Gendalal v. State Of Madhya Pradesh .

K. L. Shrivastava, J. - This appeal is directed against the judgment dated 17.9-1987 passed by the IIIrd Additional Sessions Judge, Indore in Sessions Trial No. 206 of 1986 con­victing the appellant under Section 8/18 of the Narcotic Drugs and Psychotropic Substances Act, lS85 (for short 'the Act') and sentencing him to rigorous imprisonment for 10 years and a fine of Rs. 1,00,000/- thereunder.

2. Circumstances giving rise to the appeal 6.35 p.m. on 22-9-86 Station House Officer, G.R.P. Indore received information to the effect that a person having big moustaches with one of his right fingers bandaged and wearing a Khaki pant is travelling by train No. 69 carrying with him opium in a attache of brown colour. The information was entered in the Roznamcha (vide Ex. P-4).

3. On the basis of the information afore­said, the Assistant Sub-Inspector Kartar singh (P.W. 1)" Constable Ganpat (P.W. 3) and Head Constables Natvarlal and Rajbahadur were deputed to apprehend the culprit. They entered the Coach No. 1081 and found that a person sitting on berth No. 24 had a brown case with him and answered the description of the person given in the information. He is no other then the appellant.

4. It was at Mhow Railway Station that Kartar Singh (P.W. 1) interrogated the appel­lant who admitted that the brief-case contain­ed opium. From there the appellant together with the railway servants Darshansingh (P.W. 2) and Jalamsingh (P. W. 4) was brought to G.R.P. Police Station Indore and F.I.R. was lodged at 8.10 p.m. the same day (vide Ex. P.1).

5. The person of the appellant was sear­ched at Indore and he was found in possession of a railway ticket from Indore to Sikandrabad. The brief-case was also seized from him. It was found to contain II Kilograms of opium. Samples were taken out of it and then the opium was sealed.

6. The sample were sent to the F.S.L. Sagar for examination (vide Ex. P-11). Accord­ing to the report (vide Ex. P-12) received from there, the substance seized was confirmed to be opium.

7. At the conclusion of the investigation the appellant was prosecuted with the result already stated.

8. The defence of the appellant at the trial was that he was not in possession of the brief-case and he had, at the earliest, denied its possession. According to him he is an agri­culturist and has falsely been involved in the crime.

9. The detention of the learned counsel for the appellant is that there is no credible evidence that the appellant was in possession of the brief case and, therefore, the learned Sessions Judge erred in entering conviction.

10. The contention of the learned counsel for the State is that there is no reason to dis­ believe the testimony of Kartarsingh (P.W. 1) which is also corroborated by that of Ganpat (P.W. 3) that the brief-case in which opium was found was on the lap of the appellant.

11. The point for consideration is whether on the material on record, the appellant's con­viction is not sustainable.

12. The testimony of Kartarsingh (P.W. 1) is that on 22-9-86 he was informed by L.S. Chouhan, Station House Officer that by train No. 69 up a tall person would be carrying opium in a brown brief-case and that on entering the coach No. 1081 at Indore along with his party the appellant was found therein the coach. He would have us believe that no other person in the train answered the description. According to the witness the appellant was having the brief-case on his lap and he had apprehended him before the train had reached the Mhow and later when interrogated at Mhow he had stated that the brief-case contained opium. The witness has further stated that Darshansingh (P.W. 2) and Jalamsingh (P.W. 4) were then called and were told about the appellant being in possession of opium. Jalamsingh (P.W. 4) does not corroborate him, his version being that he was at Indare.

13. Ganpat Singh Police Constable (P.W. 3) has stated that on being interrogate, the appellant had a first stated that the attache with him contained ball bearings. Such is not the version of Kartarsingh (P. W. 1).

14. There is evidence to the effect that there were several persons in the coach but Done of them has been made a witness in the case.

l5. Learned counsel for the appellant contends that it is not without significance that neither in F.I.R. nor in the seizure Memo Ex. P-2 there is any mention that the brief-café was on the lap of the appellant. He urges that in this context, the evidence of Kartarsingh (P.W. 1) at the trial that it was on appellant's lap is clearly an improvement and does not deserve credence. He invites my attention to the fact that the two railway servants who according to the prosecution, accompanied the police party from Mhow to Indore and signed the seizure Memo have not stated that they had initially seen that the appellant was in possession of the same.

16. In paragraph 6 of his deposition Kartarsingh (P.W. 1) has stated that the appel­lant had told him that the brief-case did not belong to him. In this very connection refer­ence may also be made to the testimony of Jalamsingh (P.W. 4). Contrary to the evidence of Kartarsingh (P.W. 1) and Ganpat (P.W.3) the version of Jalamsingh is not that he was at Mhow. According to him he was at Indore Railway Station and was called at the police station to witness the seizure.

17. The offence punishable under Section 18 of the Act is a serious one and enjoins severe punishment. Therefore, the Court must necessarily ensure that the offence is proved beyond reasonable doubt by evidence which is legal reliable and unimpeachable.

18. In the instant case, the evidence at the trial is not that Kartarsingh (P.W. 1) and Ganpat (P. W. 3) were told about the descrip­tion of the person as given in the Roznamcha (vide Ex. P/4). The evidence of the depart­mental witnesses is also discrepant and they cannot be classed as wholly reliable witnesses. There is no independent witness to corroborate their version that the appellant was in posses­sion of the attache in question. This aspect of the matter assumes much importance in the context of the evidence that the appellant had, at the earliest, denied that the attache was with him. On the state of material on record be ruled out.

19. On a careful consideration of the material on record, it has to be held of necessity that the prosecution has failed to proved the ingredient of possession beyond reason­able doubt.

20. In the result, the appeal succeeds and is allowed. The appellant's conviction under Section 8/18 of the Act and so also the punish­ment imposed thereunder are both set aside. It is directed that, if not required in any other case, the appellant be released forthwith.