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2007(1) JLJ 239
(SUPREME COURT)
S.B. Sinha and Dalveer Bhandari, JJ.
Ritesh Chakarvarti v. State of M.P.
Criminal Appeal No. 1016 of 2006 : against the judgment of
M.P High Court Bench at Indore, passed in
Criminal Appeal No. 484 of 2001. Decided on 29.9.2006.
Appellant was allegedly seen proceeding to catch a bus for Mhow. He was seen having a black rexine bag in his hand. Girwar Puri, Sub-Inspector of the Bureau, apprehended him. He was interrogated. He disclosed his name. He allegedly was given an option of search by a Magistrate or a gazetted officer in term of section 50 of the NDPS Act or by the said PW5. The search was conducted and opium weighing 1.300 kgs. was recovered. Wara 3 Although information was received by Sabiha Khatun (Inspector, Bureau), she for reasons known only to the prosecution, was not examined. Inspector Shri S.K. Bajpai was also not examined. Both Premchand (PWI) an autorickshaw driver and Girish (PW2), owner of pan shop, who were witnesses to the search, were declared hostile. The entire prosecution case rested on the testimony of Girwar Puri, Sub-Inspector. [Para 4 Held:
It may be true that PW5 in his evidence proved exhibit P-16 but then as indicated hereinbefore he has contradicted himself in material particulars. Whereas at one place he said that the informer made his statements in his presence; but at another place he stated that he was made only a witness to the document. If he was present throughout, we fail to see any reason as to why the entire statement was not made by the informer in his presence.
Even as regards the weight of the contraband and the nature of the bag in which the same was to be carried stood contradicted. His evidence, thus, was inconsistent. He, therefore, in our opinion, is not a reliable witness. [Paras 29 & 47
(2) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss.42, 50 and 8 -- team of constables and officers present on spot -- all work of searching, recovering and sealing etc. done by one official -- difficult to perceive. [Para17to19
(3) Document -- signed in thick ink -- cannot be said to have been signed on spot without table -- documents are doubtful. [Para 20
(4) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss.42 proviso 50 and 8 -- Superintendent of Bureau, a Gazetted officer, present in raid -- he should disclose his identity and should invoke his powers under proviso to section 42. [Para 22
(5) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss.42 -- Evidence Act, 1872 -- Ss.114 and III. (g) -- place of seizure a busy place -- officer seizing should ask those present on spot to be the witnesses of seizure -- else adverse inference for non-examination of material witness may be drawn. 2002(1) Vidhi Bhasvar 129 (SC) and 2001(1) BLJ 33 (SC) relied on. [Paras 25 to 27
(6) Evidence Act, 1872 -- S.134 -- not quantity of evidence but quality thereof is to be looked into -- but if procedural safeguards are required -- they should be strictly complied with. [Para 29
(7) Criminal Practice -- Court should take care that a person is not convicted on a misguided suspicion. 2002( 1) JLJ 220 (SC) relied on. [Para 39
(8) Narcotic Drugs and Psychotropic Substances Act, 1985 -- S.42 -- effect of illegal seizure -- may not have any direct impact on prosecution case -- same will have a bearing on appreciation of evidence of official witnesses. (1994)3 SCC 299 relied on. [Para 40
(9) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss.50 -- search should normally be conducted in presence of independent witnesses. by Magistrate or a Gazetted officer -- presence of Gazetted officer in raiding team would not subserve the requirement of provision. 2000 CWN 373 and (2005)2 Cal. LT 262 relied on. [Para 41
(10) Criminal Practice -- settled principle of criminal jurisprudence -- more serious the offence, stricter the degree of proof (2003) 12 SCC 377 relied on. [Para 43
(11) Criminal Practice -- suspicion, however great, cannot take place of legal proof (1984)4 SCC 116 relied on. [Para 44
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Sinha, J. -- 1. Leave granted.
2. This appeal is directed against a judgment and order dated 24.1.2006 passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal No. 484 of 2001 affirming the judgment of conviction and sentence dated 3.4.2001 passed by the Special Judge, Indore in Special Case No. 44 of 2000 under section 8 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act").
3. One Sabiha Khatun, an Inspector in Central Bureau of Narcotics (Bureau) received an information from an informer on 2.8.2000 that a person would carry around 1.5 kg. of opium from Indore to Mhow. The informer allegedly disclosed that the person carrying the contraband would be boarding a bus of Mhow at about 4:00 p.m. at Shivaji Vatika. The information was recorded in writing. S.K. Bajpai, Inspector and PW5 Girwar Puri were witnesses thereto. Shivaji Vatika is almost on the other side of the Bureau. There was a pan shop just in front of the Bureau of which Girish (PW2) was the owner. A raiding team was constituted which included Shri S.K. Bajpai, Inspector (who was then incharge of the office of the Superintendent of Police of the Bureau). Girwar Puri (PW5) was also member of the said team. Appellant was allegedly seen proceeding to catch a bus for Mhow. He was seen having a black rexine bag in his hand. Girwar Puri, Sub-Inspector of the Bureau, apprehended him. He was interrogated. He disclosed his name. He allegedly was given an option of search by a Magistrate or a gazetted officer in terms of section 50 of the NDPS Act or by the said PW5. The search was conducted and opium weighing 1.300 kgs. was recovered. A currency note of Rs.100/- was also found on his person. A report was prepared purported to be in terms of section 57 of the NDPS Act and was placed before the superior officer who was none other than the said Shri Bajpai. One Mudi Dhamkani (PW6) was appointed as an investigating officer. He was also a party to the raid.
4. Although information was received by Sabiha Khatun, she for reasons known only to the prosecution, was not examined. Inspector Shri S.K. Bajpai was also not examined. Both Premchand (PW 1) an autorickshaw driver and Girish (PW2), owner of pan shop, who were witnesses to the search, were declared hostile. The entire prosecution case rested on the testimony of Girwar Puri, Sub-Inspector.
5. The informer in his statement named appellant stating:
"On 2.8.2000 at about 1300 hrs. during day time, the information from Mukhbir has been received that Ritesh Chakarvarti, Rio 43, Tilak Nagar Extension, Indore will go to Mhow from Indore by bus. He will come at the Bus Stand near Shivaji Vatika holding about 1.500 kgs. opium in a leather bag at about 1600 hrs. during day time. Therefore, you may initiate appropriate proceeding and to arrest the accused."
6. Although names of Shri S.K. Bajpai, acting as Incharge of the Bureau and Girwar Puri were shown as departmental witnesses thereto, the following endorsement was made:
"The aforesaid officers have been acknowledged with the aforesaid information."
7. What was probably meant was that they were apprised of the report of the said information by MS.Sabiha Khatun.
8. PW1 Premchand in his deposition contended that his signature had been obtained on blank papers. He was an autorickshaw driver. According to him, the search was not carried out in his presence. In answer to the questions put to him in cross-examination by the prosecution, it was stated:
"7. It is right to say that officers of Narcotic Department had intervened me at Shivaji Vatika, A.B. Road. At this place no person namely Girish was intervened before me. It is wrong to say that officers of Narcotic Department told me that person namely Ritesh will come with opium who is to be caught."
8. I had not seen accused present in Court at 5 O'clock with bag in his hand at Shivaji Vatika. I had not seen on spot the accused present in Court, before me accused was not interrogated."
9. The na
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