Deewanpuri vs State Of Mp

On 26/04/2018, neither the counsel was present nor the appellant was present. Accordingly, a detailed order was passed by this Court on 26/04/2018

and after considering the fact that the appellant has misused the liberty granted to him and is not appearing before this Court after release on bail, this

Court after going through the record, heard the counsel for the State and the case was reserved for judgment.

This Criminal Appeal under Section 374 of CrPC has been filed against the judgment and sentence dated 03/05/2003 passed by Special Judge

(NDPS Act), Gwalior in Special Sessions Trial No. 16/2002, by which the appellant has been convicted under Section 8/20(1)(b)(B) of the Narcotic

Drugs and Psychotropic Substances Act [in short '' NDPS Act''] and has been sentenced to undergo the rigorous imprisonment of three years and a

fine of Rs. 10,000/- with default imprisonment.

(2) The necessary facts for the disposal of the present appeal in short are that on 31/10/2001, D. S. Kushwah (PW8) who was posted as SHO, Police

Station Gwalior received an information from an informer that one person has alighted from a truck at Malhagarh Tiraha, AB Road and is in

possession of ganja and is going towards Char Sahar Naka. The SHO, Police Station Gwalior informed Head Constable Ravindra Kushwah (PW5)

and Constable Brajendra Singh Sengar (PW10) about the information received from an informer and prepared a Panchnama ExP10. An entry was

made in Rojnamchasahna Ex.P11 and the Panchnama of such information was sent to the Senior Officer, CSP, Gwalior through Constable Naresh.

(PW3). Constable Sultan (PW9) was sent for summoning the independent witnesses and accordingly, Ballu and Biswambar came to the police station.

Thereafter, the SHO, Police Station Gwalior along with police force as well as the independent witnesses went towards Char Sahar Naka along with

investigation kit. They found that one person was coming with a plastic bag on his head. He was stopped and enquiry was made and the appellant

informed his name as Deewanpuri, resident of Sikrothi Kamath, Police Station Banmore. The appellant was informed about the information received

from the informer and an option was given to him that in case if he wants, then can get himself searched by an Executive Magistrate or CSP but the

appellant agreed to give his search to the Investigating Officer. Panchnamas Ex.P/1 and Ex.P2 were prepared. The Investigating Officer as well as

the witnesses gave their search to the appellant and nothing objectionable was found and Panchnamas Ex.P3 and ExP4 were prepared. Thereafter,

the appellant was searched and one bag from his possession was found and on identification, it was found that the contraband was ganja. The

Pachnamas Ex.P5 and ExP6 were prepared and seizure memo Ex.P19 was prepared. The contraband was weighed and total weight of ganja was

found to be four and half kilograms. The ganja was sealed on the spot. Prior to that, two samples of 50 grams each were taken out which were also

sealed. Thereafter, the appellant was arrested and brought back to the police station and Crime No.474/2002 was registered for offence under Section

8/20 of the NDPS Act and FIR Ex.P14 was lodged. The seized contraband samples were handed over to the Sub-Inspector R.S. Sengar (PW12)

who was incharge of Malkhana of Police Station Gwalior. Entry at Serial No. 404 of Malkhana register was made. Report with regard to complete

proceedings Ex.P15 was sent to the CSP, Gwalior and seized samples were sent to FSL, Gwalior. The FSL report is ExP15 (it appears that by

mistake the trial Court has marked two documents as Ex.P15, therefore, for clarity, the FSL report is being referred as Ex.P15-A although it has been

marked as Ex.P15 by the trial Court). The spot map was prepared by Town Inspector Dhirendra Kumar Bajpai (PW11) and statements of the

witnesses were recorded and after concluding the investigation, the police filed charge sheet against the appellant. The trial Court by order dated

28/12/2002 framed charge under Section 8/20 (1)(B)(b) of the NDPS Act.

(3) The appellant abjured his guilt and pleaded not guilty.

(4) The prosecution, in order to prove its case examined Manish RajSingh (PW1), Jaisingh Tomar (PW2), Naresh Sharma (PW3), Ramswaroop

(PW4), Ravindra Singh Kushwah (PW5), Balluram (PW6), Chandan Singh (PW7), D. S. Kushwah (PW8), Sultan Singh (PW9), B.S. Sengar (PW10),

Dhirendra Kumar Bajpai (PW11), R. S. Sengar (PW12) and Sudamaprasad Tomar (PW13). The appellant did not examine any witness in his

defence.

(5) The trial Court after recording the evidence and hearing both the parties, convicted the appellant for offence under Section 8/20 (1)(B)(a) of the

NDPS Act and sentenced him to undergo the rigorous imprisonment of three years and fine of Rs.10,000/- with default imprisonment.

(6) Challenging the judgment passed by the Court below, the present appeal has been filed. The following grounds have been raised in the memo of

appeal:-

(i) That, the judgment and sentenced dated 03/05/2013 passed bythe trial Court is contrary to the ocular as well as the documentary evidence available

on record.

(ii) That, the prosecution had examined Balluram (PW6) as anindependent seizure witness but Balluram (PW6) has not supported the prosecution

case. However, the second independent seizure witness Biswambar was not examined. Balluram (PW6) admitted that he is the pocket witness of the

police and his signatures were obtained by the police without reading the context of the same and under these circumstances, the evidence of the

police personnel should not be relied upon.

(iii) It is further mentioned that that the provisions of Sections 41,42, 57 and 50 of the NDPS Act have not been complied with and the findings given

by the trial Court that the provision of Section 50 of the NDPS Act shall not apply as the personal search of the appellant was not carried out, is

contrary to law.

(iv) It is further submitted that in absence of corroboration byindependent witnesses, the evidence of police personnel should not be relied upon.

(v) Non-compliance of Section 50 of the NDPS Act is reiteratedagain and again.

(vi) It is further mentioned that the report given by ChemicalAnalyst Ex.P15-A is not reliable.

(7) Per contra, it is submitted by the counsel for the State that since the personal search of the appellant was not carried out by the Investigating

Officer, therefore, it was not necessary for the police to give notice to the appellant under Section 50 of the NDPS Act, although by way of

abandoned caution, the said notice was given. It is further submitted that since the report given by Chemical Analyst is admissible under the Indian

Evidence Act, therefore, if the appellant was of the view that certain questions were to be put to the Assistant Chemical Examiner, then he should

have filed an application for cross-examination of Assistant Chemical Examiner. It is further submitted that the evidence of these witnesses cannot be

discarded merely because they are police personnel. The prosecution has proved beyond reasonable doubt that the appellant was found to be in

possession of four and half kilograms of ganja and as per report given by FSL, Gwalior, the seized contraband was ganja.

(8) Considered the grounds raised in the appeal as well as thesubmissions made by the Public Prosecutor.

(9) Although the appellant has not raised a point with regard to nonproduction of seized contraband before the trial Court and its consequences, but

when this Court has gone through the entire record, then the ground which has not been raised in the memo of appeal, can also be taken into

consideration.

(10) D.S. Kushwah (PW8)Â in paragraph 14 of his evidence admittedthat the seized contraband and sealed documents containing signatures etc.

have not been produced before the trial Court. This Court has gone through the evidence of Manish Raj Singh (PW1), Jai Singh Tomar (PW2),

Ravindra Singh Kushwah (PW5), Sultan Singh (PW9), B.S. Sengar (PW10) and R.S. Sengar (PW12). Except Dhirendra Kumar Bajpai (PW11), all

other witnesses i.e. Manish Raj Singh (PW1), Jai Singh Tomar (PW2), Ravindra Singh Kushwah (PW5), Sultan Singh (PW9), B.S.Sengar (PW10)

and R. S. Sengar (PW12) were the members of the police party. The prosecution has not produced the seized ganja and has not got the same

identified by any of the witnesses including D.S. Kushwah (PW8). On the contrary, a specific question was put to D. S. Kushwah (PW8) with regard

to non-production of the seized contraband before the Court and he had admitted that the seized contraband was not produced before the Court. Thus,

it is clear that the ganja which was seized from the possession of the appellant was never produced before the Court. It is not the case of the

prosecution that the ganja was ever destroyed with the permission of the Court.

(11) The moot question for determination is that whether nonproduction of seized contraband before the Court at the time of recording of the evidence

would have any bearing on the outcome of the appeal or not and whether the seizure of the contraband from the possession of the appellant can be

held to be proved or not ?

(12) The Supreme Court in the case of Jitendra and Another vs. State of MP, reported in (2004) 20 SCC 562 has held has under:-

 ''5. The evidence to prove that charas and ganja were recovered from the possession of accused consisted of the evidence of the police officers

and the panch witnesses. The panch witnesses turned hostile. Thus, we find that apart from the testimony of Rajendra Pathak (PW7), Angadsingh

(PW8) and sub-Inspector D.J. Rai (PW6), there is no independent witness as to the recovery of the drugs from the possession of accused. The

charas and ganja alleged to have been seized from the possession of the accused were not even produced before the trial court, so as to connect it

with the samples sent to the Forensic Science Laboratory. There is no material produced in the trial, apart from the interested testimony of police

officers, to show that the charas and ganja were seized from the possession of the accused or that the samples sent to the Forensic Science

Laboratory were taken from the drugs seized from the possession of the accused. Although, the High Court noticed the fact that the charas and ganja

alleged to have been seized from the custody of the accused had neither been produced in the court, nor marked as articles, which ought to have been

done, the High Court brushed aside the contention by observing that it would not vitiate the conviction as it had been proved that the samples were

sent to the Chemical Examiner in a properly sealed condition and those were found to be charas and ganja. The High Court observed, ""nonproduction

of these commodities before the court is not fatal to the prosecution. The defence also did not insist during the trial that these commodities should be

produced."" The High Court relied on Section 465 of the Cr. C.P. to hold that non-production of the material object was a mere procedural irregularity

and did not cause prejudice to the accused.

In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that

the alleged quantities of charas and ganja were seized from the prossession of the accused. The best evidence would have been the seized materials

which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral

evidence as to their features and production of panchanama does not discharge the heavy burden which lies on the prosecution, particularly where the

offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchanama is

nothing but a document written by the concerned police officer. The suggestion made by the defence in crossexamination is worthy of notice. It was

suggested to the prosecution witnesses that the landlady of the house in collusion with police had lodged a false case only for evicting the accused

from the house in which they were living. Finally, we notice that the Investigating Officer was also not examined. Against this background, to say that,

despite the pancha witnesses having turned hostile, the non-examination of the Investigating Officer and non- production of the seized drugs, the

conviction under the NDPS, Act can still be sustained, is far-fetched.''

The Supreme Court in the case of Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh reported in (2011) 5 SCC 123, has held as under:-

''9. The seizure witnesses turning hostile may not be very significant, as it is not an uncommon phenomenon in criminal trials, particularly in cases

relating to NDPS but there are some other circumstances which, when taken together, make it very unsafe to uphold the appellant's conviction.

The seizure of the alleged narcotic substance isshown to have been made on March 8, 2005, at 11:45 in the evening. The samples taken from the

seized substance were sent to FSL on March 10, 2005, along with the draft, Exhibit P.31. The samples sent for forensic examination were, however,

not deposited at the FSL on that date but those came back to the police station on March 12, 2005 due to some mistake in the draft or with some

query in respect of the draft. The samples were sent back to the FSL on March 14, 2005, after necessary corrections in the draft and/or giving reply

to the query and on that date the samples were accepted at the FSL. From the time of the seizure in the late evening of March 8, 2005, till their

deposit in the FSL on March 14, 2005, it is not clear where the samples were laid or were handled by how many people and in what ways.

The FSL report came on March 21, 2005, and on thatbasis the police submitted charge-sheet against the accused on March 31, 2005, but the

alleged narcotic substance that was seized from the accused, including the appellant was deposited in the Malkhana about two months later on May

28, 2005. There is no explanation where the seized substance was kept in the meanwhile.

Last but not the least, the alleged narcotic powder seized from the possession of the accused, including the appellant was never produced before

the trial court as a material exhibit and once again there is no explanation for its non-production. There is, thus, no evidence to connect the forensic

report with the substance that was seized from the possession of the appellant or the other accused.''

Thus, it is clear that the Supreme Court while considering the various aspects of the matter came to the conclusion that nonproduction of contraband

before the Court is not a mere procedural irregularity. It is further held that mere oral evidence as to their features and production of Panchnama does

not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the

NDPS Act. It is also well established principle of law that the evidence of the identification given before the trial Court during the trial is the

substantive piece of evidence. Where the seized contraband was not produced before the trial Court, then it cannot be said that the ganja was seized

from the possession of the appellant. In the present case, since the prosecution did not produce the seized contraband before the trial Court and also

did not give any explanation for non-producing the same, in spite of the fact that specific question was put to D.S. Kushwah (PW8), this Court is of

the considered opinion that the prosecution has failed to prove recovery of ganja from the possession of the appellant. Once the recovery of ganja

from the possession of the appellant is not found proved, then it is not necessary to consider that whether the prosecution had followed the other

mandatory provisions of law or not and whether the evidence of police personnel is reliable or not. In a case punishable under Section 20(b) of the

NDPS Act, the best evidence is that the seized materials ought to have been produced before the trial Court and should have been marked as articles.

Mere oral evidence of the witnesses to the effect that the contraband which was seized from the possession of the appellant was ganja, is not

sufficient to hold that four and half kilograms of ganja was seized from the possession of the appellant. Under these facts and circumstances of the

case, this Court is of the considered opinion that there is no evidence to connect the forensic report with the contraband which was allegedly seized

from the possession of the appellant as the prosecution has failed to prove that four and half kilograms of ganja was seized from the possession of

the appellant. Since the prosecution has failed to prove the seizure of the ganja from the possession of the appellant, therefore, it is not necessary to

consider that whether the prosecution had followed the mandatory provisions of law or not and whether the evidence of the police personnel is reliable

or not. Accordingly, it is held that the prosecution has failed to prove the guilt of the appellant beyond reasonable doubt and accordingly, the appellant

is acquitted of the charge punishable under Section 8/20(1)(b) (B) of the NDPS Act.

(13) Resultantly, the judgment and sentence dated 03/05/2003 passed by Special Judge (NDPS Act), Gwalior in Special Sessions Trial No. 16/2002,

is hereby set aside.

(14) The appellant is on bail. His personal bail bond and surety bond stand discharged. He is no more required in the present case.

(15) The appeal succeeds and is hereby allowed.