Nilesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 18476 MP

                                                                             1
                                IN THE HIGH COURT OF MADHYA PRADESH
                                            AT JABALPUR
                                                        BEFORE
                                      HON'BLE SHRI JUSTICE DINESH KUMAR PALIWAL
                                            CRIMINAL APPEAL No. 1167 of 2022

                          BETWEEN:-
                          NILESH S/O PRITAM, AGED ABOUT 28 YEARS,
                          OCCUPATION: LABOUR R/O VILLAGE BAIDYAKHERA,
                          POLICE STATION THEMI, DISTRICT NARSINGHPUR
                          (MADHYA PRADESH)

                                                                                                                        .....APPELLANT
                          (BY SHRI VIJAY KUMAR SHRIVASTAVA - ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH POLICE
                          STATION THEMI DISTRICT NARSINGHPUR (MADHYA
                          PRADESH)

                                                                                                                     .....RESPONDENT
                          (BY SHRI SUNIL GUPTA - PANEL LAWYER)

                                   Reserved on               :     25.10.2023
                                   Pronounced on :                 03.11.2023
                          ....................................................................................................................
                                   This appeal having been heard and reserved for judgment, coming on

                          for pronouncement this day, the Court passed following:
                                                                       JUDGMENT

This Criminal Appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant/accused against the impugned judgment of conviction and order of sentence dated 03.01.2022 passed by Special Judge, NDPS Act, Narsinghpur (M.P.) in SC NDPS No.20/2021 (State of M.P. vs. Nilesh & Another), whereby learned Special Judge has convicted the appellant for commission of offence under Section 8 Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM

read with Section 21(b) of Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'NDPS Act') as appellant was found in possession of 50 grams smack (contraband). He has been sentenced to undergo rigorous imprisonment for a period of 36 months and was directed to pay fine of Rs.2,000/-. In default of payment of fine, he shall undergo further RI for two months.

2. The case of prosecution, in brief, as per the FIR and documents filed therewith is that Sub Inspector Saroj Ramsakha posted in Police Station Themi, District Narsinghpur received a secret information that Nilesh who is wearing blue jeans and black jacket is coming towards Dhamna Petrol Pump and is

illegally possessing smack. The information was recorded in General Diary (Exhibit-P/36) . P a n ch witnesses Rakesh and Raju @ Nandkishore were summoned through constable Chandrapratap Patel. The independent witnesses were made to understand with the information as received and memo (Exhibit- P/2) was prepared in this regard. Search warrant was not obtained and memo (Exhibit-P/3) mentioning the reasons for the same was prepared. In compliance with the provisions of Section 42(2) of the NDPS Act, intimation (Exhibit- P/47) and copies of panchnama (Exhibit-P/2 & P/3) were sent to S.D.O.P. Sub-Inspector Saroj Ramsakha (P.W.-7) alongwith police personnel and panch- witnesses reached at spot. Accused was found standing there and was apprehended. On interrogation, he himself introduced as Nilesh, memo (Exhibit-P/5) was prepared. Accused was conveyed with the information about illegal possession of smack by him vide memo (Exhibit-P/6). He was made to understand his legal right to be searched before Magistrate or Gazetted Officer. However, he refused to exercise the said right and stated that SI Saroj Ramsakh (P.W.-7) could conduct the search.

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM

3 . Before making search of accused, he was asked to take search of Saroj Ramsakha (P.W.-7) and other police staff and independent witnesses. In the search taken by the accused, no objectionable article was seized. Panchnama (Exhibit-P/9) was prepared. On personal search of accused Nilesh by SI Saroj Ramsakha (P.W.-7), smack was found in pocket of his jacket and memo (Exhibit-P/10) was prepared in this regard. Memo (Exhibit- P/11) about contraband seized from the accused was also prepared. After search, contraband was tested and on the basis of experience, it was found as smack; memo (Exhibit-P/13) was prepared. Whole contraband was mixed up properly and memo (Exhibit-P/12) was prepared. Memo (Exhibit-P/14) regarding verification of weight was prepared. After weighing, total weight of seized contraband was found 50 gms. and in this regard, memo (Exhibit-P/15) was prepared. Thereafter, two sample of 5 gm each were drawn from the recovered smack and were put into two separate pouches (polythene bag) and seizure memo (Exhibit-P/38) was prepared. Samples and contraband were sealed in separate packets. Lock pouches were sealed and marked as article 'A'. Panchnama (Exhibit-P/17) was prepared. Contraband recovered from possession of accused was taken into possession vide Exhibit-P/16. Articles were stitched and sealed by putting the seal of police station and chits bearing details of contraband were affixed on the packets and were marked as article

'A'. Samples of seal, which was used in sealing the samples and repacked contraband, was prepared and Panchnama seal (Exhibit-P/18) for contraband recovered from accused was prepared. Accused was arrested and arrest memo (Exhibit-P/21) was prepared. First Information Report (Exhibit-P/51) bearing Crime No.54/2021 was registered. Spot map (Exhibit-P/23) was prepared.

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM

Seized contraband alongwith samples was handed over to Malkhana In-charge and entries were made in Malkhana Register vide (Exhibit-P/35C) . Samples article A-1 was sent to Forensic Science Laboratory, Sagar, where Diacetyl Morphine (Heroine) was found in sample article A-1 in F.S.L. report vide Exhibit-P/65.

4. On completion of investigation, appellant/accused was charge-sheeted for commission of offence under Section 8 read with Section 21(b) of NDPS Act. Charges were framed against the appellant/accused. Accused/appellant refused to charge and claimed to be tried.

5. In order to prove its case, the prosecution has examined ten witnesses viz. constable Dharmendra (P.W.-1), Nandkishore (P.W.-2), inspector S.L. Jharia (P.W.-3), constable Satyam (P.W.-4), head constable Karan Singh (P.W.-5), Sonam Maurya (P.W.-6), Sub-Inspector Saroj Ramsakha (P.W.-7), head constable Rajesh (P.W.-8), head constable Satendra (P.W.9) and constable Chandrapratap (P.W.-10). Prosecution adduced and exhibited the documents to Exhibit-P/1 t o Exhibit-P-65. No witness was examined in defence.

6. Learned trial Court after hearing the parties found the prosecution case prove in respect of commission of offence under Section 8 read with Section 21(b) of NDPS Act and convicted the appellant/accused as mentioned in preceding paragraph No.1.

7 . I have heard learned counsel for the parties and perused the entire record.

8. At the very outset learned counsel for the appellant has submitted that appellant does not want to challenge his conviction for commission of aforesaid offence as recorded by learned trial Court, but has prayed for reduction of jail Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM

sentence as appellant has already suffered/undergone about 33 months in jail so far while only 36 months rigorous imprisonment has been imposed upon him by the learned trial Court. Therefore, it is prayed that appellant's jail sentence who has no criminal background may be reduced to the period already undergone by him.

9. Per contra, learned counsel for the State supported the findings of conviction and order of sentence and has prayed for not reducing the jail sentence as 50 gms. smack has been sized from possession of the appellant/accused which is an intermediate quantity. Thus, he has prayed for dismissal of the appeal.

10. In this case, Sub-Inspector Saroj Ramsakha (P.W.-7) deposed that o n 28.01.2021, she was posted as sub-inspector at Police Station Themi, District Narsinghpur. She had received information that Nilesh who is wearing blue jeans & black jacket is coming towards Dhamna Petrol Pump and is possessing smack. This information was recorded in General Diary (Exhibit- P/36) . Panch witnesses Rakesh and Raju @ Nandkishore were summoned through constable Chandrapratap Patel. The independent witnesses were made t o understand with the information as received and memo (Exhibit-P/2) was prepared in this regard. Search warrant was not obtained and memo (Exhibit- P/3) mentioning the reasons for the same was prepared.

1 1 . In compliance with the provisions of Section 42(2) of the NDPS Act, intimation (Exhibit-P/47) and copies of panchnama (Exhibit-P/2 & P/3) were sent to S.D.O.P. Sub-Inspector Saroj Ramsakha (P.W.-7) alongwith police personnel and panch-witnesses when reached at spot found accused standing there. Accused was apprehended. On interrogation, he himself had

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM

introduced as Nilesh. Memo (Exhibit-P/5) was prepared. Accused was informed about the information about illegal possession of smack by him and memo (Exhibit-P/6) was prepared. He was made to understand his legal right to be searched before Magistrate or Gazetted Officer. Notice (Exhibit-P/7) in writing was given to accused under Section 50 of the NDPS Act. Accused has accorded his written consent vide Exhibit-P/8.

1 2 . Sub-Inspector Saroj Ramsakha (P.W.-7) further deposed that he himself and police force was got searched by the accused and Panchnama (Exhibit-P/9) was prepared. When she took search of accused Nilesh, smack was found in pocket of his jacket and memo (Exhibit-P/10) was prepared in this regard. Memo (Exhibit-P/11) about contraband seized from the accused was also prepared by her. After search, contraband was tested and on the basis of experience, it was found as smack; memo (Exhibit-P/13) was prepared. She has further deposed that whole contraband was mixed up properly and memo (Exhibit-P/12) was prepared. Memo (Exhibit-P/14) regarding verification of

weight was prepared. After weighing of contraband, total weight of seized contraband was found 50 gms. and in this regard, memo (Exhibit-P/15) was prepared.

13. It is her deposition that two sample of 5 gm. each were drawn from t h e recovered smack by the Executive Magistrate and were put into two separate pouches (polythene bag) and seizure memo (Exhibit-P/38) was prepared. Samples and contraband were sealed in separate packets. All contraband were sealed and marked as article 'A'. Panchnama (Exhibit-P/17) was prepared. Contraband recovered from possession of accused was taken into possession vide Exhibit-P/16. Articles were stitched and sealed by putting the seal of police station and chits bearing details of contraband were affixed on Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM

the packets and were marked as article 'A'. Samples of seal, which was used in sealing the samples and repacked contraband, was prepared and Panchnama seal (Exhibit-P/18) for contraband recovered from accused was prepared. Accused was arrested and arrest memo (Exhibit-P/21) was prepared. After coming over to police station, First Information Report (Exhibit-P/51) bearing Crime No.54/2021 was registered. Spot map (Exhibit-P/23) was prepared. Entries were made in General Diary regarding whole proceedings. After entering the seized articles in Malkhana Register vide (Exhibit-P/35C), articles were kept safely in Malkhana.

1 4 . I n this regard, the evidence of Saroj Ramsakha (P.W.-7) finds corroboration from the evidence of Chandrapratap (P.W.-10). The evidence of Saroj Ramsakha (P.W.-7) also finds corroboration from the evidence of inspector S.L. Jharia (P.W.-3), constable Satyam (P.W.-4) and head constable Karan Singh (P.W.-5).

15. Sonam Maurya (P.W.-6) who conducted proceedings under Section 52(A) of the NDPS Act vide Exihibit-P/38 to Exhibit-P/40 and photos (Exhibit-P/42 to Exhibit-P/45) made during the proceedings has supported the proceedings conducted before her in her presence.

1 6 . The aforesaid witnesses were cross-examined by the defence, but nothing adverse come out in their cross-examination. Thus, they have withstood with their evidence. Hence, the evidence of P.W.-3, P.W.-4, P.W.-5, P.W.-6, P.W.-7 and P.W.-10 inspires confidence of Court.

1 7 . In this case, Nandkishore (P.W.-2) has turned hostile. He has not supported the prosecution case, but he has admitted his signature on Exhibit- P/2 to Exhibit-21. The fact that seizure witness has turned hostile is not of an

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM

importance because it is very often that in criminal trial particularly, in cases relating to NDPS Act, witness of seizure memo often turns hostile.

18. As far as, the reliability of evidence of Saroj Raksakha (P.W.-7) & Sonam Maurya (P.W.-6) is concerned, it is apparent that seizure memo was prepared and two samples were drawn in accordance with provisions of Section 52(A) of NDPS Act. After coming over to police station, samples taken from seized contraband alongwith seized contraband were handed over to head constable Karan Singh (P.W.-5) Malkhana In-charge. F.I.R. was registered. The factum of raiding the accused, seizure of contraband and procedure so adopted were recorded in General Diary. The samples of seized contraband were given to constable Satyam (P.W.-4) who deposited the same at F.S.L. Sagar. F.S.L. report ( Exhibit-P/65) was received and seized article was found to be 'Diacetyle Morphine (Heroin)'. It is enunciated that seizure item was smack.

19. In the case in hand, the evidence of Sub-Inspector Saroj Ramsakha (P.W.-7) stands corroborated with the evidence of inspector S.L. Jharia (P.W.-

3), constable Satyam (P.W.-4), head constable Karan Singh (P.W.-5), Sonam Maurya (P.W.-6), head constable Rajesh (P.W.-8), head constable Satendra (P.W.9) and constable Chandrapratap (P.W.-10). Thus, after appreciating and evaluating the evidence, learned trial Court has rightly reached to the conclusion that appellant/accused was found in possession of 50 gms. smack (contraband).

2 0 . T hus , having scanned the entire evidence adduced by the prosecution, this Court finds no illegality, incorrectness or impropriety in the impugned judgment of conviction recorded by the Court below and as such same is upheld. However, taking note of the fact that appellant/accused is first Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM

offender and considering the fact that appellant/accused has already undergone imprisonment for more than 33 months, this Court deems it fit to reduce the sentence from 36 months to a period of 33 months i.e. the period already undergone by him.

21. Consequently, this appeal is partly allowed with the modification in the sentence. Appellant/accused is sentenced to undergo imprisonment for the period he has already undergone subject to deposit of fine amount as imposed by learned trial Court.

22. Registry/Trial court is directed to prepare Super session warrant/release warrant and the same be sent to the Superintendent of Jail Narsinghpur with a direction that if appellant/accused is not required in any other case, he be released in this case forthwith.

23. Registry is directed to immediately sent down the trial Court record alongwith copy of appeal judgment to the trial Court concerned for information and necessary compliance through Sessions Judge, Narsinghpur.

(DINESH KUMAR PALIWAL) JUDGE @shish

Signature Not Verified Signed by: ASHISH KUMAR JAIN Signing time: 11/3/2023 7:34:18 PM