1 HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR SB: HON. SHRI JUSTICE N.K.GUPTA. CRIMINAL APPEAL NO.2098 OF 199.State of Madhya Pradesh. Vs. Ratan Lal & another. --------------------------------------------------------------------------------------- Shri Ajay Tamrakar, Panel Lawyer for the appellant/State. Shri Ashish Tiwari, Advocate for the respondents. --------------------------------------------------------------------------------------- JUDGMENT
(Delivered on the 17th day of September, 2012) The State has preferred this appeal against the judgment dated 1.2.1997 passed in Special Case No.47/1994 by the Special Judge under Narcotic Drugs and Psychotropic Substances Act, Panna whereby the respondents were acquitted from the charges of offence punishable under Section 20(B)(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the “NDPS Act”. for the sake of brevity).
2. The prosecution's case, in short, is that, on 2.8.1994 at about 1:00 PM, Excise Sub Inspector Hari Shastri (PW-8) along with District Excise Officer B.L.Nagh (PW-7), Deputy Collector G.S.Parte (PW-6) and with some independent witnesses went to the shop of the respondent Ratan Lal, a contractor of Bhang at Pawai 2 District Panna. A search was conducted and in a room behind the shop 3.865 kg Ganja (cannabis) and 11.790 kg Bhang were found. They were duly seized by Shri Hari Shastri. The seizure memos were prepared. Six samples of 10 gram each were taken from the various packets of contraband substances. The various memos were recorded and thereafter the sealed samples were sent to the Forensic Science Laboratory with a memo Ex.P-7. Shri Hari Shastri also examined the substances on his own and found that the substance, which was 3.865 kg in weight was Ganja (cannabis). The respondents were arrested. In the report of the Forensic Science Laboratory Ex.P-11 it was found that all the six samples were of Ganja, and therefore a charge sheet was filed before the Special Judge, Panna.
3. The respondents abjured their guilt. They have stated that there was enmity between the District Excise Officer and the contractor Ratan Lal, and therefore the respondents were falsely implicated by the officers of the Excise Department. In defence, Ratan Lal himself examined as a witness.
4. The learned Special Judge Panna, after considering the evidence of the parties, acquitted the respondents from all the charges appended upon them”
5. I have heard the learned counsel for the parties.
6. Learned counsel for the State has submitted that, though Ratan Lal was a contractor of Bhang, he could not keep any Ganja with him, and therefore Ganja found from his shop was not according to his license, and hence, both the respondents were liable for the offence under the NDPS Act. The learned Special Judge has erred in acquitting the respondents. The seizure was duly signed by the District Excise Officer B.L.Nagh (PW-7) and one gazetted officer, and therefore the seizure must have been believed. Under such circumstances, it is prayed that the State appeal may be allowed and the respondents be convicted and sentenced in an appropriate manner.
7. On the other hand, the learned counsel for the respondents has submitted that the Investigation Officer did not follow the provisions of Section 50 of the NDPS Act and also violated the provisions of Sections 41 and 42 of the NDPS Act. It is not at all established that the substance seized from the respondents was transmitted to the Forensic Science Laboratory. No substance was produced before the Court at the time of examination of various witnesses. The alleged seizure took place on 2.8.1994, but in the letter Ex.P-7 it was mentioned that 4 the property seized on 3.8.1994 was sent for the analysis. Similarly, the Forensic Science Laboratory gave its report Ex.P-11 for the property which was seized on 3.8.1994. Under such circumstances, it cannot be said that the report of the Forensic Science Laboratory was for the substance which was alleged to be seized from the respondents, and therefore, the trial Court has rightly acquitted the respondents.
8. After considering the submissions made by the learned counsel for the parties, it is to be considered as to whether the appeal filed by the State can be accepted?. If yes, then what would the sentence against the respondents?.
9. The learned Special Judge considered the compliance of the provisions of Section 50 of the NDPS Act by which an opportunity was to be given to the respondents that if they desired their search could be conducted before a Magistrate or Gazetted Officer. It is true that a Gazetted Officer G.S.Parte (PW-6) was present at the time of seizure, but no memo was prepared that the respondents were given an opportunity that they could get their search before any Gazetted Officer or Magistrate. Similarly, the District Excise Officer B.L.Nag (PW-7) was also present at the spot. But looking at the evidence given by B.L. Nag and Shri Parte, it is apparent 5 they sat in the shop of the respondents. They did not go inside the house from where the contraband substance was alleged to be seized, and therefore the trial Court has rightly held that the compliance of the provisions of Section 50 was not done in an appropriate manner.
10. Though the higher officers of the Excise Department were present at the spot, it was claimed that a sanction was obtained from the Collector to arrange for such a raid, but it appears that the entire proceedings were done by the Excise Sub Inspector Hari Shastri (PW-8). He has also accepted that neither the Deputy Collector not the District Excise Officer went inside the house, however they signed upon the seizure memo Ex.P-3. It is strange that they were not present in the room from where the property was seized and they mentioned a note “before me”. and signed on the document Ex.P-3. The independent witnesses namely Daya Shankar Litoriya (PW-1) and Jashwant Singh (PW-2) have turned hostile. They did not support the prosecution story. Constable Ram Sharan Singh (PW-4) was also examined as an eye-witness though his signature was not taken on the seizure memo. However, he has admitted that he was standing in front of the house and he did not go inside the house and he had no knowledge that from which part of the house the contraband substance was 6 found. Under such circumstances, only the testimony of the Excise Sub Inspector Shri Hari Shastri (PW-8) remains to be considered.
11. The procedure adopted by Hari Shastri appears to be faulty. If he had seized the property from the house of the respondents, then he was the person who had lodged an FIR against the respondents, and therefore it was for him to give investigation to someone else. But Hari Shastri himself examined all the witnesses and recorded their case diary statements, while he was an interested party. Secondly, if any contraband substance is seized, then it should be sealed at the spot and an impression of seal is required to be mentioned on the seizure memo so that it can be ascertained that the property seized was sent for the analysis. If Ex.P-3 is perused, then it would be clear that no impression of the brass seal was affixed on the seizure memo and it is nowhere mentioned that on the document Ex.P-3 i.e. contraband substance was sealed at the spot. Under such circumstances, it cannot be said that the seized contraband substance was actually sent to the Forensic Science Laboratory. Thirdly, the seizure took place at 1:00 PM on 2.8.1994, but in the letter Ex.P-7 it was mentioned that the property of Crime No.1/94-95 registered on 3.8.1994 was dispatched to the Forensic 7 Science Laboratory. When the property was seized at 1:00 PM, no reason was shown by the prosecution as to why the crime was not registered on the same day, while the entire day was available to Hari Shastri (PW-8). No crime number was mentioned on the seizure memo thereafter, and therefore it was nowhere established that for the seizure dated 2.8.1994, crime No.1/94-95 was registered by Hari Shastri.
12. Fourthly, it is nowhere established by Hari Shastri that a portion of the house from where Ganja was seized, was in the exclusive possession of the respondents. It is established from the statements of various witnesses that in front of that room of the house, there was a shop of the respondent Ratan Lal relating to his contract of Bhang and one servant Virendra Rai was also residing in that portion. The learned Special Judge has observed that behind the shop of respondent Ratan Lal one Virendra was residing in a room and he was keeping his luggage there also. Also, there was residence of other persons in that portion. It was nowhere clear from the evidence of Hari Shastri that the contraband substance was found from the exclusive possession of the respondents. Respondent Ratan Lal had a shop, and therefore the property kept in the shop could be considered in possession of the respondent Ratan lal, 8 whereas Constable Ram Sharan Singh (PW-4) has accepted that at the time of raid, the respondent Ratan Lal was not present at the shop. He was called by the Excise Sub Inspector, and therefore Constable Ram Sharan Singh went to call him. Similarly, it was told that the respondent Rakesh was also looking after the shop of the respondent Ratan Lal. But, it is not established that the portion from where the contraband substance was found was in possession of the respondents. Hari Shastri, in para 10 of his statement, has accepted that at the time of the incident, Virendra Rai was not a servant of the respondents, but he was a separate contractor of Bhang and he was also prosecuting his shop from the same house. Under such circumstances, it was possible that the Bhang which was seized from the inner room could be of Virendra Rai and similarly the remaining contraband substance which was kept with the Bhang could be of contractor Virendra Rai. Under such circumstances, the the Special Judge has rightly observed that the exclusive possession of the respondents over the contraband substance could not be established.
13. As discussed above, it is apparent that no impression of the brass seal was shown on the seizure memo Ex.P-3, and therefore it is nowhere clear that when the seized articles were sealed by the Excise Sub 9 Inspector Hari Shastri (PW-8). Looking at his conduct that he registered a crime on the next day of the incident, it cannot be said that he sealed the same property which was seized from the spot. Similarly, a doubt is created that the property sent to the Forensic Science Laboratory was different from the property seized from the spot. Under such circumstances, the learned Special Judge has rightly observed that the report received from the Forensic Science Laboratory was not relating to the property seized from the respondents. Again, if it is also considered that the provisions of Section 50 of the NDPS Act are also violated, then the entire conduct of the Excise Sub Inspector Shri Hari Shastri (PW-8) comes in doubt.
14. Under such circumstances, the judgment passed by Hon'ble the Apex Court in the case of “Ashok alias Dangra Jaiswal Vs. State of Madhya Pradesh”., (AIR 201.SC 1335.may be perused, in which it was held that if the witnesses turned hostile, time from seizure till deposit of the property to FSL was long, it was nowhere clear that where the samples were laid or handled by how many persons, alleged narcotic substance seized from the accused was never produced before the trial Court, no evidence to connect forensic report with the seized narcotic substance, then the 10 accused shall be entitled to get the benefit of doubt. In the light of the aforesaid judgment of Hon'ble the Apex Court in the case of Ashok alias Dangra Jaiswal (supra), the situation of the present case is similar, and therefore the learned Special Judge has rightly given the benefit of doubt to the respondents.
15. On the basis of the aforesaid discussion, it would be clear that the learned Special Judge has rightly acquitted the respondents from the charges of offence punishable under Section 20(B)(1) of the Narcotic Drugs and Psychotropic Substances Act. Under such circumstances, there is no basis to allow the appeal filed by the State. Consequently, the instant appeal is dismissed and the judgment dated 1.2.1997 of the trial Court is hereby maintained.
17. The respondents are not required to remain present before this Court any more, therefore it is directed that their bail bonds shall stand discharged.
17. A copy of this judgment be sent to the trial Court with its record for information and compliance. (N.K.Gupta) Judge 17/9/2012 Ansari.