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2013 DIGILAW 150 (CHH)

HEERAMANI SAHU v. STATE OF C. G.

2013-05-10

RADHE SHYAM SHARMA

body2013
JUDGMENT 1. This appeal is directed against judgment dated 08.01.2007 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth the Act, 1985), Bilaspur in Special Case No. 25 of 2004. By the impugned judgment, accused/ appellant Smt. Heeramani Sahu has been convicted under Section 20(b)(ii)(C) of the Act, 1985 and sentenced to undergo rigorous imprisonment for ten years and to pay fine of Rs. 1,00,000/- in default of payment of fine, to further undergo rigorous imprisonment for one year. 2. Case of the prosecution, in brief, is as under:– On 28.4.2004, Sub-Inspector R.C. Trivedi (PW-8) was posted at Crime Branch, Bilaspur. On that day he received information from mukhbeer that the appellant was having ganja in her possession for sale. He recorded mukhbeer suchana panchanama vide Ex-P/21 and also entered information in rojnamcha Sanha 246 vide Ex-P/25. He transmitted the said information to S.K. Tigga, Dy. Superintendent of Police, Crime Branch, Bilaspur. Thereafter he proceeded for the house of the appellant along with ASI Kujur and other police personals. They reached the house of the appellant and called witnesses Sukhdas (PW-4) and Mulchand Sharma (not examined). Sub-Inspector R.C. Trivedi (PW-8) informed the witnesses about the mukhbeer suchana and they entered the house of the appellant. The appellant was present in the house. The appellant was informed about her legal rights under Section 50 of the Act, 1985 and consent of the appellant regarding search was recorded vide Ex-P/7. Thereafter he searched the house of the appellant. The appellant concealed the ganja in the basement of her house under the chips. After removing the chips, 16 plastic bags were found. The bags were filled with ganja like substance. Identification of the articles were conducted vide Ex-P/15. Thereafter panchanama was prepared vide Ex-P/16 and recovery memo was prepared vide Ex-P/12. Ganja was weighed on the spot vide Ex-P/14. Samples of the seized ganja was prepared separately, ganja was sealed vide Ex-P/16 on the spot. The appellant was arrested vide Ex-P/17. Dehatinalishi (Ex-P/27) was recorded. After seizure and arrest, Investigating Officer R.C. Trivedi (PW-8) came back to the police station along with appellant and seized articles. He handed over the seized ganja to Malkhana Moharrir for safe custody in the Malkhana. The samples were sent for examination to Forensic Science Laboratory, Raipur vide Ex-P/32. The appellant was arrested vide Ex-P/17. Dehatinalishi (Ex-P/27) was recorded. After seizure and arrest, Investigating Officer R.C. Trivedi (PW-8) came back to the police station along with appellant and seized articles. He handed over the seized ganja to Malkhana Moharrir for safe custody in the Malkhana. The samples were sent for examination to Forensic Science Laboratory, Raipur vide Ex-P/32. FSL report (Ex-P/32) was received therefrom in which ganja was found to be positive in all samples. After completion of the investigation, charge sheet was filed against the appellant in the Court of Special Judge, under the Act, 1985, Bilaspur, who conducted the trial and convicted and sentenced the appellant as mentioned above. 3. Smt. Meena Shastri, learned counsel for thy appellant argued that there was no compliance of provisions of Section 42, 50, 55 and 57 of the Act, 1985. She further argued that there are material contradiction in the evidence of prosecution witnesses. The samples were not sealed on the spot. There was no explanation, therefore, there is possibility of tampering the samples. The Investigating officer did not prepare seal panchanama and specimen seal was not affixed in requisite documents. Search of the appellant was not conducted in accordance with the provisions of the sub-section 4 of Section 50 of the Act 1985. She further argued that ganja was not sealed by Station House Officer before handing over to Malkhana. She further argued that the prosecution has not been able to establish that the house was in the exclusive possession of the appellant. Therefore, the appellant is entitled to be acquitted from the charges framed against her. 4. Mr. Vinay Harit, learned Dy. Advocate General for the State/Respondent, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not warrant interference by this Court. 5. Having heard the rival contentions of the parties, I have perused the record of Special Case No. 25 of 2004. 6. To prove the case, the prosecution examined ASI Ithwa Kujur (PW-1), Constable Ashok Chourasiya (PW-2), Revenue Inspector Dileep Tiwari (PW-3), Sukhdas (PW-4), Gouri Shankar Wasnik (PW-5), Panchram (PW-6), Constable Chandrapal Khande (PW-7), Sub-Inspector R.C. Trivedi, Investigating Officer (PW-8), Sub-Inspector D.P. Singh (PW-9) and Head Constable Lakshmi Prasad (PW-10). 7. Now, I shall examine whether provision of Section 42 of the Act, 1985, has been substantially complied with or not? 8. 7. Now, I shall examine whether provision of Section 42 of the Act, 1985, has been substantially complied with or not? 8. Sub-Inspector R.C. Trivedi (PW-8) deposed that on 28.4.2004, he was posted as Sub-Inspector in Crime Branch, Bilaspur. On that day, he received secret information from mukhbeer that the appellant had ganja in her possession and was engaged in selling the same. He recorded Mukhbeer Suchana Panchanama vide Ex-P/21 and also entered the information in rojnamcha Sanha No. 246 (Ex-P/25) and its copy Ex-P/25(C). He transmitted the said information to S.K. Tigga, Dy. SP, Crime Branch, Bilaspur. 9. Constable Ashok Chourasiya (PW-2) deposed that on 28.4.2004 he was posted as Constable in Crime Branch, Bilaspur. He further deposed that mukhbeer suchana Panchanama was recorded by Sub-Inspector R.C. Trivedi (PW-8) and thereafter they proceeded for Bilha along with S.K. Tigga, Dy. SP, Crime Branch, Bilaspur. 10. Looking to the evidence of Sub-Inspector R.C. Trivedi (PW-8), Constable Ashok Chourasiya (PW-2) and Ex-P/21, it appears that Sub-Inspector R.C. Trivedi (PW-8) received secret information and recorded the same vide Ex-P/21 and also entered in rojnamcha Sanha (Ex-P/25C) and communicated to Dy. SP, Crime Branch, Bilaspur. 11. Constable Ashok Chourasiya (PW-2) specifically deposed that S.K. Tigga, Dy. SP, Crime Branch Bilaspur had also reached the house of the appellant and joined in the search party and the search was made in the presence of Dy. SP, Crime Branch, Bilaspur. Sub-Inspector R.C. Trivedi (PW-8) also deposed that SK Tigga, Dy. SP, Crime Branch, Bilaspur was also present during the search. 12. Looking to the evidence of Sub-Inspector R.C. Trivedi (PW-8) and Constable Ashok Chourasiya (PW-2), it appears that Section 42 of the Act, 1985 was substantially complied with. 13. Now, I shall examine whether the provision of Section 50 of the Act, 1985 has been substantially complied with or whether provision of Section 50 of the Act, 1985 is mandatory in the instant case. 14. Sub-Inspector R.C. Trivedi (PW-8) deposed that he reached the house of the appellant and called panch witnesses Sukhdas (PW-4) and Mulchand Sharma and thereafter, the appellant was informed that she was to be searched. Consent of the appellant was recorded in Ex-P/7. Sub-Inspector R.C. Trivedi (PW-8) did not state that the appellant was informed that she has right to be searched before a Gazetted Officer or before a Magistrate. Consent of the appellant was recorded in Ex-P/7. Sub-Inspector R.C. Trivedi (PW-8) did not state that the appellant was informed that she has right to be searched before a Gazetted Officer or before a Magistrate. In Ex-P/7, it is mentioned that the appellant was ready to be searched by Sub-Inspector R.C. Trivedi (PW-8). 15. In the instant case, notice under Section 50 of the Act, 1985 was not given to the appellant. Bare perusal of Ex-P/7 would reveal that only consent of the appellant was obtained but she was not informed about her legal rights under Section 50 of the Act, 1985. 16. Now, I shall examine whether non-compliance of Section 50 of the Act, 1985 would be fatal to the case of the prosecution? 17. In Jarnail Singh vs. State of Punjab, AIR 2011 SC 964 , the Hon'ble Supreme Court observed as follows:– 12-A. This Court in the case of Kalema Tumba vs. State of Maharashtra, (1999) 8 SCC 257 , discussed the provisions pertaining to personal search under Section 50 of the NDPS Act and held as follows:– "If a person is carrying a bag or some other article with him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person." Similarly, in the case of Megh Singh vs. State of Punjab, (2003) 8 SCC 666 , this Court observed that:– "A bare reading of section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises." The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh vs. Pawan Kumar, (2005) 4 SCC 350 . In paragraphs 10 and 11, this Court observed as follows:– "10. We are not concerned here with the wide definition of the word person which in the legal world includes corporations, associations or body of individuals as factually in these types of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most, appropriate meaning of the word person appears to be "The body of a human being as presented to public view usually with its appropriate coverings and clothing." In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one's home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word person would mean a human being with appropriate coverings and clothings and also footwear. 11. A bag, briefcase or any such article or container, etc. can under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They can net even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some, extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. of varying size, dimension or weight. However, while carrying or moving along with them, some, extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it, would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word person occurring in Section 50 of the Act." 18. In Madanlal & another vs. State of Himachal Pradesh, (2003) 7 SCC 465 and Megh Singh vs. State of Punjab, (2003) 8 SCC 666 , the Hon'ble Supreme Court observed that a bare reading of Section 50 of the Act, 1985 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab vs. Baldev Singh, (1999) 6 SCC 172 . 19. In view of the above settled legal position, Section 50 of the Act, 1985, would not be applicable when search is made of a house or a vehicle or a container or a bag or premises. In the instant case, the search was made in the house of the appellant, therefore, Section 50 of the Act, 1985 would not be applicable. 20. Learned counsel for the appellant argued that the evidence of Sub-Inspector R.C. Trivedi (PW-8) was not supported by independent witnesses. The seized articles were not sealed on the spot and samples were not taken on the spot, therefore, provisions of Section 55 of the Act, 1985, is not complied with, therefore, conviction of the appellant cannot be based on the evidence of Sub-Inspector R.C. Trivedi (PW-8). 21. Sub-Inspector R.C. Trivedi (PW-8) deposed that he reached the house of the appellant and searched the house and found that the appellant concealed the ganja in the basement of her house under the chips. After removing the chips, 16 plastic bags were found. The bags were filled with ganja like substance. 21. Sub-Inspector R.C. Trivedi (PW-8) deposed that he reached the house of the appellant and searched the house and found that the appellant concealed the ganja in the basement of her house under the chips. After removing the chips, 16 plastic bags were found. The bags were filled with ganja like substance. Identification of the articles were conducted vide Ex-P/15. Seizure memo and recovery memo was prepared vide Ex-P/12. Ganja was weighed on the spot vide Ex-P/14. Ganja was sealed vide Ex-P/16 on the spot. The appellant was arrested vide Ex-P/17. Dehatinalishi (Ex-P/27) was recorded. After seizure and arrest, Investigating Officer R.C. Trivedi (PW-8) came back to the police station along with the appellant and seized articles. He handed over the seized ganja to Malkhana Moharrir for safe custody in the Malkhana. 22. Sub-Inspector D.P. Singh (PW-9) deposed that on 28.4.2004, he was posted as Station House Officer in Police Station Bilha, He further deposed that Asst. Sub-Inspector Ithwa Kujur produced 67.400 Kg seized ganja along with Dehatinalishi (Ex-P/27). On the basis of Dehatinalishi, First Information Report (Ex-P/1) was registered in Police Station Bilha for the offence under Section 20(b)(ii)(c) of the Act, 1985. He further deposed the on 12.6.2004, he took 50 gms of ganja from each bag and thereafter 32 samples, each containing 25 gms, were prepared and sealed and remaining ganja was also sealed and handed over to Malkhana Moharrir for safe custody and in that effect he made entry in the rojnamcha Sanha No. 342 and he also prepared sample packet panchanama vide Ex-P/18 and P/19 and also prepared panchanama regarding sealing of ganja. He further deposed that samples were sent to Forensic Science Laboratory, Raipur for chemical examination. 23. Head Constable Lakshmi Prasad (PW-10) deposed that on 28.4.2004, he was posted as Head Constable, Malkhana Moharrir in Police Station, Bilha and at that time Sub-Inspector D.P. Singh was posted as Station House Officer and Sub-Inspector R.C. Trivedi (PW-8) was posted as Crime Branch Incharge. He further deposed that Sub-Inspector R.C. Trivedi (PW-8) handed over 16 plastic bags in sealed condition, weighing 67.400 kg and 16 sample packets, each weighing 25 gms, for keeping in safe custody. He further deposed that for that effect he entered in Malkhana Moharrir register (Ex-P/33) and copy of it is Ex-P/33C. He further deposed that Sub-Inspector R.C. Trivedi (PW-8) handed over 16 plastic bags in sealed condition, weighing 67.400 kg and 16 sample packets, each weighing 25 gms, for keeping in safe custody. He further deposed that for that effect he entered in Malkhana Moharrir register (Ex-P/33) and copy of it is Ex-P/33C. He further deposed that on 17.6.2004, samples were sent to Forensic Science Laboratory, Raipur for chemical examination through Constable 225 Chandrapal. Its acknowledgment is Ex-P/24 and FSL report is Ex-P/32. 24. Sub-Inspector R.C. Trivedi (PW-8) did not mention about preparation of samples. He simply deposed that he seized ganja vide Ex-P/16. Even in Dehatinalishi (Ex-P/21), it was not mentioned about the preparation of the samples, but was only mentioned that 67.400 Kg ganja was seized. In the seizure memo, it is mentioned that 16 bags, S.I. No. 1 to 16 containing (1) 4.200 kg, (2) 3.300 kg, (3) 5.500 kg, (4) 5 kg, (5) 4 kg, (6) 5.300 kg, (7) 4 kg, (8) 2.200 kg, (9) 3.300 kg, (10) 4.300 kg (11) 3.200 kg, (12) 3.300 kg, (13) 6 kg, (14) 3.300 kg, (15) 5.300 kg, (16) 6.400 kg, total weighing 67.400 kg including the bags. In the seizure memo it is not mentioned that the samples were prepared on the spot. In Ex-P/30, it is mentioned that:– ^^fo”k;kafdr ys[k gS fd Fkkuk ds vi0 dzekad 24@04 /kkjk 20ch ,u-Mh-ih-,l- ,DV esa tCr 16 cksfj;ksa esa 67 fdyksxzke0 xkatk dks lsEiy fudkyus gsrq eky[kkuk ls fudkyk x;k Fkk] ftldk ‘khy Bhd Fkk] ftuesa ls 16 cksfj;ksa ls izR;sd ls 50&50 xzke dk lsEiy gsrq fudkyk x;k Fkk rFkk lsEiy dks iqu% 25&25 xzke ds lsEiy iSdsV rS;kj fd;k x;k rFkk ‘khy can dh xbZA bl izdkj 16 cksfj;k rFkk 32 lsEiy iSdsV ‘khy can gkyr esa dks iqu% eky[kkuk esa lqjf{kr j[kus dk d”V djsaA** ^^tCr ‘kqnk xkatk 16 cksjh esa ‘khy can ,oa 25&25 xzke xkatk lsEiy 32 iSdsV ‘khycan gkyr esa eky[kkuk esa lqjf{kr jgus gsrq Fkkuk izHkkjh egksn; ls izkIr fd;kA ** 25. Head Constable Ashok Chourasiya (PW-2) deposed that recovered ganja was sealed on the spot, but he did not state in his deposition that the samples were prepared on the spot. 26. Head Constable Ashok Chourasiya (PW-2) deposed that recovered ganja was sealed on the spot, but he did not state in his deposition that the samples were prepared on the spot. 26. Looking to the evidence of Sub-Inspector R.C. Trivedi (PW-8) and D.P. Singh (PW-9), Head Constable Lakshmi Prasad (PW-10) and Ex-P/30, it appears that the search was made on 28.4.2004 and samples were prepared on 12.6.2004, i.e. 1½ months after the seizure. Constable Chandrapal Khande (PW-7) deposed that on 17.6.2004, he took samples from Police Station Bilha to FSL, Raipur for chemical examination and delivered the same at FSL, Raipur on 17.6.2004 itself. In his cross-examination, he deposed that he received only 16 packets of samples without sealed condition. He further deposed that when he received the samples, the samples were not sealed and he only received 16 packets. 27. I have perused the evidence laid down by the prosecution. Sub-Inspector R.C. Trivedi (PW-8) and Sub-Inspector D.P. Singh (PW-9) deposed that they sent the samples of ganja for chemical examination to FSL, Raipur and report (Ex-P/32) was received from there, in which presence of ganja was found to be positive. 28. In a prosecution for the offence under Section 20 of the Act, 1985, it is the duty of the prosecution to establish the shadow of doubt that samples 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 samples in the Malkhana Moharrir a, Station House Officer had affixed his seal on 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 Moharrir remained intact till the sample packets were delivered at FSL for their chemic 1 analysis. 29. In the instant case, the samples were not prepared on the spot and looking to the evidence of Sub-Inspector D.P. Singh (PW-9), Head Constable Lakshmi Prasad (PW-10), Ex-P/30 and rojnamcha 342 (Ex-D/1), it appears that the samples were prepared on 12.6.2004, i.e. after 1½ months. 29. In the instant case, the samples were not prepared on the spot and looking to the evidence of Sub-Inspector D.P. Singh (PW-9), Head Constable Lakshmi Prasad (PW-10), Ex-P/30 and rojnamcha 342 (Ex-D/1), it appears that the samples were prepared on 12.6.2004, i.e. after 1½ months. Constable Chandrapal Khande (PW-7) specifically deposed that when he took the samples from Police Station, Bilha, the samples were not in sealed condition. 30. In State of Rajasthan vs. Bher Singh, (2009) 16 SCC 293 , the Hon'ble Supreme Court held that if the prosecution has failed to prove that the seal of the seized samples had remained intact till its examination in FSL, this being a mandatory requirement to establish the fact that seized goods was in fact a prohibited drug under the NDPS Act. 31. In the instant case, it is established that when Constable Chandrapal Khande (PW-7) took the samples to FSL for chemical examination and at that time samples were not in sealed condition. It is also established that samples were not prepared when the ganja was seized and it was prepared after 1½ months of the seizure of ganja. There is no evidence to explain the delay regarding preparation of the samples. The prosecution did not establish that the seized ganja was kept in safe custody. There is also no evidence to explain the custody of samples during this period and delay in submitting the samples at FSL. Therefore, the report of FSL (Ex-P/32) cannot form basis of conviction of the appellant under Section 20(b) of the Act, 1985. In view of the above, the impugned judgment deserves to be set aside. 32. In the result, the appeal is allowed. The conviction and sentence awarded to the appellant under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substance Act, 1985 are set aside. The appellant is acquitted from the charges framed against her. It is stated that the appellant is in jail. She be released forthwith, if not required in any other case. Appeal Allowed.