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2009 DIGILAW 118 (CHH)

Ganga Singroule v. State of Chhattisgarh

2009-04-02

DILIP RAOSAHEB DESHMUKH

body2009
JUDGMENT :- This appeal is directed against the judgment dated 22.06.2007 in Special Case No. 1/2007 by the Special Judge (under the N.D.P.S. Act), Bilaspur whereby the appellant was convicted under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act. 1985 (henceforth 'the Act') and sentenced to rigorous imprisonment for five years and a fine of Rs.5000 / - and in default of fine additional rigorous imprisonment for one year. 2. Brief facts are that on 20.12.2006 on receiving secret information that the appellant was storing huge quantity of ganja at his residence in Ward No.11, Chakarabhata, Sub-Inspector Arvind Dwivedi P.W.4 proceeded to the house of the appellant after completion of the necessary formalities. After searching the house of the appellant, he seized 16 kilograms ganja from one jute bag and 2.650 kilograms ganja from a rexine bag, Seized ganja and samples of 500 grams and 200 grams ganja taken therefrom were sealed and kept in the Malkhana for safe custody. Later, on 22.12.2006 vide Ex.P.15 the samples were sent to Forensic Science Laboratory for chemical analysis which opined vide Ex.P.29 that the samples contained ganja. After completion of investigation, the appellant was prosecuted under Section 20 (b) (ii) (B) of the Act. 3. The appellant abjured the guilt, pleaded innocence and led evidence of one Ajeet Ram in defence to show that the house from which the ganja was alleged to have been seized belonged to his father Chaitooram. 4. Shri Suryakant Mishra, learned counsel for the appellant and Shri Rakesh Jha, Dy. Government Advocate for the State were heard. Record is perused. . 5. The law is well settled that heavy burden lies on the prosecution to prove that the sanctity of the samples analyzed by the Forensic Science Laboratory was not breached right from the preparation of the samples to its delivery at the Forensic Science Laboratory. In the present case, the report EX.P.29 of the Forensic Science Laboratory shows that the samples were delivered at the Forensic Science Laboratory on 23.12.2006 by Constable Keju Ram P.W.2. However, the testimony of Head Constable Gulal Sonwani P.W.3 shows that the samples were sent to the Forensic Science Laboratory on 28.12.2006. He further stated categorically that the assertion of Constable Keju Ram P.W. 2 that he took the samples to the Forensic Science Laboratory on 23.12.2006 was false. However, the testimony of Head Constable Gulal Sonwani P.W.3 shows that the samples were sent to the Forensic Science Laboratory on 28.12.2006. He further stated categorically that the assertion of Constable Keju Ram P.W. 2 that he took the samples to the Forensic Science Laboratory on 23.12.2006 was false. Constable Kejuram P.W.2 deposed on oath that he had taken the samples to the Forensic Science Laboratory on 22.2.2006 whereas the ganja was alleged to have been seized from the appellant on 22.12.2006. The testimony of Kejuram P.W.2 does not show that the samples were deposited by him in the Malkhana in a sealed condition. Ex.P. 18 which is a receipt of having deposited the seized ganja and the sample packets in the Malkhana also does not show that the two sample packets and the remaining quantity of ganja were deposited in a sealed condition. The order sheet dated 15.2.2007 on the date of filing challan also shows that the Mudde Mal was not produced before the learned trial Judge thereby depriving the trial Court of an opportunity to examine whether the jute bag and the rexine bag were in a sealed condition and that the seals tallied with the seals used by the Sub-Inspector Arvind Dwivedi P.W.4. The prosecution has thus failed to prove that the sanctity of sealed samples were preserved till they reached the Forensic Science Laboratory. 6. A perusal of the Talashi Panchnama Ex.P.8 shows that during search ganja kept in one rexine bag was recovered from one room while ganja in jute bag was found in another room. In paragraph 20, Sub-Inspector Arvind Dwivedi P.W.4 admitted that other members of the family of the appellant also reside in the house. details of which, he could not divulge. He also admitted that he would not be able to say as to which member of the family was in possession of the rooms from where ganja was recovered. The witness further admitted that he made no efforts to verify as to in whose name the said house was recorded in the Nagar Panchayat, Chakarbhata. The testimony of Ajeet Ram D.W.I shows that the house in Chakarbhata is owned by the Chaitooram, father of the appellant and apart from his family me members, parents of Chaitooram also reside in the house. The testimony of Ajeet Ram D.W.I shows that the house in Chakarbhata is owned by the Chaitooram, father of the appellant and apart from his family me members, parents of Chaitooram also reside in the house. Thus prosecution has not proved that the ganja contained in rexine bag and jute bag was in conscious possession of the appellant. 7. The recovery Panchnama EX.P.9 neither bears the specimen impression of the seal nor shows that any samples were lifted from the ganja by Sub-Inspector Arvind Dwivedi. Even seizure memo Ex.P.10 also does not bear the specimen impression of the seal, used to seal the ganja. It also does not show that the two samples were lifted from the seized ganja. 8. Weighment panchnama Ex.P.13 wherein for the first time a mention is found regarding preparation of two samples also does not bear the specimen impression of the seal used to seal the samples. It is also pertinent to note that this weighment panchnama was prepared at 17.05 hours whereas the actual weighment of the ganja contained in the two bags is found in the seizure memo Ex.P.10 which was prepared at 16.52 hours. This renders EX.P.13 doubtful. Moreover Bharat Bhushan Mishra P.W.I did not support the prosecution story at all besides denying that above weighment of ganja was done in his presence. 9. Seizure memo Ex.P.10 shows the total weight of the ganja seized from two bags to be 16 kilograms and 2 kilograms 650 grams, thus in all 18 kilograms and 650 grams. If this is to be accepted as true, then a perusal of the Malkhana register shows that whereas 16 kilograms ganja in a jute bag and 2.650 kilograms ganja in a rexine bag were kept separately in the Malkhana, two samples of 500 grams and 200 grams were also kept in the Malkhana. Prosecution has thus failed to prove that samples sent to Forensic Science Laboratory were taken from the quantity of ganja alleged to have been found in possession of the appellant. In this view of the matter. report of the F.S.L. Ex.P.29 could not form the basis for convicting the appellant. 10. Having thus considered the evidence in its entirety. Prosecution has thus failed to prove that samples sent to Forensic Science Laboratory were taken from the quantity of ganja alleged to have been found in possession of the appellant. In this view of the matter. report of the F.S.L. Ex.P.29 could not form the basis for convicting the appellant. 10. Having thus considered the evidence in its entirety. prosecution has failed to prove: A) that the appellant was- in conscious possession of ganja; B) that sample packets of 500 grams and 200 grams ganja sent to the Forensic Science Laboratory formed part of the quantity of ganja allegedly seized from the appellant; C) that sanctity of the samples examined by the Forensic Science Laboratory was preserved till the samples reached the Forensic Science Laboratory; D) that Mudde Mal was produced before the trial Court; E) that the samples were received in the F.S.L. through Constable Kejuram P.W.2 on 23.12.2006; F) that the sample packets examined by F.S.L. could not have been tampered with. Cumulative effect of the above is that conviction of the appellant under Section 20 (b) (ii) (B) of the Act and the sentence awarded thereunder by the learned Special Judge (under the N.D.P.S. Act), Bilaspur are liable to be set aside. 11. In the result, the appeal is allowed. Conviction of the appellant under Section 20 (b)(ii)(B) of the Act and the sentence awarded thereunder are set aside. The appellant is acquitted of the charge and shall be set at liberty, if not required in any other case. Fine if paid shall be refunded to the appellant. Appeal allowed.