Manohar Singh vs State of Madhya Pradesh

Hon''ble Shri A.K. Sharma, J.—This appeal will dispose of Criminal Appeal No. 17/1998 (Gopal Patidar vs. State of Madhya Pradesh) arising out of judgment dt. 12.11.1997 passed in S.T. No. 101/1996 by learned Additional Sessions Judge Jaora District Ratlam, M.P. whereby appellants have been convicted for the offence punishable u/s 8 read with Section 18 of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereafter referred to as NDPS Act in short) and sentenced to undergo RI for 10 years and fine Rs. 1 lac each with default stipulation. The brief facts of the case are that, on 19.2.1996 while SHO Police Station Ringnod Ratlam, came from Banwada to Ringnod, after taking a round he found appellants coming on Motorcycle having no number in front. When appellants were searched in presence of witnesses about 8 kg opium was seized from back carried by appellant Gopal which was kept in a bag of cement. A case was registered against the appellants, after preparation of seizure panchnamas challan was filed and learned Trial Court after trial of the appellants for the offence punishable u/s 8 read with Section 18 of NDPS Act convicted and sentenced them as mentioned in para 1 of the Judgment.

Being aggrieved by the impugned judgment, appellants have filed this appeal on the ground that they have been falsely implicated and learned Trial Court is not justified in convicting them in the absence of non-compliance of mandatory provisions of the NDPS Act and in the absence of statement of Investigating Officer.

The main question for consideration in this appeal is whether, the learned Trial Court is justified in convicting the appellants by impugned judgment.

Learned Counsel for the appellant has submitted that the witnesses of seizure Samroj PW-1 and Balaram PW-4 have turned hostile and have not supported the case of prosecution. Regarding seizure there is only statement of SHO Ramchandra PW-5. Investigating Officer has not been examined before the learned Trial Court. Learned Counsel for the appellant has submitted that Ramchandra PW-5 has not given intimation of seizure to the Higher Authorities after the seizure. Further there is no evidence that seized articles were kept intact in secured custody, after seizure till they reached the Laboratory for chemical examination. Therefore, there is non-compliance of provisions of Section 52, 55 and 57 of the NDPS Act. Learned Trial Court is not justified in convicting the appellants in the absence of compliance of provisions of Section 42, 52, 55 and 57 of NDPS Act. Ramchandra PW-5 in his cross-examination has admitted that investigation has been done by Shri Suryavanshi T.I. He has not filed the spot report sent to the Superintendent of Police. He has filed the acknowledgment Ex. P/18, the acknowledgment Ex. P/18 does not show the particulars of letter written to the Superintendent of Police or crime number of the offence as mentioned in front of letter sent to District Judge Ratlam. Learned Counsel for the appellant further submitted that although there is evidence that seized articles were kept in Malkhana of Police Station, but there is no evidence regarding sending the seized articles intact in sealed condition to the Laboratory. The Police Constable who took the seized articles to the Laboratory has not been examined.

Learned Counsel for the appellant have cited judgment of Hon''ble Apex Court in the matter of State of Rajasthan Vs. Daulat Ram, in which it has been held that respondent was caught with opium. The seized sample sent to Public Analyst during which several hands were changed, possibility of sample being tampered not ruled out. Therefore, the prosecution failed to provide the links of the movement of the sample. The gap left by the appellant in the trial cannot be allowed to be filled up during the revisional stage. Appeal is dismissed.

Learned Counsel for the appellant has also cited judgment of Hon''ble Apex Court in the matter of Thandi Ram vs. State of Haryana AIR 2000 SC 468 in which it has been held that before High Court it was argued that provision of Section 50, 52, 55 and 57 of the Act had not complied with and the Court was of the opinion, that concerned Officer had accidentally recovered the article in question. Such conclusion of High Court is not sustainable. Conviction set-aside and appellant acquitted.

u/s 52(3) of NDPS Act, seized articles are to be forwarded without unnecessary delay to the Officer in-charge of the nearest Police Station or the Officer empowered u/s 53 of the said Act. u/s 55 of the NDPS Act, the seized articles are to be delivered to Police Station and the Officer who is deputed for the purpose has to affix his seal on such articles but there is no evidence that seized articles were sealed in the Police Station. Rameshchand Awasthy PW-2 has stated that he kept the samples which he found sealed by the seal of Police Station. Said seal has been used at the time of seizure from the spot. u/s 57 the person who makes the arrest or seizure is required to make full report of all particulars of such arrest or seizure to his immediate Official Superior but the copy of letter sent to Superintendent of Police has not been produced and a report of Crime No. 21/1996 has been sent to the S.P. is not clear from Ex. P/18. Therefore, looking to the non-compliance of provisions of Section 52, 55 and 57 of the NDPS Act, learned Trial Court in the absence of statement of Investigating Officer and further in the absence of corroboration of statement of Ramchandra PW-5 by any other witness present on the spot including the Police Officials who had gone with him, learned Trial Court is not justified in convicting the appellants for the offence punishable u/s 8/18 of the NDPS Act.

Therefore, both the appeals are allowed and setting-aside the impugned judgment, appellants are acquitted from the charges of offence punishable u/s 8/18 of the NDPS Act. The fine amount if any deposited by the appellants shall be refunded to them. The bail bonds of the appellants are discharged. A copy of this judgment be kept in the record of Criminal Appeal No. 17/1998.