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2011 DIGILAW 391 (CHH)

ALAKHRAM VERMA v. STATE OF M. P.

2011-12-14

RADHE SHYAM SHARMA

body2011
JUDGMENT 1. This appeal is directed against judgment dated 31st July, 1996 passed by the Special Judge (NDPS Act) and Sessions Judge, Raipur in Special Criminal Case No. 100/95, whereby accused/appellant Alakhram Verma has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act, 1985') and sentenced to undergo rigorous imprisonment for 18 months. 2. Case of the prosecution, in brief, is as under: On 19.9.1995, at about 4.30 p.m., Chowki Prabhari Sub-Inspector Madanlal Negi (PW-4) received information that a person was illegally carrying illicit ganja. After recording the aforesaid information vide Ex-P/1, he informed the same to City Superintendent of Police, Civil Line, Raipur. He, accompanied by witnesses Ujwal (PW-2) and Gajendra (PW-3), reached Bus-Stand Pandri, Raipur. The appellant was going towards an STD-PCO with a black colour bag in his hand. The accused/appellant was interrogated by Madanlal Negi (PW4) and information of rights under Section 50 of the Act, 1985 was given to him vide Ex-P/4 and consent of the appellant was recorded vide Ex.P/3. Thereafter, Madanlal Negi (PW-4) searched the bag carrying by the appellant. During search, ganja like substance was found in 5 packets in the bag. 3 packets contained 2 kilograms each and 2 packets contained 1 kilogram each. Total 8 kilograms ganja like substance was found, which was seized vide Ex-P/5 and the packets were weighed vide weighment panchnama Ex-P/6 and it was found that the bag contained 8 kg of ganja like substance. Thereafter, two sets of samples, 25 grams each were lifted from the packets and sealed. The remaining ganja was also sealed. The accused/appellant was arrested vide ExP/2. Intimation of seizure proceedings was sent to CSP, Civil Line, Raipur. Seized ganja was handed over to the officer-in-charge of Malkhana, Police Station Civil Line, Raipur for safe custody. The samples were sent to Forensic Science Laboratory, Raipur and report was received from there vide Ex-P/10. According to the report (Ex-P/10), sample A was ganja. After completion of investigation, the appellant was prosecuted for the offence punishable under Section 20 of the Act, 1985. The appellant abjured the guilt and examined Kukundram (DW-1) and Shyamlal (DW-2) as defence witnesses. The prosecution has examined as many as four witnesses and relying upon the evidence led by the prosecution, the trial Court has convicted and sentenced the appellant as mentioned in first Para of this judgment. 3. The appellant abjured the guilt and examined Kukundram (DW-1) and Shyamlal (DW-2) as defence witnesses. The prosecution has examined as many as four witnesses and relying upon the evidence led by the prosecution, the trial Court has convicted and sentenced the appellant as mentioned in first Para of this judgment. 3. Shri HS Patel, learned counsel appearing for the appellant argued that there was no compliance of Sections 42, 50, 52 and 55 of the Act, 1985. Ujwal (PW-2) and Gajendra (PW-3) are rickshaw-pullers and the police used to make them witnesses in other cases also. He further argued that there is nothing on record to show that the bag was containing ganja arid samples taken from the packets were sealed and specimen impression of the seal was prepared. The samples were taken on 19.9.95 and a packet of sample was sent to FSL, Raipur on 30.9.95. It was sent after considerable delay, for which, there is no explanation. Therefore, the seizure from the appellant was not in accordance with law. Possibility of tampering of sample sent to the FSL cannot be ruled out. Therefore, the appellant is entitled to be acquitted of the charges framed against him. 4. Shri MPS Bhatia learned Dy. Govt. Advocate appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant any interference by this Court. 5. Having heard the rival contentions of the parties, I have perused the record of Special Criminal Case No. 100/95. The prosecution has examined seizure witnesses Ujwal (PW-2) and Gajendra (PW-3). They have supported the prosecution case. Madanlal Negi (PW-4) deposed that on 19.9.95, at about 4.30 p.m., he received information that the appellant was possessing 8 kg of illicit ganja. After receiving the information, he sent the same to CSP, Civil Line, Raipur and superior officers also vide Ex-P/1 and Ex-P/2. Anurag Sharma (PW-1) deposed that at the relevant date, he was posted as CSP at Civil Line, Raipur and Police Stations Civil Line, Ganj and Mandir Hasaud were within his jurisdiction. He further deposed that he received the information from Police Station Civil Line vide Ex-P/l. In cross- examination, he deposed that the said information was received by him through wireless message also. He further deposed that he received the information from Police Station Civil Line vide Ex-P/l. In cross- examination, he deposed that the said information was received by him through wireless message also. After perusal of the evidence of Madanlal Negi (PW-4) and Anurag Sharma (PW-l), it appears that substantial compliance of Section 42 of the Act, 1985 has been made by the investigation officer. 6. Now, I shall examine whether Section 50 of the Act, 1985 has been substantially complied by the investigating officer or not. Under Section 50(1) of the Act, 1985, the officer, who is to search the accused, is required to inform the person about his right to be searched by a Gazetted Officer or by a Magistrate. If the person opts to be searched before a Gazetted Officer or a Magistrate, he shall immediately be taken to the said officer or Magistrate. Otherwise, the search can be made by the concerned officer. This requirement of law has been held to be mandatory in nature and non-compliance thereof vitiates the trial. 7. Sub-Inspector Madanlal Negi (PW-4) deposed that he informed the appellant about his right that he is entitled to be searched before a Gazetted Officer or a Magistrate or before him vide Ex-P/4. The appellant gave his written consent vide Ex-P/3 to be searched by the investigating officer himself. Thereafter, he searched the black colour bag of the appellant in which he found total 5 packets of ganja, 3 packets contained 2 kg each and 2 packets contained 1 kg each, total 8 kg ganja. The ganja was seized vide Ex-P/5 and weighed vide Ex-P/6 and thereafter samples of 25 gm ganja from each packet were taken and sealed in presence of the witnesses. Remaining ganja was also sealed. 8. Ujwal (PW-2) and Gajendra (PW-3) also deposed that Madanlal Negi (PW-4) informed the appellant about his right vide Ex-P/4 and the appellant had given his written consent vide Ex-P/3 to be searched by Madanlal Negi (PW-4). They further deposed that the ganja which was seized from the appellant was kept in 5 packets, three packets contained 2 kg each and two packets contained 1 kg each. The samples taken from the packets were sealed and the remaining ganja were also sealed separately. 9. They further deposed that the ganja which was seized from the appellant was kept in 5 packets, three packets contained 2 kg each and two packets contained 1 kg each. The samples taken from the packets were sealed and the remaining ganja were also sealed separately. 9. On perusal of the evidence of the witnesses and Ex.P-3 and Ex.P4, it is clearly established that substantial compliance of Section 50 of the Act, 1985 was also made by SI Madanlal Negi (PW-4). 10. Shri Patel, learned counsel appearing for the appellant submits that possibility of sample analyzed by the FSL had been tampered which could not be ruled out in view of the fact of the impression of the seal found on the packet taken by the FSL did not match with the impression of the seal described in the panchnama. It was also pointed out by the counsel that entry in the malkhana register was not produced by the prosecution. The samples were taken on 19.9.95 and it was received by the FSL on 30.9.95, i.e. after 11 days. The constable who was entrusted with the sample packets was not examined and the delay in submitting the sample packets in FSL was not explained. 11. On the other hand, Shri MPS Bhatia, learned Dy. Govt. Advocate for the State argued that sealing of the sample packets and the evidence led by the prosecution would not show any possibility of tampering of the sealed sample packet sent to the FSL. 12. I have perused the evidence led by the prosecution. SI Madanlal Negi (PW-4) deposed that he sent the ganja for chemical examination to Regional Forensic Science Laboratory, Raipur and the report of FSL (Ex-P/10) was received vide Ex.P/9. In the report (Ex.P/10), presence of ganja was found positive. In a prosecution for the evidence under Section 20 of the Act, 1985, it is the duty of the prosecution to establish the shadow of doubt that sample taken from the quantity of ganja alleged to have been seized from the appellant were sealed and specimen impression of the seal was prepared. It was also necessary for the prosecution to establish that at the time of entrustment of the sample in the malkhana, Station House Officer of the Police Station had affixed his seal in the sample packets as also on the remaining quantity of ganja. It was also necessary for the prosecution to establish that at the time of entrustment of the sample in the malkhana, Station House Officer of the Police Station had affixed his seal in the sample packets as also on the remaining quantity of ganja. The prosecution must establish beyond reasonable doubt that the seal affixed on the sample packets not only at the time of seizure but also at the time of entrustment in the malkhana are remain intact till, the sample packet was delivered at FSL for its chemical analysis. 13. In the instant case, the prosecution did not examine the officer-in-charge of malkhana and officer-in-charge of police station. It also did not produce the malkhana register in its evidence. Even Madanlal Negi (PW-4) did not state anything about safe custody of seized contraband articles and the samples. In the FSL report (Ex-P/l 0), it was mentioned that packet A was received on 30.9.95 from Constable 889 Mohanlal. In the report, impression of the seal was not appearing. It was also not mentioned in the report (Ex-P/10) that the sample was received along with specimen impression of the seal of the officer-in-charge of the police station. Even memorandum of Police Superintendent was not produced in the evidence. Constable 889 Mohanlal was not examined by the prosecution. The samples were taken on 19.9.95 and one packet of sample was received by FSL on 30.9.95. There is no evidence to explain the custody of the samples during this period and delay in submitting the same in FSL. 14. After having considered the evidence led by the prosecution in its entirety, I am of the considered opinion that there is non-compliance of Sections 52 and 55 of the Act, 1985. Neither delay in delivering the sample at FSL has been explained nor the malkhana register was produced in evidence. The prosecution did not establish that the seized ganja was kept in safe custody in malkhana. The prosecution did not examine the officer-in-charge of malkhana, Station House Officer and Constable 889 Mohanlal. Therefore, the report of FSL (Ex-P/10) cannot form the basis of conviction of the appellant under Section 20 of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside. 15. In the result, the appeal is allowed. The prosecution did not examine the officer-in-charge of malkhana, Station House Officer and Constable 889 Mohanlal. Therefore, the report of FSL (Ex-P/10) cannot form the basis of conviction of the appellant under Section 20 of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside. 15. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 20 of The Narcotic Drugs and Psychotropic Substances Act, 1985 are set aside. The appellant is acquitted of the charge framed against him, after giving him benefit of doubt. His bail bonds are cancelled and sureties stand discharged. Appeal Allowed.