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2023 DIGILAW 604 (CHH)

Arun Kumar Jatav v. State of Chhattisgarh

2023-11-10

NARESH KUMAR CHANDRAVANSHI, RAMESH SINHA

body2023
JUDGMENT : Ramesh Sinha, J. 1. This criminal appeal under Section 374(2) of the CrPC is directed against the impugned judgment dated 27.12.2021 passed by the Special Judge (NDPS Act), Raipur in Special Case No.10/2018 by which the appellant has been convicted for offence under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter called as 'NDPS Act') and sentenced him undergo rigorous imprisonment for 12 years and fine of Rs.1,00,000/-, in default of payment of fine to further undergo rigorous imprisonment for 1 year. 2. Case of the prosecution, in brief, is that on a secret information received from the informant on 18.11.2017 to Assistant Sub Inspector Police Station, Arang that one Scoda Car registration No.HR 26 AQ 9765 bearing red colour upon the number plate of it written ‘MAHA SACHIV’ in which two unknown persons carrying Ganja inside the dickey and beneath the seats, are coming from Saraipali towards Arang and within one hour they will reach Arang. The said police official recorded the secret information panchnama vide Ex.P-16 and thereafter served notice under Section 160 CrPC to the witnesses Naval Kishor and Keshav Vaishnav vide Ex.P-22. Further, as per the case of the prosecution, the said police official conducted raid party and with the Government vehicle reached at Tiraha Crossing in front of Sri Ram Auto, Arang N.H. 53 and stopped one Scoda Car No.HR 26 AQ 9765 coming from Mahasamund, the driver of the said car after removing the key ran away and one person who was sitting back seat of the said car i.e. present appellant was informed and served a secret information vide Ex.P-2. Thereafter, after obtaining consent vide consent panchnama Ex.P-3, got searched by the said official with staff and witness vide search memo Ex.P-4. The investigating officer searched the Scoda Car and recovered 42 big and small wrapped polythene packet containing the substance Ganja vide recovery panchnama Ex.P-5 and thereafter prepared spot identification of the substance of Ganja vide identification panchnama Ex.P-6. Notice (Ex.P-7) was sent to weigher Mohd. Ismail alias Pappu to come on the spot with scales for weighing the Ganja found in the car, upon which weigher Mohd. Ismal came on the spot with a big electronic scale and physical verification of the scales was done vide Ex.P-8. Thereafter, weighing proceeding of Ganja recovered from the accused was done. Notice (Ex.P-7) was sent to weigher Mohd. Ismail alias Pappu to come on the spot with scales for weighing the Ganja found in the car, upon which weigher Mohd. Ismal came on the spot with a big electronic scale and physical verification of the scales was done vide Ex.P-8. Thereafter, weighing proceeding of Ganja recovered from the accused was done. Total wight of the Ganja was found to be 182 kg. Weighing panchnama (Ex.P-10) was prepared and the said substance Ganja and the vehicle used for transporting Ganja was seized from accused Arun Kumar Jatav as per property seizure memo Ex.P-11. Two packets each contains 50-50 grams Ganja total 8 packets samples were taken out, separated and sealed. Site plan of the incident site was prepared vide Ex.P-15 in front of the witnesses. 3. Further, as per the prosecution story, the investigating officer recorded the memorandum statement of accused Arun Kumar Jatav vide Ex.P-13 on the spot in front of the witnesses, accused Arun Kumar Jatav disclosed about bringing Ganja with co-accused Neeraj Chauhan from Odisha. The documents i.e. Driving License, PAN Card, Aadhar Card and Votor ID Car of co-accused Neeraj Chauhan were seized from accused Arun Kumar Jatav as per seizure memo (Ex.P-12) and thereafter accused Arun Kumar Jatav was arrested vide arrest memo Ex.P-14 and thereafter Tehreer (Ex.P-23) reducing in writing on the spot itself. After returning to the police station along with the seized Ganja, accused, staff, witnesses from the spot, accused Arun Kumar Jatav was detained in the lockup and the Ganja, vehicle and documents of accused Neeraj Chauhan obtained during the search were given to Head Constable No.1147 and the first information report was registered vide Ex.P-24 and thereafter intimated their senior official CSP Mana on 19.11.2017 vide Ex.P-21 and thereafter the seized Ganja was sent to the State Forensic Science Laboratory, Raipur. After completion of investigation, charge-sheet was filed against the accused person before the Special Judge under NDPS Act. The appellant abjured the guilt and entered into defence. 4. In order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 34 documents Exs.P-1 to P-34 in support of case of the prosecution. The appellant has neither examined any witness in his defence nor exhibited any document. 5. The appellant abjured the guilt and entered into defence. 4. In order to bring home the offence, the prosecution examined as many as 14 witnesses and exhibited 34 documents Exs.P-1 to P-34 in support of case of the prosecution. The appellant has neither examined any witness in his defence nor exhibited any document. 5. The trial Court upon appreciation of oral and documentary evidence available on record, by its judgment dated 27.12.2021, convicted the appellant for offence under Section 20(b)(ii)(C) of the NDPS Act and sentenced him as mentioned herein-above in opening paragraph of this judgment, against which, this criminal appeal has been preferred. 6. Mr.Yogesh Chandra Pandey, learned counsel for the appellant submits that the learned trial Court wrongly appreciated that the investigation has been done properly and mandatory provisions of Sections 42, 52, 55 and 57 of the NDPS Act has been complied with. Learned trial Court did not appreciate the evidence of Computer Operator Dilip Sahu (PW-2), who has categorically stated in para 5 of his evidence about the presence of the appellant between 9 A.M. to 10 A.M. at police station, whereas the investigating officer received mukhbeer suchna at about 11.15 A.M. Further, Santosh Kumar Yadav (PW-3) has also stated in his evidence that at about 11 A.M. he reached police station where he find presence of the present appellant at police station. Further, evidence of Pawan Sharma (PW-4) has not been appreciated where he stated that when he toed the vehicle, he did not saw the present appellant there and he saw the present appellant at about 11 A.M. in police station. Further, Gulab Chand Koushik (PW-6) has also not stated in his evidence that the above information of possession of contraband article received in between 9 to 10 A.M. and at that time the present appellant was present in the police station and he was crying. The learned trial Court did not appreciate the evidence of Nourang Lal (PW-8) who in para 6 of his cross-examination has stated that he has not mentioned the time of receipt of the goods in Malkhana register. After entering the seized article in his Malkhana register, counter signature has not been put by the Police Station-in-Charge or any other officer. It is correct to say that he has not put his own signature in Malkhana register. After entering the seized article in his Malkhana register, counter signature has not been put by the Police Station-in-Charge or any other officer. It is correct to say that he has not put his own signature in Malkhana register. The learned trial Court failed to appreciate that the prosecution examined total 14 witnesses, however, out of the same, witnesses namely Santosh Kumar Yadav (PW-3), Pawan Sharma (PW-4) and Mohd. Ismile (PW-7) were declared hostile, whereas witnesses namely Dilip Sahu (PW-2) (Computer Operator), Patwari Jauharlal Gendre (PW-5), are formal witnesses. Witnesses namely Gulab Chand Kaushik (PW-6), Nauranglal (PW-8), Jai Kumar Sahu (PW-9), Devendra Kumar Verma (PW-10), Rajkumar Kosle (PW-11), Pitamber Diwan (PW-12), and Bodhan Sahu (PW-14) are examined as official witnesses to prove the alleged procedural formalities. The entire conviction of the appellant is based upon the statements of Naval Kishore Sharma (PW-1), witness of proceedings of the alleged search and Balmukund Sahu (PW-13), investigating officer of the case. The learned trial Court failed to appreciate that the prosecution evidence is full of contradictions and lacks credibility since the prescribed procedure as mandated under the NDPS Act was not followed in its letter and spirit. 7. He contended that as far as compliance of Section 42 of the NDPS Act is concerned, the learned trial Court failed to appreciate that on recording of alleged information in writing regarding arrival of Ganja, it was obligatory on the part of the SHO of the concerned PS to send a copy of the same forthwith to his immediate superior officer. In the present case, no such compliance was done, therefore, due to non-compliance of Section 42(1) and (2) of the NDPS Act, conviction of the appellant is completely wrong and vitiates all the proceedings. The learned trial Court failed to appreciate that the entire action of seizure and sampling is wholly illegal. It was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. Further, there is a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. It was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act as the procedure prescribed therein was not followed in drawing the samples and seizing the alleged narcotic substance. Further, there is a serious doubt about the correctness of samples sent for analysis as to whether they were actually the samples of the seized contraband. He further contended that the learned trial Court failed to appreciate that the provisions of Section 52A(2), (3) and (4) of the NDPS Act provides for the procedure and manner of seizing, preparing inventory of the seized material, forwarding the seized material and getting inventor certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged in the NDPS Act. A bare perusal of the provisions contained in Section 52A(2), (3) and (4) of the NDPS Act reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub-section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. In the present case, it is evident from evidence of investigating officer Balmukund Sahu (PW-13) that the procedure as prescribed under Section 52A(2), (3) and (4) of the NDPS Act was not followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has been brought on record that the samples were drawn in presence of the Magistrate and the lists of samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in presence of the witnesses and/or Gazette Officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. The mere fact that the samples were drawn in presence of the witnesses and/or Gazette Officer is not sufficient compliance of the mandate of sub-section (2) of Section 52A of the NDPS Act. In the present case, it is an admitted position on record that the samples from the alleged seized substance were drawn in presence of the alleged witnesses and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn. The learned trial Court failed to appreciate that in absence of any material on record to establish that the samples of the seized contraband were drawn in presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. Hence, in absence of the same, conviction is vitiated and deserves to be set aside. He also contended that the learned trial Court has not considered that the seized material was not sampled and deposited in time by the investigation agency. It is a clear violation of Section 55 of the NDPS Act with regard to safe custody of the seized articles and the samples drawn for sending for chemical analysis to FSL. There are several discrepancies in the prosecution case which makes the custody of the seized articles and sampling extremely doubtful. There is neither any proof that the seal on the samples was deposited in the Malkhana along with the samples nor that the seal was separately sent to FSL for comparison. Even in the alleged report of FSL, it was not mentioned that the seal was compared. Moreover, neither Malkhana register was produced for proof of deposit of seals and samples nor the seal was produced before the Court. As such, the appeal deserves to be allowed and the judgment passed by the learned trial Court deserve to be set aside. Even in the alleged report of FSL, it was not mentioned that the seal was compared. Moreover, neither Malkhana register was produced for proof of deposit of seals and samples nor the seal was produced before the Court. As such, the appeal deserves to be allowed and the judgment passed by the learned trial Court deserve to be set aside. He relied upon the judgments of the Supreme Court in the matters of Union of India v. Mohanlal and another reported in (2016) 3 SCC 379 and Yusuf @ Asif v. State (Criminal Appeal No.3191/2023), decided on 13.10.2023). 8. On the other hand, Mr.Avinash Singh, learned Panel Lawyer appearing for the respondent/State, would support the impugned judgment and submit that the prosecution has proved its case beyond reasonable doubt and the learned trial Court after considering the material available on record and evidence adduced by the prosecution has convicted the appellant for offence under Section 20(b)(ii)(C) of the NDPS Act, in which no interference is called for. 9. We have heard the learned appearing for the parties, considered their rival submissions made herein-above and also went through the records with utmost circumspection. 10. Computer Operator Dilip Sahu (PW-2) in para 5 of his evidence has stated about the presence of the appellant between 9 A.M. to 10 A.M. at police station, whereas the investigating officer received mukhbeer suchna at about 11.15 A.M. Santosh Kumar Yadav (PW-3) has also stated in his evidence that at about 11 A.M. he reached police station where he find presence of the present appellant at police station. Gulab Chand Koushik (PW-6) has also not stated in his evidence that the above information of possession of contraband article received in between 9 to 10 A.M. and at that time the present appellant was present in the police station and he was crying. 11. Investigating officer Balmukund Sahu (PW-13) has stated in para 28 of his cross-examination that he had ordered a total of 5 bags at the incident site, out of which 4 were big and 1 small, colour of big begs was white and blue and the small bag was white. The above 4 begs were of plastic. When he had sent a constable to call the weighter at the spot, at the same time, he had asked the same constable to bring the bags. The above 4 begs were of plastic. When he had sent a constable to call the weighter at the spot, at the same time, he had asked the same constable to bring the bags. No other person had come to the scene of incident along with weigher. In para 31 of his cross-examination, he has stated that the seized Skolda car was brought from the place of incident to the police station by towing. He himself stated that the key of the car was taken away by accused Neeraj Chauhan. Today he do not remember who was sitting on the driver’s seat of the Skoda car at the time of inspection. It is incorrect that there is no mention of bringing the car after towing in any document. He himself stated that this is mentioned in the return Rojnamcha Sanha. He has stated in para 35 of his cross-examination that he did not take separate samples from all 42 packets seized in the case. He himself stated that after opening all packets and mixing them, samples were taken. It is true that he did not weigh all 42 packets separately. It is also correct that he did not take separate samples from all 42 packets mentioned above and identify the Ganja by burning or smelling them. 12. In order to test the above submissions, it would be relevant to refer to the provisions of Section 52A(2), (3) and (4) of the NDPS Act. The aforesaid provisions provide for the procedure and manner of seizing, preparing the inventory of the seized material, forwarding the seized material and getting inventory certified by the Magistrate concerned. It is further provided that the inventory or the photographs of the seized substance and any list of the samples in connection thereof on being certified by the Magistrate shall be recognized as the primary evidence in connection with the offences alleged under the NDPS Act. 13. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:- "52A. Disposal of seized narcotic drugs and psychotropic substances.- (1) ....... 13. For the sake of convenience, relevant sub-sections of Section 52A of the NDPS Act are reproduced hereinbelow:- "52A. Disposal of seized narcotic drugs and psychotropic substances.- (1) ....... (2) Where any [narcotic drugs, psychotropic substances, controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in subsection (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or (c) allowing to draw representative samples of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. (3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application. (4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence." 14. A simple reading of the aforesaid provisions, as also stated earlier, reveals that when any contraband/narcotic substance is seized and forwarded to the police or to the officer so mentioned under Section 53, the officer so referred to in sub section (1) shall prepare its inventory with details and the description of the seized substance like quality, quantity, mode of packing, numbering and identifying marks and then make an application to any Magistrate for the purposes of certifying its correctness and for allowing to draw representative samples of such substances in the presence of the Magistrate and to certify the correctness of the list of samples so drawn. 15. Notwithstanding the defence set up from the side of the respondent in the instant case, no evidence has been brought on record to the effect that the procedure prescribed under subsections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate. No evidence has also been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. The mere fact that the samples were drawn in the presence of a gazetted officer is not sufficient compliance of the mandate of subsection (2) of Section 52A of the NDPS Act. 16. It is an admitted position on record that the samples from the seized substance were drawn by the police in the presence of the Gazetted Officer and not in the presence of the Magistrate. There is no material on record to prove that the Magistrate had certified the inventory of the substance seized or of the list of samples so drawn. 17. In the matter of Mohanlal (supra), the Supreme Court while dealing with Section 52A of the NDPS Act clearly laid down that it is manifest from the said provision that upon seizure of the contraband, it has to be forwarded either to the officer-in-charge of the nearest police station or to the officer empowered under Section 53 who is obliged to prepare an inventory of the seized contraband and then to make an application to the Magistrate for the purposes of getting its correctness certified. It has been further laid down that the samples drawn in the presence of the Magistrate and the list thereof on being certified alone would constitute primary evidence for the purposes of the trial. 18. Recently, the Supreme Court in the matter of Yusuf @ Asif (supra) has held as under:- “16. In the absence of any material on record to establish that the samples of the seized contraband were drawn in the presence of the Magistrate and that the inventory of the seized contraband was duly certified by the Magistrate, it is apparent that the said seized contraband and the samples drawn therefrom would not be a valid piece of primary evidence in the trial. Once there is no primary evidence available, the trial as a whole stands vitiated. 17. Accordingly, we are of the opinion that the failure of the concerned authorities to lead primary evidence vitiates the conviction and as such in our opinion, the conviction of the appellant deserves to be set aside. The impugned judgment and order of the High Court as well as the trial court convicting the appellant and sentencing him to rigorous imprisonment of 10 years with fine of Rs.1 lakh and in default of payment of fine to undergo further imprisonment of one year is hereby set aside.” 19. Considering the submissions advanced by the learned counsel for the parties, material available on record and also considering the fact that no evidence has been brought on record to the effect that the procedure prescribed under sub-sections (2), (3) and (4) of Section 52A of the NDPS Act was followed while making the seizure and drawing sample such as preparing the inventory and getting it certified by the Magistrate, no evidence has been brought on record that the samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate and the law laid down by the Supreme Court in Mohanlal (supra) and Yusuf @ Asif (supra), we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the trial Court has also committed grave legal error in convicting and sentencing the appellant for offence under Section 20(b)(ii)(C) of the NDPS Act. As such, the judgment impugned deserves to be set aside. 20. As such, the judgment impugned deserves to be set aside. 20. For the foregoing reasons, criminal appeal filed on behalf of appellant-Arun Kumar Jatav is allowed and the impugned judgment dated 27.12.2021 passed by the Special Judge (NDPS Act), Raipur in Special Criminal Case No.10/18 is set-aside. The appellant is acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act. He is in jail. He shall be set at liberty forthwith if no longer required in any other criminal case. 21. The appellant is directed to file personal bond and two sureties in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. 22. Let a copy of this judgment and the original record be transmitted to the trial court concerned forthwith for necessary information and compliance.