Ashok @ Dangra Jaiswal vs State Of M.P

2 2. On March 8, 2005, at about 3.30 p.m. one Anil

Kumar Jharkhadia (PW.10), Town Inspector, Police

Station Kareli received information that the

appellant, the owner of Satyanarain Talkies is

engaged in selling of smack powder (heroin in

common parlance) from his cinema hall. After

completing the formalities, the police party

proceeded to the cinema hall where the Town

Inspector, complying with the mandate of the law,

subjected the appellant to a personal search. The

search, made under the Search Memo, Exhibit P.17,

yielded three packets from the pocket of the

`kurta' worn by the appellant. The plastic packets

contained smack powder, the total weight of which

was 175 grams. The suspected narcotic recovered

from the appellant was seized under seizure memo,

Exhibit P.22. From the seized powder, two samples

of five grams each were taken and were put in two

separate sealed packets marked as Article A and A1.

3 The remainder 165 gram was put in a separate sealed

packet marked as Article A-2.

3. Following the appellant, his two employees,

namely Kanki @ Vishnu and Guddu Maharaj, who were

present there at that time, were also subjected to

personal search and from the possession of Kanki

100 grams and from Guddu Maharaj 35 grams smack

powder was recovered. Samples were similarly taken

from the recoveries made from those two accused

also.

4. The samples taken from the smack powder alleged

to have been recovered from the three accused,

including the appellant were sent to Forensic

Science Laboratory vide draft, Exhibit P.31. The

FSL report, Exhibit P.32 confirmed that the samples

contained diacetylmorphine (heroin). On completion

of investigation, charge-sheet was submitted

against all the three accused, including the

appellant on 31.3.2005. Charges were framed against

the accused and they were put on trial. The trial

4

court by judgment and order dated 9.11.2005 passed

in Special Case No.4/2005 held all the three

accused, including the appellant guilty of offences

punishable under Sections 8/21(b) of the NDPS Act

and sentenced them as noted above.

5. Against the judgment of the trial court, the

appellant preferred Criminal Appeal No.2511/2005

before the High Court. Another appeal being

Criminal Appeal no.86 of 2006 was filed by Guddu

Maharaj. There is, however, no indication that the

third accused Kanaki took the matter in appeal. The

High Court dismissed both the appeals by judgment

and order dated April 17, 2008.

6. The appellant alone has come in appeal against

the judgment of the High Court.

7. On hearing Mr. Akshat Shrivastava, learned

counsel for the appellant and Ms. Vibha Datta

Makhija, learned counsel for the State and on going

through the materials on record, we find there are

several features in this case that make it very

5

difficult for us to sustain the conviction of the

appellant.

8. To begin with, there were two independent

witnesses of the seizure, namely, Ajay Purohit and

Udaipal Singh whose signatures were taken on the

seizure memos, Exhibits P.22 to 24. They were

examined before the Court as PWs 8 and 9

respectively. Neither of the two supported the case

of the prosecution. PW.8 was, as a matter of fact,

quite emphatic in his denial of any recovery having

been made from the appellant or the other accused

in his presence. Both were declared hostile by the

prosecution. Both the trial court and the High

Court had, therefore, to rely upon the testimony of

R. K. Jharkhandia, PW 10 who was the Station House

Officer at the material time and who had conducted

the raid to accept the prosecution case of recovery

of the suspected narcotic from the accused.

9. The seizure witnesses turning hostile may not

be very significant, as it is not an uncommon

6

phenomenon in criminal trials, particularly in

cases relating to NDPS but there are some other

circumstances which, when taken together, make it

very unsafe to uphold the appellant's conviction.

10. The seizure of the alleged narcotic substance

is shown to have been made on March 8, 2005, at

11:45 in the evening. The samples taken from the

seized substance were sent to FSL on March 10,

2005, along with the draft, Exhibit P.31. The

samples sent for forensic examination were,

however, not deposited at the FSL on that date but

those came back to the police station on March 12,

2005 due to some mistake in the draft or with some

query in respect of the draft. The samples were

sent back to the FSL on March 14, 2005, after

necessary corrections in the draft and/or giving

reply to the query and on that date the samples

were accepted at the FSL. From the time of the

seizure in the late evening of March 8, 2005, till

their deposit in the FSL on March 14, 2005, it is

7

not clear where the samples were laid or were

handled by how many people and in what ways.

11. The FSL report came on March 21, 2005, and on

that basis the police submitted charge-sheet

against the accused on March 31, 2005, but the

alleged narcotic substance that was seized from the

accused, including the appellant was deposited in

the Malkhana about two months later on May 28,

2005. There is no explanation where the seized

substance was kept in the meanwhile.

12. Last but not the least, the alleged narcotic

powder seized from the possession of the accused,

including the appellant was never produced before

the trial court as a material exhibit and once

again there is no explanation for its non-

production. There is, thus, no evidence to connect

the forensic report with the substance that was

seized from the possession of the appellant or the

other accused.

8 13. It may be noted here that in Jitendera and

another v. State of M.P., (2004) 10 SCC 562, on

similar facts this Court held that the material

placed on record by the prosecution did not bring

home the charge against the accused beyond

reasonable doubt and it would be unsafe to maintain

their conviction on that basis. In Jitendra

(supra), the Court observed and held as under:-

"The evidence to prove that charas and

ganja were recovered from the possession

of the accused consisted of the evidence

of the police officers and the panch

witnesses. The panch witnesses turned

hostile. Thus, we find that apart from

the testimony of Rajendra Pathak (PW 7),

Angad Singh (PW 8) and Sub-Inspector D.J.

Rai (PW 6), there is no independent

witness as to the recovery of the drugs

from the possession of the accused. The

charas and ganja alleged to have been

seized from the possession of the accused

were not even produced before the trial

court, so as to connect them with the

samples sent to the Forensic Science

Laboratory. There is no material produced

in the trial, apart from the interested

testimony of the police officers, to show

that the charas and ganja were seized from

the possession of the accused or that the

samples sent to the Forensic Science

Laboratory were taken from the drugs

seized from the possession of the accused.

9

Although the High Court noticed the fact

that the charas and ganja alleged to have

been seized from the custody of the

accused had neither been produced in the

court, nor marked as articles, which ought

to have been done, the High Court brushed

aside the contention by observing that it

would not vitiate the conviction as it had

been proved that the samples were sent to

the Chemical Examiner in a properly sealed

condition and those were found to be

charas and ganja. The High Court

observed, "non-production of these

commodities before the court is not fatal

to the prosecution. The defence also did

not insist during the trial that these

commodities should be produced". The High

Court relied on Section 465 CrPC to hold

that non-production of the material object

was a mere procedural irregularity and did

not cause prejudice to the accused.

6. In our view, the view taken by the

High Court is unsustainable. In the trial

it was necessary for the prosecution to

establish by cogent evidence that the

alleged quantities of charas and ganja

were seized from the possession of the

accused. The best evidence would have

been the seized materials which ought to

have been produced during the trial and

marked as material objects. There is no

explanation for this failure to produce

them. Mere oral evidence as to their

features and production of panchnama does

not discharge the heavy burden which lies

on the prosecution, particularly where the

offence is punishable with a stringent

sentence as under the NDPS Act. In this

case, we notice that panchas have turned

10

hostile so the panchnama is nothing but a

document written by the police officer

concerned. The suggestion made by the

defence in the cross-examination is worthy

of notice. It was suggested to the

prosecution witnesses that the landlady of

the house in collusion with the police had

lodged a false case only for evicting the

accused from the house in which they were

living. Finally, we notice that the

investigating officer was also not

examined. Against this background, to say

that, despite the panch witnesses having

turned hostile, the non-examination of the

investigating officer and non-production

of the seized drugs, the conviction under

the NDPS Act can still be sustained, is

far-fetched."

14. The decision in Jitendra (supra) applies to the

facts of this case with full force.

15. We, accordingly, hold that the appellant is

entitled to the benefit of doubt and acquit him of

the charges and set aside the judgments and orders

passed by the trial court and the High Court.

16. At this stage, it may be noted that though the

other two accused, namely, Kanki @ Vishnu and Guddu

Maharaj are not before us, we see no reason why the

benefit of this judgment may not be extended to

them as well. From the possession of Kanki @

11

Vishnu, the recovered quantity was 100 grams and

from Guddu Maharaj 35 grams. All the three accused

including the appellant were tried together and the

other two accused Kanki @ Vishnu and Guddu Maharaj

have also been given the same sentence as the

appellant. The lapses in the prosecution and the

facts and circumstances that have been noted above

and that have weighed with us for setting aside the

conviction of the appellant apply equally to the

case of Kanki @ Vishnu and Guddu Maharaj. It will

be unjust, therefore, to let them rot in jail even

while allowing the appeal preferred by the

appellant. (See: Raja Ram and others v. State of

M.P., (1994) 2 SCC 568, Dandu Lakshmi Reddy v.

State of A.P., (1999) 7 SCC 69, State of Haryana

and others v. Sumitra Devi and others, (2004) 12

SCC 322, Mangoo v. State of M.P., (2008) 8 SCC 283,

Bachan Singh v. State of Bihar, (2008) 12 SCC 23)

We, accordingly, direct that their conviction and

sentence be also set aside and they too along with

12

the appellant be released forthwith unless anyone

of them is required in connection with any other

case.

17. The appeal is, accordingly, allowed.

......................................................J.

(Aftab Alam)

......................................................J.

(R.M. Lodha)

New Delhi;

April 5, 2011.