Chhote @ Ganeshram vs State Of Madhya Pradesh

The present appeal has been filed by the appellant herein having been convicted for an offence under section 18 of the NDPS Act and sentenced to suffer R.I. of 10 years and fine of Rs.1,00,000/- and another 1 year of R.I. in default of payment of fine. The appellant was granted the benefit of bail and suspension of sentence vide order dated 17.07.1997.

The case of the prosecution is that the ASI, Umesh Kumar Dubey who is also the Investigating Officer in this case, received an information on 01.08.1996 that the appellant Chhote @ Ganeshram was travelling by train carrying opium. ASI, Umesh Kumar Dubey prepared a Panchnama, went to the Railway Station-Sohagpur and arrested the appellant near the railway station at Sohagpur, Bangali Colony. It is alleged that the notice under section 50 of the NDPS Act was served upon the appellant and thereafter upon being searching 800 grams of opium was seized from his possession. At the site itself two samples of opium were taken and sealed. The appellant was arrested on the spot. Thereafter, the appellant along with the offending substance were brought to the police station where the SDOP, Raghuveer Singh Jat (PW-4) registered an FIR on the basis of the information given by Mr.Umesh Kumar Dubey, ASI.

Under the circumstances, it is undisputed that the Investigating Officer in this case Mr.Umesh Kumar Dubey, ASI was the complainant. The samples were sent to the FSL which tested positive for the opium, the charge-sheet was filed and the charges were framed and the appellant was tried and convicted as aforementioned.

Learned amicus curiae has pointed out that there are various discrepancies in the prosecution case that far from having proved the case against the appellant beyond reasonable doubt, the prosecution story is completely unbelievable. Her first contention is that the offending substance was tested and found to be opium even before the same was seized from the appellant. In order to substantiate her contention, learned amicus curiae has drawn the attention of this Court to Exh.P/3 proved by PW-1 which is the Panchnama relating to the determination of the contraband substance. The date and time of the Panchnama, is given as 01.08.1996 at 6.05 hours. The substance after testing was found to be opium. PW-1, Dhanraj and PW-2, Ramaditya Jaiswal have signed the Panchnama. Thereafter, learned amicus curiae has drawn the attention of this Court to Exh.P/5 which is the seizure memo. According to the seizure memo, the date and time of the seizure was 01.08.1996 at 6.35 hours. Thus, the learned amicus curiae has rightly pointed out that the identification of the substance as opium was done 1/2 an hour before the substance was seized from the appellant. Thereafter, the learned amicus curiae has drawn the attention of this Court to the notice under section 50 of the NDPS Act which is Exh.P/9. The said document has not been signed by any witness. Learned counsel for the State submits that the impugned order dose not suffer from any infirmity as the procedure was strictly followed and that the notice was given to the appellant under section 50 (Exh.P/9), in which, the Investigating Officer has clearly given the option of having his search conducted by a Gazetted Officer or a Magistrate and that the appellant has consciously waived his right. Learned counsel for the State has also submitted that there is no provision in section 50 of the NDPS Act which mandates that the notice that is given to the accused under section 50 has to be signed by an independent witnesses. In this regard, she has drawn the attention of this Court to the statement of PW-3, who is Umesh Kumar Dubey, the Investigating Officer in this case, where he says in his cross-examination that he did not ask the witnesses to sign the notice under section 50 of NDPS Act because there is no requirement under the law to do so.

PW-1 is Dhanraj who is the witness to the Mouka Panchnama. He has turned hostile. He states that he knows the appellant personally and on that day and he had gone to the railway station to ask the appellant to return the money that the appellant had borrowed from this witness. Thereafter, there was an altercation between this witness and the appellant, with the appellant, on that issue. This witness states that the police did not recover anything from the appellant in his presence and neither was any site map drawn up. He has been declared hostile by the prosecution in his cross-exmination, in which, he has reiterated his lack of knowledge relating to the seizure as stated by him in-chief. PW-2, Ramaditya Jaiswal owned the shop in the railway station, was a witness to the seizure memo. He has also turned hostile and stated before the trial court that nothing was seized from the appellant in his presence. PW-3, who is Umesh Kumar Dubey who is the Investigating Officer in this case has supported the case of the prosecution.

At this juncture, learned amicus curiae has placed before this Court the judgement of three judges' Bench of the Hon'ble Supreme Court reported in AIR 2018 SC 3853 (Mohan Lal Vs. State of Punjab), wherein the Supreme Court has taken a serious view on the constitutional safeguards to a free and fair trial and has extensively deliberated on the issue of reverse burden under the NDPS Act and how the same can lead to false accusation if the prosecution is not called upon to establish its case beyond reasonable doubt. Specifically, learned amicus curiae has drawn the attention of this Court to paragraph-14 of the judgment, in which, the Hon'ble Supreme Court has held that in a criminal prosecution the obligation is cast upon the investigator to be fair, judicious and just. It also held that the investigation ex-facie must appear to be so. It must exclude any conduct or impression which may give rise to an apprehension in the mind of the accused that the investigation was not fair. Thereafter, the Hon'ble Supreme Court has held that if the informant is a police official in a criminal prosecution, more so in a case relating to a statute which involves a reverse burden of proof on the accused, is himself asked to investigate the case, then serious doubts would arise with regard to the fairness and impartiality of such investigation. Going further, the Hon'ble Supreme Court observes that it is not necessary that bias must actually be proved and that it would be contrary to normal human conduct to presume that the Investigation Officer who is himself the complainant in the case, would submit a closure report to conclude the false implications of the accused with all its attendant consequence.

Thus, in this particular case, the infirmity in the manner in which the investigation is carried out which, has been pointed out hereinabove, as how the identification of the contraband was made 1/2 an hour before its seizure and how the seizure witnesses have turned hostile in this case and the fact that the Investigating Officer undisputedly in this case was also the informant, it cannot be said that the prosecution has been able to prove his case beyond reasonable doubt and the manner in which the investigation conducted, makes it extremely unsafe to convict the appellant on that basis.

Under the circumstances, the appeal is allowed and the impugned order of conviction and sentence dated 31.01.1997 is set aside. The appellant is acquitted of the charge for which he was found guilty by the trial Court. His bail bonds are discharged. Before parting with this case, this Court records its appreciation for the valuable assistance rendered by the learned amicus curiae and directs that she be paid according to the schedule.

With the above, the appeal is finally disposed of.