Vinod @ Vinnu Jhariya vs The State Of Madhya Pradesh
2023 Latest Caselaw 19974 MP

Madhya Pradesh High Court

Vinod @ Vinnu Jhariya vs The State Of Madhya Pradesh on 29 November, 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 29 th OF NOVEMBER, 2023
                 CRIMINAL APPEAL No. 8793 of 2023

BETWEEN:-
VINOD @ VINNU JHARIYA S/O NONELAL JHARIYA,
AGED ABOUT 35 YEARS, OCCUPATION: PRIVATE JOB,
R/O VILLAGE RANIPUR, P.S. KUNDAM DISTRICT
JABALPUR (MADHYA PRADESH)

                                                               .....APPELLANT
(BY SHRI S. K. PANDEY - ADVOCATE)

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

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

      Heard on        : 08.11.2023
      Pronounced on: 29.11.2023

      This appeal having been heard and reserved for judgment, coming on

for pronouncement this day, the court passed the following:
                                JUDGMENT

This criminal appeal has been preferred against the judgment passed on 30.6.2023 by the Special Judge (NDPS Act), Jabalpur, in Special Case No.SC NDPS/2204104/2015. By this judgment, the appellant was held convicted for the offence of Section 8/20(b)(ii)(B) of NDPS Act for possessing 1.500 kilograms of "Ganja" in his custody and was sentenced to rigorous imprisonment of one year and six months and fine amount of Rs.5,000/- with a

direction to undergo additional rigorous imprisonment of one month, in case of non-payment of fine.

2. The facts of the case are that an information was received from mukhbir that a person named Vinod alias Vinnu Jhariya was coming from the direction of Kundam on his motorcycle bearing registration no.MP-20-MD- 7158 and he was carrying "Ganja"; this information was entered into Rojnamcha Sanha; two independent witnesses were summoned; mukhbir soochna Panchnama was prepared; report was sent to the Office of CSP and the police party along with witnesses proceeded for the spot; the motorcycle coming from Kundam was intercepted; the appellant was riding it; he was informed about

mukhbir soochna and was given the option of search before the gazetted officer under Section 50 of NDPS Act; after obtaining the consent of applicant f o r search, the police party gave its search to the applicant and then the motorcycle of applicant was searched and a polythene was recovered from its dicky in which substance like "Ganja" was found; it was weighed and the samples were drawn; the samples as well as the remaining quantity of "Ganja" were sealed separately; Panchnama of every proceeding was prepared and the appellant was arrested. On return to the police station, the "Ganja" was given into the custody of Malkhana Moharrir; the FIR was registered; the contraband was sent for chemical examination to RFSL, Bhopal, and on receipt of report as well as on conclusion of investigation, the charge-sheet was filed. On the basis of evidence recorded during trial, the appellant was convicted and sentenced as aforesaid.

3 . The grounds raised in this criminal appeal are that the procedure adopted by the seizure officer was contrary to the provisions of law; the prosecution failed to prove its case beyond reasonable doubt; there were

material contradictions, improvements and omissions in the statements of prosecution witnesses; no independent witness supported the prosecution case; the alleged "Ganja" was not seized from the exclusive possession of appellant and he was falsely implicated in this fabricated story; no search warrant was obtained; compliance of provisions of Sections 42 and 57 of NDPS Act was also not ensured. It is, therefore, prayed that the impugned judgment be set aside and the appellant be acquitted in the case.

4 . State has opposed the present appeal and has claimed that no interference is required in the finding of conviction and the sentence passed against the appellant.

5. Learned counsel for both the parties have been heard and the record of the trial court has been perused.

6. To prove its case, the prosecution has relied upon 34 documents and testimony of eight witnesses; in rebuttal, defence has placed reliance only on two documents, which are the police statements of prosecution witnesses, namely Nitin Sharma and Amit Yadav. The eight witnesses examined by the prosecution are Nitin Sharma (P.W.1) and Amit Yadav (P.W.2), who have been examined as independent witnesses; Arun Kumar Tiwari (P.W.3), to whom the seized "Ganja" and samples were consigned for safe custody; Shailesh Mishra (P.W.4) is the Reader to CSP, who received information on behalf of CSP;

Gayatri Armo (P.W.5) is the Patwari, who prepared the spot memo and spot map; Nand Kishore Dhurve (P.W.6) is the police officer, who conducted the seizure proceedings; Rakesh Kumar Tiwari (P.W.7) is the Investigating Officer and Ravind Negi (P.W.8) is the Head Constable, who took the samples to RFSL, Bhopal, for examination.

7. According to prosecution, on the date of incident, ASI Nand Kishore Dhurve (P.W.6) received information from Mukhbir regarding transportation of "Ganja" by a person riding a motorcycle; he had this information recorded in the Rojnamcha Sanha; he summoned independent witnesses, namely Nitin Sharma and Amit Yadav, and informed them about the information received from Mukhbir. For this, he prepared Mukhbir Soochana Panchnama, Ex.P-1. He sent the report to the Office of CSP, which was received therein by Head Constable Shailesh Mishra (P.W.4). According to him, the copy of Rojnamcha Sanha and Mukhbir Soochna Panchnama were also received in his office regarding which he gave a receipt to the Constable bringing these documents and for this, Ex.P-21 has been marked in evidence. Although a separate Panchnama for not obtaining the search warrant was not prepared by ASI Shri Dhurve but Ex.P-21 discloses that he had communicated to his superior officer that the time spent in taking the search warrant may abort the raid, therefore contention of defence that the raid was illegal for not obtaining the search warrant is not acceptable nor this fact affects the legality of procedure adopted by ASI Shri Dhurve.

8 . According to prosecution, ASI Shri Dhurve reached the spot, intercepted the motorcycle of appellant, told him about the information received, gave him a notice under Section 50 of NDPS Act, obtained his consent for search, gave the search of raiding party to the appellant and then searched the person and the vehicle of appellant. It is claimed that in this search, 1.500 grams of "Ganja" was found in the dicky of motorcyle which the appellant was riding solely. For this, the prosecution has relied upon various documents prepared on spot and the statements of independent witnesses, namely Nitin Sharma (P.W.1), Amit Yadav (P.W.2) and ASI Nand Kishore

Dhurve (P.W.6). No discrepency could have been highlighted in the statements of Nand Kishore Dhurve and the documents prepared by him on spot. Talashi Sahmati Panchnama, Ex.P-4, clearly mentions that the appellant accorded consent for search to be given to ASI Nand Kishore Dhurve. Although some facts were argued on the basis of testimony of independent witnesses, namely Nitin Sharma (P.W.1) and Amit Yadav (P.W.2), regarding discrepancies in their statements as compared to the prosecution case but it cannot be ignored that the incident occurred on 31.8.2015 and their examination-in-chief was recorded on 20.3.2018. Further, instead of completing their cross-examination on that date itself, adjournment was sought on behalf of appellant and cross- examination was, thus, held on 16.8.2022 and 15.7.2022 i.e. almost five years after the incident. Such a long period of time is sufficient enough to erase minor facts from the memory of the person concerned. Evidently, on material facts the testimony of these witnesses remained intact.

9. It has been argued by learned counsel for appellant that for drawing the samples, provision of Section 52-A of NDPS Act was not complied with; the sealed sample and remaining "Ganja" quantity were not re-sealed with the seal of Thana Prabhari and statements of Head Constable Ravindra Negi (P.W.8), who took the samples to RSFL, Bhopal, were not recorded during investigation. I have considered these arguments in the light of provisions of NDPS Act and the case laws prevalent at the time of seizure.

10. Learned counsel for the appellant could not cite any relevant citations, which would highlight that the provisions of NDPS Act were violated in this case regarding sampling. Seizure Officer, namely ASI Nand Kishore Dhurve, took out two samples on the spot from the seized "Ganja", sealed all the three

packets, prepared the memo of specimen seal and the sealed samples were sent for examination to RSFL, Bhopal. The report received therefrom discloses that the seal on both the samples was found intact and the content of both the samples was "Ganja". There is no legal compulsion which has fatal impact upon the seizure proceeding regarding putting the seal of Thana Prabhari on samples, therfore, I do not find any violation of the provisions of NDPS Act in the sampling, seizure and sealing procedure. On the basis of report received from RSFL, Bhopal, it is established that the appellant was carrying "Ganja" in the dicky of his motorcycle.

11. It has been claimed by the counsel for appellant that the "Ganja", which was allegedly seized by the Seizure Officer, was having moisture, as has been established by the statements of prosecution witnesses, and the dried contents would have weighed much lesser in quantity but the provisions of NDPS Act do not refer to any procedure where the seized contraband has to be weighed again after getting it completely dry. Therefore, rejecting the contention

of counsel for the appellant, it is found proved that appellant was carrying 1.5 kilograms of "Ganja" in his illegal possession.

12. The learned trial court, holding the appellant guilty for carrying 1.5 kilograms of "Ganja" in his illegal possession, has sentenced him to one year and six months rigorous imprisonment and fine of Rs.5,000/- under Section 8 read with 20(b)(ii)(B) of NDPS Act. Learned counsel for the appellant has requested that leniency may be shown regarding the period of imprisonment.

13. Having considered the fact that the appellant is not shown to be having any criminal antecedents and also the quantity of contraband seized from him, the period of imprisonment is reduced to one year rigorous imprisonment, while the fine amount is maintained at Rs.5,000/-.

14. Accordingly, the appellant shall now suffer a total period of rigorous imprisonment of one year and fine amount of Rs.5,000/- and in case of default in payment of fine, a further period of one month rigorous imprisonment.The period already undergone by him in custody shall be adjusted against the modified sentence of imprisonment. The disposal of seized "Ganja" shall be ensured in accordance with the diretion of the trial court.

15. Let the copy of judgment be sent to the court below for information and necessary compliance.

(ANURADHA SHUKLA) JUDGE ps

Date: 2023.11.30 14:26:30 +05'30'