Savaji vs State Of M.P.
2021 Latest Caselaw 8772 MP

     1                                                 Cr.A. No.883/2007
              Savaji S/o Bhuvan Gurjar vs. State of M.P.

HIGH COURT OF MADHYA PRADESH:BENCH AT INDORE
           Single Bench: Hon'ble Shri Justice Pranay Verma

                       Criminal Appeal No.883/2007
                          Savaji S/o Bhuvan Gurjar

                                        Vs.
                           State of Madhya Pradesh


          Ms. Vibha Bharuka, learned counsel for the appellant.
Shri Awadesh Polekar, learned Panel Lawyer for the respondent/State.
------------------------------------------------------------------------------------
Whether approved for reporting: No

                               JUDGMENT

(Delivered on 14/12/2021)

1. This appeal under Section 374 of Criminal Procedure Code has been preferred by the appellant/accused being aggrieved by the judgment dated 26/07/2007 passed in Special Case No.24/2004 by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (which shall be referred hereinafter as "NDPS, Act"), District-Ratlam convicting him for the offence under Section 18(B) of NDPS, Act and sentencing him for 10 years R.I. with fine of Rs.1,00,000/- in default of payment of fine to suffer further R.I. for a period of one year.

2. As per prosecution, on 08/07/2004 an information was received at Police Station-Baravada at about 12:00 PM to the effect that the appellant is going on his Hero Majestic Moped bearing registration No.M.P.-13/F/6185 from Divel to Baradava towards Jaora carrying 3 Kgs. of Afeem. On recording of the information and sending the same

Savaji S/o Bhuvan Gurjar vs. State of M.P.

to the Sub Divisional Officer, Police, Jaora, the police party was collected alongwith witnesses Mushtaq and Amin Hussain. They then reached the spot and waited for the appellant for about 2 hours. Thereafter the person as stated in the information came on a Moped and was stopped on which he disclosed himself to be the present appellant.

3. On being stopped the appellant was intimated about the information of the informant and Panchnama was prepared. He was intimated of his right to get himself searched by a Gazetted Officer or a Magistrate on which he consented to be searched by the Station In- charge regarding which also Panchnama was prepared. On the handle of Moped of the appellant there was a green colour bag which was opened and substance therein giving out a strong smell was seen kept inside a plastic bag. The same was opened and tested by police party as well as witnesses and was found to be Afeem. The same was weighted and found to be 3 Kg. Two samples of 50 gms. each were taken in a separate plastic bag and were sealed and labeled. The remaining substance i.e. 2 Kg. 900 gms. was kept separately. The necessary Panchanamas were prepared and the appellant was arrested. The offence was registered under Section 8/18 of NDPS, Act and the seized contraband was brought to the Police Station and kept in the store room and necessary entries in the register were made.

4. The detailed report under Section 57 of NDPS, Act was made and sent to Senior Police Officer. The samples of contraband were sent to the Forensic Science Laboratory, Rau, District-Indore and report was received from it to the effect that the contraband is Opium Poppy having Morphine therein. After completion of the investigation, challan was filed by the police and charges under relevant Sections of NDPS, Act were framed against the appellant.

Savaji S/o Bhuvan Gurjar vs. State of M.P.

The appellant denied his guilt and demanded to be tried. The prosecution thereafter produced oral as well as documentary evidence in its support. The appellant did not lead any evidence in his defence and in his statement under Section 313 of Cr.P.C. he claimed to have been falsely implicated by the police. Upon conclusion of the trial the appellant has been convicted and sentenced as aforesaid.

5. Learned counsel for the appellant submits that conviction of the appellant on the basis of material available on record is illegal and bad in law. The seizure of contraband from appellant has itself not been proved as both the witnesses to the seizure have been declared hostile and have not supported the prosecution case. Section 42 of NDPS, Act has not been complied with as necessary intimation there under was not sent and the same was not received as required. There were great contradictions in the statements of witnesses as regards the vehicle being used by the appellant with respect to its make and number. The contraband remaining after preparation of Panchanama was not properly sealed and there was every possibility of the same being tampered with. The samples were also not prepared properly and there was discrepancy in the quantity. The appellant was not intimated as regards his right of search in the manner as required. Attention of this Court has been drawn to the statements of seizure witnesses namely; Mushtaq (PW/2), Amin Hussain (PW/3) and to that of Sultan Singh (PW/7) to contenting that the provisions of Section 42 and 57 of NDPS, Act were not complied with. It is hence submitted that appellant has wrongly been convicted and his conviction deserves to be set-aside.

6. Per contra learned Panel Lawyer for the respondent/State has submitted that the judgment delivered by the Court below is on the basis of proper and thorough marshalling of the entire oral as well as

Savaji S/o Bhuvan Gurjar vs. State of M.P.

documentary evidence available on record and upon application of relevant legal principles applicable to the facts of the case. The reasonings and findings of the trial Court being based upon material on record are not liable to be interfered with and the appeal deserves to be dismissed.

7. I have heard learned counsel for the parties and have perused the record.

8. From the documents produced by the prosecution and the witnesses examined by it, it is evident that an information was received on 08/07/2004 specifically as regards the appellant transporting the contraband substance on his Moped. On receipt of such information the same was recorded in the Rojnamcha as Ex.P/29 and report of the same was sent to SDO, Police alongwith information Ex.P/1. The information was handed over by Arjunlal (PW/1) whose evidence is also wholly reliable. The receipt of report of information has been affirmed by the witness Sultan Singh (PW/7) and there is no contradiction in his statement vis-a-vis that of the Investigation Officer - Mragendra Tripathi (PW/9). Thus hence there has been total compliance of Section 42 of NDPS, Act.

9. The contraband was being carried by appellant on a Moped as was the initial information. When he was confronted he was riding a Moped. Mere discrepancy as regards the make of Moped i.e. whether it was a Hero Majestic Moped or a Panther and as to of which colour the same was and whether automatic or not would hardly be of any significance. The fact proved is that the appellant was riding a Moped as was the information. The contention in regard to discrepancy of vehilce of the appellant hence appears to be of no merits.

10. As per the statement of Investigating Officer upon the appellant being confronted, the contraband substance was seized from the bag

Savaji S/o Bhuvan Gurjar vs. State of M.P.

which was hanging on handle of his Moped. Upon opening the bag it smelled like a contraband substance after which its simple was taken and it was sealed. From the entire evidence of Investigating Officer which is duly corroborated by other prosecution witnesses it cannot be said that there has been any irregularity or illegality in the matter of search and seizure. The necessary Panchanama and Japtinama were prepared. On being brought to the Police Station the contraband substance was kept in the store room and report was sought for from Forensic Science Laboratory which has confirmed the seized substance to be the contraband as alleged.

11. Only for the reason that the witnesses to the search and seizure have not supported the prosecution case, it cannot be held that the process itself has vitiated as it now well settled that even in absence of corroboration of search and seizure by the witnesses to the same, it can be up-held only on the basis of testimony of Investigating Officer if the same is otherwise found reliable. The entire statement of Investigating Officer - Mragendra Tripathi (PW/9) is totally reliable and there is no reason to disbelieve the same on the basis of which the search and seizure has been legally proved. There was no necessity for summoning any other independent witnesses.

12. The contraband was kept in a bag on the handle of Moped of the appellant. As per the Investigating Officer he was specifically informed of his right of being searched by a Gazetted Officer or a Magistrate and he declined to avail the said right and consented to be searched by the police party itself. There has hence been complete compliance of Section 50 of NDPS, Act which was in any case not strictly applicable since recovery was not made from the person of the appellant but was made from a bag kept on the handle of his Moped. From the evidence it is also apparent that the provision of Section 55

Savaji S/o Bhuvan Gurjar vs. State of M.P.

of NDPS, Act has also duly been complied with by the prosecution.

13. In view of the aforesaid discussion it is held that the judgment passed by the trial Court is in-consonance with the evidence available on record. There is no illegality or perversity in the same. The appeal is hence consequently found to be devoid of any merit and is hereby dismissed.

14. The order of learned trial Court regarding disposal of the case property is also hereby confirmed.

(Pranay Verma) Judge Aiyer* Digitally signed by JAGDISHAN AIYER Date: 2021.12.15 16:21:33 +05'30'