Bhagwandas Sahu vs State of Madhya Pradesh

Hon''ble Shri Justice A.K. Shrivastava

Feeling aggrieved by the judgment of conviction and order of sentence dated 17.4.1996 passed by learned Special Judge, Satna in Special Case No. 108/1995 convicting the appellant u/s 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short "the Act") and thereby sentencing him to suffer R.I. for 3 years and fine of Rs. 5,000/-; in default further R.I. for 1 year, the appellant has taken the shelter of this Court by preferring this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. In brief the case of the prosecution is that Sub-Inspector Mahendra Singh Karchuli who was posted at Police Station Amarpatan, received information on 7.10.1995 from the informant that at the bus stand of Amarpatan appellant is carrying a suitcase (attachi) in which ganja has been kept. After reducing the said information in the Roznamcha and further sending the information to the senior officers the raiding party along with the witnesses arrived at the spot where appellant was found having a suitcase with him. The suitcase was opened and it was found that it was containing three kilograms of ganja. A notice u/s 50 of the Act was also given prior taking the search of the appellant. A sample of near about 100 grams of ganja was taken out from the bulk and thereafter the bulk as well as the sample were kept in separate packets and they were sealed. The sample of the alleged contraband article was sent for FSL examination where the presence of ganja was found and therefore, the appellant was prosecuted.

The Investigating Agency arrested the appellant and after completing the investigation a charge-sheet was submitted in the Special Court who framed the charge punishable u/s 20 of the Act, which the appellant denied and requested for the trial.

The prosecution thereafter examined three witnesses, they are Siyaram (PW-1), Ramlakhan (PW-2) and Mahendra Singh Karchuli (PW-3). The first two witnesses are the witnesses of seizure and PW-3 is the Investigating/Seizing Officer. The defence of the appellant is of maladroit implication and the same defence he set forth in his statement recorded u/s 313 Cr.P.C, but, he did not examine any witness in support of his defence.

Learned Special Judge on the basis of the evidence placed on record came to hold that the charge u/s 20 of the Act has been proved against the appellant and eventually convicted the appellant and passed the sentence which I have mentioned herein-above.

5 In this manner this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.

In the present case, learned counsel for the appellant has raised following five points before me that:-

(i) there is total non-compliance of Section 42(2) of the Act for the simple reason that there is no material on record in order to prove that within 72 hours a copy of the information was sent to his immediate official superior and if that would be the position the learned Special Court erred in convicting the appellant;

(ii) there is no material on record in order to hold that sample was sealed and the same was sent in sealed condition to the FSL Examiner;

(iii) the alleged contraband article was seized vide seizure memo (Ex.P-2) on 7.10.1995 at 17.15 hours but the same was sent only on 16.10.1995 to the FSL Examiner and during these nine days where and in what condition the samples were lying, there is absolutely no evidence;

(iv) the alleged contraband article which was seized was, in fact, ganja in terms of Section 2(iii)(b) of the Act is not proved and therefore, the conviction is bad in law; and

(v) lastly, it has been propounded by learned counsel that the contraband article was never placed before the Special Court during the trial when the prosecution witnesses were being examined and therefore, in view of two decisions of the Supreme Court, Jitendra and Another Vs. State of M.P., and Ashok @ Dangra Jaiswal Vs. State of M.P., no conviction for the charge u/s 20 of the Act can be accorded.

On the aforesaid grounds it has been submitted by learned counsel for the appellant that by allowing this appeal the impugned judgment of conviction and order of sentence be set aside and the appellant be acquitted.

On the other hand, learned Public Prosecutor argued in support of the impugned judgment and prayed that the appeal be dismissed.

Having heard learned counsel for the parties I am of the view that this appeal deserves to be allowed.

Regarding Point No. (i)

On bare perusal of the record of the learned Special Court nowhere it is gathered that any written information was ever sent to the superior officer within 72 hours from the time when the information was noted down in writing. The Seizing/Investigating Officer Mahendra Singh Karchuli (PW-3) himself has admitted in para-2 of his examination-in-chief that only wireless message was sent and thus, there is non-compliance of the provision of Section 42 of the Act.

Regarding Point No. (ii)

On going through the entire record of the learned Special Court nowhere it is gathered that any Panchnama of sealing the alleged sample of contraband article was ever prepared. The document of Ex.P-2 is the seizure memo of the contraband article and from this document only this much is gathered that 100 grams of ganja was taken out from the bulk for sample purposes. Hence, there is absolutely no evidence on record that 100 grams of the alleged contraband article which was taken out from the bulk was ever sealed and in the sealed condition it was sent to the Malkhana of police station and from there to FSL Examiner.

Regarding Point No. (iii)

On bare perusal of the seizure memo (Ex.P-2) as well as the testimony of the Seizing/Investigating Officer it is gathered that the alleged contraband article was seized on 7.10.1995 but it was sent only on 16.10.1995 to the FSL Examiner since this date is appearing from its report Ex.P-12. During this long period of nine days where the alleged contraband article was kept and in what condition, there is absolutely no evidence and no document has been placed on record in that regard and therefore, changing of the article in the police station cannot be ruled out.

Regarding Point No. (iv)

On bare perusal of seizure memo (Ex.P-2) only this much has been mentioned that the suitcase (attachi) is containing three kilograms of ganja. The description of ganja, according to its definition prescribed in the Act, has not at all been mentioned. It would be pertinent to mention here that the seizure memo (Ex.P-2) was prepared by senior police officer and not by an ordinary person. The ganja has been defined in Section 2(iii)(b) of the Act, according to which, ganja would mean the substance having flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever name they may be known or designated. However, when the sample was received by the FSL Examiner on 16.10.1995 the substance which was found in the sealed packet was having flowering and fruiting tops. This Court fails to understand that when in the seizure memo this description is not mentioned, there are possibilities that when the sample was lying in the police station it was interpolated and changed by keeping the actual ganja and thereafter it was sent to the Chemical Examiner.

Regarding Point No. (v)

On bare perusal of the statement of the Seizing/ Investigating Officer nowhere it is gathered that the contraband article which is alleged to have been seized from the possession of the appellant was ever placed before the Special Court and therefore, according to me it is fatal to the prosecution in view of the aforesaid two decisions of the Supreme Court Jitendra (supra) and Ashok alias Dangra (supra). Hence, the conviction of appellant u/s 20 of the Act cannot be upheld.

Apart from what I have held hereinabove, although it is mentioned in seizure memo (Ex.P-2) that the weight of ganja was three kilogram but there is no Panchnama that it was weighed at the spot and therefore, it raises heavy doubt that the contraband article which is alleged to be a ganja was, in fact, having weight of three kilogram.

In the present case, the prosecution has examined only three witnesses. The first two witnesses, Siyaram (PW-1) and Ramlakhan (PW-2) are the witnesses of seizure of alleged contraband article but they have not at all supported the case of the prosecution. So far as the evidence of Investigating/Seizing Officer is concerned, there are several infirmities in his statement which I have pointed out hereinabove and therefore, taking into account the cumulative effect, I am unable to uphold the conviction of appellant. Resultantly, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from the charge u/s 20 of the Act. He is on bail, his bail bonds stand discharged. The amount of fine, if deposited, be refunded to him.