OM PRAKASH SHARMA Vs. STATE OF M.P.

JUDGEMENT

(1.) THE Appellant was convicted Under Section 20(b) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short the 'NDPS Act'), for allegedly carrying 30 k.g. of Ganja for the purpose of sale. On having been found guilty, he has been sentenced to undergo rigorous imprisonment for four years and fine of Rs. 15,000/ - and in default of payment of fine, to undergo further rigorous imprisonment for 1 year. As per the prosecution case, on 20.3.98, Hetram Mannar, S.D.O. (P), Kotma, district Shahdol, received an information from an informer that the accused was carrying 30 k.g. Ganja on a bicycle. Then police came in a jeep led by Hetram Manhar S.D.O. (P), Pramod Pandey Sub -Inspector, R.K. Dwivedi A.S.I., A.P. Tiwari Head Constable, Ramnaresh Constable, Firdous Ekka Head Constable, Brijmohan Singh Constable and witnesses; Sukhlal Kewat and Vinod Kumar Soni along with the informer. They found the accused coming by the side of NALAH. He was carrying one bag full of Ganja which was loaded on the carrier and one military uniform colour bag was carried on the handle of the bicycle. On enquiry accused disclosed his name as Om Prakash, S.D.O. (P) Shri Hetram Mannar obtained the consent of the accused for the search vide Ex. P/10 and from the bag which was on the carrier of the bicycle, 25kg. Ganja and from the bag on the handle of the bicycle 6 kg. Ganja, total quantity 31kg. was seized vide seizure memor Ex. P/4. At the very time out of seized Ganja, 50 -50 grams quantity was separated and sealed in two packets for the purpose of analysis. Abdul Quadir had done the weighment of Ganja. Spot map Ex. P/5 was prepared. Accused was arrested vide arrest memo Ex. P/7. Dehati Nalish Ex. P/11 was reduced in writing on the spot. At the police station offence was registered as Crime No. 60/98 vide Ex. P/16. The intimation was given to the Superintendent of Police on wireless regarding seizure of Ganja. The seized ganja was referred to the Forensic Science Laboratory, Sagar Vide Ex. P/13. The report Ex.P/15 obtained from F.S.L. Sagar has been placed on record. It was found that the seized material was Ganja. Accused abjured the guilt and contended that he was falsely implicated in the case and was arrested from the flour mill of one Bhagwan Deen Kewat, at village Kumhari. In defence, Bhagwan Deen Kewat was examined by the accused. Learned Counsel appearing for the Appellant has submitted that the conviction of the Appellant is bad in law. The seizure has not been proved from the possession of the Appellant. Information given by the informer was not reduced in writing as required Under Section 42 of the NDPS Act. It is further submitted that there is non -compliance of Section 57 of the NDPS Act. There was inordinate delay in sending the sample for chemical examination. It has not been established that the sample sent for chemical examination was seized from the possession of the accused. He further submits that it has not been established that the seized material was Ganja. In the alternative, his submission is that the benefit of Probation of Offenders Act ought to have been given or the sentence imposed be suitably reduced in the facts and circumstances of the case.

(2.) VARIOUS documents have been placed on record. Ex.P/1 is the memo sent to requisition of witnesses Sukhlal and Vinod Kumar Soni. Search memo (Ex.P/2) of S.D.O(P), Hetram Manhar records that the S.D.O. (P) was not carrying any contraband. Search of accused was made. Search memo (Ex. P/3) of the accused was prepared. After seizure, 50 -50 grams of Ganja was taken out of each of the bags and was sealed and the sample of seal has also been affixed on seizure memo (Ex. P/4). Crime details form (Ex. P/5) was drawn. Weighment memo (Ex. P/6) of seized material was reduced in writing. Accused arrest memo is Ex. P/7. The police statements of Vinod Kumar Soni (Ex. P/8) and Abdul Quadir (Ex. P/9) were recorded. Consent of the accused (Ex. P/10) for the search was taken. Dehati Nalish (Ex. P/11) was reduced in writing on the spot. The wireless message {Ex. P/12) was sent to the Superintendent of Police, Shahdol which contains details with respect to the seizure of Ganja. Contraband material was sent to the F.S.L. Sagar vide memo Ex. P/13. Contraband goods were placed in Malkhana. Entry in Malkhana register (Ex. P/14) was made. The report of F.S.L. Sagar (Ex. P/15) discloses that the contraband sample material was Ganja. The first information report (Ex. P/16) was registered at police station. General diary entry of police station Kotma records at serial No. 890 (Ex. P/17) the intimation which was received through an informer that the accused Omprakash Sharma was likely to carry Ganja. The information was reduced in writing in general diary by Sub -Inspector Mr. Pandey and S.D.O. (P) was informed. At serial No. 891 of the general diary, there is an entry of giving intimation to S.D.O. (P) by Sub -inspector Pramod Pandey that he was informed telephonically at 12.10 hours. Initial intimation was received at 12.05 hours. Another" entry of general diary (Ex. P.19) records leaving of trap party in search of the accused towards the spot. The general diary entry at serial No. 907 (Ex.P/20) records factum of trap, returning back of police, after seizure of the contraband along with the accused person. General diary entry (Ex. P/21) relates to placing of the seized Ganja along with the sample in Malkhana. The prosecution has examined Vinod Kumar Soni (PW -1) as witness to the trap, and Abdul Quadir (PW -2) as witness to weighment. Hetram Manhar, S.D.O. (P) was examined as PW -3. Firdous Ekka (PW -4) constable produced a general diary and has proved the general diary entries Ex. P/17 to Ex. P/21. Bhagwan Deen was examined as DW -1 by the accused in defence. Vinod Kumar Soni (PW -1) was the witness to the trap. Though he has admitted his signature in Ex. P/1 in the portion 'A' to 'A', but, turned hostile. Abdul Quadir (PW -2) states that weighment was done in his presence. He owns his signature over ex. P/6, but, he has stated that it was done next day. Hetram Manhar (PW -3) and Firdous Ekka (PW -4), no doubt, have supported the case in the investigation part, seizure etc.

(3.) HOWEVER , there are contrary views available of the Supreme Court in case of Radha Kishan v. State of U.P. ( : AIR 1963 SC 822) and in case of State of Kerala v. Alasserry Mohammed ( : AIR 1978 SC 933) where the larger Benchs had considered the matter and it was held that violation of statutory provisions in making search will render the search illegal but will not render the search inadmissible and will not vitiate the trial. In two latter decisions of the Supreme Court in State of Punjab v. Jasbir Singh - : 1996 (1) SCC 288 and State of Himachal Pradesh v. Prithi Chand and Anr. ( : AIR 1996 SC 977), cases under NDPS Act itself, it has been held that evidence collected during investigation in violation of the statutory provision does not become inadmissible and trial on the basis thereof does not get vitiated. It may further be seen that in the context of pari materia provision in case of Bai Radha v. State of Gujarat ( : AIR 1970 SC 1396), a case under Suppression of Immoral Traffic in Women and Girls Act. Section 15(1) of that Act requires the reason for search to be mentioned. The search was conducted without recording such reason, without a warrant. It was held by the apex Court that the power to conduct the search was derived from the statute and not from the recording of the reasons and, therefore, search was not rendered illegal on account of the contravention of the provisions of Section 15(1) of the Act and as such an infirmity does not vitiate the trial. A similar view was taken in case of State of Rajasthan v. Rehuman ( : AIR 1960 SC 210).