Dawood Kosla vs State of Madhya Pradesh

G.S. Solanki, J.—The appellants have preferred this appeal under Section 374(2) of Code of Criminal Procedure being aggrieved by the Judgment dated 20.9.2011 passed by Special Judge, N.D.P.S. Act, Anooppur, District Anooppur in Special Case No. 9/2010 whereby the appellants have been convicted under Section 20(b)(ii)(C) of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ''NDPS Act'') and have been sentenced to undergo Rigorous imprisonment for 10 years each and fine of Rs. 1,00,000/-, in default they shall further suffer to RI for 3 years.

The facts, in short, giving rise to this appeal are that on 15.9.2006 at about 1.10 pm, Sub Inspector J.P. Patel (PW10) received a secret information in regard to the fact that in village Mahuda a Mini Truck 709 bearing Registration No. CG-04/ZB/2396 loaded with Ganja was stucked in mud and two boys, who are the outsiders, were trying to pull out the aforesaid truck from mud. The secret information has been recorded in Rojnamcha Sanha No. 529 Ex. P/26 by J.P. Patel (PW10). Further a Panchnama Ex. P/22 of secret information was prepared in presence of Head Constable Pushpraj Singh and Constable Suresh Kumar. The same has been forwarded to the senior officer S.D.O.(P), Anooppur by Constable No. 273, Sanjay Shrivas. This fact has been duly recorded in Rojnamcha Sanha vide Ex. P/27. Thereafter, J.P. Patel proceeded to the place of incident along with police force. The said fact was recorded in Rojnamcha Sanha Ex. P/29. They reached to village Mahuda at about 2.30 pm and found that one Mini Truck No. CG-04/ZB-2396 was stucked in mud. Two boys were trying to pull out the aforesaid truck. Panch witness Ramashankar Tiwari (PW1) and one Baburam were called there. Accused/appellants were informed to the secret information and thereafter a panchnama for performing the search has been prepared before panch witnesses Ex. P/3. Thereafter a search of the aforesaid truck was made in presence of appellants and 27 polythene packets of containing contraband (ganja) were recovered which was concealed in a box which was bolted with nut bolt, between the back side of driver seat and the trolley of the truck. Panchnama Ex. P/5 has been prepared in this regard. Witness Kamta Prasad (PW5) was called for weighing the aforesaid contraband. The aforesaid contraband was total 298 kilograms. In this regard a panchnama was prepared Ex. P/9. Out of the aforesaid contraband, 17 packets ad-measuring 164 kilograms contraband along with a permit, insurance and fitness certificate of the vehicle were seized from the possession of appellant Dawood Kosla. In this regard seizure panchnama were prepared vide Ex. P/13. Remaining 10 packets ad-measuring 134 kilograms of contraband was seized from the possession of Neelanchal Kate and seized panchnama has been prepared vide Ex. P/14. Two packets of samples of 500 gms. each have been taken from seized contraband (ganja). Same has been sealed before the panch witnesses and sent to Forensic Science Laboratory, Sagar by Constable Sanjay Shrivas along with covering memo of Superintendent of Police, Anooppur dated 17.9.2006 Ex. P/36. Ex. P/37 is the receipt of depositing the aforesaid articles in Forensic Science Laboratory, Sagar. After returning from the spot, a panchnama of seizure and other proceedings have been recorded in Rojnamcha Sanha No. 540 as Ex. P/32. The special report has been sent to Superintendent of Police on 16.9.2006 as Ex. P/61. Photographs of proceedings have been taken by Dwarka Prasad Sen (PW4). The appellants were arrested vide arrest memo Ex. P/20 and Ex. P/21 respectively. Remaining contraband has been deposited in Malkhana of Police Station, Anooppur. Same has been produced before the Court during trial and exhibited as articles C to Z and articles C-1, D-1, and E-1. As per report of Assistant Chemical Examiner of Forensic Science Laboratory, samples were containing Ganja.

After completion of aforesaid investigation, appellants were charge-sheeted before the Special Judge, N.D.P.S. Anooppur.

Learned Special Judge framed the charges under Sections 8/ 20(b)(ii)(C) of N.D.P.S. Act against the appellants. Appellants abjured their guilt and pleaded that they have been falsely implicated and further pleaded that are innocent. When they were returning from Allahabad, someone had stolen their belongings, therefore, they were going towards their village. Police has called them and falsely implicated in the case.

After appreciation of evidence on record, they have been convicted and sentenced, as mentioned hereinabove.

Learned counsel for the appellants submitted that trial Court has committed illegality in appreciating the evidence in it''s proper perspective. It is further submitted that contrabands were not seized from the conscious possession of appellants. Mere presence of appellants near the vehicle would not amount to their conscious possession. Trial Court had not considered the aforesaid aspect of the case, therefore, prays for setting aside the judgment passed by the trial Court.

On the other hand, learned counsel for the State justified and supported the impugned judgment and finding of the trial Court.

I have perused the impugned judgment, evidence and the other materials on record.

J.P. Patel (PW10) stated that he received a secret information on 15.9.2006 that a Mini Truck 709 bearing Registration No. CG-04/ZB-2396 was stucked in mud at road side of village Mahuda loaded with Ganja and two boys were trying to pull out the same. This information has been recorded in Rojnamcha Sanha No. 529 Ex. P/26. It is further stated that he apprised his superior officer SDO(P), Anooppur by telephonically as well as through constable Sanjay Shrivas. Thereafter, he went to the spot along with Sup Inspector R.K. Yadav (PW9) and other police force, where he found that a truck was stucked in mud on the road side of village Mahuda and appellants were trying to pull out the same. On inquiry they disclosed that they belonged to Orissa. In this regard a Panchnama Ex. P/55 was prepared in presence of R.K. Yadav (PW9) and Suresh Kumar. He gave a notice for search to the appellants and prepared Panchnama Ex. P/3 in presence of panch witnesses. Thereafter he made a search of aforesaid truck wherein he found a box which was bolted behind the driver seat wherein 27 polythene bags were concealed in a box and bolted by nut bolt. He prepared the panchnama Ex. P/5. Thereafter, he called witness Kamta Prasad (PW5) for weighing the aforesaid seized article. After weighing the said article he found that the same was ganja ad-measuring 298 kilograms. He prepared the seizure memo Ex. P/13 wherein 17 packets ad-measuring 164 kilograms has been seized from the possession of appellant no. 1 Dawood Kosla and remaining 10 packets ad-measuring 134 kilograms has been seized from the possession of appellant no. 2 Neelanchal Kate vide seizure memo Ex. P/14. He further stated that seized article was identified as Ganja before panch witnesses. In this regard a panchnama Ex. P/7 has been prepared. Thereafter appellants were arrested and seized articles were deposited in the Malkhana of Police Station which has been duly supported and proved by witness Head Constable Pushpraj Singh (PW2), who filed a register of Malkhana Ex. P/25 and Rojnamcha Sanha wherein entry of depositing the aforesaid articles vide Ex. P/13 was made. Thereafter on 17.9.2006, samples were taken from the aforesaid articles. Same has been proved by witness Pushpraj Singh and panch witnesses as Ex. P/ 35. Samples were sent to Forensic Science Laboratory, Sagar along with memo of Superintendent of Police Ex. P/36. Receipt of Forensic Science Laboratory, Sagar is Ex. P/37.

Factum of search of vehicle and seizure was duly supported by panch witnesses namely Ramashankar Tiwari (PW1) and Sub Inspector, R.K. Yadav (PW9). Though all these witnesses J.P. Patel (PW10), R.K. Yadav (PW9), panch witness Ramashankar Tiwari (PW1) were extensively examined on behalf of appellants but they remained undeviated on the point of search and seizure. As far as defence of appellants is concerned, they pleaded that they were travelling from Allahabad to Shahdol from where their belongings were stolen, therefore, they were going towards their village by road. Police has called them for pulling out the truck and falsely implicated them. But their defence appears to be false because right from beginning it was a secret information regarding these two persons and thereafter when seizure officer J.P. Patel (PW10) and R.K. Yadav (PW9) reached to the spot, they found the appellants there. The aforesaid version is also duly supported by panch witness Ramashankar Tiwari (PW1).

It is true that driver of the truck was went away in search of taking the aid for pulling out the truck and thereafter he absconded but at the same time these two appellants, who are resident of Orissa, were found with the aforesaid truck and huge contraband of 298 kilograms has been seized at their instance which shows that the aforesaid contraband was in their personal knowledge. In these circumstances, it cannot be said that appellants were not found in conscious possession of contraband. Though they pleaded that they were travelling from Allahabad to Shahdol on train but they had not produced any railway tickets in this regard. It is highly improbable that two panch witnesses and villagers could falsely implicate the unknown persons. It is duly proved on record that seized articles were properly sealed and deposited in the Malkhana and samples were took out in presence of panch witnesses. Assistance Chemical Examiner, Sagar found that samples were containing Ganja. It is not the case where remaining seized articles has not been produced before the trial Court. On the contrary, the articles were produced before the trial Court and exhibited as articles C to Z and articles C-1, D-1 and E-1.

On appraisal of evidence on record specially the statements of J.P. Patel (PW10), Sub Inspector J.K. Yadav (PW9), panch witness Ramashankar Tiwari (PW1) and other witnesses like Dwarka Prasad Sen (PW4), who prepared the photographs and Kamta Prasad (PW5), who weighed the articles, I am of the view that trial Court had not committed any illegality in recording the conviction against the appellants under Section 8/ 20(b)(ii)(C) of N.D.P.S. Act.

As far as sentence is concerned, since the appellants were found in possession of huge quantity of 298 kilograms of contraband (Ganja) which comes under the category of more than commercial category for which minimum sentence 10 years imprisonment and fine of Rs. 1,00,000/- is provided and trial Court had not committed any illegality in awarding the jail sentence of 10 years and fine of Rs. 1,00,000/-, therefore, no case is made out for any interference in the sentence also.

Considering the facts and circumstances of the case along with the reappraisal of evidence as mentioned hereinabove, I am of the view that trial Court had not committed any illegality and no case is made out for any interference. The appeal is liable to be dismissed and is hereby dismissed.

Record of the trial Court be sent back immediately along with a copy of this judgment.