Madhya Pradesh High Court
Bhurelal @ Bhura Choudhary vs The State Of Madhya Pradesh on 4 December, 2023
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 4 th OF DECEMBER, 2023
CRIMINAL APPEAL No. 8306 of 2021
BETWEEN:-
MAHENDRA SINGH THAKUR @ PINTU S/O GOVIND
SINGH THAKUR, AGED ABOUT 36 YEARS, OCCUPATION:
LABOUR R/O GRAM BHADARWARA POST SAHSAN P.S.
PATAN DISTT. JABALPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI RAJESH YADAV - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THR. P.S.
GOHALPUR DISTT. JABALPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SMT. VINITA SHARMA - PANEL LAWYER)
CRIMINAL APPEAL No. 8310 of 2021
BETWEEN:-
1. BHURELAL @ BHURA CHOUDHARY S/O
ACHCHHELAL CHOUDHARY, AGED ABOUT 38
YE A R S , OCCUPATION: MOCHI R/O VILLAGE
BHARWARA, P.O.SAHSAN, P.S.PATAN DISTRICT
JABALPUR (MADHYA PRADESH)
2. LAKHAN SINGH LODHI S/O PADAM SINGH LODHI,
AGED ABOUT 54 YEARS, OCCUPATION: LABOUR
R/O GRAM BARHI POST KHAIRI, POLICE STATION
PATAN DISTRICT JABALPUR (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI C. S. PATEL - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH P.S.
Signature Not Verified
Signed by: PRASHANT
SHRIVASTAVA
Signing time: 12/5/2023
5:01:09 PM
2
GOHALPUR, DISTRICT JABALPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SMT. VINITA SHARMA - PANEL LAWYER)
Heard on : 30.11.2023
Pronounced on: 04.12.2023
Both these appeals having been heard and reserved for judgment, by a
common order coming on for pronouncement this day, the court passed the
following:
JUDGMENT
These two appeals have been preferred against a common judgment
passed by Special Judge (NDPS Act), Jabalpur, on 28.12.2021 in Case No.SC
NDPS/06/2016. By that judgment, appellant Mahendra Singh Thakur alias Pintu
of Criminal Appeal No.8306/2021 and appellants Bhurelal alias Bhura
Choudhary as well as Lakhan Singh Lodhi of Criminal Appeal No.8310/2021
were convicted under Section 8/20(b)(ii)(B) of NDPS Act and were sentenced
to R.I. of 3 years with fine amount of Rs.15,000/-, R.I. of 4 years with fine
amount of Rs.20,000/- and R.I. of 2 years with fine amount of Rs.10,000/-
respectively. The appellants were also sentenced to undergo additional R.I. of 3
months, 4 months and 2 months respectively, in case they failed in payment of
fine.
2. Brief facts as narrated by the prosecution are that on 5.12.2015 Sub-
Inspector Bharat Singh, posted at Police Station, Gohalpur, district Jabalpur,
received information from mukhbir that three persons were waiting at bus stand
and they were carrying "Ganja", for the purpose of selling. Shri Bharat Singh
prepared mukhbir information Panchnama; sent a report to CSP, Gohalpur,
about it; summoned two witnesses and also the weighing machine; informed the
witnesses about the mukhbir information and proceeded along with them as well
as the police party for the spot. Appellants were present at the informed place;
they were told about the mukhbir information and also their right to get
searched before a Gazetted Officer. All the three appellants accorded consent
for their search by ASI Bharat Singh and before making this search, the police
party gave its search to the appellants.
3. In the search of appellant Mahendra Singh, five kgs. of "Ganja" was
recovered from him while appellant Bhurelal alias Bhura was found in
possession of 7 kgs. "Ganja" and appellant Lakhan Singh was found in
possession of 2 kgs. "Ganja". Two samples each were drawn from the quantity
recovered from individual appellant and samples as well as the remaining
quantities were sealed independently. The appellants were arrested and brought
to the police station along with the seized contraband which was handed over to
Malkhana Moharrir. FIR at Crime No.907/2015 was registered and the samples
were sent for examination to RFSL, Bhopal; report received therefrom
confirmed that the seized item was "Ganja"; the further investigation was
undertaken and the charge-sheet was filed. After holding the trial, the appellants
were held guilty and were sentenced as aforediscussed.
4 . The grounds raised in Criminal Appeal No.8306/2021 by appellant
Mahendra Singh Thakur are that he has been falsely implicated in this case. It
was ignored by the learned trial court that the prosecution case was not at all
supported by independent witnesses P.W.2 and P.W.3. The learned trial court
also ignored the legal provisions and also the citations quoted by appellant. The
violation of mandatory provisions of Sections 41, 42, 50, 52, 53, 55 and 57 of
NDPS Act was manifest on the record but learned trial court erroneously
ignored it. It could not be proved in which part of body the appellant was
carrying "Ganja". Whitener was used in Ex.P-48 only to conceal important
facts, which would suggest the innocence of appellant. It was established that
every item produced in evidence was bearing crime number and before
registration of crime it was seemingly not possible to mark crime number on
spot when undertaking the proceeding of seizure and putting seal on these
items. Constable P.W.5, who allegedly took the seized articles to RFSL,
Bhopal, turned hostile and did not support the prosecution story. The safe
custody of seized contraband was not proved by prosecution evidence. It is
claimed that ignoring these serious infirmities, the trial court erred in holding the
appellant guilty and passing the sentence against him. It is, therefore, requested
that the appellant be acquitted and the appeal be allowed.
5. In Criminal Appeal No.8310/2021, the appellants have taken more or
less the same grounds as were taken in Criminal Appeal No.8306/2021. The
additional grounds are that a case, which was allegedly of small quantity of
"Ganja", was converted into a case of medium quantity; no witness of locality
was examined; the incident is reported to be of night but spot map did not
reveal the presence of any electricity at the spot. According to P.W.5, he took
whole quantity of 14 kgs. to RFSL, Bhopal, while there was no such quantity
available as the samples were allegedly drawn and sealed separately from the
total quantity of 14 kgs. It is, therefore, prayed that the appeal be allowed and
appellants be acquitted in the case.
6. State has opposed both the appeals on the ground that no interference
is warranted in the finding of conviction and the sentence imposed against the
appellants.
7. All the parties have been heard and the record is perused.
8. In these criminal appeals, the impugned judgment has been assailed on
the ground that the mandatory provisions of NDPS Act have not been complied
with in the case. In the backdrop of this contention, the record of trial court has
been examined meticulously. The record reveals that the contraband was not
recovered from the body of appellants and its seizure was made from the bags,
which they were carrying, therefore compliance of Section 50 of NDPS Act
was not required in this case. Further, the mukhbir soochna Panchnama, Ex.P-
44, was prepared in the case and it was sent to the Office of CSP with letter,
marked as Ex.P-41. Besides this Panchnama, the seizure officer also prepared a
Panchnama for not obtaining the search warrant and that is marked as Ex.P-5.
The reasons have been duly assigned in that Panchnama for not seeking search
warrant. The detailed report under Section 57 of NDPS Act required to be sent
to senior officer is not exhibited in this case but no cross-examination was
undertaken in this regard when seizure officer was under examination.
9 . Having considered these facts, I do not find any violation of
mandatory provisions of NDPS Act in this case. Hence, the impugned judgment
cannot be assailed on these grounds.
10. Another contention on the part of appellants was that the prosecution
case was not supported by independent witnesses, who are examined as P.W.2
and P.W.3. The record reveals that both these witnesses, namely Gulam Rasool
(P.W.2) and Mohd. Ali (P.W.3), have although admitted their signature on
documents, marked as Exs.P-5 to P-37 but they have denied to have witnessed
any proceedings which are mentioned in these documents. The same argument
was raised even before the trial court and citing relevant case laws, the trial
court has rightly observed that in the absence of corroboration from
independent witnesses, it cannot be inferred that the prosecution case is false
and fabricated and the court has to examine the statements of police witnesses
on the same considerations and parameters as are applicable to any other
witness.
11. These criminal appeals have also been argued on the ground that the
seizure officer used whitener on the document, marked as Ex.P-48, only to
conceal important facts but having gone through the document of Ex.P-48, this
contention seems to be groundless. Although the use of whitener is evident on
that document, but the document itself was not of much legal significance. It
was prepared to inform the witnesses about the mukhbir soochna and the
whitener was used on the part where the persons, in whose presence the
Panchnama was prepared, signed the document. Their names are written with
clarity on Panchnama. The possibility is there that the independent witnesses
might have signed at wrong place and to make the things correct, the seizure
officer used whitener. There is no interpolation or any correction in the contents
of Ex.P-48 except the said use of whitener, therefore, no ground of fabricating a
false document is made out here.
12. It has been seriously argued by the counsel for appellants that the
items brought before the court were bearing the crime number, while they were
allegedly seized and sealed on spot and it was not feasible to know the crime
number at the time of seizure and placing seal on seized items. The cross-
examination of seizure officer relating to this discrepancy has been gone
through. He had admitted that all the articles were having crime number marked
thereon but that fact itself is not sufficient to doubt the proceedings of seizure
and placing seal on the articles. It is always possible to put the crime number on
the sealed articles after registration of crime and that is also obvious for the
reason of identification of seized articles because without mentioning the details
of crime number, it would be difficult to identify which article belongs to which
crime number as they all are kept in a common property room. No question was
asked to the seizure officer whether he was marking the crime number at spot
on these seized items. Since an opportunity was available with the defence to
cross-examine the seizure officer about the time and place of writing crime
number of these articles but the defence purposely left this question open and
unaddressed and now, on the basis of conjectures, the appellants want this
court to believe that the crime number was written on these articles at the spot.
For the reason of unquestioned facts, this court is not impressed with this
argument, hence no question of interference in the impugned judgment on this
ground arises.
13. It has also been argued by the counsel for appellants that Constable
Suresh Uikey, who took the seized contraband to Bhopal, has revealed in his
cross-examination that entire quantity of 14 kgs. was taken to FSL. It may be
mentioned here that in his examination-in-chief, he has categorically stated that
he carried only six sample packets with him, which he deposited in RFSL,
Bhopal. Obviously, the packets given to him were not weighed in his presence,
therefore he was not in a position to depose about the weight of packets, which
he carried to RFSL, Bhopal. In the light of these facts any revelation made by
him about the weight of the packets has no relevance.
14. It has also been argued by the counsel for appellants that the place of
seizure was not well illuminated because the presence of electricity was not
revealed in spot map, but strangely no question was asked on this point to the
seizure officer Bharat Singh (P.W.7). The place of seizure was nearby the bus
stand and it has been disclosed by Investigating Officer Vipin Tamrakar
(P.W.6) that the area is well crowded. He has also admitted that buses start
from that bus stand even during night, therefore this argument does not have
any convincing value.
15. Having considered all these facts, the conviction of appellants under
Section 20(b)(ii)(B) of NDPS Act cannot be interfered with as the appellants
have failed to assail it on any significant fact or against any provision of law.
Accordingly, conviction of appellants under Section 20(b)(ii)(B) of NDPS Act
is affirmed.
16. These appeals have also been argued on the quantum of sentence. It
is established through evidence that appellant Lakhan Singh Lodhi of Criminal
Appeal No.8310/2021 was found in illegal possession of 2 kgs. of "Ganja". He
was sentenced to 2 years R.I. and fine amount of Rs.10,000/-. The record of
trial court reveals that he was in custody from 6.12.2015 to 21.3.2016 and then
from the date of judgment i.e. 28.12.2021. His period of custody of 2 years R.I.
is already complete. Even if, he failed to deposit the fine amount, the period of
R.I. for 2 months sentenced in default of payment of fine also appears to have
completed. Therefore, no interference is required in the sentence already
suffered by appellant Lakhan Singh Lodhi.
17. It is established that appellant Mahendra Singh Thakur alias Pintu in
Criminal Appeal No.8306/2021 was in illegal possession of 5 kgs. of "Ganja".
He was sentence to 3 years R.I. and fine amount of Rs.15,000/-. His sentence is
reduced to 2 years R.I. and fine amount of Rs.15,000/-. In case he has already
suffered the modified sentence, he be immediately released.
18. Appellant Bhurelal alias Bhura Choudhary in Criminal Appeal
No.8310/2021 was sentenced to 4 years R.I. and fine amount of Rs.20,000/- for
having in his illegal possession 7 kgs. of "Ganja". His sentence is reduced to
R.I. for 2 years and 6 months with fine amount of Rs.20,000/- and for non-
payment of fine amount, to undergo R.I. for additional 4 months.
19. The present appeals are, therefore, partly allowed on the quantum of
sentence. The direction of trial court regarding disposal of seized property is
affirmed.
20. Let a copy of this judgment along with its record be sent to the trial
court for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
ps
