Vinod Namdeo vs State of M.P.

Manindra Mohan Shrivastava, J.—This criminal appeal is directed against the judgment of conviction and order of sentence dated 29th May, 2000 passed by learned Special Judge (NDPS) in Special Case No. 39/1999, by which the Appellant has been found guilty for commission of offence u/s 20(b) & 22 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as "the N.D.P.S Act") and has been sentenced to undergo R.I. for 2 years u/s 20(b) and R.I. for 10 years with a fine of Rs. 1,00,000 u/s 22 of the NDPS Act and in default of payment of fine, additional R.I. for 3 years.

The case of the prosecution is that on 16.3.1999, an information was received by Bholanath Singh (PW5), A.S.I. of Police Station Ambikapur that the Appellant is selling ganja and brown sugar in front of his house. The information was taken in writing under rojnamcha sanha No. 1268 (Annexure P24). Vide Ex. P2, Bholanath Singh (PW5) recorded reasons for proceeding without obtaining search warrant and information to the City Superintendent of Police was sent vide Ex. P1 in compliance of mandatory provision contained in Section 42(2) of the NDPS Act. Thereafter, Bholanath Singh (PW5) proceeded to the scene of occurrence along with his team by recording his departure at 16.40. After reaching the place of occurrence at Brahampara (Ghasiapara), summons of Ex.P4 B was given to Md. Saleem (PW3) and Shashid Khan (PW4) to record their presence and be witness to the proceedings. Thereafter, the accused having been found on the road, identification memo in Ex. P5 was prepared and then a notice in Ex. P6 was given to the Appellant informing that information has been received that Appellant is possessed of ganja and brown sugar and selling and was asked whether he wanted his search to be made by a gazetted officer or by a Magistrate or by the Assistant Sub Inspector, whereupon, the Appellant gave his consent for being searched by A.S.I. by recording the same in writing on the notice under signature in the presence of witnesses. Thereafter, A.S.I. Bholanath Singh (PW5) was searched by the Appellant in the presence of witnesses and search memo in Ex. P7 was prepared. Thereafter Md. Saleem (PW3) & Shahid Khan (PW4) and constables Rakesh Kumar & Pushpraj Singh were searched and panchnama in Ex. P8 was prepared. Thereafter, Md. Saleem (PW3) & Shahid Khan (PW 4) searched A.S.I. Bholanath Singh (PW5) and panchnama in Ex. P14 was prepared. After completion of the search of team of police and panch witnesses, the Appellant was bodily searched and from pocket of Kurta worn by him, 2 small packets of brown sugar were recovered and ganja was recovered from a plastic bag carried by the Appellant in his hand. Search memo in Ex. P9 was prepared. Visual and smell identification was carried out and it was identified as ganja and brown sugar. A panchnama in Ex. P10 was prepared to this effect. Contraband was then weighed and sealed and a panchnama was also prepared vide Ex. P12. Thereafter, the contraband was seized vide seizure memo of Ex.P13. A dehati nalishi was recorded at the spot vide Ex. P15 and map of the spot was also prepared vide Ex. P11. The Appellant was arrested and a memo in Ex. P16 was prepared. Reasons for arrest were recorded vide Ex. P17 and information of such arrest was given to the wife of the Appellant vide Ex.P18. First information report in Ex. P19 was then recorded in the police station and information was sent to Special Court vide Ex. P20 and the details of search, seizure and arrest were forwarded to the City Superintendent of Police vide Ex.P3. Seized article were handed over to the custody of Malkhana Moharrir of the police station and an acknowledgment of receipt in Ex. P4 was obtained. In Ex. P5 (C), entry regarding deposit of seized article in Malkhana was recorded, which related to rojnamcha sanha No. 1285 in Ex. P26. City Superintendent of Police checked the seal packets which were found intact, which fact was recorded in rojnamcha sanha No. 2094 (Ex. P28). Then an entry with regard to dispatch to Forensic Science Laboratory (FSL) was made in Malkhana Register vide entry in Ex.P29. The F.S.L. report was received from F.S.L. in Ex. P22 wherein 2 sealed packets Articles A & B which were found sealed as per the sample of seal were found containing ganja (packet A) and heroin (packet B).

After completing usual investigation, a charge sheet was filed. The learned Special Court on the basis of material and police report, framed charges against the Appellant alleging commission of offense u/s 20(b) & 22 of the N.D.P.S. Act. The Appellant abjured his guilt and pleaded innocence.

Prosecution, in order to prove its case examined Markande Mishra (PW1), Jitendra, Singh (PW2), Md. Saleem (PW3), Shahid Khan (PW4) & Bholanath Singh (PW5) & Dharamveer Singh Yadav (PW6). Accused examination u/s 313 of Code of Criminal Procedure was made by the learned trial Court and the Appellant was asked regarding incriminating evidence and circumstances appearing against him. The Appellant denied all the circumstances and stated that he was arrested from the area, taken to the police station and his signatures were obtained on 7-8 papers.

The Appellant examined Chandradatt Tiwari as defence Witness No. 1 & Jagatram as defence witness 2.

After examining the prosecution and defence Witnesses and considering oral and documentary evidence on record, the learned trial Court found the Appellant guilty of commission of offence u/s 20(b) & 22 of the NDPS Act and sentenced him as mentioned in paragraph 1 of this judgment.

Assailing the judgment of conviction and order of sentence, in this appeal, learned Counsel for the Appellant has made twofold submissions. The first and foremost submission of learned Counsel for the Appellant is that the judgment of conviction is vitiated on account of violation of mandatory provision contained in Section 50 of NDPS Act. The second submission is that the entire case of the prosecution is highly doubtful and it is a case of false implication as both independent panch Witnesses Md. Saleem (P W3) & Shahid Khan (PW4) have not supported the case of the prosecution.

Learned Counsel for the Appellant argues that as the provision relating to punishment in relation to contravention of provision contained in NDPS Act provided for stringent punishment, the mandatory provision in Section 50 are required to be scrupulously followed in letter as well as in spirit. It is contended that the prosecution has failed to prove beyond doubt that before effecting seizure on the person of the Appellant, the mandatory requirements of Section 50 were followed. It is then contended that there are glaring discrepancies in the statements of prosecution witnesses on all material particulars. The panch witnesses who were the only independent witnesses have not supported the case of the prosecution on all aspects right from the preparation of notice u/s 50 till effecting seizure. He submits that in such a case where the seizure is not at all proved and seizure witnesses have not supported the case of the prosecution, the entire case of the prosecution becomes highly doubtful and the Appellant could not subjected to rigorous punishment on such material brought by the prosecution during the trial. Learned Counsel for the Appellant in support of his arguments placed reliance on the judgments of Supreme Court in the cases of Bhola Ram Kushwaha v. State of M.P. 2000(7) SC 500: 2000(4) Crimes 232: AIR 2001 SC 229. Ritesh Chakarvarti v. State of M.P. 2006(8) SC 902: 2007(1) Crimes 35: (2007) 1 SCC 744; and State of U.P. v. Subhash Kumar Singh Tomar 2009(4) SC 42 : 2009(2) Crimes 386: (2010)1 SCC 702..

On the other hand, learned Counsel for the State has supported the impugned judgment of conviction and order of sentence and it has been argued that there is substantial compliance of the provision contained in Section 50 of the NDPS Act which has been dully proved by the Investigating Officer Bholanath Singh (PW5), who has deposed in his testimony and has also proved by placing all documentary evidence in this regard, that the Appellant was informed regarding receipt of information and intention to carry out search and was asked if he required search to be carried out by a gazetted officer/Magistrate and only after he gave his consent he was searched. He submits that the each and every step of proceedings was duly recorded in panchnama which has been proved by the Investigating Officer. Learned Counsel for the Appellant further submits that appropriate seizure was made which has been proved by the Investigating Officer. He argues that even if the two independent panch witnesses namely Md. Saleem (PW3) & Shahid Khan (PW4) have not supported the case of the prosecution and turned hostile, nevertheless, they have admitted their signatures on all the documents. As the entire proceedings has been properly and genuinely carried out, which has been proved by the Investigating Officer (PW5), the entire case of the prosecution and the evidence on record with regard to search and seizure cannot be discarded only on the ground that the seizure witnesses have not supported. He also submits that all mandatory provisions under the NDPS Act with regard to recording of Information, sending information u/s 42(2), search notice u/s 50, information to higher authority u/s 57 and safe custody of the seized article as required u/s 55 of the NDPS Act were scrupulously followed and such compliance have been proved by oral and documentary evidence on record led by the prosecution, which goes to prove that the seizure was genuinely made. He further submits that in so far as seizure of ganja kept in a packet carried by the Appellant is concerned, provision of Section 50 are not attracted though the seizure of not only brown sugar but ganja has also been made only after complying the mandatory requirement of Section 50 of the NDPS Act. Learned Counsel for the State placed reliance in the judgments of Supreme Court in the cases of P.P. Fathima Vs. State of Kerala, Crimes 390 Bhola Ram Kushwaha v. State or M.P. (supra).

In the light of submissions made by learned Counsel for the parties and the ground raised in this appeal, the first question which arises for consideration is whether the mandatory provision contained in Section 50 of the NDPS Act, if at all applicable, were complied with in letter and spirit so as to sustain conviction of the Appellant for alleged offences. A.S.I. Bholanath Singh (PW5) is the Investigating Officer, who has been examined at length. He has deposed that on 16.3.1999, information from informant was received that the Appellant is possessed of brown sugar and ganja and selling the same in front of his house at Bramhpara (Ghasiapara), Ambikapur. The same was recorded in writing at rojnamcha sanha No. 1268 and a separate panchnama was prepared vide Ex.P1. Constable Markande Mishra (PW1) has deposed that he was posted in the office of SDO (P), Ambikapur and information of Ex. P1 was received by him and he had given an endorsement on the same. He has also deposed that Bholanath Singh (PW5) informed the reasons for proceeding to the scene of occurrence without obtaining search warrant and information to that effect was also received vide Ex.P2, on which also, there is endorsement of receipt written and signed by him. He also deposed that detailed information regarding proceeding to the scene of occurrence contained in Ex. P3 was also sent, which has also been received by the office and the same contains endorsement in his writing and signature. Investigating Officer Bholanath Singh (PW5) has also deposed in his testimony that after reaching at the spot as per information, the notice u/s 50 of the NDPS Act was given to the Appellant vide Ex. P6 and the Appellant was informed that information has been received that the Appellant is keeping brown sugar and ganja and selling the same and therefore his search is required. He has also deposed that the Appellant was informed by the said notice that he may get himself searched by a gazetted officer or by a Magistrate, whereafter, the Appellant in the presence of witnesses, in writing, stated that that he gives his consent for being searched by the Investigating Officer Bholanath Singh, A.S.I. (PW5). The said notice of Section 50 in Ex. P6 has been proved. The Investigating Officer further deposed that he and other departmental persons as also panch witnesses had offered and searched by the Appellant and therefore the Appellant was searched. Though in the cross-examination, a suggestion has been given that notice was not given to the Appellant and it was prepared in the police station later on, but the same has been specifically denied and there is no other discrepancy or circumstance to raise any suspicion with regard to compliance of mandatory requirements of Section 50 of the NDPS Act. The Investigating Office made coherent statement both in his examination-in-chief as well as in his cross-examination with regard to compliance of provision contained in Section 50 of the NDPS Act in the matter of search of the accused and nothing has come out in the nature of any material contradiction or variance in his clear, reliable and cogent testimony.

The two independent panch witnesses Md. Saleem (PW3) & Shahid Khan (PW4) have not supported the case of the prosecution and even declared hostile. However, both Md. Saleem (PW3) & Shahid Khan (PW4) have, admitted that they had put their signatures in Ex. P4 (B), P5, P6, P7, P8, P9 & P10. Both of them have stated that when they had gone to police station in connection with release of vehicle, the police obtained their signatures on 8 to 10 papers. However, neither those witnesses have given the details of the case regarding release of vehicle nor the Appellant in his defence has come out with details. As the compliance of mandatory requirement of Section 50 of the NDPS Act has been proved by the Investigating Officer Bholanath Singh (PW5) and there is nothing to doubt about the genuineness of the proceedings drawn by him, as has been discussed above, it has to be held that the provision contained in Section 50 were duly and substantially complied with by the prosecution before carrying out search of the Appellant,. Learned Counsel for the Appellant placed reliance in the case of Ritesh Chakarvarti (supra).

In that case the Supreme Court, taking into consideration several discrepancies and peculiar facts and circumstances in that case, came to the conclusion that serious doubt crept in. Such are not the facts and circumstances in the present case. As discussed above, the proceedings drawn by the Investigating Officer with regard to compliance of mandatory requirements of Section 50 have been proved by reliable, trustworthy and consistent testimony of Investigating Officer- Bholanath Singh (PW5), whose testimony remained unshaken and therefore, inspires confidence. Each and every proceeding right from the receipt of information till search has been effected, have been proved by the Investigating Officer in his testimony, which goes to show that the Investigating Officer meticulously followed the mandate of Section 50 of the NDPS Act before conducting search of the body of the Appellant.

The next submission of learned Counsel for the Appellant is that in the present case as the 2 independent panch witnesses have turned hostile and not supported the case of the prosecution, therefore, the entire case of the prosecution has become doubtful and the Appellant is entitled to benefit, of doubt needs to be examined.

In the paragraph hereinabove, this Court has discussed the manner in which the investigating officer proceeded in the matter. If this is minutely examined, it would be revealed that the investigating officer complied with the various mandatory requirements contained in Sections 42 & 50 of the NDPS Act. The information received in the police station was dully recorded in the rojnamcha sanha; information was duly forwarded to the next higher authority; reasons for not obtaining search warrant were dully recorded. The investigating officer got conducted his personal search as also search of all other department persons and independent panch witnesses, from the accused and. thereafter, the accused was bodily searched. For every step of proceedings, the investigating officer has prepared panchnama which was followed by seizure of contraband from the Appellant.

The investigating officer Bholanath Singh (PW5), in his testimony, has proved that two small packets of brown sugar were recovered from the pocket of kurta worn by the Appellant and ganja was recovered from plastic bag carried by the Appellant. Search memo, Ex. P9, was prepared as deposed by the investigating officer. Thereafter, samras panchnama in Ex.P10 was also prepared. The investigating officer deposed that seized ganja and brown sugar were got weighed and seizure was effected vide seizure memo of Ex.P13. He has also deposed that at the spot itself, dehati nalishi, Ex15, was recorded by him, map of the spot was prepared vide Ex.P11. The investigating officer has further stated in his testimony that the details of search and seizure were informed to C.S.P. vide Ex.P3. He has also deposed that a memo of arrest was prepared vide Ex.P16 and a written information to the accused was given at the spot vide Ex.P17 and information was sent to his wife vide Ex.P18. After returning to the police station, the offence was registered in FIR (Ex.P19) proved by him. On 17.5.1999, the copy of FIR, search memo, seizure memo and arrest memo were submitted in the Special Court vide Ex.P20. He also stated that after returning to police station, the seized articles were given to Jitendra Singh (PW2) for keeping the same in safe custody vide Ex. P4. The investigating officer has also stated and proved various rojnamcha sanha recorded in the police station regarding receipt of information, departure, details of proceedings drawn at the spot, safe custody of brown sugar and ganja and verification of custody of seized article by CSP. The relevant entries in Malkhana register Ex. P2 have also been produced and proved by the investigating officer.

Markande Mishra (PW1) has deposed that the said information Ex.P3 was received by him and he put his signature and endorsement made on the Ex.P3.

The trustworthy and reliable testimony of Investigating Officer has remained unshaken even in the cross-examination on all material aspects and he specifically denied suggestion that the signature of the panch witnesses were obtained in the police station when they had come to police station in connection with release of vehicle. He has been subjected to a very detailed and lengthy cross-examination by the defence, but he stuck to his version. On various aspects of investigation, he is corroborated by Markande Mishra (PW1), Jitendra Singh (PW2) & Dharmveer Singh (PW6), who were departmental witnesses.

The panch witnesses have also admitted their signatures in various documents including seizure memo. Both Md. Saleem (PW3) & Shahid Khan (PW4) have admitted their signatures on the documents which have been proved by the Investigating Officer. They did not say that their signatures were obtained on blank papers. Though they have stated in their testimony that their signatures were obtained when they had gone to police station in connection with release of their vehicle, no such details have been given by those witnesses as to what was the number of vehicle and in which Court proceeding case they arrived at in the police station. The defence has also not placed any material on record either in the form of oral or documentary evidence that the two witnesses of the prosecution has come in connection with release of any vehicle.

In the case of Bhola Ram Kushwaha (supra), dealing with the submission that as independent witnesses have turned hostile, accused is entitled to be acquitted, it, was held:

Learned Counsel appearing for the Appellant submitted that as both the witnesses who were stated to be independent witnesses have turned hostile, the trial Court should have acquitted the accused. We are not impressed with such a general submission. In order to satisfy ourselves we have perused the statements of all the prosecution witnesses and ascertained as to whether their testimonies inspire confidence for holding the Appellant guilty of the offence for which he has been convicted and sentenced.

In the case of P.P. Beeran Vs. State of Kerala, similar arguments were raised, which was dealt by the Supreme Court in following words:

The case alleged against him shows that he was found in possession of 23.5 grams of opium at the time when he was intercepted and searched by PW2 Sub-Inspector of police. We have noticed that two witnesses were called by PW2 at the time of search out of whom one was examined as PW1 and the other was not examined. But even the one examined (PW1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr R. Venkataramani, learned Senior Counsel for the Appellant that the evidence of PW2 Sub-Inspector of Police remained uncorroborated and, therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW2 on that ground alone. Even otherwise, it cannot be said that the evidence of PW2 remains uncorroborated because the fact that opium was recovered from his person and also Exhibit P2 which is an endorsement containing the sig-nature of the Appellant could be treated as circumstances corroborating the testimony of PW2.

In the case of P.P. Fathima (supra), the Supreme Court examined the entire case of the prosecution and having come to the conclusion that seizure was genuinely made by the seizing authority held as under:

The learned Counsel then contended that in view of the fact that the panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly held that the mere fact that a panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise the court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the instant case also we are satisfied that from the evidence of P Ws 1 and 2 the seizure has been proved by the prosecution. Therefore, this argument also fails.

In the case ofKartik v. State of C.G. 2007(2) C.G.L.J. 17, such a situation where independent witnesses did not support the case of the prosecution, which otherwise was proved by the trustworthy and reliable evidence by departmental witnesses, it was held as under:

It is true that independent witness Chamra Ram has not been examined by the prosecution. However, Baliram PW4 supported the prosecution case in toto on being cross-examined by the Additional Public Prosecutor. In his examination-in-chief, he had supported the entire proceedings by Sub Inspector Arived Dwivedi, PW5 but had only stated that he could not identify the person from whose possession ganja had been seized. Tejram Sahu PW3 witness of weighment panchnama also admitted the signatures on weighment panchnama Ex.P7. The testimony of Sub-Inspector Arvind Dwivedi PW5 is wholly unrebutted, trustworthy and inspires confidence. On the basis of the report of Forensic Science Laboratory, Raipur Ex.P26, it is fully established that the substance seized from the possession of the Appellant was ganja.

A common thread running through all these judgments is that it cannot be accepted as a general proposition that in all cases where independent witnesses have turned hostile, accused is entitled to be acquitted giving benefit of doubt. On the other hand, it has been held that if from the entire case of the prosecution and taking into consideration the evidence led by the prosecution, Court is satisfied from the material on record and from the evidence of the seizing authority that seizure was genuinely made, conviction can be sustained on the basis of seizure made by the seizing authority. It cannot be accepted as a general proposition of law divorced from the facts and circumstances of a given case, that the evidence of the departmental witnesses/seizing authority cannot be made basis for conviction in the absence of corroboration by independent seizure witnesses. If the testimony of the investigating officer is trustworthy and inspires confidence, the same can be trusted and conviction can be sustained. Even in the case of Ritesh Chakarvarti (supra), the principles propounded in the case of Bhola Ram Kushwaha (supra) was reiterated that only because witnesses have turned hostile, accused would not be entitled to a judgment of acquittal as matter of right. If otherwise, the case of the prosecution suffers from several discrepancies, non-compliance of mandatory provisions and the testimony of investigating officer and departmental witnesses does not inspire-confidence and other attending circumstances of the case cast shadow of doubt, seizure may not be held proved on account of independent witnesses having turned hostile, this would be clear from the following observations of the Supreme Court in the case of Ritesh Chakarvarti (supra):

In Bhola Ram Kushwaha v. State of M.P. this Court although opined that only because witnesses have turned hostile, the Appellant would be not entitled to a judgment of acquittal as a matter of right, but having regard to the statements of prosecution witnesses inter alia to the effect that the police had called the witnesses in a police station and obtained their signatures on the paper and the statements of the independent witnesses that the accused was never interrogated and searched in their presence, the judgment of conviction and sentence was set-aside.

The discussions of the evidence on record hereinabove and trustworthy and reliable testimony of investigating officer Bholanath Singh (PW5)) proving various stages of proceedings of search and seizure during the course of investigation right from recording of information till receipt of report from FSL corroborated on various materials aspects by Markande Mishra (PW1), Jitendra Singh (PW2) & Dharamveer Singh Yadav (PW6), inspires confidence and it is proved that the seizure was genuinely made by the seizing authority.

Consequently the judgment of conviction and order of sentenced does not warrant any interference by this Court and the appeal is therefore dismissed.

Though substantive jail sentence was suspended and Appellant was granted bail vide order dated 11.3.2002, later on, as the Appellant misused liberty, vide order dated 31.8.2009, bail bonds were forfeited and warrant of arrest was issued. In compliance of the order of this Court, a compliance report has been received from the Special Court (NDPS) vide memo dated 12.11.2009 that the Appellant has been arrested and sent to Central Jail, Ambikapur on 12.11.2009 and proceedings for recovery of the amount against surety has been initiated. Therefore, no further order is required to be passed in that regard.