Aditya Ubnare vs The State Of Madhya Pradesh
2023 Latest Caselaw 18907 MP

                                  1
 IN     THE      HIGH COURT OF MADHYA PRADESH
                      AT JABALPUR
                          BEFORE
           HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                   ON THE 8 th OF NOVEMBER, 2023
                  CRIMINAL APPEAL No. 136 of 2023

BETWEEN:-
ADITYA UBNARE S/O MUNNALAL UBNARE, AGED
ABOUT 40 YEARS, OCCUPATION: LABOUR, R/O 40
BLOCK NEAR ABOUT GOVT. SCHOOL RAHUL NAGAR
MANIDEEP DISTT. RAISEN (MADHYA PRADESH)

                                                               .....APPELLANT
(BY SHRI MRADUL KUMAR VISHWAKARMA - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH THROUGH POLICE
STATION MANDIDEEP DISTRICT RAISEN (MADHYA
PRADESH)

                                                              .....RESPONDENT
(BY SHRI SATYAPAL CHADAR - GOVERNMENT ADVOCATE)

      Heard on        : 27.10.2023
      Pronounced on: 08.11.2023

      This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
                                JUDGMENT

Aggrieved by the judgment passed on 27.12.2022 by Special Judge (NDPS Act), Raisen, in Sessions Trial No.15/2017, this appeal has been preferred by appellant, who was convicted under that judgment for the offence o f Section 8 read with Section 20(b)(ii)(B) of NDPS Act for keeping in his illegal possession three kilograms of "Ganja" and for this act he was sentenced to four years rigorous imprisonment and fine amount of Rs.10,000/- with a

default clause to undergo additional six months imprisonment, in case of non- payment of fine.

2. The prosecution case may be summed up as that a tip off was received on 21.8.2017 through mukhbir by Sub-Inspector Ramesh Raghuvanshi, posted at Police Station, Mandideep, district Raisen that three persons were on the way from Obedullaganj carrying "Ganja" on their motorcycle bearing Registration No.MP-38-ME-7948; Shri Raghuvanshi informed his senior officers and on their direction he undertook the measures for nabbing the suspects; he summoned the witnesses; got the entries made in the Rojnamcha Sanha prepared and after completing initial preparations he set

out along with witnesses, police force and the investigation kit to the spot; soon t h e motorcycle of informed registration number was seen coming from Obedullaganj, which was being ridden by appellant and his two companions. Appellant was driving the motorcycle and was carrying a bag. The two other pillion riders of the motorcycle were Monu Ahirwar and Sharad Manjhi who fled away on seeing the police party.

3. Appellant was made aware of the information received from mukhbir; his consent was taken for conducting search. In the bag, which he was carrying, "Ganja" was found which was weighed and its quantity was found to be three kilograms; two samples were drawn on the spot; the samples as well as the remaining quantity of "Ganja" were seized and sealed on the spot; the motorcycle was also seized; the appellant was arrested and was brought along with seized "Ganja" and motorcycle to the police station where at Crime No.632/2017 the FIR was registered. After completion of investigation, the charge-sheet was filed and the case was taken up for trial. After holding the trial,

the appellant was convicted and sentenced as aforesaid under the impugned judgment.

4. The ground raised in this appeal are that the Investigating Officer in this case was the one who had allegedly seized the cannabis from the possession of appellant and he even failed to comply with the mandatory provisions of NDPS Act. Without considering these lapses in seizure proceedings and investigation and also ignoring the material infirmity in the prosecution case, the learned trial court passed the judgment of conviction which is bad in law, improper, incorrect and illegal. The learned trial court failed to apply the judicial mind; independent witness, who was allegedly a seizure witness also namely Ramu Dhakad (P.W.8), did not support the prosecution case, still the finding of conviction was given. The trial court gave the finding of conviction only on the basis of statements of a police officer and that too after applying the presumption wrongly. Contradictions and omissions in the court testimony and the police statements have been baldly ignored. It is, therefore, prayed that the appeal be allowed and the judgment of conviction and sentence passed against the appellant be set aside.

5. State has opposed the present appeal on the ground that the finding of conviction and the quantum of sentence passed under the impugned judgment deserves no interference because the judgment is well decided on facts, law and

reasons.

6. Both the parties have been heard and the record has been perused.

7. This case has been argued on the ground that the Seizure Officer and also the Investigating Officer failed to comply with the provisions of NDPS Act and for this, the learned counsel for appellant has placed reliance on Sections 42, 50 and 57 of NDPS Act. In the present case, the seizure of contraband was

made in a public place and that too from a bag which the appellant was allegedly carrying, therefore application of Sections 42 and 50 of NDPS Act is not invited here. For this, the judgment of State of Haryana v. Jarnail Singh and others (2004) 5 SCC 188 relied upon by the appellant itself makes the legal point clear. In that case also, the contraband was seized from a tanker which was plying on a public road and it was held by the Apex Court, while allowing the appeal of State against acquittal, that neither the requirement of Section 42 nor of Section 50 of NDPS Act was applicable there. It was also observed that when the recovery of contraband was made at a public place, provision of Section 43 of NDPS Act applies and this provision does not contemplate any mandatory requirement as for its application, the officer making the search is not required to even record his satisfaction, as prescribed in Section 42 of NDPS Act. Therefore, the arguments raised here have no legal applicability and acceptability.

8. It has also been argued that non-compliance of Section 57 of NDPS Act has vitiated the entire proceedings but this argument cannot be agreed upon on legal premise. Section 57 of NDPS Act has directory implications and it cannot be successfully argued that in its non-compliance, the whole case is demolished. Reference can be made here to the decision of Apex court in Sajan Abraham v. State of Kerala (2001) 6 SCC 692.

9 . On factual aspects of the case, it can be observed that Ramesh Raghuvanshi (P.W.10) was the police officer who conducted the primary proceedings and also the proceedings of seizure. Ramanand Singh Yadav (P.W.9) is the Investigating Officer in this case. Rakesh Rawat (P.W.5) and Ramu Dhakad (P.W.8) were the two independent witnesses in whose presence

the "Ganja" was allegedly seized but they both have turned hostile. Ramesh Tekam (P.W.1), Suresh Baghel (P.W.2), Constable Sunil (P.W.3), Rajesh Nagar (P.W.4) and Rajnish Patel (P.W.6) are the police personnel who were involved in various stages of the proceedings. Kamal Singh (P.W.7) is the person whose motorcycle was seized in this case and he has turned hostile.

10. According to Ramesh Kumar Raghuvanshi (P.W.10), he got a tip off from mukhbir about which he informed his seniors, summoned the witnesses, informed them about the mukhbir soochna and proceeded with them as well as police party to the spot where he nabbed the appellant along with three kilograms of "Ganja". He has claimed that he got the "Ganja" weighed and then drew two samples of 25 grams each from it. He has further claimed that he sealed both the samples and also the remaining quantity of "Ganja" on spot.

11. The statements of Ramesh Kumar Raghuvanshi (P.W.10) reveal that during his statements, three bags were produced from Malkhana, which were marked as Articles "A1", "A2" and "A3". In his cross-examination, a note has been mentioned under para 56 that Article "A2", which is the other sample not sent to FSL, was sealed with a chapda seal and without disturbing that seal, a seizure chit was also placed on the packet. It was further observed that this seizure chit could be removed without manipulating the chapda seal. Thus, it can be observed that the sample packets were sealed in such a manner that the seizure chit, having the signature of witnesses and the appellant would remain intact even if the bag was opened, its contents were changed and bag was sealed again.

12. The prosecution has examined Ramesh Tekam (P.W.1) as Malkhana Prabhari. According to him, he received the seized quantity of "Ganja" and samples in Malkhana and made the entry in Malkhana register, which is Ex.P-1.

It is interesting to note that this lone entry was produced independently and the witness did not submit the complete Malkhana register for the inspection of the court or for the cross-examination purpose. Admittedly, this entry could not exist independently and it was a part of a register but no reason has been assigned for not making the register available for examination of the court or the defence.

13. Suresh Baghel (P.W.2) had the limited role in this case because he has stated that he took the mukhbir soochna Panchnama to the office of SDO and did not participate in the remaining proceedings. Constable Sunil (P.W.3) claims to be present at the time of seizure of "Ganja" but he has admitted that there is overwriting in his name, number and signature in talashi Panchnama, Ex.P-4. This talashi Panchnama was prepared regarding the search given by the police party to the appellant. Thus, overwriting in the name, number and signature of this witness creates suspicion whether he was present in the raid party or not? Interestingly, no ravangi Rojnamcha Sanha entry has been

exhibited in evidence, which would have disclosed the names of the persons who were the members of the police party.

14. Rajesh Nagar (P.W.4) was the person who received the information a t the SDO(P) Office, hence his statements are not of much significance. Rajnish Patel (P.W.6) is the person who took the seized sample to the FSL.

15. From the statements of these prosecution witnesses, it is evident that the proceedings conducted by Ramesh Kumar Raghuvanshi (P.W.10) were not corroborated by any independent witness or by any member of police party. The seizure made by him is also suspicious for the reason that Ex.P-11, which is taul Panchnama, discloses that the weight of "Ganja" along with the packet

was only 192 grams and it is further mentioned therein that the weight of "Ganja" is three kilograms. When cross-examined on this contradictory statement about weight, the witness has explained that 192 gram was the weight of the packet in which "Ganja" was kept. He has further admitted that this packet was of plastic and it was not seized because it was already torn. A plastic packet generally does not weight 192 grams, and if it was so heavy in weight it should have been seized and produced in evidence. Further, it is not explained that if the packet was already in torn state then how three kilograms of "Ganja" was being carried in it.

16. Taking into consideration, the contradictions and improbabilities in the prosecution story, as highlighted above, this Court is of the opinion that the statements of Ramesh Kumar Raghuvanshi (P.W.10) do not inspire confidence and the chances of manipulation in the samples prepared on spot cannot be ruled out. Further, the Malkhana Register appears to have been purposely withheld from examination by not producing it in evidence. Thus, the conviction of appellant under Section 8 read with Section 20(b)(ii)(B) of NDPS Act is set aside and this appeal is allowed.

1 7 . The appellant is in custody. He be released forthwith. The fine amount, if any, deposited by the appellant be refunded to him.

18. Let a copy of this judgment along with the record be sent to the trial court for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Digitally signed by PRASHANT SHRIVASTAVA Date: 2023.11.09 13:13:10 +05'30' Adobe Reader version: 11.0.8