Pushpendra Tiwari vs State of Madhya Pradesh

Hon''ble Shri Justice N.K. Gupta

All the three appeals are related with the common judgment dated 11.3.2011 passed by the Special Judge under the Narcotic Drugs & Psychotropic Substance Act, 1985 (hereinafter referred to as ''the N.D.P.S. Act'') in Special Case No. 21/08 therefore, decided by a common judgment. The appellants have preferred these appeals against the aforesaid judgment, whereby they were convicted for the offences punishable under Sections 20(b)(ii)(C) read with Section 8(c) and Section 29(1) of the N.D.P.S. Act and sentenced for ten years R.I. with fine of Rs. . 1,00,000/- and one year R.I. in default of payment of fine.

The prosecution''s case in short is that, on 2.5.2008 S.H.O. Police Station, Jaisingh Nagar Shri S.N. Singh (PW-14) received an information from the informer that from the side of Budhar District Shahdol, one Bolero jeep was going towards Rewa having some Ganja (cannabis). Shri Singh noted the information in Rojnamchasanah Ex.P/39 and called the witnesses Vijay Kumar Tiwari and Jumman Khan (PW-3) and also intimated them about the information. A memo Ex.P/3 was prepared. S.D.O.P. Beohari was intimated on telephone and Shri Singh obtained the directions from him. Thereafter, Shri Singh left the police station and went to the spot alongwith the witnesses and the Head Constables Indrajeet, Ramnath Napit (PW-6) and various constables. The proceedings were mentioned in Rojnamchasanah Ex. P/14. At about 7:50 p.m., one white Bolero jeep bearing registration No. MP 17-A 5403 reached the spot i.e. in front of the Police Station Jaisingh Nagar. It was found that all the appellants and one Ashok were travelling in that vehicle. The vehicle was stopped and all the accused were intimated about the information and thereafter, their consent was obtained to take their search and search of the vehicle. They were intimated about their rights that they could get their search either by a Gazetted Officer or Magistrate. A consent memo Ex.P/6 was prepared. The entire staff has given its search to the appellants and a memo Ex.P/7 was prepared. On taking search of the vehicle, four jute bags and three plastic bags were found in the jeep carrying 65 kgs. of Ganja with them. Ganja was physically tested at the spot and thereafter, a memo of seizure was prepared. Amit Kumar (PW-4) was called with weights alongwith a scale for weighing the contraband substance. Ganja kept in each of the bags was made homogeneous and two samples of 25 gms. of each were taken from each bag and thereafter, the entire seven bags and 14 samples were duly sealed and various memos etc. were prepared and thereafter, the appellants were arrested. Shri Singh sent the intimation about the information received from the informer to the S.D.O.P. Beohari in writing and thereafter, he sent a report of the entire proceedings to the S.D.O.P. Beohari. The seized property was given to the Head Constable Bhaiya Shukla (PW-10) to keep in the Malkhana of the police station. The samples were sent to the Forensic Science Laboratory, Sagar for analysis alongwith a draft memo Ex.P/29. A report Ex.P/38 was received with positive results. During investigation, it was found that the accused Ashok obtained the vehicle on contract basis from the owner. After due investigation, a charge sheet was filed before the Special Judge, N.D.P.S. Act.

The appellants abjured their guilt. Each of them took a plea that they took the lift in the vehicle. They did not own any contraband substance, which was kept in the vehicle. In defence, Devendra Singh (DW-1), Lavkush Pratap (DW-2), Gomti Prasad Patel (DW-3) were examined to prove that the appellants were the gratuitous passengers in the vehicle. One Atil Verma (DW-4) was also examined to prove the entry dated 1.5.2008 of the toll tax barrier to show that the said vehicle had crossed the barrier on 1.5.2008.

Learned Special Judge after considering the evidence adduced by both the parties, convicted the appellants for the offence punishable under Sections 8-C /20(b)(ii)(C) and Section 29(1) of the N.D.P.S. Act and sentenced them as mentioned above.

I have heard the learned counsel for the parties.

Shri Anil Khare, learned senior counsel for the appellant Pushpendra Tiwari have submitted that the appellant was a gratuitous passenger in the vehicle and no conscious possession of contraband substance was found with him therefore, he could not be convicted for the aforesaid offences. The learned senior counsel placed his reliance upon the judgment passed by the Hon''ble Apex Court in the cases of State of Punjab Vs. Balkar Singh and Another, , Avtar Singh Vs. State of Punjab, and State of Punjab Vs. Hari Singh and Others, . It is also submitted that the investigation officer did not comply the Provisions of Sections 42 & 50 of the N.D.P.S. Act. Learned counsel for other appellants have also urged the case on same lines as argued by the learned senior counsel. It is also submitted that the sealing was not proper. Since the brass seal was with Shri Singh, who could use the same in resealing therefore, sealing had no value and it is not proved beyond doubt that the seized property was sent to the Forensic Science Laboratory. In this connection, a reliance is placed upon the judgment passed by the Division Bench of this Court in the case of "Ganesh @ Ganesha @ Ganesh Prasad and another Vs. State of M.P." [I.L.R. (2008) M.P. 3026].

On the other hand, the learned Public Prosecutor has submitted that now-a-days smuggling of the contraband substance is substantially increased and therefore, the findings and the sentence directed by the trial Court may be maintained. There is no basis by which any interference can be done in the findings and sentence passed by the trial Court.

After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether, the appeals filed by the appellants can be accepted? and whether the sentence can be reduced?

In the present case, an information was received by Shri S.N. Singh (PW-14), S.H.O. Police Station, Jaisingh Nagar and he took the steps for recovery etc. The independent witness Jumman Khan (PW-3) has turned hostile and Vijay Tiwari was not examined. The witness Vijay Tiwari was present before the trial Court on 19.3.2009 but being turned hostile, he was given up. Similarly, Amit Kesharwani (PW-4) has also turned hostile. He was the person, who had weighted the contraband substance by the scale. However, the testimony of Shri Singh was corroborated by the Head Constable Ramnath Napit (PW-6) and other constables. After consideration of the various memos prepared by Shri Singh and the entries in Rojnamchasanah, it is apparent that Shri Singh had no time to obtain a search warrant after he received information. However, he had sent the information to the S.D.O.P. Beohari and obtained his directions on phone. He followed the Provisions of Sections 42 & 50 of the N.D.P.S. Act. After completion of the proceedings, he sent a special report to the S.D.O.P. Beohari. Constable Ajay Pandit (PW-8) has proved that he took one sealed envelop from the S.H.O. Shri Singh and delivered that envelop to the office of the S.D.O.P. Beohari.

Head Constable Ramnath Napit has corroborated about the entire proceedings. However, being a police official, he has to deal with so many cases every day and therefore, it was not possible for him to give all the minute details of the proceedings therefore, he was partly declared hostile by the prosecutor. However, he confirmed the evidence given by Shri Singh. Head Constable Bhaiyalal Shukla (PW-10) has proved that he had received the contraband substance and 14 samples duly sealed and he kept them in Malkhana in intact position and thereafter, samples were handed over to the constable Angad Prasad (PW-9). He took the samples to the Forensic Science Laboratory. Learned counsel for the appellants have placed their reliance upon the judgment passed by the Division Bench of this Court in the case of Ganesh (supra) that since the brass seal remains with the S.H.O. himself and hence, sealing should be done with the help of paper seals having signatures of the witnesses and the accused persons. In the present case, In-charge of Malkhana has proved that he kept the entire seized property alongwith the samples in a sealed condition in the Malkhana soon after their seizure and he gave the samples to the constable Angad Prasad, who took them to the Forensic Science Laboratory. The entire seized samples were received in the Forensic Science Laboratory within a reasonable time and therefore, in the present case, it cannot be said that there was an opportunity with the investigation officer to open the samples or contraband substance and to re-seal them after tempering the material, therefore, if the brass seal was with Shri S.H.O. Police Station Jaisingh Nagar, then no adverse effect would take place in the present case. There is no specific method mentioned in the N.D.P.S. Act about the sealing and this incident took place prior to the pronouncement of the judgment of the Division Bench in the case of Ganesh (Supra) thus, the law about the procedure laid down by the Hon''ble Division Bench cannot be considered in a retrospective manner.

In the present case, it is proved that the seized property was properly sealed and kept in the Malkhana and thereafter, the samples were given to the concerned constable and those samples were transmitted to the Forensic Science Laboratory within a reasonable time in a sealed condition and remaining contraband substance was produced before the trial Court in a sealed condition. Therefore, in the present case, no doubt is created relating to the sealing of the contraband substance and the samples. There was no opportunity with Shri Singh to do some interpolation in the samples, though he had brass seal of the police station with him.

In the provisions of N.D.P.S. Act, a severe sentence is prescribed and therefore, the guilt of the accused should be proved very strictly. The main defence of the appellants is that they were gratuitous passengers in the vehicle and they did not have any conscious possession of the contraband substance. Shri Singh S.H.O. Police Station, Jaisingh Nagar did not take care to observe that whether the appellants were gratuitous passengers or they were of conscious possession of the contraband substances. It was expected from the investigation officer that he should have interrogated the appellants to know about the origin of Ganja from where it was brought in the vehicle and who was the consignor and who was the consignee of the Ganja. On the contrary, he had shown that four persons were found in the vehicle and 65 kgs. of Ganja was found in 6-7 bags in the vehicle. It is very strange that Shri Singh could not tell that who was driving the vehicle at the time of the incident. If the gratuitous passenger takes a lift in the vehicle, then he cannot object about the goods kept in the vehicle either by the driver or by the other passengers and thereafter, if he was found in the vehicle then, he can be punished for keeping or transporting the contraband substance only when he had a conscious possession of such goods. Various defence witnesses have established that the appellants were the gratuitous passengers in that vehicle. Since the investigation officer Shri Singh could not establish the origin of the consignment then, it cannot be said that the appellants were related with the contraband substance of Ganja or they were the possessors of that Ganja. Hence, in the light of various judgments passed by the Hon''ble Apex Court in the cases of Balkar Singh (Supra), Hari Singh (Supra) and Avtar Singh (Supra), most of the appellants cannot be convicted for the aforesaid offences because a doubt is created that they were the gratuitous passengers and they did not have any conscious possession of the contraband substance. In the result, except the accused Ashok, the appellants are nowhere connected with the seized Ganja. If any doubt is created then, the appellants cannot be convicted for the aforesaid offences because they would get the benefit of doubt.

In all three appeals, the accused Ashok is not made a party and therefore, there is no need to discuss his matter in the present judgment. However, in a nutshell, it can be said that the investigation officer tried to connect the accused Ashok with the crime that he received the vehicle from its owner on contract and therefore, he was the controller of that vehicle at the time of the incident but such contract is not proved against the present appellants namely Puspnedra Tiwari, Rajendra @ Ramjanam Patel and Nagendra Singh.

All the three passengers could be the gratuitous passengers and therefore, it cannot be said that they had any conscious possession of the Ganja because they were travelling in the vehicle only. Hence, all the three appellants cannot be convicted for the offence punishable u/s 8 /20 of the N.D.P.S. Act. The learned Special Judge has erred in holding these appellants to be guilty.

On the basis of aforesaid discussion, all the three appeals filed by appellants namely Pushpnedra Tiwari, Rajendra @ Ramjanam Patel and Nagendra Singh appear to be acceptable and hence, they are hereby accepted. The convictions and the sentences directed by the trial Court against all the three appellants for the offences punishable under Sections 20(b)(ii)(C) read with Section 8(c) and Section 29(1) of the Special Act are hereby set aside. The appellants are acquitted from all the charges levelled against them by giving a benefit of doubt. They would be entitled to get the fine amount back, if they have deposited the same before the trial Court.

Since the appellants are in jail therefore, Registry is directed to arrange the issuance of their release warrants so that they may be released without any delay. A copy of the judgment be sent to the trial Court alongwith its record for information and compliance.