C-22 -g^ -ilWldl. tSTllti'lli. fafll^y 3TT^?T iRra? '•,s<s. ^INCTIth'liw''"''"'" ^. 200 •fq^tT'""""" sniwan R-li.'* 311^1 ^RNr^ifCT SII^I^'S^TW^rfStT HIGH COURT OF CHHAtTTISGARH BILASPUR CRIMINAL APPEAL APPELLANT (INJAIL) Darbashiil about 21| resident No. 5180) Sidikada, (AP) i|iu S/o KannaBabu, aged years, occupation labourer, ^f Sidiya, New eolony, House I, Vishaldiapattanam, Thana District Vishakhapattanam VERSlUS RESPONDENT State of Disfa-ict Mla, Present: Mr. Sunil Sahu, counsel fo Mrs. Madhunisha Singh, P ORAL JUdGMENT Dhirendra Mishra, J. (5tb Octob^r 2007) Qase This criminal appeal is dir^ conviction and order of sentetice passed in N.D.P.S. Special learned Special Judge (NDPS ^ appellant under Section 20(b)(ii)l Psychotropic Substances Act, l^ islil^fd'il') *ll*(df 4 ft^ <(«i«;i< ^aifimsn^i N0. 248 of 2005 Ghhattisgarh, through the igistrate Durg (CG) fhe appeUant. L. for the State/respondent. ^cted against the judgment of dated 5th March 2005 No. 13/2004 whereby Lct) Durg has convicted the |C) of the Narcotic Drugs and )85 (for brevity 'the Act') and [ T^.—^ -Tg'=rira?ra, •S^'OTS. Pf'wy STI^T 'q^T titWi dt*li<*l"""""""'"" ^I. zoa \'"'"^re'3?t' -2. 311^51'^T R-li+ S^S WtIWHfFtt pts- aroCT^TCiiw: ^ifer sentenced him to uryiergo RI Rs.1,00,000/- and in defaultitf undergo RI for one years. 2. Case of the prosecufion iifi Outpost-Khursipar I.R.Sahu information that a person nameti to sell the saine at Khursipar the infbrinationi and Superintendent of Police, proceeded for the place of incic(( and found the accused (siutcase) and orie ragzine bag. prescribed for effectingsearch consent of the appellant to be and bag were opened before examined by the witnesses who |0nsearch 16 kg. of cannabis |and 6 kg from regzine bag. Ther\ leach were drawn from both lcannabis alongwith two sampl< ivide seizure memo of Ex.P/4.| iimnumbered First Informatiorl <<il<<fd41") IIICTI *t fs^ <Pn<<i< •^aiPmamsi for 10 years, pay a line of payment of fine to further brief is that Incharge Police (PW-6) received a secret Shrinu is carrying cannabis ^rea, whereupon he recorded the same to City i^wani (Cant). Thereafter, he Anda Chowk, Khursipar -^ying one regzine attachee |After following the procedure seizure and after obtaining [search by him, the attachee the witnesses, which was found the same to be Ganja. ^jrsiS seized from the attachee 'after, two samples of 25 gms |the containers and seized were taken into possession On the basis of seizure Report of Ex.P/11 was forwat'ded Ghhfewani mcident car^yin aikd e6 11 s iTT^ : ;•' -rsg •^ipiRra, 'gyl'yiii. f'K'ii'My SIT^T "qg^ WWtl Sh1)!'*' 'WI. 200 fq^ar' 311^1 ^T h-t 3^V ?hHlt*i '^rftrf 311^1 ^^IIWdfCT •bllld^il-f 1W<"fl" 4'fBI^<I«it$^ ^3lfitm3II^I registered on the spot and aftejr •». FIR of Ex.P/11 along with seize^ to the Head Constable sent for chemical examiniition /.'.: through, Superintendent 'Qf Poli(j( report of FSL is Ex.P/13. charge sheet was filed against tl^e Shivnandan tb After reaching the Police Outpost contraband was handed over (PW-1). The samples were Forensic Science Laboratory , Durg vide Ex.P/12 and the completing investigation appellant; spespdn 3. Dynng trial eight witne^ prosecution. Thereafter, recorded under Section 313 of the circumstances appearing pleaded that he is a Telgu know Hindi language,therefore, questions were put to him by th innocence and false implication. after hearing counsel for the rei sentenced the accused/appellar 1 of this judgment. 4. Leamed counsel for the judgment oftrial Court on fhe fo statfcment lltie ises were examined by the of the aceused was Cr.P.C. wherein he denied ^gainst him and specifically jking person and he does not 1 he is not aware of as to what police in Hindi. He pleaded However, leamed trial Court (pective parties convicted and (t as mentioned in paragraph appeUant has assailed the ^lowing grounds: ?T:i^~ sn^rwi K(-< sn^f ai^ich 'HffrT w "?qpn?ra. '^fhTTS. ftwi^y 3n^?r 'qsra? "iiraw'giT?^ ""^^^^"^^^^^^^^^ ^ 200 •f^^I' •^ ffl^i ?^a(W ^ii?^ (i) (ii) that the appellant language as he i^ However, his statej Cr.P.C. was recordel <1. Paneh witnesses PWt Yadav have admittl examination that th^ Hiridi and therefore,| speaking person an| through him. Howev) in the charge she( officer (PW-6) in p; since the accused Hindi, he did not Interpreter. that from perusal of| clear that the inves seizure was effected however, the seized Police Outpost and p.m. whereas the seis in the Police Outpi *l<lfdl1-< WRft' fl fetSt <[a)(4K ^T3iPgiT3n^( not conversant with Hindi a Telgu speaking person. tnent under Section 313 of jd with the aid of interpreter. \2 Kallu Pal and PW-5 Brajesh ;d this fact iri their cross- appellant did not understand the police called some Telgu |d interrogated the appellant ir, this fact is not mentioned jt whereas the investigating jragraph 18 has stated that |ivas replying his quehes in think it necessary to call |seizure memo of Ex.P/4, it is jtigation was eompleted and |by 11.00 a.m. on 23.5.2004, contraband was received at ;cused was arrested at 11.25 |ed contraband was deposited jst only at 13.00 hours as aiT^rwi h-w* sn^v shira ^lf^I -T5ET •s\W\v\'if. ^•dl'y'IS. ^''ll'K3< 3T^?T IR^? *)llCTl tnil'n"" "'" " ^IT. 200 |c|<it{8T' s. 3II%W;TOIIW(rfCT (iv) tihe Ooods admitted by the In|\ (PW-6)'in paragraph| no evidence that custQdy in the mean^ (iii) that PW-1 .Shivnand^ \ Police Outposthas s< reeeived in his Outp|ost entered into Seized the same was forwat'ded oh 23.5.2004 and tl| the register. Howe\{ Constable of Police his cross-examinatidn seized artiele was Khursipar on 26.5.: received on 23rd and whose custody the 23rdto26u'. thaf there is seizure in the statei and Panch witnesses; discrep^ncy *1<<I<-|41'1 iTORJf'? ftlst <[«]<(i< ^ 3(POT 311^1 rl restigating Officer I.R. Sahu 18 ofhis deposition. There is same was kept in safe while. ^nlal Sahu, Head Constable of tated that the contraband was on 23.5.2004, which was Register at Sl.No.23 and to Police Station - Cant lere is entry to this effect in }er, PW-3 Manharan, Head Ptation - Cant has stated in in paragraph 3 that the 'ceived from Police Outpost 1004 and the same was not Rie has no knowledge as to in :ontraband was in between with respect to time of ^ients of investigating officer -22 ai^r^T R;-<j<* 3iiin stiw ?1 -S^ 'i<l<ll<'Pt. dTil'y'l'i. f««'11'MS< 3ii^?r ira^? NIHCTI <»)*<i'=n'"' "'""" 'tn. 200 •••fq^g'""^ aii^i^^aiWdfet (v) fhat there is no eviip the inve^tigating investigation hande< with accused to thk - 4: who after receiyingl affbsed his seal on! there is a total h6n-< SSoftheAct. 5. On the other hand, le4 supports impugned judgment ol 6. I have heard leamed couj gone though the impugned available on record. 7. I.R. Sahu (PW-6), the invej his deposition that he received Shrinu is carrying cannabis foi Khursipar area. After recordin forwarding the same to C.S.P., occurrence and saw the appeUs bag. After obtaining his corisen the bags were searched in the pi =bl^fd'!fl-1111'Rff 4 fB^l <RntSK ^;3lP<nSII^I ence available on record that officer after conducting over the seized article along Incharge of Police Outpost the contraband would have these articles and as such, ompliance ofSecyons 52 and -ned counsel for the State trial Courf. isel for the parties and have udgment and the evidence ^tigating officer, has stated in secret information that one the purposes ofSeUing it at i^ the above information and ^ie proceeded for the scene of 4-it carrying one attachee and for search and seizure, both t'esence of witnesses and they y» f aii^rwi Wl'h 3^1 *t|i<* tlRd 75?'=ipn?Pt. ^Tily'iii. f»«>ii«3< aiI^?T XR^; •4rtiww*n<;o "Wt 200 ^f4fc<{a' -1. (I}W found fhe contraband to be] preliminary examination by contraband was cahnabis befot memo ofEx.P/2 was prepared. was cione by Vijendra Kumar Ex.P/3. Two samples of 25 gm|! the Gontainers and thereafter, prepared. On the spot unnu) prepared and fhe same was Police Oufposf to Head Con( samples were forwarded throuj report of FSL is Ex.P/13. witness has stated that tho^ speakmg but he was able to spe^k 8. PW-2 KaUu Pal has deposf at around 9-10 in the momin? Anda Chowk, the police person the appellant there. The attacl The attachee and bag were of cannabis was found. The ac< The documents of Ex.P/1 to P weighment the cannabis wa; ikWlct41-l IWdf'9 fel3t <r<ilf(l< ^aiPtnaiTERr Ih Ganja. After satisfying by tasting, smelling that the e the witnesses, identification The weighment of contraband W-4) vide weighment memo of s. each were drawn from both seizure memo of Ex.P/4 was tobered FIR OfEx.P/11 was. ^ubsequenfly handed over in Istable Shivnandanlal. The ^h Sr. S.P. to F.S.L. and the the cross-examination this [igh the appellant is Telgu Hindi. [d that on the date of incident a crowd was gathered near ifc were also there and he saw i^ee and bag were lying there. opejned before him and 15-20 kg (used was not knowing Hindi. '/6 bear his signature. After seized vide Ex.P/4. The ~sv '<H\v\'l:l, afll'yis, (5"'"'M3< 3ff^?T 'q^RR tllHCTI <t>*li<» ^T. 200 'l^re^i' ^ 311^1'ar f<;-(i.<* SV^V WRWHfCT sii^i.t^iTWflfer <*l'4fd41-l IWdf'? ft'A <!"lt<(i< '^aipgq sn^l tlim tMiat appeUant was arrested before 1'tim examination he has stated around 8.30 to 9.00 a.m. anfl home by8.30to9.0Q a.m. He| ,<(. was hot given any notic.ei by th|e papers .without reading on bei4i saying that the contraband was has informed his that it was Gajija vide Ex.P/6. In the cross- he reached Anda Chowk returned from there to his has further admitted that he police and he signed all the g asked by the police. He is Ganja only because the police 9. PW-5 ^Brajesh Yadav, accused for the Brst time on 10.30 in the moming. The directions and stopped the was sitting. He had a suitcase was recovered and the same questions by the prosecutiori, the appeUant was given an gazetted officer or before the Mi that he signed the paper on police did nbt interrogate from He has further admitted his Ex.P/2 to P/6. This witness has hbs p|oli stated that he saw the [he date of incident at about F(olice persons came from 2-3 pycl^shaw, in which the appellant |and bag from which cannabis ^vas weighed. On the leading [this witness has denied that o^tion to be searched by any [a^istrate. However, he has said asked by the police and the |the accused in his presence. over the document of stated that the appellant was beiijig siAnature XI-HC-22 sn^r^i f?;ii?T3n|CT gTRWHlOT Tg'^irai?pT, d^1'yT<s.TS«'"'«i< STT^T 'VS^K *ll*tCTIg)*<l<*l "ff^ 200 fq^r" sn^iTtgigt ^rfsn not conversant wifh Hindi lar|gua; jnterrogatedwiththe h'felp ofTej guage and therefore, he was gu speaking person. 10. From the evidence estabMshed that there is n^ contraband effected on 23.5.20(t safe custody by the inyestiga^ handed over to the Incharge o\ PW-1 Shivnandanlal, Head Coit stated fhat the articles were on the same day for safe (Godown) of Police Station - Car) he did not receive the Outpost and he is not aware of| was kept in between 23rd investigating officer has not sti that after effecting seizure he s| two samples drawn from both tl-| the same for safe custody to th| Cant. Even the seal is not Ex.P/4. There is non-complianc| Act as there is no evidence seizure of the contraband, the avallable evillence custopy contraband anfl +i^if<-i4-f ^wvS 4^S <fa<<i< ^aiPttifan^T on record it is also that after seizure of the )4, the same was stored in the (ing officer or the same was Police Station - Cant. While jistable of Police Outpost has folrwarded to the Police Station ', the Incharge of Malkhana [t has categorically stated that before 26th from Police tthe fact as to where the same 26th. Apart from this, the |ited a word in his deposition 'aled the contraband as also |e containers and handed over Incharge of Police Station - on the seizure memo of of Sections 52 and 55 ofthe record to show that after ^ame was handed over to the affjxed liande 0(1 $I: t 311^1 ^il K-li* Sf^V 'aTqWdf^I •TST •^fraRra,'^aftT^. ^''"•"y 3T[^?T 'q'ra? IIHCTI tn*ii<*i"""" ' ^I, 200 •^^8T" » ^ 3n^i TOIIW ^iftg Incharge ofPolice Station - Cai^t for safe custody after sealing it by affixing his own Seal. II. In view ofabove non-eom^l by the prosecution to j^rove| scrutinized,;it is observed that) with respect to time of the mcidt the accused diiiring inyestigatio( specific defence in his statement that he does not know Hindil understand ; the questions put| investigation. His defence is als|3 of Panch witnesses PW-2 Kallul who have also stated that the ai| Hindi and therefore, he was some Telgu speaking person. dfficer has deposed that thoi speaking person but since he Hindi, he did not think it necess 12. In view of fheevidenc statement of investigating office There is no inaterial available 01 ^»l<li<l4^1 •qi*1t>?I'^ FSI^ <1';tl+$l< ^aiPman^r j)liance ifthe evidehce adduced the search and seizure is there is material discrepancy 'nt as also the interrogation of (n. The appeUant has taken a n|t under Section 313 of Cr.P.C. and therefore, he could not to him by the police during reflected from the statement Pal and PW-5 Brajesh Yadav (:cused was not understanding I'lterrogated with the help of However, the investigating ^gh the accused is a Telgu answering the questions in jary to call an interpreter. w&s available on record, the •(- does not inspire confidence. t record that the interrogation T~;-~ ! ;-s''-'' ""•» '•'>,, StBSi. [!!SSSaa&. an^i^r f<-fi?b 311^1 st»<fl<T> ^tf^rT ^ T53 -l)|i|ld<<. dTilti'lli. f'K'IIU'P 31T^?T iRra? IINCTI a)*ii<»)""""""""'" ^FI. 200 •fq^I"""""" 311^1'S^IIW ^lf^f ir ofthe appellant was done with claimed by the witneSses, and discrepancy present in the Officer on the one hand and |the help of any interpreter, as taking into consideration the st^tements of the Investigating Itwo Panch witaiesses on the pther, the whole mvestigationa^pears to be doubtful. <f. 13. For the aforesaid reasonj trial Court based on fhe stateibents have proved the seizure of c^ appellant, cannot be sustained| hsi.ve extendedbenefit ofdoubt 14. In the result, the appeal allowed. Impugned judgment and sentencing the appeUant Narcotic Dn-igs and Psychotrop aside. He is acquitfed of the liberty forthwith if not required <=bNtd-ift-l *lH<*ff'^ ^^ <^tt$K '^aiPtnsn^r i, the impugned judgment of of above witnesses who tnnabis from the custody of and the trial Court ought to |o the appellant. Ipreferred by the appellant is of the trial Court convicting ut-ider Section 20(b)(ii)(C) of the jc Substances Act, 1985 is set ^.bove charges. He be set at jn any other case. 'Sd.'- ^en^^8 fw