Bhura vs State of Madhya Pradesh

N.K. Gupta, J.—This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 11/9/1996 passed by the Special Judge under Narcotic Drugs and Psychotropic Substances Act, Chhattarpur in Special Case No. 141/1994, whereby the appellant was convicted for commission of offence punishable u/s 20 of the Narcotic Drugs and Psychotropic Substances Act (for short "NDPS Act") and sentenced for three years'' rigorous imprisonment with fine of Rs. 3,000/-. In default of payment of fine, six months'' RI was also directed. The prosecution''s case, in short, is that on 30.10.1994 SHO of Police Station Sarvai Shri Mukesh Tiwari (PW-6) went to arrest one Laxman Lohar in his area. During his visit, he was intimated that the appellant had grown some plants of Ganja in his house situated at Khaminkheda (Police Station Sarvai District Chhattarpur). He called the independent witnesses Narayan (PW-3) and Seva (PW-4) and went to the house of the appellant. He gave a notice to the appellant for search of his house and with the consent of the appellant, a search took place. In the courtyard he found two big plants and four small plants of Ganja. He also found that some Ganja leaves were lying on a jute bag to make them dry. A memo of search was prepared. All the six plants and dried leaves etc. of Ganja were seized by a seizure memo Ex. P-5. The appellant was arrested. The seized Ganja was sealed and it was sent to the Excise Sub Inspector, Laundi for examination of the substance. The Excise Sub Inspector examined the property and gave a report Ex. P-12. He found that the seized property was Ganja. Thereafter the seized property was sent to the Forensic Science Laboratory, Sagar with a letter Ex. P-13 dated 21.11.1994. The FSL, Sagar in its report Ex. P-14 found that all the plants were of Ganja and dried leaves etc. were also of Ganja. After due investigation, a charge sheet was filed before the Special Judge, Chhattarpur.

The appellant-accused abjured his guilt. He took a specific plea that he was residing in a house situated on his field. In the house which was situated in the village, his brother and family members were residing. He had no knowledge about the Ganja. However, no defence evidence was adduced.

The learned Special Judge after considering the evidence adduced by the prosecution convicted the appellant for the offence punishable u/s 20 of the NDPS Act and sentenced as mentioned above.

I have heard the learned Counsel for the parties.

The learned Counsel for the appellant has submitted that the Investigation Officer did not comply the provisions of Sections 42 and 50 of the NDPS Act. No memo was prepared by the Investigation Officer regarding sealing of the seized property, and therefore it cannot be said that the property sent to the Excise Sub Inspector or FSL Sagar was the same, which was seized from the appellant. All the independent witnesses including Bhura Prasad (PW-2), Narayan (PW-3), Seva (PW-4) and Lakhan Lal (PW-5) have turned hostile, and therefore the single testimony of the Investigation Officer Shri Mukesh Tiwari cannot be believed. Therefore, it is prayed that the appellant may be acquitted.

In rebuttal, the learned Counsel for the State has supported the decision of the trial Court. He has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct and there is no basis by which any interference may be done in the appeal.

After considering the submissions made by learned Counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal of the appellants can be accepted? And whether the sentence passed by the trial Court can be reduced?

Except the Investigation Officer Shri Mukesh Tiwari (PW-6), all the independent witnesses have turned hostile. They did not support the prosecution case. Shri Mukesh Tiwari has stated that he went to the house of the appellant and found that two big plants and four small plants of Ganja were grown in the courtyard. Also some Ganja leaves, fruits tops, flowering etc. were found on a jute bag kept for drying them, and therefore he seized that property by seizure memo Ex. P-5. Initially when an intimation was received to the SHO Sarvai, then it was his duty to obtain a search warrant from the concerned DSP. No reason was mentioned by the Investigation Officer Shri Mukesh Tiwari as to why he did not take any search warrant or he did not inform his superior officer about the information. If the plants were grown by the appellant, then those could be seized on the next day after taking a search warrant. It is apparent that Shri Mukesh Tiwari flouted the provisions of Section 42 of the NDPS Act.

Under the provisions of Section 50 of the NDPS Act, it was the duty of the Investigation Officer to inform the accused about his rights that he could get his search either by a Magistrate or a Gazetted Officer. But looking to the various memos prepared by the Investigation Officer, it appears that no such opportunity was given by Shri Mukesh Tiwari to the appellant, and therefore it is also apparent that he did not comply with the provisions of Section 50 of the Act.

In the cross examination, the Investigation Officer has accepted that he had no knowledge that the concerned house was of the appellant or his brother. He did not collect the concerned entry of the Panchayat or revenue record to show that the house was in exclusively possession by the appellant. A doubt is created that the house in which such contraband substance was found was in the possession of the brother of the appellant, and therefore by the testimony of the Investigation Officer, it is not proved that the appellant had an exclusively possession either of the alleged plants or Ganja leaves etc. When an offence is to be punished with a severe sentence, then investigation for such a grave offence is to be done carefully and no reason of doubt should be left by the Investigation Officer. However, a doubt is created that the contraband substance was not in exclusively possession of the appellant.

As argued by the learned Counsel for the appellant, it is also apparent that the Investigation Officer did not seal the seized articles at the spot. The Investigation Officer in his cross examination has accepted that he left the Police Station to arrest one Laxman Lohar, and therefore he did not have any material to seal the entire property. If the report of the FSL Ex. P-14 is perused, then it would be clear that there were two big plants of Ganja sent to the FSL Sagar having length approximately 7 ft. Looking to the length of such plants, it was not possible for the Investigation Officer to seal them at the spot, and therefore it was his duty to prove that the seized property was sent for its analysis after due sealing. According to the report Ex. P-12, it appears that initially the entire material was sent to the Excise Sub Inspector for examination, and thereafter it was sent to the FSL. The material should have been sealed at the spot or at the Police Station soon after the seizure. When it was sent to the Excise Sub Inspector, it was to be re-sealed by the Excise Sub Inspector and that material should be sent to the FSL thereafter. According to the FSL report Ex. P-14, it appears that some seals were found by the officers of the FSL as shown in the letter of the Superintendent of Police, Chhattarpur. It is nowhere mentioned in the report Ex. P-14 that the various materials were received with the seals of the Excise Sub Inspector, Laundi. The report clearly indicates that the seal done by the Excise Sub Inspector was opened and material was re-sealed and thereafter it was sent to the FSL.

It was the duty of the Investigation Officer to prove the handling of the material alleged to be seized on each and every day till it was reached to the FSL. It was for the Investigation Officer to prove that the material was taken to the Police Station properly and sealed. Thereafter it was sent to the Excise Sub Inspector and received back in a sealed condition and thereafter it was sent to the FSL in a sealed condition.

According to the FSL report Ex. P-14 it is apparent that the Laboratory had received the sealed packets on 7.12.1994, whereas the letter Ex. P-13 prepared by the Superintendent of Police Chhattarpur on 21.11.1994. The Investigation Officer Shri Mukesh Tiwari could not give any explanation to as where that material was kept for those 14 days. He has accepted in para 8 of his statement that upto 22.11.1994 the alleged Ganja was kept in the Police Station and on the same very day it was dispatched to the FSL with a Constable. The material was sent from the place of District Chhattarpur to the FSL at Sagar. Any person could travel from Chhattarpur to Sagar within few hours and it was not possible that the material dispatched on 22.11.1994 could reach to the FSL on 7.12.1994. Under such circumstances, it is highly doubtful that where that material was kept for 14 days before it reached to the FSL. In this connection the judgment passed by the Single Bench of this Court in the case of Govind Vs. State of M.P., ] may be referred, in which it was held that there was an unexplained delay of 14 days in sending the sample to the FSL, and therefore the possibility cannot be ruled out that the entire material was changed by the Investigation Officer. Under such circumstances, the Investigation Officer could not prove that the property which was received in the FSL was the same, which was seized from the spot, and therefore the report of the FSL cannot be read against the appellant. Similarly, the report Ex. P-12 given by the Excise Sub Inspector was not proved at all. The report Ex. P-12 was based upon the physical examination, which is not sufficient under the NDPS Act. Hence, it is not proved beyond doubt that the alleged seized substance was Ganja.

If the entire evidence adduced by the prosecution is considered, then the Investigation Officer flouted the provisions of Sections 42 and 50 of the Act. He could not prove that the plants and Ganja leaves were in possession of the appellant. In absence of the proper sealing and the delay in dispatching the alleged Ganja to the FSL, it is not proved beyond doubt that the substance alleged to be seized from the appellant was either Ganja leaves or Ganja plants. Therefore, the appellant could not be convicted for the offence punishable u/s 20 of the Act. The learned Special Judge has erred in convicting him for the aforesaid offence.

In the result, the appeal filed by the appellant can be accepted in toto. Consequently, it is allowed. The conviction as well as the sentence directed against the appellant for the offence u/s 20 of the NDPS Act is hereby set aside. The appellant is acquitted from the said charges. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.

At present the appellant is on bail, his presence is no more required, and therefore it is directed that his bail bonds shall stand discharged. A copy of this judgment be sent to the trial Court along with its record for information and compliance.