State of Madhya Pradesh vs Santosh Tiwari

N.K. Gupta, J—The State has preferred the present appeal being aggrieved with the judgment dated 30.1.1996 passed by the 3rd Additional Sessions Judge, Hoshangabad in S.T. No. 164/1995, whereby the respondent has been acquitted from the charge of offence under Section 20(b) of the Narcotic Drugs and Psychotropic Substance Act, 1985 (in short ''the N.D.P.S. Act'').

Facts of the case, in short are that on 17.3.1995, SHO, GRP Itarasi had received an information that by Southern Express Train, the respondent Santosh Kumar was bringing some Ganja from Warangal and that train would come at platform no. 1 of Itarsi, Railway Station. At platform no. 1, the respondent Santosh Kumar and one Ramesh Mishra were caught with some Ganja. Case of Ramesh Mishra was filed separately. The respondent claimed his search from any Gazetted Officer and therefore, the investigation officer Shri Upendra Dixit (PW-3) contacted the SDM Itarsi, who sent a Tahsildar S.P. Tiwari (PW-4) to complete the procedure of seizure. Various notices were given to the respondent and memos were prepared. Thereafter, two packets of Ganja were recovered from the respondent. In one packet, 4 kgs. of Ganja was found and in another packet, 800 gms. of Ganja was found. Sample was taken from seized Ganja and duly sent to the Forensic Science Laboratory for analysis. In report Ex.P/16, it was found that the articles sent to the Forensic Science Laboratory was Ganja. After due investigation, the charge sheet was filed before the Special Judge and ultimately, case was transferred to the 3rd Additional Sessions Judge, Hoshangabad.

The respondent abjured his guilt. He did not take any specific plea. However, he has stated that he was falsely implicated in the matter but no defence evidence was adduced.

The trial Court after considering the prosecution''s evidence acquitted the respondent from the charges appended against him.

Since appeal is old and no one was appearing on behalf of the respondent therefore, Shri Ajay Tamrakar, Advocate, whose name is in the panel of High Court Legal Services Committee and who has a vast experience in dealing with the criminal cases was appointed to argue the matter for the respondent. Thereafter, I have heard the learned counsel for the parties.

The trial Court found that the investigation officer Upendra Dixit (PW-3) did not follow the Provision of Section 50 of the NDPS Act and other independent witnesses have turned hostile. Looking to the conduct of Shri Upendra Dixit (PW-3), his testimony was not believable. After considering the various documents, it would be apparent that so many mistakes have been committed by Shri Upendra Dixit while dealing with seizure of Ganja and therefore, his testimony cannot be believed beyond doubt. It was for Shri Dixit to establish that the respondent was informed about the Provision of Section 50 of the NDPS Act prior to his search. Shri Dixit had shown a notice Ex.P/12 that it was given to the respondent. However, he was asked a specific question by the defence counsel in the cross-examination that when all the documents were prepared in presence of the witnesses, date and time was mentioned on the documents then, as to why neither signature of all the witnesses were taken on document Ex.P/12 nor any time has been mentioned in such notice then, Shri Dixit could not give any satisfactory answer.

If the document Ex.P/1 is examined then, it is the document relating to the identification of Ganja kept by the respondent, which was prepared on 17.3.1995 at about 3:05 p.m., in which it is mentioned that Ganja kept by the respondent was shown to the witnesses and its very small portion was burnt and smell was observed by the witnesses and found that the material was Ganja. Thereafter, at about 3:15 p.m., a memo Ex.P/2 was prepared, in which it was mentioned that whether the respondent wanted to get his search from any Gazetted Officer or by Shri Dixit. When the memo Ex.P/2 has been prepared for seeking the consent of the respondent then, there was no need to issue a notice as Ex.P/12. In notice Ex.P/12, it is mentioned that one copy of notice was given to the respondent but, his reply was not mentioned on the notice. It was for Shri Dixit to prepare a memo that a written notice was given and reply was obtained from the respondent. Shri Dixit has stated that on the wishes of the respondent, he contacted the SDM concerned and therefore, Tahsildar Shri S.P. Tiwari (PW-4) was sent by SDM concerned in making the authentic procedure adopted by Shri Dixit. However, in the memo Ex.P/2, it is not mentioned that a separate notice Ex.P/12 was given to the respondent and thereafter, the memo was prepared. Also Tahsildar Shri S.P. Tiwari (PW-4) has proved the document Ex.P/4, a seizure memo. According to Shri Tiwari, he went to the GRP Police Station, Itarsi and in the campus of police station, 4.8 kgs. of Ganja was recovered in two packets from the respondent. When a notice was given to the respondent as to whether he wanted to get his search before a Gazetted Officer then, it was not possible for Shri Dixit to take the Ganja prior to arrival of Tahsildar Shri Tiwari.

The seizure memo Ex.P/4 was prepared at 3:30 p.m., whereas Shri Dixit had already taken alleged Ganja in custody and burning test of Ganja was already performed at 3:05 p.m. as per document Ex.P/1 therefore, Shri Dixit did not wait for arrival of a Gazetted Officer for search. Similarly, by the document Ex.P/2, it was allegedly informed the respondent that he could get his search by a Higher Officer including a Gazetted Officer but thereafter, at about 3:20 p.m., a memo Ex.P/3 was prepared, which was related to weighing of Ganja. According to the documents Exs.P/1 to P/3, procedure mentioned in these document has been done at Police Station GRP, Itarsi. When the respondent was found at platform no. 1 then, either such procedure was to be done at that place or if Shri Dixit did wait for Tahsildar Shri S.P. Tiwari then, he had to prove that the respondent alongwith the Ganja was taken to the Police Station, GRP in a safe custody and that the Ganja was not recovered from anyone else.

According to Shri Upendra Dixit, he recorded a Roznamchasanah Ex.P/10 in consequence of information received. If text of Roznamchasanah Ex.P/10 is perused then, it was mentioned that various constables or Head constables of Police Station were sent to the platform no. 1 in consequence of information received and a Roznamchasanah Ex.P/9 was recorded. The information was received by an unknown person that Ganja was to be brought by Southern Express Train from Warangal. When a definite information has been received by the police then, the duty of various constables and staff was to be fixed for the platform no. 1 where the Southern Express Train had to be arrived. However, in Roznamchasanah Ex.P/10, it is clear that various constables and Head Constables had been sent to various platforms including the platform no. 1 of Itarsi Railway Station. Also from the document Ex.P/10, it is clear that Shri Dixit neither took the witnesses alongwith him on the platform no. 1, where Southern Express Train was expected to arrive nor called them at platform no. 1, when the respondent was caught. Hence, the independent witnesses Sheikh Habib (PW-1) and Sadique Khan (PW-2) have turned hostile because they did not know from where the respondent or Ganja was brought to the police station.

Shri Upendra Dixit called the witnesses when, the respondent was already taken from the platform no. 1 to the campus of GRP Police Station, Itarsi. Hence, if remaining process has been done before the witnesses at Police Station, GRP campus then, the witnesses could not state as to whether the respondent boarded down from Southern Express Train or he came from Warangal. The respondent was resident of Itarsi and he could be taken from the city to the police station GRP to make such proceedings and therefore, it was for Shri Upendra Dixit to seize the journey ticket of the respondent that he boarded down from the Southern Express Train or he came from Varangal as shown in the information received by Shri Dixit. When the independent witnesses have turned hostile, the testimony of the investigation officer cannot be discarded only because the independent witnesses have turned hostile. The testimony of investigation officer is to be examined on its merits.

As discussed above, the information was received by Shri Dixit that two persons were coming by Southern Express Train and bringing some Ganja from Warangal. Shri Dixit could have seized the journey ticket of the respondent Santosh and he could have been examined, various constables, who helped him in bringing the respondent from Railway Station, Itarsi from platform no. 1 to the campus of Police Station GRP, but no police officials has been examined to establish such facts. Similarly, notice Ex.P/12 is prepared after completion of the entire proceedings to show the presence of Tahsildar Shri S.P. Tiwari. S.P. Tiwari has participated in preparation of seizure memo Ex.P/4, but he did not know from where the respondent was brought and from where alleged Ganja was brought by Shri Upendra Dixit. After examining the memos Exs.P/1 to P/3, it would be clear that without waiting for Tahsildar Shri Tiwari, Shri Dixit started the proceeding of identification of material seized and weighing of material seized, which indicates that he had already taken the Ganja in his custody. Under these circumstances, the trial Court has rightly found that Shri Dixit did not comply the mandatory Provisions of Section 50 of the NDPS Act.

When a sever penal Provision is enacted then, before recording the conviction, acceptable evidence is to be given by the prosecution. However, looking to the conduct of Shri Dixit, he spoiled the entire case. He did not follow the Provisions of Section 50 of the NDPS Act as well as the golden rules of seizure and transmission of sample to the Forensic Science Laboratory. As discussed above, he did not wait for Tahsildar Shri Tiwari and started his proceedings and ultimately signature of Shri S.P. Tiwari was taken on the seizure memo Ex.P/4. According to seizure memo, there were two different packets of Ganja. If text of seizure memo Ex.P/4 is perused then, it is shown that in a polythene bag, 4 kgs. of Ganja was found and another packet 800 gms. of Ganja was found thereafter, Shri Dixit took two samples of 50 gms. of Ganja. However, it was not mentioned as to whether samples were taken from the packet containing 4 kgs. of Ganja or any sample was taken from packet having 800 gms. of Ganja. He did not make it clear in the seizure memo Ex.P/4 that, from which packet, he took the samples. In text of seizure memo Ex.P/4, it is not mentioned that either two packets of Ganja or two samples taken, were sealed in presence of Shri S.P. Tiwari though, an impression of brass seal was affixed on seizure memo Ex.P/4. Shri S.P. Tiwari (PW-4) has stated about seizure of Ganja but neither he mentioned anything about taking sample of Ganja nor he stated that Ganja was sealed before him and therefore, it appears that alleged Ganja was sealed much after of preparation of seizure memo. A brass seal of police station remains available with SHO and therefore, he can use such seal, if he wants to change the property seized. Hence, in absence of any support received from Tahsildar Shri S.P. Tiwari, it cannot be said that the seized Ganja and its samples were sealed before the witnesses especially, Tahsildar Shri S.P. Tiwari. It was for the investigation officer to establish that material, which was seized and sample taken from the packets were kept in the police station with security and the sample has been transmitted to the Forensic Science Laboratory in the sealed condition. However, Shri Dixit could not prove that after seizure, the alleged Ganja and its samples were sealed soon after the seizure. He did not produce the Head Constable, In-charge of Malkhana of Police Station GRP to show that he immediately handed over the sealed Ganja and samples to In-charge Malkhana and thereafter, those samples were transmitted to the Forensic Science Laboratory. Hence, it cannot be said beyond doubt that the samples sent to the Forensic Science Laboratory were the same, which were taken by Shri Upendra Dixit from seized Ganja. It is also not proved beyond doubt that he took sample of articles allegedly seized from the respondent and therefore, report Ex.P/16 received from Forensic Science Laboratory cannot be used against the respondent.

On the basis of aforesaid discussion, looking to the conduct of Shri Upendra Dixit, his testimony was rightly disbelieved by the trial Court. The prosecution has failed to prove that any Ganja was recovered from the respondent or he brought that Ganja from Warangal. Hence, the trial Court has rightly acquitted the respondent from the charge of offence under Section 20(b) of the N.D.P.S. Act. There is no reason to accept the present appeal against the judgment of acquittal. Consequently, in absence of any ground, the present appeal filed by the State against the judgment of acquittal is hereby dismissed.

The respondent is on bail. His presence is no more required before the Court and therefore, it is directed that his bail bonds shall stand discharged.

Copy of the judgment be sent to the trial Court alongwith its record for information.