JAMAL ALI Vs. STATE OF MP.

JUDGEMENT

(1.) SPECIAL Judge, Jabalpur in Special Case No. 28/03 vide impugned judgment dated 19.4.2004 recording conviction of appellant under section 8/20 (b) (ii) (C) N.D.P.S. Act sentenced him to undergo R.I. for a period of 10 years and to. pay fine Rs. 1,00,000/- in default to suffer further imprisonment for a period of 2 years. Being aggrieved, appellant has preferred this appeal under section 374 (2) Cr.P.C.

(2.) RAKESH Tiwari (PW 6) Sub Inspector, Police Station Madan Mahal, Jabalpur on 2.6.2003 received the information that some one in possession of ganja is sitting in the waiting hall (pratikshalaya) of the bus stand. Accordingly this information was recorded. Taking the witnesses Soni Lal (PW 2), Manik Lal (PW 4) he visited the waiting hall of the bus stand and found the appellant sitting on the bench (patti). The bags were also found kept on the said bench (patti). The appellant was apprised of the information in relation to alleged possession of ganja and proposed search. Appellant consented to the proposed search by the sub inspector. The bags being opened. The contents kept therein as per physical examination was found to be ganja. Taking sample the ganja was seized from the appellant. Seized contraband and the packets were properly packed. Seal of the specimen (Exhibit P-10) was affixed. Ganja-packet containing samples were kept in the malkhana. Packet containing samples were sent to the Forensic Science Laboratory, As per report (Exhibit P-29), the contents of packet were certified as ganja. Completing the investigation, the appellant was charge-sheeted under section 8/20 N.D.P.S. Act. Appellant abjured the guilt and contended that he was selling goggles in the bus stand. Calling him at the police chouki, his signatures were obtained on few papers. He has been falsely implicated for being found in possession of contraband. The Court below on the basis of statement of Rakesh Tiwari (PW 6) held that the appellant was in possession of bag containing ganja said to have been kept on the bench (patti) as such, it was seized from him vide Exhibit P-9. Recording conviction under Section 8/20 N.D.P.S. Act he has been sentenced to undergo R.I. and to pay fine in default to suffer further imprisonment for the period stipulated said above.

(3.) THE aforesaid statement of PW 6 Rakesh Tiwari makes it clear that he failed to select the respectable witnesses for purpose of alleged raid and seizure relating to contraband. PW 2 Soni Lal, PW 4 Manik Lal rickshaw pullers did not support his statement. The presence of the appellant at the place from where the bags said to contain ganja were recovered cannot be taken as an evidence for possession of aforesaid bags by the appellant. As has been held in State of Punjab v. Balkar Singh and another, (2004) 3 SCC 582 in fairness, PW 6 Rakesh Tiwari, Sub Inspector should have conducted further investigation to prove that the appellant really was in possession of these bags. In Nellikunnel Jose v. State of Kerala, AIR 2000 SCC 3577 (2) also the apex Court held that mere presence of appellant near the place where bags said to contain contraband were found kept, would not be sufficient proof of prosecution case beyond reasonable doubt. Offence of being found in possession of contraband- ganja cannot be said to have been committed by the appellant.