HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench : Hon’ble ShriRaieshwarlalJhanwar,J. -L- Criminal Appeal No. 1134 of 1992 State of Madhya Pradesh (Now C.G.) ; VerSUS Deepak Deep JUDGMENT Postforpronouncementof Judgment \5 41-2009 f Sd/- R.L. Jhanwar Judge# 0. . \ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. Anp. No. 1134i 1992 X SB: Hon’ble Shri Justice R.L. Jhanwar A a i' Shri Sarfaraj Khan, counsel for the respondent. JUDGMENT (Delivered onm .11 .2009) This Criminal Appeal is directed against the judgment dated 27.2.1992 delivered in Special Criminal Case No. 229191 whereby the learned Special Judge and Additional Sessions Judge, Mahasamund has acquitted the respondent under Section 2O of the Narcotic Drugs Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the Act’). (2) Brief facts of the prosecution are that on‘i13.6.1991 at about 6.00 in the morning, on receiving information from an informant that ganja had kept in Bus No.OIU 1509, which was coming from Bhawanipatna to Raipur, Ramnarayan Sahu, Assistant Sub~ Inspector went along with two Police Constables and Witnesses Himeshwar and Roshanlal at check-post No.1, Bagbahara, and upon checking thewBus found that the accused/respondent APPELLANT State of Madhya Pradesh (Now C.G.) Versus RESPONDENT Deepak Deepak Deep, s/o Kamodeep, aged 33 ’ u ‘ years, R/o Civil Lines, Utkalnagar, P.S. Civil Lines, 4—6 Raipur, District, Raipur. Aggearance: ' ‘ Shri Satish Gupta, Government Advocate for the State/ appellant. Deepak Deep and a beggar sitting there and also found three bags at their bottom in which ganja was kept. Thereafter, he seized ganja vide Ex.P/ 1 in the quantity of 7 kg and 3 kg in fgont of the witnesses. He made seizure of 10 kg ganja from the accused/respondent Deepak and seizure of 7 kg ganja from the beggar. A Criminal Case was also registered against the beggar vide No.228/91. 50 gms of ganja was sent for chemical examination to F.S.L, Sagar vide EX. P/2. Report EXP/6 has been received from the F.S.L., Sagar, according to which, the material sent V " for test Was ganja. ’ During investigation, . necessary formalities were completed and seizure was made vide EXP/4. (3) ‘ After completion of the investigation, charge sheet was iiled before the Special Judge. Charge under Section 20 of the Act was framed against the accused/respondent and it was read over to him. The accused/respondent abjured the guilt and his defence was that he has been falsely implicated in the crime. (4) The learned Special Judge, after appreciation of the evidence available on record and hearing counsel for both the parties, acquitted the accused/respondent under Section 2O of the N.D.P.S. Act. ' (5) I have heard learned counsel for the parties at length and have also perused the record. (6) Inrthis case, only three witnesses werejexamined by the prosecution. Roshanlal Patel (PW—1) had stated that he was on duty at Check Post, at that time A.S.I. Ramnarayan Sahu along with some constables was checking the Bus. Police called him for Witness and he saw that accused/respondent and a beggar sitting in the bus and in front of them ganja was kept and Police seized that ganja. ’ On weighing, it was found 17 kg. A Criminal Case was also registered against the beggar vide No.228/91. He also stated > \‘-. that upon being asked by the Police he signed the seized memo Without perusing the contents therein. He further stated that seizure of ganja took place in Bagbahara Police Staiion after respondents were taken to police station. (7) Assistant Sub lnspector—Ramnarayan Sahu (PW—2) has stated that on 13.6.91, he received information from an informant that ganja was transporting in the passenger Bus, which was coming from Bhawanipatna to Raipur. On this, he accompanied with two Constables reached Check-Post No.1. The Bus No.OIU- 1E09 came there and as soon as the bus stopped, he went inside the bus accompanied by the Constables and witnesses and saw that: passengers were present in the bus. He checked the passengers ‘and during checking also found the accused/respondent and a beggar sitting and atVtheir bottom, two bags were kept in front of Deepak and one bag was kept in front of the beggar. Upon being asked, both admitted that those bags are their. He checked those bags and found ganja which was kept in those bags. He made seizure of two bags from Deepak and one bag from the beggar vide Ex.P/1 and sealed on the spot. On weighment, he found that Deepak had kept 10 kg ganja and the beggar had kept '7 kg ganja and also seized the bus and the accused persons were taken to Police Station Bagbahara where F.I.R. vide EXP/3 was registered. In his deposition in para 6 he had stated thatrhe sent the information to his superior officers and also sent it to the Judicial Magistrate, Mahasamund regarding seizure of ganja and registration 0f crime against the accused. He also deposed in paragraph 8 that on 21.06.1991 he took out 50 grams of ganja and sent it to Forensic Science Laboratory, Sagar. He further deposed in para 24 that he informed the accused persons of their right of being searched and checked by a Judicial Magistrate. 0. (8) Iqbal Ahmed Siddique (PW-3) stated that he was travelling in the bus Bhawanipatna to Raipur and when the bus reached the check post Bagbahara, he heard some noise and woke Lip. He saw G that Police checking the bus on the suspicion that ganja had kept 4‘ in that bus. He saw that during checking Police had seized ganja from accused/respondent Deepak and the beggar vide EX.P/ 1. He is a hostile witness. He stated that he has signed the seizure memo only on being insisted by the police. (Q1 i In the instant case, it is evident that the ganja was seized from the accused/respondents. However, according to Roshanlal Patel P.W. 1, seizure of ganja took place at thepolice station, which fact {is not corroborated by the testimony of Ram Narayan Sahu P.W.2 since according to this witness, seizure of ganja took place in the bus. It is also evident from the testimony of Ram Narayan Sahu that intimation regarding seizure of ganja and registration of crime against the accused was sent to his superior officials but acknowledgment thereof was not produced and no explanation is not forthcoming in this regard. Apart from this, the information of ganja being carried by the accused respondents was not reduced to writing by Ram Narayan Sahu thereby statutory requirement of sub-section (2) of Section 42 of the Act has not been complied with. No explanation was forthcoming as to why after seizing the ganja on 13.06.1991, the sample packet under seal containing 50 grams of ganja was sent on 21.06.1991 to F.S.L.afor its chemical examination. It did not emerge from his ev‘idence that under whose custody and the place where the ganja was kept after seizure of the same and why inordinate delay of 8 days occurred in sending the ganja sample. It is also evident that P.W.2 Ram Narayan Sahu, after seizure of ganja and arrest of the accused, did not send a detailedreport of all the particulars of such arrest or seizure to his immediate superiors, as required by Section 57 of @ the Act which lays down that Whenever any person makes any arrest or seizure under this Act, he shall, within forthy—eight hours next after such arrest or seizure, make a full report “of all the particulars of such arrest or seizure to his immediate official superior. (10) Although provision of Section 57 of the Act is not mandatory in nature, but having considered all the facts present in this case, non-compliance of the above provision casts doubt on the prosecution version. I V . g (11) Roshanlal Patel P.W.l is only seizure witness and his testimony is not reliable. Iqbal Ahmed Siddiqui P.W.2 has already turned hostile.and therefore, his testimony is not reliable. In this case, Himeshwar was not examined by the prosecution though he was accompanied by Ram Narayan Sahu P.W.2 in bus during ' checking. (12) Having thus considered the evidence led by the prosecution‘ in its entirety, I am of the opinion that the impugned judgment. does not suffer from any legal infirmity. (13) In the result, the appeal filed by the State is dismissed. The i order of acquittal under Section 2O of the N.D.P.S. passed by the learned Special Judge, Additional Sessions Judge of the respondents is maintained. a Sd/_ *‘R.L. Jhanwar Judge Q Q