Sunil @ Patwari Choudhari vs The State Of Madhya Pradesh
2023 Latest Caselaw 19064 MP

                                                            1
                           IN     THE      HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                    BEFORE
                                     HON'BLE SMT. JUSTICE ANURADHA SHUKLA
                                             ON THE 9 th OF NOVEMBER, 2023
                                           CRIMINAL APPEAL No. 1163 of 2023

                          BETWEEN:-
                          SUNIL @ PATWARI CHOUDHARI S/O SHRI PARDESHI
                          CHOUDHARI, AGED ABOUT 37 YEARS, OCCUPATION:
                          LABOUR R/O CHANDI MOHALLA KATRA MAIHAR P.S.
                          MAIHAR DISTRICT SATNA AT PRESENT SUB JAIL
                          MAIHAR DISTRICT SATNA (MADHYA PRADESH)

                                                                                         .....APPELLANT
                          (BY SHRI DHARMENDRA KUMAR PANDEY - ADVOCATE)

                          AND
                          THE STATE OF MADHYA PRADESH THROUGH THE P.S.
                          AMARPATAN DISTRICT (MADHYA PRADESH)

                                                                                        .....RESPONDENT
                          (BY SHRI P. CHATTERJEE - PANEL LAWYER)

                                Heard on        : 06.11.2023
                                Pronounced on: 09.11.2023

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

T his criminal appeal has been preferred for being aggrieved by the judgment delivered on 15.12.2022 by Special Judge (NDPS Act), Satna, in SC NDPS/3000012/2015. By this judgment, the appellant was convicted for the offence of Section 8(c) read with Section 20(b)(ii)(B) of NDPS Act and was sentenced to rigorous imprisonment for one year & six months and fine amount of Rs.3,000/- with a default clause to undergo additional rigorous imprisonment Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 11/9/2023 7:37:31 PM

for two months, in case of non-payment of fine.

2 . Brief facts of the prosecution case are that Sub-Inspector S.N.P. Verma, posted in Police Station, Amarpatan, district Satna, got a tip off from mukhbir on 20.7.2015 that the appellant was arriving on a black coloured PULSAR motorcycle with registration no.MP-19-ME-7520 and he has "Ganja" in his bag for the purpose of sale; Sub-Inspector S.N.P. Verma prepared the mukhbir soochna Panchnama, sent a copy of it to SDO(P), Maihar, through staff and informed him personally on phone; he summoned the witnesses in police station and after obtaining the permission of SDO(P), Maihar, set out for spot along with witnesses and police team. On arrival of appellant on the

motorcycle, he was stopped and informed about the tip off; his consent was obtained for search; the police party and witnesses gave their search to the appellant and then his bag was searched wherein two plastic bags were found - one was white and the other one was green in colour; on examination it was revealed that these two plastic bags were containing "Ganja"; they were weighed and then the contents were made homogeneous; two samples of 25 grams each were drawn; the remaining quantity of "Ganja" as well as the two samples drawn were seized and sealed; appellant was not having any licence to validate his possession, therefore he was arrested; his vehicle was also seized; appellant was taken to the police station along with the seized "Ganja" and motorcycle and FIR was registered against him at Crime No.294/2015. The matter was investigated; the seized "Ganja" was sent to FSL for examination from the safe custody of Malkhana; it was established that the material seized from appellant was contraband; therefore after completing the investigation, charge sheet was filed and the trial was held. The appellant was held guilty and was sentenced by

Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 11/9/2023 7:37:31 PM

the impugned judgment, as per the details given above.

3 . The grounds raised in this criminal appeal are that seizure memo witnesses, namely Bhagchandra Kushram (P.W.6) and Ashok Kewat (P.W.7) did not support the prosecution story and only on the basis of interested witnesses, namely Jaiprakash Kushwaha (P.W.1), Ishwar Pratap Singh (P.W.2), S.N.P. Verma (P.W.3), Vijay Tripathi (P.W.4) and Ajeet Verma (P.W.5), an erroneous finding of conviction was given; there were serious contradictions in the testimony of these interested witnesses; the provisions of Sections 42, 50, 55 and 57 of NDPS Act were not complied with and for the reason of their non- observance. The prosecution case should not have been held as proved. The learned trial court has failed to appreciate the evidence in correct perspective. It is, therefore, prayed that the appeal be allowed and the appellant be acquitted in the case.

4. State has opposed this appeal claiming that the impugned judgment is based on facts and law and no ground is made out for interfering in the impugned judgment. It is further argued that appellant has as many as 36 cases registered against him and this shows that he is a habitual offender.

5. Both the parties have been heard and the record of the trial court has been perused.

6. The grounds raised in this criminal appeal are that while conducting the

search and after registration of crime, compliance of mandatory sections of NDPS Act, namely Sections 42, 50, 55 and 57, has not been observed. According to learned counsel for the appellant, this non-compliance has been fatal to the prosecution case. The record shows that the seizure of "Ganja" was made in a public place and not from the person of appellant but from a bag which he was allegedly carrying. It has been held by the Apex Court in State of Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 11/9/2023 7:37:31 PM

Haryana v. Jarnail Singh and others (2004) 5 SCC 188 that in these set of facts, Sections 42 and 50 of NDPS Act are not applicable. It was observed by the Apex Court that Section 43 of NDPS Act applies when the contraband is recovered at a public place and for application of this provision, the officer making search is not required to even record his satisfaction. Thus, Sections 42 and 50 of NDPS Act were not applicable here.

7. It has also been claimed that compliance of provision of Section 55 of NDPS Act was not ensured. This provision directs that an officer-in-charge of a police station shall take charge of and keep in safe custody all articles seized under this Act and shall allow any officer who may accompany such articles to the police station to affix his seal to such articles or to take samples of and from them and all such samples shall also be sealed with the seal of the officer-in- charge of the police station. In this case, prosecution has examined Assistant Sub-Inspector Bhagchandra Kushram (P.W.6) who was posted on the date of incident in Police Station, Amarpatan, district Satna, on the post of Head Constable and was Incharge of Malkhana. He has testified that Sub-Inspector S.N.P. Verma handed him over three packets of seized "Ganja" of which two were sample packets and a motorcycle seized in the case was also handed over to him. He has produced the original Malkhana register of seizure with relevant entry, marked as Ex.P-30. Although he has been cross-examined about receipt of seized articles and entries in the Malkhana register but nothing substantial could be highlighted to challenge his credibility, therefore no case of non- compliance of Section 55 of the Act is made out.

8. So far as compliance of Section 57 of NDPS Act is concerned, it has been observed by the Apex Court in the case of Sajan Abraham v. State of

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Kerala (2001) 6 SCC 692 that Section 57 of NDPS Act has directory implications and its non-compliance does not have the effect of demolishing the prosecution case in its totality.

9. This appeal has also been argued on the factual aspects of the case. The first and foremost argument is related to the seizure proceedings. The prosecution has relied upon the testimony of Constable Jaiprakash Kushwaha (P.W.1), Sub-Inspector S.N.P. Verma (P.W.3) and Head Constable Ajeet Verma (P.W.5) who were the members of police party recovering "Ganja" from the appellant and conducting the seizure proceedings. Ashok Kewat (P.W.7) is claimed to be the independent witness to these proceedings but he has turned hostile.

10. According to Sub-Inspector S.N.P. Verma (P.W.3), he along with Constable Jaiprakash Kushwaha (P.W.1) and Ajeet Verma (P.W.5) proceeded for the spot along with witnesses and stopped the appellant who was riding a motorcycle. According to Sub-Inspector S.N.P. Verma, he informed the appellant about the mukhbir soochna and obtained his consent in writing for the search. He has also claimed that before making this search, the police party and the witnesses gave their search to the appellant. Sub-Inspector S.N.P. Verma (P.W.3), Vijay Tripathi (P.W.4) and Ajeet Verma (P.W.5) have claimed that the bag of appellant, which he was carrying on the motorcycle, was searched and "Ganja" was recovered from that bag.

11. Sub-Inspector S.N.P. Verma (P.W.3) and Ajeet Verma (P.W.5) have claimed that there were two packets inside the bag in which "Ganja" was kept. Sub-Inspector S.N.P. Verma claims that both the packets were checked and weighed individually and after verifying that they contained "Ganja", their contents were made homogeneous and for this, samras Panchnama, Ex.P-15, Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 11/9/2023 7:37:31 PM

was prepared. According to Ajeet Verma (P.W.5), both the packets were opened and after verifying that they were containing "Ganja", the contents of both the packets were mixed together, made homogeneous and thereafter the whole quantity was weighed. Jaiprakash Kushwaha (P.W.1) is silent about recovery of two packets from the bag as is reflected from his testimony that "Ganja" was kept in a bag made of cloth and not in two separate plastic bags. Be that as it may be, this fact remains unchallenged that the samples were drawn from the whole quantity of "Ganja", which weighed 1.5 kilograms.

12. Now if we examine the documents prepared on spot, it is evident that b ag talashi Panchnama, marked as Ex.P-10, mentions the fact that the bag, which the appellant was carrying, had two polythene bags containing "Ganja". Baramadgi Panchnama, Ex.P-11, discloses that one polythene was of white colour and the other was of green colour and both these polythenes were taken into. Taul Panchnama, Ex.P-14, discloses that both these polythenes were weighed separately with the weight of 800 grams of white polythene and 700

grams of green polythene. Accordingly, the total weight of "Ganja" taken into custody was 1500 grams. Samras Panchnama, Ex.P15, claims that the contents of both the polythenes were mixed together and the whole mixture was made homogeneous. Sample Panchnama, Ex.P-16, claims that from this homogeneous material, two samples of 25 grams each were drawn.

13. The procedure adopted by Sub-Inspector S.N.P. Verma (P.W.3) is evidently in violation of Standing Instruction No.1/88 of NCB, Government of India, which was in prevalence when this seizure was made. Standing Instruction No.1/88 of NCB, Government of India, prescribes detailed procedure for sampling, sealing and dispatching the seized samples to the

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laboratory. It says that if the drugs seized are found in packages/containers, the same should be numbered serially for the purpose of identification. Besides the serial numbers, the gross and net weights, particularly of the drug and the date of seizure, should invariably be indicated on the packages and samples should be taken from all these packages individually. It further says that bunching of packages or mixing the contents is permissible only if the packages are of identical size and weight bearing identical markings and the contents of each package are of similar colour, texture, etc.

14. In the present case two polythene packets were seized, which were of different weights and packagings, and no observation was made by the Seizure Officer that they were containing identical material of similar colour, texture and gave identical results on colour test by the test kit. Therefore, mixing the contents of two bags and making it homogeneous was not the legal procedure to be adopted for sampling and seizure of contraband.

15. This decision takes to the conclusion that the Seizure Officer failed to observe the legal provisions regarding the sampling. It is also interesting to notice that only two packets, marked as Articles "A1" and "A2", were produced as evidence in the Court and the details thereof are given in para 8 of the statements of Sub-Inspector S.N.P. Verma (P.W.3). According to this detail, Article "A1" was white coloured polythene containing 800 grams of "Ganja" and Article "A2" was black coloured polythene containing 700 grams of "Ganja". It is not disclosed by the Seizure Officer what happened to the two sample packets of 25 grams each that were drawn on the spot. He is completely silent on non-production of these sample packets. Further, proceedings held at spot reveal that the whole quantity of "Ganja" was mixed together to make it of a total weight of 1.5 kilograms. It is not disclosed either through documentary Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 11/9/2023 7:37:31 PM

or ocular evidence why and when this total quantity of 1500 grams was again divided into two quantities of 700 grams and 800 grams thereby making two packets.

16. On the basis of above discussions, this Court comes to the conclusion that the prosecution case is highly improbable on the point of sampling and seizure and the "Ganja" produced before the Court as articles has raised serious doubts about the sanctity of proceedings. Accordingly, the conviction of appellant under Section 8(c) read with Section 20(b)(ii)(B) of NDPS Act is hereby set aside and the appeal is allowed.

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

18. 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

Signature Not Verified Signed by: PRASHANT SHRIVASTAVA Signing time: 11/9/2023 7:37:31 PM