Vishnu Kumar vs State Of Madhya Pradesh

The appellant has convicted vide judgment and order dated 20.02.2018 passed in Special Case No. No.05/2015 by Special Judge, NDPS, Biora

District Rajgarh whereby the learned Special Judge has held the appellant guilty for the offence punishable under Section 8/15(c) of NDPS Act, 1985

for having 225KG of poppy straw and sentenced him for 10 years of R.I. and fine of Rs.1,00,000/- with default stipulations.

The prosecution case in brief is that on 18.05.2017, ASI Gangaprasad Mishra of Police Station Machalpur District Rajgarh received an information

that some persons coming from Jeerapur and going to Bakani, crossing area of Police Station by Scorpio bearing registration No.MP-09-CG-3339 and

carrying some contraband. After necessary preparation and taking paraphernalia, he reached on the pointed spot, intercepted the vehicle. The person

sitting in the vehicle managed to escape. Vehicle was seized and on search, 225KG poppy straw was recovered. The contraband was seized and

other formalities were completed on the spot. Thereafter, the vehicle alongwith the contraband brought to the police station and after scribing the FIR,

Crime No.137/17 was registered at Police Station. During investigation, the police recovered photocopy of an agreement from Bhupendra Chouhan

PW-7, who was the registered owner of the vehicle, he revealed before the police that through that agreement he had sold the vehicle to the appellant

and handed over the possession of the same on the date of agreement i.e. 20.02.2017. Thinking that, the investigating Officer has discharged his

responsibilities and holding that it was the present appellant who was carrying the contraband, the police filed the charge-sheet before the Court

against the appellant alongwith one co-accused Rajulal, who later, acquitted by the learned trial Court vide impugned judgement.

The appellant was charged under Section 8/15(c) of NDPS Act, 1985. He abjured his guilt. After appreciating the evidence, the learned trial Court

held him guilty and punished as stated in para 1 above.

The appellant has preferred the present appeal mainly on the ground that judgment and order of the trial Court is contrary to law and facts available

on record. The appellant was not registered owner of the vehicle at the time of incident, he was not found on the spot, nothing is recovered from his

possession and that he was not identified by any of the witnesses of the prosecution as the person who managed to escape from the spot, therefore,

his conviction is bad in law.

It is further contended by the learned counsel for the appellant that original agreement was not seized by the police during investigation. On his

objection, the learned trial Court has not exhibited photocopy of the agreement and marked it only as an Article-A. He further contended that though

his photo is affixed on this document Article-A, but it does not bear his signature and the prosecution has not compared his signature during

investigation, therefore, charged against him can not be proved. The appellant has falsely been implicated, therefore, he prayed that the impugned

judgment and order be set-aside and he be acquitted.

Per contra, learned Public Prosecutor has submitted that as per the agreement and also statement of Bhupendra Chouhan PW-7, possession of the

vehicle from which the contraband was recovered, is established that it was the accused who escaped from the spot when the police intercepted the

vehicle from which the contraband was recovered. The learned Special Judge considering Section 54 of The Act, has rightly convicted the present

appellant. No ground for interference is made out, therefore, he prayed for dismissal of the present appeal.

Learned Public Prosecutor drew my attention towards Para No.15 and also towards Section 35 and 54 of The NDPS Act, 1985.

I have considered rival contentions of the parties and have perused the record.

The facts have not been denied by the learned Public Prosecutor that the person sitting in the vehicle, at the time of its seizure by the police officers

could not be caught on the spot and no witness examined by the prosecution to establish that it was the appellant who ran away from the spot. Nothing

was recovered from possession of the appellant. Vehicle was also not registered in his name. The sole ground for conviction of the appellant is

statement of Bhupendra Chauchan PW-7 who has stated that he sold the vehicle on 20.02.2017 i.e. much prior to the incident, to the appellant

alongwith its possession, but undisputedly, the vehicle is still registered in the name of Bhupendra Chouhan and original agreement of sale has never

been recovered by the police. During investigation, sign of the appellant on the agreement could not be proved by the prosecution, therefore, only on

the basis of photocopy of an agreement, it can not be said that at the time of the incident, the appellant was in possession of the vehicle, thus,

prosecution could not discharged its primary liability to establish possession of the vehicle or also the contraband. Therefore, the presumption available

to the prosecution under Section 35 or under Section 54 of NDPS Act, 1985, in my considered opinion, is not available to the prosecution. When the

fact of “possessionâ€​ could not be established than support of presumptions available to the prosecution can not be taken to held the appellant guilty

for any of the offence prescribed/mentioned in the NDPS Act. Learned Special Judge has convicted the appellant only on the basis of presumption,

missing the fact that primary responsibility or onus could not be discharged by the prosecution. Therefore, in my considered opinion, judgement and

order of the learned Judge is not sustainable in the eyes of law.

Consequently, the appeal of the present appellant Vishnu Kumar is allowed. He is acquitted from the charge under Section 8/15(c) of NDPS Act,

1985. Fine amount, if deposited, be refunded to him. He be set at liberty forthwith, if not required in any other case.

Order of the trial Court regarding disposal of property stands confirmed.

Consequently, I.A. No.4647/2018 also stands closed.