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High Court Of Madhya Pradesh
V. D. GYANI
KALEKHAN - Appellant
Versus
STATE OF M.P. - Respondents
Criminal Appeal 393 Of 1988
Decided On : 08/31/1989
NARCOTIC DRUGS AND PSYCHOTROPIC SUBSTANCES ACT, 1985 - SECTION 8/18, 8/25 - POSSESSION OF OPIUM - KNOWINGLY PERMITTING THE USE OF A VEHICLE FOR TRANSPORTING OPIUM - MENS REA - PRESUMPTION OF CULPABLE MENTAL STATE - SECTION 35 - INTERPRETATION.
Fact of the Case:
The appellants, Kalekhan and Dinesh, were convicted under Sections 8/18 and 8/25 of the Narcotic Drugs and Psychotropic Substances Act, 1985, respectively, for possession of opium and knowingly permitting the use of a vehicle for transporting opium. The prosecution's case was that the appellants were found in a car containing opium, and that Dinesh, as the owner of the car, had knowingly permitted its use for the illegal transportation of opium.
Finding of the Court:
The court found that the prosecution's evidence was insufficient to prove that the appellants had knowledge of the opium being concealed in the car. The court noted that two other occupants of the car had escaped, and that the prosecution had not made any efforts to trace them or to establish a link between them and the appellants. The court also found that the trial court had erred in relying on a short note of a judgment in a different case to support its conclusion that the opium was in the possession of Kalekhan.
Issues: 1. Whether the prosecution had proved that the appellants had knowledge of the opium being concealed in the car. 2. Whether the trial court had erred in relying on a short note of a judgment in a different case to support its conclusion that the opium was in the possession of Kalekhan.
Ratio Decidendi: 1. The court held that the prosecution had failed to prove that the appellants had knowledge of the opium being concealed in the car. The court noted that the mere fact that Kalekhan was driving the car and that Dinesh was the owner of the car was not sufficient to establish knowledge of the concealed opium. The court also noted that the prosecution had not adduced any evidence to show that the appellants had any involvement in the concealment of the opium or that they had any knowledge of the illegal transportation of opium. 2. The court held that the trial court had erred in relying on a short note of a judgment in a different case to support its conclusion that the opium was in the possession of Kalekhan. The court noted that the short note did not provide sufficient details of the facts of the case or the reasoning of the court, and that it was therefore not a reliable basis for the trial court's conclusion.
Final Decision: The court allowed the appeals and acquitted the appellants of the charges against them.
( 1 ) THIS appeal arises out of the judgement dt. 25-4-88, passed by the Additional Sessions Judge, Neemuch in Sessions Trial No. 167/87, thereby convicting the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'act') and sentencing him to undergo rigorous imprisonment for ten years with fine of Rs. 1,00,000/- or in default of payment of fine, to suffer R. I. for one year.
( 2 ) THERE is yet another connected appeal Cr. A. 201/88 Dinesh v. Union of India, arising out of the same judgement preferred by another co-accused Dinesh. Both Kalekhan and Dinesh were charged and tried together. Dinesh has been convicted u/s. 8/25 of the Act and similarly sentenced as accused appellant No. 1 Kalekhan. Both these appellants have been convicted and sentenced by a common judgement. The appeals were heard together and are being decided by a common judgement.
( 3 ) THE charge against accused appellant Kalekhan was that on 11-8-87, around 5. 00 a. m. in village Telankhedi he was found to be carrying 9 kg. 500 gms. opium in a car bearing registration No. RJB 7409 which was recovered from his possession. The charge against accused appellant No. 2 Dinesh was that he knowingly permitted the aforesaid car, of which he was the owner, for illegal transportation of opium
( 4 ) PROSECUTION examined in all four witnesses to prove the charge against the accused appellants. These witnesses include the Chemical Analyser K. P. Pillai (PW 1), Omprakash - a panch witness - PW 2, the Narcotic Inspectors Shivphersing Yadav - PW 3 and Abdul Samad Khan - PW 4. The Panch witness Omprakash PW 2 has not supported the prosecution case and was declared hostile. The other Panch witness to the search, seizure and recovery has not been examined by the prosecution.
( 5 ) PROSECUTION case, stated in brief, was that the officials of Narcotic Department had information about illicit traffic of opium. Accordingly the preventive staff including Inspector Yadav, who lodged the F. I. R. Ex. P. 8, left in a jeep towards Nimbakhedi and Chhoti Sadri on 10th evening. Around 5. 00 a. m. , car No. RJB 7408 was checked at the barrier and three polythene bags, containing opium were found, concealed in the left hand side door of the said car. A seizure memo Ex. P. 2 was prepared, accused Kalekhan was arrested vide arrest memo Ex. P. 4 and thereafter report F. I. R. was lodged.
( 6 ) AS noted above, the prosecution case is not supported by independent Panch witnesses and the other Panch witness has not been examined by the prosecution, it solely higges on the testimony of Shivphersingh PW 3 and Abdul Samad Khan PW 4 - inspectors belonging to the Narcotic department. So far as Abdul PW 4 is concerned, he had merely investigated the case. He does not claim to be present on the spot at the time of search and seizure of the car. Thus the conviction rests on the sole testimony of PW 3. It is his evidence which has been relied upon by the trial Court for recording conviction against the appellants. But that is no reason to discard to the same weight and credibility as any other witness provided, of course there is no infirmity in their testimony. Absence of corroboration by an independent witness merely calls for a closure scrutiny of evidence and not outright rejection, for want of corroboration by an independent witness. A public servant is not to be disbelieved merely because he is a public servant.
( 7 ) NOW coming to the evidence on record, as evident from F. I. R. Ex. P. 8, Inspector Yadav PW. 3 had set out for Nimbakhedi and Choti sadari under instructions of the Superintendent, Central Narcotic Bureau, Neemuch. Learned counsel appearing for the appellants contended that this so called F. I. R. Ex. P. 8 is certainly not the first Information Report, as is clear from its reading. It is the result of the investigation. It cannot, therefore, be treated either as the F. I. R. or the earliest version of the p
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