Madhya Pradesh High Court

Jitendra Batham vs The State Of Madhya Pradesh on 13 July, 2022

Author: Gurpal Singh Ahluwalia

                         1

    IN THE HIGH COURT OF MADHYA PRADESH
                 AT GWALIOR

                     BEFORE

HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA

             ON THE 13th OF JULY, 2022

       CRIMINAL REVISION NO. 1222 of 2022

 Between:-

 JITENDRA BATHAM S/O SHRI
 GHANSHYAM BATHAM, AGE 31
 YEARS, R/O WARD NO. 19,
 NEELNAGAR CHAURAHA, PURANI
 SHIVPURI, DISTRICT SHIVPURI
 (MADHYA PRADESH)

                                         ........APPLICANT

 (BY SHRI B.K. SHARMA - ADVOCATE)

 AND

 THE STATE OF MADHYA PRADESH
 THROUGH     POLICE   STATION
 KOLARAS, DISTRICT SHIPVURI
 (MADHYA PRADESH)
                                    ........RESPONDENT

 (BY SMT. ANJALI GYANANI - PUBLIC PROSECUTOR)


       CRIMINAL REVISION NO. 1236 of 2022

 Between:-

 RAMU   CHIDAR  S/O  SHRI
 MANARAM CHIDAR, AGED 42
                                            2

       YEARS (WRONGLY MENTIONED
       AS 35 YEARS IN THE JUDGMENT &
       ORDER     IMPUGNED     HEREIN),
       OCCUPATION           LABOURER,
       RESIDENT OF COURT ROAD,
       KOLARAS,     POLICE    STATION
       KOLARAS, DISTRICT SHIVPURI
       (MADHYA PRADESH)

                                                                ........APPLICANT

       (BY SHRI A.S. RATHORE - ADVOCATE)

       AND

       THE STATE OF MADHYA PRADESH
       THROUGH THE STATION HOUSE
       OFFICER,   POLICE    STATION
       KOLARAS, DISTRICT SHIPVURI
       (MADHYA PRADESH)
                                                             ........RESPONDENT

        (BY SMT. ANJALI GYANANI - PUBLIC PROSECUTOR)
----------------------------------------------------------------------------------------
       This petition coming on for hearing this day, the Court passed the
following:
                                       ORDER

By this common order, Criminal Revision Nos. 1222/2022 and 1236/2022 shall be decided.

2. Both the criminal revisions under Sections 397, 401 of CrPC have been filed against the judgment dated 16.03.2022 passed by 4th Additional Sessions Judge, District Shivpuri in Criminal Appeal No.2/2022 (Jitendra Batham Vs. State) and Criminal Appeal No.7/2022 (Ramu Chidar Vs. State) thereby affirming the judgment and sentence dated 30.12.2021 passed by JMFC, Kolaras, District Shivpuri in Criminal

Case No.1576/2015, by which the applicants have been convicted under Section 8/20 of NDPS Act and have been sentenced to undergo rigorous imprisonment of one year and a fine of Rs.10,000/- with default rigorous imprisonment of two months.

3. The necessary facts for disposal of present revisions in short are that an information was received from an informant that the applicants are standing near Lal Kothi, Jagatpur, Gumthi, along with ganja for the purpose of selling the same and the information was recorded in Rojnamcha Sanha No.177 dated 04.09.2014 and Constable Heera Singh was sent for bringing Panchan and electronic weighing machine. The said constable came back along with panch witnesses and weighing machine. The information was given to the SDO(P), Kolaras vide Dispatch No.1719 dated 04.09.2014 which was served in the office of SDO(P), Kolaras. A team was constituted. Team left for the spot along with the investigation kit. They met with two suspicious persons. They disclosed their names as Ramu Chidar and Jitendra Batham. Search panchnama was prepared. Notice under Section 50 of NDPS Act was given. Police party gave search of itself to the applicants. The applicants were searched and it was found that the applicant Ramu Chidar was carrying a polythene bag in his hand, whereas Jitendra was also carrying a polythene bag in his hand, which were containing wet article like ganja. Seizure memo was prepared. Identification of the contraband was done and identification memo was prepared. Seized ganja was weighed and weighment panchnama was prepared. 700 grams of ganja was seized from the possession of applicant Ramu Chidar and 400 grams of ganja was seized from the possession of applicant Jitendra Batham. Two different samples of 50 grams each were prepared which were marked as A-1, A-2 and B-1, B-2 and remaining 600 grams and 300 grams of ganja

were sealed in a separate bag. The applicants could not produce any license to sell the ganja. Since the act of the applicants was found to be punishable under Section 8/20 of NDPS Act, therefore, they were arrested and their arrest memo were prepared.

4. After completing the investigation, the police filed the charge- sheet. Charge under Section 8/20 of NDPS Act was framed.

5. The applicants abjured their guilt and pleaded not guilty.

6. The prosecution in order to prove its case examined Chaua (PW-1), Sindhiya (PW-2), S.I. Ramendra Bhaskar (PW-3), Constable Vipin Bhadoriya (PW-4), ASI Harishankar Sharma (PW-5), S.I. Ramendra Singh Chauhan (PW-6), Head Constable Mahendra Singh Rathore (PW-

7), Neeraj Jain (PW-8), Constable Balwant Pal (PW-9), Constable Umesh Singh Sengar (PW-10), Dy. Superintendent of Police Kailash Babu Arya (PW-11) and Inspector Sunil Shrivastava (PW-12).

7. The applicants did not examine any witness in their defence.

8. The Trial Court by judgment dated 30.12.2021 passed in Criminal Case No.1576/2015 held that the applicants are guilty of committing offence under Section 8/20 of NDPS Act and, accordingly, they were sentenced to undergo rigorous imprisonment of one year and a fine of Rs.10,000/- with default rigorous imprisonment of two months.

9. Being aggrieved by the judgment and sentence passed by the Trial Court, the applicants preferred a criminal appeal, which too has been dismissed by judgment dated 16.03.2022 passed by 4th Additional Sessions Judge, Shivpuri.

10. Challenging the judgment and sentence passed by the Court below, it is submitted by the counsel for the applicants that the police has failed to prove the seizure of ganja beyond reasonable doubt as the independent witnesses have turned hostile. 700 grams of ganja was seized from the

possession of the applicant Ramu Chidar and 400 grams of ganja was seized from the possession of the applicant Jitendra Batham and, therefore, it is clear that small quantity of ganja was seized individually from the possession of the applicants, but in order to make it more than a small quantity of ganja, the police has claimed that from the joint possession of the applicants, 1 kg and 100 grams of ganja was seized.

11. Per contra, the revisions are vehemently opposed by the counsel for the State. It is submitted that the Court below has given a concurrent findings of facts. Even an erroneous finding cannot be corrected in exercise of revisional power. No perversity could be pointed out by the counsel for the applicants.

12. Heard the learned counsel for the parties.

13. According to the prosecution case, both the applicants were carrying a polythene in their hands, in which 700 grams and 400 grams of ganja were found respectively. Thus, it is not a case of body search of the applicants. The seized ganja was produced in the Court and on opening of the said bags, the Court found that it was containing grass like dry leaves of black color. As per the seizure memo, the seized contraband was wet. As per the FSL Ex. P-32, samples were carrying greenish brownish color of seeds, leaves with flowering tops. Thus, if the ganja which was seen in the Court is considered in the light of the FSL report Ex. P-32 as well as seizure memo Ex. P-4 and Ex. P-5, then it is clear that ganja was seized from the possession of the applicants.

14. So far as the fact that the independent witnesses have turned hostile is concerned, it is suffice to mention that the prosecution witnesses cannot be disbelieved on the ground that they are police personnel. It is well established principle of law that the scope of jurisdiction under Section 397, 401 of CrPC is to set right the patent

defect or a jurisdictional error. The finding of facts can be reversed only if they are perverse and contrary to record. The revisional jurisdiction of the Court under Section 397, 401 of CrPC is very limited. Merely because another view was possible would not be sufficient to disturb the concurrent finding of fact recorded by the Courts below. The Supreme Court in the case of Bir Singh vs. Mukesh Kumar reported in (2019) 4 SCC 197 has held as under:

"16. It is well settled that in exercise of revisional jurisdiction under Section 482 of the Criminal Procedure Code, the High Court does not, in the absence of perversity, upset concurrent factual findings. It is not for the Revisional Court to reanalyse and re-interpret the evidence on record.

17. As held by this Court in Southern Sales & Services v. Sauermilch Design and Handels GmbH Southern Sales & Services v. Sauermilch Design and Handels GmbH , (2008) 14 SCC 457], it is a wellestablished principle of law that the Revisional Court will not interfere even if a wrong order is passed by a court having jurisdiction, in the absence of a jurisdictional error. The answer to the first question is therefore, in the negative."

15. As already pointed out, no perversity could be pointed out by the counsel for the applicants. Under these circumstances, the concurrent findings of facts recorded by both the Courts below are hereby affirmed.

16. So far as the question of sentence is concerned, 700 grams and 400 grams of ganja was seized from the possession of the applicants Ramu Chidar and Jitendra Batham respectively. Under the facts and circumstances of the case, this Court is of the considered opinion that the sentence of one year rigorous imprisonment and a fine of Rs.10,000/-

awarded by the Courts below does not warrant any interference.

17. Ex consequenti, judgment dated 16.03.2022 passed by 4th Additional Sessions Judge, District Shivpuri and judgment and sentence dated 30.12.2021 passed by JMFC, Kolaras, District Shivpuri are hereby affirmed.