Bhansingh Rajput vs The State Of Madhya Pradesh
2021 Latest Caselaw 2859 MP

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          THE HIGH COURT OF MADHYA PRADESH
                     Criminal Revision No.870/2021
               (Bhan Singh Rajput vs. The State of Madhya Pradesh)

Jabalpur, Dated 30.06.2021
     Shri S. K. Jain, counsel for the applicant.

     Shri S. M. Patel, Panel Lawyer for the respondent State.

The revision has been filed by the applicant against the order of

framing charges dated 18.12.2020 passed by Special Judge NDPS Act,

Katni. The Special Judge has framed the charges against the petitioner

under Section 8/20(b)(ii) (C) of the NDPS Act, for having/carrying

137.500 Kg. illegal cannabis.

2. The sole ground to assail the order is that no FSL report has

been produced by the prosecution with the charge sheet and in absence

of such report there is nothing on record to consider that the seized

article is cannabis. It is further argued by learned counsel for the

petitioner that the Panchnama was prepared by the seizing officer on

the spot, interalia stating that he tested the seized substance by

crushing, burning and smelling it and reached on the conclusion that

the seized article was cannabis, and nothing mentioned in this

panchnama that after smelling the seized cannabis the seizing officer

got intoxicated. Therefore, the seized substance cannot be considered

as cannabis.

3. Therefore, according to the petitioner, the trial Court erred in

framing charges for violation of provisions of the NDPS Act.

4. The learned counsel for the petitioner placed reliance on a

judgment of the Uttar Pradesh High Court rendered in Rizwan Ali vs.

State of U.P (Cr.R. No.3871/2003) reported in 2004(3) Crimes 187.

5. It is also argued that independent witnesses of seizure Mahantu

Dahiya (PW-1) and Pankaj Dahiya (PW-2) have not supported the

prosecution case. Therefore, the seizure made from the petitioner

becomes doubtful. Therefore, it is prayed that the charges framed

against the petitioner be quashed and the petitioner be discharged.

6. Relying on the recovery of commercial quantity of contraband

from possession of the petitioner, opinion of the seizing officer that the

seized substance was cannabis the documents prepared on and off the

spot and pre and post recovery of the contraband, learned Panel

Lawyer has opposed the prayer.

7. It is also submitted that hostality of any witness cannot be a

ground for discharge. Otherwise also still the material witnesses have

to be examined before the trial Court and without their examination no

just or proper conclusion can be arrived at.

8. The judgment rendered in Rizwan Ali (supra) cited by the

learned counsel for the petitioner is a bail order. Only contention of

the counsels therein on the issue of non-production of FSL report has

been noted down in the order and no law on the issue raised by the

petitioner herein has been laid down by the Court. Therefore, it cannot

be followed to support the contention of the petitioner. There is prima

facie ample evidence in the form of statement of seizing officer and

Panchnama prepared by him on the spot in the presence of the

petitioner to the effect that seized substance was cannabis, a

contraband. FSL report is not a substantive piece of evidence but a

corroborative evidence. A presumption prescribed under Sections 35

& 54 of the NDPS Act is also available in favour of the prosecution. It

is not the case where the FSL has reported that the seized substance

was not a contraband. FSL report is still awaited, therefore, at this

stage, non-availability of such report cannot be a basis for discharge of

the petitioner.

9. Therefore, looking to the sufficient prima facie evidence

available on record, I do not find any substance in the petition and the

same is dismissed accordingly.

(Virender Singh) JUDGE

Loretta

LORET Digitally signed by LORETTA RAJ DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=GOVERNMENT, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=85c75876e823e0e4602adf6fcfd32

TA RAJ e2525ab2c079b2aa410090e005acf988e15, serialNumber=218ae7f0c71ab365e612a5c7 1756013cb1617818dc23666426fab63fad45 fcd7, cn=LORETTA RAJ Date: 2021.07.02 18:06:54 +05'30'