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Chhattisgarh High Court · body

2006 DIGILAW 54 (CHH)

SUKHCHAND@ SUDRUDAS v. STATE OF C. G.

2006-01-30

D.R.DESHMUKH

body2006
JUDGMENT 1. This appeal is directed against the judgment dated 29-07-2002 delivered by Shri R. S. Sharma, Special Judge, N.D.P.S. Act Bastar atJagdalpur in Special Case No. 16/2002 whereby the appellant was convicted under Section 20(b )(ii)(C) Narcotics Drugs & and Psychotropic Substances Act (hereinafter referred to as the "Act") and sentenced to rigorous imprisonment for 10 years and fme of Rs. 1 lakh. 2. Briefly stated the prosecution story is that on 06-05-2002, Town Inspector, Police Kotwali, Jagdalpur Shri M.K.Sharmareceived secret information that a person was illegally transporting illicit ganja in Borpadar. After recording the aforesaid information Vide EX.P-3 and informing the C.S.P., Jagdalpurvide EX.P-23 and also recording the said information in Roznamchasanha No. 285 Ex.P-22, Shri M.K. Sharma, Tewn Inspector (P.W.4) accompanied by C.S.P. Shri D.R. Aachla (P.W.3) and witnesses Mukesh PW-5 & Umesh reached Borpadar and found the accused-appellant coming on a cycle, carrying two bags thereon. The accused-appellant was interrogated. Notice under Section-50 of the Act, EX.P-4 was given and consent of the accused-appellant was recorded vide EX.P-6. Personal search of the raiding party was also given to the accused-appellant. Thereafter Town Inspector Shri M.K. Sharma searched the two bags carried by the accused-appellant on his cycle. It was found that the bags contained Ganja like substance and Panchanama EX.P-5 was prepared. Both the bags were weighed vide weighment Panchanama EX.P-l 0 and it was found that the two bags contained ganja like substance 11 K. G. and 10K. G. respectively. Thereafter, four samples of23 Grams each were lifted from the bags and sealed. The remaining ganja was also sealed. Sample Panchanama EX.P-Il & Sample seal Panchanama EX.P-12 were also prepared. The accused-appellant was arrested vide EX.P-15. Seized ganja and sample were handed over to the Assistant Sub Inspector Rajendra Kumar Sinha PW -2 of police station Kotwali, Jagdalpur for safe custody who kept the articles in Malkhana, after making an entry in the Malkhana Register No. 46. 3. E.I.R. was registered vide EX.P-16 and intimation of the arrest of the accused-appellant was sent to Superintendent of Police, Jagdalpur. On 17.5.2002 the samples were sent along with memo EX.P-17 of the S.P., Jagdalpurto the Forensic Science Laboratory, Raipur through Constable Budhram Mourya. It was received in the Forensic Science Laboratory, Raipur on 21-05-2002. 3. E.I.R. was registered vide EX.P-16 and intimation of the arrest of the accused-appellant was sent to Superintendent of Police, Jagdalpur. On 17.5.2002 the samples were sent along with memo EX.P-17 of the S.P., Jagdalpurto the Forensic Science Laboratory, Raipur through Constable Budhram Mourya. It was received in the Forensic Science Laboratory, Raipur on 21-05-2002. Vide Report dated 21-05-2002 Ex.P-19, Forensic Science Laboratory, Raipur opined that both the samples A-I & B-1 contained ganja After completion of investigation, the accused-appellant was prosecuted for the offences punishable under Section20(b)(ii)(C) of the Act. The accused-appellant abjured the guilt, pleaded innocence and false implication and led no evidence in defence. The prosecution examined as many as 6 witnesses. Relying upon the evidence led by the prosecution, the trial Court convicted and sentenced the accused-appellant as aforesaid in para-1 (Supra). 4. Shri Prafulla Bharat, learned counsel for the appellant has assailed the conviction of the appellant only on the ground that there has been total noncompliance of Section-52(3) & Section-55 of the Act by Town Inspector Shri M.K. sharma P.W. 4 and the Officer-in-charge of the Police Station-Kotwali, Jagdalpur. There is nothing on record to show that the ganja contained in the bags as well as the samples taken were sealed and Panchnama of specimen impression of the seal was prepared. It was not shown that such specimen impression of the seal was sent to the Forensic Science Laboratory. There is also nothing to indicate that the Officer-in-charge of the Police Station while receiving the seized article had ensured compliance of Section-55 of the Act. Constable Budhram Mourya who was entrusted with the articles seized, was not examined. The samples were sent to Forensic Science Laboratory, Raipur on 17-05-2002 but were received after considerable delay on 21-05 – 2002 for which there was no explanation. Therefore, since the articles alleged to have been seized from the appellant were not the sealed in accordance with low, the sample sent to the F.S.L had been tampered with cannot be ruled out and the accused appellant was entitled to be acquitted. Learned counsel for the appellant placed reliance on State of Rajsthan Vs. Daulat Ram Gurbax Singh Vs. State of Haryana, Mohd. Jahangir Pathan Vs. State of Gujrar, Rajesh Vs. and Amar Bahadur Khadak Bahadur Vs. State of Madhya Pradesh. Learned counsel for the appellant placed reliance on State of Rajsthan Vs. Daulat Ram Gurbax Singh Vs. State of Haryana, Mohd. Jahangir Pathan Vs. State of Gujrar, Rajesh Vs. and Amar Bahadur Khadak Bahadur Vs. State of Madhya Pradesh. On the other hand, Shri U.K.S. Chandel, learned Panel Lawyer for the State has argued in support of the impugned judgment. 5. Having heard rival contentions, I have perused the record of Spl. case No. 1612002. Umesh, an independent witness of seizure, was not examined by the prosecution and Mukesh Chand P.W. 5 did not support the prosecution story in his examination-in-chief and stated that the ganja was shown to him m the police station but on being cross-examined took a somersault. His testimony cannot therefore be relied on. D .S.P. - D.R. Achala P. W3 nowhere stated that the ganja seized from the appellant was sealed after affecting its seizure. Town Inspector M.K. Sharma P.W4 has in paragraph 3 stated that only two samples were prepared and were sealed on the spot whereas the sample Panchanama Ex. P. II shows that two samples from each bag were prepared. His testimony in paragraph 3 also does not show that the ganja contained in each bag was weighed separately. It only shows that the accused-appellant was carrying one plastic bag on his cycle which was weighed and found to be 21 kgs. This completely contradicts the testimony of D.R. Achala, D.S.P. (P.W3) who stated that the accused was carrying two bags on the carrier of his cycle. The Raznamchasana EX.P.26 C dated 6.5.2002 also does not show that the appellant was carrying two bags on his cycle. This contradiction in the testimony of two responsible Police Officers creates a serious dent in the prosecution case. 6. M.K. Shama P. WA did not specifically state as to which seal was used to seal the samples of ganja. Assistant Sub-Inspector Tillu Singh Thakur P.W. 6 also did not throw any light upon this. This burden is on the prosecution to prove by leading cogent evidence as to which seal was used for sealing the ganja. A specimen of such seal has to be prepared in presence of witnesses for being sent to the F.S.L. to rule out tampering with the sample. 7. This burden is on the prosecution to prove by leading cogent evidence as to which seal was used for sealing the ganja. A specimen of such seal has to be prepared in presence of witnesses for being sent to the F.S.L. to rule out tampering with the sample. 7. Sections 52 and 55 of the Act read as under : "52 Disposal of persons arrested and articles seized – (1) officer arresting a person under section 41, section 42, section 43, or section 44 shall, as soon as may be, inform him of the grounds for such arrest. (2) Every person arrested and article seized under warrant Issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the Warrant was issued (3) Every person arrested and article seized under sub- Section (2) of section 41, section 42, section 43 or section 44 shall be of forwarded without unnecessary delay to - (a) the officer-in-charge of the nearest police station, or (b) the officer empowered under section 53. (4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient dispatch, take such measures as may be necessary for the disposal according to law of such person or article. 55. Police to take charge of articles seized and delivered. - An officer-m-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in-charge of the police station. 8. Under Section 52(3) of the Act, an officer arresting a person under Section 42 of the Act has to forward the person arrested and the article seized without unnecessary delay to the officer in charge of the nearest police Station. Section 55 of the Act requires that seized ganja has to be produced before the officer-in-charge of the police station who shall affix his seal upon the packet containing ganja. Section 55 of the Act requires that seized ganja has to be produced before the officer-in-charge of the police station who shall affix his seal upon the packet containing ganja. This is to ensure that till the seized substance was sent to F.S.L. for chemical analysis, it was not tampered with. Assistant Sub-Inspector Rajendra Kumar Sinha P.W.2 stated that the two bags containing 11 kgs. and 10 kgs. ganjas and only two samples of 25 grams each along with a Hero cycle were given to him for safe custody in the Malkhana. He has proved the Malkhana register entry Ex.P/2-C. This entry does not show that the two bags containing 11 kgs. and 10 kgs. ganjas were either in a sealed condition while being given to this witness or were sealed by the O.I.C. of the Police Station. He did not testify that the samples while being entrusted to him contained the seal of Town Inspector M.K. Sharma. He also did not state that the samples were kept in the Malkhana after affixing the seal of officer-in-charge of the police Station, Town Inspector M.K. Sharma so did not state that the seized ganja and samples were entrusted to the officer-in-charge of the police station who had affixed his seal on it. In cross-examination, he admits that only two samples were prepared on the spot whereas the entry m the Malkhana register shows that 4 samples were handed over to A.S.I. Rajendra Kumar Sinha P.W.2. Thus, the entire evidence led by the prosecution is contradictory. Even according to A.S.I. TiIlu Singh Thakur P.W.6, only two samples were prepared. He did not state that two samples from each bag i.e. total 4 samples were lifted on the spot. 9. In order that the sample being sent to the Forensic Science Laboratory is a representative sample, it is essential that the entire ganja found in possession of the accused-appellant has to be mixed and thereafter samples are to be taken. D.S.P. - D.R. Achala who prepared Samaras Panchanama EX.P.9 stated in cross-examination that he did know what was meant by 'Samaras'. Nowhere in his testimony did he state that the ganja in both the packets was mixed and thereafter samples were lifted. D.S.P. - D.R. Achala who prepared Samaras Panchanama EX.P.9 stated in cross-examination that he did know what was meant by 'Samaras'. Nowhere in his testimony did he state that the ganja in both the packets was mixed and thereafter samples were lifted. Thus, there is nothing to show that the samples sent for chemical examination to the Forensic Science Laboratory represented each bag containing ganja alleged to have been found in possession of the appellant. 10. The entry in the Malkhana register EX.P/2-C does not show that the officer-in-charge had put his seal on the samples. This was absolutely essential to rule out tampering with the samples. In an offence under Section 20(b)(ii)(C) of the Act, severe punishment is involved, therefore, it is the duty of the prosecution to prove by legal, reliable and cogent evidence that samples were lifted after mixing the ganja found in possession of the accused and were not only sealed with the seal of the officer effecting search but also that the officer-in-charge of the police station had also put his seal on the samples entrusted to him. In this case, the officer-in-charge of the police station Kotwali was neither entrusted with the samples of ganja nor did he put his seal upon them. It is extremely doubtful as to whether the appellant was carrying two bags or only one bag on his cycle. It is also doubtful that the gay a contained in the two bags alleged to be in possession of the accused was mixed and representative samples were lifted. Chandrasekhar Panigrahi P.W. 1 who is a witness of weighment Panchnama Ex. P. 10 also did not say a word that after lifting the places they were sealed. As mentioned earlier, the testimony of A.S.I. Rajendra Kumar Sinha, P.W.2 who was entrusted with the samples as well as the remaining ganja is completely silent as to whether the samples were entrusted in a sealed condition and whether the samples were two or four. His testimony shows complete non-compliance of Section 55 of the Act since the seal of the officer-in-charge of the police station was not put on the samples entrusted to him. 11. The report of F.S.L. also does not show that the samples were received along with the specimen impression of the seal of Town Inspector M.K. Sharma or D.S.P - D.R. Achala P.W.3. 11. The report of F.S.L. also does not show that the samples were received along with the specimen impression of the seal of Town Inspector M.K. Sharma or D.S.P - D.R. Achala P.W.3. It also did not show that the seal of the officer-in-charge of the police Station had been affixed on the samples sent for analysis. The memorandum of the Superintendent of Police Ex.P.17 shows that the two samples were sent in a sealed condition to the Forensic Science Laboratory Raipur through Constable Budhram Mourya who was not examined by the prosecution. As per report of the F.S.L. Ex.p. 19, the samples Were received on 21.5.2002. There is no evidence to explain as to the custody of these samples during this period or to explain the delay. 12. After having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that not only the evidence is Contradictory in material Particulars but also shows complete non-compliance of Section 52(3) and 55 of the Act. Neither delay in delivering the samples at the F.S.L. has been explained nor Constable Budhram Mourya was examined by the prosecution. The evidence is also doubtful as to the number of bags Carried by the accused and also the number of samples lifted. The evidence does not show that a representative sample was lifted. It also does not prove the description of the seal used to seal the samples. After entrustment of the samples at police station Kotwali, the seal of the officer-in-charge of the police station was not affixed on the samples. Independent witness Umesh was not examined and the testimony of Mukesh P.W.5 is self-contradictory. Thus, the possibility that the sample examined by F.S.L. was tampered with, Cannot be ruled out. Therefore, the report of the F.S.L. Ex. P. 17 Cannot form the basis for convicting the appellant Under Section 20(b)(ii)(C) of the Act. In this view of the matter, the impugned judgment deserves to be set aside. 13. In the result, the appeal is allowed. Conviction of the appellant under Section 20(b)(ii)(C) of the Act and sentence imposed thereUnder are set aside. The appellant is acquitted of the charge Under Section 20(b)(ii)(C) of the Act after giving him the benefit of doubt. The appellant shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to the appellant. The appellant is acquitted of the charge Under Section 20(b)(ii)(C) of the Act after giving him the benefit of doubt. The appellant shall be set at liberty forthwith, if not required in any other case. Fine, if paid, shall be refunded to the appellant. Appeal Allowed.