Jitendra Vijay Narain Raghuvanshi v. State Of M.P .

1. Appellant-Jitendra has been convicted under Section 20(b)(ii) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter to be referred to as the 'Act') for being found in unlawful possession of one kilogram of 'charas' on 12-8-1999 and sentenced to rigorous imprisonment for ten years and to a fine of rupees one lac His mother Smt. Sheela alias Chandravati has been convicted under Section 20(b)(i) of the Act for being found in possession of one kilogram of Ganja on the same date in her house and she has been sentenced to rigorous imprisonment for three years and to a fine of Rs. 5,000/-.

2. After hearing the learned counsel for both the sides at length the evidence on record has been carefully scrutinised in light of the points raised by them. Rajendra Pathak (P.W. 7) was the Station Officer of Kotwali Police Station, Datia on 12-8-1999. He has deposed that on that date at about 5 p.m. he received information that a man is standing with his scooter near his house in Tigaliya and he is in possession of charas. He recorded this information in the Panchnama, Ex. P/3 and passed on this information to his immediate superior officer Angad Singh (P.W. 8) S.D.O. (Police) who was present at Kotwali. He proceeded to the spot with him and other members of the team. Mukesh (P.W. 3) and Sandip (P.W. 2) were panch witnesses with him. He found accused-Jitendra standing with his scooter which had no registration number. He informed him that the search of the dicky of his scooter is to be taken and he can give the search either to the police officers present there or to the Magistrate. The panchnama of that information is Ex. P/4. Accused-Jitendra gave in writing that he is willing for the search of his scooter by the police officers present there. All this was unnecessary as it is by now settled that Section 50 of the Act is not attracted for searching the dicky of the scooter as that provision is applicable to the search of a 'person' only.

3. Rajendra Pathak (P.W. 7) has further deposed that he asked accused-Jitendra about the key of the lock of the dicky and then he took out the key from the pocket of his trouser and opened the dicky. It was found that there were five packets of 'charas' in a polythene bag and the currency notes of Rs. 20,000/- (twenty thousand only). The 'charas' weighed one kilogram. The 'charas' and the money were seized as per seizure memo, Ex. P/6. Two samples of 100 grams each were taken out from the 'charas' and they were sealed as per panchnama Ex. P/12. Thereafter, a lady constable was called and the house of Smt. Sheela mother of the accused-Jitendra was searched and one kg. of 'ganja' was recovered from the house. That was seized as per seizure memo Ex. P/9. Two samples of 200 gram each were taken and sealed as per panchnama Ex. P/ 13. Angad Singh (P.W. 8), S.D.O. (Police) was present there and he was given information as per Ex. P/16 of the search and seizure. He came back to police station and recorded the F.I.R. Ex. P/15. He delivered the seized packets to the Malkhana Moharrir for being kept in safe custody. He sent the sample packets in sealed condition to the Forensic Science Laboratory, Sagar for chemical examination. The report of the Assistant Chemical Examiner of this laboratory is Ex. P/17. According to this report the packets were received in the laboratory on 16-8-1999 duly sealed with specimen of the seal 'Kotwali, Datia.' According to this report the commodities seized were confirmed as 'charas' and 'ganja.'

4. Angad Singh (P.W. 8), S.D.O. Police and D.J. Rai (P.W. 6), Sub-Inspector have fully corroborated the evidence of Rajendra Pathak (P.W. 7). The panch witnesses have turned hostile. From the evidence of these witnesses it is clearly borne out that the procedural statutory provisions of sections 42, 55 and 57 were fully complied with. The rer quirement of Section 50 though not necessary was also observed. The trial Court after proper appreciation of the evidence on record has convicted and sentenced the accused persons as stated at the outset. The testimony of the police officers is reliable and it is corroborated by the documents on record. The prosecution case could not be thrown overboard simply because the Panch witnesses have turned hostile.

5. During the course of hearing of this appeal two points have been raised on behalf of the appellants (a) there was no proper sealing of the samples as required by Section 55 of the Act and it is not proved that the specimens of the seals were sent to the Forensic Science Laboratory and, therefore, the tampering the samples is not ruled out (b) the seized contraband has not been produced before the trial Court and that is fatal to the prosecution case. These are the two points which require consideration in greater detail.

6. Point A : It is argued that the Investigating Officer has not clarified in his evidence what kind or specimen of seal was affixed by him on the packets of the samples. But this information could have been elicited in cross-examination. The sealing of the samples does not appear to have been challenged in cross-examination. The seizure memo, Ex. P/6 and Ex. P/9 and sample Panchnamas Ex. P/12 and Ex.P/13 have clear recitals that the samples were duly sealed. The report Ex. P/17 of the Assistant Chemical Examiner admissible under Section 293, Cr.P.C. shows that the packets were received in sealed condition having the specimen of 'Kotwali, Datia.' It appears that the copy of letter dated 14-8-1999 of the Superintendent of Police, Datia addressed to the Director, Forensic Science Laboratory, Sagar has not been exhibited by the Public Prosecutor during the trial of the case and the trial Court was also not vigilant in this respect. This document is mentioned at serial No. 9 in the charge-sheet and its copy must have been supplied to the counsel for the accused. A perusal of this letter reveals that the packets were 'sealed' and the specimen of the seal of 'Kotwali, Datia' was also sent. It is confirmed from the report Ex. P/17 of the Forensic Science Laboratory that the seals were intact and the specimen of the seal was also there.

7. It is pointed out that the prosecution has not examined 'Malkhana Moharrir' to prove that the packets remained in sealed condition from the time of their receipt to the time of their despatch to the Forensic Science Laboratory. In this connection it is noteworthy that the samples were sealed on 12-8-1999 and these were sent to the Laboratory with promptitude on 14-8-1999 and these were actually received in the Laboratory on 16-8-1999. There was no chance of any tampering. Why should there be tampering? The presumption under Section 114, Illustration (a) of the Evidence Act that all official acts have been done rightly and regularly attaches to the acts of the police officers also as to other officers. It is not proper approach to proceed with doubt or disbelief unless there is something to excite suspicion. It is true that the prosecution is required to prove its case beyond reasonable doubt but it is not the law that it has to rule out every fantastic possibility or lurking suspicion. It was observed long back that the benefit of doubt is not like a frail willow bending to every whiff of hesitancy and the defence cannot be permitted to make a mountain out of the mole hill. Perfect proof is seldom to be had in this imperfect world.

8. On the facts and in the circumstances of the present case it is clearly established that the samples of'charas' and 'ganja' were duly sealed and those sealed packets were sent for chemical analysis and it was found that there was 'charas' and 'ganja' in those packets. The same commodity was tested which was seized from the accused persons and no doubt can be entertained in that respect.

9. Two decisions of the Supreme Court have been referred to by the learned counsel for the appellants during the course of his arguments. The first is Valsala v. State of Kerala, 1993 SCC (Cri) 1082 : AIR 1994 SC 117. On the facts of that case it was held that the prosecution could not prove its case beyond reasonable doubt. There was delay of three months in that case in sending the samples for analysis. In the present case there has not been delay of even three days. In that case there was not sufficient evidence to show that the seized article was sealed and if so when. That is not the position in the present case. Here the samples were sealed on the spot and they remained in that condition until they reached the hands of the chemical examiner. Therefore, the decision of the Supreme Court is not applicable to the present case. It is the ratio or the principle enunciated in a case which constitutes a precedent and not the conclusion which is arrived at on the basis of certain facts. The second case is Thandiram v. State of Haryana, 2000 SCC (Cri) 189 : 2000 Cri LJ 588. In that case there was total non-compliance of Sections 55 and 57 of the Act. That is not the situation in the present case. These statutory provisions have been followed in letter and spirit. Similarly in Gurubux Singh v. State of Haryana, 2001 (1) Crimes 235 : 2001 Cri LJ 1166 (SC) the articles were not sealed as required by Section 55 of the Act. All these cases are distinguishable on facts.

10. Point B : It is contended on behalf of the appellants that the 'charas' and 'ganja' which were seized have not been produced in court and have not been marked as articles. That should have been done. But that would not vitiate the conviction as it has been proved that the samples of 'charas' and 'ganja' were sent to the chemical examiner in properly sealed condition and on analysis these were found to be 'charas' and 'ganja'. Non-production of these commodities before the Court is not fatal to the prosecution case. The defence also did not insist during the trial that these commodities should be produced. Therefore, it is not permissible to build after thought arguments on some minor infraction here or there. There is Section 465 in the Code of Criminal Procedure to meet such situations. Every irregularity in the investigation or trial does not affect the conviction unless it is shown that a serious prejudice has been caused to the accused resulting in failure of justice. The objection with regard to non-production of the seized material in the court could have been raised during the trial. Section 465(2) of the Code now does not permit to raise such objection. Technicality should not triumph over the substance is the cardinal rule even in the field of criminal law.

11. The conviction of the appellants for the aforesaid offences is unassailable. The sentence imposed on appellant Jitendra though heavy is the minimum prescribed by law. Therefore, his appeal is dismissed. The sentence imposed on appellant Smt. Sheela appears to be excessive. She has remained in jail for about 14 months and, therefore her sentence of imprisonment is reduced to the period already spent by her in jail and her sentence of fine is reduced from Rs. 5,000/- to Rs. 2,000/-. Her appeal is al-lowed to this extent.