HIGH COURT OF MADHYA PRADESH, PRINCIPAL BENCH AT JABALPUR CRIMINAL APPEAL NO.746/2007. Vinod Dwivedi Versus. State of Madhya Pradesh For appellant : Shri Subodh Goutam, Advocate. For respondent : Shri B.P. Pandey, Dy.Govt. Adv. J U D G M E N T
(21.05.2010) Per U. C. Maheshwari J.
1. This appeal is directed by the appellant/accused being aggrieved by the judgment dated 7.3.2007 passed by Special Judge (constitute under the N.D.P.S. Act) Satna in special case no.18/06 convicting and sentencing the appellant for the offence under Section 20 (b) (ii) (B) of the N.D.P.S Act 1989 (In short the 'Act') for RI 6 years with fine of Rs.30,000/- in default of depositing the fine, further 6 months rigorous imprisonment.
2. Facts giving rise to this appeal in short are that on dated 26.4.06 Shri U.K. Tripathi, ASI, Police posed at P.S. Amdara received credible information from the informer that one Vinod Dwivedi, appellant, R/o village Paraswara, is having the possession of illegal contraband substance the Ganja in his house. After recording such information in the Rojnamchasana he prepared a Panchanama in this regard and also informed the SDO (P), Maihar and sent him an intimation in writing. He did not have sufficient time to get the search warrant as there was possibility to remove the substance from such premises on spending time in taking the search warrant, hence in the presence of witnesses after recording reasons for not obtaining the search warrant, the Panchanama was prepared by him.
3. Thereafter by making entry of their departure in the Rojnamchasana he accompanied with Police Officials and independent witnesses rushed to the house of the appellant. On reaching to such house the appellant was found there. In presence of the witnesses, the appellant was informed with respect of the abovementioned information that he is having the possession of Ganja in his house. Also informed the appellant about his right to search in presence of gazetted officer or the Magistrate, on which the appellant opted to carry out the search of his house from the said Police Officials. On such consent, after giving search of the Police Officials and the witnesses to the appellant, the search of his house was carried out in which near Latrin and bathroom two bags of some substance were recovered. On examination, the same was revealed to be Ganja. After making the homogeneous to such substance on weighing the same, it was found 10kg and 4.500 kg respectively in such bags. Out of such quantify two samples of 25 g. each to get examined from the forensic laboratory were taken out. The samples as well as remaining substance were sealed in accordance with the prescribed procedure. The abovementioned substance were seized and the appellant was arrested. With respect of aforesaid proceeding in presence of the witnesses different Panchanamas were prepared. The spot map was also prepared. Thereafter the appellant and the alleged substance were brought to Police Station. After making entry of their arrival in the Rojnamchasana the seized substance was kept in the safe custody of Malkhana of such Police Station. The FIR regarding abovementioned offence was registered against the appellant. In further investigation, the Khasrapanchshala and revenue map of the disputed place were obtained from the Patwari. The interrogatory statements of the witnesses were recorded, meanwhile abovementioned samples of the alleged substance were sent to FSL, Sagar where on examination, the same was found contraband substance, Ganja. After receiving such report on completion of the investigation the appellant was charge sheeted for the abovementioned offence.
4. On framing the aforesaid charge against the appellant he adjured his guilt and denied the charges, on which the trial was held. After recording the evidence, on appreciation of the same, after holding the appellant guilty for the alleged charge he was punished by the trial court with the sentence, as mentioned above. The same is under challenge in this appeal.
5. Shri Subodh Goutam, learned appearing counsel for the appellant after taking me through evidence led by the prosecution as well as by the defence said that the conviction and sentence of the appellant being apparently contrary to such record is not sustainable under the law. In continuation, he said that at the time of seizure, the alleged house was neither in exclusive possession of the appellant nor he was present there. In such premises, it could not be said that the appellant was found in possession of such contraband substance. He also argued that unless his exclusive possession over the seized contraband substance is proved by the prosecution, he could not be convicted for the alleged offence. In further arguments, he said that the entire proceeding regarding seizure and sealing of the substance have not been proved by the independent witnesses of such papers, hence mere on deposition of Seizing Officer, the same could not be relied on to hold the conviction against the appellant. In continuation he said that independent witnesses of such Panchanamas and other papers turned hostile at trial and did not state any incriminating thing against the appellant. It was also argued that on account of some political enmity of the village under the influence of the opposite leadership, he has been falsely implicated in the matter. Apart this it was also argued that inter se inconsistency of the deposition of examined prosecution witnesses was not considered with proper approach. On proper consideration the same makes the prosecution story fully suspicious. According to him technical provisions of Section 42, 50, 52, 55 and 57 of the Act have also not been complied with in accordance with their spirit while holding the investigation by the investigating agency. With these arguments, he prayed for acquittal of the appellant by setting aside the impugned judgment of conviction by allowing the appeal.
6. On the other hand, Shri B.P. Pandey, learned Dy. Govt. Advocate by justifying the impugned conviction and sentence of the appellant said that the same are based on proper appreciation of the evidence and also is in inconformity with law. It does not require any interference at this stage and prayed for dismissal of this appeal.
7. Having heard the parties, I have carefully gone through the record and also perused the impugned judgment.
8. The Seizing Officer of the abovementioned substance Shri Umakant Tripathi, (PW-10) while recording his deposition categorically stated that on the above mentioned date of the incident at about 11.45 he received the information from the informer about having the possession of contraband substance, Ganja for sale by the appellant in his house at village Paraswada. Immediately in presence of the witnesses, in this regard he prepared the Panchanama, (Ex. P-17) of such information. He also informed regarding this information to SDO (P), Maihar by (Ex. P-20). The same was endorsed in the Rojnamchasana, (Ex. P-19). In further deposition he stated that he also informed through telephonic message to the said SDO (P), Maihar for which also the entry was made in Rojnamchasana. After taking the guidance form the said senior Police Officer and endorsing their departure in the Rojnamchasana, no. 590, (Ex. P-21), he accompanied with the Police Staff went to the house of the appellant. On reaching to such house, he found the appellant there on which he firstly informed him about the abovementioned information of the Informer for which he prepared panchanama, (Ex. P-1). The same was also signed by the appellant. As he did not have time to obtain the search warrant, therefore, after recording the reasons for not obtaining the same, he prepared Panchanama, (Ex. P-18). Thereafter he informed the appellant about his right to search in presence of the other officials, on which he opted the search of his house from him for which Panchanama, (Ex. P-2) was prepared, in presence of the witnesses. The same was also signed by the appellant. Before starting the search of the house of the appellant, he alongwith other Police Officials and witnesses gave their search to the appellant for which Panchanama, (Ex. P-3) was prepared. After giving such search by the Police Official and the witnesses the search of the appellant's house was carried out in which inside the house near Latrin and Bathroom two bags having suspicious substance like Ganja were recovered, for which search Panchanama, (Ex. P-4) was prepared. On carrying out the identification of the substance, the same was revealed to be Ganja, for which different Panchanamas, (Ex. P-5) was prepared. Thereafter such substance was made homogeneous by preparing Panchanama, (Ex. P-6). On weighing such substance by Shri Ravendra Singh, (PW-7), the same was found to be 10kg and 4.500kg in weight respectively in such bags out of which two samples of 25 g. each marked as A-1 and A-2 were taken out and such samples and the remaining substance were sealed. For which besides the aforesaid Panchanama, (Ex. P-7), the seizure memo, (Ex. P-8) regarding seizure of the substance and the samples was also prepared. A copy of this seizure memo was supplied to the appellant. In further deposition statements he stated that spot map, (Ex. P-9) of the house was also prepared and the appellant was arrested by preparing arrest memo, (Ex. P-10). According to his statements he prepared all the papers relating to the search and the seizure of the substance in presence of the independent witnesses on the spot. Subsequent to arrest, the appellant and the alleged substance was brought to the Police Station. After making the entry of their arrival in Rojnamcha Sanha, he handed over the aforesaid seized and sealed substance to the Incharge Malkhana of Police Station, for which he proved the Malkhana Register, (Ex.P-25). Thereafter he registered the FIR, (Ex.P-23) with respect of the alleged offence against the appellant. He also stated that by making the entry in Rojnamchasana, (Ex. P-25) alongwith the letter of the Superintendent of Police, (Ex. P-26) he sent the aforesaid samples to get examined from the forensic laboratory, Sagar from where he received the report, (Ex. P-27), according to which the alleged substance was found to be the Ganja. In his statements he also proved all the concerning Rojnamchasana and his signatures made on the abovementioned papers of seizure. In view of the testimony of this witness, it appears that the technical provisions enumerated under Section 42, 50, 52, 55 and 57 of the Act had been duly complied with by him while holding the raid and carrying out the seizure proceeding. On going through his cross examination, I have not found any circumstance or material destroying the version stated by this witness in his chief.
9. The deposition of said Seizure Officer is further supported by the accompanied Police Officials namely Bhaiyalal, Head Constable, (PW-9), Brijlal Singh, Head Constable, (PW-8). Ravindra Singh, (PW-7), the witness of the weighing of substance in his deposition has categorically stated that he was called by the Police with Weighing Scale alongwith its measurement. On such call, he went and carried out the weighing process of alleged Ganja at the roadside of the alleged village. According to his statement on weighing the same, it was found 14.500 kg. He also proved the Panchanama, (Ex. P-7) in this regard. It is made clear that he did not turn hostile in any manner.
10. True it is that the independent witnesses of the abovementioned search and seizure Panchanamas (Ex.P-1 to Ex.P-10), namely Indrapal Patel, (PW-6) and Vishnu Prasad, (PW-1), on recording their depositions turned hostile and on factual side did not support to the prosecution. But however, both these witnesses have categorically admitted their signatures on all the abovementioned exhibited Panchanamas and papers. Nowadays it is a common thing that witnesses relating to the drugs matter either under the fear of the appellant or on account of some other temptation normally do not support to the case of the prosecution and turned hostile. But whenever and wherever the witnesses who sings the Panchanam and other papers prepared by the Police Officials and from such witnesses or the accused such Police Officials cum Seizing Officer did not have any enmity or any motive to involve the appellant falsely in the case, then in such circumstances, if the signatures on the Panchanamas and other papers are admitted by the witnesses, then the testimony of the Seizing cum Investigating officer could not be disbelieved if the same appears to be trustworthy and reliable in view of the other available circumstances of the case. In other words mere on turning hostile the independent witnesses of the Panchanama and the papers the Seizing Officers or the Police Official witnesses could not be disbelieved for extending the acquittal to the accused. In the case at hand when the signatures on the Panchanamas have been admitted by the Panch witnesses and no specific admissible reasons for false implication of the appellant has been proved on record, then mere turning the independent witnesses hostile can not be termed to throw away the case of the prosecution. Taking into consideration such identical circumstance such question was answered by the Apex Court in the matter of P.P.Fathima Vs. State of Kerela- 2003 (8) SCC 726 in which it was observed as under :-
" 7. The learned counsel then contended that in view of the fact that the Panch witness to the seizure has not supported the prosecution case, the seizure cannot be accepted. We have repeatedly, held that the mere fact that a Panch witness does not support the prosecution case be 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 instant case also we are satisfied that from the evidence of PWs 1 and 2 the seizure has been proved by the prosecution. Therefore, this arguments also fails."
11.So far the other question raised by the appellant's counsel, that the appellant was not found in exclusive possession of the alleged house from which the alleged substance Ganja was recovered, is concerned, the prosecution has proved the possession of the appellant Vinod Kumar over the disputed house by producing and proving the true copy of khasra Panchashala, (Ex. P-14) regarding the land bearing survey no. 63/1. According to its column no. 12 the house is also shown on such land. In such khasra, (Ex. P-14), the name of Arun Kumar and appellant Vinod Kumar are stated as Bhoomiswami and at the time of raid and search Vinod Kumar was found in exclusive and conscious possession of such house and on carrying out the search in his presence the alleged substance was recovered from the same. Therefore, it could not be said that the appellant was not in exclusive possession of such house. Therefore, it is held that at the time of seizure the alleged Ganja from the house the same was in exclusive possession of the appellant. Consequently the arguments of the appellant's counsel in this regard fails.
12.So far the plea of appellant's counsel regarding false implication of the appellant on account of some political enmity is concerned, after going through all the depositions of defence witnesses and the papers exhibited by them from Ex. D-1 to D-9, I have not found the circumstances showing any political rivalry of the nature on which it could be said that under the influence of any political leader of the village, the abovementioned Police Officials had falsely implicated the appellant in the case. On the contrary, it appears from the deposition of the independent witnesses namely Vishnu Prasad, (PW-1), Pratap Narayan, (PW-2), Badri, (PW-3) and Indrapal, (PW-6) that they instead to state the incriminating things against the appellant had tried their level best to support the appellant in the matter either by turning hostile or by not stating the story, as stated by them in the interrogatory statements. In such premises, it would not be deemed that at the instance of Indrapal, Badri or any other aforesaid witnesses or under their political influence the aforesaid Police Officer had falsely implicated the appellant in the present matter. I have not seen any evidence on record showing that abovementioned Police Officials were remained under the influence of any of the above mentioned witnesses at any point of time. In such premises, also arguments about false implication on account of political enmity does not have any water, hence the same is hereby failed.
13.One argument was also raised that the appellant is not the resident of alleged village but in view of aforesaid khasra, (Ex. P-14) and also in the light of the overwhelming available evidence against the appellant in this regard such argument has not appealed me, hence the same is hereby failed.
14.I would like to mention here that except the arguments as mentioned in para 5 of this judgment, no other argument or the question was raised before me.
15.In the aforesaid premises, I am of the considered view that the trial court has not committed any error, perversity, infirmity or any illegality in holding guilty to the appellant for the abovementioned offence and also in imposing the alleged sentence on him. Therefore, this appeal being devoid of any merits deserves to be dismissed, hence by affirming the judgment as well as conviction and sentence of the appellant, the same is hereby dismissed.
16.The appeal is dismissed as indicated above.
(U.C.MAHESHWARI) JUDGE bks HIGH COURT OF MADHYA PRADESH, PRINCIPAL BENCH AT JABALPUR Vinod Dwivedi Versus.
State of Madhya Pradesh JUDGMENT Post for 21/05/2010 (U.C.MAHESHWARI) JUDGE 19.05.2010.