Madhya Pradesh High Court
Pramod Kumar Burman vs The State Of M.P. on 2 February, 2024
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 2 nd OF FEBRUARY, 2024
CRIMINAL APPEAL No. 1101 of 2005
BETWEEN:-
PRAMOD KUMAR BURMAN S/O- DHANNU BURMAN,
AGED 30 YEARS, R/O- SWAMI SITARAM WARD, THANA
& DISTRICT-MANDLA (MADHYA PRADESH) (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI SANJAY PATEL - ADVOCATE))
AND
THE STATE OF M.P. THROUGH THANA
MANDLA,DISTRICT-MANDLA (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI OM PRAKASH PATEL - PANEL LAWYER)
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RESERVED ON :- 10-01-2024
PRONOUNCED ON :- 02-02-2024
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This appeal having been heard and reserved for judgment, coming
on for pronouncement this day, Justice Gajendra Singh passed the
following:
JUDGEMENT
This Criminal Appeal under Section 374(2) of Cr.P.C has been
preferred feeling aggrieved by the judgment dated 04-05-2005 in Special
Case No. 02/2005 by the Special Judge, NDPS Act, 1985 whereby the
appellant/accused has been convicted under Section 8 r/w Section 20(b)(ii)
(A) of NDPS Act, 1985 and sentenced to RI for six months and fine of
Rs. 1,000/- with default stipulations.
2 . Facts in brief are that the appellant/accused runs a betel shop
near Sitaram Ward Durga Mandir Mandla. On 09-11-2004, Sub-Inspector-
A. Shrivastava (PW-10) got a secret information that the appellant/accused
is engaged in selling contraband ganja through his betel shop. Sub-
Inspector-A.Shrivastava called witness Sanjay Parihar (PW-3)and Ganesh
(PW-2), and intimated them of the secret information and Panchanama Ex.
P/2 was prepared. Panchanama Ex. P/3 was also prepared but, the search
warrant could not be procured. The appellant/accused was apprehended
on the secret information under NDPS Act and a Panchanama Ex. P/4 was
prepared. The appellant/accused gave consent( Ex. P/5) for search by the
police officers. The police officers searched the appellant/accused. A
Panchnama (Ex. P/6) was prepared, then the search of appellant/accused
was conducted, measuring beam balance, Rs. 600/- and a ragzin packet
containing contraband ganja was seized preparing panchanama (Ex. P/7).
Ex. P/8 was prepared for identification of seized contraband and seized
contraband was weighed that was found to be 180 gms. Two samples of
40gms each were separated and sealed in packet -A/1 and A/2 and rest 100
gms contraband ganja was sealed vide Ex. P/A. The panchanama (Ex. P/9)
was prepared regarding the proceedings and seizure memo (Ex. P/10) was
prepared. The appellant/accused was arrested vide Panchanama (Ex. P/11)
and the said report was forwarded to SDOP, Mandla. The seized articles
were kept in Malkhana and entered in sanha (Ex. P/16 and Ex. P/17). The
seized samples were forwarded to FSL, Sagar vide entry in sanha Ex. P/20
on 09-11-2004. Crime No. 500/04 was registered at Police Station Mandla
and the Chief Judicial Magistrate was intimated under Section 157 of
Cr.P.C.
3. Charges under Section 8 r/w Section 20(b)(ii)(A) of NDPS Act,
1985 were framed and the appellant/accused abjured the guilt. He claimed
trial and advanced defence that the police had apprehended his mother at
about 9:30 PM. When the appellant along with Mohanlal Yadav (DW-2)
approached the police station Mandla and inquired the cause for
apprehending the mother of the appellant-Radha Bai (DW-1) then, the
police officers got signature of the appellant/accused on blank papers and
implicated in this matter. He is innocent.
4 . Prosecution examined Jaipal Singh (PW-1), Ganesh (PW-2),
Sanjay Singh Parihar (PW-3), Mohd. Hasan (PW-4), Rupram Jharia (PW-
5), Ambika Prasad Tiwari (PW-6), Police constable Uttamlal as (PW-7),
Head constable police station Mandla-Ram Kumar Thakur (PW-8),
Assistant Sub-Inspector-R.B.Pandey as (PW-9), Sub-Inspector- Avinash
Shrivastava (PW-10), Constable- Umesh Singh Chouhan as (PW-11) and
defence examined mother of appellant/accused Radha Bai (DW-1) and
Mohanlal Yadav as (DW-2).
5. Appreciating the testimony of Sub-Inspector Avinash Shrivastava
(PW-10), Sanjay Singh Parihar (PW-3), Constable-Mohd. Hasan (PW-4),
Assistant Sub-Inspector-R.B.Pandey as (PW-9), the trial court found
proved that on 09-11-2004, the appellant/accused was found in possession
of contraband 180 gms ganja illegally and discarded the defence version
put through Radha Bai (DW-1) and Mohanlal Yadav (DW-2) and
convicted and sentenced the appellant/accused as per paragraph-1 of the
judgment.
6 . Challenging the conviction and sentence, this appeal has been
preferred on the ground that there is no proper compliance of Section 42
and 50 of NDPS Act, 1985. The police officers were personally interested
in registration of offence. They are not reliable witnesses and no case is
made out. Sentence is also severe and uncalled for.
7. Heard.
8. Learned Public Prosecutor has supported the conviction and
sentence.
9. Perused the record.
10. The trial Court in paragraph-36 of the judgment has mentioned
the objection regarding non-compliance of procedure during seizure and
sampling and forwarding the samples to FSL, Sagar. The learned trial
Court countered this objection on the ground that rojnamchasanha ( Ex.
P/15 to Ex. P/20) have been brought on record in which entries are that
seized material was properly sealed, kept in Malkhana and sent for
examination to FSL,Sagar and thereafter, mentioned in paragraph-13 of the
judgment that the report of FSL, Sagar is on record and as per the report
of FSL, Sagar, the packets for examination are found to be Narcotic Drug-
ganja and mere non-production of Malkhana register does not affect the
prosecution evidence and in FSL report also, the samples were found to be
sealed and also concluded that provisions of Section 42 and 50 of NDPS
Act, has not been complied with. Now, the court is examining the
correctness of this finding.
11. Evidence of 11 witnesses examined by the prosecution does not
mention the report of FSL, Sagar on the basis of which, the learned trial
Court has concluded in paragraph-43 of the judgment that the packets said
to be seized from the appellant/accused contain narcotic drug-ganja. The
order-sheets of trial Court does not mention that the report was admitted
under Section 293(1) of Cr.P.C.
1 2 . Even in judgment also, reference to that report has not been
mentioned vide specific exhibit. It does not appear from the record that the
report was brought to the notice of appellant/accused before using it in the
judgment. Order-sheet of the trial Court or the report in itself does not
make any endorsement that the appellant/accused was aware regarding the
report before delivery of the judgment against the appellant/accused.
1 3 . Total 24 questions were framed for examination of
appellant/accused under Section 313 of Cr.P.C and nowhere this FSL
report or contents of the report is mentioned. Thus, no opportunity to
explain the report was afforded to the appellant/accused regarding this
report.
14. Learned counsel for the appellant has relied in the case of Sattar
Mohammed vs. State of Rajasthan 1988 WLN (UC) 285 wherein in
paragraph-6 of the judgment the position is discussed as under :-
"6. After going through the judgment it is found that
the learned Additional Sessions Judge has relied on
the report of the FSL. In the judgment he has
mentioned the report of the FSL mark 1. Actually,
t hi s report has not been submitted during the
examination of the witnesses. It is possible that this
report was in the file and the report of the FSL need
not have been proved but at least this should have
been tendered in evidence by the prosecution. The
Inspector who investigated the matter the ASI who
detected the appellant have been examined but they
have not stated a single word in their statement that
the report of the FSL has been received and which
is on the record. Simply production of the FSL
report at the time of statement would be sufficient
to mark it as exhibit. Unless a document is
exhibited the learned Additional Sessions Judge
should not have relied on it. When the document
was not tendered in evidence, the effect was that
the accused had no opportunity to ask a single
question to any witness about this FSL report.
Therefore, the FSL report is most important report
and it was the duty of the prosecution to have
exhibited it. Then if we look at the FSL report
where mark 1 is written and this has the initial of
the Additional Sessions Judge. Under his initial the
date is written as 20-6-1986. This date is
obviously incorrect. It is possible that instead of
20-6-1986 he ought to have written 20-6-1988
because the final arguments in this case were heard
on 20-6-1988. When the final arguments were
heard the Additional Sessions Judge marked this
FSL report as mark 1 without bringing to the notice
of the accused that he is marking this document,
without giving an opportunity to the accused to
challenge the FSL report and without granting him
any opportunity to rebut the report of the FSL. The
learned Additional Sessions Judge should not have
relied on this document and because he has relied
over it the entire judgment becomes bad in law.
Therefore, great prejudice has been caused to the
accused and on this very ground the judgment is
liable to be set aside. It creates suspicion in the
establishment of the case against the accused and
benefit of doubt always goes to the accused."
15. In the present matter, the report was not marked as exhibit even
during the final arguments. Thus, the conviction of the appellant/accused
cannot be maintained. Hence, this appeal is allowed and the
appellant/accused is acquitted. His bail bonds stands discharged.
(GAJENDRA SINGH)
JUDGE
PG
