K.Munir S/o Abdul Kadir vs State of M.P.

This criminal appeal has been filed against the judgment dated 5.9.2008 passed by Special Judge (NDPS Act), Ratlam in Special S.T.No.39/2006, whereby the learned Judge convicted the appellant under Section 18(B) of Narcotics Drugs and Psychotropic Substances Act (for brevity hereinafter referred to as NDPS Act ) and sentenced him to undergo ten years RI with fine of Rs.1,00,000/- with default clause.

Brief facts of the case are that on 25.5.2006 at about 12.00 Noon Shivdayal (PW-5) the then ASI, PS, Ringnod, received a secret information from informant that Munir, resident of Kerala would be passing from Hatuniya Kankar Balaji road carrying illegal opium on Yamaha motorcycle bearing registration No.MP-14- BA-4368. On that he wrote the information in Daily Diary and thereafter informed SDOP, Police, Jaora on phone and called two independent Panch witnesses Shree Pal Jain (PW8) and Manzoor Beig (PW9) , informed them about the same and made informant information memorandum Ex.P/6 and also prepared memo Ex.P/7 of not getting search warrant and sent the copy of Ex.P/6 and P/7 to SDOP, Jaora through Constable Vijaypal (PW1). Then along with members of police force Kartar Singh, Anil Jain, Santosh Agnihotri, Abhishek Pal, Antar Singh, Dilip Singh Bhadoriya and independent witness Manzoor Beig and Shripal he reached the spot where he apprehended Munir, who was coming from Hanutiya on motorcycle and informed Munir that he had received information that he was carrying illegal opium and wanted to search him and prepared information memo Ex.P/8. After obtaining the consent letter for the

search Ex.P/9 from accused and giving personal search of himself and other party members, he searched accused Munir but did not find any narcotics substance and prepared search memo Ex.P/10 and Ex.P/11. Then he searched the bag hanging on the shoulder of appellant Munir wherein he found black material in a polythene, seized that material and prepared seizure memo Ex.P/12. on testing that material was found to be opium and prepared testing memo Ex.P/13. Then weighted that material and found it to be 12 Kg. and prepared measure memo Ex.P/14. Then he took two samples of 30 gms. each from that material Article A/1 and placed it in cloth bag, which was stitched and sealed with slip bearing the signatures of the Panch-witnesses and by seal of the Police Station the remaining material Article A/2 (Exhibited in evidence as article B) was also sealed in a separate bag of cloth, which was stitched and sealed with slip bearing the signatures of the Panch-witnesses and by seal of the Police Station and detailed Panchnama Ex.P/15 was prepared and also prepared a memo Ex.P/16 of seal impression. A seizure memo Ex.P/17 of those two samples A/1 and remaining sized material Article A/2 and Yamaha motorcycle No.MP-14- BA-4368 was prepared. Applicant was arrested and arrest memo Ex.P/18 was prepared. He also prepared spot map Ex.P/19.

On interrogation accused Munir informed that he brought 12 Kg.opium from co-accused Vijay. Then he went to village Bholiya in search of co-accused Vijay apprehended him and prepared arrest memo Ex.P/21. The appellant and co-accused Vijay along with the Muddemal opium was taken to the police station Ringnod. After returning to P.S., Ringnod, ASI Shivdayal lodged FIR of the incident. On that FIR Crime No.110/2006 for the offence under Section 8 / 18 and 29 of NDPS Act was registered. at P.S., Ringnodand. Thereafter further investigation was carried out by SHO Ram Singh (PW-6). He again sealed the seized Muddemal and handed it over to Bholanath singh H.C.( PW-7) and recorded the statements of the members of the seizure operation. The Muddemal samples were sent to FSL Rau for chemical analysis through the S.P. Ratlam along with FSL draft Ex.27. Report Ex.28, was received from the Forensic Science Laboratory, wherein 5.17% morphine was found in the seized opium. Thereafter, Police filed charge sheet against the Appellant and co-accused Vijay in the Court of Special Judge Ratlam.

On that Learned Special Judge registered Special Case

No.39/2006 and framed the charge against the applicant for the offences under Section 18(B) of NDPS Act and tried the case against the applicant and other co-accused Vijay Kumar. The appellant denied the charge and took the defence that he is innocent and has been falsely implicated in the case.

Prosecution produced nine witness for proving its case.

(i) Vijaypal Singh (PW-1), and Lalit Gang Shahi (PW3) for proving that after receiving the information Shivdayal (PW5) entered this information in daily diary and sent to superior officer SDPO Jaora and complied with the provisions of section 42 of the Act.

(ii) Ramchandra (PW-2) for sending the copy of F.I.R., Seizure Memo, and Arrest memo to the court and sending sample from P.S. Rignod to FSL Indore,

(iii) Narendra Singh Pawar (PW4) for proving Ex.P/5 list of mobile numbers of persons with whom appellant talked.

(iv) Inspector Shiv Dayal (PW-5) for proving the search and seizure of the contraband.

(v) Ram Singh (PW-6) for recording the statement of witness and sending the sample of seized opium to FSL, Rau, Indore.

(vi) Bholanath Singh (PW-7) for depositing the seized article, motorcycle and sample and seized opium in P.S., Ringnod.

(vii) Independent witnesses Shri Pal Jain (PW-8) and Manzoor Beig (PW-9) did not support the prosecution case, however, relying on the evidence of Inspector Shiv Dayal and other witness learned Special Judge held the appellant guilty and convicted and sentenced him as mentioned above. Aggrieved by his conviction and sentence, accused/appellant has filed this appeal.

Learned counsel for the appellant submitted that the independent witnesses before whom the said seizure of contraband was made, did not support the case of prosecution. Thus, conviction cannot be based only on the statement of Shivdayal (PW-5), who is Police Officer. The compliance of Section 42, 50, 55, 57 of the NDPS Act is also not proved. The seized article was not produced in the Court at the time of filing of charge sheet, at the time of recording statement of prosecution witnesses. In absence of the same conviction of the appellant is not sustainable. Learned trial Court committed mistake in finding appellant guilty

On the other hand learned counsel for the state submitted that

the evidence of Inspector Shivdayal (PW-5) was reliable. His evidence was corroborated by the seizure memorandum and other document Ex.P/6, to Ex.P/18 and FSL report Ex.P/28, whereby it was confirmed that the seized article was opium. The opium was not recovered from personal possession. The opium was seized from the bag hanging on the shoulder of the accused. In that circumstance provisions of Section 50 of NDPS Act are not applicable in the case. Learned trial Judge rightly held the appellant guilty.

Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellant under Section 8 and 13(2) of NDPS Act are liable to be set aside for the reasons stated in the memo of appeal.

In this regard Shivdayal (PW-5) deposed that on 24.5.2006 he was posted as ASI at P.S., Ringnod and at that time R.S.Meda was S.H.O. at P.S., Ringnod. On that day he was out of station. At about 1.30 PM he had received the information that Munir, resident of Kerala, would be passing through Hatuniya Kankar Balaji road carrying illegal opium on Yamaha motorcycle bearing registration No.MP-14-BA-4368. On that he wrote the information in Daily Diary and thereafter he informed about it to the SDOP, Police, Jaora on phone and called two independent Panch witnesses Shri Pal Jain and Manzoor Beig and informed them about the same and made informant information memorandum Ex.P/6 and also prepared memo Ex.P/7 of not getting search warrant and sent the copy of Ex.P/6 and P/7 to SDOP, Jaora through Constable Vijaypal PW1. Then he reached the spot along with other members of Police force viz. Kartar Singh, Anil Jain, Santosh Agnihotri, Abhishek Pal, Antar Singh and Dilip Singh Bhadoriya and independent witness Manzoor Beig and Shripal, where he apprehended Munir, who was coming from Hanutiya on motorcycle and informed Munir that he had received information that he was carrying illegal opium and wanted to search him and prepared information memo Ex.P/8. After obtaining the consent letter for the search from accused Ex.P/9 and giving personal search of himself and other party members to him, searched accused Munir but did not find any narcotics substance and prepared search memo Ex.P/10 and Ex.P/11. Then he searched the bag hanging on the shoulder of appellant Munir where he found black material in a polythene. He seized that material and prepared seizure memo Ex.P/12. On testing that material was found

to be opium and prepared testing memo Ex.P/13. He then weighted that material and found it to be 12 Kg. and prepared measure memo Ex.P/14. Then he took two samples of 30 gms.each from that material Article A/1 and placed it in a bag of cloth, which was then stitched and sealed with slip bearing the signatures of the Panch- witnesses and by the seal of the Police Station and the remaining material Article B was also sealed in a separate bag of cloth, which also was stitched and sealed with slip bearing the signatures of the Panch-witnesses and by seal of the Police station and Detailed Panchnama Ex.P/15 was prepared. He also prepared a memo Ex.P/16 of seal impression, a seizure memo Ex.P/17 of those two samples A/1 and remaining seized material Article A/2 and of Yamaha motorcycle No.MP-14-BA-4368. Appellant was arrested and arrest memo Ex.P/18 was prepared. He also prepared spot map Ex.P/19. On interrogation accused Munir informed that he brought 12 Kg. opium from co-accused Vijay. Then he went to village Bholiya in search of co-accused Vijay and after apprehending him prepared arrest memo Ex.P/21. Thereafter he took appellant and co-accused Vijay along with the Muddemal opium to the Police Station Ringnod, where he lodged FIR of the incident Ex.P/22.

Although, independent witnesses Shripal Jain (PW-8) and Manzoor Baig (PW-9) before whom the said seizure of contraband was made, did not support the case of prosecution, but Both the witnesses admitted their signatures on Ex.P/6 to Ex.P/20. Had Shivdayal not carried out any proceeding in front of them, why did they sign those documents. Shripal Jain (PW-8) also admitted that on 25.5.2006 ASI Dohre informed him that one person coming from Kakar Balaji was carrying opium and prepared Ex.P/6. He also admitted that he signed Ex.P/7 to Ex.P/18, Ex.P/20 and Ex.P/21, which shows that independent witnesses are not telling the truth. So only on the ground that the statement of Shivdayal does not corroborate with the statements of Shripal Jain (PW-8) and Manzoor Beig (PW-9) can not be disbelieved. Apex court in the case of Modan Singh v. State of Rajasthan, reported in AIR 1978 SC 1511 held that if the evidence of investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. in the case of Sanjay V. State, reported in 2001 Cr. L.J. 1231 (SC) held It is well settled

that evidence of search or seizure made by the police will not be vitiated solely for the reason that independent witnesses do not support the evidence. In the case of Karamjeet V. State, reported in AIR 2003 page 1311 held The testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be accepted. And in the case of Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh, (2011) 5 SCC 123 Apex court held The seizure witnesses turning hostile may not be very significant, as it is not an uncommon phenomenon in criminal trials, particularly in cases relating to NDPS Act . So only on the ground that Panch witnesses did not support the statement of Shivdayal (PW-5) his statement can not be discarded. There is no material contradiction or omissions in the statement of Shivdayal (PW-5) on the basis of which his statement can be assumed false.

Learned counsel for the appellant also submitted that the seized article was not produced in the Court at the time of filing of charge sheet and prosecution witnesses, in absence of which conviction of the appellant is not sustainable. In this regard he placed reliance on the Apex Court judgment passed in the case of Jitendra and another Vs. State of M.P., reported in 2004(1) EFR 22, in which Apex Court held that move oral evidence as to their features and production of Panchnama does not discharge the heavy burden lies on the prosecution to prove the seizure of contraband articles. He also placed reliance on this Court''s judgment passed in the case of Liyaqat Ali Vs. State of M.P., reported in 2009(1) EFR 114. but that citation does not give any assistance to the appellant because in that case it is clear from para 6 to 16 of the statement of Shivdayal (PW-5) that at the time of his statement prosecution produced article A1 and A2 sample of seized opium and Court also examined the sealed packets and accused also in cross-examination in this regard to the said witness.

Learned counsel for the respondent also submitted that Shivdayal (PW-5) did not inform the higher police officers about the information received by him from the informant and not complied with the provisions of section 42 of the Act. But it is clear from the statement of Vijaypal Singh (PW-1), and Lalit Gang Shahi (PW-3) that Shivdayal sent the information to SDOP, Jaora had not received by him this information was received by his reder Lalit

Gang Shahi (PW3) which is not the compliance of provisions of section 41 but this argument also has no force Shivdayal (PW-5) clearly deposed that on 24.5.2006 he was posted as ASI at P.S., Ringnod at that time R.S.Meda was posted as SHO at P.S., Ringnod. On that day he was out of station. At about 1.30 PM he received information that accused Munir was coming from Hatutiya Kakar Balaji by motorcycle bearing registration No.MP-14-BA-4368 carrying illegal opium then he informed SDOP, Jaora on phone. Thereafter, he called two independent witnesses Manzoor Beig and Shripal and informed him about the information and made informant information memo Ex.P/6 and also prepared memo Ex.P/7 and sent the copy of Ex.P/6 and P/7 to SDOP, Jaora through Constable Vijaypal (PW-1). Statement of Shivdayal also corroborated from the statement of Vijaypal PW1 who clearly dispose that on 24.5.2006 he was posted as constable at P.S., Ringnod and Shivdayal was posted as ASI their. He gave me one envelope for delivering the same to SDOP Jaora. He had brought that envelope to SDOP office Jaora but at that time SDOP Jaora was not in office. So he delivered that envelop to Lalit Gang Shahi (PW-3) the then reader of SDOP Jaora. After receiving the envelope he gave him receipt ExP. His statement also corroborated from the statement of Lalit Gang Shahi (PW3). where SDOP Jaora was not in office So he delivered that envelop to Lalit Gang Shahi (PW-3) the then reader of SDOP Jaora is a substantial compliance of Section 42 of the NDPS Act.

Section 42 of the NDPS Act only provided that if any officer authorized under section 42 of the Act had reason to believe from personal knowledge or the information given by any person, he had to take down in writing that the offence punishable under the NDPS Act has been committed. Under provision of sub-section (2) of section 42 it was also incumbent on the investigating officer to send a copy of the information taken down by him to his immediate official superior. it did not incumbent on the investigating officer that before receiving the information to his immediate official superior he would not proceed to the spot. Even other wise from bear reading of the provisions of section 41 to 43 of act it appears that in searching any person in a public place for any search and seizure of the narcotic drug in a conveyance the provisions of section 41 and 42 of NDPS Act, are not applicable, but the provisions of Section 43 are applicable and that the provisions of Section 43 NDPS Act, are not

violated.

Learned counsel for the appellant also submitted that compliance of Section 50 of NDPS Act is not proved in the the absence of compliance of Section 50 the conviction cannot be sustained. In this regard he placed reliance on Apex Court judgment passed in State of Punjab Vs. Baldev Singh, reported in 1999 Cri.L.J. 3672, in which Apex Court held that when empowered officer or a duly authorized officer acting on prior information is about to search a person, it is imperative for him to inform the concerned person of his right under sub-section (1) of Section 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search. However, such information may not necessarily be in writing, the failure to inform the concerned person about the existence of his right to be searched before a Gazetted officer or a Magistrate would cause prejudice to an accused. A search made, by an empowered officer, on prior information, without informing the person of his right that, if he so requires, he shall be taken before a Gazetted Officer or a Magistrate for search and in case he so opts, failure to conduct his search before Gazetted Officer or a Magistrate, may not vitiate the trial but would render the recovery of the illicit article suspect and vitiate the conviction and sentence of an accused, where the conviction has been recorded only on the basis of the possession of the illicit article, recovered from his person, during a search conducted in violation of the provisions of Section 50 of the Act.

But this pronouncement of apex court do not help appellant because in this case Shivdayal (PW-5) Clearly deposed that he informed appellant that "if you wish you may be searched in the presence of Gazetted Officer or a Magistrate". In this regard his statement also corroborated from Ex.P/8. This is the substantial compliance with the requirement of Section 50 . Even otherwise opium was not recovered from the personal possession of appellant. The opium was seized from the bag hanging on the shoulder of the appellant, in that circumstances provisions of Section 50 does not applicable in the case. Apex court in the case of State of Haryana v. Ranbir alias Rana, (2006) 5 SCC 167., State of H.P. v. Pawan kumar, (2005) 4 SCC 350, State of Haryana v. Ranbir alias Rana, (2006) 5 SCC 167. And State of Rajasthan v. Daulat Ram (2005) 7 SCC 36, State of Punjab Vs Makhan Chand (2004) 3 SCC 453, clearly held that NDPS Act,

1985- section 50 (i) search of person--search of bag, articles, container or other baggage carried by accused is not search of person.

So only the statement of Shvi Dayal (PW-5), which is corroborated by other evidence it is proved that on 25.5.2006 at about 12.00 Noon appellant was apprehended with illegal black material (opium) at Hatuniya Kankar Balaji Road on Yamaha motorcycle bearing registration No.MP-14-BA-4368.

Bholanath Singh (PW-7) deposed that on 24.5.2006 he was posted as Head Constable at P.S., Ringnod. On that day Shivdayal Dohre, the then ASI gave a sealed packet Article A containing 11.94 Kg.of opium and two other packets containing 30 gms. each of Opium, one brown bag and a Yamaha motorcycle bearing registration No.MP-14-BA-3468. All packets were already sealed in a packet of cloth. He entered this information in Malkhana register Ex.P/31 and on 25.5.2006 he gave sample Article A/1 to Constable Ramchandra for analysis.

Ramchandra (PW-2) deposed that on 26.5.2006 (on the very next day of seizure) he went to FSL, Rau, Indore alongwith Article A (sample of seized material) and seal impression and deposited there. His statement is corroborated by Ex.P/4 receipt taken by him from FSL. Ram Singh (PW-6) also deposed that on receiving the Muddemal he again sealed Muddemal and handed it over to Bholanath Singh and recorded the statements of the members of the seizure operation and the Muddemal samples were sent to FSL, Rau for chemical analysis through the S.P., Ratlam alongwith FSL draft Ex.P/27. The report Ex.P/28 was received from FSL.

In analysis report Ex.P/28 it is mentioned that coagulated juice of opium was found in Article A/1, which contains 05.70% morphine. The FSL report, Ex. P-28, dated 25/07/16 states that a letter along with a sealed packet was received with seals intact. The said report further mentions that packet was covered in white cloth and on opening of the packet, the examiner found a packet of bristol cigarette and the substance on examination was found to be an coagulated juice of opium in which 5.70% morphine was present. The seal being intact, the description of the case number and the impression of seal having been fixed on memo of recovery.

Ram Singh (PW-6) also deposed that he also sent a detailed information report of Crime No.110/2006 registered for offence under Section 8 / 18 and 29 of NDPS Act to SDOP, Jaora through

Constable Vijaypal Singh. This fact is corroborated by the statement of Vijaypal (PW-1) and Lalit Gang Shahi. Vijaypal gave detailed report after which he gave him receipt Ex.P/2. So, the compliance of Section 57 of NDPS Act is also proved therefrom.

The fact of the recovery of the said sample from the possession of the appellant has been proven and established by cogent and reliable evidence and that apart, it had also come in evidence that till the date when parcels of samples were received by the Chemical Examiner, the seal put on that parcel was intact. Under these circumstances, the Court ruled that the said facts clearly proves and establishes that there was no tampering with the aforesaid seal in the sample at any stage and the sample received by the analyst for chemical examination contained the same opium which was recovered from the possession of the appellant.

So from the above discussion and the prosecution evidence it is clearly proved against the appellant that on 25.5.2006 at about 12.00 Noon he was carrying 12 Kg. illegal opium and was apprehended by Police at Hatuniya Kankar Balaji Road on Yamaha motorcycle bearing registration No.MP-14-BA-4368. The learned trial Court has not committed any mistake in finding the appellant guilty under Section 18(B) of NDPS Act.

The sentence for ten years'' rigorous imprisonment and a fine of Rs. 1,00,000/-, in default, rigorous imprisonment for three years, is quite adequate and this Court do not find any reason to interfere with the judgment. Hence, appeal filed by the accused stands dismissed. The appellant is on bail, his bail bonds be forfeited. He be sent to Jail to serve the remaining Jail sentence.

Accordingly, appeal stands disposed of.