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2006 Supreme(MP) 349
2007(1) JLJ 279
S.C. Vyas, J.
Jal Singh v. State of M.P.
Criminal Appeal No.400 of 1993 (Indore): against the judgment of
IV Additional Sessions Judge, Ratlam, passed in
Sessions Case No.110 of 1991; Decided on 9.3.2006.
Shrichandra Sharma and Sanjay Sharma for appellant;
P. Newalkar, Government Advocate for State.
Headnote:(1) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss. 8/18 and 55 -- sealing of seized article not proved -- safe custody in Malkhana also not proved -- doubtful if article sent for chemical examination was the one seized from accused -- conviction cannot be recorded.
Appellant and one more person was found in the bus in suspicious condition, their names and addresses were ascertained and they were informed that police officer wants to take search of them. After obtaining their consent by consent letter EX.P-l0, they were searched, appellant Jalsingh was having a cloth bag with him, when the bag was opened then three plastic bags containing opium were found kept inside the bag. The article was smelled and tested by the police officer and witnesses and it was found to be opium, on weighment its weight was found 475 gms. Out of that article two samples of 50 gms. each were drawn and the contraband article and samples were sealed separately, seizure memo EX.P-2 was drawn on the spot, appellant and another co-accused were arrested by arrest memo EX.P-1. [Para 2
Held : Absence of seal impression on the recovery memo becomes very much important and as no seal impression was made on the recovery memo, so it became possible to draw some other sample from the same article or to send some other sample for chemical examination. In any case, it becomes doubtful as to whether chemical examination report EX.P-11 is pertaining to the same article which was said to have been seized from the present appellant. [Para 21
This witness admitted that no seal was being put on the lock of Malkhana and anybody can enter in the Malkhana as and when required. In such situation, possibility of switching sample cannot be ruled out, particularly when Head Constable has not entered in the witness box to give positive evidence to the effect that from the date of taking sample till it was dispatched for chemical examination it remained in his safe custody. 2005 CrLJ 328 (SC); 2005 SCC (Cri) 595 and AIR 1994 SC 117 followed. 1981 (II) MPWN 218 relied on. [Para 24
(2) Narcotic Drugs and Psychotropic Substances Act, 1985 – Ss. 41 and 42 -- information regarding commission of offence -- alleged to have been recorded but neither register produced nor any witness examined -- information also not sent to immediate superior officer -- lacuna is fatal for prosecution. [Para 10
(3) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss. 2 and 57 -- provisions -- are directory -- non-compliance would not ipso facto violate trial or conviction -- but provisions cannot be ignored totally -- failure will have a bearing on appreciation of evidence regarding arrest or seizure of article. 2001 (II) MPWN 54 (SC) followed. [Para 13
(4) Narcotic Drugs and Psychotropic Substances Act, 1985 -- S.50 -- opium recovered from bag and not from personal search of accused -not fatal even if provisions not complied with strictly. 2001 (II) MPWN 54 (SC) followed. [Para 16
¼1½ Lokid vks"kf/k vkSj eu%çHkkoh inkFkZ vf/kfu;e] 1985& &/kkjk 8@18 rFkk 55& &vfHkx`ghr inkFkZ dh eqgjcanh lkfcr ugha& &eky[kkus esa fujkin vfHkj{kk Hkh lkfcr ugha& &lansgkRed fd jklk;fud ijh{k.k ds fy, Hkstk x;k inkFkZ ogh Fkk tks vfHk;qDr ls vfHkxzghr fd;k x;k& &nks"kflf) vfHkfyf[kr ugha dh tk ldrhA
vihykFkhZ vkSj ,d vU; O;fDr cl esa lafnX/k voLFkk esa ik, x,] muds uke vkSj irs vfHkfuf‘pr fd, x, rFkk mUgsa bfÙkyk nks xbZ fd iqfyl vf/kdkjh mudh ryk‘kh ysuk pkgrk gSA lgefr i= ¼çn‘kZ ih&10½ }kjk mudh lgefr vfHkçkIr djus ds i‘pkr mudh ryk‘kh yh xbZ] vihykFkhZ tkyflag ds ikl diM+s dk FkSyk Fkk] tc FkSyk [kksyk x;k rks rhu IykfLVd FkSys] ftuesa vQhe Fkh] FkSys ds vanj j[ks ik, x,A og inkFkZ iqfyl vf/kdkjh vkSj lkf{k;ksa }kjk lw¡?kk vkSj ij[kk x;k rFkk fu"d"kZ fudkyk x;k fd og vQhe gS] rkSyus ij mldk otu 475 xzke ik;k x;kA ml inkFkZ esa 50 xzke çR;sd ds nks uewus fudkys x, rFkk fofuf"k) inkFkZ vkSj uewus i`Fkd&i`Fkd eqgjcan fd, x,] LFky ij vfHkxzg.k Kkiu ¼çn‘kZ ih&2½ rS;kj fd;k x;k] vihykFkhZ vkSj ,d vU; lg&vfHkqDr fxj¶rkjh Kkiu ¼çn‘kZ ih&1½ }kjk fxj¶rkj fd, x,A ¼iSjk 2½
vfHkfu/kkZfjr % cjkenxh Kkiu ij eqgj eqnzk dk vHkko cgqr egRoiw.kZ gks tkrk gS rFkk D;ksafd cjkenxh Kkiu ij eqgj eqfnzr ugha dh xbZ blfy, mlh inkFkZ ls dksbZ vU; uewuk fudkyuk ;k jkl;fud ijh{k.k ds fy, dksbZ vU; uewuk Hkstuk laHko gks x;k FkkA fdlh Hkh n‘kk esa lansgkLin gks tkrk gS fd D;k jklk;fud ijh{k.k fjiksVZ ¼çn‘kZ ih&11½ mlh inkFkZ ls lacaf/kr gS ftldk çLrqr vihykFkhZ ls vfHkx`ghr fd;k tkuk dfFkr gSA ¼iSjk 21½
bl lk{kh us Lohdkj fd;k fd eky[kkus ds rkys ij eqgj ugha yxkbZ tkrh Fkh rFkk tSls vkSj tc vko‘;d gks] dksbZ Hkh eky[kkus esa ços‘k dj ldrk FkkA ,slh ifjfLFkfr esa] uewuk cnys tkus dh laHkkouk ls badkj ugha fd;k tk ldrk] fof‘k"Vr% tc gsM dkULVscy bl vk‘k; dk fu‘pk;d lk{; nsus ds fy, lk{kh dV?kjs esa ugha vk;k fd uewuk fy, tkus ds fnukad ls jklk;fud ijh{k.k ds fy, uewuk çsf"kr fd, tkus rd og mldh fujkin vfHkj{kk esa jgk FkkA 2005 fØ ,y vkj 328 ¼,l lh½] 2005 ,l lh lh ¼fؽ 595 rFkk , vkb vkj 1994 ,l lh 117 vuqlfjrA 1981¼2½ e-ç- ohDyh uksVl 218 voyafcrA ¼iSjk 24½
¼2½ Lokid vks"kf/k vkSj eu%çHkkoh inkFkZ vf/kfu;e] 1985& &/kkjk 41 rFkk 42& &vijk/k fd, tkus ds ckjs esa bfÙkyk& &vfHkfyf[kr dh tkuk vfHkdfFkr ijarq u jftLVj is‘k fd;k x;k] u lk{kh dh ijh{kk gh dh xbZ& &bfÙkyk vR;ofgr ofj"B vf/kdkjh dks Hkh Hksth ugha xbZ& &deh vfHk;kstui{k ds fy, ?kkrd gSA ¼iSjk 10½
¼3½ Lokid vks"kf/k vkSj eu%çHkkoh inkFkZ vf/kfu;e] 1985& &/kkjk 52 rFkk 57& &mica/k& &funs‘kkRed gSa& &vuuqikyu ls fopkj.k ;k nks"kflf) Lo;eso nwf"kr ugha gksxh& &ijarq mica/kksa dh iw.kZ mis{kk ugha dh tk ldrh& &foQyrk ls fxj¶rkjh ;k inkFkZ ds vfHkxzg.k ls lacaf/kr lk{; dk ewY;kadu çHkkfor gksxkA 2001¼2½ e-ç- ohDyh uksV~l 54 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 13½
¼4½ Lokid vks"kf/k vkSj eu%çHkkoh inkFkZ vf/kfu;e] 1985& &/kkjk 50& &vQhe FkSys ls cjken dh xbZ] vfHk;qDr dh ‘kkjhfjd ryk‘kh esa ugha& &mica/kksa dk vfrfu;efu"B vuqikyu ugha fd;k x;k gks rc Hkh ?kkrd ughaA 2001¼2½ e-ç- ohDyh uksV~l 54 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 16½
1. Feeling aggrieved by the judgment dated 21.7.1993 passed by IV Additional Sessions Judge, Ratlam, in Sessions Case No.110/91 holding appellant guilty for the offence punishable under section 8 read with section 18 of NDPS Act, 1985 and sentencing him with RI for 10 years and fine of Rs.l,00,000/- with a direction to undergo one year's RI, in default of payment of fine amount, this appeal has been preferred.
2. Short facts of the case are that on 14.4.1991 Krishna Kumar Upadhyaya PW3, Station House Officer received an information from the informer that two persons were coming by Ratlam-Banswada bus carrying contraband opium with them for its delivery to someone at Banswada. On this information Krishna Kumar Upadhayaya PW3 along with other witnesses proceeded and intercepted bus bearing No. CIF 232 at bus stand village Kunda. The bus was checked in presence of witnesses Anil Kumar PW 1 and Prithviraj Singh PW2, appellant and more person was found in the bus in suspicious condition, their names and addresses were ascertained and they were informed that police officer wants to take search of them. After obtaining their consent by consent letter Ex.P-10, they were searched, appellant Jalsingh was having a cloth bag with him, when the bag was opened then three plastic bags containing opium were found kept inside the bag. The article was smelled and tested by the police officer and witnesses and it was found to be opium, on weighment its weight was found 475 gms. Out of that article two samples of 50 gms. each were drawn and the contraband article and samples were sealed separately, seizure memo EX.P-2 was drawn on the spot appellant and another co-accused were arrested by arrest memo EX.P-1. On taking their search therein, ticket from Sarwan to Banswada and from Banswada to Paragraph were found in possession of the appellant. Journey tickets were seized by seizure memo EX.P-3 and EX.P-5. Thereafter Krishna Kumar Upadhayaya PW3 returned back to the Police Station Sailana along with appellant and the co-accused and with sealed contraband article and their samples. He registered offence under section 8 read with section 18 of NDPS Act by writing FIR EX.P-9. One sample was sent for examination to Government Opium and Alkaloid Factory, Neemuch, from where report EX.P-11 was received stating therein that the article which was sent for examination was opium.
3. Appellant abjured his guilt during trial and pleaded that he had come to Sailana weekly bazar for purchasing she-goat and was going back to his village by bus. Police intercepted the bus and brought him down from the bus and arrested him, no opium or journey tickets were recovered from his possession and he has been falsely implicated in this case.
4. Learned trial Court after examining the prosecution witnesses and on completion of trial found appellant guilty and sentenced him as stated hereinabove.
5. Learned counsel for the appellant Shrichandra Sharma has assailed impugned judgment on many ground but his main ground of attack against the finding of guilt recorded by the learned trial Judge is regarding sealing the contraband article and its safe custody before the sample was sent for examination to opium factory, Neemuch.
6. Learned counsel for the appellant further submitted that Panch witnesses Anil Kumar Sanotiya PW I and Prithviraj Singh PW2 have not supported the case of the prosecution and have been declared hostile and were subjected to cross-examination by prosecution itself. In absence of their corroboration, the entire prosecution case hinges on the sole testimony of Krishna Kumar Upadhyaya PW3 who was seizing officer as well as investigating officer. Conductor of the bus Govind Ram PW5 has also been declared hostile. Learned counsel submitted that Krishna Kumar Upadhyaya PW3 admitted in his cross-examination in paragraph 40 that though he gave his search to the appellant before conducting any search of the appellant, but no Panchnama of search was prepared by h
