[CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE SINGLE BENCH : Hon'ble Shri Justice [ENTITY] Cr.A. No.1094/2014 [ENTITY] Vs. The [ENTITY] -x-x-x-x-x-x-x-x-x-x-x- Cr.A. No.1271/2014 [ENTITY] Vs. The [ENTITY] Cr.A. No.1344/2014 [ENTITY] Vs. The [ENTITY] Cr.A. No.1240/2014 [ENTITY] Vs. The [ENTITY] Cr.A. No.1154/2014 [ENTITY] Vs. The [ENTITY] Shri [ENTITY], learned counsel for the appellant in [CASE NUMBER]. Shri [ENTITY], learned counsel for the appellant in Cr.A. No.[SECTION]. Shri [ENTITY], learned counsel for the appellant in Cr.A. No.[SECTION]. Shri [ENTITY], learned counsel for the appellant in Cr.A. No.[SECTION]. Shri [ENTITY], learned counsel for the appellant in [CASE NUMBER]. Shri [ENTITY], learned Dy. G.A. for the respondent-State. -x-x-x-x-x-x-x-x-x-x-x- [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 2 ORDER
(Passed on 02nd day of November, 2016) Criminal Appeal No.1094/14, [SECTION], [SECTION], [SECTION] & 1154/14 preferred against judgment and order dated 30/06/2014 rendered by Special Judge (under the [ACT] - for short 'the [ACT]'), Indore, in [CASE NUMBER] have been heard analogously and are being disposed of by this common judgment. The main judgment is being passed in Cr.A. No.l094/14 ([ENTITY] vs. [ENTITY]).
02. Appellant [ENTITY] (A-1), [ENTITY] (A-2, [ENTITY] (A-3), [ENTITY] (A-4), [ENTITY] (A-5), were prosecuted alongwith [ENTITY] (acquitted) and [ENTITY] (acquitted) before the Court of Special Judge (Narcotics), Indore for various offences under 'the [ACT]'. Appellants [ENTITY] (A-1) and [ENTITY] (A-3) have been found guilty for offences under [SECTION] with [SECTION] of 'the [ACT]' and each has been sentenced to undergo 10 years RI alongwith fine of Rs.1 lac with usual default stipulation. Appellant [ENTITY] (A-2), [ENTITY] (A-4) and [ENTITY] (A-5) have been convicted under [SECTION] with [SECTION] of 'the [ACT]' and each has been sentenced to undergo 10 years R.I. alongwith a fine of Rs.1 lac, again with the usual default clause.
03. Co-accused [ENTITY] and [ENTITY], [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 3 respectively, said to be the owner of motorcycle bearing registration No.M.P.09-MQ-0860 and M.P.13-ME-0402 were charged for offences under [SECTION] & [SECTION] of 'the [ACT]', however, both have been acquitted of the said charges.
04. The prosecution story as emerged during the trial, briefly stated, is that on 5th of July, 2009 around 7 a.m. [ENTITY] (P.W.4) - the then Station House Officer, Police Station - Mhow, Distt. Indore received a secret information from the informant that 5 persons having 'CHARAS' in their possession are coming from Simrol side on two motorcycles bearing registration Nos. M.P.09-MQ- 0860 and M.P.13-ME-0402 to sell the same and can be caught alongwith 'CHARAS' on being trapped. [ENTITY] (P.W.4) recorded this information in Daily Diary (Ex.P/33). Two panch witnesses namely [ENTITY] (P.W.1) and [ENTITY] (P.W.3) were called at the police station through constable [ENTITY]. Memo (Ex.P/1) was prepared in their presence regarding secret information. Apart that, memo (Ex.P/2) was also prepared by [ENTITY] (P.W.4) recording that it is not possible to procure search warrant because in case of delay the culprits may manage to escape. A copy of both these memos alongwith communication Ex.P/30 was sent through Constable [ENTITY] to [ENTITY] which was received on the same day by his Reader [ENTITY] (P.W.2). Thereafter, [ENTITY] (P.W.4) with police force and panch witnesses [ENTITY] (P.W.1) and [ENTITY] (P.W.3) laid a trap near village Gurjerkheda. After sometime, the police party found two [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 4 motorcycles coming from Simrol side; having 3 persons on one motorcycle and 2 persons on the other. On being intercepted, the persons riding the motorcycles tried to escape, however, they were apprehended on the spot. Motorcycle bearing registration No.M.P.13-M.E.-0402 was being ridden by [ENTITY] (A-5). [ENTITY] (A-1) having a blue plastic bag in his hand and [ENTITY] (A-4) were sitting on it as pillion riders. [ENTITY] (A-2) was ridding motorcycle bearing registration No.M.P.09-MQ-0860 and [ENTITY] (A-3) was sitting as pillion rider with a blue plastic bag in his hand. [ENTITY] (P.W.4), in presence of panch witnesses [ENTITY] (P.W.1) and [ENTITY] (P.W.3), apprised each of the 5 appellants that a secret information has been received to the effect that they are having 'CHARAS' in their possession, therefore, each of them is required to be searched. [ENTITY] (P.W.4), vide Ex.P/3 to P/7 apprised them about their right to be searched either in presence of nearest gazetted officer or a Magistrate. The appellants agreed for being searched by [ENTITY] (P.W.4). The search resulted in recovery of 3 packets of 'CHARAS' lying in the blue plastic bag carried by appellant [ENTITY] each respectively, weighing 250 grams, 510 grams and 250 grams, and three packets lying in another blue plastic bag held by appellant [ENTITY] respectively, weighing [SECTION]0 grams, 510 grams & 200 grams. Two samples of 30 grams each were drawn from each of 6 packets. Thereafter, the six packets and twelve samples were separately sealed on the spot after pasting seizure slips on each of the packets bearing [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 5 signatures of the panch witnesses and investigating officer. The contraband, 2 motorcycles and other articles including mobile phones were seized, vide seizure memo Ex.P/19 to Ex.P/22 from the appellants. The appellants were arrested, vide arrest memo Ex.P/24 to Ex.P/28. Thereafter, [ENTITY] (P.W.4) came back with the police party to police station. The sealed packet of contraband were deposited in the 'MALKHANA' with Head Constable [ENTITY] (P.W.10) and entries in this regard were made in the 'MALKHANA' register (Ex.P/48). A detailed report (Ex.P/51) with regard to seizure and arrest was sent to S.D.O.P., Mhow. The six samples of the seized contraband were sent to the Regional Forensic Science Laboratory, Bhopal and deposited in the laboratory on 09/07/2009. The Chemical Examiner, vide report Ex.P/47, opined that the samples contained 'CHARAS' .
05. After usual investigation, a charge-sheet was led before the Court of Special Judge (Narcotics), Indore. The appellants alongwith co-accused [ENTITY] and [ENTITY] were charged with offence under [SECTION] with [SECTION] of 'the [ACT]' and [SECTION] & [SECTION] of 'the [ACT]', as stated hereinbefore. They abjured guilt and claimed to be tried. The appellants in their examination under [SECTION] of the [ACT], denied all the incriminating circumstances appearing against them in the evidence and pleaded false implication.
06. The learned Special Judge after trial acquitted co- [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 6 accused [ENTITY] and [ENTITY] with regard to charge under [SECTION] & [SECTION] of 'the [ACT]', however, appellants [ENTITY] (A-1) and [ENTITY] (A-
3) were convicted and sentenced for offences under [SECTION]/[SECTION] of 'the [ACT]' and remaining 3 appellants namely [ENTITY] (A-2), [ENTITY] (A-
3) and [ENTITY] (A-5) were convicted and sentenced for offences under [SECTION] with [SECTION] of 'the [ACT]'.
07. [ENTITY] (A-1), [ENTITY] (A-2), [ENTITY] (A-3), [ENTITY] (A-4) and [ENTITY] (A-5) in separate appeals have challenged their conviction and sentence on the ground that they are innocents and have been falsely implicated in this case. It is submitted on behalf of appellant [ENTITY] (A-1) and [ENTITY] (A-3) that provisions of [SECTION] of 'the [ACT]' were not complied with in letter and spirit. It is contended on behalf of appellants [ENTITY] (A-2), [ENTITY] (A-4) and [ENTITY] (A-5) that no contraband was recovered from them and that in absence of specific evidence with regard to conscious possession, the learned trial Court has seriously erred in holding that they were in possession of the contraband. It has further been contended that independent panch witnesses [ENTITY] (P.W.1) and [ENTITY] (P.W.3) have not supported the prosecution story and that the learned trial Court in absence of corroboration from the independent source has seriously erred in relying upon the testimony of [ENTITY] (P.W.4), [ENTITY] (P.W.5) and [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 7 other police officers, which suffers from serious contradictions, omissions and anomalies particularly, on the point as to whether seizure slip was prepared and pasted or put inside the packet of each of the 18 packets said to have been prepared by [ENTITY] (P.W.4) on the spot. It is further contended that each of the packets of alleged contraband was found stitched by sewing machine, though no sewing machine was available on the spot, therefore, the testimony of police officials that the samples and remaining contraband were stitched on the spot stands belied.
08. Per contra, learned counsel for the State has submitted that in the instant case recovery of contraband 'CHARAS' was made from the polythene bags held by appellants [ENTITY] (A-1) and [ENTITY] (A-3), therefore, in the light of law laid down by the apex Court in [PRECEDENT], [SECTION] was not applicable in the case, though, the provisions of [SECTION] of 'the [ACT]' were scrupulously complied with. It is further contended that, of-course, there is some anomaly with regard to pasting seizure slip or putting the same inside the packet, however, the learned trial Court has dealt with this aspect in para-21 to 28 of the impugned judgment and has found that the same does not adversely affect the prosecution case. Lastly, it is submitted that all the pouches of clothes were pre-stitched by sewing machine, therefore, the anomaly in that behalf is not of serious nature. Learned counsel for the State has submitted that the conviction and sentence recorded by the trial Court is well [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 8 merited and, therefore, does not call for any interference, hence the appeals are liable to be dismissed.
09. Heard the learned counsel for the parties and perused the record.
10. Though, it is contended on behalf of the defence that in absence of corroboration from independent witnesses [ENTITY] (P.W.1) and [ENTITY] (P.W.3), the testimony of [ENTITY] (P.W.4) and other police witnesses cannot be relied upon, however, this plea cannot be accepted because [ENTITY] (P.W.1) and [ENTITY] (P.W.3) have been declared hostile by the prosecution and have further been confronted with their police statements Ex.P/[SECTION] & P/32, respectively, and, therefore, not worthy of reliance because despite admitting their signatures on Ex.P/1 to Ex.P/28, these two witnesses have not explained as to how and in what manner they had put their signatures on these papers; which goes to indicate that they are not interested in revealing the whole truth. Otherwise also, the law is settled that the testimony of police officials, if otherwise trustworthy and reliable, cannot be thrown overboard on the ground that it is not supported by independent source. In the matter of [PRECEDENT], the Apex Court has held that "there is no rule of law that the evidence of police officials has to be discarded unless it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 9 disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness". In the matter of [PRECEDENT], a case under the [ACT], the apex Court approving the conviction has held as under:
"Indeed all the 5 prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their credit worthiness."
placed reliance on the uncorroborated testimony of the Police Inspector in the case of possession of drug of small quantity."
11. As regards compliance of [SECTION] of 'the [ACT]', the prosecution case is that at the time of trap, appellant [ENTITY] (A-1) was sitting as a pillion rider on the motorcycle driven by [ENTITY] (A-5) holding a blue plastic bag in his hand in which 3 polythene packets of 'CHARAS' were found. Further, as per prosecution [ENTITY] (A-3), who was sitting as a pillion rider on the motorcycle driven by [ENTITY] (A-2), was also found in possession of a blue plastic bag in which 3 polythene packets of 'CHARAS' were lying.
12. As regards compliance of [SECTION] of 'the NDPS [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 10 Act' in [PRECEDENT], the apex Court has summed up the legal position as under:
A bare reading of [SECTION] shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag, or premises. (See Kalema Tumba v. State of Maharashtra and Anr. (JT 1999 (8) SC [SECTION]3), the State of Punjab vs. [ENTITY] (JT 1999 (4) SC
595), [PRECEDENT]. The language of [SECTION] is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicles or articles. This position was settled beyond doubt by the Constitution Bench in [ENTITY]'s case (supra). Above being the position, the contention regarding non-compliance of [SECTION] of the Act is also without any substance."
13. Considering that alleged contraband was recovered from 2 polythene bags respectively, held by [ENTITY] and [ENTITY] and not in their personal search, it can well be said that [SECTION] of 'the [ACT]' was squarely not applicable in the present case. It is further noticeable that, as deposed by Shri [ENTITY] (P.W.4), information in writing, vide Ex.P/3 to Ex.P/7 was given to each of the appellants apprising them of their right to be searched before the nearest gazetted officer or Magistrate. On this point the testimony of [ENTITY] (P.W.4), which is supported with contemporaneous documents (Ex.P/3 to Ex.P/7), has remained unscratched during cross-examination, therefore, the same deserves to be accepted and, hence, the finding recorded by the learned trial Court that though [SECTION], [SECTION], [SECTION], [SECTION] & [SECTION] of 'the [ACT]' was as such not applicable in the facts and circumstances of the case, however, compliance thereof is duly found proved.
14. In the aforesaid premises, it has to be seen whether the testimony of [ENTITY] (P.W.4) and other police witnesses is inspiring and can be relied upon?
15. The learned counsel for the appellants have contended before this Court that there is serious anomaly in the testimony of [ENTITY] (P.W.4) with regard to putting seizure slip in the packets of contraband. Attention of this Court has been drawn to para-10 & para 21-28 of the testimony of [ENTITY] (P.W.4). In para-10, this witness has stated that all the samples including 6 packets of the remaining contraband were sealed on the spot and a seizure slip was pasted on each of the packets in the presence of panch witnesses, however during cross-examination, in para 21-28, this witness has admitted that none of the packets contained seizure slip either on its exterior or inside the packet. This witness has further stated that all the packets were sealed after stitching them from sewing machine, though no sewing machine was available on the spot. These two aspects taken together indicate firstly, that the statement of [ENTITY] (P.W.4) that he prepared seizure slip and had put the same on each of the packets is not truthful because no such slip was not found when the packets were opened before the trial during examination of this witness. Apart this, it is not clear as to how in absence of a sewing machine on the spot, each of the packets could be stitched by sewing machine [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 12 on the spot. This raises a serious doubt to the effect that the packets of the alleged contraband were dealt with and sealed at a subsequent stage and not on the spot. The absence of any seizure slip on any any of the packets further raises a serious doubt about lack of integrity in the process of packaging, sampling and sealing of the contraband and the samples drawn therefrom.
16. Dealing with the aspect in para 26 of the impugned judgment, the learned trial Court has observed that in various memorandums prepared on the spot, there is no mention of seizure slip being prepared and pasted or put inside the packets which shows that no seizure slip was prepared on the spot and pasted on the packet, hence much importance can not be given to absence of seizure slip in the packets which is a procedural error. This observation of the learned trial Court is against the evidence available on record. In Ex.P/17 - the memorandum of drawing samples and sealing the packets it is specifically stated that seizure slip was pasted on each of the packets after putting seal over them. Apart this, Ex.P/31 - a report said to have been sent to SDOP under [SECTION] of 'the [ACT]', it has further been recorded that packets of sample and remaining contraband were seized on the spot and seizure slip was pasted on each of the packet. [ENTITY] (P.W.5) has also stated in para - 6 of his testimony that after sealing each of the samples seizure slip was put on each packet. In view of the aforesaid, the observation made by the learned trial Court that no seizure slip was prepared and pasted on the packets is against the evidence on record. [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 13
17. The absence of the seizure slip on the packets which were placed before the Court at the time of examination of [ENTITY] (P.W.4) raises a serious doubt that the seized articles were handled with by the police at the subsequent stage, therefore, it becomes seriously doubtful that the contraband, allegedly, recovered from appellant [ENTITY] and [ENTITY], was in fact sent to Forensic Science Laboratory. Indeed, there is no trustworthy and reliable material to establish that the samples which were sent to the Forensic Science Laboratory were actually the same which were drawn from the contraband said to have been recovered from appellant [ENTITY] and [ENTITY]. Thus, it cannot be said that [SECTION] and [SECTION] of 'the [ACT]' were complied with in letter and spirit.
18. Further, there is serious anomaly in the testimony of [ENTITY] (P.W.4) as to how the packets of the contraband as well as the packets of the samples drawn from the contraband were sealed on the spot with mechanical sewing machine, though the same was not available. It further goes to indicate that the packets were subsequently handled in absence of the panch witnesses as well as the appellants. This creates serious doubt regarding the integrity and reliability of the entire process of seizure, sampling and sealing of the contraband.
19. Considering the aforesaid, the charge for offences under [SECTION] of 'the [ACT]' framed against appellants [ENTITY] (A-1) and [ENTITY] (A-3) and charge for offence under [SECTION] [CASE NUMBER], [SECTION], [SECTION], [SECTION] & 1154/14 14 of 'the [ACT]' framed against remaining three appellants, namely - [ENTITY] (A-2), [ENTITY] (A-4) and [ENTITY] (A-5) cannot be said to have been proved beyond reasonable doubt, therefore, the conviction and sentence recorded against each of the appellants by the learned trial Court is not sustainable.
20. Resultantly, all the five appeals are hereby allowed. The conviction and sentence recorded by the learned trial Court, vide the impugned judgment against each of the appellants is hereby set aside. The appellants are on bail. Their bail bonds and personal bonds are hereby discharged.
Original order be retained in [CASE NUMBER] and a copy of the same be placed in the connected aforementioned cases. A copy of this judgment be sent to the concerned trial Court for compliance.
([ENTITY]) Judge soumya