Santosh Kumar vs State Of M.P.
2023 Latest Caselaw 7202 MP

                                                      1
                 IN         THE       HIGH COURT OF MADHYA PRADESH
                                            AT GWALIOR
                                              BEFORE
                           HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                            ON THE 3 rd OF MAY, 2023
                                       CRIMINAL APPEAL No. 846 of 2005

               BETWEEN:-
               SANTOSH KUMAR S/O KAMTA PRASAD PACHORI,
               AGED       ABOUT      30   YEARS, OCCUPATION:
               AGRICULTURIST R/O SEGUANWA, THANA THARET,
               DISTT. DATIA (MADHYA PRADESH)

                                                                                  .....APPELLANT
               (BY SHRI D.R.SHARMA- ADVOCATE )

               AND
               STATE OF M.P. THROUGH POLICE STATION THARET
               DISTT. DATIA (MADHYA PRADESH)

                                                                                 .....RESPONDENT
               (BY SHRI PRAMOD PACHORI - PUBLIC PROSECUTOR FOR THE STATE )

                           Th is appeal coming on for hearing this day, t h e court passed the
               following:
                                                       ORDER

This Criminal Appeal has been filed by the appellant under Section 374

of Cr.P.C. being aggrieved by the judgment dated 22nd November, 2005 passed by the Special Judge, Datia, in Special Case No.2/2004 whereby appellant has been convicted under Section 8/20(b)(1) of the NDPS Act and sentenced to undergo five years RI with fine of Rs.50,000/-.

In brief prosecution case is that on 6.6.2004 on the secret information, SHO of police Station Tharet Distt. Datia seized 750 gms of cannabis from the Signature Not Verified Signed by: MADHU SOODAN PRASAD possession of appellant in presence of independent witnesses Meerendra and Signing time: 04-05-2023 06:18:10 PM Nijam Khan, for which he could not justify the possession. Appellant was

arrested. After completing other formalities FIR was lodged against the appellant. After investigation charge-sheet has been filed.

During trial, prosecution adduced evidence of seizing officer Sub- Inspector Ajay Channa (PW-7), Head Constable Radhepuri (PW-2) and Constable Virendra Singh (PW-3), who accompanied the aforesaid seizing officer, along with independent witnesses Nijam (PW-1) and Meerendra Singh (PW-6). Beside that, prosecution adduced evidence of Constable Ramkumar (PW-4), who submitted sample in FSL, Gwalior, Constable Anil Kumar (PW-

5), who submitted copy of FIR and seizure memo in the Court, and Head Constable Van Singh (PW-8), who after necessary entry deposited the seized

contraband in Malkhana.

After trial, appellant has been convicted and sentenced as aforesaid. Learned counsel for the appellant submits that allegation against the appellant is that he was found in possession of 750 gms of cannabis, but to prove his guilt, prosecution is duty bound to produce the aforesaid seized contraband before the trial Court during trial, but prosecution has miserably failed to produce the aforesaid contraband before the trial Court so that it could establish the charge levelled against the appellant. It is also not the case of the prosecution that sample of the contraband has been disposed of as per the provisions of Section 52-A of the NDPS Act. As such, conviction of the appellant is not sustainable. In support of his contention, learned counsel for the appellant relied on the decision of Coordinate Bench of this Court in the case of Raju @ Jitendra vs. State of M.P., 2013 Cr.L.J. (M.P.) 12 in which 12 kgs

Signature Notof brown sugar was seized, but the same was not produced before the Court Verified Signed by: MADHU SOODAN PRASAD and there was no explanation for not producing the contraband before the Signing time: 04-05-2023 06:18:10 PM

Court and in such circumstances it has been observed that conviction is not sustainable. Beside that, independent witnesses of seizure Nijam (PW-1) and Meerendra (PW-6) have not supported the prosecution case. Despite aforesaid anomalies, learned trial Court blindly convicted & sentenced the appellant. Hence, prayed that appeal be allowed and conviction & sentence of the appellant be set aside.

Learned counsel for the State submitted that proper seizure has been made from the appellant and sample has been taken out. Only on the ground that independent witnesses have not supported the prosecution case, prosecution story cannot be disbelieved.

Heard learned counsel for the parties and perused the record. It is to be examined in the present case as to whether judgment of trial Court is as per law and evidence came on record.

As per seizing officer Ajay Channa (PW-7), on 6.6.2004 on the secret information he seized 750 gms of cannabis from the possession of appellant, for which he could not justify the possession, in presence of independent witnesses Nizam (PW-1) and Meerendra (PW-6). Aforesaid contraband was seized vide Ex.P/6. Appellant was arrested vide Ex.P/8. Crime No.55/2004 was registered which is Ex.P/12. Sample was sent for chemical analysis. Report of the FSL is Ex.P/13. During cross-examination, he denied that he has not seized

the aforesaid contraband from the appellant. However, independent seizure witnesses Nijam (PW-1) and Meerendra (PW-6) have not supported the evidence of seizing officer (PW-7). Neither it came out from the evidence of seizing officer that seized contraband was produced before the trial Court Signature Not Verified during trial at the time of evidence of seizing officer and aforesaid seizure Signed by: MADHU SOODAN PRASAD Signing time: 04-05-2023 06:18:10 PM witnesses, which is very important to bring the appellant under the purview of

alleged offence, nor it is the case of the prosecution that aforesaid contraband has been disposed of as per the provisions of Section 52A of the NDPS Act.

Hon'ble Supreme Court in the case of Noor Agra Vs. State of Punjab & Anr., 2008 Cr.L.R. (SC) 655 in para 103 has observed as under:

"103. Physical evidence of a case of this nature being the property of the Court should have been treated to be sacrosanct. Non-production thereof would warrant drawing of a negative inference within the meaning of Section 114(g) of the Evidence Act. While there are such a large number of discrepancies, if a cumulative effect thereto is taken into consideration on the basis whereof the permissive inference would be that serious doubts are created with respect of the prosecution's endeavour to prove the fact of possession of contraband from the appellant"

Accordingly, in view of the aforesaid facts & circumstances of the case, this appeal is allowed. Judgment of the trial Court is set aside. Appellant is acquitted from the said charge. Amount of fine if deposited be refunded to him. Appellant is on bail, his bail bonds shall stand discharged.

(DEEPAK KUMAR AGARWAL) JUDGE ms/-

Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 04-05-2023 06:18:10 PM