Madhya Pradesh High Court

Preeti Choudhary vs The State Of Madhya Pradesh on 12 July, 2022

Author: Virender Singh

CRA-5283-2018, CRA-5759-2018, CRA-5957-2018 & CRA-6064-2018

IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
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BEFORE
HON'BLE SHRI JUSTICE VIRENDER SINGH
ON THE 12th JULY, 2022

CRIMINAL APPEAL No. 5283 of 2018
Between:-
Ashok Sen, son of Shri Kishori Sen
aged about 30 years, Occupation : Labour
Residents of Village Hindoriya,
District Damoh (M.P.) ... Appellant
AND
State of M.P. through SHO of
P.S. Hanumantal Distt. Jabalpur (M.P.) ... Respondent

Shri Madan Singh, counsel for the appellant.
Shri C.P. Singh Parmar, Public Prosecutor for the State.
CRIMINAL APPEAL No. 5759 of 2018
Between:-
Mohammad Mahbood Ansari (Mohammad
Mahboob Ansari has been written before
trial Court's judgment), son of Maksood Ansari, aged
about 20 years, R/o Raza Chowk Near Makka Masjid,
P.S. Hanumantal, Distt. Jabalpur (M.P.) ...Appellant

AND
State of M.P. through SHO of
P.S. Hanumantal Distt. Jabalpur (M.P.) ... Respondent

Shri Dinesh Kumar Mishra, counsel for the appellant.
Shri C.P. Singh Parmar, Public Prosecutor for the State.

Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 7/13/2022
5:14:30 PM
2

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CRIMINAL APPEAL No. 5957 of 2018
Between:-
Preeti Choudhary, wife of Harish Choudhary
aged about 21 years, Occupation : Housework
R/o Adhartal, Near Shankar Hotel,
District Jabalpur (M.P.) ...Appellant
AND
State of M.P. through SHO of
P.S. Hanumantal Distt. Jabalpur (M.P.) ... Respondent

Shri Ashok Shah, counsel for the appellant.
Shri C.P. Singh Parmar, Public Prosecutor for the State.
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and
CRIMINAL APPEAL No. 6064 of 2018
Between:-
Ku. Shikha Barman, D/o Shadeep Barman
aged about 23 years, Occupation : Labour
R/o H.No. 397, Cherital, Chandalbhata, Lane No.4
Rajiv Gandhi Ward, Distt. Jabalpur (M.P.)
As per FIR, the name of appellant has been mentioned :
"Seema Choudhari, D/o Late Mohan Lal Choudhary
aged about 17 years, R/o Adharal, Power House
Near Shankar Hotel, Adhartal, Jabalpur"
As per impugned judgment, the name of appellant is :
"Shikha @ Seema Choudhari, aged about 22 years
D/o Sahdev Barman, Cherital, Chandalabhata
Gali No.4, Gohalpur, Jabalpur M.P" ...Appellant
AND
State of M.P. through SHO of
P.S. Hanumantal Distt. Jabalpur (M.P.) ... Respondent
Shri Deeepak Tiwari, counsel for the appellant.
Shri C.P. Singh Parmar, Public Prosecutor for the State.
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Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 7/13/2022
5:14:30 PM
3

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JUDGMENT

All the four appellants have preferred their distinctive appeals against their convictions under Section 8/20(b)(ii)(C) (wrongly mentioned as 8/20(ch)(nks)(b) in the impugned judgment) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act') and sentence of 10 years' R.I. with fine of Rs.1 lakh and in default of payment of fine, to suffer 5 months' R.I, recorded vide judgment and order dated 09.07.2018 passed by Special Judge (NDPS), Jabalpur in Special Case No.24/2016. Therefore, they are heard together and are being disposed off by this common judgment.

2. Succinctly stated facts of the case relevant to the present appeals are that on 04.03.2016, Sub Inspector Bhawna Tiwari (PW5) posted at Police Station Hanumantal received a discrete information that three males and two females are sitting in a Maruti WagonR car in order to sell cannabis (Ganja) to someone. She recorded the information in Roznamcha, called two independent witnesses, intimated her senior officer CSP Gohalpur, prepared panchnama of not obtaining for search warrant due to paucity of time and to avoid abscondance of crooks and proceeded towards the spot along with the force, independent witnesses and with all paraphernalia. On the spot i.e. Footatal Maidan, Hanumantal, she noticed a Maruti Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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WagonR bearing Registration No.CG-10-F-5366 wherein three lads and two ladies were sitting. The force surrounded them, intimated them regarding the information received about presence of contraband in their possession as well as about their right of search to be taken in presence of a nearest Magistrate or a Gazetted Officer. After obtaining their consent to be searched by herself, S.I. Bhawna Tiwari first gave her own search and search of her police team along with search of independent witnesses and thereafter, searched them personally. Nothing was found in their personal search. Thereafter, she searched the car and found one bag kept near to the front passenger seat and two bags kept behind rear passenger seat. On search, it was found that all the bags were containing 'Ganja' as she could identify by their looks and strong smell. Following due process, the contraband 'Ganja' was weighed and sealed on the spot. Total quantity was found 38.200 Kgs. Three sample of 250 grams each were taken out. The car was also seized. The appellants sitting inside the car, were apprehended. All the articles along with the accused persons were brought to the Police Station Hanumantal, where Crime No.141/2016 for the offence under Section 8/20 of NDPS Act was registered. All the proceedings taken on and off the spot as well as steps taken at pre and post recovery were documented.

Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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3. Following documents were prepared during the entire process of alleged search and seizure of the contraband :

                          Sl.No.      Exhibit   Particulars
                          (i)         Ex.P/1    Panchnama regarding apprise of                          discrete

information to independent witnesses

(ii) Ex.P/2 Panchnama regarding not obtaining for search warrant due to paucity of time

(iii) Ex.P/3 Panchnama as to consent of independent witnesses for conducting raid along with police force

(iv) Ex.P/4 Panchnama as to availability of accused along with car at the spot

(v) Ex.P/5 Panchnama as to right of accused to be searched before Magistrate or Gazetted Officer

(vi) Ex.P/6 Memo as to consent of accused persons for search

(vii) Ex.P/7 Panchnama regarding obtaining consent for search of vehicle

(viii) Ex.P/8 Panchnama regarding search of police force

(ix) Ex.P/9 Panchnama as to search of Maruti Wagon R car

(x) Ex.P/10 Panchnama as to recovery of contraband

(xi) Ex.P/11 Panchnama as to identification of the contraband

(xii) Ex.P/12 Panchnama as to verification of the weighing equipment

(xiii) Ex.P/13 Panchnama as to weighing of the contraband

(xiv) Ex.P/14 Panchnama as to collection of sample of the contraband

(xv) Ex.P/15 Panchnama regarding seal of the contraband (xvi) Ex.P/16 Panchnama regarding arrest of the accused (xvii) Ex.P/17 Panchnama as to making of entire contraband homogeneous (xviii) Ex.P/18 Arrest memo of accused Mohd. Mahboob (xix) Ex.P/19 Arrest memo of the accused Ashok Sen Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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Sl.No. (xx) (xxi) (xxii) (xxiii) (xxiv) (xxv) (xxvi) (xxvii) (xxviii) Ex.28 (xxix) (xxx) to (xxxix) (xl) (xli) (xlii) Exhibit Particulars Ex.P/20 Arrest memo of accused Seema Choudhary Ex.P/21 Arrest memo of accused Preeti Choudhary Ex.P/22 Police statement of Manish Soni Ex.P/23 Report regarding credible information of the contraband Ex.P/24 Seizure sheet of the contraband Ex.P/25 Police statement of Constable Sharda Mishra Ex.P/26 Roznamcha entries Ex.P/27 Memo by SP Jabalpur to FSL, Bhopal for opinion Receipt by FSL, Bhopal Ex.P/29 Report of FSL, Bhopal indicating that the samples contained Ganja Ex.P/30 Panchnama regarding the credible information (xxxi) Ex.P./31 to Roznamcha entries Ex.P/39 Ex.P/40 FIR Ex.P/41 Information regarding arrest Ex.P/42 Memo to Special Court by SHO Hanumantal

4. After completion of the investigation and considering that there is sufficient evidence against the appellants, a charge sheet was filed under Section 8/20(b)(ii)(C) of the Act and charges were framed under the same sections.

5. The accused persons abjured the guilt and claimed to be tried. The prosecution examined as many as 7 witnesses including Sub-Inspector Bhawna Tiwari (PW5) whereas the defence produced two witnesses namely Teji Sen and Kamlesh Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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Kumar Sen, brother & nephew of appellant Ashok Sen and examined them. After the trial, the Court held the appellants guilty for the aforesaid offence and sentenced them as stated in para 1 above.

6. All the appellants have preferred their respective appeals almost on identical grounds that since provisions of Sections 42, 50, 52, 55 and 57 of the Act have not been complied with during the process of search and seizure, their convictions are bad in law and against the settled principles of law. It is submitted that since the contradictions and omissions that appeared in the statements of the prosecution witnesses have not been considered, the impugned judgment suffers from perversity. The trial Court erred in not considering the fact that the conduct of the police is biased as they have neither investigated nor taken any action against the owner of the vehicle. Secret information received by the police officer has not been recorded nor copy thereof or the memo prepared in this regard has been sent to the superior official. The contraband was not weighed at the time of seizure but its weight was mentioned in the report of FSL which was received after few days from the date of the incident. This makes the prosecution case doubtful. Roznamcha entries with regard to several actions taken by the police were not produced before the trial Court. The police did not apprise the appellants Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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properly about their right to be searched before a Magistrate or a Gazetted Officer. The documents prepared during search and seizure (Ex.P/1 and P/24) bear thumb impressions of appellant Ashok Sen while he is a literate person and used to sign the documents. During the entire trial, he always signed the court proceedings. During his academics also, he used to sign papers. He was quite a literate and qualified person and there was no need for him to put a thumb impression on any of the documents but the presence of a thumb impression shows that the same was taken by the police under pressure when he refused to sign the documents.

7. Per contra, the ld. Panel Lawyer, while making reference to the incriminating pieces of evidence, contended that the conviction under challenge is fully justified.

8. I have considered the rival contentions of the parties and perused the record.

9. While examined before the trial Court, Seizing Officer Bhawna Tiwari (PW5) deposed on oath that on 04.03.2016 during her tenure as Sub-Inspector at P.S. Hanumantal, she received discrete information that three lads and two ladies are sitting in a WagonR car in their bid to sell cannabis (Ganja) to someone. She entered the information in the daily diary (Roznamcha), asked constable Ramyash Sharma to call independent witnesses and to bring a weighing machine & Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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weights, prepared a report regarding intimation and sent it to the office of C.S.P. Gohalpur through constable Rajkumar. As C.S.P. was not present in the office, he dropped the information and came back. By that time, constable Ramyash came back with two neutral persons viz. Manish Soni and Satish Verma. He also brought with him a weighing machine & weights. She apprised Manish and Satish about the information received and requested them to accompany her and thereafter proceeded towards the spot along with them and other police personnel, where they found three lads and two ladies sitting in a black-colour WagonR. They were taken into custody and were apprised about the information received and also about their right to search before the nearest Magistrate or the Gazetted Officer (Ex.P/5). The appellants gave consent for their search to be taken by the Investigating Officer herself. Their written consent is Ex.P-6. Before taking a search of the suspects, the appellants were given a search of the raiding party (Ex.P/8). No suspected articles were found in possession of the raiding party or the witnesses. Nothing was found in the personal search of the accused persons. Thereafter, she searched the car and found one bag kept near to the front passenger seat and two bags kept back-side of the rear passenger seat. On search, it was found that all the bags were containing 'Ganja' as she could identify by their looks and Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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strong smell. Following due process, the contraband 'Ganja' was weighed and sealed on the spot. The total quantity was found 38.200 Kgs. She opened all three bags, poured the Ganja on a mat, mixed and homogenized it and took out three samples of 250 grams each. She marked the samples as Articles A1, B1 and C1. The car was also seized. The appellants who were sitting inside the car were apprehended. On completion of the usual procedure on the spot, they all came back to the police station and registered FIR (Ex.P/40).

10. Statement of Seizing Officer Bhawna Tiwari (PW5) drew ample support from the statement of Sub-Inspector Harbhajan Singh (PW7) who has investigated the case and prepared Nazri-naksha as per Ex.D/1. There are also statements of Head Constable Dara Singh (PW4) and Constable Deepak Parashar (PW6) to the effect that the contraband was recovered and seized from the spot, and the car and its keys were handed over to him. He kept them in safe custody at the police station and sent the samples to the Forensic Laboratory, Bhopal for chemical analysis through Constable Deepak Parashar. Moreover, constable Manzoor Khan (PW2) posted at P.S. Gohalpur who used to look after receipt/dispatch work in the office of the CSP, also deposed that the information of search and seizure was received in his office and acknowledgement was given as per Ex-P/23. Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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11. I have carefully gone through the statements, particularly the cross-examinations of the witnesses and find nothing which could adversely affect the veracity of these statements, which are otherwise fully corroborated by the documents prepared during the entire proceedings right from reducing the discrete information in writing till the filing of charge sheet and are mentioned in para 3 above. There is nothing on record to doubt these documents prepared during search and seizure and proved by the witnesses during the trial.

12. As pointed out already, the Forensic Science Laboratory report (Ex.P/29) is to the effect that the content of samples sent to it was Ganja or cannabis within the meaning of Section 2(iii)(b) of the Act and the appellants have not challenged this report.

13. The appellants were not able to discharge the onus of proof to rebut the presumption envisaged under Sections 35 and 54 of the Act.

14. In the present case, though the independent witnesses namely Manish Soni (PW1) and Satish Verma (PW3) have not supported the prosecution case this per se does not make the recovery and seizure alleged in this case doubtful. It has been repeatedly held by the Hon'ble Apex Court that the hostility of panch witnesses, by itself, would not make the prosecution case relating to the seizure of a huge quantity of Ganja less Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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acceptable, if otherwise, the Court is satisfied with the material on record and from the evidence of the seizing authority that such seizure was genuinely made (P.P. Fathima v. the State of Kerala (2003) 8 SCC 726, Periyasamy v. State (2014) 6 SCC 59, State of Haryana vs Mai Ram (2008) 8 SCC 292 and Prem Ballab v. State (Delhi Administration) (1977) 1 SCC 173 relied on).

15. The material witnesses, though police personnel, have unequivocally stated about the alleged search and seizure of the contraband. The defence has utterly failed to elicit anything; which could suggest that they had any interest or enmity with the accused/appellants for their false implication. Their evidence appears to be trustworthy and is supported by the documentary evidence on record and in these circumstances, there is no reason to suspect the credibility of these witnesses merely on the ground of they being police personnel. (State of Assam v. Muhim Barkataki (1986) 4 SCC 439, Pramod Kumar v. State (GNCT) of Delhi AIR 2013 SC 3344, Kashmiri Lal v. State of Haryana AIR 2013 SC (Supp) 426 and C. Ronald v. State, U. T. of Andaman and Nicobar Islands AIR 2011 SC (Supp) 673 referred to).

16. The grounds raised by the appellants before this Court regarding non-compliance with provisions of Sections 42, 50, 52, 55 and 57 of NDPS Act and recording the conviction only Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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on the basis of statements of departmental witnesses have been dealt with by the learned Trial Court in paras 16, 17, 20 to 22 and 35 to 61 and citing several authorities of Hon'ble the Supreme Court, the ld. trial Court has rightly held that all these grounds do not make the proceedings taken up by the police during investigation doubtful and are not sufficient to suspect the case of the prosecution and in view of the settled law on the subject, have no adverse impact to doubt the action taken by the police against the appellants. They have no substances, therefore, are not helpful to the appellants to get an acquittal.

17. Plea of alibi has been taken by appellant Ashok Sen. The ld. trial Court has considered and appreciated the evidence available on record in this regard in paras 29 & 30 of the impugned judgment and has rejected the same.

18. I have also gone through the statements of Teji Sen (DW1) and Kamlesh Kumar Sen (DW2) whom Ashok has examined in his defence and who are his real brother and nephew. They both have stated that on 04.03.2016, Ashok had gone with them for shopping with regard to the marriage of Kamlesh scheduled to be solemnized on 07.03.2016 and came back in the evening and had gone to sleep. Teji has further stated that the next morning i.e on 05.03.2016 at about 5 a.m., the police picked up Ashok from home and implicated him in the present case while, according to the seizing officer, at the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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time of the raid, he was sitting in the car with the co-accused persons at 12:15 p.m. on 04.03.2016 and was arrested immediately after the recovery on the same day at 13:20 Hrs. This fact is well corroborated by the documents prepared on the spot. All the documents prepared on the spot bear his thumb impressions which confirm his presence on the spot. Otherwise also, to discard this defence, it is sufficient to observe that no complaint was ever made by these defence witnesses or any other family members when Ashok was picked up by the police illegally. No complaint had ever been made before any authority. There is no evidence that they had ever tried to seek help from anyone in this regard or made any complaint before anyone to expose the action of the police officer. Therefore, this defence is also not helpful to Ashok.

19. Ashok has further tried to escape from the liability stating that he is an educated man while all the documents prepared by the police during the search and seizure bear his thumb impressions. To substantiate his defence, he has produced his Identification Card and Driving Licence (Ex.D/2 and D/3), both bearing his signatures. But, the trial Court has rightly discarded this defence by assigning appropriate reasons in paras 32 and 33 of the impugned judgment that the accused has not challenged his thumb impressions on the documents proved by the prosecution and that at the time of recovery and Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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his arrest, he might have pretended himself to be an illiterate person before the police in order to misguide/deceive the police personnel with intent to take advantage of this situation or to create a defence to be taken at a later stage. But, he forgot to raise this issue immediately after his arrest before any of the competent authorities and has taken this defence first time during the cross-examination of the Seizing Officer. For this reason, such a type of defence cannot be relied upon. Defence of any animosity or ill will of the police officer towards him has not been taken and on this ground also, defence taken by him cannot be believed.

20. It is to further observe that during cross-examination of Seizing Officer Bhawna Tiwari (PW5), appellant Ashok has taken a defence that he had gone to the market with his brother and nephew and had not only purchased the items but had also taken bills for their shopping but neither any such bill has been produced/proved nor any shop-keeper has been examined to substantiate his defence.

21. Appellant Seema Chaudhary has disputed her identity claiming that she is not Seema Chaudhary but is Shikha Barman, but trial Court has rejected her plea observing that in inquiry conducted by the Court, she herself had admitted her name as Seema Chaudhary and that Seema Chaudhary and Shikha Barman are one and the same person and therefore, the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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Court proceeded further treating her as Seema Chaudhary @ Shikha Barman. This order of the trial Court dated 06.09.2016 has never been challenged by the appellant and thus, has attained finality. For this reason, her challenge as to her identity can not be accepted at this stage.

22. True it is that the police have not investigated the involvement of the owner of the vehicle but it is well settled that even if the investigation is defective, it pales into insignificance when ocular testimony is found to be clear, credible and cogent (Dhanraj Singh @ Shera v. State of Punjab (2004) 3 SCC 654 and C. Muniappan v. State of Tamil Nadu (2010) 9 SCC 567 and State of Karnataka v. Suvarnamma (2015) 1 SCC 323 relied on). Further, it would be apt to say that if someone who might have been involved in the crime has not been arrested by the police or has been left out of the clutches of the law for whatsoever reason, it does not give the right to the other accused whose guilt has been well established by producing cogent and reliable evidence.

23. Before this Court also, learned counsels representing the different appellants could not point out any fault or flaw in the statements as well as in the documents prepared during the investigation, therefore, grounds raised by the appellants are not sufficient to reverse the findings of the learned Trial Court. Therefore, none of the contentions raised against the legality Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM

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and propriety of the conviction in question deserves acceptance. The ld. Trial Court has rightly held the appellants guilty of the charges.

24. Having considered the findings and looking to the quantity recovered from the possession of the appellants as also the fact that the offence not only affects an individual but also the society at large and as observed by the Apex Court in the case of State of Punjab v. Baldev Singh AIR 1999 SC 2378, the social malady of drug abuse has already acquired the dimensions of an epidemic, I also do not find any fault in the sentence awarded by the learned trial Court.

25. In view of the above discussion, I do not find any force in these appeals preferred by the distinct appellants. All the appeals have no merits, deserve to be and are dismissed hereby.

(Virender Singh) JUDGE vinod

Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 7/13/2022 5:14:30 PM