Laxmi Prasad & Ors. v. State of Madhya Pradesh (now State of C.G.)

SINGLE BENCH: HON'BLE SHRI RAJESHWAR LAL JHANWAR, J. Criminal Appeal No.439/1992 Apiieyants

1. Laxmi Prasad, aged about 25 years, S/o Shri Tirith Ram Sahu.

2. Arjun, aged about 32 years, S/o Shri Nanki Dou Ghasia, ' Both Residents of Village Purgaon, Police Station Bilaigarh, Balod Bazar, Distt. Raipur. Respondent State ofM.P. through Police Station Sarsinwa. Versus Appeal Under Section374J2l of the Code of Criniinal Procedure Present:- Mr. Abdul Wahab Khan, counsel for fhe appellant. Mr. Rajendra Tripathi, P.L. for the respondent/State J_UJDG^ME_NT (Delivered on -7 /11/2009) y "*s. This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 2nd April, 1992 delivered in Special Criminal Case No. 112/91 by the Additional District Judge and Special Judge, Balodabazar, whereby the learned Special Judge has eonvicted the appellants under Section 20 of the •Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act of 19§5) and sentenced to appellant No.l - Laxmi Prasad to four y^ars rigorous iruprisonment and fine of Rs.2000/- and in •default to suffer 6 months rigorous iraprisonment and sentenced to appellant No.2 - Arjun till rising of the Court and to pay a fine of Rs.100'0/-, in default to undergo 3 months rigorous imprisonment. ..'•-"<;" jf 1 '*^-",<?' 'aC'-^s-^ t

2. The case of prosecution in brief is that on 16th August, 1990 at about 2.15 p.m. on receiving information from inforinant, B.S.Jagrut, Sub-Inspector ofPolice Station, Sarsinwa accompanied by staff reached the Bus Stand where the appellants were carrying a bag and upon searching of bag he found two more small carry bags and in one of such bags ganja containing 2 kilograms and 150 grams and in another 2 kilograms ganja, total 4 kilograms and 100 grams ganja was kept. Upon being searched, appellant No.2 - Arjun was also found possession of 20 grams ganja kept in a The said ganja was seized vide Ex.P. 1 and Ex.P.6. packet. Thereafter, F.I.R. was lodged by the Assistant Sub-Inspector B.S.Jagrut at Sarsinwa Police Station vide Ex.P.12. Seized ganja was sent to Forensic Science Laboratory, Sagar and vide its report Ex.P.ll, the F.S.L. foynd it to be ganja.

3. After completion of investigation, charge sheet under Section 20 of the Act of 1985 was Eled against both the appellants for possession of ganja, before the Special Judge and Additional District Judge, Baloda Bazar. Thereafter, the charge sheet was read over and explained to the appellants who abjured the guilt and led no evidence in defence in this case. The prosecudon in order to prove its case examined as many as 6 witnesses The learned Special Judge, Baloda Bazar, after evaluating 4. the evidence adduced by the prosecution and hearing the counsel for both the parties, convicted and sentenced the appellants as above. Reliance in the matter of Kayum Khan v. Union of India 5.. and another, 1995 (1) VIBHA 58 and Ourbax Singh vs. Ei<lte of Haryana, AIR 2001 SC 1002 was placed by the learned counsel for the appellant in support of his arguments whereas per contra .the learned State Counsel opposed the arguments. ^gggl^ 1 •%s-^/ :, i''<s-y-fiif

6. I have heard learned counsel for the parties at length and have perused the record.

7. In this case, it is not safe to rely upon the testimony of Ramkishan P.W.l, Ramadhar P.W.2, Peer Khan P.W.3, Kotwar Bhagaudas P.W.4 and Samarudas P.W.5 have turned hostile since they did not support the prosecution story. The crucial witness in this case is B.S.Jagrut P.W.6, who stated that he was Station In- charge at the time of incident i.e. 16.08.1990 and has received information from informer that two persons were earrying ganja towards Saraipali by jeep. On the basis of which, accompanying with staffi.e. Assistant Sub-Inspector Tripathi, Head Constable No. 360 and 542 and Constable No. 159, he reached the Sarsinwa Jeep Stand where the two persons (appellants) were found and of them one person was havmg bag in red colour. Upon enquiry and effecting search on the red colour bag by the witaiesses Ramkishan, Peer Khan, Suresh and Ramadhar, 20 grams of ganja, which was kept in a packet, was seized from the possession of appellant Arjunlal and from the bag of appellant Laxmi Prasad 4 kilograms arid 150 grams of ganja, which was kept separately in a sniallcarry bags, was also seized before the witnesses Ramkishan and Ramadhar. Ex.P.l & P.6 are seizure memos. But seizure ;»>•-—^ witnesses i.e. Ramkishan P..W.1, Ramadhar P.W.2, Peer Khan P.W.3 and Kotwar Bhagaudas did not support the version about the seizure of ganja by B.S.Jagrut P.W.6. This witness further deposed that out of the seized ganja, 20 8. grains of ganja was sent vide Ex.P.9A for its examinadon to Excise Sub-Inspector and Ex.P.9 is the test report. It was stated by him that seize4' ga-nja was also sent to Forensic Science Laboratory, In cross-examinadon, he Sagar for its chemical examination. deposed that after receipt of information from inforiner, the saaie •was mendoned in the Roznamchasanha, but the same was not It was also deposed by this witness that seized ganja produced. was recorded and weighed in the Police Station and also sealed the •t^Srt sanie by putting label of the police. Thereafter, ganja was sent to its cheraical exaraination within a week and the F.S.L. appellants were arrested as well as F.I.R. was lodged against the appellants.

9. From the perusal tif the above, it is clear that ganja was seized from the bags, which the appellant No,l was having, and not from his possession. No explanation is forthcoming as to why after receiving information he had not taken it in writing and had also not sent any report to his superior officers, as required under sub-section (2) of Section 42 of the Act of 1985 which mandates diat where an officer takes down any information in writing under sub-section (1) or records for his belief under the proviso thereto, he shall, within 72 hours, send a copy thereof to his immediate It is also evident fhat the appellant Arjun, from official superior. whose possession 20 grams of ganja was recovered, was not informed of his right.ofbeing searched before a Gazetted Officer or a Magistrate. It is also evident that merely on the basis of information received from the informer search was conducted and the offence punishable under fouhd the appellants guilty for Section 20 of the Act of 1985. Moreover, this witness himself lodged the F.I.R. No document was produced by the prosecution to show that appellant No.2 Arjun was informed about to be searched before a Gazetted Officer of a Magistrate was made, as required to F.S.L. for its chemical It is also nowhere stated that as to under Section 50 of the Act. quantity of ganja, which was sent examination. No offer was forthcoming as to why prior to send the seized ganja, he sent 20 .grams of ganja to Excise Sub-Inspector for that seizure of ganja and other its test. proceedin-gyhad taken place at the place whereas he stated in his testiraony that he has conipleted the entire proceedings and formalities at the Police Station. Thus, seizure ofgfan/awas full of It, is -also evident doubt.

10. It is pertinent to mention here that in paragraph 10 of the testimony, Sub-Inspector B. S. Jagrut P.W.6 has stated that he did not take with him any weighing machine. However, in paragraph 11, he further stated that seized ganja was weighed before the Police. Thus, the prosecution could not lead any evidence to prove the factum of weighment 6f ganja. It is also to be noticed that after seizure of ganja and sealing the same, the place where and whose custody it was kept has not been able to be proved by the prosecution. Further it is noticeable that after arrest or seizure of the substance and after completion of investigation, a duty is cast on the Sub-Inspector B.S.Jagrut that he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars to his immediate official superior, as required under In the present case, nothing was Section 57 of the Act of 1985. done by the Sub-Inspector B.S.Jagrut, as envisaged under Section 57oftheActofl985.

11. So far as compliance of Section 50 of the Act of 1985 is concerned, after considering various decisions and the decision of the Apex Court in Gurbax Singh vs. State of Haryana (supra) wherein it was held that when an empowered officer or a duly Authorised Officer acting on prior information is about to search a person", it is imperative for him to inform the person concerned of his right under sub-section (1) of Secdon 50 of being taken to the nearest Gazetted Officer or the nearest Magistrate for making the search, However, such information may not necessarily be in writing. Therefore, it is evident from the above that Section 50 of the^-Act of 1985 has not been complied with and thus the conviction of the appellant based on such perfunctory invesdgation cannot be su^tainable.

12. Having thus considerei^'the evidence led by the prosecution in,its entirety and for the foregoing reasons mentioned above, I am of the view that the leamed Special Judge has erred in convicdng Itlt •? 5-i'S'' the appellants under Section 20 of theAct of 1985 and awarding sentence thereunder, which is liable to be set aside.

13. In the result, appeal is allowed. Conviction of the appellants under Section 20 of the Act of 1985 and the sentence awarded to appellant No. 1- Laxmi Prasad to four years rigorous imprisonment and fine of Rs.2000/- and in default to suffer 6 months rigorous imprisonment and that of appellant No.2 - Arjun till rising of the Court and to pay a fine of Rs.lOOO/-, in default to'undergo 3 inonths rigorous imprisonment are set aside. The appellants are acquitted of the charge under Section 20 of the Act of 1985 and shall be set at liberty forthwith unless required in any other case. Fine if paid be refunded to the appellante forthwith._ Sd/- R.L. Jhanwar Judge