Roopchand Kharol Bherulal vs State of Madhya Pradesh

Hon''ble Shri Justice Anil Kumar Sharma

Appellants have filed this appeal u/s 374 of the Criminal Procedure Code against judgment dated 21.11.1997 passed by learned Special Judge (NDPS Act), Neemuch (MP) in Special Case No. 163/1996, whereby appellants have 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 them to undergo rigorous imprisonment for ten years and fine of Rs. 1,00,000/-each has also been imposed upon them, with default stipulation. Brief facts of the case are that on 22.09.1996, R.R. Lohare, Sub Inspector, Police Station, Baghana, District Mandsaur, after receiving information from the informer, went to village Bhatkhanda and in presence of the witnesses searched Dhaba and house of appellants, in presence of appellant Roopchand, who is son of appellant Bherulal and seized 50 grams of opium from Dhaba and kilograms of opium from house of the appellants. After preparing necessary panchnamas, a crime has been registered and a challan has been filed against appellants. Learned trial Court, after trial of the appellants for the charge of offence punishable u/s 8/18 of the NDPS Act, convicted them for those offences and sentenced them, as mentioned in paragraph No. 1 of the judgment.

Being aggrieved by the impugned judgment, appellants have filed this appeal on the ground that learned trial Court is not justified in convicting appellants on the basis of unreliable testimony of prosecution witnesses. There is non-compliance of mandatory provisions of NDPS Act.

Main point for consideration in this appeal is whether learned trial Court is justified in convicting appellants by the impugned judgment.

Learned Counsel for the appellants has submitted that independent witnesses Govind Singh (PW-2) and Hari Singh (PW-3) have turned hostile. Therefore, there is only evidence of Police Officers against the appellants. Sub Inspector R.R. Lohare (PW-8) in his statement has stated that on reaching Dhaba of appellants, he found that son of Bherulal was there. He informed him regarding opium in their house. He wants to search Dhaba and house. If he wants, he can be searched before Magistrate or Gazetted Officer. Roopchand agreed to give consent to be searched by him.

Learned Counsel for appellants has submitted that obtaining of consent for search and informing that appellants can be searched before Gazetted Officer or Magistrate is not in accordance with provisions of Section 50 (1) of the NDPS Act, which provides for communication of right to the accused, that he can get searched by Magistrate or Gazetted Officer. Therefore, simply by proposing options for search to the accused, it cannot be said that appellants have been communicated about their right of being searched before the Magistrate or Gazetted Officer.

Learned Counsel for appellants has cited judgment of Hon''ble Apex Court in the matter of Myla Venkateshwarlu v. State of Andhra Pradesh reported in 2012 (2) SCC 686, in which it has been held that strict compliance of provisions of Section 50 (1) of the NDPS Act is expected. Right of person concerned of being taken to nearest gazetted officer or nearest Magistrate for making search is necessary to be communicated to him. Circle Inspector who proposing to search person of accused in present case asked them "whether they wanted any other gazetted officer for their search and seizure in addition to him" or that "they have a right to have another gazetted officer in addition to him", did not amount to a communication of their right to have the search conducted in presence of a Magistrate or a gazetted officer, since there is no clear communication of the said right. The conviction of accused was based solely on recovery of narcotic substance in said vitiated search, their conviction set aside.

Learned Counsel for appellants has further drawn attention towards the statement of R.R. Lohare (PW-8), who in his cross-examination, has admitted that jute bag inside the bag having any seal and article D-2 is also not having any seal on stitching side. There is no slip on article A/4. Blue cloth in which seized articles were sealed have no crime number or name of the accused or any other particulars and even slip signed by the witnesses is also not there. Learned Counsel for appellants has further drawn attention towards the fact that absence of seal and slip of signatures on various articles shows that seized articles were not kept in proper and safe condition from seizure till they have been sent for chemical examination. Therefore, there is no compliance of provisions of Section 57 of the NDPS Act. Malkhana register has not been produced before the trial Court. Therefore, there is non-compliance of mandatory provisions of Section 57 of the NDPS Act. Therefore, learned trial Court has erred in convicting appellants.

Learned Counsel for the appellants has further submitted that seizure memo Ex. P/6 does not mention that so-called opium seized from Dhaba has been sealed at the time of seizure. For seizure and sealing another panchnama Ex. P/9 has been prepared, therefore, two panchnamas for the same seizure of opium has been prepared.

Learned Counsel for appellants has further submitted that by Ex. P/9 license of Dhaba (Hotel) dated 27.06.1995 has also been seized. Seizure has been made on 22.09.1996 and Food Inspector S.N. Shrivastava (PW-7) has stated that license Ex. P/18 has been issued in the name of Bherulal, which was valid till 31.05.1996. Therefore, license Ex. P/18 cannot be treated as evidence of ownership of Bherulal regarding Dhaba. Further, Munnalal (PW-9), who was Sarpanch of Gram Panchayat, Kalukothori, has admitted in cross-examination that in the Property Tax Register of Panchayat there is no house in the name of Bherulal. Therefore, ownership of appellants over Dhaba and house searched by the Police has not been established beyond reasonable doubt.

Therefore, looking to the non-compliance of mandatory provisions of Sections 50 (1) and 57 of the NDPS Act and in absence of evidence regarding ownership of Dhaba and house, learned trial Court is not justified in convicting the appellants for the offence punishable u/s 8/18 of the NDPS Act. Further, absence of seal and slip signed by the witnesses over some of the articles also creates doubt that seized articles were kept intact till they have been sent for chemical examination. Therefore, learned trial Court is not justified in convicting appellants by the impugned judgment. Therefore, appeal filed by the appellants is allowed, setting aside the impugned judgment. Appellants are acquitted from the charges of offence punishable u/s 8/18 of the NDPS Act. Fine amount, if deposited by the appellants, be refunded to them. Bail bonds of the appellants are discharged.