\ HIGH COURT OF CHHATTISGARH, BILASPUR (Single Bench: Hon’ble Shri Sunil Kumar Sinha, J) Q Criminal Appeal'No. 294 of 1992 APPELLANTS 1 Rameshwar, aged about 40 years, son of Budhelal Bhardwaj, (Satnami), Resident of Village Bhandar, Police Station Palari, at present Kalinagar, Pandri Police Station Civil Line, Raipur 2 Bisahuram son of Bhauram Banjare, aged 35 years, resident of Urla Police Station Tharsinva, District Raipur Versus State of M.P. (Now State of Chhattisgarh RESPONDENT . (Appeal under Section 374 (2) of The Code of Criminal Procedure, / 1973) Appearance: Mrs. Renu Kochar & Mr. Gurudev I. Sharan, Advocates for the appellants. Mr. S.K. Mishra, Panel Lawyerfor the State. JUDGMENT (27.10.2010) Su‘nii Kumar Sinha, ‘J. (1) Being aggrieved with the judgment dated g6.2.1992 passed in Special Criminal Case No. 33/91 by the Additional Sessions Judge and Special Judge under Narcotic Drugs and Psychotropic Substances Act, 1985, Baloda Bazar, District Raipur, the appellants have filed this appeal. 3(2) ‘Byrthe impugned judgment, the appellants have been convicted u/s 20‘ (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the ‘N.D.P.S. Act’) and sentenced to undergo i i \ 2 Criminal Appeal No’ 294 of 1992‘ R.l. for 2 years and to pay fine of Rs.3,000/—, in default of payment of fine to further undergo R.l. for 1 year. (3) The facts, briefly stated, are as under:- On 27.7.90 at about 5.15 a.m., A.S.I., B.P. Agnihotri (PW-3) was on patrolling duty. He found the appellants on a motorcycle in village Sandi (Mudpar). Appellant No.1- Rameshwar was driving the motorcycle and appellant No.2- Bisahuram was the pillion rider. He stopped the motorcycle and found that appellant- Bisahuram ‘ s. was holding a bag containing ganja. In further investigation, ganja was also found in the dickey of the motorcycle belonging to appellant No.1. Motorcycle, its papers and ganja in quantity of 2.500 Kgs 'were seized from the possession of appellant No.1 under seizure memo Ex.-P/2. Likewise, ganja in quantity of 3.500 Kgs were seized from the possession of appellant No.2.under seizure memo Ex.—P/1. A dehatinalishi (Ex.-P/4) was registered by the A.S.I. (PW-3). Later on, a First information Report (Ex.-P/5) was also registered. The seized articles were sent forchemical examination to Forensic Science Laboratory (F.S.L.), Sagar vide memo dated 7.8.90 (Ex.—P/6), from where, a report dated 21.8.90 (Ex.-P/7) was received. According to the F.S.L. report, the materials sent for examination in two bags were ganja. The search and seizure were made before two panch-witnesses namely Devendra Kumar (PW-1) and Agamram (PWn4). Both the panch- witnesses turned hostile and they did not support the case of the prosecution. The learned Special Judge relied on the sole testimony of investigating Officer, A.S.l. B.P. Agnihotri (PW-3), and convicted and sentenced the appellants as aforementioned. (4) Learned counsel apnearing on behalf of the appellants argued that there was no compliance of Section 50 of the N‘D.P.S. Act; sole testimony of Investigatin Officer Was not reliable; there is no evidence g that where the alleged contraband was weighed; and there is also no l 3 Criminal Appeal No. 294 of 1992 evidence that where the contraband was kept from 27.7.90 to 7.8.90 as no evidence of Malkhana or any other agency has been produced. (5) On the other hand, Iearned counsel appearing on behalf Of the State opposed these arguments and supported the judgment passed by the Special Judge. (6) i have heard the Iearned counsei for the parties at length and have also perused the records of the special case. ‘5 (7) j So far as non—compliance of Section 50 of the N.D.P.S. Act is con‘cern‘ed, it waS‘not required in this matter, because, it was not a case of personal search. ln Madan Lal and another—Vs- State of H.P. (2003) 7 SCC, 465, the Supreme Court held that 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, vehicles or articles, therefore, it is clear that when a search of article like a bag was to be made, it was not necessary for the Police Officer to comply with the provisions of Section 50 and in such search and seizure, the trial would not be vitiated for non- compliance of Section 50 or for want of proper and effective compliance of Section 5O of the N.D.P.S. Act. Therefore, the above argument advanced by the counsel for the appellants cannot be accepted. G (8) It is well settled that if the evidence of the Investigating Officer is found to be trustworthy and dependable and nothing material has been vbrought to discredit his evidence in the cross examination or his evidence is otherwise not unreliable, the Criminal Court would be justified in convicting the accused on the sole testimony of the Investigating Officer T¢\ 4 Criminal Appeal N0. 294 of 1992 (Please see — Lopchand Naruii Jat and another—Vs- State of Gujarat @004) 7 SCC 566). Normally in cases where the evidence led by the prosecution as to a fact depends solely on the police witnesses, the € courts seek corroboration as a matter of caution and not as a matter of a rule. Thus, it is only a rule of prudence, which makes the court to seek corroboration from an independent source, in such cases while assessing the evidence of the police. But in. cases where the court is satisfied that the evidence of the police can be independently relied upon then in such casfes, there is no prohibition in law that the same cannot be accepted without an independent corroboration (Please see — Praveen Kumar - V34 State of Karnatalgd2003) 12 SCC 199).: x (9)‘ In the present case, the Investigating Officer — B.P. Agnihotri (PW- 3) deposed that when he checked the bag and motorcycle, he found that the bag of appellant No.2 was full of ganja and ganja was also in the dickey of the motorcycle of appellant No.1. He prepared two seizure memos i.e. Ex.-P/1 & P/2. We find that in both the seizure memos, the quantity of ganja has been mentioned as 3.500 Kgs & 2.500 Kgs. HoWever, there is no iota of evidence that onwhat basis the quantity (weight) of ganja has been mentioned in the seizure’tmemos. There is no evidence regarding weighing of the seized articles. The investigating Officer has not given any explanation in this regard. Besides the above, there is also no evidence to show that where the contraband was kept from 27.7.90 to 7.8.90. ~No\document relating to keeping the contraband in Malkhana has been produced by the prosecution. Even there is no oral evidence of the Investigating Officer explaining as to where the seized contraband was kept in between this period. In State of Rajasthan —Vs- 0 \kkkk.\ i 5 Criminal Appeal No. 294 of 1992 Gurmail Singh, AIR 2005 SC 1578, the seized articles were said to have been kept in the Malkhana on 20‘“ May, 1995, however, the Ma/khana register was not produced to prove that it was so kept in the Malkhana till a it was taken over by PW—6 on June 5, 1995. It was further found that no sample of the seal was sent along with the sampie of Excise Laboratory for comparing with the seal appearing on the sampie bottles. The Supreme Court held that the link evidence was missing in the matter and acquittal of the accused was proper. in case on hand, the seizure was l made‘dn 27.7.90 and the entire materials were taken to F.S.L. Sagar on 7.8.90 and no evidence is there to show that where the above materials (contraband) were kept in this period. axf i: (10) In The State of Rajasthan —Vs- Daulat Ram, AIR 1980 SC 1314, 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 G or tampered with during the period in question, a fact which had to be proved affirmatively by the prosecution." (11) In the above facts and circumstances of the case, when no explanation has been given by the‘lnvestigating Officer either about Weighing of the alleged contraband or about keeping it in between the said period, l do not find it safe to rely on the sole testimony of the Investigating Officer to convict the appellants u/s 20 (b) (i) of the N.D.P.S. ® 6 Criminal Appeal No. 294 of 1992 Act. Therefore, the conviction based on the sole testimony of the Investigating Officer cannot be sustained and the same has to be set- aside. 9 (12) In the result, the appeal is allowed. The conviction and sentence awarded to the appellants u/s 2O (b) (i) of the N.D.P.S. Act are set-aside. The appeiiants are acquitted of the charges framed against them. It is stated that the appellants are on bail. Their bail bonds are cancelled and sureties stand discharged. Sunil Kumar Sinha Sdl- vatti iiv