Radheshyam Mourya vs State of Madhya Pradesh

Subhash Kakade, J.—Appellant Radheshyam has filed this appeal u/s 374 of Criminal Procedure Code, 1973 being aggrieved by the judgment dated 26.03.2010 passed by the learned First Additional Sessions Judge and Special Judge, Katni (M.P.), in Special Case No. 333/2008 (State of M.P. v. Radheshyam), whereby the appellant was convicted u/s 8/20B of Narcotics Drugs and Psychotropic Substances Act (61 of 1985), in short "the N.D.P.S. Act", and awarded a punishment of rigorous imprisonment of seven years and fine of Rs. 50,000/- (Fifty Thousand), in default of payment of fine, further to suffer one year''s rigorous imprisonment. The prosecution case:- on dated 30.09.2008 Shri K.L. Patel was posted as A.S.I. at Police Station Kuthala, District Katni, when he received telephonic information that the appellant Radheshyam has kept illegal Ganja in his Dhaba. On this information Shri Patel did the investigation and mentioned the details in dehati nalishi, which reads as under:--

Remaining investigation completed by Inspector Shri B.S. Rajput who sent the contraband samples to FSL Sagar for chemical examination, recorded the statements of witnesses and after due completion submitted the challan.

The learned trial Court framed the charge against appellant for commission of offence punishable u/s 8/20 of the Act. The appellant pleaded not guilty, therefore, he was put to trial. The prosecution examined twelve witnesses and produced documents Ex. P/1 to Ex. P/36.

During statement u/s 313 of Cr.P.C., the appellant denied all the evidence put forth against him and pleaded his innocence on the ground that he was falsely implicated. However, no defence witness has been examined.

The learned trial Court, after appreciating the evidence available on record, has held the appellant guilty u/s 8/20 of the Act and sentenced him, as mentioned herein above, against which, this appeal.

Shri Raman Patel, learned counsel for the appellant submitted that the independent witnesses completely hostile and learned trial Court convicted the appellant on the statement of police officer, Shri Patel, which is bad in law. It is also submitted that the place from where the contraband seized is an open place being a Dhaba, customers were regularly come there, in such a situation, it cannot be said that the contraband was seized from the exclusively possession of the appellant. Lastly, it is submitted that mandatory provisions of Sections 50, 51, 52, 57 and 42 of NDPS Act were not complied with, therefore, the conviction of the appellant is to be set aside.

Per contra, Ms. Hemlata Kshatriya, learned Panel Lawyer appearing for the State has opposed the appeal and submitted that appellant has rightly been convicted believing the testimony of the prosecution witnesses. The finding, so recorded by the learned trial Court, does not call for an interference by this Court, thus, this appeal is liable to be dismissed.

I have considered the rival submissions made by learned counsel for the parties, perused the impugned judgment and entire available record carefully.

A.S.I. Shri Patel (PW/10) stated that on receiving telephonic information that the appellant is dealing in contraband and on pursuing to this information, he and members of raiding party reached to the Dhaba of the appellant, which was situated Chaka Bye-pass Triangle. He further stated in presence of independent witnesses Janak (PW/2) and Raju Yadav (PW/3) it was confirmed that he is appellant Radheshyam and thereafter the appellant apprised about information against him. It is also stated by Shri Patel (PW/10) that the members of raiding party offered search of themselves, which appellant conducted and thereafter the Dhaba and Betel Tapara were searched in presence of independent witnesses Mahendra @ Mannu (PW/5) and Ajay (PW/6). Shri Patel (PW/10) stated that a gunny bag was found in Betel Tapara and contraband substance found in a Gunny bag. Amarnath Shukla (PW/1) is the owner of the grosser shop from where the investigation officer brought the weighing means and after weighing contraband was found 13 kg 600 gms.

During this search and seizure proceedings Shri Patel (PW/10) prepared following documents in presence of independent witnesses Mahendra @ Mannu (PW/5) and Ajay Kumar Yadav (PW/6):--

It is pertinent to mention here that not only Janak (PW/2) and Raju Yadav (PW/3) were declared hostile but important witnesses Mahendra @ Mannu (PW/5) and Ajay (PW/6) were also declared hostile because they did not support a single word regarding above mentioned proceedings of Shri Patel (PW/10).

The fact that four witnesses called from amongst the members of the public including Mahendra @ Mannu (PW/5) and Ajay Kumar (PW/6) had turned hostile, but their evidence could not destroyed the prosecution case or makes it doubtful. The mere fact that remaining witnesses i.e. Shri Patel (PW/10) and Shri Bundela Singh Dwivedi (PW/4) are police officers is not enough to discard their evidence, when no reason to show for their hostility towards the appellant. But, in such a situation marshaling of these police officers'' evidence requires very high degree of scrutiny and each and every contradiction, omission, new fact, etc. will be fatal for the prosecution.

Shri Patel (PW/10) admitted this fact that at the time of incident he was posted as ASI and also denied this suggestion that ASI is not authorized for the investigation under the NDPS Act. Ignoring this fact, it is also pertinent to mention here that Shri Patel (PW/10) admitted following facts, which are against the case of the prosecution:--

(i) On Rochnamacha sana Ex. P.-13-C number is not mentioned.

(ii) This fact is not mentioned in document Ex. P.-19-C that the seal was deposited in police station.

(iii) Only dak memo is attached with the challan papers, but copy of out going register dated 30.09.2008 of police station Kuthala is not filed with the challan papers.

(iv) As per document Ex. P.32 notice of Section 57 of NDPS Act was received at S.P. Office Katni is not filed with the challan papers.

Shri Patel (PW/10) during his evidence stated this new fact that City Superintendent of Police was busy with the law and order duty for Dussehra festival, therefore, he allowed him to conduct raid. This fact is not mentioned in any document of the prosecution that C.S.P. was engaged in such duty.

Shri Patel (PW/10) also admitted this fact that to prove that owner of the place of seizure was the appellant; he did not file any document. Shri Patel (PW/10) admitted most important fact that he did not collected any document which goes to show that Dhaba was of ownership of the appellant and shifted this burden on Town Inspector. But, Shri B.S. Rajput (PW/12) also accepted that he did not collect any document which goes to show that on such and such land Dhaba and Betel Tapara were situated. He also admitted that the require certificate of existence of Dhaba and Betel Tapara were also not collected from the authority having record under the shop establishment Act. Patwari Shri Chandra Shekhar Kori (PW/13) firstly stated that the appellant was encroacher of Government land bearing survey No. 179 adjacent to by-pass road, but he also accepted that he did not bring the relevant document with him to show that the appellant has encroached the Government land by constructing a Dhaba on it.

The prosecution story were to be accepted, but in above mentioned facts and circumstances, the liability in respect of the contraband that was seized cannot be fastened on the appellant because there is no evidence to establish any such nexus. There are serious infirmities which would cast some degree of doubt on the question whether the Ganja was recovered from the Betel Tapara was under exclusive possession of the appellant.

Even accepting the prosecution case at its best, the position that emerges is that no evidence was brought forward before the Court in order to indicate that the Betel Tapara, the premises from where the Ganja was allegedly recovered, belonged to the appellant only, that he was in exclusive possession of that premises, that the contraband had been brought there, that the appellant was dealing in it, or had handled it or that he was in any manner concerned with it positively.

It is essential to establish for the prosecution, particularly in the serious nature of case like present one that the appellant and he alone was the person from whose possession the contraband was recovered. His mere presence on the Betel Tapara is not good enough. Having regard to the state of the record, to my mind, the inferences drawn by the learned Trial Judge are wholly unsustainable. The appeal is liable to be allowed and accordingly succeeds. The conviction and sentence recorded against the appellant Radheshyam is set aside. It is directed that the appellant, who is in jail custody, be released forthwith, if not required in connection with any other offence. Fine, if paid, is directed to be refunded to him. The appeal is allowed accordingly.