Gopal vs State of M. P. - 2001 Supreme(MP) 570

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(MP) 570

2002 (1) JLJ 220
SUPREM COURT
Dr. A.S. Anand,-C.J. 1., R.C. Lahoti and Ashok Bhan, JJ.
Gopal v. State of M.P.
Cr. Appeal No. 248 of 2000; Decided on: 18.9.2001.

Advocates:
Saxena for appellant Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss. 8/18 -- opium hidden in heap of Kadvi lying on boundry of two fields -- one belonging to accused-appellant, another to father of acquitted. accused -- conscious possession of appellant cannot be presumed.

Headnote:Two persons were moving about in suspicious conditions and were carrying some articles with them. On seeing the police party, both tried to run away. They were chased for a distance of about 1-1 and 1/2 km and found hiding themselves behind a heap of kadvi. The police party, on searching the kadvi, recovered from that heap, a polythene bag allegedly containing about 1.300 kg. of opium besides 3 iron kadas and certain other articles like khurchas, sigdi, gunny bag, empty tins of Dalda etc. Two of the iron kadas were having opium stuck on them and on scraping, 250 grams of opium was recovered, On the basis of this recovery, a first information report was lodged on 14th January, 1988. The recovered articles were seized and later on samples of 30 grams each were sent to Government Opium and Alkaloid Factory, Neemuch for testing......After receipt of the test report, appellant and one Prabhu were sent up for trial. After recording evidence of five witnesses examined by the prosecution, the appellant was convicted for an offence under section 8/18 of the NDPS Act and sentenced to undergo 10 years‘ RI. No fine was, however, imposed. Accused - Prabhu, was acquitted of all the charges. Aggrieved by the judgment and order of the trial Court dated 6th December, 1988, the appellant filed an appeal in the High Court, which was dismissed.....Hence, this appeal by special leave. [Para I Held: According to the prosecution, contraband was recovered from a heap of kadvi, which was lying on the boundary of agricultural fields of survey Nos, 1511 and 1517, one belonging to the appellant Gopal while the other belonging to Pannalal, father of acquitted accused Prabhu. There is no evidence on the record to show as to who had placed the kadvi on the boundary of the two fields. After having given benefit of doubt to co-accused Prabhu, against whose acquittal the State did not file any appeal, it was not open to the trial Court to have surmised that the contraband was in conscious possession of the appellant. [Para 5]
       Lokid vks"kf/k vkSj eu% çHkkoh inkFkZ vf/kfu;e] 1985&/kkjk 8@18 & nks [ksrksa dh lhek ij iM+h dM+oh esa vQhe fNikbZ xbZ & ,d [ksr vfHk;qDr vihykFkhZ dk] nwljk nks"keqDr vfHk;qDr ds firk dk & vihykFkhZ dk HkkuiwoZd dCtk gksus dh mi/kkj.kk ugha dh tk ldrhA
       nks O;fDr ‘kadkLin n‘kk esa ?kwe jgs Fks rFkk og vius lkFk dqN oLrq,¡ ys tk jgs FksA iqfyl ny dks ns[kdj nksuksa us Hkkxus dk ç;Ru fd;kA yxHkx 1&1 1@2 fd-eh- dh nwjh rd mudk ihNk fd;k x;k rFkk og dM+oh ds <sj ds ihNs fNis gq, ik, x,A dM+oh dh ryk‘kh ysus ij iqfyl ny dks ml <sj ls ,d iksfyFkuh FkSyk] ftlesa vfHkdfFkr :i ls yksgs ds 3 dM+ksa ds vfrfjDr yxHkx 1-300 fd-xzk- vQhe Fkh rFkk [kqjps] flxM+h] cksjh] MkyMk ds [kkyh fMCcs] vkfn dqN vU; oLrq,¡ cjken gqbZA yksgs ds dM+ksa esa ls nks ij vQhe fpidh gqbZ Fkh rFkk [kqjpus ij 250 xzke vQhe cjken gqbZA bl cjkenxh ds vk/kkj ij 14 tuojh 1988 dks çFke bfÙkyk fjiksVZ nkf[ky dh xbZA cjken dh xbZ oLrq,¡ vfHkx`ghr dh xbZ rFkk ckn esa] çR;sd esa ls 30 xzke ds uewus ijh{k.k ds fy, ljdkjh vQhe rFkk {kkjksn dkj[kkuk] uhep Hkssts x,A---ijh{k.k fjiksVZ dh çkfIr ds i‘pkr~ vihykFkhZ rFkk çHkq dks fopkj.k ds fy, is‘k fd;k x;kA vfHk;kstui{k }kjk ijhf{kr ik¡p lkf{k;ksa dk lk{; vfHkfyf[kr djus ds i‘pkr~ vihykFkhZ dks Lokid vks"kf/k vf/kfu;e dh /kkjk 8@18 ds v/khu vijk/k ds fy, fl)nks"k Bgjk dj 10 o"kZ dk dfBu dkjkokl Hkksxus dk naMkns‘k fn;k x;kA rFkkfi] tqekZuk vf/kjksfir ugha fd;k x;kA vfHk;qDr çHkq dks lc vkjksiksa ls nks"keqDr dj fn;k x;kA fopkj.k U;k;ky; ds fu.kZ; rFkk vkns‘k fnukad 6 fnlacj] 1988 ls O;fFkr gksdj vihykFkhZ us mPp U;k;ky; esa vihy Qkby dh tks [kkfjt gks xbZA-------blfy, fo‘ks"k btktr }kjk ;g vihy dh xbZ gSA ¿iSjk 1
       vfHkfu/kkZfjr % vfHk;kstui{k ds vuqlkj] fuf"k) oLrq dM+oh ds <sj ls cjken gqbZ Fkh tks losZ{k.k Ø-1511 rFkk 1517 ds [ksrksa] ftuesa ls ,d vihykFkhZ xksiky dk Fkk tcfd nwljk nks"keqDr vfHk;qDr çHkq ds firk dk Fkk] dh lhek ij iM+k FkkA vfHkys[k ij ,slk lk{; ugha gSa ftlls nf‘kZr gks fd nksuksa [ksrksa dh lhek ij dM+oh fdlus j[kh FkhA lg vfHk;qDr ^çHkq* dks ftldh nks"keqfDr ds fo#) jkT; us vihy Qkby ugha dh] lansg dk Qk;nk nsus ds i‘pkr fopkj.k U;k;ky; }kjk ;g vuqeku ugha yxk;k tk ldrk Fkk fd fuf"k) oLrq ij vihykFkhZ dk HkkuiwoZd dCtk FkkA ¿iSjk 5

ORDER

1. This appeal by special leave assails the judgment and order of the High Court of Madhya Pradesh (Indore Bench) dated 23rd June, 1999 vide which conviction and sentence of the appellant, for an offence under section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the NDPS Act') as recorded by the trial Court, was upheld. According to the prosecution case, on 13th January, 1988, on receipt of secret information by Bherusingh Malviya (PW 5), Station Officer of police station, Malhargarh, to the effect that certain persons could be processing opium in the jungle between villages Palewana, Mundedi and Bhuki, (PW 5) reportedly recorded that information in the rojnamcha, Exhibit P-7. He along with other police staff, after associating public witnesses, proceeded towards the jungle and reached .there at about 4.35 a.m. It was found that two persons were moving about in suspicious conditions and were carrying some articles with them. On seeing the police party, both tried to run away. They were chased for a distance of about 1-1 and 1/2 km and found hiding themselves behind a heap of kadvi. The police party, on searching the kadvi, recovered from that heap, a polythene bag allegedly containing about 1.300 kg. of opium besides 3 iron kadas and certain other articles' like khurchas, sigdi, gunny bag, empty tins of Dalda, etc. Two of the iron kadas were having opium stuck on them and on scraping, 250 grams of opium was recovered. On the basis of this recovery, a first information report was lodged on 14th January, 1988. The recovered articles were seized and later on samples of 30 grams each were sent to Government Opium and Alkaloid Factory, Neemuch for testing, where it was found that sample taken out of contents of the plastic bag, weighing 1.300 kg., did not match to the description of opium. However, the sample, out of 250 gms., scrapping of kadas, was opined to be 'qualitatively' opium. After receipt of the test report, appellant and one Prabhu were sent up for trial. After recording evidence of five witnesses examined by the prosecution, the appellant was convicted for an offence under section 8/18 of the NDPS Act and sentenced to undergo 10 years' RI. No fine was, however, imposed. Accused-Prabhu, was acquitted of all the charges. Aggrieved by the judgment and order of the trial Court dated 6th December, 1988, the appellant filed an appeal in the High Court, which was dismissed on 23rd June, 1999. The appellant or his counsel were not present before the High Court at the time of hearing of the appeal which had been listed on several occasions and every time, the counsel as well as the appellant did not appear before the High Court.

The High Court, under these circumstances, proceeded to dispose of the appeal on perusal of record and appreciation of evidence with the assistance of the public prosecutor only. The High Court, agreeing with the appreciation of evidence as recorded by the trial Court, upheld the conviction and sentence of the appellant. Hence, this appeal by special leave.

2. Mr. Saxena, learned counsel for the appellant raised a number of pleas in support of this appeal. We, however, need not detain ourselves to deal with all those contentions, as in our opinion, the prosecution has failed to establish conscious possession of contraband, in so far as the appellant is concerned. The trial Court, while dealing with the question of conscious possession of the contraband observed as under:

"Though there is no convincing evidence that the accused persons or anyone of them put any article in the heap of kadvi, but it is material to note that the heap of kadvi stood on the medh or boundary of agricultural fields survey nos. 1511 and 1517. As per the testimony of the village patwari Mangilal (PW 3), survey no. 1511 belongs to accused Gopal, whereas survey no. 1517 belongs. to Pannalal S/o. Nathu Chamar. Pannalal happens to be the father of accused Prabhu. The testimony ofMang

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2001 Supreme(MP) 570

2002 (1) JLJ 220SUPREM COURTDr. A.S. Anand,-C.J. 1., R.C. Lahoti and Ashok Bhan, JJ.Gopal v. State of M.P.Cr. Appeal No. 248 of 2000; Decided on: 18.9.2001.

2002 (1) JLJ 220
SUPREM COURT
Dr. A.S. Anand,-C.J. 1., R.C. Lahoti and Ashok Bhan, JJ.
Gopal v. State of M.P.
Cr. Appeal No. 248 of 2000; Decided on: 18.9.2001.