Jaggumal Kukreja v. State

', # CFooooo59911 $ y IN THE HIGH COURT OF JUDICATURE AW JABALPUR Cr.A;No.

FE m CRIMINAL APPEAL uNDER SECTION ( 2) OF THE CODE OF CRIMINAL PROCEDURE,1973 Appellant:

Jaggu&al Kukrejé;

aged about 45'years, .K Accused 55'gd, (In Jail) $on of Keematmal Kukreja, resident of Hau'se No.43." Nagar Nigam Colony, P.S.$araswati'Nagar, Raipur, Tahsil District Raipur,M.P.

versus x7/"'

:v% AQ § 'Respondent:

The State of Madhya Pradesh y, .

LA. "mo r

Page l HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 976 of 1998 Appellant :

Jaggumal Kukreja

VERSUS

Respondent State of Madhya Pradesh (Now C.G.) CRIMINAL APPEAL U/S. 374(2) OF THE CRIMINAL PROCEDURE CODE SB: Hon'ble Shri Goutam Bhaduri J.

Present:

Mr. S.K. Vyas, Sr Advocate with Mr Vishnu Koshta and Mr. AmltVyas, Counsel for the a'

'yasi, P.L. for the State.

JT UDGMEN ment/order dated 15 O4 1998 passed (NDPS) Raipur In Criminal Case b No 302/1997 where ppellant has been conVIcted under sectlons 21/8 of the Narcotic rugs and Psychotropic Substances Act 1985 and sentenced undergo RI for years pay fine Rs.1,50,000/-. failing which, he shall further undergo R.l., for two years. 2.

The prosecution case, in brief, is that on 06.8.1997 at about 3.30 p.m., lncharge Police Station Saraswati Nagar, Raipur, Bhoiendra Kumar Uike received secret information that the appellant accused has kept narcotic substance his house No.43, Nagar Nigam Colony, Raipur for sale.

The same was recorded as Sanha No.294 Rosnamcha register vide Ex.16-C which is certified copy thereafter the Mukhbir Panchnama was recorded in the presence of the 'Panch witnesses P.W.5 Pawan Singh Thakur Deepak Singh Thakur (P.W.6), and a copy of which, was sent to the higher ofdcers.

Subsequently, since the search warrant cou have taken some time, ld the reasons were written in EXP-20 and thereafter the Police Officers along-with other poiice party as also seizure witnesses P.W.5 P.W.6 went to the spot i,e., the house of the appellant. On reaching the house 0f the appellant, appellant was calied person and was present house.

Thereafter, accused was informed vide EXP-7 information has been received he has kept some narcotic substance and therefore, a search was required. It was also the case of the prosecution that the ap ellant was informed of the fact that if he so '

f any gazette officer or "ct M ent uv agistrate On having given the cons search of the house of the appellant was made and the persons who went for such search made the search In the house It was recorded m the Panchnama vrde Ex.

'

m 3.

Further on search bei the drawing room of the appeilant n behind the wall under cusione bed, two polythene packets were th hd found which on primar were found be brown sugar y n Thereafter both the packets were weighed which were of 104 & grams respectively. Subsequently, the packets were sealed and seizure memo was prepared vide EXP-12 and thereafter, Dehati Nalishi EXP-21 was prepared.

The appellant was arrested u/s 2O of the NDPS Act and the sealed packets were deposited in the Malkhana which was received by P.W.4 Sankirtan Barik.

After the arrest of the accused it was informed vide EX.P-4 City Superintendent Police.

Subsequently, sealed packets were sent for FSL vide EXP-1 through PW-1 Kalaram Khunte on 0908.1997 and thereafter the FSL report was received on 23.08.1997 vide EXP-25 and according to the

report, the powder was Diacetyl Morphine (Heroin) Subsequently, after the investigation, the charge sheet was filed u/s 21 of the Act.

4.

During course tria appellant abjured his guilt.

The l prosecution on its behalf had examined as many as 7 witnesses and the defence examined 4 witnesses.

hs 5.

The learned court below after concluding the trial and evaluating the evidence on record had convict the appellant accused as aforesaid.

ed Hence, this appeal.

't h at that the date n ts case was nall amcha (day ent i hi iitiy the Ojn il ster) was recor ndra Kumar k mself egi ded by P W 7 Bhoie Uie and he hi sed te contraba afte further nvesaon was also eiz h nd article Therer itigti '

W 7 lia cared out by the sa He placed rence on a case ri m law reported in AIR ( egha Singh Vs.

state of Haryana;

SC) 233 'M and anoth case r ported in EFR 2002(1) Sunil Vs.

er dglaw eported in: re alsoi'ith'e'i'Crim State M.P., as inal Appeal this Court bearing No.265/2004 (Jeetu Maihar Vs.

State of Chhattisgarh) decided on 28.03.2014 would submit that the l.O., seizure witness being one and the same, serious prejudice was caused s the entire investigation was done with animosity.

it was stated prior report was made against the police station and ofhcers complaining that the appellant was manhandled since pressure was created by society by sending memos to the Superintendent of Police and other persons for that reason, false case was registered. He fuither submits contraband though was stated be seized but was not produced in the Court during trial. He would submit that according to the case of prosecution, the contraband in its entirety was sent for FSL, but

6Q no evidence was placed by the prosecution whether the same samples were sent for FSL.

He further submitted that the evidence this case i.e., documents Maikhana wherefrom the said goods stated to have been taken out for investigation, shows a serious variance between the quantity and the physicai description of the goods as against the seizure memo were different.

He stated according EXP-11 Panchnama, all, packets were sent but the FSL report (EXP-25) would refiect that oniy 3 packets reach dtt h prosecution cannot escape t t piain those unexpiai "facts which remain on the X n it.

He relied on the case laws reported In .....0'04'

(1) EFR 22 :

tendra 'a'ndianother Vs. State of MP);

[ 2008 i '

.

(2) EFR 707] - Noor Aga state of Punjab; 2009 (2) JLJ 148, 2013 ~ Laxminarayan V. State f 2013 Cr.L.R. (MP)

12) - Raju @ P , Jitendra Vs.

State of Singh Vs. State P., through;

.38. Suwasra, Distt. Mandsaur and o £ .

would submit that in all'the'serie''s of the cases, the principle has been laid down if the investigating officer and seizure is made by one // person then it would cause serious flaw in case of prosecution.

lt was further contended that the contraband has not been produced before the Court then it causes serious dent to the case of prosecution.

He further submits according section 52-A, requirement was mandatory and in absence thereof the conviction cannot be allowed to stand.

He further submits that according to EXP-1 which was sent by S.P., the contraband sent to the FSL would show that it was sent on 08.08.1997 according P.W.1,Kala Ram carrier such packet, it was in white packet of cloth but the SP had written it to be polythene, Further when it was deposited with FSL, the physical sets of

the packets and signed papers as stated by Investigating Officer were not found. As such he contended that the goods which were seized and goods which were sent FSL were different as packets changed hands.

8.

Learned counsel for the appellant further contended this case l.O., P.W.7 has stated that during investigation he has recorded statement of P.W.4 Sankirtan Barik but Sankirtan who was examined as PW4 had denied any such statements were recorded, therefore, he would subm't th erded, which vitiates the entire trial as the seizure'Was made by the 'r'

same Police Officer Who investigated the offence. Lastly it is'submitted ' come ,on record that the house from-where the that the evidence ha goods were seized was in'jointpossession of the persons, therefore, it cannot be said that the ap ellant was exclusive conscious possession of the ba'nd goods.»-;Under aforesaid submission it was c prayed that thejudgment and conviction may be set-aside. 9.

Per contra, learned State Counsel opposes these arguments. He would submit that in absence of any evidence or suggestion to the fact that the l.O., was holding bias or animosity, the evidence which is placed before the Court by the l.Ot (P,W.7) cannot be negated. Referring to section 35 ofthe NDPS Act, he wouid submit that it is the presumption of culpable mental state was appellant as such once it was established by the prosecution that the contrabands were kept in the house of the appellant, then it was the duty of the appellant to negate such presumption by effective cross examination evidence.

He, therefore, submitted that the order of the court below is well merited

Pageé which do not call for any interference. He further submits that even if the Panchnama witnesses have not supported the case then it cannot be said that the entire evidence cannot be looked into. On these grounds, the teamed State Counsei submits that the impugned judgment/order is weii merited which do not cali for interference. 10.

l have heard learned counsel for the parties at length have also perused the records of the court below.

"

11.

lt is not dispute that the Investigating Officer (P.W.-7) himself had ma initial information _ time on 06.08.1998 at was proved as EXP/3, which re d c 'u t 15.30.

The mukhb'ir' panchnama records thatginforimation was received that the ap gUma'l Kukreja, resident of Nagar Nigam p "g Colony, Near Water Ta H ou$e No.43 has kept intoxicant for sale.

lt did not record the factrof r0wn sugar. Further reading of statement of 7)"'at5P'ara-3 states that Rojnamcha Sanha to investigating Officer ( this effect was recotde'd'in the EX P/19.

Thereafter, matter was reported to the higher'i'offrc'er,"\ivhich was also recorded in EXP/17 and subsequent to that since there was no time to obtain warrant, therefore, as per EXP/19, copy EXP/19C, officer went alongwith staffs for search.

In para-16 this witness has stated after writing mukhbir panchnama, he went to the spot with T.l. Of Police Station Gan}, SHO Urla Satendra Pandey, Crime Squad Kadir Khan and the other staff of the police station, which included Sankirtan Barik, Head Constable other persons.

12.

The said Sankirtan Barik was examined as P.W.-4, who was said to be part of raid team and was also Malkhana incharge of police station. This witness was confronted with his statement recorded by the investigating

""

Officer U/s.

of Cr.P.C., which was marked as EX.D/1. The EX.D/1 was the statement'recorded by the Investigating Officer, wherein he had corroborated the fact that he alongwith investigating Officer had went to raid the house of appellant for seizure of brown sugar and remained in such proceeding of search seizure up till end.

The said witness contrary to it in court statement stated that he only discharged the job of malkhana incharge.

ln the cross examination the witness has confined his act only up to receive of goods as malkhana incharge and not more. The witness has furt er at on the date of incident he had not h been to th'

ing Officer.

The Investigating Ofd t c ......

d s in the team of nkirtan Barik wa nd his statement was als y, the impartiality and bias of the b Investigating Officer nt, the entire prosecution case is e based, creates a doub t 13.

The Supreme Cou r ig ha Singh Vs. State of Haryana, s d§pricated the practice by stating that reported in AIR (SC gq when the Investigating Officer and the seizure are one and same, which 2/ leads to it may not be sacrosanct. The same proposition was followed § by High Court of M.P. in case of Sunil Vs. State of M.P., reported in EFR 2002 (1), Page No.615, wherein the Court reiterated the stand of the Supreme Court, wherein the practice of Investigating Officer, being the complainant who seized the contraband has not been appreciated. It is also a fact that the conviction can be made only on the statement of Investigating Officer in case of narcotics but if on appreciation statement if this fact comes to fore that there exists series of infirmity and the serious contradictions and omissions comes out then certainly the Court has to be very much careful while examining such statement.

Page$ In the instant case the Investigating Officer of the case had stated to have recorded the statement of one of the police officer, who was said to be present on the date of raid but the said police officer has denied those facts. Therefore, in given circumstances it wouid be extremely dangerous to rely solely on the statement of the lnvestigating Officer alone.

14.

Further panch witnesses this case are Pawan Singh Thakur (P.W.-5), Deepak Singh Thakur (P.W.-6).

These independent "h e erefore, the only evidence witnesses have not 'amme the stateme tj X o ding to the P.W.-7 investigating Officer, r below the cushion in the drawing room two plastic fter on primary inspection, investigating Officer s pears to be brown sugar. EXP/11 i p t reads that two brow re found, one was of 104 grams, s'u e polythene so there wer d which was kept in w white polythene was kept in yellow Ee er hl e two packets. Similarly another brown sugar of 103 grams was kept in a white polythene, which was rapped in another yellow polythene and further it was in white polythene, so there was three packets. Therefore, total one brown sugar 104 grams was in two packets another brown sugar 103 grams was in'three packets.

P.W.-7 has further stated that both the packets were rolled in a white paper and was closed and thereafter were kept in the paper packet. ln paper packet one paper was placed with signature appellant/accused, witnesses investigating Officer.

Thereafter all of the packets were sealed and seizure was made as per EXP/12.

is ax m7 *

15.

The seizure was sent FSL by EXP/1, through letter Superintendent of Police dated 08.08.1997 by Kalaram Khute (P.W.-1). According to the statement of P.W.-1, the sealed packet was of cloth and was sent to FSL by memo dated 08.08.1997. The document Ex.P/1 states that 207 grams of brown sugar was sent, which was sealed polythene packet, but in cross examination, the packets were said to be of cloth.

\K 16.

Now if we again refer statement Investigating Officer, l hene packets were further But Ex.P/1, reveals packets were sent in a 17.

The same packets w n 09.08.1997 with the FSL. Now if e o -4, Sankirtan Barik, Malkahana lncharge, this witness?h§§£§a:t%a-Vthat on 09.08.1997, Kalaram Khute, Constable had obtained the sealed packet to sent it for FSL, whereas document EXP/1 shows it was sent on 08.08.1997.

The document Ex.P/5C the copy of malkhana register also shows that the packets were received on 09.08.1997. On close scrutiny of document Ex.P/5C shows that over righting was made at the serial number serial -21, which was the relevant serial number of this case. So the necessary inference and the doubts comes as to which was the packet which was deposited to FSL for test. Necessarily it creates the doubt as the number of packets also changed and the FSL report EXP/25 reads that one packet which contained in two yellow polythene packets which

tn tr Page IO was further containing white polythene was deposited.

The said deposit memo do not speak of a fact of any paper packet as also the contents it containing signed papers of 3 persons. The prosecution should have been cautious while handling alleged contraband packet and it should have been of same description after the seizure were made and sealed.

Ifthe nature of packet changed while reaching to FSL, then in such course it will create a serious lacuna in case of prosecution for which benefit of doubt should lean favour accused.

Alonw1t ch Infirmity with respect traband packets, it gh t n '

th n ot produced at the ourt. The of evidence before preme Court u i 417 at para - 92 has laid down another, reported I that omission on the cution to produce the contraband e at the time of eviden Court seriously dents the case c e rayan Vs. State of M.P. reported prosecution.

ln the in 2009 (2) JLJ 148 te h m f further observed that it was the duty \\_ of the prosecution establish by cogent evidence alleged quantity of contraband was seized from the possession of the accused. The Court further in matter of Jitendra and another Vs. State of M.P. (2004 (2) Vidhi Bhasvar 30-2004 (1) EFR. p.22 equivalent to {(2004) 10 SCC 562} reiterated the interpretation made by the Supreme Court that when the contraband has not been produced in the Court, mere oral evidence as to their features and production of panchanama does not discharge heavy burden, which lies on prosecution, particularly when the offence is punishable with a stringent sentence under the NDPS Act. According to the law laid down the production of the samples were required .to be produced before the Court at the time

{91% J Page of evidence by the prosecution, which has not done in the instant case. Therefore, the said existing facts also damages the prosecution. 19.

In this case according to the evidence lead by the prosecution, one more infirmity existed. The prosecution witness P.W.-7 has stated that house where from contraband were recovered was residential houses appellant.

The witness cross~examination has not stated the fact that appellant was in exclusive possession of house as he had not visited the house inside. D.W.-2, Bhupendra Singh Gadewal, e in this regard iih'ouse .where from contraband were sed reside.

No d'ocumen :was placed by ecution prove t house exclusive s c was '

possession of the ilant in his stat e e Cr.P.C. had stated was living alongwith other family t members alongwith four sons.

his 20.

The Hon'ble Supr se Mohd.

Alam Khan Vs.

e Narcotics Control Bureau and another, AIR 1996 SC 3033, has held \ \ order to fasteWth§%riminal liability, ownership possession premises should have been proved.

When recovery is made from the premises, the Hon'ble Supreme Court has laid down analogy prosecution has prove accused has to be the owner and is in actual possession of the said building.

Further, the Hon'ble Supreme Court in case Ram Singh Vs. Central Bureau ofNarcotics (2011) 11 SCC 347 has held in Paras 24 & 25 as under :- 24.

lt is trite hold person guilty, possession has to be conscious control over the goods is one of the tests to ascertain conscious possession so also title.

Once an article is found possession of an

Page accused, it cbuld be presumed that he was in conscious possession.

Possession is polymorphous term which carries different meaning different context circumstances and, therefore, it is difficult to lay down [ completely logical precise definition uniformly applicable all situations with reference all statutes. A servant of a hotel'

in our opinion, can not be said to be in a possession of contraband belonging to his master unless it is proved that it was left his custody over which he had absolute control, 25.

Applying aforesaid princtple when we I i '1 'V t Is diffcult to hold '

idence on record to suggest that the av p o ints out title r o opium vested hotel. The confession p n given by the a ly that he was servant of the owners of the e the opium was recovered.

h r ence it is difdcult to hold that e ln the face of th possession of the opium.

the appella n , .....

,, p Section rescribes punishment for possesSIon and? atdpbmion in our opinion has to be conscwus.

in the facts of the present case it is difficult to hold that the appellant was in possession ofthe opium and therefore, his conviction sentence can not be sustained."

21.

Taking into totality of the matter and after reading the entire statements together, it appears prosecution has failed prove involvement appellant commission offence beyond reasonable doubt Certain lacuna existed which remained unexplained and creates a doubt about the commission of crime. Taking into totality case after examinatiOn vof evidence placed by prosecution l am of the opinion that the conviction passed by the Court

below can not be sustained and for the lacuna existed, the benefit of doubt should have been leaned in favour of the appellant. Accordingly l am of the opinion the order of conviction can not be allowed to stand. 22.

For foregoing reasons, the judgment of conviction order sentence passed by the learned Court below is set-aside. The appeal is allowed.

If the appellant is on bail, his bail bonds shall continue for a period of six months subject to the provisions of Section 437 Cr.P.C. Sd/- _ Goutam Bhadgi'f Judge Rao/balram