/,... - /'• ^ •^<6s^ ^ >f^( ;::~I7S11 ^ lis^ to f:^^ 3H IMS HI©HGDUB2 CF0000058121 MAJ3HTA PBADESH AI JABALF0B GBIi3tAL APPBAL N0- -^ .; <. aajendTa'tiwaTi.son of ASy .OF 1995. Visfawanath Krasa^ Siwari, aged 3€years, Kikshaw ©ara&ge /" owaer, r/o Jawahar Hagar,Raipiar } ^" Bistt,Baipar,MP vs« THE SIAIE OF M«P* -^c^X^^i '/ L^ JS^^^^i^ CB3MIHAL APPBM, UIDBR SECTIOH 374(2) CBffiINAL PBOCSDUBS G0DE: APPELLABI (01 BAJL) BESPOISBENT ^F THB .r- ^.F.t z2Ll / HIGH COURT OF CHHATTISGARH AT BILASPUR Hon'ble Mr. Justice Pritinker Diwaker Criminal Appeal No. 297/1995 APPELLANT Rajendra Tiwari Versus RESPONDENT State of Madhya Pradesh Shri Satish Verma counsel for the appellant. Shri Vaibhav Goverdhan PL for the State. CRIMINAL APPEAL UNDER SECTION 374 (1) OF THE CODE OF CRIMINAL PROCEDURE JUDGMENT (31.03.2011) This appeal is directed against the judgment and order dated 14.2.1995 passed by Additional Sessions Judge, Raipur, in Special Criminal Case No. 189/1992 convicting the accused/appellant for the offence punishable under Section 20-B of the Narcotic Drugs and Psychotropic Substance Act (for short the "Act") and sentendng him to undergo rigorous imprisonment for two years and pay fine of Rs. 2000, in default of payment of fine to further undergo rigorous imprisonment for six months. 2. Facts of the case in brief are that on 15.6.1992 Sub Inspector Jeevan Nagesh (PW-1) who at the relevant time was working as flying squad in-charge received a secret information to the effect that the accused/appellant was involved in sale and purchase of ganja by making small packets. Thereafter, the police party proceeded to the house of the accused/appellant and on the way City Superintendent of Police namely J.P. Dwivedi (PW-2) was also picked up. After reaching the house of the accused/appellant, his consent for search was obtained vide Ex. P-7 and then his house was searched in presence of two independent witnesses namely Gayaram and Mohanlal from where 1.900 grams and 800 grams of ganja contained in two plastic bags was seized vide Ex. P-1 apart from the cash of Rs. 162. Weighment of the contraband was done by J.P. Dwivedi (PW-2) and after personal search of the police people and the accused/appellant, offence was registered against him. ^ —^— Thereafter, FIR Ex. P-3 was registered and after completion of investigation challan was filed on 3.9.1992 under Section 20 of the Act and FSL report Ex. P-6 dated 5.9.1992 was received thereafter. 3. So as to hold the accused/appellant guilty, prosecution has examined 02 witnesses in support of its case. Statement of the accused/appellant was also recorded under Section 313 ofthe Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case. 4. After hearing the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that though two persons namely Gayaram and Mohanlal have been cited as independent witnesses and it is said that at the time of raid they were very much present there, prosecution has not bothered to produce them in the Court for giving their evidence and in these circumstances only on the basis of statements of the police officials the accused/appellant cannot be convicted under Section 20-B of the Act. He submits that statements of Jeevan Nagesh (PW-1) and J.P. Dwivedi (PW-2) are self contradictory and therefore on this count also the conviction of the appellant is bad in law. He submits that seal Panchnama was not prepared nor is there evidence available on record to show that specimen of the seal was sent to Forensic Science Laboratory for examination to prove that the sample was intact throughout the proceedings. According to him, the alleged contraband was never produced before the Court at the time of trial which is also fatal to the .case of the prosecution. He submits that there is evidence available on record to show that ganja was seized from the exclusive and conscious possession of the accused/appellant as according to the case of the prosecution itself the seizure was made from the house of the accused/appellant where his wife, brothers and brother's wife were also present at the relevant time and that being so possibility of the contraband being kept by someone else cannot be ruled out. '^. —3— 6. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that minor contradictions in the statements of Jeevan Nagesh (PW-1) and J.P. Dwivedi (PW-2) will not vitiate the entire trial and that once the examination of the government officials is found to be trustworthy, non examination of independent witnesses dpes not make any difference. He submits that present is not a case where efforts were not made by the prosecution to examine the independent witnesses but as their whereabouts were not known, all the efforts made by the government officials in this regard proved futile. Counsel for the respondent/State however admits that there is no evidence available on record in respect of preparation of seal Panchnama and sending the specimen of the same to the Forensic Science Laboratory for examination. He submits that non production of contraband before the Court is not mandatory unless the accused is able to prove as to what prejudice would be caused to him by such non production of the contraband. 7. Jeevan Nagesh (PW-1) has stated in his evidence that at the time of incident when he was posted as flying squad in-charge, he received a secrete information to the effect that the accused/appellant was involved in the sale and purchase of ganja by preparing small packets. On this, he along with other staff members proceeded to the house of the accused/appellant by picking up J.P. Dwivedi (PW-2) fromthe way. After reaching the house ofthe accused/appellant, the ganja was found in small packets and on enquiry he had confessed the same. Thereafter, on being informed about his rights for search before the gazetted officer or the Magistrate, the accused/appellant had given his consent to be searched by the gazetted officer. According to this witness, as J.P. Dwivedi -CSP was also present there, he and his staff members gave personal search to him but nothing was found in their possession and then he made a search of the accused/appellant before the C.S.P. and 1.900 grams and 800 grams of ganja was found in his possession contained in two plastic bags in addition to cash of Rs. 162, which was seized by C.S.P. J.P. Dwivedi (PW-2) ^:s~^\ l^l^slj' ^ "»\ ^y' -^- vide Ex. P-1. Then, according to him, one Shyamlal Sahu was called to the police station; weighment Panchnama Ex. P-2 was made and after completing the formalities the FIR Ex. P-3 was registered in the police station and statements of Gayaram and Mohanlal were also recorded. Seized contraband was sent to the Forensic Science Laboratory for chemical examination vide Ex. P-4 from where report Ex. P-6 along with letter Ex. P-5 were obtained. In cross examination, this witness has stated that as he had already proceeded for patrolling duty, entries could not be made in the Rojnamcha Sanha and straightaway the plan for raid was made and then he went to C.S.P (PW-2) from where he proceeded to the house of the accused/appellant along with the staff but no information regarding all this was entered into the Rojnamcha Sanha of Ganj Police Station. According to this witness, prior to the incident also he was having the information that the accused/appellant used to sell ganja but he did not raid his house as the information with him was not specific. According to him, the house of the accused/appellant was searched by C.S.P (PW-2) in his presence but there is nothjng on record to show that any Panchnama was made in respect of search of the police officer. This witness has stated that it is the accused/appellant who had brought the ganja from his house where apart from his wife his brothers and sister-in- law were also residing. He has stated that as his superior officer namely J.P. Dwivedi (PW-2) himself had seized the contraband, no further information was given to him. J.P. Dwivedi (PW-2) has stated that on the date of incident he was posted as City Superintendent of Police, Civil Lines, Raipur and in presence of the witnesses, the accused/appellant had given his consent Ex. P-7 for search of his house and the said document was duly signed byGayaram and Mohanlal who were summoned by him vide Ex. P-8. According to this witness, after obtaining the consent from the accused/appellant, seizure was made vide Ex. P-1. This witness has further stated that 1.900 grams and 800 grams of ganja contained in two plastic bags apart from a cash of Rs. 162 was seized from his house in the presence of the witnesses. Thereafter, ^•x^ {i.^1 ^*.. "'"r....^/ K^. '^^' —^T- according to him, the seized contraband was subjected to weighment proceedings. In cross examination, this witness has furtherstated that the accused/appellant was not nabbed by him in Gudiyari as he was in the town and that it is his subordinate staff who had nabbed the accused/appellant. He has stated that after receiving information on wireless, he went to Sukwari Bajar, Gudhiyari where his subordinates had kept the accused/appellant in their custody. He has stated that before taking search of the accused/appellant, the fact regarding his own search has not been mentioned in the requisite form No. 165. He has stated that in his presence no sale of ganja was done and it is the accused/appellant who told him that Rs. 160 was towards the sale price of ganja but this fact was not mentioned in the seizure memo. 8. The material available on record goes to show that except these two witnesses examined by the prosecution, noother witness has been examined by it. Independent witnesses namely Gayaram and Mohanlal have not been examined by the prosecution and reason assigned for the same is that despite issuance of summons to them they did not turn up. This apart, close examination of the evidence of thewitnesses examined by the prosecution shows that they are self contradictory for the reason that according to Jeevan Nagesh (PW-1) on receiving secrete information, while proceeding to the spot, he picked up J.P. Dwivedi CSP (PW-2) on the way and then the premises of the accused/appellant was raided whereas according to J.P. Dwivedi (PW-2), at the relevant time he was in the town and after receiving an information on wireless hewent to the house of the appellant where his subordinates were keeping him in their custody and then after following due procedure the contraband was seized. Further, as per the evidence of Jeevan Nagesh (PW-1) the alleged contraband itself was handed over by the accused/appellant whereas as per the evidence of J.P. Dwivedi (PW-2) it was seized from the house of the accused/appellant. Even there is no mention in any of the documents about putting the seal by the officer or that any sample was sent to the Forensic Science Laboratory. True it is that even in the absence of independent ^ " 't':-^\ \\ 'y^.y> H •^w^^*^ -^,- witnesses a person can be convicted underthe NDPS Act merely on the basis of the statement of government offidals provided that evidence of the investigating officer who recovered the material objects was found to be convincing. In this case, the statements of the witnesses examined by the prosecution who are undisputedly the government officials are not trustworthy and contradictory to each other rendering the statement of the investigating officer wholly unsubstantiated. Moreover, the prosecution version itself shows that in the house in question there were number of inmates including his wife and therefore the possibility of the contraband having been kept there by someone else cannot be ruled out. In these circumstances, examination of the independent witnesses was all the more necessary particularly when a large number of discrepancies are present in the statements of the government officials examined as witnesses by the prosecution with regard to search and seizure including the procedure being followed. 9. In view of aforesaid discussion, this Court is of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt and that being so the benefit of doubt must go to the accused/appellant. Accordingly, the appeal is allowed. Judgment impugned is hereby set-aside. Accused/appellant is acquitted of the charge levelled against him. Accused/appellant is on bail. His bail bonds stand discharged. —— Sd/- Pritinker Diwaker Judge ^