Bhola Ram Kushwaha Vs. The State of
Madhya Pradesh [2000] INSC 577 (16 November 2000)
K.T.Thomas, R.P.Sethi
SETHI,J.
L.I.T.J Leave granted. For allegedly being in
possession of one gram of brown sugar, the appellant was found guilty and
convicted for an offence punishable under Section 21 of the Narcotic Drugs and
Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS
Act"). He was sentenced to undergo rigorous imprisonment for 10 years besides
paying a fine of Rs.1 lakh. Appeal filed against the judgment of the trial
court was dismissed by the High Court vide the judgment impugned in this
appeal. According to the prosecution Shri S.N. Tripathi (PW4), after having
received an information that the appellant was having brown sugar in his pant's
pocket, the appellant was caught hold of and searched in presence of the
witnesses Raju Khanna (PW1) and Arjun Kumar (PW2). Before searching the
appellant, PW4 had telephonically informed his higher officers about the
information received by him. After the appellant consented to be searched by
PW4, the recovery of one gram of powder was made from his back pocket in the
presence of witnesses PWs 1 and 2. After procedural formalities the prosecution
was launched against the appellant. The appellant denied the charge against him
and submitted that he was falsely implicated on account of enmity. Solely
relying upon the testimony of PW4, the appellant was convicted and sentenced as
noticed earlier. Witnesses Raju Khanna and Arjun Kumar have admittedly not
supported the prosecution story.
Learned counsel appearing for the appellant
submitted that as both the witnesses who were stated to be independent
witnesses have turned hostile, the trial court should have acquitted the
accused. We are not impressed with such a general submission. In order to
satisfy ourselves we have perused the statements of all the prosecution
witnesses and ascertained as to whether their testimonies inspire confidence
for holding the appellant guilty of the offence for which he has been convicted
and sentenced. Raju Khanna (PW1) in his statement, recorded in the trial court
on 5th November, 1997 stated that he did not know the accused.
Police had not recovered any material from
the person of Bhola Ram Kushwaha on 20th May, 1997. He had signed some
documents at the instance of police. Some case was pending against him in
Ambikapur Court and in connection with that the police called him and obtained
signatures on the papers.
The witness was declared hostile by the
prosecution and cross-examined. Similarly Arjun Kumar (PW2) categorically
stated that he did not know the appellant. His signatures were also obtained on
some papers at the instance of police.
The appellant was never interrogated or searched
in his presence. Jitender Singh (PW3) Head Constable of Police is stated to
have received on 20th May, 1997 a sealed packet allegedly containing brown
sugar for keeping in safe custody. He made entry of deposit of the material in
the Confiscation Register and issued receipt therefor. S.N.Tripathi (PW4)
stated that he was on round in the town on 20th May, 1997 when he got an
information that the appellant was moving around having brown sugar in his
pant's pocket.
The appellant was encircled by the witness
along with his staff and informed that he was to be searched. He was intimated
of his right as to whether he wanted himself to be searched in the presence of
a Gazetted Officer or the Magistrate. With his consent search was made by the
witness and one gram of brown sugar was seized. He did not deny the suggestion
that between Raju and Arjun some disputes was pending in the court. Upon
analysis of the evidence led in the case and finding glaring discrepancies in
the statements of the prosecution witnesses we feel that the prosecution has
failed to prove its case against the appellant beyond all reasonable doubts. In
all material particulars PW4 stands contradicted by PWs 1 and 2 who are
admittedly the panch witnesses. The prosecution also failed to associate three
constables who accompanied S.N. Tripathi (PW4) as the witnesses. The trial
court appears to have omitted to note the glaring contradictions in the
testimony of prosecution witnesses. PW4 in his testimony in the court submitted
that: "...he received the information that accused Bholaram Kushwaha was
having brown sugar in the pocket of his trouser. He recorded that information
in the Sanha. That is Ex.P/13".
However, a perusal of Exhibit P13 showed that
no entry was made therein regarding the appellant having brown sugar in his
pocket. We feel that the appellant cannot be convicted on the basis of evidence
led, which in this case, we have found to be contradictory and not reliable.
Under the circumstances, the appeal is allowed by setting aside the conviction
and sentence as passed by the trial court and confirmed by the High Court. The
appellant is acquitted of the charges framed against him under Section 21 of
the NDPS Act. He shall be set at liberty forthwith if not required in any other
case.
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