TMI Blog2006 (9) TMI 494X X X X Extracts X X X X X X X X Extracts X X X X ..... tun and the informer did not take place in his presence. Appellant is entitled to benefit of doubt. The appeal is allowed. He is directed to be set at liberty unless wanted in any other case. - CRL.A. 1016 OF 2006 - - - Dated:- 29-9-2006 - S.B. Sinha and Dalveer Bhandari, JJ. JUDGMENT Leave granted. This appeal is directed against a judgment and order dated 24.1.2006 passed by the High Court of Madhya Pradesh at Indore in Criminal Appeal No. 484 of 2001 affirming the judgment of conviction and sentence dated 3.4.2001 passed by the Special Judge, Indore in Special Case No. 44 of 2000 under Section 8 of the Narcotics Drugs and Psychotropic Substances Act, 1985 (for short "the NDPS Act"). One Sabiha Khatun, an Inspector in Central Bureau of Narcotics (Bureau) received an information from an informer on 2.8.2000 that a person would carry around 15 kg. of opium from Indore to Mhow. The informer allegedly disclosed that the person carrying the contraband would be boarding a bus for Mhow at about 4.00 p.m. at Shivaji Vatika. The information was recorded in writing. S.K. Bajpai, Inspector and PW-5 Girwar Puri were witnesses thereto. Shivaji Vatika is almost on the other s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as an autorickshaw driver. According to him, the search was not carried out in his presence. In answer to the questions put to him in cross-examination by the prosecution, it was stated: "7. It is right to say that officers of Narcotic Department had intervened me at Shivaji Vatika A.B. Road. At this place no person namely Girish was intervened before me. It is wrong to say that officers of Narcotic Department told me that person namely Ritesh will come with opium who is to be caught." 8. I had not seen accused present in court at 5 o'clock with a bag in his hand at Shivaji Vatika. I had not seen on spot the accused present in court, before me accused was not interrogated." The name of Appellant was, therefore, not disclosed to the said witness. It is accepted that the office of Bureau was situated at Shivaji Vatika. PW-2 Girish was the owner of the Pan Shop situated in front of CGO Complex which houses the Narcotics Department. According to him also, the departmental officials obtained his signatures on 3-4 blank papers. He also denied that any search was conducted or any seizure was made in his presence. PW-5 is Girwar Puri. He disclosed that the investigation team is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly, he stated: "36. Sabiha madam had not asked informer from where he had got so many information. Himself told that informer was of Madam, therefore, later on he met with madam, he had no information regarding it. I have not asked the informer where he got known all these facts. 37. Ex. P/16 is that information which was given by informer to Madam Sabiha. 38. In Ex. P/16 information of informer, the fact of there would be a leather bag in which opium is concealed was not told before me, if it is told separately, I have no information regarding it. Neither B to B part "I may be given my prize" this fact was not told before me to Madam Sabiha." He, however, at a later part of his cross-examination contradicted himself stating: "40. Before me informer has told the weight of opium to be one to one and half kg. Before me it was not told that opium was about one and half kg. In Ex P/16 in C to C part about one and half kg opium is written but before me he told about opium to be between one to one and half kg. How it is written one and half kg. in C to C part, I cannot tell." Whether the signature of the informer on the statement recorded by Ms. Sabiha Khatun was taken or not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the raiding team, in his deposition he did not utter a single word thereabout. Why he did not corroborate the statements of PW-5 is again difficult to understand. He was appointed an investigating officer but he neither had the occasion to examine any witnesses including the official witnesses nor did he perform any other job. An offence committed under the NDPS Act is a grave one. Procedural safeguards to the accused provided under a statute require strict compliance. By reason of the provisions of the NDPS Act, Parliament has reposed confidence on the gazetted officers. Shri Bajpai being a Superintendent of Bureau was a gazetted officer. If he was present, it was expected that he would disclose his identity and would invoke his power under proviso to Section 42 of the NDPS Act. Why everything was left to be done by PW-5 alone is a mystery. Why Shri Bajpai and Inspectors attached to the Bureau had not been examined has not been explained. The genesis of the occurrence was obtaining of secret information from the informer. Concededly the informer gave full particulars thereof only to Ms. Sabiha Khatun. She was, therefore, the only competent witness to prove the contents of Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esses should not be examined. It may be true that PW-5 in his evidence proved Ex. P/13 but then as indicated hereinbefore he has contradicted himself in material particulars. Whereas at one place he said that the informer made his statements in his presence; but at another place he stated that he was made only a witness to the document. If he was present throughout, we fail to see any reason as to why the entire statement was not made by the informer in his presence. Even as regards the weight of the contraband and the nature of the bag in which the same was to be carried stood contradicted. His evidence, thus, was inconsistent. He, therefore, in our opinion, is not a reliable witness. Strangely enough, a suggestion was given to PW-1 that officers of the Bureau disclosed to him the name of the person who would carry the contraband; although from Ex P/16, it does not appear that even the informer had any knowledge as regards the name of the person concerned. It was submitted that although PWs 1 and 2 were declared hostile, their signatures on the seizure documents had not been disbelieved. They categorically stated that their signature were obtained on blank papers and they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssenger from the bus if he did not have any prior information or entertain any suspicion regarding involvement of Appellant therein being in possession or smuggling of opium. In Bhola Ram Kushwaha v. State of M.P., [2001] 1 SCC 35, this Court although opined that only because witnesses have turned hostile, Appellant would be entitled to a judgment of acquittal as a matter of right, but having regard to the statements of prosecution witnesses inter alia to the effect that the police had called the witnesses in a police station and obtained their signatures on the paper and the statements of the independent witnesses that the accused was never interrogated and searched in their presence, the judgment of conviction and sentence was set aside. The court should also take care of the fact that a person may not be convicted on a misguided suspicion. [See Gopal v. State of M.P., [2002] 9 SCC 595] Although the effect of illegal search may not have any direct impact on the prosecution case but the same will have a bearing on the appreciation of evidence of the official witnesses and other materials depending on the facts and circumstances of each case. [See State of Punjab v. Balbir Si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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