Madhya Pradesh High Court
Rafeeq @ Raffu Khan vs The State Of Madhya Pradesh on 17 March, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:16586
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 17th OF MARCH, 2025
CRIMINAL APPEAL No. 11194 of 2024
RAFEEQ @ RAFFU KHAN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ghan Shyam Pandey - Advocate for the appellants.
Ms. Shikha Baghel - Panel Lawyer for the respondent/State.
Reserved on: 17.03.2025
Pronounced on: 07.04.2025
JUDGMENT
This appeal under Section 374(2) of the Cr.P.C. has been preferred
by the appellants being aggrieved by the judgment of conviction and
sentence passed by Special Judge, NDPS Narsinghpur, District-
Narsinghpur in SC NDPS/37/2022 dated 20.09.2024 by which the
appellants have been convicted for the offence punishable under Section
8 r/w 20(b)(ii)(B) of NDPS Act and sentenced to undergo R.I. for 3
years with fine amount of Rs.5,000/- each with default stipulation.
2. The fact giving rise to the case before the trial Court is that on
06.08.2022, Sub Inspector Rajesh Sharma (PW-5) got the secret
information that two persons riding on motor-cycle were transporting
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contraband ganja, he wrote the information and called the independent
witnesses and sent the information to his immediate superior Sub-
Divisional Officer Police, Gadarwara. Along with the force and private
persons visited the spot. The appellants were coming on motor-cycle,
Sub Inspector Rajesh Sharma (PW-5) stopped them and made the search
and seizure of 2.5 kg ganja from the possession of the appellants. After
formal proceedings, the appellants were arrested and brought to the
police station. The contraband was deposited in the Malkhana. The
information was sent to Executive Magistrate and Section 52-A of the
NDPS Act proceedings were initiated. The samples drawn out by the
Executive Magistrate of which one sample was sent for FSL examination
and as per that FSL report, the contraband was found to be ganja.
Charge-sheet was submitted before the trial Court.
3. The trial Court framed the charges under Section 8/20 of NDPS
Act and read over to appellants. The appellants abjured the guilt and
prayed for trial.
4. The trial Court recorded the evidence of the prosecution
witnesses and also examined the appellants. The appellants have taken
the defence that they are innocent and they have been falsely implicated
in the case but has not produced any defence witness. After hearing both
the parties, the trial Court passed the impugned judgment, hence, this
appeal.
5. Learned counsel for the appellants has submitted that the trial
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Court has not appreciated the evidence in proper perspective and has not
observed that the mandatory provisions of NDPS Act has not been
followed. He has also submitted that as per the prosecution case itself,
the contraband that was recovered from the possession of the appellants,
were made homogeneous and the samples were drawn, that is clear
violation of the standing procedure of law and no sample was drawn by
Executive Magistrate. On the same day, the articles were not properly
kept in the Malkhana of the police station. On the next day, the
proceedings under Section 52-A of the NDPS Act were initiated and
after the mixture, the report has been submitted by the FSL stating that in
this the contraband was found to be ganja.
6. Learned counsel for the appellants has relied on the judgment
passed in M.Cr.C. No.7965/2011 Dayaram Singh and another Vs. State
of M.P. order passed on 04.03.2024 by Co-ordinate Bench of this Court,
in which the Co-ordinate Bench has held that the FSL has not applied the
test regarding the presence of tetrahydrocannabinol He has further relied
the order of this Court passed in I.A. No.10046/2024 in Cr.A.
No.5202/2024 dated 19.02.2025 in which it is held that looking to the
above aspect, the appellants are entitled for bail but the trial Court has
wrongly convicted the appellants, hence, the appeal be allowed and
appellants be acquitted.
7. Learned counsel for the State has opposed and has submitted
that the trial Court has considered each aspect and there is no substance
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in the appeal. Hence, the appeal be dismissed.
8. Heard the learned counsel for the parties and perused the
record.
9. In this case, the recovery has been made from the seat of a
motor-cycle in which one appellant was sitting as a driver and another
was sitting as a pillion rider and between both of them, in a red coloured
bag, the contraband was found measuring 2.5 kg. As per the statement of
Rajesh Sharma (PW-5) on 06.08.2022, when he was posted in reporting
Police Chowki, Sihora, Police Station Gadarwara as an Assistant Sub
Inspector, he got the secret information that in a black coloured Platina
motor-cycle, two persons are coming and they are passing towards Linga
Pipariya to Kalyanpur and specifications of their colour and body
constitution were given. On that he wrote in Ex.P/41 and sent Constable
Balbihari Raghuwanshi (PW-3) to call the independent witness who
returned along with Deepak Jatav (PW-2) and one Pankaj Sen and the
witnesses were communicated the information and panchnama (Ex.P/18)
was prepared. He tried to contact to SDOP on mobile but when unable to
contact, he sent the intimation through Balbihari Raghuwanshi (PW-3)
(Ex.P/43) and issued duty certificate Ex.P/44 in his favour to him.
10. Witness Balbihari Raghuwanshi (PW-3) in clear terms has
supported the prosecution case and has submitted that on 06.08.2022,
ASI Rajesh Sharma (PW-5) informed him the secret information
received regarding the contraband and prepared the panchnama
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(Ex.P/41) and asked him to call two independent witnesses and on that
he called independent witnesses namely Deepak Jatav (PW-2) and
Pankaj Sen from the bus stand. On same day on 06.08.2022, he was
given intimation to inform to SDOP and with the report and mukhbeer
panchnama (secret information), he went to the Office of SDOP and
delivered the intimation to concern as per Ex.P/43 and Ex.P/44.
Minutely, observed the mukhbeer soochna panchnama (secret
information panchnama) (Ex.P/41) that was written down on 06.08.2022
at 12:25 pm in police chowki Sihora and as per Ex.P/43 on the same day
through dispatch No.82/2022, the intimation was sent to SDOP
Gadarwara that was received on behalf of SDOP by Subhash Kumar
(PW-6) Gadarwara on same day i.e. 06.08.2022 at 14:40 hours.
11. Subhash Kumar (PW-6) has, in clear terms, supported that on
06.08.2022, he was posted in SDOP office, Gadarwara as a Reader and
on that date Constable No.632 Balbihari Raghuwanshi (PW-6) brought
the intimation under Section 42 of the NDPS Act and he received that
envelope and had given the receipt in Ex.P/43.
12. Thus, from the above discussion, it is clear that the Police
Officer had received the secret information and wrote down it
immediately and the information was sent to immediate Superior Officer
on same day. Thus, the compliance of Section 42 of NDPS Act has been
done in the case.
13. The independent witness Deepak Jatav (PW-2) has not
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supported the prosecution case and has stated that Police got his
signature near Village Harrai and Ex.P/18 to Ex.P/39 bears his signature
in the lengthy cross-examination by the prosecution but nothing has been
brought against the appellants.
14. The Investigating Officer ASI, Rajesh Sharma (PW-5) has
submitted that he along with the police force and independent witnesses
went towards road from where it was informed that appellants will pass
and with the help of accompanying force stopped the motor-cycle in
which appellants were going. Between both the appellants red & white
coloured bag was found. The motor-cycle was driven by Rafeeq s/o
Jabbar and Teerath s/o Ganesh was a pillion rider. They were informed
the secret information and panchnama Ex.P/20 was prepared. They were
also informed their legal rights that they are entitled to be searched in the
presence of Magistrate or Gazetted Officer and served the written
intimation to them as Ex.P/20 and Ex.P/22 bears the signature of the
appellants and in the search memo, it has been further stated that on
search, this original copy of the receipt was recovered from their
possession.
15. In the personal search, no contraband was found and when the
bag was opened, the contraband was found that was identified and was
made homogeneous, panchnama were prepared as Ex.P/29 and Ex.P/30
with the help of weighing machine that was being brought by Pradeep
Shrivas, Sainik Home Guard No.237. The weight of the contraband was
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taken and as per that it was proved to be 2.5 kg. He also contacted the
Executive Magistrate and he was not available, hence, the contraband
was sealed on the spot and panchnama regarding non-preparation of
sampling panchnama (Ex.P-33) and panchnama of sealed sample
(Ex.P/34) were prepared. Appellants were arrested with the contraband
and motor-cycle, mobile phones and currency that was Rs.300/- were
recovered from Rafeeq and were deposited in the malkhana of the Police
Station.
16. The witness Komal Singh Yadav (PW-4) he is another Head
Constable of the police has supported the statement of ASI, Rajesh
Sharma (PW-5) and no contradiction regarding the proceeding by the
Investigating Officer has been brought in the statement of the Rajesh
Sharma (PW-5) or in the statement of Komal Singh Yadav (PW-4).
Furthermore, Komal Singh Yadav (PW-4) has also stated that on the date
of incident, a contraband in the sealed condition that was marked as “A”
measuring 2.5 kg, the currency notes of Rs.300/- marked as article “B”
and mobile phones of Realme company and Infinix company along with
the motor-cycle were handed over to him and he entered the articles in
his malkhana register (Ex.P/48) in the entry No.33/22 and he has
produced the original malkhana register (Ex.P/48) and the panchnama
(Ex.P/49) bears his signature.
17. This witness Komal Singh Yadav (PW-4) has further
submitted that on 07.08.2022, Naib Tehsildar, Shweta Bamhore (PW-1)
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had taken the sample and authenticated the contraband as per Section
52-A of the NDPS Act and the contraband was weighed as per Ex.P/2
when the contraband was handed over to Naib Tehsildar, the panchnama
was prepared as Ex.P/3, the panchnama of the seal of the sealed packet
was broken (Ex.P/4). On weight being made, the contraband was found
to be 2.5 kg and the weighing panchnama is Ex.P/5. Naib Tehsildar
Shweta Bamhore (PW-1) has drawn the sample of 50-50 grams that
were marked as A-1 and A-2 and the rest of the contraband was marked
as article “A” and the panchnama is Ex.P/6. After that the contraband
and samples were re-sealed as per Ex.P/7 and again the contraband in the
sampled form marked as A, A-1 and A-2 were handed to him for
keeping them in malkhana. Photographs were taken.
18. On 08.08.2022 after the proceedings of the sampling, the
sample A-1 was handed over to Constable No.632 Balbihari
Raghuwanshi (PW-3) to deposit the sample in Forensic Science
Laboratory and on the same day Balbihari Raghuwanshi (PW-3) after
depositing the sample in FSL, Sagar submitted the receipt of FSL (Ex.P-
46). On 17.09.2022, Sainik 139 submitted FSL examination report and
he has made the entry in malkhana register.
19. On this point gone through Ex.P/48, this register has
mentioned in the printed form “Madhya Pradesh Sashan Police Vibhag
Japt Mal ka Register Police Station Gadarwara O.P. Sihora, District
Narsinghpur” and in entry No.33/22 in the column number of the date it
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has been mentioned 140/06.08.2022, the place of incident has been
shown Village Harrai Baranjh Mijore Tigadda near Peepal tree reporting
Police Chowki Sihora, Police Station Gadarwara and in the same
column, name of the accused persons Rafeeq s/o Jabbar, religion, age
and address and in the same entry regarding Teerath Patel has been made
and in another column the description of seized article is mentioned as a
sealed packed containing 2.5 kg illegal contraband ganja marked as “A”
another sealed packed red coloured bag marked as article “B”. The black
colour Platina motor-cycle whose number is MP 15 MQ 6746 is
mentioned and the chassis number of the vehicle has been written. Phone
of Infinix company Realme company and a sealed envelope containing
Rs.300/- has been mentioned.
20. On 07.08.2022 as per the GD No.161 the contraband was
drawn for the sampling and after sampling, three packets of the
contraband were returned over to the concerned Police officer on
08.08.2022. As per GD No.181, the article A-1 sample drawn on
07.08.2022 along with the draft 363/2022 was given to Constable
No.632 for FSL Sagar and same day on 08.08.2022 as per GD No.202
Constable No. 632 Balbihari Raghuwanshi (PW-3) after depositing the
contraband submitted that receipt No.SFSL/SGR/5242/CHE/1094/22
dated 08.08.2022 and as per the daily diary 387/17.09.2022, the FSL
report was received, all these facts have been mentioned in the malkhana
register of the police station.
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21. Thus, the contraband sample was kept intact. Shweta Bamhore
(PW-1) Executive Magistrate/Tehsildar has clearly mentioned that on
07.08.2022 on the requisition form, the SHO Gadarwara, reached at
Police Station Gadarwara and the contraband was weighed before the
physical verification of the weighing machine, was made and after that
seal was broken. Contraband was again weighed, sample of 50-50 grams
marked as “A-1” and “A-2” were drawn and after sealing it, the
remaining contraband “A” and sample as “A-1” and “A-2” prepared the
panchnama (Ex.P/7) and handed over to the in-charge of malkhana as
per Ex.P/8, the photographs of samples were taken and certificate was
issued as per Ex.P/16.
22. Balbihari Raghuwanshi (PW-3) has clearly stated that on
08.08.2022, he carried the sample of the contraband along with the draft
of the SP Narsinghpur and on the same day deposited in FSL Sagar and
FSL Sagar issued the receipt as Ex.P/46. Copy of the draft that was
submitted along with the sample Ex.P/45, his duty certificate to deposit
the contraband in FSL is Ex.P/47.
23. On this point, looking to the draft and receipt, it is clear that on
the next day on 08.08.2022 after the proceeding of Section 52-A of the
NDPS Act, the sample that was drawn by the Executive Magistrate was
deposited in FSL, Sagar and receipt of FSL, Sagar mentions all these
facts and as per the FSL report that is admissible without formal
evidence as per Section 293 of Cr.P.C. Ex.P/52 mentions that the sample
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was received regarding crime No.714/2022 of Police Station Gadarwara
and there is a mention of draft FSL/363/2022 dated 07.08.2022 and
supported that article was received through Constable No.632 Balbihari
Raghuwanshi (PW-3) and was sealed with the seal of Police Station
Gadarwara and the sample was received on 08.08.2022 and the sample
seal was found intact in the sample of contraband.
24. In the finding it has been mentioned that as per the standard,
the botanical substance was examined physically, chemically by
calistrophic and thin layer chromatography examination, regarding
contraband the substance was found to be positive and it was opined that
the article was contraband ganja.
25. Learned counsel for the appellant has much relied on two
points that the substance was made homogeneous and test on
tetrahydrocannabinol was not conducted but in the clear terms, the FSL
has reported that it was the contraband ganja. Hence, only on the basis
that tetrahydrocannabinol test was not conducted, the whole contraband
cannot be said to be a Bhang or any other substance and no question
regarding the fact was asked to Investigating Officer and the chemical
examiner was not called for cross-examination on the point.
26. In this case, as per statement of the Investigating Officer and
Ex.P/30 in a bag, whole contraband was found and it is not the case of
the prosecution that there were multiple packets within the bag that were
made homogeneous, hence, the appellants are not going to be adversely
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affected by the sample making homogeneous.
27. As per police officer Rajesh Sharma (PW-5), the detailed
information was sent to the S.P. and thus mandatory provisions as per
Section 57 of the NDPS Act were followed and the appellants failed to
demonstrate that any illegality was committed while the self seizure and
keeping the substance in safe custody. Hence, the conviction imposed
upon the appellants by the trial Court is affirmed.
28. Looking to the fact that from the possession of the two accused
persons, only 2.5 kg contraband has been recovered and the contraband
upto 1 kg is small quantity. As per the notification of the Central
Government, commercial quantity is 20 kg and looking to the provisions
of punishment in Section 20(b)(ii)(B) of the NDPS Act, when the
quantity involves is lesser than commercial quantity but greater than
small quantity, as provided is an imprisonment which may extend to 10
years and with the fine amount which may extend to Rs.1 lakh. Thus, no
minimum punishment is prescribed for that.
29. Looking to the above facts, appellants substantial jail sentence
is limited only upto 1 year R.I. with the fine amount as imposed by the
trial Court. Thus, with the above modification, the conviction is
maintained and appeal is disposed off.
30. The case property be disposed of as per the order of the trial
Court.
31. Supersession warrant be prepared and sent to the jail
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authorities.
32. With the copy of the judgment, the record of the trial Court be
returned back.
(DEVNARAYAN MISHRA)
JUDGE
AT
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