HIGH COURT OF-CHHATTISGARH AT BILASPUR _ §ingie Bench : Hon hie Shn Dlilp Raosaheb Deshmukh, J Criminal Appeal No. 1160 of 2007 Domaru @ Mm Slo Ramchandra Mahra 26 years Occupation a- ‘ Rickshaw Driver reSIdent of: ,_ Bordwarpara Kotpad District Koraput (Onssa) Versus spondent Smte of Chhamsgarh, through Poiice Station Jagdaipur, District i Bastar 1r PPEAL UNDER SECTION 374 (2) OF THE CRIMINAL PROOEURE 1— Present: AppeHant CODE _. Sri Shri Sushil Bharat Chéndra Raiput, counsel Dubey. for Government the appellant Adilooaté for the State ORAL JUDGMENT ~ w a (Delivered on this 28m day of February, 2009) This appeal is directed against the judgment dated 26.10.2007 w - delivered by the Special Judge, Bastar place at Jagdalpur in Special Case : -» No. 30/2006 whereby the appellant wae convicted for the offence punishable under Section 20 (b) (i0 (B) of the Narcotic Drugs and Psychotropic Substances Act (hereinafter referred to as ‘the Act’) hand sentenced to rigorous imprisonment for 5 yeare and also to a fine of Rs,25,000/- and in default to undergo additional rigorous imprieonment for ~ one year for having been found in possession of illicit ganja weighing 10.100 kilograms on 15.09.2006 at old BusaStand, Jagadalpur in-a bag; . ,iy J"r Re A h 2. Brieflystated the prosecution case is that on receiving secret information, Shri A. Nooreti, P.W.2 apprehended the appeiiant who‘was hoiding a bag at old Bus—Stand Jagdaipur on 15 09 2&06 at about 12 00 noon After observmg the necessary formalities as required under the Act the game being carried by the appellant In the bag was weighed by Vishnu Kumar Sahu, P.W.3 and found to be 10.100 kilograms. Out of the said ganja, two samples of 5O grams each were taken and seized wim the remaining gary’a vide Ex.P.3. The sample packets were sent for chemicat analysis to the Forensic Science Laboratory, Raipur. Vide report Ex.P.1 , it i was opined that both the sample packets contained ganja. Aftee completion of investigation, prosecution under Section 2O (b) (ii) (B) of the w: Act was iaunched against the appellant. 3. The appellant abjured the guilt and pleaded innocence. The prosecution examined 4 witnesses. Ramesh Kumar. witness of seizure could not be examined by the prosecution despite issuance of several coercive processes by the trial Judge. No evidence was led by the appellant in defence. 4. The sole ground urged by Shri Bharat Rajput, learned counsel for the appellant, in this appeal is that there is absolutely no materialrto show - that the sample packets sent for chemical analysis to the Forensic .; Science Laboratory had been part of the ganja alleged to have been seized from the appellant. Learned counsel further argued that the independent witness Abhimanyu Nag, P.W.4 did not suppovt ‘ the prosecution story while other witness Ramesh Kumar was not» produced by the prosecution before the trial Judge. lt was further contended that @ Vishnu Kumar Sahu P W 3 categorically denied that he had weighed the eized gama On these premises It was urged that the conviction and sentence awarded by the [earned tnal Judge was liable to be set aSIde On the other hand Shn Sushi! Chandra Dubey reamed Government Advocate argued m support of the impugned judgment Having heard the rival contentions i have perused the record with utmost circumspectton Tau! Panchnama Ex P 15 clearly shows that thee i ntire quantity of ganja recovered from the appellant on being weighed r was found to be 10 100 kilograms if two samples each of 5O grams ganja had been separated from the above the remaining quantity of game in the bag would have been only 10 kilograms However the seizure memo ExP 3 clearly shows that while the quantity of ganja found by Vishnu umar Sahu P W 3 on weighment was intact and seized at serial No1 two more samples each of 50 grams ganja were also seized( M'SM M: It rs 2. thus~ L 3 extremely doubtful that two sample packets prepared vrde ExP3 on ‘ 15 09 2006 by Shri A Nooreti PW2 were taken out of the quantity of» ‘ ganja alleged to have been carried by the appellant Abhrmanyu Nag P W 4 Witness of seizure did not support the prosecution case The other , “y the prosecution despite M issuance of several coercive processes by the trial Judge tilt O3 10 2007 Vis mu Kumar Sahu P W 3 the witness of weighment categoricalty stated that weighment was not done by him The Malkhana register, which was produced by the prosecution Vide Ex P 2 revealed that neither the ganya contained in the bag nor the two sampte packets were kept in the Malkhana in a sealed condition The above mentioned facts and w Witness Ramesh Kumar was not produced i “aw, WwL “Mt A. s e K Circumstances throw a cloud of suspicion on the prosecutmn story becomes highly doubtful whether the sample packets which had been sent for chemical analySis to the Forensic Smence Laboratory, had In fact o been prepared out of the substance aHeged to have been seized from the appellant ln this View of the matter the convuctlon of the appellant under ,, Section 20(b)(u)(B) of the Act and the sentence awarded thereunder is llatble to be set aSIde 7. ln the result the appeal Is allowed The conwetlon of the appellant under Section 20(b)(n)(B) of the Act and the sentence awarded thereunder are set aside The appellant Is acquitted of the charge under Sectron 20(b)(n)(B) of the Act and shall be set at liberty forthwrth rf notreqwred In \~——~e—%fa Sd/— » ' Dlhp Raosaheb Deshmukh l Judge :, any other case.