Heera Pratap Singh vs The State Of Madhya Pradesh
2022 Latest Caselaw 9267 MP

                                                              Cr.A. No.1388/2010
                                                 1

      IN THE HIGH COURT OF MADHYA PRADESH AT
                     JABALPUR

    BEFORE HON'BLE SMT. JUSTICE NANDITA DUBEY

                CRIMINAL APPEAL No. 1388 OF 2010

Between:-

         HEERA PRATAP SINGH S/O BADRI PRASAD SINGH ,
         AGED ABOUT 36 YEARS, VILL. DEORI PS.
         JAISINGHNAGAR,   DISTT. SHAHDOL (MADHYA
         PRADESH)

                                                                  ....APPELLANT

         (By Ms. Manju Khatri, Advocate Amicus Curiae )

         AND

         THE STATE OF MADHYA PRADESH TH. STATION
         HOUSE OFFICER PS. JAISINGHNAGAR, DISTT.
         SHAHDOL (MADHYA PRADESH)

                                                           .......RESPONDENTS


         (By Ms. Priyanka Mishra, Govt. Advocate with Shri Rahul
         Tripathi, Panel Lawyer )


         Arguments heard on              : 17.02.2022
         Order delivered on                11.07.2022

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                                               Cr.A. No.1388/2010
                                    2

                           JUDGMENT

This criminal appeal has been filed by the appellant being aggrieved by the conviction and sentence dated 28.04.20210 passed by Special Judge (NDPS Act) Shahdol (M.P.) in Special Case No. 13/2006, whereby the appellant has been found guilty for the offence punishable under Section 20(2)(C) of NDPS Act and sentenced to undergo Rigorous Imprisonment for ten years with fine of Rs.1,00,000/- with default stipulation.

2. As per prosecution, on 24.05.2006, at around 3 P.M., on receiving source information that one Ayodhya Prasad Dwivedi, resident of Devri has kept contraband matter in large quantity in his house for the purpose of selling, the information was reduced to wring and forwarded to the superior office in terms of requirement of Section 42 of the NDPS Act. A team was thereafter constituted. Two persons namely, Ankit Dwivedi and Bodhram Tiwari were asked to accompany as witnesses with the team. Thereafter, raid was conducted at the house Ayodhya Prasad Dwivedi and 62 kgs of contraband seized. Thereafter, further information was received that the present appellant also sells ganja from his house. On the basis of this information, 'Mukhbir Suchana Panchnama' at 7 P.M. was prepared in presence of witnesses Ankit Dwivedi and Bodhram Tiwari. After following Cr.A. No.1388/2010

the mandatory requirements under the provisions of NDPS Act, the house of Heera Pratap Singh (present appellant) was searched, during which, two bags of ganja (29 kgs each) were found. Four sample packets of 25 grams each were taken and sealed alongwith the bags. Panchnama to that effect was prepared which bore the signature of appellant and other persons. The seized bags from the two accused persons namely Ayodhya Prasad and Heera Pratap Singh and five sample packets were deposited in the malkhana on same day vide document marked as Ex. P 21-C. The appellant was arrested on the spot.

3. The prosecution examined as many as 9 witnesses. Apart from this, documents Ex.P-1 to P-37 were also marked in evidence.

4. After considering the relevant evidence on record, the Special Judge, Shahdol vide impugned judgment, found the case was established against the appellant herein and convicted and sentenced him as stated herein above.

5. The conviction and sentence has been challenged on the same ground as raised before the trial Court that mandatory provision has not been followed and prosecution has failed to establish that the sample that were dispatched to the FSL, were actually drawn from the seized material.

Cr.A. No.1388/2010

6. Per contra, learned counsel appearing for the State has supported the impugned judgment. He has contended that the learned trial Court on elaborate and proper appreciation of evidence has recorded the conviction, therefore, the appeal has no merits and deserves to be dismissed.

7. Heard the learned counsel for the parties and perused the record.

8. In this case, all the seizure and panchnama witnesses have turned hostile, so the panchnamas are nothing but a document written by the police officer concerned.

9. In the trial, it is necessary for the prosecution to establish by cogent evidence that the quantity of material seized from the possession of the accused was actually contraband. The best evidence would be the production of seized material and FSL report.

10. The prosecution has relied on the undated letter written by the Superintendent of Police, Shahdol to the Director, State Forensic Laboratory, Sagar, marked as Ex.P-22-C to prove that 2 sample packets marked as 1-A and A-2 with seal impression have been sent to FSL, Sagar. Ex. P-25 is the receipt from FSL, Cr.A. No.1388/2010

Sagar confirming that two sealed sample packets marked as 1-A and 2-A were received on 27.05.2006 through Constable Surendra Kushwaha. Surendra Kushwaha (P.W.-8) in his evidence has also stated that he took only two samples to Sagar on 26.05.2006 and depositing the same on 27.05.2006. Interestingly, Rojnamcha Sana (daily diary) recording the departure on 26.05.2006 and arrival on 30.05.2006 of Surendra Kushwaha (P.W.-8) and marked as Ex. P23-C shows 5 samples seized in Crime Nos. 251/06 and 252/2006, sent together to FSL Sagar on 26.05.2006 and deposited on 27.05.2006. There is no explanation by the prosecution regarding this discrepancy.

11. Para 14 of the evidence of Shri D.P. Tiwari, I.O. (P.W.-9) shows that on the same day, two raids were conducted, one at the house of Ayodhya Prasad and 62 kgs of contraband was seized and sample packets were taken and marked as 1-A and 2-A. Para 12 of his evidence shows that the sample packets taken from the contraband seized from appellant's house were not marked or signed by him or the appellant or the witnesses for that matter. This statement also finds corroboration from Japti Panchnama marked as Ex.P-15, which does not mention sample packets being marked or signed.

Cr.A. No.1388/2010

12. There is a major lacuna in the judgment of the trial Court as no report from FSL, Sagar was produced which may certify that the sample packets marked as 1-A and 2-A or the other three packets as mentioned in Ex. P-23-C and sent to FSL contained ganja. The prosecution has not only failed to correlate the identity between the seized sample from the appellant and the one that was sent for testing to FSL. Under the circumstances, mere producing the report that alleged contraband was seized from the appellant and deposited in malkhana cannot be a conclusive proof by itself. The samples seized and tested have to be correlated.

13. In the case of Mohanlal Vs. State of Punjab (2018) 17 SCC 627 the Supreme Court held thus :-

12. Unlike the general principle of criminal jurisprudence that an accused is presumed innocent unless proved guilty, the NDPS Act carries a reverse burden on proof under Sections 35 and 54. But that cannot be understood to mean that the moment an allegation is made and the FIR recites compliance with statutory procedures leading to recovery, the burden of proof from the very inception of the prosecution shifts to the accused, without the prosecution having to establish or prove anything more. The presumption is rebuttable. Section 35(2) provides that a fact can be said to have been proved if it is established beyond reasonable doubt and not on preponderance of probability. The stringent Cr.A. No.1388/2010

provisions of the NDPS Act, such as Section 37, the minimum sentence if ten years, absence of any provision for remission, do not dispense with the requirement of the prosecution to establish a prima facie case beyond reasonable doubt after investigation, only after which the burden of proof shall shift to the accused. The case of prosecution cannot be allowed to rest on a preponderance of probabilities.

14. In the case of Noor Aga Vs. State of Punjab and another(2008) 16 SCC 417, the Supreme Court held thus :-

58. Sections 35and54 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied. An initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift. Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the prosecution. Whereas the standard of proof required to prove the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability on the accused. If the prosecution fails to prove the foundational facts so as to attract the rigours of Section 35 of the Act, the actus reus which is possession of contraband by the accused cannot be said to have been established.

Cr.A. No.1388/2010

59. With a view to bring within its purview the requirements of Section 54 of the Act, element of possession of the contraband was essential so as to shift the burden on the accused. The provisions being exceptions to the general rule, the generality thereof would continue to be operative, namely, the element of possession will have to be proved beyond reasonable doubt.

15. In view of the settled law as aforesaid and taking the cumulative effect of all the circumstances, it appears that the material placed on record by the prosecution does not bring home the charges beyond reasonable doubt. I am of the view that based on the martial on record, it would be unsafe to convict the appellant. He is, therefore, entitled the benefit of doubt.

16. This appeal is allowed. The appellant is in jail, he be released forthwith, if not required in any other case.

(Nandita Dubey) Judge SMT. GEETHA NAIR gn 2022.07.12 15:55:05 +05'30'