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2006 DIGILAW 197 (CHH)

VAINKAL PAO v. STATE OF CHHATTISGARH

2006-03-20

DILIP RAOSAHEB DESHMUKH

body2006
( 1 ) THIS appeal is directed against the judgment dated 8-7-2003 delivered by Smt. Maitrayee Mathur, Special judge, Rajriandgaon in Special Case No. 41/ 2003 whereby the appellant was convicted under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act, 1985) and was sentenced to rigorous imprisonment for 5 years and fine of Rs. 5,000/- and in default of payment of fine to further undergo additional rigorous imprisonment for 1 year. ( 2 ) BRIEFLY stated the prosecution story is that Assistant Sub-Inspector P. L. Markam pw-8 of City Kotwali, Rajriandgaon received secret information that the appellant had brought illicit ganja at the bus stand, rajnandgaon. After recording the said information and complying with the necessary legal formalities Shri P. L. Markam PW-8 proceeded to the bus stand, Rajnandgaon along with rickshaw pullers Gariba PW-2, mangru PW-3 and Constable Rajmal Singh pw-4. The appellant was seen carrying a plastic bag. After serving a notice under section 50 of the Act. 1985 upon the appellant, he was searched. No incriminating article was found during personal search of the appellant. The plastic bag carried by the appellant was also searched and it was found to contain ganja like substance. Gold smith Champa Lal Soni PW-5 weighed the contents of the plastic bag. It was found that the total weight of the bag was 6 kg. and 400 grams while the weight of the empty bag was 200 grams. Two samples of 50 grams each were taken from the contents of the plastic bag and seizure memo Ex. P-5 was prepared. Two sample packets of 50 gram each along with the remaining 6 kg. and 100 gram ganja were entrusted to Head Constable B. L. Sinha PW-1 for safe custody in the Malkhana. ( 3 ) ON 5-3-2003, two sample packets of 50 gram each marked as Article B and C were sent along with the memo of Superintendent of Police, rajnandgaon to the Forensic Science Laboratory through Constable b. P. Nirala PW-6. After examining the contents of the sample, the Forensic science Laboratory opined that both the packets contained ganja. After completion of investigation, the appellant was prosscuted under Section 20 (b) of the Act 1985. After examining the contents of the sample, the Forensic science Laboratory opined that both the packets contained ganja. After completion of investigation, the appellant was prosscuted under Section 20 (b) of the Act 1985. A charge under Section 20 (b) (i) of the Act of 1985 was framed against the appellant who abjured the guilt, pleaded innocence and false implication and led no evidence in defence. The prosecution examined as many as 8 witnesses. Relying upon the evidenceled by the prosecution, the trial Judge convicted and sentenced the appellant as aforesaid in para 1 (supra ). ( 4 ) LEARNED counsel for the appellant has assailed the conviction of the appellant on the ground that not only independent witness Gariba PW-2 and Mangru PW-3 but also Constable Rajmal Singh PW-4 who was present at the spot did not support the prosecution story regarding seizure of ganja from the possession of the appellant. Pointing out to para 4 of the testimony of A. S. I. Shri P. L. Markam PW-8 it was contended that no efforts whatsoever were made to conduct the proceedings in the presence of independent witnesses present at the bus stand. The notice under Section 50 of the Act of 1985 ex. P-33 was also referred to and it was argued that Assistant Sub-Inspector P. L. Markam PW-8 did not apprise the appellant of his intention to search his person also. Lastly, it was contended that there was absolutely no evidence on record to prove that two sample packets or the remaining ganja alleged to have been seized from the possession of the appellant were sealed or that the Station House Officer of Police Station-City Kotwali, Rajnandgaon had affixed his seal thereon at the time of entrustment for safe custody in the Malkhana or that these articles were kept in the Malkhana in a sealed condition. The testimony of Head constable B. L. Sinha PW-1 was referred to while arguing that the possibility that the substance sent for chemical analysis to the forensic Science Laboratory had been tampered with or was not the same which was alleged to have been seized from the appellant could not be ruled out. On the other hand, Shri Ashish Shukla, learned Govt. Advocate argued in support of the impugned judgment. ( 5 ) HAVING heard the rival contentions, I have perused the record. On the other hand, Shri Ashish Shukla, learned Govt. Advocate argued in support of the impugned judgment. ( 5 ) HAVING heard the rival contentions, I have perused the record. As offence under section 20 (b) (ii) (B) (as it ought to have been mentioned in the charge) of the Act of 1985 entails serious punishment which may extend up to 10 years or a fine of Rs. l,00. 000/ -. It was therefore obligatory on the trial Judge to scrutinize the evidence led by the prosecution minutely to ensure compliance of the mandatory provisions of the act 1985 relating to search and safe custody of the Narcotic Drug. Regrettably/it must be said that the learned trial Judge convicted the appellant in a most perfunctory and mechanical manner without application of judicial mind. She also did not even care to look into the documents of seizure and entrustment of sample in the Malkhana, the testimony of Shri P. L. Markam PW-8 and also the various mandatory provisions under Sections 50 and 55 of the Act of 1985 and simply wrote in para 9 of the judgment that the reliable testimony of P. L. Markam pw-8 proved that he had complied with all the mandatory provisions of the Act of 1985. ( 6 ) EVEN the charge framed by the learned trial Judge was defective in as much Section 20 (b) (i)of the Act 1985 related to cultivation of any cannabis plant which was wholly inapplicable to the present case which squarely fell under Section 20 (b) (ii) (B)of the Act of 1985. Till the stage of delivering judgment, the learned trial Judge did not realize this mistake and without even bothering to look into the provision of Section 20 (b) (i) of the Act 1985. convicted the appellant under Section 20 (b) (i) of the Act of 1985 which relates to cultivation of any cannabis plant. The trial Judge thus conducted the whole proceedings in a most slip shod manner without application of judicial mind. ( 7 ) IT is true that notice Ex. P-3 under section 50 of the Act of 1985 does not show that a personal search-of the appellant was also to be effected. Therefore, the consent given by the appellant was wholly inconsequential. It appears that without informing the appellant that his person was to be searched. ( 7 ) IT is true that notice Ex. P-3 under section 50 of the Act of 1985 does not show that a personal search-of the appellant was also to be effected. Therefore, the consent given by the appellant was wholly inconsequential. It appears that without informing the appellant that his person was to be searched. Assistant Sub-Inspector P. L. Markam PW-8 searched the person of the appellant also. Although no incriminating article is alleged to have been found in the possession of the appellant during personal search, it must be said that there is a serious non-compliance of Section 50 of the Act 1985. ( 8 ) IN order to prove the guilt of the appellant for an offence under the Act of 1985, the prosecution has to prove beyond the shadow of any doubt that the samples were sealed properly and remained so till they were received at the Forensic Science Laboratory for chemical analysis. It has also to be established by the prosecution that the station House Officer of the concerned Police Station had also affixed his seal on the samples while being entrusted for safe custody at the Malkhana. Section 55 of the Act of 1985 is a safeguard against tampering with the sample and casts a responsibility on the Station House Officer to affix his seal on the articles entrusted for safe custody in the Malkhana. ( 9 ) THE testimony of Assistant Sub-Inspector P. L. Markam PW-8 nowhere shows that the substance seized from the possession of the appellant or the two samples of 50 grams each taken therefrom were sealed. Head Constable B. L. Sinha PW-1 has also not stated that the seized ganja and the two samples were entrusted to him in a sealed condition. Copy of the Malkhana Register ex. P-1 also does not show that the ganja seized from the appellant or the samples taken therefrom were entrusted in a sealed condition for safe custody at the Malkhana of Police Station-City Kotwali, Rajnandgaon. Thus there was a serious non-compliance of the Section 55 of the Act 1985. Head Constable B. L. Sihna PW-1 also admitted that on 1-3-2003. three cases under the Act of 1985 had been registered and property in all the three cases was deposited in the malkhana. Thus there was a serious non-compliance of the Section 55 of the Act 1985. Head Constable B. L. Sihna PW-1 also admitted that on 1-3-2003. three cases under the Act of 1985 had been registered and property in all the three cases was deposited in the malkhana. He also admitted in cross-examination para 2 that out of the property entrusted in all three cases, he had sent two packets for chemical analysis on 6-3-2003. It therefore cannot be ruled out that the substance sent for chemical analysis to the forensic Science Laboratory was either not the same which had been seized from the possession of the appellant or had been tampered with. ( 10 ) INDEPENDENT witnesses of seizure gariba PW-2 and Mangru PVV-3 did not support the prosecution story. Constable Rajmal singh PW-4 who was present at the spot, did not mention about any seizure of ganja being effected in his presence from the appellant. Assistant Sub- Inspector P. L. Markam pw-8 admitted in para 3 of cross-examination that despite the presence of many witnesses at the bus stand he had not called any such independent person to witness the seizure. The testimony of Gold Smith champa Lal Soni PW-5 also does not show that the sample weighed by him had been sealed. The memo of Superintendent of Police, for sending the samples for chemical analysis, was also not proved. The order sheet dated 29-3-2003 also shows that the muddemal had not been produced before the court. How the serious anomalies discussed above and also in paras 5, 8 and 9 above, escaped the notice of the learned trialjudge is beyond comprehension and speaks volumes about the callousness with which the impugned judgment was delivered. Convicting and sentencing the accused (o rigorous imprisonment for long duration without there being any legal or cogent material, reflects the complete insensitivity and apathy of the trial Judge towards the concept of personal liberty of the individual under the constitution of India. This tendency needs to be curbed. ( 11 ) HAVING thus considered the evidence led by the prosecution in its entirety, I am of the considered opinion that the prosecution has miserably failed to establish the guilt of the appellant under Section 20 (b) (i)of the Act of 1985. ( 12 ) IN the result, the appeal is allowed. This tendency needs to be curbed. ( 11 ) HAVING thus considered the evidence led by the prosecution in its entirety, I am of the considered opinion that the prosecution has miserably failed to establish the guilt of the appellant under Section 20 (b) (i)of the Act of 1985. ( 12 ) IN the result, the appeal is allowed. The conviction of the appellant under Section 20 (b) (i)of the Act of 1985 and the sentence awarded thereunder are set aside. The appellant is acquitted and shall be set at liberty forthwith, if not required in any other case Fine if paid, shall be refunded to the appellant. Appeal allowed. --- *** --- .