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2010 DIGILAW 286 (CHH)

Ladu Ram v. State of M. P. (now C. G. )

2010-12-08

SUNIL KUMAR SINHA

body2010
JUDGMENT Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 15th of January, 1993 passed in Sessions Trial No. 118/92 by the Additional Sessions Judge & Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the 'N.D.P.S. Act'), Khairagarh, Camp Court Kawardha. 2. By the impugned judgment, the Appellant has been convicted Under Section 20(B) of the N.D.P.S. Act and sentenced to undergo R.I. for 2 years and pay fine of Rs. 3,000/-, in default S.I. for 6 months. 3. The facts, briefly stated, are as under: Head Constable- Yashwant Lal (PW-7), posted in police station Sahaspur Lohara, was on village patrolling duty on 24.7.92. He was informed by the informer that the Appellant has grown up ganja plants in his badi in village Ragra. Yashwant Lal (PW-7) went to village Ragra and made a search of the badi of the Appellant and found 2 green plants in grown up condition in the badi. He seized those plants alleging to be that of ganja vide seizure memo EX.-P/1. Panchnama was prepared under Ex.-P/2. The Appellant was also taken into custody and thereafter the Appellant and the seized plants were brought to police station and the First Information Report (Ex.-P/10) was lodged. According to the memo, Ex.-P/8 dated 5.8.92 both the plants, seized on 24.7.92 vide seizure memo Ex.-P/1, were sent for chemical examination to Forensic Science Laboratory, Sagar, but no report could be received. In fact, the prosecution could not file any chemical examiner's/expert's report in the matter. There is no evidence as to whether the seized articles were received back by the concerned police station or not. In fact, the seized articles were not produced before the trial Court. The learned trial Judge, relying on the oral testimonies of Head Constable, Yashwant Lal (PW-7), Lal Bahadur Singh (PW-5), Tulsiram (PW-1) and Sumrandas (PW-4), held that they had identified that the said plants were ganja plants, therefore, even if chemical examiner's report was not filed and the property was not produced before the Court, it would not make any difference and it was proved beyond all reasonable doubts that the 2 plants seized from the badi of the Appellant were ganja plants. Therefore, the Appellant was convicted and sentenced as aforementioned. 4. Mr. Therefore, the Appellant was convicted and sentenced as aforementioned. 4. Mr. Arun Kochar, learned Counsel appearing on behalf of the Appellant, argued that it was not established beyond all reasonable doubts that the 2 plants allegedly seized from the badi of the Appellant were ganja plants. He submitted that no expert report has been filed. He further submitted that even the seized articles were not produced before the trial Court which has highly prejudiced the Appellant in the facts and circumstances of the case. Besides the above, he also argued that the 2 plants allegedly seized from the badi of the Appellant were not sealed in any packet. The link evidence of keeping the seized articles prior to sending it to the F.S.L., Sagar is also missing. Therefore, the conviction of the Appellant cannot be sustained. 5. On the other hand, Mr. S.K. Mishra, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the trial Court. 6. I have heard the learned Counsel for the parties at length and have also perused the records of the trial Court. 7. According to the above witnesses, 2 green plants in grown up condition were seized from the badi of the Appellant vide seizure memo Ex.-P/1 on 24.7.92. The contents of the seizure memo would show that the seized articles were not sealed at the time of seizure. According to Yashwant Lal (PW-7), the Appellant was immediately taken into custody and was brought to the concerned police station along with seized articles. The seized articles were sent for their chemical examination to F.S.L. vide memo date 5.8.92 (Ex.-P/8). In the said memo, it has been mentioned that the articles sent for their examination were 2 small plants and they were sent in a sealed packet. If the articles would have been sealed at the place seized, it would have been mentioned in the seizure memo itself. Apart from the above, it has been mentioned in memo dated 5.8.92 (Ex.-P/8) that during the course of investigation those plants were sent to a local Excise Sub-Inspector for their identification, who had identified them as ganja plants and some document was also sent to the police in this regard by the Excise Sub-Inspector. This makes two things clear. Apart from the above, it has been mentioned in memo dated 5.8.92 (Ex.-P/8) that during the course of investigation those plants were sent to a local Excise Sub-Inspector for their identification, who had identified them as ganja plants and some document was also sent to the police in this regard by the Excise Sub-Inspector. This makes two things clear. First, that the articles were not in sealed condition after the seizure; and the second, that if they were sealed at the time of the seizure, the seal was opened and they were sent for examination to local Excise Department. There is no report from the local Excise Department. This shows that either the articles were throughout opened or their seals were removed prior to sending it to the F.S.L. on 5.8.92. 8. Apart from the above, there is no report of F.S.L. or any other expert examiner that the 2 seized plants were the ganja plants. The learned trial Judge has held that the above witnesses deposed that they were the ganja plants, which they have deposed on their personal knowledge and experience, therefore, it was established beyond all reasonable doubts that the seized plants were ganja plants. The ganja plant is not a plant of common genus which anybody can identify with the authority like any other garden plant which is commonly grown up in the house of almost every villager in the village. I have gone through the evidence of these witnesses. It does not appear from their evidence that they were able to identify those plants with authority that they were ganja plants. 9. The seized articles were not produced before the trial Court, therefore, the trial Court could not get the opportunity to see those plants and the Appellant also could not get any opportunity before the trial Court to show to the trial Court that in fact, those plants were not the ganja plants. Therefore, the Appellant was highly prejudiced by the non-production of the seized articles before the trial Court. In Jitendra and Ann v. State of M.P. 2003 SAR (Cri) 902, the seized contraband was not produced before the trial Court, so as to connect it with the samples sent to the Forensic Science Laboratory. Therefore, the Appellant was highly prejudiced by the non-production of the seized articles before the trial Court. In Jitendra and Ann v. State of M.P. 2003 SAR (Cri) 902, the seized contraband was not produced before the trial Court, so as to connect it with the samples sent to the Forensic Science Laboratory. The High Court relying on Section 465 of the Code of Criminal Procedure held that non-production of the material object was a mere procedural irregularity and did not cause prejudice to the accused. The Supreme Court took the view that the view taken by the High Court is unsustainable. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. It was held that the best evidence would have been the seized materials, which ought to have been produced during the trial and marked as material objects. There is no explanation for this failure to produce them. Mere oral evidence as to their features and production of punchanama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS, Act. 10. In the present case, the question was as to whether the seized plants were ganja or not? There is no chemical examiner's report. If the plants would have been produced before the Court, the Appellant would have shown about the genus of the plants, which opportunity has been lost by the non-production of the said plants by the prosecution, which has highly prejudiced the interest of the Appellant as it was not merely an irregularity, but it has affected the valuable right for the Appellant to rebut the allegations made against him. Therefore, it was not established beyond all reasonable doubts that the 2 plants, allegedly seized from the badi of the Appellant were ganja plants and the trial Court erred in law in holding the Appellant guilty of offence punishable Under Section 20(B) of the N.D.P.S. Act. 11. Apart from the above, there is no evidence to show where the said plants were kept in between 24.7.92 and 5.8.92. The entries of malkhana register have not been proved. 11. Apart from the above, there is no evidence to show where the said plants were kept in between 24.7.92 and 5.8.92. The entries of malkhana register have not been proved. No sample of seal was sent along with sample of the seal of seized articles, therefore, the link evidence is also missing in this case. 12. For the foregoing reasons, the conviction and sentence awarded to the Appellant Under Section 20(B) of the N.D.P.S., Act cannot be sustained and the same are liable to be set-aside. 13. Accordingly, the appeal is allowed. The conviction and sentence awarded to the Appellant Under Section 20(B) of the N.D.P.S., Act are set-aside. The Appellant is acquitted of the charges framed against him. It is stated that the Appellant is on bail. His bail bonds are cancelled and surety stands discharged.