HIGH COURT OF JUDICATURE MADHYA PRADESH, JABAPLUR S.B.: HON. SHRI S.C.SINHO, J. Criminal Appeal No.2604/1998 Munnilal VERSES State of Madhya Pradesh -------------------------------------------------------------------------------------------------- Shri Alok Bagrecha, Advocate for the appellant. Shri Akshay Namdeo, G.A. for the respondent/State. -------------------------------------------------------------------------------------------------- J U D G M E N T 23/11/2011 1. The appellant has filed this criminal appeal under Section 374(2) of Cr.P.C. being aggrieved by the judgment dated 10.10.1998 passed by First Additional Sessions Judge, Katni in Special Case No.6/96, whereby the appellant has been convicted under Section 20(b)(i) of the N.D.P.S. Act and sentenced to R.I. for 1 year with fine of Rs.2000/-, in default additional R.I. for 6 months. 2. B.S. Rana (PW-4) Sub Inspector, Police Station, Katni on 25.10.1996 received the information from Mukhbir that appellant Munnilal Kewat has kept ganja in his house. According the information was recorded. Taking the staff and witnesses he visited the appellant's house and gave him a notice Ex.P-6. The appellant was apprised of the information in relation to alleged possession of ganja and proposed search. Appellant gave his written consent Ex.P-2 to the proposed search by the sub inspector. During search of the house below the cot 500 grams of ganja wrapped in a plastic packet was found and as per seizure memo Ex.P-4 the contraband was seized. As per F.S.L. report Ex.P-14 the seized contraband was found to be ganja. 3. The appellant abjured the guilt and submitted that he has been falsely implicated. 4. Learned counsel for the appellant has taken the first legal object that the seized contraband was not produced before the trial Court and place reliance on the decision of Apex Court reported in (2011) 5 SCC 123 Ashok alias Dangra Jaiswal vs. State of Madhya Pradesh wherein it has been specifically held in para 13 and 14 as under:- "In our view, the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where he offence is punishable with a stringent sentence as under the NDPS Act. In this case, we notice that panchas have turned hostile so the panchnama is nothing but a document written by the police officer concerned. The suggestion made by the defence in the cross examination is worthy of notice. It was suggested to the prosecution witnesses that the landlady of the house in collusion with the police had lodged a false case only for evicting the accused from the house in which they were living. Finally, we notice that the investigating officer was also not examined. Against this background, to say that, despite the panch witnesses having turned hostile, the non- examination of the investigating officer and non- production of the seized drugs, the conviction under the NDPS Act can still be sustained, is far- fetched. 14. The decision in Jitendra applies to the facts of this case with full force. We accordingly, hold that the appellant is entitled to the benefit of doubt and acquit him of the charges and set aside the judgments and orders passed by the trial court and the High Court." 2 5. Apart from this as per prosecution case, the seizure took place on 25.10.1996 and Shri B.S. Rana has specifically stated that as per Ex.P-13 dispatch letter S.P. Jabalpur has sent the aforesaid contraband to F.S.L. Sagar on 18.011.1996. However he is unable to say that where the contrabands were kept. In this regard on bare perusal of Ex.P-14-A F.S.L. report given by Joint Director, F.S.L., Sagar it is clear that a sealed packet of contraband and another packet of seal and specimen seal duly packed was received by them, therefore, it cannot be said that contrabands were changed. In the present case, the incident took place on 25.10.1996 and a meager quantity of 500 grams ganja was recovered from the appellant. Looking to the small quantity of ganja it will not be proper to remand the case before the trial Court for fresh trial. Appellant has already remained in jail for approximately 97 days. 6. Accordingly, this appeal is allowed. The impugned judgment of conviction and sentence passed by the trial Court is hereby set aside. Appellant is acquitted of the charge under Section 20(b)(i) of NDPS Act. He is on bail. His bail bonds are discharged. Fine amount, if deposited be refunded to the appellant. (S.C. Sinho) Judge psm 3