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2012 DIGILAW 194 (CHH)

SHAKUNTLA RAO v. STATE OF M. P.

2012-08-03

PRITINKER DIWAKER

body2012
JUDGMENT 1. This appeal has been preferred against the judgment and order dated 17.12.1996 passed by Sessions Judge, Raipur, in Special Criminal Case No. 3/1995 convicting the accused/appellant u/s 20 of the NDPS Act and sentencing her to undergo rigorous imprisonment for six months. 2. Facts of the case in brief are that on 8.12.1994 when Krishna Bihari Dwivedi - in-charge of Crime Squad, Raipur was on patrolling duty, a secrete information was received by him that someone was selling ganja. When house of the accused/appellant was searched, 4.500 Kg. of ganja was found contained in a tin box. Seizure of ganja was made vide Ex. P-2 and the entire contraband is alleged to have been sent for chemical examination on 21.12.1994 vide Ex.P-4 through Lakhan Singh (PW-2). FIR (Ex. P-6) was registered on 8.12.1994 itself and then after receiving the FSL report Ex. P-10 on 24.12.1994, challan was filed on 10.1.1995 for the said offence. 3. In support of its case, prosecution has examined 04 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which she denied the charge levelled against her and pleaded her innocence and false implication in the case. 4. After hearing the parties, the Court below has convicted and sentenced the accused/appellant as mentioned in paragraph No.1 of this judgment. 5. Counsel for the accused/appellant submits that mandatory provisions of the Act have not been complied with as the secrete information was not reduced to writing, independent witnesses have not been summoned while proceeding to the house of the accused/appellant, weighment of contraband was not done, contraband was not sealed as' required under the law, sample of seal was not drawn and that there is no report that the ganja was kept in safe custody such as Malkhana. Further, he submits that the accused/appellant is a lady but no lady constable was there while completing the formalities. 6. On the other hand, counsel for the respondent/State supports the judgment impugned. 7. Heard counsel for the parties and perused the material available on record. 8. Bharat Rao Mahadik (PW -1) and Shankar Prasad Dewangan (PW4) are the witnesses to seizure - who have not supported the case of the prosecution and have been declared hostile. Lakhan Singh (PW-2) is the witness who took the seized contraband to Forensic Science Laboratory for chemical examination. 8. Bharat Rao Mahadik (PW -1) and Shankar Prasad Dewangan (PW4) are the witnesses to seizure - who have not supported the case of the prosecution and have been declared hostile. Lakhan Singh (PW-2) is the witness who took the seized contraband to Forensic Science Laboratory for chemical examination. Krishna Bihari Dwivedi (PW-3) is the investigating officer who has duly supported the case of the prosecution. However, in cross examination, this witness has admitted that there is no mention in the seizure memo that after seizure of the contraband it was sealed as required under the law and that samples were drawn for being sent to Forensic Science Laboratory. 9. From the evidence of the witnesses it is clear that the independent witnesses have not been summoned while proceeding to the house of the accu5ed/appellant for making search and that apart, there is no evidence to show that the contraband seized by the police was subjected to weighment proceedings. Further, no evidence is there on record to show that samples of seal were drawn and the same were sent to FSL or that the contraband so seized was kept in safe custody. Thus taking the cumulative effect of the entire prosecution case, this Court is of the opinion that link evidence required to be proved by the prosecution, is missing in this case and therefore the benefit of the same has to go to the accused/appellant. 10. In view of above the appeal is allowed Judgment impugned is set aside. Accused/appellant is acquitted of the charge levelled against her. She is already on bail. Her bail bonds stand discharged. Appeal Allowed.