Sheikhlal Vs. State of Madhya Pradesh - Court Judgment

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narcotics - benefir of doubt - circumstantial evidence - sections 8 and 20(b)(ii)(b) of the ndps act, 1985 - petitioner tried under section 8 read with section 20(b)(ii)(b) of act and convicted by trial court - hence, present petition - held, as per law, articles seized under act must be kept in proper custody and timely send for chemical examination - however, in present case, there was long time gap between seizure of goods and their chemical examination - due to lack of evidences, court has dobut that same samples were sent for examination - important links were missing in prosecution's case - chain of circumstantial evidence not completed - petitioner entitled to get benefit of doubt - accordingly, petition allowed and conviction set aside - indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - he further said that in which manner the seized substance was handled by the investigating officer from the place of seizure upto the police station and where it was kept in safe custody till sending the samples to the fsl, sagar and submitting the charge-sheet before the court, the same has not been proved by examining the malkhana incharge or by producing the register of such malkhana. the same are also signed by them as well as by the appellant and himself. it is settled position that even on turning the independent witnesses hostile, the appellant could be convicted for having possession of contraband substance mere on the testimony of investigating officer, if the same appears to be reliable. in whose safe custody the substance and samples were kept till sending to the fsl. accordingly the prosecution has failed to prove that the seized substance was kept in the safe custody from where the samples were sent to fsl, sagar for chemical examination. where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question -a fact which had to be proved affirmatively by the prosecution. we are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officer is highly discrepant and unconvincing and does not throw much light. in the matter of ndps very harsh and stringent punishment has been provided, hence in the lack of the evidence for keeping the substance in the safe custody, it could not be assumed that the same samples were sent to the fsl, sagar for which the report was received. 12. therefore, by allowing this appeal the judgment as well as conviction and sentence of the appellant is hereby set aside and quashed.u.c. maheshwari, j.1. this appeal is directed being aggrieved by the judgment dated 31-1-07 passed by the special judge, mandla (constituted under the ndps act, in short 'the act') in special case no. 18/06 convicting and sentencing the appellant under section 8 read with section 20(b)(ii)(b) of the ndps act, 1985, for three years' ri with fine of rs. 2000. in default of it, further nine months' ri has been awarded.2. according to the case of the prosecution on dated 5-9-06 madan shrivastava, asi police posted at police out post anjaniya p.s. bamhani received an information from the approver that the appellant having possession of 'ganja' is going to sell the same towards the magada culverts. after recording such information in the rojanamchasanha he called the independent witnesses and their presence prepared the panchanama of such information and also recorded the reasons for not obtaining the search warrant as there was possibility to escape the appellant with the substance. subsequent to it under intimation to the additional s.p. mandla he accompanied with the police staff and independent witnesses alongwith all requisites left the police station for the respective place where he apprehended the appellant with a bag whom he apprised with the aforesaid information and also intimated regarding his right to search in presence of the gazetted officer or through him. in response of it on giving the consent of his search through the said police officer, after giving the search of police staff, the search of the appellant was carried out in which the alleged substance ganja was recovered from his bag. the same was verified as ganja by putting on fire with its smell. after verification the weighing instrument on weighting the same, it was found 1.600 kg in weight, out of which two samples of 50 gram each for chemical examination were taken out. the samples and the remaining substance were sealed and seized. after supplying reasons the appellant was arrested. in order to carry out the aforesaid investigation different panchanamas were prepared on the spot. the same were signed by the appellant, independent witnesses and also by the said police officer. subsequent to it, the alleged substance with samples and the appellant were brought to said police out post. after recording their arrival in the rojnamcha the fir was lodged and sent to the police station, bamhani where the offence was registered on crime no. 213/06. the intimation regarding seizure of substance and arrest of the appellant was sent to the additional superintendent of police, mandla. the samples were sent to fsl, sagar from where the report was received according to which the alleged substance was revealed as ganja. on completion of the investigation, the appellant was charge sheeted for the offence punishable under section 8/20 of the act. the special court framed the charges under section 8 read with section 20(b)(ii)(b) of the act. the appellant abjured the guilt on which the trial was held. after recording the evidence, on appreciation of it, the appellant was held guilty for the aforesaid charge and punished with aforementioned punishment. the same is under challenged in this appeal.3. shri sanjay saini, learned counsel for the appellant assailed the impugned judgment on the ground that the story put forth by the prosecution has not been supported by any independent source of evidence. the provision of sections 42,50, 55 and 57 of the act has not been duly complied with by the investigating agency. the seizure panchanama and other papers have not been prepared in accordance with law. seizure memo which was prepared before registration of the offence is also having crime number. it shows the falsity of case and also false implication of the appellant. it was also argued that the report of the fsl, sagar has not been proved by any prosecution witnesses. he further said that in which manner the seized substance was handled by the investigating officer from the place of seizure upto the police station and where it was kept in safe custody till sending the samples to the fsl, sagar and submitting the charge-sheet before the court, the same has not been proved by examining the malkhana incharge or by producing the register of such malkhana. thus, possibility of changing the substance could not be ruled out. with these submissions he prayed for acquittal of the appellant by allowing his appeal.4. on other hand by responding the aforesaid arguments smt. shushila paliwal, learned government advocate justified the impugned judgment and said that the same is based on proper appreciation of evidence and is in conformity with law. it does not require any interference at this stage and prayed for dismissal of this appeal.5. having heard the learned counsels after perusing the record and the impugned judgment, in view of the lacuna left by the prosecution in respect of custody of the seized substance the appellant deserves for acquittal from the alleged offence.6. madan shrivastava (p.w. 9), the investigating cum seizing officer, on recording his depositions categorically stated that on the aforesaid date at about 11.05 a.m. he received an information from the approver that appellant by carrying the ganja with him is going to sell the same. he recorded such intimation in the rojnamcha (exh. p-23) and also prepared it's panchanama (exh. p-l) in presence of the witnesses also prepared the panchanama (exh. p-2) recording reasons for not obtaining the search warrant as there was possibility to escape the appellant with the alleged substance. subsequent to it under intimation, exhs. p-21, p-22 to additional s.p., mandla and marking their departure in the rojanamchasanha (exh. p-26), he accompanied with the staff and independent witnesses went to such place where he apprehended the appellant alongwith a bag and after apprising him with the aforesaid information also intimated regarding his right to search, exh. p-27 in presence of gazetted officer or through him. on giving the consent of his search through him after giving the search of the staff and witnesses by panchanama, exh. p-4, the search of the appellant by panchanama exh. p-5 was carried out. in such search the aforesaid substance ganja was found in his bag. the same was verified the ganja by putting on fire with it's smell. the panchanama, exh. p-6 was prepared in this regard. after verification of the weighing scale, exh. p-7 on weighting the same, it was found 1.600 kg in weight, exh. p-8. after making it homogeneous by panchanama, exh. p-9 two samples of 50 grams each were taken out. the samples and the remaining substance were sealed and seized by preparing panchanama, exh. p-10. the panchanama regarding impression of the seal, exh. p-11 was also prepared. after supplying the reasons for arrest by exh. p-12, the appellant was arrested by preparing exh. p-13. all these panchanamas were prepared in presence of independent witnesses namely madhusudhan and girish jha. the same are also signed by them as well as by the appellant and himself. he also proved the fir, exh. p-l6 lodged at police out post, amaniya on which the offence was registered at p.s. bamhani, exh. p-17. he also proved such registration of crime. he further proved exh. p-18, the receipt of fsl, sagar by which the substance was deposited in such laboratory. he proved different rojnamcha entries regarding investigation of the case. the intimation sent to addl. s.p., mandla regarding seizure and arrest of the appellant, exh. p-30 and exh. p-31 has also been proved by this witness.7. the testimony of said witnesses is further supported by other police official who accompanied with him during such raid and search namely pushu lal pancheshwar (p.w. 3), mohan lal (p.w. 4), baldeo (p.w. 5), moolchand shrivas (p.w.10) but the independent witnesses of the aforesaid panchanamas namely madhusudhan patel (p.w. 1) and girish (p.w. 2) turned hostile at trial and did not state anything against the appellant. it is settled position that even on turning the independent witnesses hostile, the appellant could be convicted for having possession of contraband substance mere on the testimony of investigating officer, if the same appears to be reliable. in view of the aforesaid evidence it has been proved on record that the appellant was apprehended by the police and some substance was seized from his possession, i have not found any evidence on record showing that which manner the alleged substance was handled by the said police officer or investigating agency from the place of the seizure upto the police station and also till sending the samples to the fsl, sagar for its chemical examination. in whose safe custody the substance and samples were kept till sending to the fsl. the same has not been proved by producing the malkhana register or by examining the malkhana incharge. even the concerned rojnamcha entries are neither produced nor proved on record. accordingly the prosecution has failed to prove that the seized substance was kept in the safe custody from where the samples were sent to fsl, sagar for chemical examination. besides this the entire substance has not been marked as an article on record. under such circumstances it is apparent that the provision of section 55 of the act has not been complied with by the investigation agency, and in pursuance of it possibility of changing the substance during the aforesaid period could not be ruled out.8. long back the aforesaid question was answered by the apex court in the matter of the state of rajasthan v. daulat ram reported in : 1980crilj929 , in which it was held as under:where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question -- a fact which had to be proved affirmatively by the prosecution. consequently, the accused could not be convicted under section 9a1. in such a case the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage.9. besides above this court has also considered such question in the matter of anand bairagi v. state of madhya pradesh reported in 2004(1) m.p.h.t. 351, in which it was held as under:the supreme court in case of valsala v. state of kerala 1993 sol case no. 252 pronounced that there should be sufficient proof that the articles seized have been kept in proper custody and proper form so that the court can be sure that what was seized only was sent to chemical examination. the supreme court further held that when there is a big gap and an important missing link, the accused should be entitled to benefit of doubt. the observations of the supreme court made in the case equally applies to the case on hand. the supreme court pronounced:.we are constrained to say that the investigation in this case has been perfunctory and on important aspects the evidence of the concerned officer is highly discrepant and unconvincing and does not throw much light. therefore, the evidence adduced is wholly insufficient to conclude that what was seized from the appellant alone was sent to the chemical examiner. though this is purely a question of fact but that is an important link.... no doubt the trafficking in narcotic drugs is a menace to the society but in the absence of satisfactory proof, the courts cannot convict.(emphasis by the court)10. the aforesaid reported cases are directly applicable to the case at hand. in the matter of ndps very harsh and stringent punishment has been provided, hence in the lack of the evidence for keeping the substance in the safe custody, it could not be assumed that the same samples were sent to the fsl, sagar for which the report was received. on account of such suspicious circumstances, the appellant is entitled to extend the benefit of doubt.11. under the aforesaid premises, it is held that the trial court has committed grave error and infirmity in holding guilty to the appellant for the alleged offence.12. therefore, by allowing this appeal the judgment as well as conviction and sentence of the appellant is hereby set aside and quashed. the appellant is acquitted from the alleged charge of section 8 read with section 20(b)(ii)(b) of the ndps act, 1985. the amount of fine, if deposited, be refunded to the appellant. the appellant be set at liberty forthwith if his presence is not required in any other case.13. the appeal is allowed.