Judgment:
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Appeal No.1565/2007 Vishunath Kol VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri Praveen Pandey, counsel for the appellant. Shri S.K.Kashyap, Public Prosecutor for the State/ respondent. ---------------------------------------------------------------------------
JUDGMENT
(Delivered on the 6th day of November, 2012) The appellant has preferred this appeal against the judgment dated 30.5.2007 passed by the learned Special Judge, Satna in Special case No.28/2005, whereby the appellant was convicted for the offence punishable under section 20 (b) (ii) (C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter it will be referred to as 'NDPS Act') and sentenced for 10 years' rigorous imprisonment with fine of Rs.1,00,000/- and in default of payment of fine, 1 year's rigorous imprisonment was also directed.
2. The prosecution's case, in short, is that, on 8.7.2004, at about 9.30 a.m. in the morning, Sub Inspector -:- 2 -:- Criminal Appeal No.1565 of 2007 Shri Himmat Singh Parihar (P.W.10), SHO, Police Station Amarpatan had received an information that one Rajju Pandey was involved in the trade of Ganja (cannabis) and he kept some Ganja in the house of the appellant Vishunath Kol. Shri Himmat Singh prepared a memo, Ex.P/1 about that information and called the witnesses Vijay Kumar Sharma (P.W.1) and Shiv Kumar Sharma (P.W.2). The memo, Ex.P/1 was prepared in the presence of these witnesses. Thereafter, Shri Himmat Singh went to the house of Vishunath Kol and obtained his consent for search of his house. Thereafter, Shri Himmat Singh gave his search and search of the staff and witnesses to the appellant and entered in the house of the appellant. In one room, some fodder was kept in gani bags. In the stake of that fodder, 8 big bags and one small bag were found, filled with Ganja. Entire material was mixed and thereafter, it was identified to be Ganja, thereafter, Shri Himmat Singh Parihar called one Shrikant @ Ravan (P.W.3) to weigh that Ganja along with his scale, weight and measures. It was found that the entire Ganja was one quintal and 5 kgs. Two samples of 25 gms each were taken from the entire stuff and sealed separately, whereas remaining Ganja was also seized and sealed. Shri Himmat Singh Parihar prepared various memos of entire procedure from Ex.P/2 to Ex.P/10. The appellant was -:- 3 -:- Criminal Appeal No.1565 of 2007 arrested. The samples obtained from the substance seized from the appellant were sent to the Forensic Science Laboratory for its analysis. The Forensic Science Laboratory, Sagar in its report, Ex.P/23 found it to be Ganja. After due investigation, a charge-sheet was filed before the Special Judge, NDPS Act, Satna.
3. The appellant abjured his guilt. He took a plea that he was working at Rajnagar and residing at Rajnagar with his family. He was not residing with his father. On the date of the incident, he went to the house of his father and the police had unnecessarily held him. Alleged Ganja was seized from the place which was not of the appellant. He has further stated that his house is away from the place from where the Ganja was seized. The police had not given any document to show that the appellant had any control on that house from where the Ganja was seized. In defence, Ramadhar (D.W.3) and Rajendra Kol (D.W.4) were examined to show that the appellant was residing in Rajnagar since last 15 to 20 years and the appellant had an old house at Katha in Ward No.14, whereas his father was residing in the new township of the village Katha in Ward No.4.
4. The learned Special Judge, after considering the evidence adduced by the parties, acquitted the co-accused Rajju @ Ravendra but, convicted the appellant for the offence -:- 4 -:- Criminal Appeal No.1565 of 2007 punishable under section 20 (b) (ii) (C) of 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 it was not established by the prosecution that the house from where the Ganja was obtained was in the possession of the appellant. Reliance is placed upon the judgment passed by Hon'ble the Apex Court in case of “Mohd Alam Khan Vs. Narcotics Control Bureau”., [AIR 199.SC 3033].. It is also submitted that by mere presence in the room, the appellant could not be held guilty for the offence. In this connection, reliance is placed upon the judgment passed by Hon'ble the Apex Court in case of “Ismailkhan Aiyubkhan Pathan Vs. State of Gujarat”., [(2000) 10 SCC 257]. and “State of Punjab Vs. Balkar Singh and another”., [AIR 200.SC 4606].. It is further submitted that the Investigation Officer did not comply the provisions of sections 42 and 50 of the NDPS Act. It is not established that the seized property was kept in Malkhana of the Police station in a safe manner and it was not at all produced before the trial Court. not production of the seized property before the trial Court is fatal. In this connection, judgment passed by Hon'ble the Apex Court in case of “Jitendra and another Vs. State of M.P.”
. [(2004) -:- 5 -:- Criminal Appeal No.1565 o”
10. SCC 562]. is cited. Therefore, it is prayed that the appellant may be acquitted.
7. On the other hand, the learned Public Prosecutor has submitted that looking to the quantity of Ganja, it was not possible for the Investigation Officer to plant such Ganja in the room of the appellant. Though independent witnesses have turned hostile but, procedure done by the Investigation Officer is duly corroborated by Head Constable Ram Prakash (P.W.9) and Constable Munna Lal (P.W.11). Hence, the testimony of Shri Himmat Singh, the then SHO, Police Station Amarpatan is believable and conviction as well as the sentence directed by the trial Court appears to be correct.
8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellant can be accepted?. And whether any reduction can be done in the sentence directed by the trial Court?.
9. In the present case, the independent witnesses Vijay Kumar Sharma (P.W.1) and Shiv Kumar Sharma (P.W.2) have turned hostile. Similarly, Shrikant @ Ravan (P.W.3) who was the witness of weighing the contraband substance Ganja has also turned partly hostile. SHO Shri Himmat Singh (P.W.10) has stated about the entire -:- 6 -:- Criminal Appeal No.1565 of 2007 proceedings done by him and his evidence was corroborated by Head Constable Shri Ram Prakash Pandey (P.W.9) and Constable Munna Lal Rawat (P.W.11), who went with SHO Shri Himmat Singh to the spot. Their case diary statements were recorded by Sub Inspector Shri K.G.Shukla (P.W.8) and therefore, the witnesses Ram Prakash and Munna Lal have claimed themselves to be eye witnesses in the case. A police official cannot be a good eye witness in a case because every police official is required to assist the police officer, who is competent to do the investigation on each and every day and therefore, it is not possible for a particular police official to remember about all the facts of that matter in which he went with the investigation officer. The witnesses Ram Prakash and Munna Lal have stated superficially in support of Shri Himmat Singh but, they were subordinates to the investigation officer Shri Himmat Singh and therefore, they could support his proceedings. It is open for the Investigation officer to name the witness after completion of a raid and therefore, it is necessary for him to prepare a Rojnamacha before leaving the police station that he left for the spot along with a force inclusive of the witnesses. In the present case, no copy of Rojnamacha was submitted with the charge-sheet or no such Rojnamacha was proved to show that the witnesses Ram Prakash and Munna Lal went to the -:- 7 -:- Criminal Appeal No.1565 of 2007 spot with Shri Himmat Singh. When an information is received about the contraband substance then, it was for the Investigation officer to register that information and to inform the DSP concerned about the information and also to seek a search warrant. Various memos can be prepared in ante time manner and therefore, if any information is recorded in the Rojnamacha then, it may be considered to be authentic because Rojnamacha is a daily diary of the police station, which is filled up in the entire day from time to time. Hence, it was necessary for the Investigation officer to submit a copy of the concerned entries in the Rojnamacha for the procedure adopted by him. In the present case, the investigation officer neither produced the copy of Rojnamacha not proved that such Rojnamacha was recorded after getting the information from the informer and thus, it is the violation of the provisions of section 42 of the NDPS Act.
10. If cross-examination of witness Ram Prakash Pandey (P.W.9) is perused then, it would be clear that he could not remember so many important things occurred during the seizure. He could not tell the number of Gani bags, which were found at the spot. He could not tell as to how the substance was made homogeneous. He could not remember that out of the entire police officials, who went inside the house and who remained outside the house. -:- 8 -:- Criminal Appeal No.1565 of 2007 Under such circumstances, the testimony of the witness Ram Prakash cannot be believed because he does not knot the material facts of the incident. Similarly, if the cross- examination of the witness Munna Lal Rawat is perused then, it would be clear that he did not knot about the time of the incident. The incident took place in the broad day light, whereas this witness has admitted in para 2 of his statement that when they reached the spot by a jeep, its head lights were on. According to the document of registration of the crime, the incident of seizure took place at about 1 p.m. in the noon and therefore, there was no possibility of using the head lights of the jeep for travelling in the day. He has accepted that there was no measure of 100 gms and 50 gms, therefore, 100 gms quantity was taken from the entire stuff by approximation and thereafter, samples were prepared. According to him, samples of 100 gms substance were prepared, whereas according to memo Ex.P/7 and Ex.P/9, a weight of 25 gms was available and each samples were taken with 25 gms of Ganja. At this stage, it is to be mentioned that Weight and Measures Department issues the weighs of denominations of 5 gms, 10 gms, 50 gms, 100 gms, 200 gms 500 gms etc. but, no weigh or measure is issued for a weight of 25 gms, whereas, in the memo, Ex.P/7, it is mentioned that weight of 25 gms was -:- 9 -:- Criminal Appeal No.1565 of 2007 also available. However, according to the witness Munna Lal, weight of less than 100 gms was not available, which is contradictory to the memo, Ex.P/7 and Ex.P/9. The witness Munna Lal did not say anything about the sealing of the material at the spot. According to him, the entire stuff was taken to the police station. He has also accepted that the appellant Vishnunath Kol was not known to him, prior to the incident. He did not knot about his house. Under such circumstances, looking to the material contradictions in the evidence given by Constable Munna Lal, his testimony cannot be believed. Hence, the entire case depends upon the testimony of SHO Shri Himmat Singh (P.W.10).
11. It is true that SHO Shri Himmat Singh could not plant one quintal of Ganja in the house of the appellant because he could not get such Ganja on his own but, if he would have seized that Ganja from someone else then, he could transfer the case upon the appellant to save the actual culprit and therefore, testimony of Shri Himmat Singh is to be considered with caution. In case, where a stern sentence is to be imposed upon the accused, evidence should be considered with great caution and strictness, so that a wrong person may not be convicted. Shri Himmat Singh (P.W.10) has stated that he recorded a memo of information in Rojnamacha vide entry No.262 dated 8.7.2004 and a memo, -:- 10 -:- Criminal Appeal No.1565 of 2007 Ex.P/1 was prepared and thereafter, he sent the information received by him to SDOP, Maihar vide a letter No.1139, Ex.P/16 on the same day. It is also submitted that the letter Ex.P/16 was received by the Constable Omprakash (P.W.6) at about 11 a.m. in the morning, whereas Omprakash was posted in the office of SDOP, Maihar. He gave a receipt on the letter Ex.P/16 that it was received at about 11 a.m. in the morning. However, SDOP, Maihar was not present in the office at that time and therefore, information of the letter was given to him after sometime. If the letter, Ex.P/16 is perused then, it is mentioned in the letter that one Rajju Pandey had kept some Ganja in the house of the appellant Vishunath Kol and there was a possibility that the Ganja would be shifted in the night. There was no possibility of shifting of Ganja in the day hours as per the letter written by SHO Shri Himmat Singh. When a letter could be sent to the SDOP, Maihar within two hours then, SHO could take the search warrant from the SDOP, Maihar within 2-3 hours and thereafter, he could raid that house. Though he had sufficient time but, he did not try to take any search warrant from the SDOP concerned. In the letter, Ex.P/16, it is no where mentioned that SHO Shri Himmat Singh required any search warrant from the SDOP concerned. Under such circumstances, it is apparent that SHO Shri Himmat Singh violated the -:- 11 -:- Criminal Appeal No.1565 of 2007 provisions of section 42 of the NDPS Act in not taking any search warrant from the SDOP concerned.
12. According to SHO Shri Himmat Singh, he went to the house of the appellant and obtained his consent for searching of the house. According to the provisions of section 50 of the NDPS Act, search of the accused could be taken by the investigation officer but, he should have been given an opportunity, so that he could get his search from the Magistrate or Gazetted Officer and therefore, he should have been informed about the provisions and his right about that search. In memo, Ex.P/2, the information used for the option of search by a Gazetted officer or the Magistrate is not indicative that Shri Himmat Singh told about the rights of the appellant for his search or search of his house. Under such circumstances, Shri Himmat Singh did not follow the provisions of section 50 of the NDPS Act.
13. The defence witness Ramadhar Vishwakarma (D.W.3) and Rajendra Kol (D.W.4) has stated that the appellant was residing at Rajnagar since last more than 12 years and he had a house in Ward No.14 of the village Katha, whereas his father Sakhaiya Kol was residing in the new locality and alleged Ganja was seized from the house of the new locality. The appellant was visiting the house of his father for once or twice in the year to look after his parents -:- 12 -:- Criminal Appeal No.1565 of 2007 and therefore, the house from where the Ganja was seized was not of the appellant and therefore, the exclusive possession of the appellant was not proved. In this connection, Shri Himmat Singh has stated that the house was of the appellant and therefore, Ganja was seized from the possession of the appellant because it was the house of the appellant. In this connection, the spot map, Ex.P/12 may be perused, in which it is mentioned that the concerned house was of Sakhaiya Kol and one room was shown to be of the appellant from where the Ganja was seized. Looking to the entries made in the spot map, Ex.P/12, it is apparent that defence witnesses have stated correctly that Ganja was seized from the house of Sakhaiya Kol and therefore, it was the duty of the investigation officer to establish the exclusive possession of the appellant. Shri Himmat Singh has stated that in a room, fodder was filled up and Ganja was found in the stake of fodder but, in the spot map, Ex.P/12, it is mentioned that Ganja was seized from the room of the appellant. If Sakhaiya Kol had alloted one room to the appellant then, it should be a habitable room for his son Vishunath but, if it was totally filled up by fodder then, it cannot be said that it was allotted to the appellant and the appellant was the person, who was in possession of that room or Ganja. In this connection, judgment passed by -:- 13 -:- Criminal Appeal No.1565 of 2007 Hon'ble the Apex Court in case of Ismailkhan Aiyubkhan Pathan (supra) may be referred in which it was held that if any person was present in a particular room then, the material kept in that room may not be said to be in the possession of that person. Under such circumstances, in the light of judgment passed by Hon'ble the Apex Court in case of Ismailkhan Aiyubkhan Pathan (supra), it cannot be said that the alleged Ganja was seized from the actual possession of the appellant Vishnunath Kol. Similarly, the judgment passed by Hon'ble the Apex Court in case of Mohd. Alam Khan (supra) may also be referred, in which it was laid that aid of section 66 of the NDPS Act cannot be taken if ownership of the house was not established. In the present case, Shri Himmat Singh himself has mentioned in the spot map, Ex.P/12 that house was of Sakhaiya Kol, father of the appellant then, it was the duty of the investigation officer to establish that particular portion of the house was in possession of the appellant. Possibility cannot be ruled out that fodder was kept by Sakhaiya Kol in that room and since that room was not habitable, it cannot be said that it was allotted to the appellant.
14. The learned counsel for the appellant has relied upon the judgment passed in case of Balkar Singh (supra) but, due to factual difference, that judgment cannot be -:- 14 -:- Criminal Appeal No.1565 of 2007 applied in the present case. Shri Himmat Singh has done material lapses in the procedure adopted by him. He has stated that Ganja was in 8 big bags and one small bag and thereafter, he made the entire substance homogeneous. There was no necessity to make the substance homogeneous. On the contrary, each bag must have been seized separately and samples should have been taken from each of the bags, otherwise, possibility cannot be ruled out that in a very small quantity of Ganja, other material of remaining bags would have been unnecessarily mixed with the Ganja and its quantity was enhanced unnecessarily. Since the investigation officer has mixed the material of all the 9 bags then, it cannot be said that whether there was Ganja in each and every bag. It is possible that after mixing the entire material, Ganja found in a small bag was mixed with other material and Forensic Science Laboratory could find Ganja in that sample.
15. Similarly, in memo, Ex.P/5 and Ex.P/6, it is no where mentioned that what was the physical appearance of the material, which was identified as Ganja before the witnesses. The Forensic Science Laboratory did not give the weight of Ganja in its report and therefore, it cannot be said that what was the actual quantity of Ganja found at the spot and it is no where clear that as to whether the other material -:- 15 -:- Criminal Appeal No.1565 of 2007 was mixed with the Ganja at the time of making all the material homogeneous.
16. So far as the procedure of taking samples is concerned, the statement given by constable Munna Lal may be considered that there was no weight of lesser quantity and 100 gms of material was weighed and two samples of 25 gms each were prepared by approximation with help of witness Shrikant @ Ravan, whereas Shrikant @ Ravan (P.W.3) has turned hostile. Shrikant @ Ravan has stated that he was not called in the locality Katha but, he was called at the police station Amarpatan, where he weighed some substance which was kept in bags. The witness Shrikant @ Ravan has not stated that any sample was taken by him separately or he weighed any sample separately. Head Constable Ram Prakash has also stated that he called the witness Shrikant @ Ravan from bus stand Amarpatan to the police station but, it is no where stated by anyone that Shrikant @ Ravan was taken to the spot from the police station from very beginning and therefore, evidence given by Shrikant @ Ravan appears to be correct that he weighed the substance at Police Station Amarpatan. The statement given by Shrikant @ Ravan indicates that neither any Ganja not any sample was sealed at the spot but, entire material was taken to the police station. Under such circumstances, -:- 16 -:- Criminal Appeal No.1565 of 2007 testimony of Shri Himmat Singh, relating to taking of samples and sealing the entire Ganja and samples, goes away. It is no where clear that which sample was sent to the Forensic Science Laboratory by Shri Himmat Singh.
17. According to Shri Himmat Singh, the sample was kept in the Malkhana of Police Station upto 10.7.2004 (para 12 of the statement). It is true that the letter Ex.P/15 to the Forensic Science Laboratory was prepared by S.P., Satna on 10.7.2004 but, it is no where clear that when Constable Ramakant (P.W.5) took that Ganja from the Police Station Amarpatan and deposited it to the Forensic Science Laboratory, Sagar. Constable Ramakant (P.W.5) could not tell the detail as to when he left the police station and when he deposited the sample in the Forensic Science Laboratory and when did he come back. No Rojnamacha was submitted before the trial Court to show the visit of Constable Ramakant to the Forensic Science Laboratory, Sagar. According to the report, Ex.P/23 given by Forensic Science Laboratory, the sample was received in the laboratory on 13.7.2004. Amarpatan is not so far away from Sagar, so that the concerned constable could not reach on the same day to the Forensic Science Laboratory and if he took the sample of Ganja on 10.7.2004, then, why he has not deposited the same on 10.7.2004 or at the most on -:- 17 -:- Criminal Appeal No.1565 o”
11. 7.2004. There is no explanation given as to whether the sample was kept for remaining two days in a proper sealed position or not. If it is presumed that the constable Ramakant left the police station on 12.7.2004 and submitted the sample in the Forensic Science Laboratory on 13.7.2004 then, there is no explanation that where the sample was kept for the period from 10.7.2004 to 12.7.2004. The sample was sealed by a brass seal of Police station Amarpatan, which was readily available with the SHO Shri Himmat Singh and therefore, he had an opportunity to change the sample. Hence, it was for him to explain the whereabouts of that sample for each and everyday. He has not produced the register of Malkhana concerned to show that the seized sample was deposited to the Malkhana on a particular day and on a particular time and the sealed sample was taken back from the Malkhana on a particular day and at particular time. Under such circumstances, the possibility cannot be ruled out that the sample was mishandled during the period, in which it was alleged to be kept in the Malkhana.
19. In para 12 of the statement given by Shri Himmat Singh, he gave a strange news to the Court that he deposited only two samples in the Malkhana of the Police Station Amarpatan and he took one sample from that Malkhana and -:- 18 -:- Criminal Appeal No.1565 of 2007 sent it to the Forensic Science Laboratory. He did not state that he kept the entire seized property in the Malkhana. If the entire seized property was not kept in a safe manner then, 25 gms of Ganja could be arranged by Shri Himmat Singh to implicate the appellant and therefore, it was his duty to establish that the entire seized property was properly sealed and it was kept in the Malkhana and it was produced before the trial Court. If the statements of various witnesses are considered then, it would be clear that no seized Ganja was shown to any of the witnesses during their examination. It is doubtful that whether the entire seized Ganja was produced in the trial Court or not. If the entire Ganja was not deposited in the Malkhana of Police Station Amarpatan and if it is not produced before the trial Court then, where has it gone. It is doubtful that whether such quantity of Ganja ever existed. Hon'ble the Apex Court in case of Jitendra (supra) has held that if seized drugs were not produced before the trial Court then, it is not a mere procedural irregularity but, it causes prejudice to the accused and hence, it is fatal to the prosecution's case. In the light of the aforesaid judgment passed by Hon'ble the Apex Court, it is apparent that there is no proof to show that the entire seized drugs were produced before the trial Court and existence of such quantity of drug also becomes -:- 19 -:- Criminal Appeal No.1565 of 2007 doubtful. Since, it is fatal to the prosecution and therefore, by such a lapse, the appellant could not be convicted for keeping such a drug with him.
20. On the basis of the aforesaid discussion, it is apparent that the investigation officer Shri Himmat Singh did not comply the provisions of sections 42 and 50 of the NDPS Act. He did not seal the entire material at the spot. It is no where clear that whether the sample was taken from the contraband substance seized from the appellant or it was prepared from any other material. It is no where clear as to where the sample was kept in between 10th and 11th July, 2004. Since he had the brass seal of the police station and an opportunity to change the sample, therefore, procedure adopted by him does not inspire any confidence. It is also not established that a room from where the alleged Ganja was seized was in the exclusive possession of the appellant and therefore, it cannot be said that the appellant had the possession of those 9 bags or those 9 bags were filled up with Ganja or any contraband substance was found with the appellant and therefore, the appellant could not be convicted for the offence punishable under section 20 of the NDPS Act. The learned Special Judge has erred in convicting the appellant for the aforesaid offence. -:- 20 -:- Criminal Appeal No.1565 o”
21. On the basis of the aforesaid discussion, appeal filed by the appellant appears to be acceptable. Hence, it is hereby accepted. The conviction as well as the sentence directed by the trial Court for the offence punishable under section 20 (b) (ii) (C) of Narcotic Drugs and Psychotropic Substances Act is hereby set aside. The appellant is acquitted from the aforesaid charge. He would be entitled to get the fine amount back, if he has deposited the same before the trial Court.
22. The appellant is in custody and therefore, Registry is directed to issue a release warrant, so that the appellant may be released from the jail forthwith.
23. A copy of the judgment be sent to the trial Court along with its record for information and compliance. (N.K.GUPTA) JUDGE 6 11/2012 Pushpendra