar Niwaran Adhiniyam was registered. During search of the truck, he found a bag in the cabin of the truck, in which 260 grams opium was found. This bag was of accused Atik. The opium was tested and smelled and was identified as opium. In the bag, clothes, diary and undergarments, watch were found and which were seized. The diary was in the name of accused Atik. He seized all these documents and prepared panchanama Ex.-P/1, which bears his signature. He took out 10 grams of opium as sample and it was seized by panchanama Ex.-P/2. Thereafter, he registered the crime by FIR Ex.-P/14 and arrested the accused persons by arrest memo Ex.-P/3. Thereafter, he deposited the opium and sample in sealed condition in Malkhana and handed over it to head constable. On 17/05/1991, he sent the seized property to FSL by Ex.-P/10. Article-A is the packet, which is produced in the Court in which he sealed the opium and the chit pasted on it signed by him and the witnesses.

It has been argued by the appellant''s counsel in this respect that after deducting 10 grams opium as sample out of 260 grams opium, the remaining quantity should be 250 grams while in packet Article-A, the quantity of opium was mentioned as 240 grams. This shows that the sample was defective and was prepared arbitrarily.

Considered the arguments. According to Ex.-P/1 & Ex.-P/2, 10 grams opium was taken out for sample, hence the remaining quantity of opium should be 250 grams, but it has been observed by the Court that in property deposit memo, it has been mentioned that 240 grams opium has been deposited in the malkhana. This shows that the remaining 250 grams opium was not deposited in the Court and the Investigating Officer Harveersingh PW-6 has not given any statement about the difference of 10 grams opium and he has not given any explanation of it, which creates doubt about the actual quantity of the opium and the quantity deposited in the Court.

As regard to panchanma Ex.-P/1 about the seizure of the opium and panchanama Ex.-P/2 of 10 grams opium as sample and arrest memo Ex.-P/3, it has been argued by the learned counsel for the appellant that these documents are tampered documents. Ex.-P/1 and Ex.-P/2 bear the same time as 3.20 am and arrest memo Ex.-P/3 and FIR Ex.-P/14 bear the same time. Ex.-P/1, Ex-P/2 & Ex.-P/3 bear the crime number while they were prepared before reaching at police station and registration of FIR and hence they are tampered documents.

Considered the arguments. According to the statement of Harveersingh PW-6, he registered the crime by FIR Ex.-P/14 and thereafter, arrested the accused persons. From the FIR, it reveals that it was registered at 3.25 am in the night and arrest memo Ex.-P/3 was prepared at 3.25 am in the night, hence both these documents were prepared at the same time. Similarly, seizure memo Ex.-P/1 and panchanama of sample Ex.-P/2, both bear the crime no. 106/1991 while up till that time, FIR was not registered. Both these documents bear the time of preparation of the documents as 3.20 which is not possible. This shows that Ex.-P/1, Ex.-P/2 and Ex.-P/3 are tampered documents, hence they are not reliable.

In this case, at the time of the trial, original FSL report was not produced. It was missing, therefore, attested copy of Ex.-P/32 of the FSL report was produced in evidence. From perusal of this report, it reveals that it is not readable copy and no opinion can be drawn from it, therefore, it cannot be said that in FSL, the substance which was sent for analysis was found to be opium.

Therefore, on the basis of the above discussions, I conclude that the appellant was not liable to be convicted because the seizure memo Ex.-P/1 and Ex.-P/2 were tampered documents. It was bearing crime number and both these documents were having same time of preparation of the documents and they were not supported by the independent witnesses. The sample produced before the Trial Court which contained 240 grams opium was doubtful because the remaining quantity of the opium was 250 grams, which should be deposited in the Malkhana and produced in the Court. The arrest memo Ex.-P/3 was not also reliable because the time of the arrest memo and the FIR was same i.e. 3.25 am, which is not possible. Harveersingh PW-6 was unable to identify the appellant. After preparing the arrest memo on the basis of the identification mark, he identified the appellant. FSL report was not readable and no conclusion can be drawn from it. Hence this appeal deserves to be allowed. Therefore, on the basis of the above discussions, this appeal is allowed and the appellant is acquitted from the charges u/s 8(c)/18 of the NDPS Act. The fine, if deposited be returned to him. His bail bonds are discharged. He be released, if not required in any other offence.