Bheema Banjara vs Union of India

P.K. Jaiswal, J.—Appellant Bheema has filed this appeal u/s 374 Cr.P.C., being aggrieved against the judgment dated 14.12.2007, passed by Special Judge (N.D.P.S. Act), Neemuch in Special NDPS Case No. 26/2004, convicting the appellant u/s 8/18(B) of the Narcotic Drugs & Psychotropic Substances Act, 1985 (in short ''the Act'') and sentencing him to undergo 10 years'' R.I. with fine of Rs. 1,00,000/-; in default of fine he is to undergo additional R.I. for 1 year. Prosecution story in short is that on 5.6.2004 Parmand Meena, Narcotics inspector of Divisional Office of Narcotics Commissioner, Neemuch received an information that appellant Bheema was driving his motorcycle (Boxer Bajaj) and was carrying contraband opium for delivering the same to some unknown smuggler between 3 to 5 AM on 5.6.04. After receiving information Parmanand Meena prepared Panchnama of the information and immediately thereafter discussed the matter with his senior who directed one I.C. Panwar, Inspector to form a team and take appropriate action. The team was formed under the guidance of Superintendent Ashok Sharma, head of the team and he along with J.P. Panwar and other members of the team including two independent witnesses reached ''Bhadwa Mata'' square at 3.15 AM. At 3.30 PM they saw that one motorcycle is coming towards Manasa side on which two persons were sitting. J.C. Panwar tried to stop the motorcycle by giving signal of torch light, but before the motorcycle stopped, the pillion rider ran away from the motorcycle. He was followed but due to darkness he succeeded in running from there. Thereafter, J.C. Panwar informed him of his personal information and also introduced himself as well as appraised him that in accordance with law he was entitled to be searched before any gazetted officer or a Magistrate. He also asked about his name, the person who was driving the motorcycle has introduced himself as Bheema. During search they found opium from a fertilizer bag which was lying on the handle of the motorcycle. They identified the said contraband by smell and test. On weighing 4.900 Kgs of opium was recovered from the possession of the appellant. Two samples of 25 gms each were drawn from the seized contraband and were immediately sealed, slips were fixed on it and signatures of the witnesses were also obtained on the Panchnama etc. Samples were marked as Article A-1 and A-2. Rest of the opium 4.850 Kgs was sealed separately and was marked as Article-A. The motorcycle was seized and the appellant was arrested. Articles A-1 & A-2 were sent to Government Opium & Alkaloid Factory, Neemuch and the seized contraband was sent to Departmental Malkhana and on returning FIR Ex.P/18 vide Crime No. 6/2004 was registered. After collecting the material evidence and examining the witnesses confessional statement of the appellant was recorded in which he admitted the crime. An application was filed before the Executive Magistrate & Tehsildar u/s 52A of the Act. After completing the said proceeding copy of order was filed before the trial Court vide Ex.P/21. Photographs and negatives were also filed before the trial Court vide Ex.P/22 to P/34. After completion of the enquiry challan under Sections 8/18 & 8/29 of the Act was filed before the competent Court.

During trial charge was framed u/s 8/18 (B) of the NDPS Act. The appellant abjured the guilt and claimed trial. Thereafter, he was subjected to trial. His statement u/s 313 Cr.P.C. was recorded, in which he deposed that he is innocent and has falsely been implicated in the alleged offence. He does not know motorcycle driving and by force his signatures were obtained on all the documents.

The learned trial Court after recording the evidence and after hearing the parties recorded a finding that the prosecution was successful in proving the observance of Sections 42 and 50 of the Act and after holding the appellant guilty, as referred to above, convicted and sentenced the appellant to the extent indicated herein above. Being aggrieved by the said judgment, the appellant is before this Court.

Shri Sanjay Sharma, learned counsel for the appellant has submitted that PW2 Govind Singh and PW6 Vikram Singh have turned hostile and they have not supported the case of the prosecution. He also drew my attention to the statements of PW4 Ashok Kumar Sharma, PW5 G.S. Panwar and PW8 Chhotelal and submitted that the prosecution has failed in proving that in accordance with the provisions of Section 52A of the Act, the contraband articles were destroyed or destructed with the permission of the court. According to him, the burden is upon the prosecution to prove that the article which was seized, in fact, was contraband article and to prove that particular article which was recovered and seized either at the instance or from the possession of the accused is always heavy upon the prosecution in a case where the technicalities provide and present a material before the court. It is submitted by him that if the fact regarding destroying or destruction of the article is not proved before the court then the prosecution is obliged to produce the article so seized to convince the court that particular contraband article was seized and the prosecution had successfully proved that the samples were drawn from the said lump of the contraband articles and the samples could be certified to be contraband articles. It is also submitted by him that Section 52A of the Act requires satisfaction of the concerned court and the same can be disposed of under the directions of a court. He also drew my attention to the Ex.P/21 (proceedings of the Executive Magistrate) and submitted that from the aforesaid proceedings it cannot infer that article was disposed of under the directions of the court or substantive compliance of Section 52A of the Act has been made. He submitted that PW8 has not certified or proved the contents of Ex.P/21 nor has proved before the court that any order was obtained from any court or any Executive Magistrate or under the directions of the Central Government under the authority of the circulars made by the Central Government he had destroyed the contraband articles. It is further submitted by him that Ex.P/21 has not been proved by the Executive Magistrate, the person who had passed the order but has not been proved by one Chhotelal (PW8), who had nothing to do either with the original application filed u/s 52A of the Act or the order passed by the Executive Magistrate. It is also submitted by him that in absence of production of articles in the court and proof of the fact that particular articles were so seized from the possession of the accused persons, the accused persons could not be convicted.

Shri Vikas Jain, learned counsel for the CBN, on the other hand, submitted that non production of contraband article would not affect the credibility and veracity of the statements of witnesses. According to him, there is nothing on record to prove that samples A-1 & A-2 were not drawn from the articles which were seized from the accused; that Ex.P/2 is an order passed by the Executive Magistrate, therefore, production of said document is proof of the same. He also drew my attention to Clause of Section 52A(1) of the Act and submitted that before passing the order Ex.P/21 photographs of the articles A-1 & A-2 were taken and all those photographs (Ex.P/22 to P/ 34), sufficient compliance of the provisions of Section 52A of the Act has been made. It is submitted that in accordance with the circular whenever the Narcotic Drugs & Psychotropic Substances are seized then having regard to the hazardous nature of the drugs etc., the same can be disposed of by such officer and in such a manner as the Central Government may prescribe and photographs of the said disposed of contraband is on record. With the aforesaid he submitted that there is no violation of Section 52A of the Act. He, lastly, submitted that sufficient compliance of mandatory provisions of the Act has been made and prayed for dismissal of the appeal.

I have heard the learned counsel for the parties and perused the record of the case.

Section 52A of the Act deals with ''disposal of seized Narcotic Drugs & Psychotropic Substance''. Under sub-section (1), the Central Government by a Notification in the Official Gazette is empowered to specify certain narcotic drugs or psychotropic substances, having regard to the hazardous nature, vulnerability to theft, substitution, constrains of proper storage space and such other relevant considerations, so that even if they are material objects seized in a criminal case, they could be disposed of after following the procedure prescribed in sub-sections (2) and (3). If the procedure prescribed in sub-sections (2) and (3) of Section 52A is complied with and upon an application, the Magistrate issues the certificates contemplated by sub-section (2), then sub-section (4) provides that, notwithstanding anything to the contrary contained in the Indian Evidence Act, 1872 or the Code of Criminal Procedure, 1973, such inventory, photographs of narcotic drugs or substances and list of samples drawn under sub-section (2) of Section 52A as certified by the Magistrate, would be treated as primary evidence in respect of the offence.

In the case in hand, PW7 Parmanand Meena had received the information. He, after recording the information in the daily diary (jkstukepk lkUgk), forwarded the same to Ashok Kumar Sharma, Superintendent, Narcotics (PW4), who in turn directed to constitute raiding party under the supervision of G.C. Panwar (PW5). From the statements of PW4, PW5 and PW7 it appears that they had accosted the present appellant. They had given him the information about his right to be search before the Gazetted Officer or the Magistrate. They had taken search of the accused with his consent and had obtained certain articles from him. The articles was found to be 4.900 Kgs. Two samples were drawn. Each of the samples was marked as A-1 & A-2, those were properly tied and, thereafter, the samples were properly sealed.

From the statements of PW4 and PW5 it also appears that the Panchnamas were drawn and, thereafter, the first information report was also lodged. Information etc., were sent and the case was registered against the appellant. PW8 Chhotelal, who has been appointed as Investigating Officer by Ashok Kumar Sharma (PW4) in paragraph 4 of his statement has deposed that proceeding for disposal of the property u/s 52A of the Act was initiated before the Executive Magistrate, tehsil Neemuch. Ex.P/21 is order-sheet of order dated 30.11.2004. It is also stated by him that before disposal of the property photographs were taken and the same have been deposited along with their negatives before the trial Court. Ex.P/22 to P/34 are those photographs and order.

Chhotelal (PW8) Investigating Officer of the case in his statement very categorically stated that the article ''A'' was found to be 4.9 Kgs of opium. Two samples of 25 Gms each were drawn and were marked as Annexure-A1 & A2. Those were properly tied and, thereafter, samples were properly sealed. This witness in paragraph 4 of his statement very categorically stated that the psychotropic substance has been disposed of with the permission of the Executive Magistrate in accordance with Section 52A(1) of the Act and in accordance with the circular issued by the Central Government. He also deposed that the Narcotics substances disposed of in the same manner as provided in the circular issued by the Central Government. On this issue there is no cross examination by the appellant. It is stated by PW8 that there is no violation of Section 52 of the Act. As per Ex.P/21, PW8 filed an application u/s 52A of the Act before the Executive Magistrate-cum-Tehsildar and, thereafter, the Executive Magistrate had passed the order on 30th November, 2004 (Ex.P/21). The person, who had made an application u/s 52A of the Act has been examined before the trial Court as PW8.

In the matter of Jitendra and Another Vs. State of M.P., , the Supreme Court had observed that in the trial, it was necessary for the prosecution to establish by cogent evidence the accused. The Supreme Court further observed that the best evidence would have been seized material, which ought to have been produced during the trial and marked as material objects. The Supreme Court was of the opinion that there was no explanation for this failure to produce the same. According to the Supreme Court, mere oral evidence as to their features and production of Panchnama does not discharge the heavy burden, which lies on the prosecution, particularly when the offence is punishable with a stringent sentence under the NDPS Act. Taking into consideration the totality of the circumstances, the Supreme Court acquitted the accused.

The observations made in the matter of Jitendra (supra) have been proved by the Supreme Court in the matter of Noor Aga v/s State of Punjab & another, [2008 (2) EFR 707]. In this case also the Supreme Court observed in paragraph 103 that "physical evidence of a case of this nature being the property of the Court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution''s endeavour to prove the fact of possession of contraband from the appellant.

Learned counsel for the appellant heavily placed reliance on the decision of Laxminarayan v/s State of Madhya Pradesh, reported in [2010 (1) EFR 131]. In the case of Laxminarayan (supra) the officer who had filed the application u/s 52A of the Act was not examined before the trial Court. The other witnesses who have been examined by the prosecution before the trial Court, nowhere in their statements, they said that they had made an application u/s 52A of the Act to the Executive Magistrate-cum-Tehsildar and, therefore, this Court observed that if the argument that the bulk quantity was destroyed is accepted, the samples were essential for production as primary evidence for the purpose of establishing the fact of recovery of heroine as envisaged u/s 52A of the Act. In the case in hand samples were taken vide A3 & A4 and photographs were also taken and the same are the part of the record and, thus, there is no violation of Section 52A of the Act.

The counsel for the appellant also did not cross examine the witness on this question. He even did not put a single word about the application filed u/s 52A of the Act or the order passed by the Executive Magistrate drawing of the samples as Articles A3 & A4 or return of the balance contraband articles or destruction of the contraband articles. In view of the aforesaid, in the opinion of this Court the decision cited by the learned counsel for the appellant in the case of Laxminarayan (supra) is distinguishable. As per evidence which has come on record the seized contraband was destroyed as per the prevalent procedure.

The Apex Court in the case of Ajmer Singh v/s State of Haryana [(2010) 2 SCC (Cri.) 475] has held that the testimony of official witnesses, even in absence of its corroboration by independent evidence, can form basis of conviction if Court is satisfied, on careful and cautious appreciation of evidence, that it is otherwise believable. Arrest and recovery made by police would not necessarily be vitiated if Court finds that despite making reasonable efforts, police failed to associate public witnesses with the raid or arrest. The Apex Court has observed the following in Paragraphs 19 and 20 of the judgment which reads as under:

The learned counsel for the appellant has submitted that the evidence of the official witnesses cannot be relied upon as their testimony, has not been corroborated by any independent witness. We are unable to agree with the said submission of the learned counsel. It is clear from the testimony of the prosecution witnesses PW.3, Paramjit Singh Ahalwat, DSP, Pehowa; PW.4, Raja Ram, Head Constable and PW.5 Maya ram, which is on record, that efforts were made by the investigating party to include independent witness at the time of recovery, but none was willing. It is true that a charge under the Act is serious and carries onerous consequences. The minimum sentence prescribed under the Act is imprisonment of 10 years and a fine. In this situation, it is normally expected that there should be independent evidence to support the case of the prosecution. However, it is not an inviolable rule. Therefore, in the peculiar circumstances of this case, we are satisfied that it would be travesty of justice, if the appellant is acquitted merely because no independent witness has been produced.

We cannot forget that it may not be possible to find independent witness at all places, at all times. The obligation to take public witnesses is not absolute. If after making efforts which the Court considered in the circumstances of the case reasonable, the police officer is not able to get public witnesses to associate with the raid or arrest of the culprit, the arrest and the recovery made would not be necessarily vitiated. The Court will have to appreciate the relevant evidence and will have to determine whether the evidence of the police officer was believable after taking due care and caution in evaluating their evidence.

In the present case the trial Court by applying recognized principle of evaluation of evidence has rightly come to the conclusion that the appellant was arrested and opium was recovered from him and he had no licence. I find no good reason to differ from that finding. Other discrepancies are minor and those infirmities cannot led this Court to down turn the truthfulness of the prosecution case.

In the case of Dharampal Singh Vs. State of Punjab, the Apex Court has held that the case of the prosecution cannot be rejected only on ground that independent witnesses have not been examined, in case on appraisal of evidence on record, the Court finds the case of prosecution to be trustworthy. It has come in the evidence of prosecution witnesses that an attempt was made to join persons from public at the time of search, but none were available, therefore, mere absence of independent witness at the time of search and seizure did not render case of prosecution unreliable.

The learned trial Court after placing reliance on the testimony of the PW4, PW5 & PW8 and considering the material evidence on record, was of the opinion that the case of the prosecution was fully established. The view taken by the trial Court is plausible view. All the mandatory provisions of the Act had been complied with by the prosecution. The trial Court has assigned statutory reasons for convicting the appellant u/s 8/21 of the N.D.P.S. Act. We found that no case for reducing the sentence and fine as alternatively prayed by the appellant is made out.

Lastly, it was also submitted by the learned counsel for the appellant that if this Court comes to the conclusion that no case for setting aside conviction is made out by the appellant, then applying the principle of Shantilal v/s State of M.P. (2008) 1 SCC (Cri) 1 sentence of imprisonment in default of payment of fine may be reduced.

On due consideration of the aforesaid facts and circumstances of the case, though the amount of payment of fine of Rs. 1,00,000/-which is minimum as specified in Section 8/18(B) of the N.D.P.S. Act cannot be reduced in view of the legislative mandate, the ends of justice would meet by retaining the order for substantive jail sentence, but the order in default of payment of fine of Rs. 1,00,000/-is reduced to R.I. of 3 months. With this modification of sentence in default of payment of fine the appeal filed by the appellant is partly allowed.