T\~ ^ \ 7i \ ^ Appellant (injail) Respondent ^Nllna»(': HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRi R.N. CHANDRAKAR.. J Criminal Appeal No. 455 of 2001 Tula Ram Versus State of Chhattisgarh POSTFORPRONOUNCEMENTOF JUDGMENT r^ JUDGE t°-12-2009 Sd/- R.N. Chandrakar Judge J.^. ^< HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Appeal No. 455 of 2001 <2) Appellant (injail) Respondent Tula Ram S/o Bodhram, age 42 years, R/o Village Kanharprri Police Station Korar, Distt Kanker (CG) Versus The State of Chhattisgarh Through : Police Station, Kanker Distt Kanker (CG) Criminal appeal U/S. 36 (B) NDPS Act. read with Section 374 (2) ofthe Cr.P.C. (SB: Hon'ble Mr. Ranganath Chartdrakar, J.) Present: Smt. Kiran Jain, counsel for the appe!!ant. Shri Akhil Agrawal, Panel Lawyer for the State. JUDGMENT (Delivered on this day of U+is December, 2009) This criminal appeal, presented under Sect'on 36 (B) NDPS Act, read with Section 374 (2) oftheCode of Criminal Procedure, is directed against the judgment of conviction and order of sentence dated 25.04.2001 passed by the Special Judge, Bastar at Jagdalpur (constituted under NDPS Act, 1985) in Special Case No. 41 of 2000, whereby the accused/appellant has been convicted under Section 20(B) (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act, 1985") and sentenced to undergo R.l. for 11/2 year and to pay a fine of Rs.3,000/-, in default of payment of fine to undergo further Rl fcr 4 months. (2) Briefly stated, the facts of the case are that on 8-7-2000, Sub Inspector Alok Shrivastava (PW/1) received secret information from the informer that the accused/appellant, standing nearthe bus stand was having some Ganja in two bags. 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In the Roznamcha Sanha recorded by the Investigating Officer with respect to the secret information, it is nowhere mentioned that the information was correct to his satisfaction and the consent given by the appellant to be searched by the Investigating Officer cannot be treated as free consent. Learnedcounsel further submits thatsection 55 of the Act has also not been complied with as is clear from Ex.P/19, letter of Superintendent of Police by which the seized ari:icle was sent to FSL and Ex.P/20, the FSL report. The _ seized article was sent to FSL under Ex.P/19 through Constable R. Ramkrit Taram while the FSL report Ex.P/20 shows that the same was received through Constable no. 347 Ramdin Markam. Thus, it cannot be held that the seized article was in safe custody and there was no likelihood of tampering withthe samples. Learned counsel lastly submits that there is no evidence on record that the seized article was weighed by any independent witness and the seized article was not produced before the Court during trial. In the present case, it is clear that the appellant has been convicted by the Trial Court only on the basis — of solitary evidence of the Investigating Officer which is not corroborated by any independent witness. Learned counsel further sybmits that the conclusions arrived at by the trial Court are based on presumptions and surmises and the grounds mentioned herein above, amongst others, the impugned conviction and sentence of the appellant is bad in the eyes of law and the same deserves to be set asideand the appellant be acquitted ofthe charge. 5) Per contra, Shri Akhil Agrawal, Panel Lawyer for the respondent/State supporting the impugned judgment of the trial Court submits that there was no infirmity warranting ahy interference in appeal. 6) I have heard learned counsel for the parties and perusedthe record of the trial Court as well as the impugned judgment. 4 ^ 7) I proceed furtherto examinethewoofoftherival contentions. 8) In a case under section 20 (B) (1) of the Act it is the bounden duty of the prosecution to prove beyond the shadow of any doubt that the contraband article was seized from the possession of accused/appellant. Further more it is also the duty of the prosecution to prove beyond doubt that the substance which had been examined by the FSL was the same which had beenseized from the appellant and there was no possibility of tampering with the same. 9) The independent witnesses of the seizure and other proceedings were: Sheikh Mashuk (PW/2), a taxi driver and Massu Ram (PW/3), rikshaw puller. Both the witnesses have not supported the prosecution version and the material documents marked as Ex.P/1, Ex.P/2, Ex.P/3, Ex.P/4, Ex.P/6, Ex.P/7, Ex.P/8, Ex.P/9, Ex.P/10, Ex.P/11, and Ex.P/12. The independent witnesses are declared hostile. They categorically ascertained that they do not know about the seizure. They were called in the Police Station and made to sign certain papers. In the leading questions put to them, they categorically denied going to the spot and giving consent by the appellant for being searched by Investigating Officer. The evidence to prove that the alleged ganja was recovered from the possession of the appellant consisted of the evidence of Investigating Officer (PW/1) and panch witnesses Sheikh Mashuk (PW/2) and Massu Ram (PW/3). The panch witnesses turned hostile. Thus, apart from the testimony of the Investigating Officer, there is no independent witness as to the recovery of alleged ganja from the possession of appellant. It is also evident that the ganja alleged to have been seized from the possession of the appellantwas noteven produced before the trial court, so as to connect the same with the samples sent to the Forensic Science Laboratory. Further more, Ex.P/19, letter of Superintendent of Police goes to show that the samples of the seized article were sent to FSL through Constable R. Ramkrit Taram whereas Ex.P/20, the FSL report demonstrates fhat the samples were received through Ramdin ^IIINUUs Markam, constable no. 347. It is strange that the samples were received by fhe FSLon the same day on which it was sent i.e. 13.7.2000 but the person who reached to the FSL with the samptes was not the same to whom it was assigned. It is also pertinent to mention here that the documents Ex.P/19 and Ex.P/20 goes to show that the sample of seal pertajning to seizure of the contraband article from the appellant was not sent to FSL for examination. Thus, it cannot be held that the samples sent to FSL were taken out from the substance seized from the possession of appellant and therewas no likelihood of tampering with the same. 10) There is no material produced in the trial, apart from the interested testimony of the investigating Officer, to show that the ganja was seized from the possession of the appellant or that the samples sent to the FSL were taken from the substance seized from the possession of the appellant. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantity of Ganja was seized from the possession of appellant. The best evidence would have been the seized material which ought to have been produced during the trial and marked as material object. Mere oral evidence as to its feature and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, it is noticed that the panch witnesses have turned hostile so the panchnama is nothing but a document written by the police officer concerned. Learned counsel for the appellant rightly placed her reliance onJitendra andAnother Vs. State ofM.P. reported in 2004 SCC (Cril 2028. 11) So far as the compliance of provision under section 50 of the NDPS Act is concerned the Investigating Officer (PW/1) stated that he issued notice under section 50 of the NDPS Act to the appellant and informed him about his legal rights that he was free to be searched either before any Executive Magistrate/ any Gazetted Officer or by the Investigating Officer. On this, the appellant gave <$) i ,.^N^^ i^^."^ '•..^lJ i^^y •^s^^ his written consent to be searched by him. This statement of the Investigating Officer is untrustworthy and the consent given by the appellant cannot be held as free consent as both the independent witnesses have turned hostile and categorically denied the fact that any notice was issued to the appellant or any consent was given by him to be searched by the 1.0. If, for the sake of argument it is admitted that the appellant gave his written/free consent to be searched by the 1.0., it cannot be ruled out that the consent was not obtained under pressure. Thus, in the instant case it is held that the provision under Section 50 ofthe NDPS Act was not complied with. 12) The provision under section 42 of the NDPS Act is meant for power of entry, search, seizure and arrest without warrant or authorization. In connection with this, the Investigating Officer (PW/1) stated that on the date of incident, he received secret information from the informer who came to the Police Station, alongwith Head Constable No. 320, Dayaluram but he was not examined by the prosecution though cited as prosecution witness in the final report and he was present during the whole proceeding of search and seizure of the alleged contraband article from the appellant. Further, it is admitted in para18 by the Investigating Officer that he did not think it necessary to obtain search warrant from SDO (Police). Thus, it is not established that the alleged Ganja was seized by following the provision under section 42 of the NDPS Act. Apart from this, on perusal of the weighing panchnama, Ex.P/10 it is not clear thatby whom the seized articlewas weighed. It is simply mentioned in Ex.P/10 that the alleged Ganja was found in possession of the appellant kept in two bags. On weighing thesame, it was found 1.420 kilograms in one bag and 1.346 kilograms in the other. It is nowhere mentioned whether the same was weighed by any of the Police Official or by any other independent witness. Thus, it is not established that the alleged Ganja was weighed by any independent witness. In such condition the weighingpanchnama Ex.P/10 cannot be held reliable and trustworthy. \ .-:. 13) On reappraisal of the above evidence, it is found that the evidence about search and seizure is wholly discrepant and untrustworthy. The material aspect is not supported by independent witnesses. The story is demonstrably apocryphal. Even about search, there is no observance of requisite care and caution. The provisions under sections 42, 50 and 55 have not been fully complied with in the instant case. 14) Hon'ble the Supreme Court in Dilip & another Vs. State of M.P. (2007) 1 SCC (Cri) 377 observed as under: "20. It is well known that if two views arepossible, benefit of doubt should be given to the accused. 21. We may notice that a three-Judge Bench of this Court in Jagdish v. State of M.P.3 had set aside the judgment of conviction where panch witnesses denied that search and seizure of the opium took place in their presence. (See also Ritesh Chakarvarti v. Stateof M.P.4)" 15) Having considered all the facts and circumstances of the case and in view of the aforesaid discussion, 1 am of the considered opinion that the prosecution is, thus not found to have proved the charge beyond reasonable doubt against the appellant. There is enough element of suspicion about search, seizure and safe custody of the samples sent to the FSL. Thus, the benefit goes to the appellant. 16) In the ultimate analysis, l find that this appeal is worthy of being allowed. It is accordingly allowed. The conviction and sentence are set aside and the appellant is acquitted of the charge. 17) The appellant is on bail. His bail bondsshall stand discharged. He is directed to be set at liberty forthwith, if not required in any other case. The fine amount, if deposited, be refunded to the appellant forthwith. Sd/- R.N. Chandrakar Judge