Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 205 (CHH)

ITWARIRAM v. STATE OF M. P.

2011-06-23

SUNIL KUMAR SINHA

body2011
JUDGMENT 1. This appeal is directed against the judgment dated 25th of April, 1995 passed in Special Criminal Case No. 95/94 by the Special Judge (NDPS) & Fourth Additional Sessions Judge, Raipur. By the impugned judgment, the appellant has been convicted u/s 20 (b) (i) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to undergo R.1. for 6 months and to pay fine of Rs.500/-, in default to further undergo R.I. for 1 month. 2. The facts, briefly stated, are as under:- On 2.4.94, appellant- Itwariram was traveling in passenger bus No. OR-08-2213 belonging to Orissa State Road Transport Corporation. On a secret information Sub-Inspector - L.K. Pandey (PW-4) stopped the bus at forest barrier, Gariyaband and made a search in the bus. He found that the appellant was carrying a bag which was containing ganja. He took the appellant to the police station and prepared seizure memo Ex.P/1. According to the seizure memo, he seized 2 kilograms of ganja. A sample of 100 grams was separated and sample and the remaining ganja both were sealed in 2 different packets. On 12.4.94, the sample was sent for its examination to Excise Inspector -A.N. Saluja (PW-2), who prepared a report and expressed his views that the sample was that of ganja. However for confirmation, he advised for chemical examination from Forensic Science Laboratory (F.S.L.). Thereafter the sample was sent to F.S.L., Raipur, from where, a report (Ex.-P/2) was received. According to the F.S.L. report, the article sent was ganja. After Completion of investigation in the above manner, the charge-sheet was filed and the appellant was prosecuted u/s 20 (b) (i) read with Section 8 of the NDPS Act. During the trial, out of 2 panch witnesses namely Vishwanath Sinha (PW-I) and Shivkumar Dubey (PW-3), Shivkumar Dubey turned hostile. The learned Special Judge relied on the testimonies of Vishwanath Sinha (PW-I) and Sub-Inspector - L.K. Pandey (PW4) and held that it was proved that the appellant was found in possession of 2 kilograms of ganja, therefore, he was liable for punishment under the aforementioned Sections of NDPS Act. 3. I have heard learned Dy. Govt. Advocate appearing on behalf of the State who supported the judgment of Special Court. 4. I have also perused the records of the Special Court. 5. 3. I have heard learned Dy. Govt. Advocate appearing on behalf of the State who supported the judgment of Special Court. 4. I have also perused the records of the Special Court. 5. Vishwanath Sinha (PW-1) deposed that ganja which was seized by the police was in quantity of 5 kilograms. He remained unassailed on the fact that the ganja was in quantity of 5 kilograms. According to the prosecution and further according to the seizure memo the quantity of ganja was 2 kilograms. Even the Investigation Officer has also stated that the quantity of ganja was 2 kilograms. This contradiction in the evidence of 2 witnesses as also documents prepared by the police was a material contradiction. The learned Special Judge, vide Para-5 of the judgment, has simply said that on account of mistake, PW1 may have said the quantity as 5 kilograms in place of 2 kilograms, therefore, it was not very material. I am unable to accept the views of the Special Judge. I am of the view that where the contraband was weighed before the witnesses & the police, and a panchnama was prepared in presence of the witnesses, such difference in the quantity of contraband in the evidence of witnesses was material and the credibility of the seizure becomes shadowed. 6. It is an admitted position that the contraband came into the hands of the police at forest barrier, Gariyaband, but the seizure memo was not prepared at that place. The Investigation Officer and the panch witnesses have stated that the seizure memo was prepared in police station, Gariyaband. Even the seizure memo Ex.-P/1 shows that it was prepared in police station, Gariyaband. If the contraband was seized at forest barrier, normally, the seizure memo would have been prepared at that place and the police would not have taken the contraband in it possession without preparation of the seizure memo at the. 7. Though it is mentioned in the seizure memo that the contraband and the sample of ganja were sealed after the seizure in police station, but no document relating to sample of seal was prepared. Even it does not appear that the sample of seal was sent along with the sample of ganja either to Excise Inspector- A.N. Saluja (PW-2) or to the 'F.S.L., Raipur from where the report (Ex.-P/2) was received. Even it does not appear that the sample of seal was sent along with the sample of ganja either to Excise Inspector- A.N. Saluja (PW-2) or to the 'F.S.L., Raipur from where the report (Ex.-P/2) was received. This creates a doubt that the same sample was sent to these authorities. The sample of the, seal is an identification mark on the sample to prove that it was the same sample which was seized from the possession of an accused. Where the sample of the seal was not prepared nor it was sent to the examiners of the sample, there remains every possibility of tampering with and change of sample allegedly seized. 8. In the present case, the ganja was allegedly seized on 2.4.94. It was sent for physical examination to Excise Inspector - A.N. Saluja (PW-2) on 12.4.94 who opened the seal of the sample and examined it and thereafter put another seal on the sample and handed over it to the concerned constable. Thereafter, as it appears from the F.S.L. report Ex.-P/2, this sample was sent to F.S.L., Raipur on 9.5.94. There is no evidence to show that where the sample was kept from 2.4.94 till 9.5.94. 9. In The State of Rajasthan Vs. Daulai Ram, it was held that "Where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question, a fact which had to be proved affirmatively by the prosecution." 10. The Investigation Officer has not said even a single line relating to keeping of the sample in safe custody in between 2.4.94 to 9.5.94. It is not their case that in this period the sample was kept in Malkhana. Even the entries of Malkhana register have not been proved to show that the sample was kept there. The Investigation Officer has not said even a single line relating to keeping of the sample in safe custody in between 2.4.94 to 9.5.94. It is not their case that in this period the sample was kept in Malkhana. Even the entries of Malkhana register have not been proved to show that the sample was kept there. Therefore, it creates doubt that in fact the sample sent to the Excise Inspector -A.N. Saluja (PW-2) as also the Forensic Science Laboratory (F.S.L.) was the same sample which in fact was taken from the alleged seized contraband and there was no tampering in the seal of the sample after putting the seal of the police officer at the time of the seizure. 11. The learned Special Judge has not looked into the above facts and has simply relied the evidence of Vishwanath Sinha (PW-1) and held that it was proved beyond all reasonable doubts that the appellant was found in possession of 2 kilograms of ganja. 12. For the reasons aforesaid the impugned judgment cannot be sustained and the same deserves to be set-aside. 13. Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 20 (b) (i) read with Section 8 of the N.D.P.S. Act are set-aside. The appellant is acquitted of the charges framed against him. Appeal Allowed.