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CASE NO.: Appeal (crl.) 983 2000

PETITIONER: BHOLA RAM KUSHWAHA

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       16/11/2000

BENCH: K.T.Thomas, R.P.Sethi

JUDGMENT:

SETHI,J. L.....I.........T.......T.......T.......T.......T.......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

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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.