Full Judgment
HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR Single Bench: Hon'ble Shri Justice N.K.Gupta,J.CRIMINAL APPEAL NO.1309 OF 200.Mohan Singh. Vs. State of Madhya Pradesh. ------------------------------------------------------------------------------------------- Ms. Alka Pandya , Advocate for the appellant. Shri G.S.Thakur, Panel Lawyer for the respondent/ State. ------------------------------------------------------------------------------------------- JUDGMENT
(Delivered on the 6th day of November, 2012) This criminal appeal is preferred by the appellant being aggrieved by the judgment dated 4/5/2007 passed by the Special Judge under Narcotic Drugs and Psychotropic Substances Act, Hoshangabad in Special Case No.2/2006 whereby the appellant was convicted for commission of offence punishable under Sections 8/20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”.) and sentenced for ten years' rigorous imprisonment with fine of Rs.1,00,000/-. In default of payment of fine, one year's rigorous imprisonment was also directed.
2. The prosecution’s case, in short, is that on 27.1.2006 at about 10:40 AM in the morning Shri Shankar Lal Soniya (PW-11), SHO Police Station Kesla had received 2 Cr.A.No.1309/2007 an information that some Ganja was transported in the vehicle Tata Sumo bearing registration not MH30B-7191 coming from the side of Betul. Shri Shankar Lal Soniya prepared a memo Ex.P-24 of that information and also the information was recorded in the Rojnamcha. Thereafter the witnesses were called. The intimation was given to the SDO (P) Itarsi. Since it was an urgent matter, therefore search warrant could not be obtained by Shri Shankar Lal Soniya. Shri Shankar Lal Soniya along with witnesses Balmukund (PW-1) and Rajesh Gaur (PW-2) went on the road and the vehicle in question was stopped. The appellant was driving the vehicle. He was given the intimation that he could be searched either by the Magistrate or the Gazetted Officer. Thereafter with the consent of the appellant, his search was taken by Shri Shankar Lal Soniya himself. A memo Ex.P-3 was prepared and thereafter the vehicle was searched. In that vehicle two gunny bags were found, which were filled with Ganja. The weight of Ganja in two bags was 31 kg and 29 kg respectively. In all 60 kg Ganja was found with the appellant. Two samples of 50 grams Ganja were taken from those bags. The samples as well as the entire Ganja were sealed properly. The various memos were prepared about the procedure adopted by Shri Shankar Lal Soniya (PW-11). The appellant was arrested. The Ganja and the samples were deposited in the Malkhana of Police Station Kesla on the same very day. Thereafter two samples were sent to the 3 Cr.A.No.1309/2007 Forensic Science Laboratory by a letter dated 29.1.2006 Ex.P-18 written by the Superintendent of Police, Hoshangabad. The Ganja was received in the Forensic Science Laboratory on 31.1.2006. The FSL by its letter Ex.P-29 opined that in both the samples Ganja was present. After due investigation, a charge sheet was filed before the Special Judge, NDPS Act, Hoshangabad.
3. The appellant-accused abjured his guilt. He took a plea that he obtained the vehicle from one Sushil Madhavrao Pathak to ply on hire and he took three passengers from Akola to drop them at Sagar and the luggage kept in the vehicle belong to those passengers. In defence one Abdul Shakil (DW-1) was examined.
4. The learned Special Judge after considering the evidence adduced by the parties convicted the appellant for commission of offence punishable under Section 8/20(b)(ii) (C) of the NDPS Act and sentenced him as mentioned above.
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellant has submitted that the appellant was innocent. The luggage found in the vehicle was not of the appellant. No independent witness has supported the prosecution case. The conviction is directed on the basis of the evidence given by the Investigation Officer. The appellant was the driver of the vehicle in question and he was following the 4 Cr.A.No.1309/2007 instructions given by the owner of the vehicle. He has not done anything on his own, whereas the police did not include the owner of the vehicle as an accused in the case. It is prayed that the appellant be acquitted by giving the benefit of doubt. It is also submitted that the sentence directed against the appellant may be reduced, because the appellant is in custody from the date of his arrest, therefore he remained in custody for more than five years.
7. On the other hand, the learned counsel for the State has submitted that it is a routine course that the witnesses can be won over and there is no hard and fast rule that if the independent witnesses have turned hostile, then the Investigation Officer may not be believed. The evidence of the SHO Shri Shankar Lal Soniya is believable. A huge quantity of 60 kg Ganja was found with the appellant, and therefore the conviction as well as the sentence directed by the trial Court appears to be correct and there is no basis by which any interference may be done in the appeal.
8. After considering the submissions made by the learned counsel for the parties and looking at the facts and circumstances of the case, it is to be considered as to whether the appeal of the appellant can be accepted?. And whether the sentence directed by the trial Court against the appellant can be reduced?. 5 Cr.A.No.1309/2007 9. The SHO Shri Shankar Lal Soniya has stated in the trial Court that he received an information about the transportation of the Ganja and he prepared a memo Ex.P-24. The information was also written in the Rojnamcha and the information was sent to the SDO (P) Itarsi. The statements given by Shri Shankar Lal Soniya are duly corroborated by the Constable Sunil Nagle (PW-10), who was posted in the office of SDO(P) Itarsi. He has stated that on 27.1.2006 he received a written information from SHO Police Station Kesla relating to transportation of Ganja in a vehicle. Since the SDO(P) was out of station, and therefore the Constable Sunil Nagle gave a receipt on Ex.P-16 itself and the information was produced before the SDO (P) when he came back to the office. Looking at the documents Ex.P-16 and Ex.P-24, which are duly proved by Shri Shankar Lal Soniya and Sunil Nagle, it is apparent that the Investigation Officer has followed the provisions of Section 42 of the NDPS Act.
10. Shri Shankar Lal Soniya (PW-11) has stated about the entire procedure of seizure. It is true that the independent witnesses Balmukund (PW-1) and Rajesh Gaur (PW-2) had turned hostile. Also Poonam (PW-3), who weighed the contraband substance has also turned hostile. But this is a routine phenomenot that the independent witnesses can be won over, and therefore if they turned hostile, their evidence cannot be considered as such in a 6 Cr.A.No.1309/2007 negative direction. Under such circumstances, the evidence given by the Investigation Officer should be considered with great caution. In the present case, the Investigation Officer has not only prepared the various memos during seizure of the contraband substance, but he also got the photo of the vehicle, material and police force, which was involved in the seizure, and therefore the version of the witnesses that they were not involved in the seizure or they simply signed on the document, appears to be incorrect. The Investigation Officer has made entry in the Rojnamcha about the entire procedure done by him and various memos were prepared. The trial Court has rightly found that Shri Shankar Lal Soniya complied with the provisions of Section 50 of the NDPS Act. By the evidence given by Shri Shankar Lal Soniya and document Ex.P-3, it is apparent that the appellant was given an opportunity to get his search before the Magistrate or Gazetted Officer, but he gave his consent for his search done by Shri Shankar Lal Soniya (PW-11) himself.
11. Looking at the memos Ex.P-7 to Ex.P-10 along with the evidence given by Shri Shankar Lal Soniya (PW-11), it is apparent that the contraband substance was duly sealed and memo of impression of seal was also prepared. Shri Shankar Lal Soniya has also proved that he deposited the sealed Ganja as well as samples in the Malkhana of the Police Station. In this respect the Head 7 Cr.A.No.1309/2007 Constable Vithal Rao (PW-5) has proved the entries of the register kept in the Malkhana. The photocopy of that entry is proved by Ex.P-17C. He found the sealed Ganja in two bags along with two samples duly sealed with a scale and the vehicle Tata Sumo. He has also submitted that the samples were given to the Constable Ajay Kumar to deposit in the FSL, Bhopal. A receipt Ex.P-19 is also proved by the Constable Ajay Kumar (PW-6), who deposited the two samples of Ganja in the sealed condition at FSL Bhopal on 30.1.2006. In the report Ex.P-29 issued by the FSL Bhopal, it was found that the samples contained Ganja (cannabis). Under such circumstances, it is apparent that the samples were kept in the Malkhana for a very short period and they were transmitted to the FSL Bhopal soon after the seizure in a sealed condition. Under such circumstances, the testimony of Shri Shankar Lal Soniya (PW-11) can be believed.
12. The learned Special Judge has found that the Investigation Officer has complied with the provisions of Sections 42, 50 and 57 of the NDPS Act. After completion of the entire procedure, Shri Shankar Lal Soniya sent a report Ex.P-22 to the Superintendent of Police, Hoshangabad. The Constable Dhanraj Singh (PW-8) has proved that the search report was received in the SP office on 28.1.2006, and therefore it is apparent that Shri Shankar Lal Soniya followed the provisions of Section 57 of the NDPS Act. 8 Cr.A.No.1309/2007 13. In the present case, it was not much important to believe or disbelieve Shri Shankar Lal Soniya on the point of the seizure, because the appellant took a defence that he was transporting three passengers from Akola to Sagar in the vehicle and luggage kept in the vehicle was of those passengers. According to his defence, he admits that his vehicle was searched and two gunny bags were found in his vehicle. Under such circumstances, there is no doubt on the seizure done by the SHO Shri Shankar Lal Soniya. Shri Shankar Lal Soniya has categorically denied that there was no passenger in that vehicle, then the burden was on the appellant to prove that he took three passengers from Akola to Sagar and the luggage was of those passengers.
14. Abdul Shakil (DW-1) was examined on behalf of the appellant to show that on 25/26.1.2006 the appellant was brought in the office of Gajanand Travel to take three passengers from Akola to drop them at Sagar. But the witness Abdul Shakil (DW-1) has accepted that he did not knot about the luggage of those passengers. According to him, the appellant left Akola at 5-6 PM in the evening. Under such circumstances, if the evidence given by the witness Abdul Shakil (DW-1) is accepted, then the appellant must have crossed the territorial jurisdiction of Police Station Kesla in the night itself, but he was detained at Police Station Kesla at about 11:30 AM in the morning, and therefore the description given by the witness Abdul Shakil 9 Cr.A.No.1309/2007 (DW-1) appears to be incorrect. The appellant has submitted an agreement Article-A to show that he was the driver to the vehicle. However, if the contents of the agreement Article-A are perused, then it would be clear that Sushil Madhavrao Pathak, owner of the vehicle gave the vehicle to the appellant on hire with a condition that the appellant would provide a sum of Rs.6000/- to the owner of the vehicle in every month. All other liabilities were given upon the appellant, and therefore the appellant was not the driver but he was a person who took the vehicle on hire. In this context, such tradition of making the agreements are to be deprecated unless a valid permit of taxi is obtained either by owner of the vehicle or by the person who took the vehicle on hire. However, that agreement could save the vehicle from the confiscation, but that agreement does not help the appellant where he was given the possession of the vehicle and he could take the passengers according to his own wishes.
15. The defence taken by the appellant that he had taken the passengers from Akola to Sagar, then the burden to prove such defence was upon the appellant to establish that someone else was there in the vehicle at the time of seizure of the contraband substance and that substance was of that passenger. But according to Shri Shankar Lal Soniya (PW-11), there was nobody except the appellant in the vehicle. If three passengers were sitting in the vehicle, then 10 Cr.A.No.1309/2007 certainly the appellant should have the knowledge of their names and addresses. The appellant was silent on the point that whether the passengers were in the vehicle or they were dropped earlier and at what place. If Shri Soniya had released those passengers after detaining the appellant then he should have given such a suggestion to Shri Shankar Lal Soniya in his cross examination, but no such suggestion was given to Shri Soniya from the side of the appellant. Thus the testimony of Shri Shankar Lal Soniya appears to be believable that there was nobody in the vehicle except the appellant. Therefore, it cannot be said that the property kept in the vehicle was not of the possession of the appellant.
16. Under such circumstances, the prosecution has proved beyond doubt that the appellant was transporting 60 kg Ganja in the vehicle hired by him, and therefore the trial Court has rightly convicted him for the offence under Section 8/20(b)(ii)(C) of the NDPS Act.
17. So far as the sentence is concerned, 60 kg Ganja was found in the possession of the appellant which is of commercial quantity and the trial Court inflicted the minimum sentence prescribed for that offence. Under such circumstances, no reduction can be done in the sentence directed by the trial Court.
18. On the basis of the aforesaid discussion, the appeal of the appellant cannot be accepted. Consequently, 11 Cr.A.No.1309/2007 it is hereby dismissed. The conviction as well as the sentence directed by the trial Court is hereby maintained.
19. At present the appellant is in custody, and therefore the execution of jail sentence shall continue.
20. A copy of this judgment be sent to the trial Court with its record for information and compliance. (N.K.Gupta) Judge 06/11/2012 Ansari.