Navin @ Uday Namdeo vs State Of Madhya Prades

This criminal appeal against conviction under Section 374 (2) of the Cr.P.C. filed on behalf of accused/appellant Navin @ Uday is directed against the judgment dated 26.06.2008 passed by the Court of Special Judge, NDPS Act, Jabalpur in sessions trial no.25/2006, whereby the accused was convicted under Section 8 read with section 20 (B) (ii) (b) of the Narcotic Drugs and Psychotropic substances Act, 1985 (herein after referred to in the judgment as “The Act”) and has been sentenced to undergo rigorous imprisonment for a period of 7 years and has been directed to pay fine in the sum of Rs.50,000/-. In default of payment of fine, he was directed to undergo further rigorous imprisonment for a period of 3 years.

The case of the prosecution may be summarized as hereunder: Assistant Sub-Inspector, B.M. Dwivedi (PW-4) was on night duty from 08:00 p.m. on 30.04.2006 in G.R.P., Jabalpur. At around 00:10 a.m. on 01.05.2006, he received an information from an informant that a 19-20 years old boy is standing on platform no.1 of the railway station in front of R.M.S. office with psychotropic substance (Ganja) in a blue suitcase. Accordingly, he prepared a panchnama of the information and made an entry of the same in Daily Diary. He called panch witnesses through Constable Vinod Kumar and sent information to Deputy Superintendent of Police through Constable R.K. Pandey. On arrival of panch witnesses, R.P. Mishra and Babulal Rajput in the police station, the information was disclosed to them and the material necessary for investigation was taken and since, there was an apprehension that delay may facilitate escape of aforesaid person, he proceeded to the spot with aforesaid panch witnesses, A.S.I., R.P. Pandey, Head-Constable, Ramesh Kaurav and Constables Vinod Kumar and Jamuna Prasad. After making an entry of the departure in the Daily Diary. At about 00:50 hours, they reached the spot and verified the information. Accused told that his name was Navin @ Uday Namdeo. He was intimated regarding the information. He was also informed regarding his right to get his suitcase searched either by a Magistrate or by a Gazetted Officer or by ASI, B.M. Dwivedi. Accused gave his consent to be searched by ASI, B.M. Dwivedi in writing. At 01:30 a.m. search of the panch witnesses and members of the police force was given to the accused. Thereafter, the suitcase of the accused was searched at 01:50 hours; whereon, a slab of wet ganja was recovered from inside two packets of white polythene kept in the suitcase. The ganja was tested by burning, smelling and tasting and on the basis of experience of the Officer making seizure namely, B.M.Dwivedi, it was found that the substance was ganja. A balance was called through Constable Jamuna. After physical verification of the balance, Ganja so seized was weighed. The packets contained 5 Kgs. 600 gms. and 4 Kgs. and 900 gms. (in all 10 kgs. and 500 gms.) of ganja respectively. Ganja seized from the packets was mixed and made homogeneous and 2 samples of 50

gms. each were prepared and remaining quantity of Ganja was sealed. Seizure memo was prepared at about 03:00 a.m. The seized Ganja was handed over to the Head Constable, Ram Kumar Pandey for being deposited in the Malkhana and a certificate in this regard was obtained. The offence was registered and the accused was arrested and an intimation regarding the seizure was sent to the concerned Judicial Magistrate. The intimation of arrest of the accused was also sent to the next of kin of accused and the charge-sheet was filed.

The Court framed a charge under Sections 8 read with section 20 (B) (ii) (b) of the Act. Accused abjured the guilt and claims to be tried. In his examination under Section 313 of the Cr.P.C., he stated that he had gone to the railway station to seeoff his sister. The police was chasing some other person; however, they caught him under a misconception.

After the trial, the Court concluded that the prosecution had succeeded in proving beyond reasonable doubt that on 01.05.2006, accused was found in possession of 10.5 kgs. of illicit Ganja (fruiting and flowering tops of Cannabis plant) without any valid licence. The police had observed all necessary legal formalities and had seized Ganja from the possession of the appellant and mandatory requirements of the Act were observed. Since the contraband was not seized from the person of the accused but from the suitcase he was carrying, provisions of Section 50 of the Act were not applicable to the present case. Consequently, the accused was convicted and sentenced as hereinabove stated.

Learned counsel for the appellant has assailed the impugned judgment mainly on the ground that the prosecution had failed to satisfactorily prove that the Investigating Officer had complied with mandatory provisions of Section 42 (1) (2) and 50 of the Act. Panch witnesses namely Babulal (PW-

1) and Rajendra Prasad Mishra (PW-3) had turned hostile and had not supported the prosecution case at all. It has also been submitted that Head Constable, R.K. Pandey (PW-2) has admitted in his cross-examination that he did not deposit the contraband in the Court till 11.11.2007. As such, the prosecution had failed to prove the guilt of the accused; therefore, he deserves the benefit of doubt. It has also been urged that the appellant had already undergone a period of 2 years, 1 month and 25 days in custody during the trial. He has also spent a further period from 26.06.2008 till 15.04.2011 in custody during the pendency of this appeal; therefore, if his conviction is affirmed, substantive jail sentence of the appellant be reduced to the period already undergone by him in custody.

Learned panel lawyer for respondent State on the other hand has supported the impugned judgment.

On perusal of the record and due consideration of the rival contentions, this Court is of the view that the conviction of the appellant is liable to affirmed; however, it would be appropriate to reduce the substantive jail sentence imposed upon him from 7 years to 5 years.

ASI, B.M. Dwivedi (PW-4) is the fulcrum around on which the entire case revolves. He has stated that he was posted as ASI in G.R.P., Jabalpur.

On 01.05.2006, at about 00:10 hours, he received an information from an informant that a 19 or 20 years old boy in a white shirt was standing at platform no.1 in front of the R.M.S. office. He was carrying Ganja in a suitcase. He prepared a panchnama (Ex.P/14) of the information received from the informant. He sent the intimation of aforesaid information received from the informant to his superior officer, the D.S.P. Railways and made an entry in this regard at serial no.4 in the Daily Diary (Ex.P/15). He sent Constable Vinod Kumar to bring in two independent witnesses and made an entry in this regard at serial no.5 in the Daily Diary (Ex.P/16). He prepared a separate panchnama regarding the intimation sent to D.S.P. (Railways) (Ex.P/17). The aforesaid fact was mentioned at serial no.6 in the Daily Diary. The receipt of the intimation received from D.S.P. is (Ex.P/18).

Thereafter, Head Constable Vinod Kumar Pandey arrived with two independent witnesses, Babulal (PW-1) and Rajendra Prasad Mishra (PW-3).

This fact was mentioned at serial no.7 of the Daily Diary (Ex.P/19). Return of Constable Rajesh after giving intimation was entered at serial no.11 in the Daily Diary (Ex.P/20).

ASI, B.M. Dwivedi (PW-4) has further stated that thereafter the information received from the informant was disclosed to both the independent witnesses. As there was apprehension that the accused would escape if he waited for the higher officers, he proceeded to the spot along with A.S.I.

R.P. Pandey, Head Constable Ramesh Kaurav, Constables Vinod Kumar and Jamuna and independent witnesses Babulal and Rajendra. He also took along with him the material necessary for conducting investigation. Entry in this regard was made in the Daily Diary at serial no.8.

ASI, B.M. Dwivedi has further deposed that they reached the R.M.S. office at platform no.1. As per the information, the accused was present with a blue suitcase in his right hand. On being asked, he told that his name was Navin and a panchnama (Ex.P/13) was prepared in this regard. He was intimated regarding the information. He was also informed that the police wishes to conduct search of his suitcase. He was also informed that he had constitutional right to get his suitcase searched either by a Magistrate or a Gazetted Officer; or by ASI, B.M. Dwivedi. The accused consented for searchof his suitcase by ASI, B.M. Dwivedi. A panchnama (Ex.P/1) was prepared in writing and signature of the accused was taken thereon (Ex.P/2A).

ASI, B.M. Dwivedi has further stated that the accused was allowed to search the members of the police force and panch witnesses; however, nothing objectionable was recovered from them and a panchnama (Ex.P/3) was prepared in this regard. Thereafter, he conducted the search of the suitcase of the accused and inside the suitcase, two bundles were found wrapped in a newspaper. Contraband was found in polythene. A panchnama regarding search (Ex.P/4) was prepared. The contraband so seized was tested by burning and smelling, which was found to be Ganja and panchnama (Ex.P/5) was prepared in this regard. Thereafter, a balance was requisitioned through Constable Jamuna. After verification of the balance, the contraband was weighed. It was found to weigh 10.5 kgs. Two samples weighing 50 gms. each were prepared and the seizure memo (Ex.P/8) was prepared. The contraband and the samples were sealed. Samples of the seal were affixed on seizure memo and panchnama of samples (Ex.P/9) was separately prepared. Accused was arrested and arrest memo (Ex.P/10) was also prepared, wife of the accused was duly intimated.

ASI, B.M. Dwivedi has also deposed that after completion of aforesaid procedure, he returned to police station along with accused person and made an entry in the daily diary (Ex.P/22). T.I., Akhil Verma recorded the FIR (Ex.P/23) and a copy of the FIR and the arrest memo were sent to the Special Judge, Jabalpur. The contraband so seized was handed over to Malkhan Mohrir and the certificate issued by him is (Ex.P/24). A spot map (Ex.P/25) was also prepared. Further investigation in this case was conducted by T.I. Akhil Verma, Police Station-Omti, Jabalpur (Ex.P/6).

Panch witness Babulal (PW-1) and Rajendra Prasad Mishra (PW-3) have turned hostile. Babulal has stated that he is a tea vendor at the Railway Station, Jabalpur. He was asked by the police to weigh Ganja, which was 10 kgs and 500 gms; however, no Ganja was seized in his presence from the possession of the appellant Navin @ Uday Namdeo. Another panch witness R.P. Mishra (PW-3) has stated that he was a Vendor in the Railway Station, Jabalpur. The police had called him to G.R.P. Police Station. He was asked to sign documents from Ex.P/1 to Ex.P/13; however, no contraband was ever seized in presence from the possession of the appellant by the police.

It may be noted here that principal witness, B.M. Dwivedi (PW-4) has not been challenged at all in the crossexamination; as such, there is no reason to view the statement of the aforesaid witnesses with suspicion. It is true that the panch witnesses have not supported the prosecution case; however, the Supreme Court in the case of P.P. Fathima Vs. State of Kerala, (2003) 8 SCC 726 and many other authoritative pronouncement has held that mere fact that the panch witness does not support the prosecution case by itself would not make the prosecution case any less acceptable, if otherwise, the Court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made. In the present case also, this Court is satisfied from the unchallenged testimony of ASI, B.M. Dwivedi that search and seizure of the contraband was duly made from the accused; as such, the failure of panch witnesses to support the prosecution case would not affect the reliability thereof.

So far as the compliance with the mandatory provisions of the Act are concerned, it may be noted that the Officer conducting the search in the present case was of the Rank of ASI. The State Government in exercise of its powers conferred under Section 7 read with section 41 (2) of the Act, by notification dated 11.11.1985 published in M.P. Gazette (Extra Ordinary, dated 14.11.1985) (Pages 2254 and 55), has authorized officers of ranks of Assistant Sub-Inspector and above of the Police Department to carry out search, seizure and arrest etc.; as such, it cannot be said that ASI, B.M.

Dwivedi was not authorized to conduct the search and seizure.

It may further be noted that in the present case, the accused was arrested from the railway platform in front of RMS Office, which was a public place; as such, Section 43 of the Act would be applicable to the case.

It may also be noted that in the instant case the contraband was seized from the suitcase, which the accused was carrying. Thus, there was no inextricable connection between his body and the container in which the contraband was found. In this regard, judgment rendered by the Supreme Court in the case of Yasihey Yobin and another Vs. Department of Customs, Shillong, 2013 (3) Crimes 342 (SC) may profitably be referred to.

Moreover, it has been held by the Supreme Court in the case of Kalema Tumba Vs. State of Maharashtra, (1999) 8 SCC 257 that if the contraband is found from a bag or some article being carried on the person, it cannot be said to have been recovered from that “Person”. In such circumstances, Section 50 cannot have any application. Same view has been reiterated by the Supreme Court in the case of Madanlal and anr. Vs.

State of Himachal Pradesh, 2003 (7) SCC 467. As such, Section 50 would have no application to the case. At any rate, this option was gratuitously given to the accused and he had consented to be searched by the ASI.

Learned counsel for the appellant has invited attention of the Court to para. no.3 of the cross-examination of Head Constable R.K. Pandey (PW- 5), who has stated that till 11.11.2007, i.e., the date on which this witness was examined by the trial Court, the property was not deposited in the trial

Court. However, the preceding paragraph no.2 of his deposition makes it clear that he was referring to samples that were sent to FSL and in fact meant that samples sent to FSL, Sagar had not been deposited in the Court till 11.11.2007. Remaining 10.4 kgs. of Ganja was deposited in the Court along with final report under Section 173 of the Cr.P.C. This fact has been mentioned in the final report itself. As per the FSL report (Ex.P/29) samples contained Ganja.

In aforesaid circumstances, in the opinion of this Court, the trial Court was justified in concluding that 10.5 kgs of Ganaj was seized from the possession of the appellant from a public place. All mandatory provisions of the Act applicable to the case, had been duly complied with; as such, there is no question of granting benefit of doubt to the accused.

Therefore, there is no ground to interfere with the conviction of the appellant Navin @ Uday Namdeo under Sections 8 read with section 20 (B)

(ii) (b) of the N.D.P.S. Act, 1985. Consequently, the conviction of the appellant Navin @ Uday Namdeo is liable to be affirmed.

Now the question that remains for consideration is whether the sentence of rigorous imprisonment of 7 years imposed upon the appellant deserves to be reduced. It may be noted here that the appellant is a first offender. He has no criminal antecedents. He was 20 years of age when he committed the offence. The quantity of the Ganja seized from his possession was 10.5 kgs, which was 10 times more than the small quantity (1 kg.) but was half the designated commercial quantity (20 kgs.). Having possession of small quantity, the convict is liable to undergo rigorous imprisonment, which may extend to 1 year and for the possession of commercial quantity, he is liable to undergo rigorous imprisonment for a period, which must not be less than 10 years but which may extend to 20 years. In aforesaid circumstances, it would be appropriate to reduce the substantive jail sentence imposed upon the appellant from 7 years to 6 years.

Consequently, this appeal is partly allowed. The conviction of the appellant under Section 8 read with section 20 (B) (ii) sub-clause (b) of the N.D.P.S. Act, 1985 is affirmed. The substantive jail sentence of rigorous imprisonment for a period of 7 years is reduced to rigorous imprisonment for a period of 6 years. The rest of the sentence is affirmed.

The appellant shall surrender before the trial Court for undergoing remaining part of his sentence on 23.04.2018. In case, he does not appear before the trial Court on that date, the trial Court shall issue an arrest warrant for compelling his attendance in the Court so as to make him undergo remaining part of his sentence (if any).