Dhuralal vs Union Of India Thru.Narcotics ...
2022 Latest Caselaw 12233 MP

                                                          1

                                IN THE HIGH COURT OF MADHYA PRADESH
                                                     AT INDORE
                                                       BEFORE
                                           HON'BLE SHRI JUSTICE ANIL VERMA

                                            ON THE 14th OF SEPTEMBER, 2022

                                       CRIMINAL APPEAL No. 1447 of 2016

                          BETWEEN:-
                          DHURALAL S/O SOJI BANJARA,
                          AGED ABOUT 55 YEARS, R/O
                          VILLAGE CHIKALI P.S.RAMPURA,
                          TEHSIL   MANASA,     DISTRICT
                          NEEMUCH (MADHYA PRADESH)
                                                                           .....APPELLANT
                          (MS. GEETANJALI CHAURASIA, LEARNED COUNSEL FOR THE
                          APPELLANT)

                          AND
                          UNION   OF  INDIA THROUGHT
                          NARCOTICS CONTROL BUREAU,
                          INDORE THROUGH VIMAL DHAKA,
                          INFORMATION         OFFICER,
                          NARCOTICS CONTROL BUREAU,
                          ZONAL UNIT, INDORE (MADHYA
                          PRADESH)
                                                                          .....RESPONDENT
                          (MR. MANOJ KUMAR SONI, LEARNED COUNSEL APPEARING ON
                          BEHALF OF THE RESPONDENT)

                                This appeal coming on for hearing this day, the court passed
                          the following:
                                                   JUDGMENT

Signature Not Verified This appeal has been preferred against the impugned Signed by: TEJPRAKASH VYAS Signing time: 9/15/2022 5:38:23 PM

judgment dated 14/11/2016 passed in Special Case No.15/2014 by Special Judge (NDPS Act), Neemuch, whereby the appellant has been convicted for commission of offence punishable under Section 8/18(B) of the Narcotics Drugs and Psychotropic Substances Act, 1985 (in short "NDPS Act") and sentenced him to undergo 10 years rigorous imprisonment with fine of Rs.1 Lac with default stipulation of 01 year RI.

02- The prosecution story in brief is that on 29/01/2014 at about 10:00 PM, the NCB officials got a discrete information that a person i.e. present appellant Dhuralal along with co-accused persons are illegally transporting the opium and on 30/01/2014 he will meet his associates in front of the Railway Station, Neemuch and thereafter, they will travel together by Bhopal-Jaipur Train. Act upon the said information, the NCB officials along with team reached at Railway Station, Neemuch and at about 01:00 AM they intercepted co-accused persons namely Leelabai and Suganabai along with present appellant Dhuralal. They were apprised of their legal right under which they can require presence of a Gazetted Officer or a Magistrate for the purpose search. However, they declined to the right. Accordingly, with their consents only the bag of the appellant Dhuralal was searched and 05 Kilogram opium was recovered from his possession. The contraband was duly seized and two samples of 25 grams each were drawn. One of the sample was

Signature Not Verified forwarded to the FSL. The corresponding report indicated that Signed by: TEJPRAKASH VYAS Signing time: 9/15/2022 5:38:23 PM

sample contains opium.

03- After completion of the investigation, charge sheet was filed and the trial Court had framed charges under Section 8/18(B) of the NDPS Act against the present appellant and also framed charges against the co-accused Leelabai and Suganabai for the offence under Section 8/29 and 18(B) of the NDPS Act. The appellant and co-accused persons absurd their guilt by denying the charges and pleaded their false implication. To bring home the charges, the prosecution had examined as many as ten prosecution witnesses including the Investigating Officer and Panchnama witnesses. No evidence was lead in defence. Upon a critical appreciation of evidence available on record, the learned trial Court has acquitted the co-accused Leelabai and Suganabai from all the charges but for the reasons assigned in the impugned judgment, proceeded to hold the appellant guilty of the offence charged with and sentenced him as indicated herein above.

04- Learned counsel for the appellant contended that the judgment passed by the Court below is neither legal nor correct. The trial Court was wrong in believing the prosecution witnesses and discarding the defence version and also drawn unwarranted inferences. Learned trial Court had not appreciated the evidence properly and had also not properly considered the documents available on record. The trial Court had ignored the material

Signature Not Verified contradictions and omissions in the statements of the prosecution Signed by: TEJPRAKASH VYAS Signing time: 9/15/2022 5:38:23 PM

witnesses. Therefore, the conviction of the appellant is bad in law. Mandatory provisions as provided under Section 42(2), 50, 52-A and 57 of the NDPS Act are not duly complied. Hence, he prays that the appeal be allowed and the impugned judgment passed by the trial Court be set aside.

05- Per contra, learned counsel for the NCB prays for rejection of the appeal by submitting that the reasoning and findings given by the Court below being based upon material on record are not liable to be interfered with and appeal deserves to be dismissed. 06- Counsel for both the parties are heard at length and perused the impugned judgment as well as the entire record. 07- Detecting Officer Ashish Chakrvarty (PW-3) deposed in his statement that after receiving the information as to illicit transportation of the opium by the appellant Dhuralal, he has not only recorded the same in Rojnamcha (Ex.-P/17), but has also communicated the same to the Superintendent Dhananjay Som (PW-4). Dhananjay Som (PW-4) also corroborated the same fact that Ashish Chakrvarty had informed him by Rojnamcha (Ex.-P/17) and he had appointed Rajesh Solanki as a Seizure Officer and also constituted a preventive team by including Deepak Rathi, R. P. Yadav, Vimal Dhaka, Praveen Kunderiya and Kumari Farhad. 08- Rajesh Solanki (PW-5) stated that he reached with the preventive team at about 11:00 PM at Railway Station and given

Signature Not Verified notice (Ex.-P/1 and P/14) to Toofan Singh and Suresh for becoming Signed by: TEJPRAKASH VYAS Signing time: 9/15/2022 5:38:23 PM

independent witnesses regarding seizure of illicit opium and they have given their consent (Ex.-P/2 and P/15). Thereafter, he interrogated the suspected person, who disclosed his name as Dhuralal. Dhuralal admits that he has a bag which contained some illicit opium. Thereafter, the appellant was apprised of his legal right under which he can require presence of a Gazetted Officer or a Magistrate for the purpose of search through notice (Ex.-P/3). However, he denied to exercise the power. Thereafter, his bag was searched, in which total quantity of 05 Kilogram Opium was found. Contraband was duly seized and two samples of 25 grams each were drawn and they have sealed the same on the spot. He gave a notice (Ex.-P/30) to the appellant under Section 67 of the NDPS Act and recorded his statement (Ex.-P/33).

09- While placing reliance on decision of a coordinate Bench of this Court in the case of Harish Vs. State of M.P. reported in 2010(1) MPHT 90, learned counsel for the appellant has submitted that the conviction based on the sole testimony of the detecting officer was not sustainable particularly in view of the statements of the independent witnesses that their signatures on the corresponding documents were obtained at the Police Station. 10- It is true that none of the Panch witnesses namely Toofan Singh (PW-1) and Suresh (PW-2) also did not corroborated the fact that he was summoned to weight the contraband at the spot but this

Signature Not Verified fact, by itself, would not make the prosecution case relating to Signed by: TEJPRAKASH VYAS Signing time: 9/15/2022 5:38:23 PM

seizure of huge quantity of opium less acceptable, if otherwise the Court is satisfied from the material on record and from the evidence of the seizing authority that such seizure was genuinely made (See: P.P. Beeran Vs. State of Kerala reported in (2001) 9SCC 571 and P.P. Fathima Vs. State of Kerala reported in (2003) 8 SCC 726). Further, the offence does not affect any private individual but the society at large and as observed by the apex Court in State of Punjab Vs. Baldev Singh reported in 1999 SC 2378, the social malady of drug abuse has already acquired the dimensions of an epidemic.

11- It is noteworthy to mention here that contraband was kept in a bag, which was carried by the appellant. As per the Investigating Officer Rajesh Solanki (PW-5) he was specifically informed of his right of being searched by a Gazetted Officer or by a Magistrate but he denied to avail the same right and consented to be searched by the NCB party itself. Therefore, it is a complete compliance of Section 50 of the 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 by him. 12- The evidence on record clearly proves that the search and seizure of the contraband were effected only after complying with the requirments of Section 42(2) of the NPDS Act. The contention that for want of compliance with the mandatory provision of

Signature Not Verified Section 50 of the NDPS Act, the search was vitiated, is not Signed by: TEJPRAKASH VYAS Signing time: 9/15/2022 5:38:23 PM

acceptable as the opium was allegedly recovered at a public place from the bag of the appellant. For this, reference may be made to the decision of the apex Court in the case of State of Haryana Vs. Jarnail Singh reported in (2004) 5 SCC 188 that was allowed in Union of India Vs. Major Singh reported in (2006) 9 SCC 170. As pointed out already, the chemical analyst's report proved that the article forwarded for examination was found opium only. 13- The evidence on record clearly proves that the search and seizure of the contraband were effected only after complying with the requirements of Section 42(2) of the Act. Further, as explained by the apex Court in Karnail Singh Vs. State of Haryana reported in (2009) 8 SCC 539, even the non-compliance with the said provision may not vitiate the trial if it does not cause any prejudice to the accused. The contention that for want of compliance with the mandatory provision of Section 50 of the NDPS Act, the search was vitiated, is not acceptable as the opium was allegedly recovered at a public place from a bag being carried by the appellant. (State of H.P. Vs. Pawan Kumar reported in AIR 2005 SC 2265 followed). In this case, while explaining the malefic drug abuse, the apex Court has struck a note of caution that drug traffickers should not go scot-free on technical pleas.

14- As pointed out already, the chemical analyst's report proved that the article forwarded for examination was opium only.

Signature Not Verified Moreover, the appellant did not discharge the onus of proof to rebut Signed by: TEJPRAKASH VYAS Signing time: 9/15/2022 5:38:23 PM

the presumption envisaged under Section 54 of the Act. 15- In the face of overwhelming incriminating evidence on record and a well settled position of law on the point of conscious possession, this Court is of the considered opinion that the learned trial Court did not commit any illegality in convicting the appellant for the offence charged with. Accordingly, the conviction in question deserves to be maintained. Since the minimum prescribed custodial and fine sentences have been awarded to the appellant, no interference therewith would be called for. 16- Consequently, the appeal stands dismissed and the impugned judgment of conviction and corresponding sentence passed by the trial Court is hereby maintained. The order of learned trial Court regarding disposal of the seized property is also hereby confirmed. 17- Let a copy of this judgment be sent to the concerned trial Court along with record for information and necessary compliance.

Certified copy as per rules.

(ANIL VERMA) J U D G E Tej

Signature Not Verified Signed by: TEJPRAKASH VYAS Signing time: 9/15/2022 5:38:23 PM