s.£^ss!:^. ^f-" "\ tlf'^^, ^y/y? "^^^^^^ f^^ HIGH COURT OF CHHAmSGARH, BILASPUR SINGLE BENCH : HON»BLESHRI MANINDRA. MOHAN SHRIVASTAVA^J. Criminal Appeal No. 254 of 2007 APPELLANT Amol Ratre Versus RESPONDENT State of Chhattisgarh And Criminal Appeal No. 310 of 2007 APPELLANT Mukul Gupta Versus A RESPONDENT State of Chhattisgarh ^w J U D G M?E N T \ ^ POST ON y OCTOBER, 20U v v Sd/- Manindra Mohan Shrivastava Judge 1. ^&Kj'J '-.y •n. HIGH COURT OF CHHATTISGARH : BILASPUR SINGLE BENCH : HON*BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. ^> Criminal Appeal No. 254 of 2007 ^>j»ELLANT RESPONDENT ^ Amol Ratre Versus State of Chhatdsgarh And » ':!' Criminal AppealNo. 310 of 2007 APPELLANT Mukul Gupta RESPONDENT Versus State of Chhattisgarh Present: Shri B. P. Sharma, counsel for the appellant in Cr.A. No.254/07. Shri Ajay Ayachi, counsel for the appellant in Cr.A. No.310/07. Shri Satish Gupta, Govt. advocate for the State/respondent. s^-' JU D G M BlllT (Delivered on ? OctoBer^2b 10) 1. The appellants in the aforesaid two appeals haye filed their respective appeals against the judgment of conviction and order of sentence dated 23rd \-.. \ ' .. march 2007 passed by Special Judge (NDPS) and Additional Sessions Judge, Bilaspur in Special Case No.31/06 by which each of the appellants have been found guilty and convicted for commissiori. of offence under Section 20 (b) (ii) (C) ofthe Narcodc Drugs and Psychotropic Substance Act, ^- - 1985 (hereinafter referred to as uthe N.D.P.S Act") and have been sentenced ^^-.^^ ^) ^NNN^ to undergo R.I. for 10 years with a fine of Rs.l lac and in default of payment offlne, additional R.I. for 1 year. ^ 2. The case of the prosecution is that the Station Ho^se Officer- Inspector S. L Chouhan of Police Station - Kota received information on 15.9.2006 that three persons are transporting ganja kept in white ambassador car No. M.P. 18/6262 and going towards Shahdol. Upon receipt of the information, a panchnama was prepared vide Ex.P-2 and. information regarding receipt of ^such information was sent vide Ex.P-3 to senior police officer namely S.D.O (P), Kota and also informed at Jorest barrifer, Kota as also to senior ^••" • Superintendent of Police, Bilaspur on wireless and then investigating officer proceeded to the spot along with the police team. Upon enquiry at Achanakmar barrier, it was informed that the said car has been taken towards Lamni by opening the barrier. Thereafter, the suspected persons and the vehicle were chased by the S.H.O. along wifh his team. On way, the said ambassador car was located and the driver of vehicle having seen pplice vehicle ran towards forest road of Lamni- Khongsara and met with an accident on a culvert near barrier. Three suspected persons came out with 3 bags in their hand and went towards bushes and concealed the three bags. Two bags of ganja was recovered and a Panchnama in Ex.P-12 was prepared. The three suspected persons being the accused of these criminal appeals were held- up and enquired in presence of witnesses and forest officials working at Lamni barrier. They disclosed their names as Lal Bahadur Yadav, mukul Gupta 8& Amol Ratre. Notice under Section 50 of the NDPS Act was given and their consent was obtained for their personal search vide Exs. P-5, P-6 85 P-7. Thereafter, the investigating officer S.L. .^. Chouhan (P.W.5) and the accompanying staff and witnesses offered themselves for being searched by the accused persons and search memo in w •• •V-' -^ .^ (y ^•'"., Exs. P-8, P-9 85 P-10 were prepared. From the possession of accused Lalbahadur Yadav, 15 kg. of ganja kept in a jute bag was found; from possession of accused Mukul Gupta 10 kg of ganja kept in a jute bag was k found; from possession of accused Amol Ratre, 10 kg of ganja kept in a plastic bag was found whereupon, recoyery memo in Exs. P-13, P-14 & P- 15 were prepared. From each of the bags, small quantity was taken and was identified as ganja by smell and physical verification and a panchaama ^to this effect was prepared in Ex.P-16. In all three bags, a total quantity of 71 k.g. ganja was found upon weighment and a panchnama in Ex.P-1 was prepared. Samples were drawn from each of the bags recovered from the accused and kept in the car and 4 samples, each of 250 grams were prepared and sealed vide seizure memp'of Exs. P-19, P-20 8& P-21. On a notice in Ex.P-25 given to the accused ^ersons, no licence could be '' "•. "• . \ " ' produced. As the investigating officer found th^it prifnafade commission of offence under Section 20 (b) (ii) (C) of the NDPS^Act is made out, accused persons were arrested vide memo c^ arrest Exs. P -22, P-23 & P-24. ^, ^ ' • • ' ', 3. The investigating offlcer returned to police station along with the accused persons, seized ganja 8& witnesses, and FIR iriCr.No. 217/2000 was registered in Ex.P-30 and an information to that effect was recorded m rojnamcha sanha No. 605 maintaineA in the police station. Seized ganja .* \ along with samples was handed-over to Head, Constable-Moharrir of Malkhana in the police stadon and entiy Ho this effect was made in rojnamcha sanha. A copy of the first inforniation repdrt.was sent to Special <\''\ • . --, Judge and a report of the entire proceedings d£seizui^ arid arrest was sent to SDO (P) Kota vide Ex.P-32. Map ofthe spot wag also prepared vide Ex.P- 26. Sealed samples were sent along with constable B.B. Tiwari (P.W.4) to ^ State Forensic Science Laboratory for analxsis. In the report Ex.P-29 of the FSL, the seal samples were found containmg'ganja. 4. After completing usual investigation, charge sheet was submitted. The leamed Special Court on the basis of material and police report, framed \ '. •. • charges against the appellant alleging commission ofv'offense under Section 2? (b) (ii) (C) of the N.D.P.S. Act. The appellants abjured their guilt and pleaded innocence. Tln order to prove the guilt of the appellants, fhe prosecution examined Manish Agrawal (P.W.l), Harishankar Pandey (P.W.2), Guard -Manoj Rajak (P.W.3), Constable- B.B. Tiwari (P.W.4), Inspector 85 Investigating Officer S.L. Chouhan (P.W.5), Santosh Kumar (P.W.6), Head Constable. In the trial, the appellants did not lead and defence witnesses. The leamed trial Court held the appellants guilty of commission of offence under Section 20 (b) (ii) (C) of the NDPS Act and sehtenced them, as mendoned in paragraph 1 of this judgment. ) 6. Learned counsel appearing for appellant- Amol Ratre argued that the story of the prosecution as narrated by the investigating officer (P.W.5) in his testimony and the riianner in which the contraband is alleged to have been recovered is highly improbable and apparently a case of false implication. He further argues that huge quandly of ganja which is alleged to have been <L seized from the appellants was neither marked as article nor produced before the Court, nor is there any explanadon for such non-production. He also argues that the independent panch witnesses have not supported the case of the prosecution and they have tumed hostile, therefore, the conviction cannot be sustained in law. Learned counsel for the appellant further submitted that there are several discrepancies in the endre case of fhe prosecution which created grave doubt with regard to seizure of ganja ':%: ^. ..^ ''^..!"""",^ ^ from the appellants. It is submitted that the number of car was not disclosed by Manoj Rajak (P.W.3). Constable B.B. Tiwari (P.W.4) has stated that the ganja was kept in possession for a long period of four days before it was submitted for examination in the FSL and, therefore, there is every possibility of tampering with the samples and, therefore, the prosecudon has failed to prove that samples were kept in safe custody till it reached -^> FSL. It is also argued that the prosecution has failed to prove that the yehicle was owned by appellant Amol Ratre. 7. Learned counsel appearing for appellant Mukul Gupta, argues that as the prosecution has failed to prove seizure of contraband from appellant Mukul, judgment of conviction and order of sentence imposed upon the appellant is liable to be set aside, as the seizure witnesses have not supported the case of the prosecution and turned hostile. It is contended that the appellant :has been falsely implicated as the prosecution has not only failed to prove the seizure of contraband from the appellant but has also failed to prove that any seizure of contraband was made at the spot indicated in the seizure memorandum. It is submitted that the fact that no dehati nalishi WSLS prepared at the spot, the entire proceedings are concocted and various documents of giving notice under Section 50, obtaining consent and all other documents of various proceedings have been prepared only in the police station and on that basis, the appellants have been falsely implicated. It tS further argued that the testimony of Investigating Officer (P.W.5) suffers from serious contradiction and is uncorroborated. Further submission is that from the evidence of Head Constable Santosh Kumar (P.W.6) Moharrir Malkhana^ it is established that the samples were never taken-out of the Malkhana nor sent to FSL for chemical examination and therefore the link evidence is completely missing ^ •i:6:^'. • 4-. 8. and it cannot be said that the samples sent fo RSL in respect of which report Ex.P-29 was received related to those samples which was drawn from the ganja alleged to be seized from the appellant. Learned counsel for *:'-. the appellants further argued that there is nd evidence to prove that samples were taken in the presence of any Magistrate and therefore there is violation of mandatory provision contained in Section 50 of the NDPS Act. It _/ is was then contended that full and proper report as mandatorily required ^under Section 57 of the act was not seri^tQ the higher police official. Learned counsel for the appellants, in s^ppbrt of their submissions rely v upon thejudgments in the cases of Laxmiprasad Vs. State ofM.P./C.G.1, Munna Nai Vs. The State2. Gurbax Sineh Vs.'State of Haryana.3, Jitendra fis another Vs. State of M.P.4, Krishaltt Mohar Sineh Dugal Vs. State of Goa.5. > On the other hand, learned counsel for the State supported the impugned judgment of conviction and order of sentence and argued that even though tne two panch witnesses Manish Agrawal (P.W.l) 85 Harishankar Pandey (P.W.2) have not supported the case of the prosecution and they have not proved seizure from the appellant, the trustworthy, reliable and unimpeachable evidence of investigating officer S.L. Chouhan (P.W.5) proves that the seizure made by the. seizing authority was genuine and cannot be doubted. It is also submitted that from the evidence of investigating officer S.L. Chouhan (P.W.5), it is proved that the appellants were found in possession of huge qu^tity of ganja which was seized from their possession at the spot. It is also submitted that as the seizure was^ ' 2010 (l)Crimes 752 21997 CRI. L. J. 4553 3AIR2001SC1002 4 (2004) 10 SCC 562 5 (1999)88cc 552 t.. •^;>- n made from a vehicle and also from the appellants who were intercepted on a public road, provision of Section 42 (2) are not attracted. Learned State counsel further argued that from the evidence of Investigating Officer S.L. Chouhan (P.W.5) it is proved beyond all doubt that at the spot where the accused peysons were caught red-handed with huge quantity of ganja, mandatory provision relating to search contained in Section 50 were duly complied with. It is further submitted that the Investigadng Officer has proved that the samples which were drawn from the bags containing ganja, which were seized from the appellants, were safely taken to the police station and deposited in Malkhana as proved by the Investigating Officer in his evidence which is corroborated from the evidence of Head Constable Santosh Kumar (P.W.6), In charge Moharrir Malkhana, who has stated that seized ganja in sealed packets were handed over for safe custody in Malkahana and has proved the acknowledgment Ex.P-13 and the entries made in Malkhana register Ex.P-34. Further submission of learned State counsel is that from the evidence of the investigating officer S.L. Chouhan (P.W.5) and Constable B. B.Tiwari (P.W.4), it is proved that the sealed samples were handed-over to P.W.4 for being taken in safe custody, who deposited the saine in the FSL and acknowledgment in Ex.P-28 was islsued by the FSL. He further submits that from the evidence led by the prosecution, compliance of Sections 50, 52 as well as Section 55 8& 57 of the NDPS Act has been proved. He further submits that even though in th^ present case, provision of Section 42 (2) are not attracted, yet the prGsecutiQn has proved that as soon as information regarding transportation of ganja from informant was received in the police station, the superior officer riamely SDO (P) was immediately informed before proceeding towardsscene of occurrence. Learned counsel for the State, in support of his submission, placed reliance on the n. ^,^^":'\,.-; :"^-... .,. .^••:" judgments of Supreme Court in the c^ses of P.P. Fathima Vs. State of Kerala6. State. NCT of Delhi Vs. Malvinder Sineh7. Gurbax Singh Vs. State of Haryana8 & Aslambhai Ibrahimbhai Memon and another Vs. The State of Guiarat9. 10. I have considered the rival submissions made by learned counsel for the parties and perused the records. 11. In order to prove its case, the prosecution has examined Inspector S.L. Chouahan, the investigating officer as P.W.5. He has deposed in his testimony that on 15.9.2006, an information at 14:22 hrs. was received that three persons are illegally transporting ^anja which is kept for sale in a white ambassador car and information so received was recorded in panchama Ex.P-2. Thereafter, information as required under Section 42 (2) of the NDPS At was sent to SDO (P), Kota vide Ex.P-3 and then he proceeded to place of occurrence along with his staff and witnesses. He has further deposed that information so received was forwarded at various barrier of Kota that a white ambassador car is approaching towards Lamni and the same be stopped. An information to Special Superintendent of Police, Bilaspur was also sent regarding fransportation of ganja in white <-; ambassador car. When the investigating officer (P.W.5) along with his staff and witnesses reached Kota barrier, twa^ informed af the barrier that the white ambassador car has escap^d from the barrier and has been taken towards Lamni barrier. When the investigating officer along with his team proceeded on fhe road, said car was found coming from opposite direction •^^ and the vehicle was then diverted to Khdngsara forest road and as the same was being driven with a high speed to escape, it lost control and dashed 6 (2003)88cc 726 72007AIRSCW4301 8AIR2001SC1002 91990CRI.L.J.1787 T~~ '^\ 3 -\'?^>. '^ g ''-•'SS^ 1 :^ ...9 against a culyert. It is further deposed fhat at the spot, the accused persons came out of the car with bags in their hand and rushed towards bushes to conceal bags, they were chased and caught at the spot. From the car, two bags were recovered and from each.of the accused persons, one ! bag was recovered. He also deposed that when the accused persons were intercepted, a notice under Section 50 of the NDPS Act in Ex.P-4 was given to the three accused persons informing that the police has received information regarding they being possessed of ganja and are therefore required to be searched and they may get them searched by a Magistrate or gazetted officer. It has been further deposed that the accused Lalbahadur, Mukul 8s Amol Ratre gave their consent for being searched by the Investigating Officer (P.W.5) vide, Exs. P-5, P-6 8& P-7 respectively, Thereafter, P.W.5 gave his ownsearch.vide Ex.P-8. He also deposed that accompanying staff as well as the witnesses also gave their search vide \ ' Ex.P-9 and P-10 respectively. The accused persons were bodily searched, but nothing was recovered from their possession and ^the panchnama to that effect was prepared vide Ex.P-11. He furfher deposes that from the car, two bags suspected to contain ganja were recovered vide Ex.P-12. The investigating officer has then deposed that recovery of three plastic bags was made from each of the accused parsons. From Amol Ratre, a plastic bag containing 10-12 kg. ganja, from JLaf&ahadur, ajute bag containing 15- 16 kg ganja and from Mukul, ajute bag CQntaining approximately 10 kg of ganja was recovered and recovery panchnama in E;x.P-13, 14 & 15 :-A- : •. • -'-;; respectively was prepared. <i 12. The investigating officer has further deposed in his cross-^xamination that from each of the bags, small qua&tity was taken out and by burning and smelling and physical identification, it was identifie^l as ganja and a 10 ^ %^^y ^^^^ panchnama to that effect was prepared in Ex.P-16. Thereafter, physical verification of weigh balance was recorded in panchnama Ex.P-17. The quantity of contraband kept in various bags were weighed and in all 71 kg. of ganja was found and panchnama of weighment was prepared vide Ex.P- 1. The samples were then drawn, each being of 250 grams and were sealed. Memorandum of seizure of samples of 250 grams ganja from each of the bags, recovered from the vehicle, Lal bahadur, Mukul 85 Amol was then ^prepared vide Exs.P-18, 19, 20 & 21 respectively. Notice under Section 91 of the NDPS Act was given to the accused persons to disclose any authority t.. or licence for possessing such huge quantity of ganja and the accused vide Ex.P -25 stated that they are not possessed of any authority or licence. The three accused persons were arrested vide memorandum of arrest Ex.P-22, 23 8s 24. 13. In his examination in chief, the investigating officer has also deposed that after completing the proceedings of search, recovery, seizure, weighment drawing and sealing of samples, he returned from scene of occurrence to the police station and registered FIR under Crime No.217/06 vide Ex. P-30 and then the entire seized quantity of ganja along with samples was given in the custody of Head Constable/Mohamr of Malkhana for safe custody which was received by giving an acknowledgment Ex.P-33. Vide Ex.P-31, copy of first information report was fonvarded to Special Judge, Bilaspur and then report of search, seizure and the proceedings were sent to SDO (P), Kota vide Ex.P-32. Map of the spot was prepared on 15.9.1996 vide Ex.P-26. 14. The investigating officer has been subjected to detailed and lengthy cross- examination and in the cross-examinatiop he has stated that when.the three accused persons were apprehended, the narcotic was not seized from ^y- ""'^ 11 ^^^ their possession but they had taken out ganja from the bushes which were seized. He also deposed that the accused persons were apprehended about l/2 k.m. away from (he place where the car met with an accident. 15. Submission of learned counsel for the appellants has been that as in the present case, the independent panch witnesses namely Manish Agrawal (P.W.l) Harishankar Pandey (P.W.2) have not supported the seizure and thaf all other proceedings right from stage of search till arrest of the accused persons has not been supported by any of the witnesses of the prosecution, the entire case ofthe prosecution has become highly doubtful. 16. The discrepancies which have been highlighted by learned counsel for the appellants are that the 1.0. (P.W.5) has deposed in his cross-examination that when the accused persons were apprehended and when ganja was recovered from the bushes, which was taken out by them, no memorandum was prepared. Further discrepancy pointed out is that there is serious contradiction as to whether ganja from the car was seized before search, consent and seizure from the accused. It has also been highlighted that in the cross-examination it has been stated that the three persons were apprehended by witnesses and not by the police. Serious doubt have been raised on the proceedings of seizure as the memorandum of seizure Exs.P- 18, P-19, P-20 & P-21 contained the crime number of the case which according to learned counsel for the appellants raises serious doubt and in ^. ^ fact goes to show that each and eveiy document was prepared in the police station, because FIR was registered after cdming back to police station and there was no occasion to mention crime number at the time when the seizure was made. Another discrepancy highlighted is that no dehati nalishi was prepared at the spot. "^ ^..-L.L^^-vT1 .'I :•-?' \;.,. v.;,'-;"'..y 12 17. It was strongly urged by learned counsel for the appellant that the investigating officer (P.W.5) had deposed that the ganja was recovered at » the instance ofthe accused persons without preparing any memorandum of ^ recovery, which makes the recovery itself doubtful. The decision in the case of Krishna Mohar (supra) has been relied upon. That was a case where the Court found that the police was already informed about the place where fhe contraband was kept. In that background, it was held that it is difficult to hold that the contraband was concealed and found out only on the basis of disclosure statement made by the accused persons therein. The investig^ting offlcer in his testimony has made self contradictory statements. In his examination-in-chief, he stated that three unknown persons concealed the bags in their hand, in the bushes and then proceeded towards LaiQani barrier and they were chased and caught in the presence of forest guard and witnesses. This clearly \^ shows that if this statement is to be believed il would mean that the investigating officer had seen the accused persons concealing the' bags in the bushes. However, in the later part of his examination, he states that the bags were recovered from the accused and baramdagi panchnama in Ex.P- 13, P-14& P-15 was prepared in respect ofAmol Rafre, Lal Bahadur 8s Mukul. It has not been stated as to how and in what manner the bags which were concealed in the bushes were recovered. If the version of investigating offlcer is to be believed, the place of concealment was known because he had seen the accused persons coheealing those bags in the s .' ' . bushes. But in paragraph 19 of his cross-exartiination^lie has stated that when the three accused persons were caught, no ganja was recovered. In X. ~ • •. the next breath, he states of his own that upon enquiry, the accused persons had produced the same after taking out those bags from bushes. The baramdagi panchnama Ex.P-13, 14 8& 15 do not record that bags ':*<:. ^'^^':.^^^ f^^"^-l 13 ^^ •. -^. alleged to contain ganja were recovere^after accused taking them out from a <..;•- __ ' \ _, • . ..' . bushes. The testimony ofthe Investigatirig'Officer in this regard therefore is ^ ^' '•• "• not at all truistworthy and does not inspire confidence as to the manner in which the recovery was made. If the polic^ had ^lready seen the accused •^;\-./. • ' '"' • " ' . '. persons concealing bags in the bushes;and,whenithey'were trying to run •\ '• out they were chased and apprehended tn front, 6f witnesses and forest guard, absence of recovery on the basis o^any memorandum of recovery •^ " v • '• : '- from the accused persons raises serious do^tbt. \ ' " / . ' •• ' K 18. It has also been urged that the statement of Investigating Officer with regard to order in which seizure of ganja was made from the car and the search of seizure carried out in respect of the accused persons, renders the very seizure doubtful. It has also been urged that if the evidence of the Investigating Officer (P.W.5) is closely scrutinized, it would be reveal that the Investigating Officer has made contradictory statemeht in this regard. In his examination-in-chief, he deposes that the car was searched after ndtice under Section 50 of the NDPS Act