Prabhulal Nayak vs State of Madhya Pradesh

Hon''ble Shri Justice Anil Kumar Sharma

Appellant has filed this appeal against judgment dated 26.07.1997 passed in Special Criminal Case No.139/1996 by the learned 2nd Additional Sessions Judge, Neemuch, whereby appellant has been convicted for offence punishable u/s 8 read with Section 18 of the Narcotic Drugs & Psychotropic Substances Act, 1985 (hereinafter referred to as the NDPS Act, in short) and sentenced to undergo rigorous imprisonment for ten years and fine of Rs.1,00,000/-has also been imposed upon him, with default stipulation. Brief facts of the case are that on receiving a telephonic message on 10.08.1996, Assistant Sub Inspector (ASI) - Rajveer Sharma of Police Station Baghana, District Mandsaur (MP) went to village Sagrana where appellant was waiting for bus. ASI searched the appellant, after giving him mandatory information and seized 950 grams of opium from the bag carried by the appellant in his right hand. After preparing necessary panchnamas, a case has been registered against appellant and on filing of challan, learned trial Court, after trial of the appellant for offence punishable u/s 8 read with Section 18 of the NDPS Act, convicted and sentenced him, as mentioned in paragraph No.1 of this judgment.

Being aggrieved by the impugned judgment, appellant has filed this appeal on the ground that he has been falsely implicated and learned trial Court has erred in convicting him on the basis of statement of police officers only and further by overlooking the non-compliance of the mandatory provisions of the NDPS Act.

Main question for consideration in this appeal is whether learned trial Court is justified in convicting the appellant for the offence punishable u/s 8 read with Section 18 of the NDPS Act.

Learned counsel for the appellant has drawn attention towards the seizure of alleged opium. There is only evidence of ASI Rajveer Sharma (PW-9) and ASI Radheshyam Sharma (PW-2), which is not being supported by the independent panch witnesses of seizure Abid Hussain (PW-6) and Rameshwar (PW-4), who have turned hostile. Learned counsel for the appellant has further submitted that the appellant has been taken into custody by Rajveer Sharma (PW-9) for an offence of abduction and rape and thereafter, he has been falsely implicated in the present case. In support of his arguments, he has drawn attention towards statement of Rajveer Sharma (PW-9), who in his cross-examination has admitted that a case for offence punishable u/s 366 IPC was already registered against appellant and his brothers. Abid Hussain (PW-6) has also admitted that ASI informed him on telephone that one girl has been abducted and for bringing that girl, his jeep was required. Therefore, he went with the police officers. He took the police officers in his jeep towards Arnoda (Rajasthan) where police officers entered into house of the appellant and brought the appellant with them went to Baghana Police Station.

Learned counsel for the appellant has further submitted that there is non-compliance of provisions of Section 50 of the NDPS Act, although seizure has been shown from the bag allegedly carried by appellant, but since search of person of appellant was also involved, therefore, it was necessary to inform appellant/accused about his right to be searched by some gazetted officer or magistrate. Learned counsel for the appellant has drawn attention towards memorandum u/s 50 of the NDPS Act Ex.P/4, in which it has been informed to the appellant that he can give his search to magistrate or gazetted officer or to him, which is not proper compliance of mandatory provisions of Section

Learned counsel for the appellant has further submitted that there is non-compliance of mandatory provisions of Sections 52, 55 and 57 of the NDPS Act. There is no evidence that sealed sample was deposited in the Malkhana along with seized articles. Further seized articles have not been sealed. Seized articles, which were sealed on the spot, have not been sealed at the time of depositing it by them in the Malkhana of the Police Station. Learned counsel for the appellant has also drawn attention towards the statement of Station House Officer - T.R. Suryawanshi (PW-7), who has stated that if article is sealed by the seal of Police Station then it is not required to seal it again.

Learned counsel for the appellant has cited judgment of this Court in the matter of Ramgul @ Remulal v. State of MP reported in 2003 Criminal Law Reporter (MP) 26, in which it has been held that in the present case, even the seal of sample was not deposited in the Malkhana along with seized articles. Therefore, the same is fatal to the prosecution. While sending the sample along with sample of seal to Forensic Science Laboratory, one packet of sample and seal of sample must remain in Malkhana and the same should have been deposited in the Court at the time of filing of the charge-sheet. Non-compliance is fetal to the prosecution in the present case.

Learned counsel for the appellant has further submitted that in spite of availability of the independent witnesses, as admitted by Rajveer Sharma (PW-9) on the spot, witnesses who had accompanied him from the Police Station, have been made panch witnesses and it has been admitted by Rajveer Sharma (PW-9) that Abid Hussain is a witness in some of his other cases also. Abid Hussain (PW-6) has also admitted that his jeep is taken by the police officers as and when required by them. Learned counsel for the appellant has again drawn attention towards the judgment, as cited above, in which it has been held that prosecution has not examined any witness of local area to establish the seizure, if at the time of search and seizure 4 - 5 persons were present there, but did not give details of those persons, therefore, mere presence of appellant No.1 is not sufficient to hold that he was the owner and in exclusive possession of the house. It has further been held in the light of the discussion, as aforesaid, the prosecution has failed to prove its case beyond reasonable doubt against the accused. Therefore, appeal deserves to be allowed and is accordingly allowed.

In the present case, the evidence of police officers has not been supported by the independent witnesses. No independent witnesses from the spot has been involved as witness in the panchnama and it is an admitted fact that against appellant case u/s 366 IPC was registered in the police station, therefore, possibility of false implication of the appellant in the present case cannot be ruled out. Further there is non-compliance of the mandatory provisions, as mentioned above, therefore, learned trial Court is not justified in convicting the appellant by the impugned judgment, overlooking the circumstances mentioned above. Therefore, appeal is allowed, setting aside the impugned judgment and appellant is acquitted of the charges for the offence punishable u/s 8 read with Section 18 of the NDPS Act. Fine amount, if deposited by the appellant, be refunded to him. Bail bonds of the appellant are discharged.