Madhya Pradesh High Court
Udham Singh Dangi vs The State Of M.P. on 22 March, 2025
Author: Anuradha Shukla
Bench: Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:14242
1 CRA-1298-1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 22nd OF MARCH, 2025
CRIMINAL APPEAL No. 1298 of 1998
UDHAM SINGH DANGI
Versus
THE STATE OF M.P.
Appearance:
Shri Madan Singh - Advocate for the appellant.
Shri Ajeet Rawat - Government Advocate for the State.
Reserved on : 20.03.2025
Pronounced on : 22.03.2025
JUDGMENT
The appellant herein has preferred the instant appeal under Section 374(2)
of the Code of Criminal Procedure 1973 being aggrieved by the judgment
dated 28.5.1998 passed in Special Case No.20/1996 by Sessions Judge,
Raisen, convicting the appellant for an offence of Section 8 read with Section
20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (for brevity,
"NDPS Act") and sentencing him to rigorous imprisonment for one year with
fine of Rs.2,000/- and to further undergo simple imprisonment for one month
in case of non-payment of fine.
2. Brief facts relevant for the decision of this criminal appeal are that a
mukhbir soochna was received by Sub-Inspector Anil Kumar Singh, posted
in Police Station, Gairatganj, district Raisen, that appellant was selling
"Ganja" in small pouches from his house; he informed his superior officer
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regarding this and proceeded for the place of incident along with his
colleagues; appellant was present there; he was interrogated in the presence
of witnesses and was also informed that he had a right to be searched in
presence of a gazetted officer but the appellant allowed his search to be made
by Sub-Inspector Anil Kumar Singh; a memo was prepared in this regard and
thereafter the appellant was searched; he was having a polythene bag
containing 39 small packets and all of them were containing "Ganja"; the
total weight of "Ganja" was 230 grams; the entire quantity was seized and
appellant was arrested; the seized "Ganja" was sent to Forensic Science
Laboratory, Sagar, from where a report was received confirming the presence
of "Ganja" in the seized item; the investigation was completed in the
registered crime and charge-sheet was filed. After conclusion of trial, the
appellant was held guilty and was sentenced as aforesaid.
3. The judgment of trial court has been challenged in this criminal appeal
on the grounds that without there being any corroboration from independent
evidence, the appellant was held guilty; he was denied the statutory right of
being searched in the presence of a gazetted officer or a Magistrate and,
therefore, compliance of Section 50 of NDPS Act was not ensured. Consent
memo, Ex.P-1, is a forged document. It was wrongly observed by trial court
in para 13 that the alleged seizure was immediately informed to the superior
authority as that finding was not borne out of evidence on record and
compliance of Section 57 of NDPS Act was not ensured at all. It has,
therefore, been submitted that in totality of facts and circumstances, the
judgment of trial court deserves to be set aside and the appellant is entitled to
be acquitted.
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4. State has opposed the appeal claiming that the impugned judgment
deserves no interference either on the point of conviction or sentence.
5. Counsel for both the sides have been heard and the record has been
perused.
6. From the evidence available on record it is evident that the two seizure
witnesses, namely Narmada Prasad (P.W.1) and Gorelal (P.W.2), have
denied to have witnessed the seizure of any contraband from the appellant
and despite declaring them hostile and putting leading questions to them the
prosecution has not been able to extract any supporting fact from their
testimony.
7. The important witness in this case is Sub-Inspector Anil Kumar Singh
(P.W.4). From his testimony, it is proved that he received a mukhbir soochna
about which he informed his superior officer and then proceeded along with
force members to the spot where appellant was present and the appellant,
upon being informed about the mukhbir soochna and also his statutory right
of getting searched in the presence of gazetted officer, this witness searched
the appellant himself after obtaining his written consent, marked as Ex.P-1. It
is also established from the testimony of this witness that 39 small packets
containing "Ganja" were recovered from the possession of appellant, which
were kept in a polythene bag and the same were seized and sealed. Though
suggestions were given to this witness that documents of Exs.P-1 to P-3
were prepared in Police Station but he denied this suggestion and remained
stable on his assertions. In the absence of any significant fact revealed in his
cross-examination to doubt the prosecution story, his statements are found to
be credible.
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8. Anil Kumar Singh (P.W.4) has been corroborated on facts by the
testimony of accompanying Head Constable Keshaw Singh (P.W.6) and even
his testimony has remained consistent and stable. Ram Kishan (P.W.3) too
has confirmed that he had weighed some packets and had signed the memo,
Ex.P-2, prepared in this context. Though he has not been able to disclose the
exact weight and also the contents of packets, but his testimony gives support
to the case of prosecution that he was called to weigh the packets.
9. Another ground raised herein is that compliance of Section 57 of NDPS
Act was not ensured but it was observed by Hon'ble Apex Court in the case
of Sajan Abraham v. State of Kerala (2001) 6 SCC 692 that compliance of
Section 57 of NDPS Act is not mandatory in nature and its non-compliance
would not vitiate the prosecution case. Therefore, the ground argued in the
light of non-compliance of this provision cannot be given an importance out
of proportion.
10. The defence has examined Narayan Singh Lodhi (D.W.1) to establish
the plea of alibi, according to which appellant Udham Singh and this witness
were in the office of Nagar Panchayat on the date of incident from 12:00
p.m. till 4:00 p.m. but this witness has failed to explain why he did not resist
the arrest of an innocent person. No documentary evidence is placed in
defence to show that on the date of incident, appellant was in the office of
Nagar Panchayat for preparation of his ration permit. Therefore, the
statement of defence witness is not of any help to establish the innocence of
appellant. The presence of signature of appellant on the documents prepared
has neither been explained nor any theory has been put up that the seizure
officer or his accompanying team was entertaining any enmity with the
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appellant to implicate him in a false case.
11. In terms of the above discussion, the appellant is convicted under the
offence of Section 8(c) read with Section 20(b)(ii)(A) of NDPS Act. The trial
court committed an error in convicting the appellant under Section 8 read
with Section 20(b)(i) of NDPS Act as that provision relates to the act of
cultivation of cannabis plants. The trial court also erred in passing a sentence
of one year for carrying 230 grams of "Ganja" in possession, whereas under
the relevant section involving small quantity prescribed in Section 20(b)(ii)
(A) of NDPS Act the punishment before the year 2014 was imprisonment
only for six months or fine or both. Therefore, the punishment awarded by
the trial court was also against law.
12. Having considered the quantity of "Ganja" and the circumstances of the
case, the appellant is sentenced for the offence of Section 20(b)(ii)(A) of
NDPS Act to the imprisonment already undergone by him and fine of
Rs.10,000/-, which shall be deposited within two months from the date of
judgment, and in case the appellant fails to pay the fine within stipulated time
period, he shall undergo simple imprisonment for six months.
13. With the aforesaid modification, this appeal is partly allowed .
14. Regarding the disposal of property, the directions given by trial court
shall be observed.
15. Let a copy of this judgment along with its record be send to the trial
court for information and necessary compliance.
(ANURADHA SHUKLA)
JUDGE
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