U.O.I. vs Bapu Singh
2023 Latest Caselaw 17879 MP

                                 1



      IN THE HIGH COURT OF MADHYA PRADESH
                       AT I N D O R E
                        BEFORE
             HON'BLE SHRI JUSTICE ANIL VERMA
                ON THE 27th OF OCTOBER, 2023
              CRIMINAL APPEAL No 218 OF 2000

BETWEEN:-
UNION OF INDIA
THROUGH      CENTRAL   BUREAU    OF
NARCOTICS, JAORA (MADHYA PRADESH)
                                                 .....APPELLANT
(BY SHRI MANOJ SONI- ADVOCATE)

AND
1. BAPUSINGH GUJAR
   SON OF GOKUL SINGH GUJAR,
   AGED 50 YEARS,
   RESIDENT OF VILLAGE ANANKHEDI
   TEHSIL ALOTE, DISTRICT RATLAM

2. BAHADURSING GUJAR
   SON OF BAPUSINGH GUJAR
  AGED 22 YEARS,
   RESIDENT OF VILLAGE ANANKHEDI
  TEHSIL ALOTE, DISTRICT
   RATLAM(MADHYA PRADESH)
                                              .....RESPONDENTS
(BY SHRI SHIVENDRA SINGH RAWAT - ADVOCATE)




      This appeal coming on for hearing this day, JUSTICE ANIL
VERMA passed the following:
                        JUDGMENT

The appellant has preferred present criminal appeal under

Section 378(4) of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment dated 13.5.1999 passed by Special Judge (Under NDPS Act) Ratlam in Special Case no. 4/1998 thereby acquitting the accused/respondents no. 1 and 2 from charges under sections 8/19 and 8/29 of Narcotic Drugs and Psychotropic Substances Act, 1985 (in short NDPS Act).

2. As per prosecution story on 25.3.1998 at about 2 pm the officers of the Central narcotics Department visited village Arenwas. Thereafter they went to village Anankhed, where Ganpat was summoned and asked him to show the house of respondent Bapusingh. The respondents no. 1 and 2 were found present in their house. Bapusingh was asked to show the weighing register of opium and bring the collected opium. Bapusingh produced the weighing register of opium and bucket of opium. The contents of bucket were weighted and recovered 7.600 kg only. On this, Bapusingh said that the quantity of opium is in less due to damage of opium crop. Thereafter inspecting party after preparing panchnama under section 50 of NDPS Act, have searched the house of respondent Bapusingh and found 13 kg of opium which was kept illegally by respondents. The same was seized before the witnesses. On interrogation Bapusingh disclosed that the contraband was hidden by him for purchasing a motorcycle and construction of a house. After completion of investigation, charge sheet was filed before the Special Judge Ratlam.

3. Trial court has framed charges under sections 8/19 and 8/29 of NPDS Act against the respondent/accused Bapusingh and Bahadursingh. Accused persons abjured their guilt and pleaded complete innocence.

After appreciating the evidence available on record, the learned trial Court acquitted the respondents from all the charges.

4. Appellant has preferred this appeal on various grounds by stating that learned trial court has committed error in law in not appreciating the evidence available on record in its true prospective. It is also submitted that learned court below has erred in law in not considering the cogent evidence of Investigating officer Sandeepa Sharma (PW-7) and other prosecution witnesses. Although independent seizure witnesses have been turned hostile but on the basis of official witnesses, the prosecution has successfully proved the case against respondents beyond all reasonable doubts. Therefore, it is prayed that impugned judgment dated 13.5.1999 passed by Special Judge be set aside and respondents be convicted for the aforesaid offence.

5. Per-contra, learned counsel for respondents/ accused has opposed the prayer and prayed for dismissal of this appeal by submitting that the trial Court has rightly acquitted the respondents, hence there is no scope for interference in the impugned judgment.

6. Heard learned counsel for both the parties and considered their argument and perused the record.

7. The prosecution has examined Shankarlal (PW-1), Mohankumar (PW-2), Superintendent M.L. Mittoliya (PW-3), Constable Radheshyam Sharma (PW-4), Chemical Assistant Vijay Kaushal (PW-

5),Ganpat (PW-6), Sub Inspector Sandeepa Sharma (PW-7) and Inspector Rajendra Kumar (PW-8) and exhibited 17 documents. Sub Inspector Sandeepa Sharma (PW-7) deposed in her statement that on 25.3.1998 at about 3 pm she alongwith Narcotics Commissioner Rajesh

Nagpal, Inspector Abhay Kumar Shrivastava and other members of preventive team reached at village Anakhedi and went to the house of respondent Bapusingh where Bapusingh and his son Bahadursingh were present there. Bapusingh produced the weighing register of opium and bucket of opium. The contents of bucket were weighted and found 7.600 kg only. The statement of Bapusingh appeared to be suspicious therefore, they have searched house of Bapusingh and during search 13 kg opium was recovered from his house through seizure memo Ex.P-2. But independent witnesses of the aforesaid seizure memo i.e. Shankarlal (PW-1) and Ganpat (PW-6) both have turned hostile and did not support the case of prosecution.

8. It is a settled position of law that the burden of proof lies upon the prosecution to establish that premises in which the alleged contraband has been found was in exclusive possession of accused persons. In the instant case, the accused Bapusingh categorically denied that no opium has been recovered from his house. As per arrest memo (Ex.P-3) electricity bill of Bapusingh has been recovered from his possession but same was not proved in evidence.

9. Investigating officer Sandeepa Sharma (PW-7) prepared the spot map (Ex.P-17) but nothing has been mentioned in Ex.P-17 that the concerned house is of ownership of accused Bapusingh. Spot Map Ex.P- 17 was not signed by Bapusingh. Investigating officer did not call the patwari of the concerned area to prove the ownership of said house. In Ex.P-1 it has been specifically mentioned that respondent Bapusingh and his son Bahadur having their separate houses. In FIR Ex.P-13 it is categorically mentioned that contraband was found in the house of

Bahadursingh therefore, on the basis of aforesaid evidence prosecution has failed to prove that 13 kg opium has been recovered from the house owned by respondent Bapusingh.

10. The allegation leveled against the respondent/accused Bapusingh is that as per provisions of section 19 of NDPS Act he has not informed regarding day to day weight of opium. Although prosecution has filed d`"kd dh vQhe dk nSfud rksy fooj.k from 7.3.1998 to 24.3.1998. But above document was not exhibited by prosecution, but accused is entitled to get benefit of such unexhibited documents of prosecution.

11. From perusal of the aforesaid document it appears that respondent/accused Bapusingh has produced day to day weight of the opium according to the Rules. Therefore, prosecution has failed to prove that respondents/accused Bapusingh committed embezzlement of opium under section 19 of NDPS Act.

12. Apart from the above charge under section 8/29 of NDPS Act has been also framed against the respondent/accused Bapusingh but co- accused Bahadur has been acquitted from all charges and vide order dated 9.2.2000 leave to appeal against respondent no. 2 Bahadursingh has been rejected. Therefore, any participation of co-accused Bahadursingh has not established in the instant case and therefore, trial court has rightly acquitted the respondent/Bapusingh from charges under section 8/29 of NDPS Act and no illegality or impropriety has been found in the impugned order.

13 It is noteworthy that the both independent witnesses Shankar (PW-1) and Ganpat (PW-6) have turned hostile and not supported the

case of prosecution. The case of prosecution is solely based upon the statement of Sub Inspector Sandeepa Sharma (PW-7). She admits in her cross examination that all documents during the search have been prepared by Inspector Abhay Shrivastava. But he was not examined before the trial court therefore, on the basis of the aforesaid evidence, trial court has rightly drawn inference against the prosecution.

14 The statement of Sandeepa Sharma (PW-7) is not supported by independent witness. There are so many ambiguity found in the statement of Sandeepa Sharma (PW-7) which is not supported by documentary evidence. Therefore, trial court has rightly rejected the sole testimony of Sub Inspector Sandeepa Sharma (PW-7).

15 Considering the aforesaid, this court is of the view that learned court below has rightly acquitted the respondent/Bapusingh from all charges and no illegality of impropriety is found in the impugned judgment. This court is of the considered opinion that learned trail court has not committed any error in acquitting the respondents/accused. Therefore, I am inclined to maintain the impugned judgment dated 13.5.1999 passed by Special Judge (under NDPS Act) in special case No. 4/1998.

16 Accordingly this appeal is hereby dismissed. Let a copy of this judgment along with the record of the trial Court be sent back to the concerned trial Court for information and necessary compliance.

C.C. as per rules.

(ANIL VERMA) J U D G E BDJ

BHUNESH Digitally signed by BHUNESHWAR DATT DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE, 2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee5a74a94a55 34aed3a66d9385cfcfc201e0, postalCode=452001,

WAR DATT st=Madhya Pradesh, serialNumber=89FD75A8D0C99E05779A327974E46BC85 102826CE0604B211E4C91102B4D1269, cn=BHUNESHWAR DATT Date: 2023.10.31 15:24:21 -07'00'