2002 Supreme(MP) 401

N.K. Jain, J.
Devi Singh v. State of M.P.
Cr. Appeal No. 238 of 1999 (I); Decided on 3.4.2002.*

Headnote:(1) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss.18, 55 and 57 -- field from which opium plants recovered not proved to be belonging to accused -- plants not shown to have been kept in proper custody and care -- provisions under Ss. 55 and 57 not complied with -- conviction is bad.

       

        (2) Narcotic Drugs and Psychotropic Substances Act, 1985 -- Ss. 52, 55 and 57 -- provisions under -- though directory in nature but non-compliance is fatal.

       

        ¼1½ Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985 & /kkjk 18] 55 rFkk 57 & ftl [ksr ls vQhe ds ikS/ks cjken gq, og vfHk;qDr dk ugha Fkk & ikS/kksa dks mfpr vfHkj{kk rFkk lqj{kk esa j[kk tkuk ugha n‘kkZ;k x;k & /kkjk 55 rFkk 57 ds mica/kksa dk ikyu ugha gqvk & nks"kflf) nwf"kr gSA

       

        ¼2½ Lokid vks"kf/k vkSj eu%izHkkoh inkFkZ vf/kfu;e] 1985&/kkjk 52] 55 rFkk 57 & mica/k & ;|fi funsZ‘kkRed izd`fr ds gSa fdarq vuuqikyu ?kkrd gSA

       

        This appeal under section 3/4 of the code of Criminal Procedure is directed against the judgment dated 11.2.1999 passed in ST. No. 106/96 by 6th Addl. Sessions Judge, Ujjain, convicting appellant Devisingh U/s. 8/18 of the Narcotic Drugs and Psychotropic Substances Act (for short the Act) and sentencing him to ten years RI with fine Rs. 1,00,000/- and in default of payment of fine to suffer additional RI for two years.

       

        According to the prosecution, on 16.3.1996 Sub-Inspector S.R. Dandotiya of Police Station Ghatiya accompanied by some other subordinate police officials was on search of an absconding accused when on way near village kherkheri, he noticed that some opium plants were grown in a field and that accused appellant Devisingh was present in the file. He, thus, summoned two Panch witnesses Bhera (PW 1) and Motisingh (PW 2) and recovered the said opium plants, total 1031 in number, from inside the said field. Before recovery, the field with accused present therein, was got photographed. A few samples of the said plants were drawn and sealed separately. A FIR (vide Ex Pill) was lodged and scribed by sub-inspector Dandotiya the same day at P.S. Ghatia. Sample plants were got analyzed at FSL, Sagar, which revealed that they were poppy plants. After other due Investigation, the accused was charge sheeted and committed for trial which ended into his conviction and sentence as aforesaid.

       

        I have heard Shri Jaisingh, learned Sr. Counsel appearing with Shri Vivek Singh for the appellant and Shra M. Upadhyay, learned PP for respondent State.

       

        As regards recovery, sub-inspector Dandotiya (PW 9) Head Constable Biharisingh (PW 5) and Head Constable San tram (PW 8) have deposed of the same and testified that while they were on way in search or an absconding accused, they found many opium plants grown in a field near village kherkheri and that accused as also present in the said field. Since the accused had no licence to cultivate the plants, the plants were got uprooted and seize. Three samples of ten plants each were drawn and sealed and the remaining plants were also seized duly vide Panchnama Ex. P-2. Sub-inspector Dandotiya further deposed to have lodged report Ex. P-10 on the spot itself which was subsequently produced at Police Station Ghatiya where regular FIR (Ex. P-11) was registered. He further stated that one of the seized samples was got analysed at FSL, Sagar and as per report Ex. P-13 received from there it was found that the plants carried fruits (capsules) which were found to be opium poppy capsules.

       

        Two other panch witnesses Bhera (PW l) and motisingh (PW 2) in whose presence the aforesaid recovery was allegedly made, have however turned hostile to the prosecution and stated that their signatures on various documents were obtained at P.S. Ghatiya. Similarly photographer Pradeepkumar Sharma (PW 3) denied that he photographed any such field. He denied that the photo Ex. P-6 was taken by him.

       

        It will be, thus, seen that the evidence of the three police officials above, is not supported by any independent evidence. The same is, therefore, required to be examined with more than ordinary caution, particularly when the offence charged against the appellant accused is grave in nature providing for a minimum sentence of ten years RI with fine Rs. 1, 00,000/-.

       

        Shri Jaisingh, learned counsel for appellant has severely criticised the evidence or the aforesaid police officials and submitted that their evidence fell short of proof of the fact that the field from where the plants in question were recovered belonged to the appellant. It is further pointed out that there is no evidence whatsoever to show that the seized plants were kept in proper seal and custody and that they are the same plants sent to Court while filing the charge-sheet. No evidence is also adduced to show that the plants were sent to FSL under proper seal and cover. There was no compliance of section 57 of the Act either.

       

        Village Patwari Vikramsingh (PW 4) has been examined to depose that land Survey No. 57 belonged to accused Devisingh and recorded in his name in Village Revenue Papers (Vide copies Ex. P-8 and P-9). There is, however, no further evidence on record to pin point that the plants in question were recovered from this very land Survey No. 57. In absence of any such evidence, the evidence of Patwari Vikramsingh is of no avail to the prosecution. It is not a case where this Patwari was taken to the spot and shown the field wherefrom the said recovery was made. He has given the Certificates Ex. P-8 and Ex. P-9 on the basis of office record. The prosecution evidence, thus, fell short of the proof of the ownership of the field from where the recovery in question was made.

       

        Section 55 of the Act mandates that an officer-in-charge of the Police Station shall take charge or and keep in safe custody, pending the orders of the Magistrate, all articles seized under this act within the local area of his police station. In the instant case although Station House Officer Prafulla Kshotriya (PW 7) has been examined in evidence but no question was put to him by the prosecution as to whether any seized article was deLi"Vered to him and what arrangement he made for safe custody thereof. Although copy of the Malkhana Register was produced in evidence but the same was not got proved either by the SHO or any other police official incharge of that Malkhana. It is significant to note that the seized articles were forwarded to the Court as late as on 18.11.1996 i.e. after about eight months of the seizure. There is no evidence whatsoever to show with whom the seized articles were lying. There was no compliance of section 55 inasmuch as the articles were never handed over to the SHO nor any seal was put on them by the SHOo Under the circumstance, even though section 55 is held to be directory, it becomes doubtful that what was seized alone was sent to the Court and the Chemical Examiner [See Valsala - AIR 1994 SC 117]. All this also makes the interested testimony of Sub-inspector Dandotiya and his two companions Head Constables unreliable, particularly when they are not supported by independent witnesses.

       

        There was no compliance of section 57 of the Act either. No evidence has been led to show that a report in terms of section 57 was sent by Sub-inspector Dandotiya to his immediate superior officer. The Supreme Court in Gurbax Singh -- 2001 SCC (Cri) 426 has held that sections 52, 55 and 57 though directory in nature, noncompliance thereof makes the investigation faulty and it would not be safe to convict the accused of serious offence under the Act.

       

        From the foregoing discussions it therefore, inevitably follows that the charge u/s 8/18 of the Act was not brought home fully to the appellant and in any case he was entitled to benefit of doubt and consequent acquittal. This appeal, thus, succeeds and is allowed. The impugned conviction and sentence are set-aside and the appellant Devisingh is acquitted. He be set at liberty forthwith, if not required in any other case.