Research › Search › Judgment

Chhattisgarh High Court · body

2009 DIGILAW 71 (CHH)

DOMARU @ MITI v. STATE OF C. G.

2009-02-28

D.R.DESHMUKH

body2009
JUDGMENT 1. This appeal is directed against the judgment dated 26.1 0.2007 delivered by the Special Judge, Bastar place at Jagdalpur in Special Case No. 30/2006 whereby the appellant was convicted for the offence punishable under Section 20 (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as 'the Act') and sentenced to rigorous imprisonment for 5 years and also to a fine of Rs.25,000/- and in default to undergo additional rigorous imprisonment for one year for having been found in possession of illicit ganja weighing 10.100 kilograms on 15.09.2006 at old Bus-Stand, Jagadalpur in a bag. 2. Briefly stated the prosecution case is that on receiving secret information, Shri A. Nooreti, P. W.2 apprehended the appellant who was holding a bag at old Bus-Stand, Jagdalpur on 15.09.2006 at about 12.00 noon. After observing the necessary formalities as required under the Act, the ganja being carried by the appellant in the bag was weighed by Vishnu Kumar Sahu, P. W.3 and found to be 10.100 kilograms. Out of the saidganja, two samples of 50 grams each were taken and seized with the remaining ganja vide Ex.P.3. The sample packets were sent for chemical analysis to the Forensic Science Laboratory, Raipur. Vide report Ex.P.1, it was opined that both the sample packets contained ganja. After completion of investigation, prosecution under Section 20 (b) (ii) (B) of the Act was launched against the appellant. 3. The appellant abjured the guilt and pleaded innocence. The prosecution examined 4 witnesses. Ramesh Kumar, witness of seizure could not be examined by the prosecution despite issuance of several coercive processes by the trial Judge. No evidence was led by the appellant in defence. 4. The sole ground urged by Shri Bharat Rajput, learned counsel for the appellant, in this appeal is that there is absolutely no material to show that the sample packets sent for chemical analysis to the Forensic Science Laboratory had been part of the garlja alleged to have been seized from the appellant. Learned I counsel further argued that the independent witness Abhimanyu Nag, P. WA did 2 not support the prosecution story while other witness Ramesh Kumar was not produced by the prosecution before the trial] udge. It was further contended that Vishnu Kumar Sahu, P. W.3 categorically denied that he had weighed the seized ganja. Learned I counsel further argued that the independent witness Abhimanyu Nag, P. WA did 2 not support the prosecution story while other witness Ramesh Kumar was not produced by the prosecution before the trial] udge. It was further contended that Vishnu Kumar Sahu, P. W.3 categorically denied that he had weighed the seized ganja. On these premises, it was urged that the conviction and sentence awarded by the learned trial Judge was liable to be set aside. 5. On the other hand, Shri Sushil Chandra Dubey, learned Government Advocate argued in support of the impugned j udgment. 6. Having heard the rival contentions, 1 have perused the record with utmost circumspection. Taul Panchnama EX.P.15 clearly shows that the entire quantity of ganja recovered from the appellant, on being weighed, was found to be 10.100 kilograms. If two samples each of 50 grams ganja had been separated from the above, the remaining quantity of ganja in the bag would have been only 10 kilograms. However, the seizure memo Ex.P.3 clearly shows that while the quantity of ganja found by Vishnu Kumar Sahu P. W.3 on weighment was intact and seized at Serial No.1 two more samples each of 50 grams ganja were also seized at Serial No.2 & 3. It is thus extremely doubtful that two sample packets prepared vide EX.P.3 on 15.09.2006 by Shri A. Nooreti P.W.2 were taken out of the quantity of ganja alleged to have been carried by the appellant. Abhimanyu Nag P. WA, witness of seizure did not support the prosecution case. The other witness Ramesh Kumar was not produced by the prosecution despite issuance of several coercive processes by the trial Judge till 03.10.2007. Vishnu Kumar Sahu P.W.3, the witness of weighment categorically stated that weighment was not done by him. The Malkhana register, which was produced by the prosecution vide Ex.P.2, revealed that neither the ganja contained in the bag nor the two sample packets were kept in the Malkhana in a sealed condition. The above mentioned facts and circumstances throw a cloud of suspicion on the prosecution story. It becomes highly doubtful whether the sample packets, which had been sent for chemical analysis to the Forensic Science Laboratory, had in fact been prepared out of the substance alleged to have been seized from the appellant. The above mentioned facts and circumstances throw a cloud of suspicion on the prosecution story. It becomes highly doubtful whether the sample packets, which had been sent for chemical analysis to the Forensic Science Laboratory, had in fact been prepared out of the substance alleged to have been seized from the appellant. In this view of the matter, the conviction of the appellant under Section 20(b )(ii)(B) of the Act and the sentence awarded thereunder is liable to be set aside. 7. In the result, the appeal is allowed. The conviction of the appellant under Section 20(b) (ii)(B) of the Act and the sentence awarded there under are set aside. The appellant is acquitted of the charge under Section 20(b )(ii)(B) of the Act and shall be set at liberty forthwith, if not required in any other case. Appeal Allowed.