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2009 DIGILAW 199 (CHH)

BABULAL v. STATE OF M. P.

2009-07-21

R.L.JHANWAR

body2009
JUDGMENT As per Hon'ble Shri R.L. Jhanwar, J. :This Criminal Appeal is directed against the judgment of conviction and order of sentence dated 24th January, 1992, delivered in S.T.No.149/1990, whereby, the learned 2nd Additional Sessions Judge, Raigarh has convicted the appellant under Section 20 of the N.D.P.S. Act, 1985 (hereinafter referred to as the' Act') and sentenced him to undergo R.I. for 3 months and to pay a fine of Rs.500/-, in default of payment of fine to further undergo R.I. for 1 month. The case of the prosecution in brief is that on 15.9.1990, P.L.Nayak (PW-1) Ex. Sub-Inspector, on receiving information, without obtaining search warrant, went to the house of the appellant and made search of his house. On search, 5 gms of Ganja and a chilam was recovered from the house of the appellant. He examined the recovered ganja on the spot and made seizure of Ganja and chilam. He prepared seizure memo Ex. P/2 and Panchanama Ex.P/1. He filed charge sheet in the Court of Magistrate 1st Class, Sarangarh, who committed the case to the Court of Sessions, Raigarh. Learned Sessions Judge made over the case to the 2nd Additional Sessions Judge, Raigarh for trial. Charge under Section 22 of the N.D.P.S. Act, 1985 was framed against the appellant and it was read over to him. The appellant abjured the guilt and his defence was that he has been falsely implicated in the crime. The appellant also stated that he was not living with his father and there was animosity between him and the Investigating Officer P.L. Nayak. The learned Additional Sessions Judged after appreciation of evidence available on record and hearing the counsel for the parties held that the prosecution could only prove the case under Section 20 and thereby convicted the appellant as above and acquitted him under Section 22 of the N.D.P.S. Act. I have heard learned counsel for both the parties and have perused the record. Only two witnesses were produced by the prosecution. (PW -1) P.L. Nayak-Investigating Officer, who stated that on 15.9.1990 after receiving information, he immediately went to the spot, made search of house of the appellant and seized 5 gms of Ganja and a Chilam. He also deposed that he was having experience and also obtained training for testing intoxicants, therefore, he examined the seized material on the spot and found the recovered material to be Ganja. He also deposed that he was having experience and also obtained training for testing intoxicants, therefore, he examined the seized material on the spot and found the recovered material to be Ganja. On perusal of his whole statement, it is clear that neither he has any certificate, certifying his ability to test intoxicants nor his service length was long enough to recognize him as experienced holder in this field. The length of service at that time was only few months. He did not give details, in how many cases, he has conducted test of intoxicants. Therefore, he cannot be treated as an expert to examine the recovered Ganja. The recovered material said to be Ganja has neither been I chemically examined nor it has been examined by an Expert. In this way, prosecution completely failed to establish that the seized material was Ganja. P.L. Nayak (PW-1) did nor disclose from which part of the house he recovered the material. He also did not state on what basis he believed that the house belongs to the appellant. There is no evidence to establish that the house was in possession of the appellant. One of the seizure witnesses Gangadhar (PW-2) has been produced by the prosecution, but he did not support the prosecution story and on the other hand, he stated a different story that he arrived on the spot and heard noise' maro maro' . He did not enter inside the house. Other seizure witness has not produced by the prosecution. Therefore, in these circumstances statement of P.L. Nayak (PW-l) Ex. Sub-Inspector, alone without any corroboration, was not sufficient to hold the appellant guilty for possession of the intoxicant. Learned counsel for the appellant vehemently argued that prosecution has not complied with the provisions of Sections 42 and 57 of the Act, which prejudicially affects the interest of the appellant and vitiates the trial. He further argued that P.L. Nayak (PW-1) has deposed that after receiving information, he informed his higher officials, but there is nothing on record to establish the statement. Section 42 of the N.D.P.S. Act reads as under: 42. He further argued that P.L. Nayak (PW-1) has deposed that after receiving information, he informed his higher officials, but there is nothing on record to establish the statement. Section 42 of the N.D.P.S. Act reads as under: 42. Power of entry, search, seizure and arrest without warrant or authorization.- (1) Any such officer (being an officer superior in rank to a peon, sepoy or constable) of the departments of Central Excise, narcotics, customs, revenue intelligence or any other department of the Central Government or of the Border Security Force as is empowered in this behalf by general or special order by the Central Government or any such officer (being an officer superior in rank to a peon, sepoy or constable) of the revenue, drugs control, excise, police or any other department of a State Government as is empowered in this behalf by general or special order of the State Government, if he has reason to believe from personal knowledge or information given by any person and taken down in writing, that any narcotic drug, or psychotropic substance in respect of which an offence punishable under Chapter IV has been committed or any document or other article which may furnish evidence of the commission of such offence is kept or concealed in any building conveyance or enclosed place may, between sunrise and sunset- (a) enter into and search any such building, conveyance or place; (b) in case of resistance break open any door and remove any obstacle to such entry; (c) seize such drug or substance and all materials used in the manufacture thereof and any other article and any animal or conveyance which he has reason to believe to be liable to confiscation under this Act and any document or other article which he has reason to believe may furnish evidence of the commission of any offence punishable under Chapter IV relating to such drug or substance; and (d) detain and search, and, if he thinks proper, arrest any person whom he has reason to believe to have committed any offence punishable under Chapter IV relating to such drug or substance: Provided that if such officer has reason to believe that a search-warrant or authorization cannot be obtained without affording opportunity for the concealment of evidence or facility for the escape of an offender, he may enter and search such building, conveyance or enclosed place at any time between sunset and sunrise after recording the grounds of his belief. (2) Where an officer takes down any infom1ation in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forthwith send a copy thereof to his immediate official superior. Section 42 is mandatory. It was incumbent on the officer making search to send forthwith a copy of information taken down by the officer under sub-section (I) of Section 42 of the Act. He has not complied with the provisions; therefore, violation of provision is fatal. Section 57 of the Act reads as under: 57. Report of arrest and seizure.- Whenever any person makes any arrest or seizure under this Act, he shall, within forty-eight hours next after such arrest or seizure, make a full report of all the particulars of such arrest or seizure to his immediate official superior. Under Section 57 of the Act, a duty has been cast on P.L. Nayak to make full report of arrest and seizure to his immediate superior within 48 hours. P.L. Nayak (PW -1), stated that he has complied with the above requirement, but there is nothing to establish that compliance of above provisions was made by him. Although the above provision is not mandatory in nature, but having considered all the facts present in this case, non-compliance of the above provision, casts doubt on the prosecution version. Here in the instant case, the trial Court after framing charges for commission of the offence punishable under Section 22 of the Act has tried the appellant under that offence but after completion of the trial, learned trial Court acquitted the appellant of the charge under Section 22 of the Act and punished him for commission of the offence under Section 20 of the Act. Whether law authorizes the Courts to punish an offender in absence of specific charge of Section 20 of the Act? For appreciation of the above question the relevant provisions of the Act are quoted. Section 22 of the N.D.P.S. Act reads as under: 22. Whether law authorizes the Courts to punish an offender in absence of specific charge of Section 20 of the Act? For appreciation of the above question the relevant provisions of the Act are quoted. Section 22 of the N.D.P.S. Act reads as under: 22. Punishment for contravention in relation to psychotropic substances.- Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State, or uses any psychotropic substance shall be punishable with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees but which may extend to two lakh rupees: Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. Section 20 of the N.D.P.S. Act reads as under: 20. Punishment for contravention in relation to cannabis plant and cannabis.-Whoever, in contravention of any provision of this Act or any rule or order made or condition of licence granted thereunder: (a) cultivates any cannabis plant; or (b) produces, manufactures, possesses, sells, purchases, transports, imports inter-State, exports inter-State or uses cannabis, shall be punishable- (i) where such contravention relates to ganja or the cultivation of cannabis plant, with rigorous imprisonment for a term which may extend to five years and shall also be liable to fine which may extend to fifty thousand rupees; (ii) where such contravention relates to cannabis other than ganja, with rigorous imprisonment for a term which shall not be less than ten years but which may extend to twenty years and shall also be liable to fine which shall not be less than one lakh rupees and which may extend to two lakh rupees; Provided that the Court may, for reasons to be recorded in the judgment, impose a fine exceeding two lakh rupees. According to Section 2 (iii) "cannabis (hemp)" means- (a) charas, that is the separated resin, in whatever form whether crude or purified from the cannabis plant and also includes concentrated preparation and resin known as hashish oil or liquid hashish; (b) ganja, that is, the flowering or fruiting tops of the cannabis plant (excluding the seeds and leaves when not accompanied by the tops), by whatever, name they may be known or designated; and (c) any mixture, with or without any neutral material, of any of the above forms of cannabis or any drink prepared therefrom; (d) "cannabis plant" means any plant of the genus cannabis. Section 2 (xxiii) of the Act defines, "psychotropic substance" means any substance, natural or synthetic, or any natural material or any salt or preparation of such substance or material included in the list of psychotropic substances specified in the Schedule. On reading together all the provisions, it is clear that the offence which falls under Section 20 of the Act is completely different than the offence under Section 22 of the Act. Offence under Section 20 of the Act is not a minor offence of Section 22 of the Act. In absence of specific charge under Section 20 of the Act, it is enough to say that substantial injustice would be caused to the accused if he is convicted and sentenced under that Section. The trial Court was not empowered in absence of specific charge under Section 20 of the Act to record conviction and pass sentence against the appellant. From the above discussion, it is evident that the trial Court was not competent to convict and pass sentence against the appellant in absence of the charge under Section 20 of the Act. In the result, the appeal is allowed. The conviction and sentence imposed against the appellant under Section 20 of the N.D.P.S. Act are set aside. The appellant is acquitted of the charge. He be set at liberty forthwith. Appeal Allowed.