CF0000063060 ‘ Singje %emc‘n (Crimi BEFORE THE HON‘ BLE HIGH COURT OF JUDICA’IURE AT:JA”BALPUR Erimlnal . Appeal . No. W67 /2000 . APPELLANT s (IN JAIL) VINOD N‘ixMjéEo S/o Jeetan Raga, ,? Aged abuut-ZZ years, v" Occupatinn -Mazduri,R/o Bramha Road, Ghasiapara, Anbikapur, Di stt . Sarguja (M -P o) ¢ VERsug 'Ihe Statesf M. P. “ £ MEMO OF A‘PPEAL UNDER SECTION 36 OF N.D.?.S. ACT. v Sente neg Csnvict ion U/s 22 cf N.D.?.$. Act / 10 years R “.M' and flne of 1i. 1 akhs :Ln deEault of payment 3 years R Ix l I J. L HIGH COURT OF CHHATTISGARH BILASPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOI-IAN SHRIVASTAVA,J. Criminal Agpeal No. 1607 of 2000 APPELLANT \ Vinod Namdeo , " ' Versus RESPONDENT State of M.P. (now Chhattisgarh) £ t JUDGMENT POST ON I5/ OCTOBER, 2010 // \ f Sdl- an shnvas . ma ~ m - HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. Criminal Appeal No. 1607 of 2000 APPELLANT Vinod Namdeo Versus \ ’ State of M.P. (now Chhattisgarh) RESPONDENT V‘‘. Present: //" Shri Abhay Tiwari, counsel for the appellant. Shri‘Avinash K. Mishra, Panel Lawyer for the State. a JUDGMENT (Delivered on lsl’October, 2010). . This criminal appeal is directed against the judgment of conviction and order of sentence dated 29th May, 2000 passed by learned Special Judge \ (NDPS) in Special Case No.39/ 1999, by which the appellant has been found guilty for commission of offence under Section 20 (b) 85 22 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referred to as “the N.D.P.S Act”) and has been sentenced to undergo R.I. for 2 years under Section 2O (b) and R.I. for 10 years with a fine of Rs.1 lac under Section 22 of the NDPS Act and in default of payment of fine, additional R.I. for 3 years. . The case of the prosecution is that on 16.3.1999, an information was rec%ived by Bholanath Singh (P.W.5), A.S.I. of Police Station— Ambikapur that the appellant is selling ganja and brown sugar in front of his house. The information was taken in writing under rojnamcha sanha‘ N0. 1268 "\x h. <6? (Annexure P—24). Vide Ex. P—2, Bholanath Singh (P.W.5) recorded reasons for proceeding without obtaining search warrant and information to the City Superintendent of Police was sent vide EX. P—l in compliance of mandatory provision contained in Section 42(2) of the NDPS Act. 1 Thereafter, Bholanath Singh (P.W.5) proceeded to the scene of occurrence along with his team by recording his departure at 16:40.. After reaching the i place‘of occurrence at Brahampara (Ghasiapara), Summons of EXP—4 B was given to Md. Saleem (P.W.3) arid Shashid Khan (P.W.4) to record their * presenge‘and be witness to the proceedings. Thereafter, the accused having t been found on th‘e road, identification memo in EX. P—5 was prepared and then a notice in Ex. P-6 was given to the appellant informing that information has been received that appellant is possessed of ganja and brown sugar and selling and was asked whether he wanted his search to be made by a gazetted officer or by a Magistrate or by the Assistant Sub Inspector, whereupon, the appellant gave his consent for being searched by A S I by recording the same 1n wr1t1ng on the notlce under Signature 1n the presence of Witnesses Thereafter, A SI Bholanath Singh (PW5) was searched by the appellant 1n the presence of Witnesses and search memo 1n Ex. P—7 was prepared. Thereafter Md. Saleem (P.W.3) 86 Shahid Khan (P.W.4) and constables Rakesh Kumar & Pushpraj Singh were searched and panchnama in EX. P—8 was prepared. Thereafter, Md. Saleem (P.W.3) 8L Shahid Khan (P.W.4) searched A.S.I. Bholanath Singh (P.W.5) and panchnama 1n Ex P—14 was prepared After completion of the search of team of pohce and panch w1tnesses, the appellant was bodily searched and from pocket of Kurta worn by him, 2 small packets of brown sugar_.were a recovered and ganja was recovered from a plastic bag carried by the appellant in his hand. Search memo in .EX. P—9 was prepared. Visual and smell identification was carried out and it was identified as ganja and brown sugar. A panchnama in EX. P-lO was prepared to this effect. Contraband was then weighed and sealed and a 'panchnama was also prepared vide EX. P-12. Thereafter, the contraband was seized vide seizure memo of EXP-13. A dehati nalishi was recorded at the spot Vide EX. P—15 and map of the spot was also prepared Vide EX. P-ll. The appellant was arrested and a memo in Ex. P—16 was prepared. Reasons for arrest were recorded Vide Ex. P—17 and information of such arrest was given to the wife of the appellant Vide EXP—18. First’information report in Ex. P—19 was then recorded. in the police station and information was sent to Special Court Vide Ex. P—2O and the details of search, seizure and arrest were forwarded to the City Superintendent of Police Vide EXP—3. Seized article were handed over to the custody of Malkhana Moharrir of the police station and an acknbwledgment of receipt in Ex. P-4 was obtained. In Ex. P-5 (C), entry regarding deposit of seized article in Malkhana was recorded, which related to rojnamcha sanha No. 1285 in EX. P—26. City Superintendent of Police checked the seal packets which were found intact, which fact was recorded in rojnamcha sanha’ No.2094 (Ex. P-28). Then an entry with rEgard to dispatch to Forensic Science Laboratory (FSL) was made in Malkhana Register Vide entry in Ex. P—29. The F.S.L. report was received from F.S.L. in Ex. P—22 wherein 2 sealed packets articles A 85 B which were found sealed as per the sample of seal were found containing ganja (packet A) and’heroin (packet B). . vAfter completing usual investigation, a charge sheet was filed. The learned Special Court on the basis of material and police report, framed charges against the appellant alleging commission of offense under Section 20 (b) 85 22 of the N.D.P.S. Act. The appellant abjured his guilt and pleaded ll’ll’lOcenCC . Prosecution, in order to prove its case examined Markande Mishra (P.W.1), Jitendra Singh (P.W.2), Md. Saleem (P.W.3), Shahid Khan (P.W.4) 85 Bholanath Singh (P.W.5) 85 Dharamveer Singh Yadav (P.W.6). Accused examination under Section 313 of Cr.P.C. was made by the learned trial Court and the appellant was asked regarding incriminating evidence and circumstances appearing against him. The appellant denied all the circumstances and stated that he yvas arrested from the area, taken to the police station and his signatures were obtained on 7—8 papers. V - The appellant examined Chandradatt Tiwari as defence witness No.1 85 Jagatram as defence witness 2. a . After examining the prosecution and defence witnesses and considering oral and documentary evidence on record, the learned trial Court found the appellant guilty of commission of offence under Section 20 (b) 85 22 of the NDPS Act and sentenced him as mentioned in paragraph 1 of this judgment. \ Assailing the judgment of conviction and order of sentence, in this appeal, learned counsel for the appellant has made twofold submissions. The first and foremost submission of learned counsel for the appellant is that the judgment of conviction is vitiated on account of violation of mandatory provision contained in Section 50 of NDPS Act. The second submission is that the entire case of the prosecution is highly doubtful and it is a case of false implication as both independent panch Witnesses Md. Saleem (P.W.3) 85 Shahid Khan (P.W.4) have not supported the case of the prosecution. E) Learned counsel for the appellant argues that as the provision 1 relating to punishment in relation to contravention of provision contained in NDPS Act provided for stringent punishment, the mandatory provision in Section 5O are required to be scrupulously followed in letter as well as in spirit. It is contended that the prosecution has failed to prove beyond doubt that before effecting seizure on the person of the appellant, the mandatory I requirements of Section 50 were followed. It is then contended that there are glaring discrepancies in the statements of prosecution witnesses on all material particulars. The panch witnesses who were the only independent witnesses have not supported the case of the prosecution on all aspects right from the preparation of notice under Section 50 till effecting seizure. He submits that in such a case where the seizure is not at all proved and i seizure witnesses‘have not supported the case of the prosecution, the entire case of the prosecution becomes highly doubtful and the appellant could not be subjected to rigorous punishment on such material brought by the prosecution during the trial. Learned counsel for the appellant in support‘of his arguments placed reliance on the judgments of Supreme Court in the cases of Bhola Ram Kushwaha Vs. State of Madhya Pradeshl, Ritesh hakarvarti Vs. State of M.P.2 85 State of Uttar Pradesh Vs. Subhash Kumar Sing}; Tomar3. ‘ t \ 8. On the other hand, learned counsel for the State has supported the impugned judgment of conviction and order of sentence and it has been argued that there is substantial compliance of the provision contained in Section 50 of the NDPS Act which has been dully proved by the Investigating Officer Bholanath Singh (P.W.5), who has deposed in his estimony and has also proved by placing all documentary evidence in this regard that the appellant was informed regarding receipt of information and ii‘itention to carry out search and was asked if he required search to be ' AIR 2001 sc 229 2 (2007) 1 scc (Cri) 744 ? (20ml scc (Cn') 702 t carried out by a gazetted officer/Magistrate and only, after he gave his consent he was searched. He submits that the each and every step of proceedings was duly recorded in panchnama which has been proved by the Investigating Officer. Learned counsel for the appellant further submits that appropriate seizure was made Which has been proved by the Investigating Officer. He argues that even if the two independent panch Witnesses namely Md. Saleem (P.W.8) 85 Shahid Khan (P.W.4) have not supported the case of the prosecution and turned hostile, nevertheless, they have admitted their signatures on all the documents. As the entire proceedings has been properly and genuinely carried out, which has been proved by the Inyestigating Officer (P.W.S), the entire case of the prosecution and the°evidence on record with regard to search and seizure cannot be discarded only on the'ground that the seizure witnesses have not supported. He also submits that all mandatory provisions under the NDPS Act with regard to recording of information, sending information under Section 42 (2), search notice under Section 50, information to higher authority under Section 57 and safe custody of the seized article as required under Section 55 of the NDPS Act were scrupulously followed and such compliance have been proved by oral and documentary evidence on record led by the prosecution, which goes to prove that the seizure was genuinely made. He further submits that in so far as seizure of ganja kept in a packet carried by the appellant is concerned, provision of Section 50 are not attracted though the seizure of not only brown sugar but ganja has also been made only after complying the mandatory requirement of Section 50 of the NDPS A'ct. Learned counsel for the State placed reliance in the C} judgments of Supreme Court in the cases of P.P. Fathima Vs. State of Kerala4, Bhola Ram Kushwaha Vs. State of M.P5. 4 (2003) .8 SCC 726 .wk . In the light of submissions made by learned counsel for the parties and the ground raised in this appeal, the flrst question which arises for consideration is Whether the mandatory provision contained in Section 50 of the NDPS Act, if at all applicable, were complied with in letter and spirit so as to sustain conviction of the appellant for alleged offences. A.S.I.— Bholanath Singh (P.W.5) is the Investigating Officer, who has been examined at length. He has deposed that on 16.3.1999, information from informant was received that the appellant is possessed of brown sugar and ganja“and selling the same in front of his house at Bramhpara (Ghasiapara), Anibikapur. The same was recorded in writing at rojnamcha sanha No. 1268 and a separate panchnama was prepared vide Ex.P—1. Constable- Markande Mishra (P.W. 1) has deposed that he was posted in the office of SDO (P), Ambikapur and information of Ex. P—l was received by him and he had given an endorsement on the same. He has also deposed that Bholanath Singh (P.W.5) informed the reasons for proceeding to the scene of occurrence without obtaining search warrant and information to that effect was also received vide EXP—2, on which also, there is endorsement of receipt written and signed by him. He also deposed that detailed information regarding proceeding to the scene of occurrence contained in EX. P-3 was also sent, which has also been received by the office and the same contains endorsement in his writing and signature. Investigating Officer- Bholanath Singh (P.W.5) has also deposed in his testimony that after' reaching at the spot as per information, the notice under Section 50 of'the NDPS Act was given to the appellant vide Ex. P-6 and the appellant was informed that information has been received that the 9 appellant is keeping brown sugar and ganja and selling the same and therefore his search is required. He has also deposed that the appellant was s AIR’2001 SC 229 ‘ @ informed by the said notice that he may get himself searched by a gazetted officer or by a Magistrate, Whereafter, the appellant in the presence of witnesses, in writing, stated that that he gives his consent for being searched by the Investigating Offlcer Bholanath Singh, A.S.I. (P.W.5). The said notice of Section 5O in Ex. P—6 has been proved. The Investigating Officer further deposed that he and other departmental persons as also panch Witnesses had offered and searched by the appellant and therefore the appellant was searched. Though in the cross-examination, a suggestion has bee‘nfvgiven that notice was not given to the appellant and it was prepared in the police station later on, but the same has been specifically denied and there is‘ no other discrepancy or circumstance to raise any suspicion with regard to compliance of mandatory requirements of Section 50 of the NDPS Act. The Investigating Office made coherent statement both in his examination—in—chief as well as in his cross—examination with regard to compliance of provision contained in Section 50 cf the NDPS Act in the matter of search of the accused and nothing has come out in the nature of any material contradiction-or variance in his clear, reliable and \cogent testimony. The two independent punch witnesses Md. Saleem (P.W.3) 85 Shahid Khan (P.W.4) have not supported the case of the prosecution and even declared hostile. However, both Md. Saleem (P.W.3) 85 Shahid Khan (P.W.4) have admitted that they had put their signatures in Ex. P-4 (B), P—5, P-6, P- 7, P-8, P-9 85 P—10. Both of them have stated that when they had gone to police station in connection with release of vehicle, the police obtained their signatures on 8 to'lO papers. However, neither those witnesses have given 9 the details of the case regarding release of vehicle nor the appellant in his defence has come out with details. As the compliance of mandatory requirement of Sectir \\ 5O of the NDPS Act has been proved by the \ .gw . I. Investigating Ofticer- Bholanath Singh (P.W.5) and there is nothing to doubt about the genuineness‘ of the proceedings drawn by him, as has been' discussed above, it has to be held that the provision contained in Section 50 were duly and substantially complied with by the prosecution before carrying out search of the appellant. s ( V 10. Learned counsel for'the appellant placed reliance in the case of Ritesh Chakarvarti (supra). In that case the Supreme Court, taking into consideration several discrep‘an‘cies and peculiar facts and circumstances in that case, came to the conclusion that serious doubt crept in. Such are not the facts and circumstaiices in the present case. As discussed above, the proceedings a drawn by the Investigating Officer with regard to compliance of mandatory requirements of Section 50 have been proved by reliable, trustworthy and consistent testimony of Investigating Officer— Bholanath 'Singh (P.W.5), Whose testimony remained unshaken and therefore, inspires confidence. Each and every proceeding right from the receipt of information till search \ has been effected, have been proved by the Investigating Officer in his testimony, which goes to show that the Investigating Officer meticulously followed the mandate of Section 50 of the NDPS Act before conducting search of the body of the appellant. ‘ , . The next submission of learned counsel for the appellant is that in the present case as the 2 independent punch witnesses have turned hostile and not supported the case of the prosecution, therefore, the entire case of the prosecution has become doubtful and the appellant is entitled to Q, benefit, of doubt needs to be examined.’ _ In the paragraph hereinabove, this Court has discussed the manner in which the investigating officer proceeded in the matter. If this is minutely 'fx , examined, it Would be revealed that the investigating offlcer complied with the various mandatory requirements contained in Sections 42 85 50 of the NDPS Act. The information received in the police station was dully recorded I in the rojnamcha sanha; information was duly forwarded to the next higher 1 authority; reasons for nOt obtaining search warrant were dully recorded. The investigating officer got conducted his personal search as also search of all other department persons and independent punch witnesses, from the accused and, thereafter, the accused was bodily searched. For every step of proceedings, the investigating officer has prepared panchnama which was followed by seizure of contraband from the appellant. The rinvestigat‘ing officer Bholanath Sigh (P.W.5), in his testimony, has proved that two small packets of brown sugar were recovered from the pocket of kurta worn by the appellant and ganja was recovered from plastic bag carried by the appellant. Search memo, EX. P-9, was prepared as deposed by the investigating officer. Thereafter, samras panchnama in EXP—10 was also prepared. The investigating officer deposed that seized ganja and brown sugar were got weighed and seizure was effected vide seizure memovof EXP-13 He has also deposed that at the spot itself, dehati nalishi, EX-lS, was recorded by him, map of the spot was prepared vide EXP—11. The investigating officer has further stated in his testimony that the details of search and seizure were informed to C.S.P. vide EXP-3. He has also deposed that a memo of arrest was prepared vide EXP-16 and a written information to the accused was given at the spot vide EXP-17 and ‘ information was sent to his wife vide EXP—18. After returning to the police L station, the offence’ was registered in FIR (Ex.P—19) proved by him. On 17.5.1999, the copy of FIR, search memo, seizure memo and arrest memo were submitted in the Special Court vide EXP-20. He also stated that after returning to police station, the seized articles were given to Jitendra Singh 9 k n (P.W.2) for keeping the same in safe custody vide EX. P—4. The investigating offlcer has also stated and proved various rojnamcha sanha recorded in the police station regarding receipt of information, departure, details of proceedings drawn at the spot, safe custody of brown sugar and ganja and verification of custody of seized article by CSP. The relevant entries in Malkahana register Ex..P—2 have also been produced and proved by the investigating officer. Markande Mishra (P.W.1) has’deposed that the said information ExzP-3 was received by him and he put his signature and endorsement made on the E§.P-3t A 12. The trustworthy and reliable testimony of Investigating Officer has remained unshaken even in the cross—examination on all material aspects and he specifically denied suggestion that the signature of the panch witnesses were obtained in thepolice station when they had come to police station in connection with release of vehicle. He has been subjected to a very detailed and lengthy cross examlnation by the defence but he stuck to his vers1on On various aspects of investigation, he is corroborated by Markande Mishra (P.W.l), Jitendra Singh (P.W.2) 8L Dharrnveer Singh (P.W.6), who were departmental witnesses. The panch Witnesses have also admitted their signatures in various documents including seizure memo. Both Md. Saleem (P.W.3) & Shahid Khan (P.W.4) have admitted their signatures on the documents which have been proved by the Investigating Officer. They did not say that their signatures were obtained on blank papers. Though they have stated intheir te§fimony that their signatures were obtained when they had gone to police station in connection with release of their vehicle, no such details have been given by those witnesses as to what was the number of vehicle and in 12 which Court proceeding/case they arrived at in the police station. The defence has also not placed any material on record either in the form of oral or documentary evidence that the two Witnesses of the prosecution had come in connection with release of any vehicle. 13. In the case of Bhola Ram Kushwaha (supra), dealing with the submission that as independent Witnesses have turned hostile, accused is entitled to be acquitted, it was held : J, r “4. Learned counsel appearing for the appellant "* ‘ submitted that as both the Witnesses who were stated to i be independent Witnesses have turned hostile the trial court should have acquitted the accused We are not impressed With such a general submission In order to satisfy ourselves we have perused the statements of all the prosecution witnesses and ascertained as to Whether their testimonies inspire confidence for holding the appellant guilty of the offence for which he has been convicted and sentenced. In the case of P.P. Beeran Vs. State of Keralas, similar arguments were raised, which was dealt by the Supreme Court in following words: “3. The case alleged against him shows that he was found in possession of 23.5 grams of opium at the tim when he was intercepted and searched by .PW 2 Sub- Inspector of Police. We have noticed that two witnesses were called by PW 2 at the time of search out of whom one was examined as PW 1 and the other was not examined. ’But even the one examined (PW 1) did not support the prosecution and hence he was treated as hostile. Though an argument was addressed by Mr R. Venkataramani, learned Senior Counsel for the appellant that the evidence of PW 2 Sub-Inspector of 6 (2001) 9SCC 571 e 13 Police remained uncorroborated and, therefore, that should not be made the sole basis for conviction, it is too late in the day for us to reject the testimony of PW 2 on that ground alone. Even otherwise, it cannot be said that the evidence of PW 2 remains uncorroborated because the fact that opium was recovered from his person and also Exhibit P-2 which is an endorsement containing the signature of the appellant could be treated as circumstances corroborating the testimony of PW 2.” In theséase of P.P. Fathima (supra), the Supreme Court examined the eritire case of the prosecution and having come to the conclusion that seizure was genuinely fnade by the seizing authority, held as under: o “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 by 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