Ram Singh vs State of M.P.

N.K. Mody, J.

Being aggrieved by judgment dated 05.03.2008 rendered by Special Judge (NDPS) Neemuch in ST No. 02/06 whereby convicting the appellant for the offence punishable u/s 8/15(c)/29 of the Narcotics Drugs Psychotropic and Substances Act (for short "the Act") and sentencing him to undergo RI for a period of 10 years with fine of Rs. 1,00,000/- in default of payment of fine to suffer further RI for one year, present appeal has been filed.

In short case of the prosecution was that the appellant along with other co-accused Udayram @ Bherulal, Mohandas and Prabhuram were prosecuted for the offence punishable u/s 8/15-C of the Act alleging that on 17.09.2005 at about 9.45 pm appellant was found in possession of 512 Kgs poppy straw which the appellant was carrying in a truck bearing registration No. RJ-22/G-0039 for which the appellant was having no valid licence. Challan was filed and after framing of charge, the appellant was convicted for the offence u/s 8/15-C(29) of the Act and sentenced as stated above. Hence, this appeal.

Learned counsel for the appellant argued at length and submits that appellant was convicted illegally while appellant has not committed any offence. Learned counsel submits that the learned Courts below committed error in not properly appreciating the evidence which resulted incorrect judgment and is liable to be set aside in this appeal. It is submitted that total quantity of poppy straw was 512 Kgs contained in 16 bags. It is submitted that alleged contraband was never produced before learned trial Court during trial. It is submitted that even samples of the contraband were not produced. It is submitted that the learned Court below committed error in not considering that material omissions and contradictions appearing in the testimony of the prosecution witnesses. It is submitted that in view of the aforesaid facts the appeal filed by the appellant deserves to be allowed and the judgment of conviction deserves to be set aside.

Reliance was placed on a decision in the matter of Noor Aaga vs. State of Punjab reported at 2008 (IV) AD (Cri) SC 337 wherein the Hon''ble Apex Court has observed that "We cannot but also take notice of other discrepancies in respect of the physical evidence which are

(i) The bulk was kept in cotton bags as per the Panchanama, Ex. PC, while at the time of receiving them in the malkhana, they were packed in tin as per the deposition of PW/5.

(ii) The seal, which ensures sancity of the physical evidence, was not received along with the materials neither at the malkhana nor at the CFSL, and was not produced in Court.

Physical evidence of a case of this nature being the property of the Court should have been treated to be sacrosanct. Non production thereof would warrant drawing of a negative inference within the meaning of Section 11 (g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution''s endeavour to prove the act of possession of contraband from the appellant.

This aspect of the matter has also been considered by this Court in Jitendra and Another Vs. State of M.P., in the following terms:

In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution particularly where the offence is punishable with a stringent sentence as under the NDPS Act.

In view of the aforesaid decisions, learned counsel submits that only on this short ground the conviction of the appellant is bad in the eye of law and cannot be allowed to sustain. Learned counsel submits that the appellant is in jail with effect from 17.09.2005 and has completed jail sentence for more than 3 years. It is submitted that the appeal be allowed and the judgment of conviction be set aside.

In alternative learned counsel submits that looking to the nature of offence and the fact that appellant has already served substantive part of jail sentence, the same may be reduced to the period already undergone and the amount of fine may reasonably be enhanced.

Shri Devendra Singh, learned Panel lawyer submits that after due appreciation of evidence, learned Court below has found that the appellant has committed offence which requires no interference. It is submitted that in a case where the contraband is in bulk then it is not expected for the prosecution to produce the same in Court. For this contention learned counsel placed reliance on decision in the matter of State of Rajasthan Vs. Udai Lal reported in 2008 SAR (Criminal) SC 543 wherein Hon''ble Apex Court has observed as under:

The High Court failed to take note of the relevant aspect, namely, the quantity of recovery articles is quite huge (119 bags) which could not be produced in the Court but on behalf of the persecution 5 bags have been produced in the Court. It is also seen that besides this at the time of recording the statement investigating officer has produces the samples of articles taken from the seized articles in the Court. In such circumstances, considering the huge quantity merely because the prosecution has not produced all the 119 bags in the Court, an inference cannot be drawn against them. As mentioned above, and rightly noted by the Special Judge that at the time of recording the statement Investigating Officer had produced the samples of the articles in the Court. This relevant aspect has also not properly dealt with by the High Court." While disposing of the appeal Hon''ble Apex Court has further observed that High Court is free to arrive such conclusion on consideration of the entire materials.

From perusal of the record it is evident that in the present case contraband article was poppy straw which was weighing 512 Kgs and it is no more in dispute that the same was not produced before the learned Court below during trial. In the matter of Uday (Supra) contraband was poppy straw which was in 119 bags but on behalf of the prosecution 5 bags were produced in Court and the samples were also produced which were taken at the time of investigation. Thus the law laid down by the Rajsthan High Court in the matter of State of Rajasthan vs. Udai Lal (Supra) is quite distinguishable.

Taking into consideration the totality of the circumstances, the evidence available on record and the fact that prosecution has failed in proving its case beyond shadow of doubt or to a reasonable certainty and that the accused persons have given a serious blow/dent to the prosecution case, appeal stands allowed and the judgment delivered by the Special Judge, {NDPS Act} Neemuch and the sentence awarded to the accused is set aside and respondent is directed to be relea. (sic) amount of fine has been deposited by the appellant, the same be returned to him. The appropriate release warrant be issued to the jail concerned with a clear mention that if the accused person are not required in any other case then he be immediately set at liberty.