Ashok @ Dangra Jaiswal vs State Of M.P

2. On March 8, 2005, at about 3.30 p.m. one Anil Kumar Jharkhadia (PW.10), Town Inspector, Police Station Kareli received information that the appellant, the owner of Satyanarain Talkies is engaged in selling of smack powder (heroin in common parlance) from his cinema hall. After completing the formalities, the police party proceeded to the cinema hall where the Town Inspector, complying with the mandate of the law, subjected the appellant to a personal search. The search, made under the Search Memo, Exhibit P.17, yielded three packets from the pocket of the `kurta' worn by the appellant. The plastic packets contained smack powder, the total weight of which was 175 grams. The suspected narcotic recovered from the appellant was seized under seizure memo, Exhibit P.22. From the seized powder, two samples of five grams each were taken and were put in two separate sealed packets marked as Article A and A1.

3. Following the appellant, his two employees, namely Kanki @ Vishnu and Guddu Maharaj, who were present there at that time, were also subjected to personal search and from the possession of Kanki 100 grams and from Guddu Maharaj 35 grams smack powder was recovered. Samples were similarly taken from the recoveries made from those two accused also.

4. The samples taken from the smack powder alleged to have been recovered from the three accused, including the appellant were sent to Forensic Science Laboratory vide draft, Exhibit P.31. The FSL report, Exhibit P.32 confirmed that the samples contained diacetylmorphine (heroin). On completion of investigation, charge-sheet was submitted against all the three accused, including the appellant on 31.3.2005. Charges were framed against the accused and they were put on trial. The trial 4 court by judgment and order dated 9.11.2005 passed in Special Case No.4/2005 held all the three accused, including the appellant guilty of offences punishable under Sections 8/21(b) of the NDPS Act and sentenced them as noted above.

5. Against the judgment of the trial court, the appellant preferred Criminal Appeal No.2511/2005 before the High Court. Another appeal being Criminal Appeal no.86 of 2006 was filed by Guddu Maharaj. There is, however, no indication that the third accused Kanaki took the matter in appeal. The High Court dismissed both the appeals by judgment and order dated April 17, 2008.

8. To begin with, there were two independent witnesses of the seizure, namely, Ajay Purohit and Udaipal Singh whose signatures were taken on the seizure memos, Exhibits P.22 to 24. They were examined before the Court as PWs 8 and 9 respectively. Neither of the two supported the case of the prosecution. PW.8 was, as a matter of fact, quite emphatic in his denial of any recovery having been made from the appellant or the other accused in his presence. Both were declared hostile by the prosecution. Both the trial court and the High Court had, therefore, to rely upon the testimony of R. K. Jharkhandia, PW 10 who was the Station House Officer at the material time and who had conducted the raid to accept the prosecution case of recovery of the suspected narcotic from the accused.

11. The FSL report came on March 21, 2005, and on that basis the police submitted charge-sheet against the accused on March 31, 2005, but the alleged narcotic substance that was seized from the accused, including the appellant was deposited in the Malkhana about two months later on May 28, 2005. There is no explanation where the seized substance was kept in the meanwhile.

production. There is, thus, no evidence to connect the forensic report with the substance that was seized from the possession of the appellant or the other accused.

15. 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.

16. At this stage, it may be noted that though the other two accused, namely, Kanki @ Vishnu and Guddu Maharaj are not before us, we see no reason why the benefit of this judgment may not be extended to them as well. From the possession of Kanki @ 11 Vishnu, the recovered quantity was 100 grams and from Guddu Maharaj 35 grams. All the three accused including the appellant were tried together and the other two accused Kanki @ Vishnu and Guddu Maharaj have also been given the same sentence as the appellant. The lapses in the prosecution and the facts and circumstances that have been noted above and that have weighed with us for setting aside the conviction of the appellant apply equally to the case of Kanki @ Vishnu and Guddu Maharaj. It will be unjust, therefore, to let them rot in jail even while allowing the appeal preferred by the appellant. (See: Raja Ram and others v. State of M.P., (1994) 2 SCC 568, Dandu Lakshmi Reddy v.

State of A.P., (1999) 7 SCC 69, State of Haryana and others v. Sumitra Devi and others, (2004) 12 SCC 322, Mangoo v. State of M.P., (2008) 8 SCC 283, Bachan Singh v. State of Bihar, (2008) 12 SCC 23) We, accordingly, direct that their conviction and sentence be also set aside and they too along with 12 the appellant be released forthwith unless anyone of them is required in connection with any other case.

17. The appeal is, accordingly, allowed.

April 5, 2011.