Shankarlal Patidar vs State Govt. Through Deptt. Of Narcotics

This appeal has been filed by the appellant â€" accused against the judgment of conviction and order of sentence dated 17.10.1997, passed by the

IIIrd Addl. Sessions Judge, Mandsaur, in Special Sessions Trial No.101/94, whereby the appellant has been convicted under Section 8/18 of the

Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Act') and has been sentenced to undergo 10 years RI and to pay fine of

Rs.1,00,000/-. In default of payment of fine two years further R.I.

The prosecution case in brief is that on 31.5.1994, at 9.10 PM, Dinesh Chandra Patidar son of the appellant Shankarlal Patidar was arrested by

CBN at Kila Naka No.8 at Mhow and 2.250 Kg heroin was seized from his possession. This information was given to Madanlal Meena PW2,

SubInspector. After receipt of the aforesaid information, a team was constituted, which includes R.L. Sahu, District Opium Officer, Neemuch block

and three other officials, raided the house of the present appellant on 1.6.1994 at 10.00 AM in the morning in presence of panch witnesses

Shivnarayan PW5 and Rameshwar PW7, they search the house of the present appellant situated at village Balaguda. During search, they found

plastic bag in the courtyard, which the appellant was using to tie the cattle. On opening the aforesaid bag in presence of the panch witnesses,

Shivnarayan PW5 and Rameshwar PW7, they found black substance (opium), which has been identified by Shivnarayan PW5 and Rameshwar PW7

as opium. At that relevant point time, present appellant was not having any valid license to carry the same. Accordingly, the Police personnel apprised

him about their purpose of the visit and to conduct the search of his house and regarding unlawful possession of opium. Seizure memo Exhibit P/2 was

prepared. The seized contraband on being seized and on weighing the same was found to be 800 grms. 30 grms of two packets as samples were

taken and the rest of the contraband was sealed and seized by the seizure officer and panchnama to that effect was prepared. Spot map vide Exhibit

P/3 was prepared. Sealed sample vide Exhibit P/5 was prepared. Report of arrest and seizure was prepared and sent vide Exhibit P/6. Samples of the

seized contraband was sent to the chemical examination vide Exhibit P/20. The report with regard to chemical examination was received vide Exhibit

P/22, wherein the said contraband disclosed to be opium containing 10.12% morphine. On completion of investigation charge-sheet was filed on

13.12.1994 against the accused for the offence punishable under Section 8/18 of the Act.

Thereafter, the case was committed by the District Judge to the IIIrd Additional Sessions Judge on 9.3.1995 and charges were framed against the

appellant for the offence punishable under Section 8/18 of the Act, but the accused pleaded not guilty to the said charge and claimed to be tried.

After considering the oral and documentary evidence, the evidence of PW1 Bhagirath, PW2 Madanlal Meena, PW3 Rajmal Gupta, PW5

Shivnarayan, PW6 Ratanlal Sahu, PW7 Rameshwar, PW8 Bheru Singh and PW9 Narayan Singh as well as evidence of Chemical Analyser's office,

and after considering rival submissions advanced by the learned Counsel for parties, learned trial court convicted and sentenced the appellant for ten

years R.I. with fine as stated hereinabove.

Being aggrieved and dissatisfied by the said order of conviction and sentence, the appellant has preferred the present appeal challenging the same

and prayed for quashment thereof.

At the very outset, it must be understood, the provision of Section 50, would no longer be applicable to a search such as the one made in the present

case as the opium had been carried out at courtyard in a plastic bag. The Apex Court in the case of State of Himachal Pradesh V/s. Pawan Kumar,

(2005) 4 SCC 350, after examining the discrepant views rendered in various judgments of the Court has found that Section 50 of the Act would not

apply to any search or seizure where the article was not being carried on the person of the accused. Admittedly, in the present case, the opium was

lying in one of the open cupboard of the courtyard, which is open place, but exclusively used by the appellant.

Shri Monoj Soni, learned counsel for the respondent, therefore, appears to be right when he contends that the provisions of Section 50 of the Act

would not be applicable.

As per statement of PW2 Madan Meena, after arrest of Dinesh Chandra Patidar son of the present appellant on 31.5.1994 along with 2.250 Kg of

heroin, the followup action was taken and in the aforesaid followup action, house of the appellant was searched and, therefore, the provisions of

Section 42 would not be applicable in the present facts and circumstances. Seizure witness PW7 Rameshwar has been declared hostile and he did not

support the case of the prosecution nor he in his statement has deposed that at the time of search, he was along with the raided team and in his

presence, the recovery of the contraband has been made.

PW5 Shivnarayan has partly supported the case of the prosecution, but in para 4 and 10 of his statement, he has very categorically stated that no

recovery of the contraband from the house of the appellant was made. The recovery was made from the courtyard where the cattles are tied up. The

aforesaid courtyard is an open place.

Learned counsel for the appellant has submitted that the prosecution has failed to prove ownership and possession of the said house and that the

appellant was in conscious and exclusive possession of the contraband article. He further submitted that neither any reason for search nor any search

warrant or any authorization has been obtained and there is total non-compliance of Section 42 of the Act, which is mandatory in nature. He further

submitted that 800 grms opium has been recovered from the courtyard of the house on 1.6.1994. Thereafter, amendment in NDPS Act was made,

which came into force on 2.10.2001 and as per amended provision of NDPS Act now the seized opium would fall under non-commercial category.

In view of the law laid down by the Apex Court in the case of Basheer @ N.P. Basheer V/s. State of Kerala, 2004 (1) EFR 471 , in all cases in

which the trial had concluded and appeals were pending on 2.10.2001, they would have to be disposed of in accordance with Act of 1985, as it stood

before 2.10.2001. He has also submitted that there must be some evidence regarding the fact that the place from where contraband article has been

recovered belongs to exclusively of appellant or he has any domain over the same. In the present case, as per statements of panch witnesses, PW1

Bhagirath and PW7 Rameshwar, the prosecution has failed to prove the ownership and possession of the said house. PW5 Shivnarayan in his

statement very categorically stated that house does not belong to the appellant and no seizure was made from the house, the same was made from

courtyard, which is an open place and no witnesses from the Revenue Deptt. have been examined to prove that the house is exclusively owned by the

present appellant. He also submitted that the safety of sample Exhibit P/14 is doubtful and it has not been proved beyond doubt that the material in

question seized was only sent to chemical examination. Sealing of sample was defective. Seal of article 'D' was broken. In the bag no slip was affixed

and all these facts have been admitted by PW2 Madanlal Meena in his cross examination. His contention is that sealing a sample was defective and

link evidence has also missing. The article which was deposited in Maalkhana with sample of seizure officer has also not been proved and, therefore,

possibility of tempering cannot be ruled out.

With the aforesaid, he submits that the prosecution has failed to prove the charge against the appellant beyond reasonable doubt and looking to the

fact that the appellant is an old man, aged about 70 years, facing the prosecution since

1.6.1994, the impugned appeal be allowed and prayed for acquittal.

Per contra, learned counsel for the respondent/Deptt. has drawn our attention to the reasoning and finding recorded by the trial court, so also the

statement of the material prosecution witnesses namely PW2 Madanlal Meena, PW1 Bhagirath, PW3 Rajmal Gupta, PW6 Ratanlal Sahu, PW8 Bheru

Singh and PW9 Narayan Singh and submitted that all the provisions of the Act, has been duly complied with and the finding of the court below is on

appreciation of evidence on record. The court below recorded the verdict of conviction, which cannot be interfered in absence of the material

evidence and prayed for dismissal of the appeal.Â

During trial, PW1 Bhagirath, who is neighbour of the appellant has been declared hostile. This witness denied the fact that police party seized the

narcotic from the house of the present appellant. In para 5 he has deposed that the appellant â€" Shankarlal is having 5 brother and they all jointly

residing in the house. Courtyard is an open place and any one can enter there. The appellant did not reside there. The courtyard is used for tying the

animals. He also deposed that the appellant's house from the place of occurrence is ½ km away. 15. PW2 Madanlal Meena, in para 11 of his cross

examination has deposed that on 31.5.1994, he received intimation from the District Opium Officer PW6 R.L. Sahu, about the offence committed by

Dinesh Chandra Patidar. In para 13 he admitted that no search warrant was taken by him. To followup, the aforesaid search of the present appellant

was made. PW3 Rajmal Gupta, Secretary Grampanchayat of Badaguda, in his statement has deposed that Shankarlal is having number of houses. In

House No.288/2, there is one courtyard. He has prepared the spot map Exhibit P/8 from the outside of the house and he has not mentioned the

measurement of the courtyard and details of the house.

PW5 Shivnarayan in para 10 of his cross examination has deposed that the courtyard is an open place and is used for tying the cattles and the

appellant was not residing there. He in para 12 has also denied that Shankarlal resides in the house.

PW6 Ratanlal Sahu in para 14 to 15 has made the following deposition in his cross examination which reads as under :-

“14- ckykxqM+k uhep ls yxHkx 40 fd0eh0 nwj gSA ckykxqM+k vkrs gh ge 'kadjyky ds edku ij pys x;s FksA ge eksds ij nksigj rd :ds FksaA ge

yksx lqcg 9&45 cts eksds ij igap x;s Fks ysfdu eksds ij fdrus cts rd jgs ;g ;kn ugha gSsA esjh ikVhZ us ckykxqM+k ea nwljh nch'k ugha nhA ikVhZ

esjs gh usr`Ro esa x;h FkhA ? kVuk LFky dk njoktk iwoZ eq[kh FkkA vkjksih ds edku ls yxk gqvk [kqyk LFkku gS vkSj mlls yxk gqvk Ni~ij gSA vkSj

edku ls yxk gqvk cjkenk Hkh gSA cjkens ls yxk gqvk [kqyk LFkku gS rFkk mlds vkxs Ni~ij gSA

15- [kqys LFkku ds vklikl feV~Vh dh fnokys gS fnokys djhcu ,d iq:""k Ã…aph gSA ckM+s ds vna j tkuoj ca/krs gSA ;g dguk xyr gS fd tc ge yksx

eksds ij igqaps rc ogka vkjksih mifLFkr ugh Fkk vkSj mls [ksr ls cqyok;k x;kA eq>s irk ugha gS fd vkjksih dk edku [ksr ij gS rFkk;g ogha ij jgrk gSA

eq>s ugha ekyqe dh vkjksih ds pkj HkkbZ vkSj gSA eq>s ugh ekyqe dh pkjksa HkkbZ;ksa ds 'kkeykrh eos'kh dfFkr ckM+s esa ca/krs gSAâ€​

PW7 Rameshwar has not supported the case of the prosecution. He in para 1 of his cross examination has very categorically said that at the time

of raid and search of the house of the appellant he was not along with the raiding party. He has also deposed that no opium has been seized in his

presence from the house of the appellant.

PW8 Bheru Singh in para 9 of this cross examination has deposed that courtyard is open place and place of occurrence is courtyard where

appellant used to tie the animals.

The Apex Court in catena of judgments has held that there should exist the evidence regarding the fact that the place from where contraband

article has been recovered belongs to exclusive ownership to the appellant or he has any domain over the same. The evidence as laid by the

prosecution in this regard is shaky and the learned trial court has wrongly put reliance on the same in convicting the appellant.

On due consideration of the facts and circumstances of the case, so also the fact that, no recovery of the contraband has been made from the

exclusive possession of the appellant as well as the testimony of the witnesses are contradictory for connecting the appellant in the alleged offence,

and, therefore, liability in respect of allegedly recovery of contraband opium from the open courtyard in the said house cannot be fastened with the

appellant. Moreover, the recovery is made from ½ km away from the house of the appellant. It is pertinent to note here that at present the appellant

is more than 70 years of age and he is facing the prosecution since year 1994. He was incarceration w.e.f. 1.6.1994 to 7.10.1994 and 25.9.1997 to

17.10.1997. In the circumstances, having substratum of oral and documentary evidence, the prosecution case does not inspire confidence to fasten the

liability of alleged contraband of opium with the accused since the prosecution evidence is short of connecting him with the said crime, as regards,

exclusive and conscious possession of the alleged contraband with the accused, as discussed herein above, and hence, conviction and sentence

recorded against the accused for the charges levelled against him deserves to be quashed and set aside, by allowing the present appeal.

In the result, present appeal is allowed, and conviction and sentence imposed upon the appellant, by way of judgment and order dated 17.10.1997, by

the learned IIIrd Additional District & Sessions Judge, Mandsaur, stands quashed and set aside, and the appellant is acquitted for the charge levelled

against him, and the fine amount, if any, deposited by him, be refunded to him. The appellant is on bail and his bail bond stands cancelled.