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2025 Supreme(Online)(MP) 1484
HIGH COURT OF MADHYA PRADESH
SMT. JUSTICE ANURADHA SHUKLA, J
Udham Singh Dangi – Appellant
Versus
The State Of M.P. – Respondent
CRA 1298/1998
,Advocate General,
The trial court erred in convicting under the wrong section of the NDPS Act, and non-compliance with certain procedural requirements does not invalidate prosecution.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 374(2) - Narcotic Drugs and Psychotropic Substances Act - Sections 8(c), 20(b)(i), and 20(b)(ii)(A) - Conviction for possession of narcotics - Convicted for possessing 230 grams of ‘Ganja’ with a sentence of one year and fine of Rs.2,000/- - Trial court's error in convicting under wrong section and imposing excessive sentence. (Paras 1, 11, 12)
(B) Compliance with statutory provisions - Importance of adherence to Section 50 and Section 57 of NDPS Act in search and seizure operations - Non-compliance does not necessarily vitiate prosecution as per precedent. (Paras 3, 9)
Facts of the case:
The appellant was convicted for selling ‘Ganja’ after a police raid where 39 small packets were seized from his possession. He argued the lack of independent corroboration and improper search procedures. (Paras 1, 2)
Findings of Court:
The trial court's conviction was based on a misinterpretation of the NDPS Act; the appellant was sentenced incorrectly under a different provision. The appeal resulted in a modified sentence reflecting the correct application of law. (Paras 11, 12)
Issues: The main issues included the legality of the search, the sufficiency of evidence, and the appropriateness of the conviction and sentence. (Paras 3, 11)
Ratio Decidendi: The court found that the trial court erred in convicting under the wrong section of the NDPS Act and imposed an inappropriate sentence, affirming that non-compliance with Section 57 does not invalidate the prosecution. (Paras 11, 12)
Result: Appeal partly allowed, conviction modified.
JUDGMENT
The appellant herein has preferred the instant appeal under Section 374 (2) of the Code of Criminal Procedure 1973 being aggrieved by the judgment dated 28.5.1998 passed in Special Case No.20/1996 by Sessions Judge, Raisen, convicting the appellant for an offence of Section 8 read with Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances Act (for brevity, “NDPS Act”) and sentencing him to rigorous imprisonment for one year with fine of Rs.2,000/- and to further undergo simple imprisonment for one month in case of non-payment of fine.
2. Brief facts relevant for the decision of this criminal appeal are that a mukhbir soochna was received by Sub-Inspector Anil Kumar Singh, posted in Police Station, Gairatganj, district Raisen, that appellant was selling “Ganja” in small pouches from his house; he informed his superior officer regarding this and proceeded for the place of incident along with his colleagues; appellant was present there; he was interrogated in the presence of witnesses and was also informed that he had a right to be searched in presence of a gazetted officer but the appellant allowed his search to be made by Sub-Inspector Anil Kumar Singh; a memo was prepared in this regard and thereafter the appellant was searched; he was having a polythene bag containing 39 small packets and all of them were containing “Ganja”; the total weight of “Ganja” was 230 grams; the entire quantity was seized and appellant was arrested; the seized “Ganja” was sent to Forensic Science Laboratory, Sagar, from where a report was received confirming the presence of “Ganja” in the seized item; the investigation was completed in the registered crime and charge-sheet was filed. After conclusion of trial, the appellant was held guilty and was sentenced as aforesaid.
3. The judgment of trial court has been challenged in this criminal appeal on the grounds that without there being any corroboration from independent evidence, the appellant was held guilty; he was denied the statutory right of being searched in the presence of a gazetted officer or a Magistrate and, therefore, compliance of Section 50 of NDPS Act was not ensured. Consent memo, Ex.P-1, is a forged document. It was wrongly observed by trial court in para 13 that the alleged seizure was immediately informed to the superior authority as that finding was not borne out of evidence on record and compliance of Section 57 of NDPS Act was not ensured at all. It has, therefore, been submitted that in totality of facts and circumstances, the judgment of trial court deserves to be set aside and the appellant is entitled to be acquitted.
4. State has opposed the appeal claiming that the impugned judgment deserves no interference either on the point of conviction or sentence.
5. Counsel for both the sides have been heard and the record has been perused.
6. From the evidence available on record it is evident that the two seizure witnesses, namely Narmada Prasad (P.W.1) and Gorelal (P.W.2), have denied to have witnessed the seizure of any contraband from the appellant and despite declaring them hostile and putting leading questions to them the prosecution has not been able to extract any supporting fact from their testimony.
7. The important witness in this case is Sub-Inspector Anil Kumar Singh (P.W.4). From his testimony, it is proved that he received a mukhbir soochna about which he informed his superior officer and then proceeded along with force members to the spot where appellant was present and the appellant, upon being informed about the mukhbir soochna and also his statutory right of getting searched in the presence of gazetted officer, this witness searched the appellant himself after obtaining his written consent, marked as Ex.P-1. It is also established from the testimony of this witness that 39 small packets containing “Ganja” were recovered from the possession of appellant, which were kept in a polythene bag and the same were seized and sealed. Though suggestions were gi
