Mehboob Ali vs State of M.P.

A.K. Shrivastava, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 31.7.2008 passed by learned Special Judge (NDPS Act), Jabalpur in Special Case No. 24/06 convicting the appellant u/s 8/ 21(b), 8/ 18(c) and 8 /20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ("the Act") and u/s 25(1A) of the Arms Act and thereby sentencing him to suffer imprisonment as mentioned in the impugned judgment, the appellant has knocked the doors of this Court by preferring this appeal u/s 374(2) of the Code of Criminal Procedure. 1973. In brief the case of the prosecution is that on 30.3.2006, Sub-Inspector of Police Station Cantt R.K. Soni was discharging his duty at T.J. Crossing Sadar, Main Road at Jabalpur. At that time, Head Constable Narendra Sharma, Head Constable Narendra, Santosh, Balram and Sanjay etc wee also present. An information was received from the informant that in a black coloured Tata Indica Car coming from Penti Naka is containing illegal contraband articles and in that car appellant is sitting. On the basis of the information received, a panchanama was prepared by the said Sub-Inspector, R.K. Son and a copy thereof was sent to CSP, Gorakhpur. According to the information received, said Sub-Inspector Shri Soni came nearby ATM of State Bank of Indore and took his position. As soon as he saw a black coloured Tate Indica Car coming towards Penti Naka, which was not having any number plate, the same was stopped and it was found that the said car was being driven by appellant Mehboob. The appellant was informed that the car is containing illegal contraband articles, as a result of which he tried to flee away from the place of occurrence, however, said Soni and his other staff members chased him and ultimately caught the appellant. It was also told to him that his car is to be searched and if wants to get the car searched before the Gazetted Officer or Magistrate, he is free to do so. On this, appellant told that he is ready to get his car searched by the said Sub-Inspector. Thereafter when the car of appellant was searched it was found that in a black coloured bag, brown sugar, afeem, charas, pistol and revolver were kept. Apart from these articles, two numbers plates were also found in the said car. Necessary seizure and panchanama in respect to contraband articles were prepared and samples were taken out from the seized contraband articles and the entire bulk was kept in the malkhana.

After the investigation was over, a charge-sheet was submitted before the learned Special Judge, who framed the charges punishable u/s 8/21(c). 8/ 20(b)(ii)(B) of the Act and also u/s 25 (1-A) of the Arms Act. Needless to say, appellant abjured his guilt and requested for the trial.

In order to bring home the charges, the prosecution examined as many as 11 witnesses and also placed Ex. P1 to P26 the documents on record. The defence of the appellant is that on 4.7.2003 his brother Akbar Ali was murdered by Razzak Pahalwan and others and the police station Gorakhpur was not arresting the accused persons and the murderers were insisting the appellant as well as his family members to depose the evidence in their favour and were also giving threat. The appellant also made complaint in this regard to Town Inspector of police station Gorakhpur. Rajesh Tiwari and CSP Arun Mishra. He also filed a writ petition against these two police officers in High Court in which these two police officers were summoned by the High Court. On 2.9.05 he submitted an affidavit before the Special Judge constituted under the Act and it was stated that the accused persons are pressurising and giving threat to him to depose in their favour, failing which the appellant has to be face dire consequences or he shall be killed.

Thereafter, the appellant also submitted complaint before the Human Rights Commission and the President of India alongwith his own affidavit disclosing that CSP Arun Mishra, Town Inspector Rajesh Tiwari, DIG Upendra Jain and Chairman of the Legislative Assembly Ishwar Das Rohani are giving threat to him to depose in favour of the accused persons otherwise appellant shall be indulged in a false murder case or under the NDPS Act. Further it has been stated by the appellant in his 313 Cr.P.C. statement that he received one letter from the Human Rights Commission, Delhi in which it was directed to hold an inquiry. He also received one more letter from Vallabh Bhawan, Bhopal and thereafter he has been falsely implicated in the present case. According to the appellant, even when he was sent behind the bars, CSP Arun Mishra and other police officers were giving threat to him to depose the evidence in favour of the accused persons otherwise his wife and children will also be implicated in a false case. Ultimately, he deposed in favour of the accused persons.

Specifically it has been stated in his 313 Cr.P.C. statement by the appellant that the contraband articles have not been seized from him and he has been falsely implicated. In support of his aforesaid defence he submitted copy of the memorandum of writ petition No. 941 of 2005, Mehboob Ali v. Director General of Police and others, including state officer in-charge of police station Gorakhpur (Ex. D18) and the order passed in this writ petition on 3.10.2005 (Ex D19). The necessary affidavit dated 2.9.2005 (Ex. D20) was also submitted by him in Special Court where the accused persons were being tried and this appellant was a witness and he submitted in his affidavit that necessary police protection be provided to him because continuously the threat is being given to him.

The appellant also submitted a copy of the complaint dated 1.10.2005 (Ex. D21) in support of his defence stating therein that his brother has been murdered by Razzak Pahalwan and others and continuously threat is being given by the accused persons and the police officers are protecting the accused persons of 302 IPC case in which he is a witness. This complaint was addressed to the President of India, Chief Justice of India, National Human Rights Commission, Prime Minister''s Office, Chief Justice of M.P. High Court and other Judges, Chief Minister and Director General of Police, Inspector General of Police etc. The affidavit in support of the complaint has also been filed as well as the postal receipts (Ex. D24 to D42) have been placed on record. The appellant also filed another document dated 21.11.2005 (Ex. D43) issued by the M.P. State Government Jan Shikayat Nivaran Vibhag addressed to SP, Jabalpur. He has also filed another important document (Ex. D44) addressed to Senior SP, Jabalpur sent by National Human Rights Commission (Law Division) dated 7.1.2005 to take appropriate action in the matter as per the direction of the Commission.

A certified copy of the complete charge-sheet (Ex.45) in which appellant is a witness in a case registered under Sections 147, 148, 149, 302, 307, 120B of IPC and also u/s 25/ 27 of the Arms Act has also been filed by him. Several documents which are exhibited have been filed by the appellant and they are certificates and the details of the payment made to him by different departments of the State of M.P. Housing Board. Municipal Corporation etc. since the appellant is a Government contractor.

In support of his defence, the appellant has also examined Sandeep Gupta (DW 1), Krishnakant Mishra (DW 2), Pankaj Mohan (DW 3) and Manish Awasthy (DW 4). The peculiar circumstances in the present case is that appellant himself examined as DW 5 and also examined one more witness Dr. A.K. Sinha, RMO of Victoria Hospital, Jabalpur as DW 6.

Learned Special Judge on the basis of evidence placed on record came to hold that the charges are proved against the appellant as a result of which convicted him and passed the sentence which is mentioned in the impugned judgment.

In this manner this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence.

Learned counsel for the appellant has invited my attention to the evidence of the prosecution witnesses and submitted that they are not worth reliable. It has also been put forth by him that in the present case illegal contraband article which is alleged to have been seized from the possession of the appellant was not produced before the Court when the witnesses were being examined and no article mark was exhibited on it and this illegality on the part of the prosecution is fatal and on this ground alone the appellant is entitled for acquittal. In support of his contention, learned counsel for the appellant has placed heavy reliance on the decision of Supreme Court Jitendra and Another Vs. State of M.P., and my attention has been drawn to para 6 of this decision. Learned counsel also placed reliance on a single Bench decision of this Court Abdul Gani Vs. State of M.P., , in which decision of Supreme Court Jitendra (supra) has been relied upon. Learned counsel for the appellant has also placed reliance on the latest pronouncement of the Supreme Court Ashok @ Dangra Jaiswal Vs. State of M.P., , and two more decision of the Apex Court, they are Noor Aga Vs. State of Punjab and Another, , and Ritesh Chakarvarti v. State of M.P. (2006) 12 SCC 321.

Learned counsel has also placed reliance on a single Bench decision of this court Pramod v. State of M.P. III (2006) CCR 113, and Parmeshwardas v. State of M.P. 2008 (2) MPWN 38, Jai Singh v. State of M.P. 2007 (1) JLJ 279; Ambaram v. State of M.P. 2007 (1) MPWN 34, and Remgul alias Remulal and Another Vs. State of M.P.,

It has also been put forth by learned counsel for the appellant that if the defence of the accused is based upon preponderance and probability, due weightage should be given to it and similarly, the defence witnesses should be treated at par with that of the prosecution witnesses and their credibility should not be doubted merely because they have been examined by the defence.

On these premised submissions it has been submitted by learned counsel for the appellants that by allowing this appeal the impugned judgment of conviction and order of sentence be set aside and the appellant be acquitted from all the charges.

On the other hand, Shri Dhande and Shri Kesharwawni learned public prosecutor for the respondent State argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned Special Judge in its judgment which should not be set aside. By inviting my attention to para 47 of the impugned judgment it has been contended by them that indeed, the contraband article was deposited in the Court, but, the counsel for the appellant did not make any prayer to the Special Judge that contraband articles which have been deposited, may be produced during the trial and therefore, no prejudice has been caused to the appellant. Hence, it has been prayed by learned counsel that this appeal be dismissed.

Having heard learned counsel for the parties I am of the view that this appeal deserved to be allowed.

In the present case, all the important independent witnesses including the witnesses of the seizure have not supported the case of the prosecution and they were declared hostile but despite they were being cross-examined at length by the Public Prosecutor, nothing has been carved out to strengthen the case of the prosecution. True the investigation officer and other police personnel who have been examined by the prosecution were not declared hostile and they have deposed against the appellant but their testimony is to be scrutinized in this backdrop that all other independent witnesses including the witnesses of seizure of the contraband articles were declared hostile and they have not at all supported the case of the prosecution.

On going through the cross-examination of the investigating officer R.K. Soni particularly para 21 it is gathered that this witness has admitted that when he stopped the vehicle which was being driven by appellant, he fled by leaving aside the vehicle and thereafter, the constables after catching brought the appellant to him from a very busy locality of the market. On being searched the body of the appellant nothing incriminating was found. Thereafter, he directed constable Balram to go and check the vehicle and from where the said Balram brought a bag in which contraband articles were found. Specifically this witness has stated that because it was a late evening, therefore, there was darkness, if the testimony of this witness is x-rayed it can be gathered that for some time the vehicle was lying idle and appellant was not present.

Balram Pandey (PW 7) who is a constable has stated that the miscreant who was running away after leaving the car, his face was not visible and therefore, he could not see his face and he saw only the back of the miscreant. In this state of affair it is very difficult to hold that who alighted form the car and ran away particularly when it has come in the testimony of the investigating officer that on account of the darkness one cannot see who is driving the car when the headlights of the car were on and in this regard para 30 of his cross-examination may be seen.

While cross-examining the investigating officer it has come in his testimony (Para 34) that appellant''s brother Akku has been murdered and he has heard that one Razzak Pahalwan and others committed murder of the brother but he has put his ignorance that the murder took place in the area coming under Gorkhpur police station. At this juncture, the charge-sheet of 302 and others offence (Ex. D45) is quite relevant wherein the case has been registered by police station Gorkhpur. This witness has further put his ignorance that in the said case of murder, appellant made complaint against CSP Arun Mishra, Town Inspector and other police personnel and also filed writ petition against them as well as he has put his ignorance that appellant lodged any complaint in the Human Rights Commission which was directed to be inquired and therefore, appellant has been falsely roped in. However, I have already mentioned the exhibit number of the relevant documents which appellant confronted to the investigating officer.

At this juncture, I would like to scan the testimony of appellant himself who was examined as DW 5. According to him, he is A4 Contractor in Jabalpur Development Authority, A3 contractor in M.P. Housing Board and in the Municipal Corporation he has been registered as A2 contractor and he is carrying his business in the name and style as M/s Mailki Construction Proprietor Mehboob Ali. The relevant registration of the Contractor ship have been filed by him as Ex. D4 to D17. It has been categorically stated by the appellant in his testimony para 3 that on 30.3.2006 when he was coming back from his site at 6 p.m., staff of CSP Gorkhpur Arun Mishra came to his house and asked him that CSP has summoned him, as a result of which he went with those police personnel to police station Gorkhpur. Thereafter, he was carried by said CSP Arun Mishra to Cantt police station and there he was confined. During the late hours at 12, in the night said CSP Arun Mishra asked him to sign some blank papers but he declined to sign them. On the next day he was produced in the court and they only he has come to know that he has been arrested in a false case under the Act. In para 4 also he has stated that Akku was his brother and he was murdered and a case was registered against Razzak Pahalwan and others but he was being pressurized to depose in favour of the accused persons by the police personnel and the accused persons of that case and threat was given that if he will not depose in favour of the accused persons he will be falsely implicated in a case under the NDPS Act. He has also deposed by proving the documents that he filed a writ petition and also made complaint to the Human Rights Commission etc but when nothing was done in his favour he deposed in favour of the accused persons of that case and thereafter he has been falsely roped in. There is no effective cross-examination upon the appellant.

The factum of assault when police persons arrested him in false case has been proved by the appellant by examining Dr. A.K. Sinha who on 31.3.2006 was serving as RMO in Government Victorias Hospital, Jabalpur and on examining him he found three contusions on his hip, thigh and on the chest size 5 x 2-1/2 inches, 3 x 1 inch and 3 x 1 inch respectively and according to the doctor the injures were caused within 12-24 hours. This witness also brought the OPD register along with him.

The appellant has also examined Sandeep Gupta (DW 1), Krishnakant Mishra Accountant of Housing Board, Jabalpur (DW 2) and Pankaj Mohan, Senior Accountant of Municipal Corporation. Jabalpur (DW 3) who have deposed that appellant is an A3 and A2 contractor respectively and has constructed LIG houses, Community Hall etc.

A bare perusal of the testimony of the prosecution witnesses vis-a-vis to the testimony of defence witnesses and the documents which are proved in defence by the appellant and on marshalling the evidence and documents it is gathered that appellant is a Govt. contractor and he has raised several buildings of the Housing Board, Municipal Corporation etc. His brother Akku was murdered in which he is a witness and he was being pressurized to depose in favour of the accused persons. The relevant charge-sheet u/s 302 IPC (Ex. D45) has been proved by him. Further it has been proved by him that on 30.3.2006 he was beaten and in this regard he has examined Dr. A.K. Sinha (DW 6), who at the relevant time was serving in the Govt. Victoria Hospital, Jabalpur on 31.3.2006 and found contusions on his hip, chest and thigh.

In the present case, all the independent witnesses including the witnesses of the seizure of the alleged contraband articles were declared hostile and despite there being a roving examination over them by the public prosecutor nothing has been carved out to strengthen the case of the prosecution. So far as the testimony of the Investigating Officer R.K. Soni (PW 8) and other police officers, constables and head constables is concerned, their evidence is surrounded by dark clouds and raises heavy doubt in regard to its authenticity and hallmark because serious complaints including filing of writ petition and the complaint in the National Human Rights Commission supported by affidavits etc and the National Human Rights Commission directed to hold an inquiry against the police personnel etc. All these documents have been proved.

At this juncture, I would like to mention that defence in regard to false implication cannot be said to be an afterthought because from very beginning it has been put forth and confronted to the prosecution witnesses. The same type of defence has also been set forth by the appellant in his statement recorded u/s 313 Cr.P.C. and not only this appellant himself examined as DW 5 to prove his defence. According to me, the same standard of proof which is made applicable to the prosecution cannot be applied for the defence. The Courts are only required to see that the defence is based on preponderance and probability and if the defence on the basis of material placed on record is found to be probable, due weightage should be given to it. In this regard the decision of Supreme Court Noor Aga (supra) is quite relevant and has been rightly placed reliance on the appellant.

In the present case, looking to the over whelming documentary and oral evidence on behalf of the defence I am of the view that the probable defence which is based on preponderance has been proved by the appellant and therefore, due weightage should be given to it and it should not be compared with the same standard of proof of the prosecution where the prosecution is obliged to prove its case beyond all reasonable doubt.

At this juncture only I would like to state that the credential value of the defence witnesses is always at par with that of the prosecution and they should not be disbelieved merely because the witnesses have been examined by the defence. There is no law as such that the defence witnesses would always say lie. It is equally true that the prosecution witnesses will also not away say the true version. In this context, I may profitably place reliance on the two decisions of the Supreme Court, State of Haryana Vs. Ram Singh, , and Munshi Prasad and Ors. v. State of Bihar. AIR 2002 SC 620.

Apart from what I have held hereinabove, in the present case, the alleged contraband article although it was deposited before the Special Judge but the same was not produced and no article mark was exhibited on it while the prosecution witnesses were being Examined particularly the investigating officer and other police personnel. The consequence of this are already given in the decision Jitendra (supra) wherein the Apex Court in para 6 has held as under:

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 possession 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 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. In this case, we notice that panchas have turned hostile so the panchanama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross-examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the 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 panch 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.

(Emphasis supplied)

There is a recent decision of the Supreme Court Ashok alias Dangra Jaiswal (supra) on this point. I do not find any merit in the contention of learned public prosecutor that these two decisions are distinguishable because in the present case the contraband articles were deposited in the Court and it Was the duty of the defence counsel to make a prayer to the learned Special Judge to place those contraband articles sealed packed during the examination of the witnesses. According to me indeed, it was the duty of the public prosecutor to make necessary prayer in that regard to the court and the defence counsel is not supposed to discharge the duty of the public prosecutor and therefore, according to me, defence counsel was not at all obliged to make such a prayer to the court. I would like to further add that placing the sealed contraband articles before the court is not a bare and empty formality and merely because it is lying somewhere in the malkhana of the court would not mean that it has been produced in the court during the trial when the relevant witnesses particularly the police personnel were being examined. The Supreme Court in Jitendra (supra) para 6 has already said much about it and specifically stated that during the examination of the witnesses the contraband articles should be placed before the court and the article mark should be exhibited. Needless to say that no such procedure has been adopted in the present case and no prayer was made by learned public prosecutor to learned Special Judge in this regard. Hence, the aforesaid decisions of the Supreme Court are fully applicable in the present case.

I may further add that the Court must always remind itself of the well settled principles of Criminal Jurisprudence that more serious the offence, the stricter the degree of proof is required and in this regard the decision of Noor Aga (supra) placed reliance by learned counsel for the appellant is quite relevant.

So far as the conviction of appellant u/s 25(1a) of the Arms Act is concerned, on bare perusal of the testimony of Head Constable Mahesh Chandra Jatav, Arms Clerk of the District Magistrate officer, Jabalpur (PW 10) it is gathered from his cross-examination that the sealed packet of the arms was got opened in his presence by the police personnel but at that juncture the District Magistrate was not present and therefore, in these state of affairs I am of the view that it can hardly be said that the offence u/s 25(1A) of the Arms Act is proved. Apart from this, on the aforesaid backdrop facts and circumstances, when the probable offence of the appellant has been found to be proven that he has been falsely roped in such type of seizure of arms carries no meaning and hence, the charge u/s 25(1)(A) of the Arms Act is also not proved.

For the reasons stated hereinabove, I am unable to uphold the conviction and sentence of the appellant u/s 8/ 21(b), 8/ 18(c) and 8/20(b) (ii) (B) of the Act and also u/s 25(1A) of the Arms Act. Eventuality, this appeal succeeds and is hereby allowed. The impugned judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from all the charges. The amount of fine, if deposited, be refunded to him.