Vishwanath Singh vs State of M.P.

T.K. Kaushal, J.—This appeal has been preferred against the judgment dated 10.7.1996 passed by Special Judge, Chhatarpur in Special Case No. 151/94 convicting the appellant u/s 20 of Narcotic Drugs & Psychotropic Substance Act, 1985 (for short the Act of 1985) and sentenced to 3 years R.I and fine of Rs. 2000/-. Facts of the case, in short, are that on 22.11.1994 at about 17:50 hrs. on receiving information, Virendra Kumar Mishra, Station House Officer (Sub Inspector), Police Station Nowgoan, District Chhatarpur (PW/3) proceeded on the spot situated in village Singravan Khurd Har in field owned and possessed by the appellant and found him involved in cultivation of cannabis and seized 16 plants of cannabis including 13 shrinked stems and 3 plants having leaves and also found about 100 gm cannabis in a polythene beg. Seizure Ex. P/1 was prepared by J.P. Gautam, Additional Superintendent of Police, Chhatarpur. Vide Ex. P/2, appellant was arrested. Regarding aforesaid incident, Virendra Kumar Mishra (PW/3) drown a "Dehati Nalishi" Ex. P/5. On the basis of which vide FIR Ex. P/6 at Police Station, Nowgoan a case u/s 20 of the Act of 1985 has been registered against the appellant. On 9.12.1994 vide letter from S.P. Chhatarpur Ex. P/7 seized contraband was sent to Director, Forensic Science Laboratory, Sagar for its chemical examination. Vide FSL report Ex. P/8, the said contraband was found to be cannabis. During investigation Raj Bahadur Khare, Patwari (PW/4) prepared a spot map. After completing the investigation, police Nowgoan submitted a charge-sheet in the court concerned.

Trial court framed charge u/s 20 of the Act of 1985. Appellant abjured guilt. Defence of the appellant was that of false implication.

To substantiate the case of prosecution, statements of Rajkumar, panch witness (PW/1), Katua (PW-2), Virendra Kumar Mishra, SHO (PW-3) and Raj Bahadur Khare, Patwari (PW-6) were recorded. After appreciating aforesaid evidence, vide impugned judgment learned trial court has found a case of prosecution to be proved beyond reasonable doubt and he has convicted and sentenced the appellant as above.

In this appeal, conviction and sentence of the appellant has been challenged on the grounds that appreciation of evidence is not proper. Prosecution has failed to prove the compliance of the mandatory provisions of the Act of 1985. Independent witnesses had turned hostile. Sole testimony of Sub Inspector (PW/3) is extremely insufficient to hold the appellant guilty of the charge. Conviction is bad in law and sentence is harsh. On the other hand, learned Panel Lawyer supported the findings of conviction and sentence both.

Rajkumar (PW/1) has denied the fact of seizure of cannabis from the possession of the appellant. He has been declared hostile. Similarly, Katua (PW/2) has also denied the story of prosecution and has been declared hostile. Statements of these two witnesses are of no avail to the prosecution.

Shri V.K. Mishra, Sub Inspector (PW/3) stated that he has received information that appellant had cultivated cannabis plants in his field. After making necessary entries in Rojnamcha, he alongwith police force and punch witness proceeded on the spot. J.P. Gautam, Additional Superintendent of Police had also reached on the spot. 100 gm. cannabis was found, kept below the mattress of the appellant and 10-15 plants grown in the field were also seized. Dehati Nalishi Ex. P/5 was drown by him in this matter. Thereafter, at Police Station, Nowgoan FIR Ex. P/6 was registered. Prior to that vide Ex. P/3 appellant was arrested.

It is further stated by PW/3 that Vide Ex. P/7 aforesaid contraband was sent to FSL Sagar. Vide Ex. P/8 FSL report, the contraband was found to be cannabis. In cross-examination of PW/3, it has come on record that at the time of giving statement in the court, he did not bring the Rojnamcha showing the departure of the team from the police station to the spot. He did not prepare any spot map himself. Prior to search, information has been given to the appellant but any such information produced in writing has not been submitted in the charge-sheet nor was produced in trial court.

On careful perusal of evidence of PW/3, it has been revealed that -

(i) No Rojnamcha entry has been produced and proved by the prosecution in the trial Court showing the receipt of information and departure of the team from police station to the spot;

(ii) Ex. P/1 seizure was prepared by the Additional Superintendent of Police but he has not been examined as prosecution witness in the trial court;

(iii) PW/3 sole police witness did not prepare the panchanam Ex. P/4. Meaning thereby seizure has not been proved by reliable evidence;

(iv) Prior to the seizure, the appellant has not been apprised of his right of search by gazetted officer nor PW/3 or other police officers have disclosed their identity and purpose.

(v) No document is produced to show that the aforesaid contraband was kept in safe custody after seizure till the date of its discharge to FSL Sagar.

Normally, testimony of police witnesses are not disbelieved merely on the ground of lack of corroboration by private independent witness, if evidence of such police witnesses is found to be trustworthy and worth inspiring confidence. On the basis of their testimony or even on the basis of sole testimony of police witness conviction can be awarded but in present case sole testimony of police witness PW/3 is showing lapses and showing non-compliance of mandatory provision causing prejudice to the appellant substantially. Such sole testimony of police witness should not be and cannot be made the basis of conviction. In view of the aforesaid, conviction of the appellant is unsustainable and deserves to be set aside. Conviction and sentence of the appellant is hereby set aside. Appeal is allowed. Bail bond of the appellant stands discharged. Fine amount, if deposited, be refunded.