Munnalal vs State of Madhya Pradesh

N.K. Gupta, J—The appellant has preferred the present appeal being aggrieved with the judgment dated 03.03.1997 passed by the Special Sessions Judge under Narcotic Drugs and Psychotrophic Substance Act Satna in Special Case No. 15/96, whereby the appellant has been convicted of offence under Section 20(b)(i) of the Narcotic Drugs and Psychotrophic Substance Act, 1985 (hereinafter referred to as the NDPS Act) and sentenced to one year''s rigorous imprisonment with a fine of Rs. 1,000/-.

The prosecution case in short is that on 08.01.1996, Sub-Inspector Vinod Kumar Singh (P.W.3), who was posted as SHO, Police Station Tala, District Satna received an intimation that the appellant who was having a shop of tea was selling Ganja from his shop. Shri Vinod Kumar Singh called constable Rajola Prasad, (P.W.4) and gave him a sum of Rs. 5/- with the direction that he would go in plain clothes and purchase Ganja of that amount. Constable Rajola Prasad purchased Ganja and gave an indication then, Vinod Kumar Singh along with other witnesses went to the shop of the appellant and gave him a notice as to whether he was ready to get his search by Vinod Kumar Singh. After getting his consent on document, Ex. P/5, Vinod Kumar Singh and police party took search of the appellant Munnalal and prepared a document Ex. P/2. It was found that the appellant kept fourteen small packets of paper having Ganja. All the packets were given to Shri Manprasad Gupta for their weighing and total 300 grams of Ganja was found with the appellant. A sample of 20 grams of Ganja was taken separately and the entire property was seized along with the note of Rs. 5/-. The sample of Ganja was sent to the Forensic Science Laboratory and the Forensic Science Laboratory by it''s report Ex. P/9 found that the sample contained Ganja. After due investigation a charge-sheet was filed before the Special Court.

The appellant abjured his guilt. He took a plea that he did not have any tea or Pan shop. He was a cultivator and has been falsely implicated in the matter. However, no defence evidence was adduced.

The Special Judge after considering the prosecution evidence convicted and sentenced the appellant as mentioned above. I have heard the learned counsel for the parties at length.

In the present case, Sub-Inspector Vinod Kumar Singh (P.W.3) has stated about the entire procedure adopted by him during recovery of Ganja from the appellant. In his support constable Rajola Prasad (P.W.4) was also examined. Learned counsel for the appellant has submitted that no intimation was given to SDOP Concerned after receiving the intimation from informer, however, it appears that the case was prepared in the year 1996 and some provisions of NDPS Act are amended thereafter. Now-a-days if 1 Kg of Ganja is recovered from someone then a maximum sentence of 6 months can be given, whereas in those days there was no discrimination of sentence on the basis of quantity of Ganja. Hence, if such a procedure which was not prescribed by law at that time, is not followed then it makes no difference.

However, the witnesses Mani Prasad (P.W.1) and Nakchhedi Lal (P.W.2) have turned hostile. Those were the witnesses of seizure etc. If evidence of Vinod Kumar Singh and constable Rajola Prasad is considered then there is a lot of contradiction between their statements. Also Vinod Kumar Singh has committed so many mistakes in making a case against the appellant. Firstly, Vinod Kumar Singh has stated that he gave a sum of Rs. 5/- to the constable Rajola Prasad to purchase some Ganja and when Rajola Prasad purchased Ganja, then a raid was done by Vinod Kumar Singh. Rajola Prasad (P.W.4) has stated that a sum of Rs. 10/- was given by Shri Vinod Kumar Singh and he purchased one small packet of Ganja from the appellant. In cross-examination he has stated that the SHO has given a note of Rs. 5/- and by mistake he told about the note of Rs. 10/-. When a peculiar trap was arranged by Vinod Kumar Singh then Rajola Prasad would have remembered about the denomination of the currency note given by Vinod Kumar Singh. Looking to the contradiction between the statements of Vinod Kumar Singh and Rajola Prasad, it appears that no procedure of trap was adopted.

Secondly, if the constable Rajola Prasad was given a note of Rs. 5/- then a memo was to be prepared in which the serial No. of that currency note would have been mentioned. If a sum of Rs. 5/- was recovered from the appellant by Shri Vinod Kumar Singh in seizure memo Ex. P/1, then it could be a currency note of the appellant himself. In the absence of that pre-trap memo, relating to giving a currency note of Rs. 5/- to Rajola Prasad the story of trap comes into a cloud of doubt. Thirdly, when Rajola Prasad had purchased a small packet of Ganja in a sum of Rs. 5/- then that purchased Ganja would have been seized from Rajola Prasad, but it is very sorry to mention that Shri Vinod Kumar Singh didn''t prepare such a seizure memo of a small packet of Ganja purchased by Rajola Prasad. Hence, the testimony of Shri Vinod Kumar Singh and constable Rajola Prasad appears to be doubtful that the constable Rajola Prasad was given a currency note of Rs. 5/- or that he purchased some Ganja from the appellant.

Also Vinod Kumar Singh did not follow the mandatory provisions of Section 42 and 50 of the NDPS Act. In consent memo, Ex. P/5, he did not mention that the appellant was informed that his search could be taken before the Magistrate or the Gazetted Officer and, therefore, the consent received of the appellant is not a legal consent taken by Vinod Kumar Singh. Vinod Kumar Singh has stated that one witness Mani Prasad was called to weigh the seized Ganja. It appears that Man Prasad has his name Mani Prasad and he was examined as P.W.1, but he did not support the story of the prosecution that he weighed Ganja seized from the appellant. As discussed above that a fake procedure of trap was shown by Shri Vinod Kumar Singh, hence his entire proceeding cannot be believed beyond doubt unless any corroboration is done by any independent witness. Consequently, it cannot be said beyond doubt that 300 grams of Ganja was found with the appellant.

It is to be made clear that alleged Ganja was seized on 08.01.1996 and according to the report of Forensic Science Laboratory, Ex. P/19, a sample of Ganja was received in the laboratory on 01.02.1996. Hence, it would be apparent that Vinod Kumar Singh kept that seized Ganja in his police station for more than 3 weeks and, therefore, it was for him to show that seized Ganja was kept in the police station in a safe custody. If seizure memo, Ex. P/1, is examined then a faint impression of seal appears to be affixed on seizure memo, Ex. P/1. The brass seal used by Vinod Kumar Singh was within the control of Vinod Kumar Singh himself and, therefore, it was for him to show that seized Ganja was kept in the Malkhana in the custody of the Incharge, Malkhana, and, thereafter, it was sent to Forensic Science Laboratory as early as possible. However, Shri Vinod Kumar Singh could not show that he kept the seized Ganja in a safe custody and, therefore, possibility cannot be ruled out that the articles seized from the appellant were changed in the custody of Shri Vinod Kumar Singh. Also no reason has been shown by Shri Vinod Kumar Singh as to why he kept the seized article in his possession for 24 days and as to why it was not sent to F.S. Laboratory within a reasonable period. Hence the report of Forensic Science Laboratory, Ex. P/9, cannot be read against the appellant. If report Ex. P/9 is discarded then there is nothing on record to show that any Ganja was recovered from the appellant.

On the basis of the aforesaid discussion a doubtful case has been prepared by Shri Vinod Kumar Singh where he committed so many procedural mistakes and created a false story of trap and sample relating to purchase of Ganja. He could not show that Ganja purchased by constable Rajola Prasad was again seized from Rajola Prasad. When a doubt is created then benefit of doubt always goes to the accused. The prosecution has failed to prove beyond doubt that the appellant kept any Ganja or sold the same, hence he could not be convicted of offence under Section 20(b)(i) of the NDPS Act. The trial Court has committed an error in convicting the appellant.

On the basis of the aforesaid discussion the appeal filed by the appellant is hereby allowed. The conviction as well as the sentence imposed by the trial Court against the appellant of offence under Section 20(b)(i) of the NDPS Act is hereby set aside. He is acquitted from the charges appended against him. He would be entitled to get the fine amount back from the trial Court if he has deposited the same.

The appellant is on bail. His presence is no more required before this Court and, therefore, it is directed that his bail bonds shall stand discharged.

Copy of the judgment be sent to the trial Court along with it''s record for information and compliance, if any.