Madhya Pradesh High Court
Jawar Pardi vs The State Of Madhya Pradesh on 18 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:3997
1 CRR-5777-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 18th OF FEBRUARY, 2025
CRIMINAL REVISION No. 5777 of 2024
JAWAR PARDI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Prakhar Dhengula, Advocate for the applicant.
Dr. Anjali Gyanani, Public Prosecutor for the respondent/State.
ORDER
Heard on the question of admission.
2. This criminal revision, under Section 397/401 of the Cr.P.C, has
been filed against judgment dated 5.11.2024 passed by IV Additional
Sessions Judge, Guna in Criminal Appeal No. 51/2022 arising out of
judgment and sentence dated 17/1/2022 passed by Judicial Magistrate First
Class, Guna in RCT No.1632/2018, by which the applicant has been
convicted under Section 25(1B)(a) of the Arms Act and has been sentenced
to undergo RI for 1 year and a fine of Rs. 500/-, with default imprisonment
of one month RI.
3. According to the prosecution case, on 15.9.2018, Head Constable
Rakesh Shivhare got an information that one person, with an intention to
commit an offence, is moving around Haddi Mill area along with a pistol.
Accordingly, the police party went to the spot, and upon noticing the police
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party, the person started running away. With the help of the police force, he
was taken into custody. He disclosed his name as Jabar Pardi. On physical
search, one 0.32 bore country-made pistol was recovered with two live
cartridges. The applicant was not having any license to carry the firearm, and
accordingly, offences under Section 25/27 of the Arms Act were registered.
The weapon was sent to a ballistic expert, and after obtaining due sanction
from the sanctioning authority, charge sheet was filed.
4. The trial court, by order dated 17.5.2019, framed the charges. The
applicant pleaded not guilty. The prosecution, in order to prove its case,
examined Ramkumar Raghuvanshi (PW1), Anil Sharma (PW2), Man Singh
Chahar (PW3), Deepak Ojha (PW4), Rakesh Shivhare (PW5) and Anoop
Kumar Shrivastava (PW6).
The applicant did not examine any witness in his defense.
The trial court, by its judgment and sentence dated 17.1.2022, passed
in RCT No.1632/2018, convicted the applicant for an offence under Section
25(1B)(a) of the Arms Act and sentenced him to undergo RI for 1 year and a
fine of Rs.500/- with default imprisonment. Being aggrieved by the said
judgment and sentence, the applicant preferred an appeal, which too has been
dismissed by judgment and sentence dated 5.11.2024, passed by the IV
Additional Sessions Judge, District Guna in Criminal Appeal Number
51/2022.
5. Challenging the judgment and sentence passed by the Courts below,
it is submitted by counsel for the applicant that in the present case, the
investigation was done by the complainant himself, and therefore, the
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prosecution of the applicant was vitiated. It was further submitted that there
is nothing on record to suggest that the seized weapon was kept properly in
the Malkhana, as the Malkhana register has not been produced. To buttress
his contentions, counsel for the applicant relied upon a judgment passed by a
coordinate bench of this court in the case of Mohan Singh & Ors. Vs. State
of Madhya Pradesh decided on 23/10/2024 i n Criminal Appeal No.
5191/2018 (Gwalior). It is also submitted by counsel for applicant that the
seized articles were not produced, and therefore, the seizure of the weapon
was not proved.
6 . Per contra, the revision is vehemently opposed by counsel for the
State.
7. Heard learned counsel for the parties.
8. So far as the question as to whether non production of seized
article would result in acquittal of accused or not is concerned, the question
is no more res integra.
9. The Supreme Court, in the case of State of Rajasthan v. Sahi Ram
reported in (2019) 10 SCC 649 , has held as under:
13. In Vijay Jain v. State of M.P. [Vijay Jain v. State of M.P.,
(2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276] , it was submitted
on behalf of the accused, as is evident from para 4 of the decision,
that there was non-production of the contraband goods. This Court
dealt with the matter as under : (SCC pp. 531-33, paras 9-10 &
12)
"9. Para 96 of the judgment of this Court in Noor Aga case
[Noor Aga v. State of Punjab, (2008) 16 SCC 417 : (2010) 3
SCC (Cri) 748] on which the learned counsel for the State
very strongly relies is quoted hereinbelow : (SCC p. 464)
'96. Last but not the least, physical evidence relating to
three samples taken from the bulk amount of heroin was
also not produced. Even if it is accepted for the sake of
argument that the bulk quantity was destroyed, the
samples were essential to be produced and proved as
primary evidence for the purpose of establishing the fact
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of recovery of heroin as envisaged under Section 52-A
of the Act.'
Thus in para 96 of the judgment in Noor Aga case [Noor Aga v.
State of Punjab, (2008) 16 SCC 417 : (2010) 3 SCC (Cri) 748] this
Court has held that the prosecution must in any case produce the
samples even where the bulk quantity is said to have been
destroyed. The observations of this Court in the aforesaid
paragraph of the judgment do not say anything about the
consequence of non-production of the contraband goods before the
court in a prosecution under the NDPS Act.
10. On the other hand, on a reading of this Court's judgment in
Jitendra case [Jitendra v. State of M.P., (2004) 10 SCC 562 : 2004
SCC (Cri) 2028] , we find that this Court has taken a view that in
the trial for an offence under the NDPS Act, it was necessary for
the prosecution to establish by cogent evidence that the alleged
quantities of the contraband goods were seized from the
possession of the accused and the best evidence to prove this fact
is to produce during the trial, the seized materials as material
objects and where the contraband materials alleged to have been
seized are not produced and there is no explanation for the failure
to produce the contraband materials by the prosecution, mere oral
evidence that the materials were seized from the accused would
not be sufficient to make out an offence under the NDPS Act
particularly when the panch witnesses have turned hostile. Again,
in Ashok [Ashok v. State of M.P., (2011) 5 SCC 123 : (2011) 2
SCC (Cri) 547] this Court found that the alleged narcotic powder
seized from the possession of the accused was not produced before
the trial court as material exhibit and there was no explanation for
its non-production and this Court held that there was therefore no
evidence to connect the forensic report with the substance that was
seized from the possession of the appellant.
***
12. We are thus of the view that as the prosecution has not
produced the brown sugar before the Court and has also not
offered any explanation for non-production of the brown sugar
alleged to have been seized from the appellants and as the
evidence of the witnesses (PW 2 and PW 3) to the seizure of the
materials does not establish the seizure of the brown sugar from
the possession of the appellants, the judgment of the trial court
convicting the appellants and the judgment [Vijay Jain v. State of
M.P., Criminal Appeal No. 1048 of 2007, order dated 21-2-2011
(MP)] of the High Court maintaining the conviction are not
sustainable."
(emphasis supplied)
14. In a recent decision dated 30-7-2019 of this Court in Vijay
Pandey v. State of U.P. [Vijay Pandey v. State of U.P. , (2019) 18
SCC 215 : 2019 SCC OnLine SC 942] the benefit was extended
on the ground that there was no co-relation between the seized
samples and one that was tested. Reliance was placed on the
observations of this Court in Vijay Jain [Vijay Jain v. State of
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M.P., (2013) 14 SCC 527 : (2014) 4 SCC (Cri) 276] which inter
alia stated that there was no evidence to connect the forensic
report that the substance that was seized from the possession of the
accused. The relevant observations are to be found in para 8 of the
decision : (Vijay Pandey case [Vijay Pandey v. State of U.P. ,
(2019) 18 SCC 215 : 2019 SCC OnLine SC 942] , SCC pp. 217-
18)
"8 . The failure of the prosecution in the present case to relate
the seized sample with that seized from the appellant makes
the case no different from failure to produce the seized
sample itself. In the circumstances the mere production of a
laboratory report that the sample tested was narcotics cannot
be conclusive proof by itself. The sample seized and that
tested have to be co-related. The observations in Vijay
Jain [Vijay Jain v. State of M.P. , (2013) 14 SCC 527 : (2014)
4 SCC (Cri) 276] , as follows are considered relevant : (SCC
p. 531, para 10)
'10. On the other hand, on a reading of this Court's
judgment in Jitendra case [Jitendra v. State of M.P. ,
(2004) 10 SCC 562 : 2004 SCC (Cri) 2028] , we find
that this Court has taken a view that in the trial for an
offence under the NDPS Act, it was necessary for the
prosecution to establish by cogent evidence that the
alleged quantities of the contraband goods were seized
from the possession of the accused and the best
evidence to prove this fact is to produce during the trial,
the seized materials as material objects and where the
contraband materials alleged to have been seized are not
produced and there is no explanation for the failure to
produce the contraband materials by the prosecution,
mere oral evidence that the materials were seized from
the accused would not be sufficient to make out an
offence under the NDPS Act particularly when the
panch witnesses have turned hostile. Again,
in Ashok [Ashok v. State of M.P. , (2011) 5 SCC 123 :
(2011) 2 SCC (Cri) 547] this Court found that the
alleged narcotic powder seized from the possession of
the accused was not produced before the trial court as
material exhibit and there was no explanation for its
non-production and this Court held that there was
therefore no evidence to connect the forensic report
with the substance that was seized from the possession
of the appellant.'"
(emphasis supplied)
15. It is true that in all the aforesaid cases submission was
advanced on behalf of the accused that failure to produce
contraband material before the Court ought to result in acquittal of
the accused. However in none of the aforesaid cases the said
submission singularly weighed with this Court to extend benefit of
acquittal only on that ground. As is clear from the decision of this
Court in Jitendra [Jitendra v. State of M.P. , (2004) 10 SCC 562 :
NEUTRAL CITATION NO. 2025:MPHC-GWL:3997
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2004 SCC (Cri) 2028] , apart from the aforesaid submission other
facets of the matter also weighed with the Court which is evident
from paras 7 to 9 of the decision. Similarly
in Ashok [Ashok v. State of M.P. , (2011) 5 SCC 123 : (2011) 2
SCC (Cri) 547] , the fact that there was no explanation where the
seized substance was kept (para 11) and the further fact that there
was no evidence to connect the forensic report with the substance
that was seized, (para 12) were also relied upon while extending
benefit of doubt in favour of the accused. Similarly, in Vijay
Jain [Vijay Jain v. State of M.P. , (2013) 14 SCC 527 : (2014) 4
SCC (Cri) 276] , the fact that the evidence on record did not
establish that the material was seized from the appellants, was one
of the relevant circumstances. In the latest decision of this Court
i n Vijay Pandey [Vijay Pandey v. State of U.P. , (2019) 18 SCC
215 : 2019 SCC OnLine SC 942] , again the fact that there was no
evidence to connect the forensic report with the substance that was
seized was also relied upon to extend the benefit of acquittal.
16. It is thus clear that in none of the decisions of this Court, non-
production of the contraband material before the court has
singularly been found to be sufficient to grant the benefit of
acquittal."
Thus, it is clear that non-production of seized articles by itself would not
be sufficient to hold that the prosecution has failed to prove the seizure.
Furthermore, in the present case, the prosecution had examined Rakesh
Shivhare (PW-5). He has identified the seized country-made pistol and two
live cartridges, which are marked as A1 and A2.
10. So far as the contention made by counsel for applicant that the
investigation was also done by Rakesh Shivhare, and therefore, the
investigation is bad as the complainant himself was the investigating officer,
is concerned, the question is no more res integra. The Supreme Court, in the
case of Mukesh Singh vs. State (Narcotic Branch Of Delhi) , reported in 2020
SCC Online 700, has held that the trial cannot be vitiated only on the ground
that the investigation was done by an informant/police officer who himself
was the complainant, and accordingly, has held as under:-
"13. From the above discussion and for the reasons stated above,
we conclude and answer the reference as under:
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13.1. (I) That the observations of this Court in Bhagwan
Singh v. State of Rajasthan [Bhagwan Singh v. State of Rajasthan ,
(1976) 1 SCC 15 : 1975 SCC (Cri) 737] , Megha Singh v. State of
Haryana [Megha Singh v. State of Haryana, (1996) 11 SCC 709 :
1997 SCC (Cri) 267] and State v. Rajangam [State v. Rajangam,
(2010) 15 SCC 369 : (2012) 4 SCC (Cri) 714] and the acquittal of
the accused by this Court on the ground that as the informant and
the investigator was the same, it has vitiated the trial and the
accused is entitled to acquittal are to be treated to be confined to
their own facts. It cannot be said that in the aforesaid decisions,
this Court laid down any general proposition of law that in each
and every case where the informant is the investigator there is a
bias caused to the accused and the entire prosecution case is to be
disbelieved and the accused is entitled to acquittal.
13.2. (II) In a case where the informant himself is the investigator,
by that itself cannot be said that the investigation is vitiated on the
ground of bias or the like factor. The question of bias or prejudice
would depend upon the facts and circumstances of each case.
Therefore, merely because the informant is the investigator, by
that itself the investigation would not suffer the vice of unfairness
or bias and therefore on the sole ground that informant is the
investigator, the accused is not entitled to acquittal. The matter has
to be decided on a case-to-case basis. A contrary decision of this
Court in Mohan Lal v. State of Punjab [Mohan Lal v. State of
Punjab, (2018) 17 SCC 627 : (2019) 4 SCC (Cri) 215] and any
other decision taking a contrary view that the informant cannot be
the investigator and in such a case the accused is entitled to
acquittal are not good law and they are specifically overruled."
11. So far as non-production of the Malkhana register is concerned,
both the courts below have given concurrent findings of fact with regard to
the seizure of the country-made pistol from the applicant. Anoop Kumar
Srivastava (PW-6), who was working as an arms clerk in the office of the
Collectorate, Guna, stated that the country-made pistol was produced in a
sealed condition, and the Collector, after going through the case diary as well
as after opening the sealed arms, had granted sanction for prosecution. Thus,
it is clear that the arms were produced before the Collector in a sealed
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condition. In exercise of revisional powers, this Court cannot interfere with
the concurrent findings of fact unless they are shown to be perverse. No
perversity could be pointed out by counsel for the applicant.
12. Accordingly, the revision fails and is dismissed in limine.
13. The applicant was granted bail by the order of this court. His bail
bonds are hereby recalled.
The applicant is directed to immediately surrender before the trial
court on or before 28.3.2025, failing which the trial court shall issue a
warrant of arrest against the applicant for undergoing the jail sentence.
14. Let a copy of this order along with record of the Courts below be
sent back for necessary information and compliance.
(G. S. AHLUWALIA)
JUDGE
Rashid
