The court ruled that failure to produce contraband and hostile witnesses undermines the prosecution's case, leading to wrongful conviction.

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL CRIMINAL APPEAL No. 1603 of 2025 KODULAL BAIS Versus THE STATE OF MADHYA PRADESH Appearance:

Shri H.S. Verma - Advocate for the appellant.

Shri Satyapal Chadar - Government Advocate for the respondent/State.

RESERVED ON : 03.07.2025 PRONOUNCED ON : 11.07.2025 ...........................................................................................................................

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This appeal having been heard and reserved for judgment, coming on for pronouncement on this day, the court passed the following:-

ORDER Appellant has preferred this criminal appeal under Section 374(2) of Code of Criminal Procedure, 1973, challenging the judgment dated 28.01.2025 passed by Special Judge NDPS Act, District-Rewa in SC. No.11 of 2018, whereby, appellant has been convicted under Section 8/20(B) of NDPS Act and sentenced to undergo R.I. for one year and with fine of Rs.3,000/- with default stipulation.

2. Prosecution story in brief is that on 18.12.2018 at about 10:35, near Lalmati Tiraha, village Budabahur, Ramnagar, appellant was found in possession of 1 Kg 600 gms Ganja in red colour plastic bag contained in red colour bag, without any license.

3. Learned counsel for the appellant submits that in the instant case, Signature Not Verified Signed by: VAISHALI independent witnesses have turned hostile and they did not support prosecution story. Further, after referring to testimony of ASI Shyamlal Rawat (PW-12) and Ex.D/1 to Ex.D/9, it is urged that all the independent witnesses are pocket witnesses. It is also urged that person, who allegedly brought weighing scale and weighed the contraband has turned hostile. It is also urged that in the instant case, no documents pertaining to Departure and Arrival of concerned SDPO for Investigating offence pertaining to SC/ST (PA) Act have not been filed. In the instant case. Malkhana register of police station has not been filed. It is also urged that alleged contraband or sample thereof has not been produced before the trial Court during recording of evidence. Mandatory provisions of NDPS Act have not been complied with. Learned trial Court has wrongly convicted and sentenced appellant. With respect to aforesaid submissions, learned counsel for the appellant has referred and relied upon judgment passed by Allahabad High Court in Har Mohan Vs. State of U.P. in Cr.A.No.3180 of 2014 and judgment passed by High Court of Uttarakhand in Prem Shahi Vs. State of Uttarakhan in Cr.A.No.47 of 2009. Therefore. appellant filed by the appellant be allowed and he be acquitted of offence.

4. Learned Government for the State submits that in the facts and circumstances of the case, appellant cannot be sentenced with the period already undergone. He further submits that trial Court has rightly convicted and sentenced the appellant. No interference is required in the same and appeal filed by the appellant be dismissed.

Analysis and findings:-

Signature Not Verified Signed by: VAISHALI

5 . Perusal of record of the case, especially, testimony of ASI Shayamlal Rawat (PW-12) as well as Ex. P/1 to Ex. P/33 reveal that it is prosecution witness Shayamlal Rawat who has seized contraband from appellant/accused and has prepared all the relevant documents. Prosecution witnesses Head Constable Govind Prasad Panika (PW-2), ASI Rajkumar Mishra (PW-5), Akhileshwar Singh (PW-7), Omprakash Khare (PW-8), Amar Singh Heard Constable/Malkjhan Incharge (PW-9), V.K. Mishra (PW- 10) have deposed almost identically to that of Shayamlal Rawat’s testimony. Executive Magistrate/Tehsildar L.R. Jangde (PW-11) has conducted proceeding pertaining to sampling of contraband.

6. Now question arises as to whether aforesaid prosecution witnesses are reliable witness and from testimony of aforesaid prosecution witnesses, it is established that appellant was found in possession of