RESPONDENTS: a. HIGH COURT OF CHHATTISGARH, BILASPUR $5)W($93 Criminal Appeal No.385 of 1994 APPELLANT: State of Madhya Pradesh now Chhattisgarh) Versus Banmali, S/o Indira Gond, ag$ 55 years, R/o Kondapali, P.S. Khariyar; Distt. Kalahandi (Orissa), at present R/o Cherikari Thana, Mandir Hasaud. Nirman Manda1, S/o Duryodhan Mandal, R/o M.P.B.83, aged 25 years, P.S. Motu, Distt. Koraput (Orissa) Swapnadas, S/o Harendra Das Bengali, aged 30 years, R/o Kalimaila, P.S. Kalimela, Distt. Koraput (Orissa) Prabosh Kobiraj, S/o Gouru Kobiraj, aged 3O years, R/o Kalimela, P.S. Kalimela, Distt Koraput (Orissa) {Criminal appeal under Section 378 (1) of the Code of Crlmlna| Procedure 1973} . Present: Mr. Rajendra Tripathi, Panel Lawyer for the State/appellant. Mr. P.C. Kerketta, counsel for the respondents. ’ ORAL JUDGMENT (12-8—2009) 1. This is an appeal against the judgment of acquittal dated 16-7-93 pasSed by the 4th Additional Sessions Judge, Raipur in Special Criminal Case No.122/93, whereby & whereunder learned Additional Sessions Judge has acquitted the respondents of‘the charge under Section 20 (b) (i) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985. .VJudgment of acquittal ls challenged on the ground that learned Additional Sessions Judge has not considered the evidence sufficient for convicting the respondents, especially the evidence of R.C. Verma (PW-5), Excise Sub Inspector, who has categorically deposed that the respondents are the persons from whose possession 118 kgs. of cannabis (Ganja has been recovered. ( § Single Bench: Honble Mr. T.P. Sharma, J ) ase of the prosecution, in brief, is that on 21-4—93 R.C. Verma (PW- 5), Excise Sub Inspector, received information from the informant that some Ganja was kept under the paddy grass (§?T) at the kitchen garden of Khyaldas which was within the occupation of‘respondent No.1 Banmaii. He made search along with other officers and seized 118 kgs. of'Ganja from the paddy grass (w) which was kept in hidden position and recorded the statementof Banmaii & other respondents who have deposed that they have kept the Ganja in hidden position. The article was seized vide Ex.P-1. Statements were: recorded and spot map was prepared vide Ex.P-4. Sampies were; sent for chemical analysis and Ganja was confirmed vide analylsis' report Ex.P-13. Statements of Banmali, Nirmal Mandal, Swapa‘ngas & Prabosh Kabiréj were recorded vide Exs.P-8, P—9, P—10 & P_—11, respectively, in which they have admitted th conscious possession of Ganja. learned Additional Sessmns Judge has acquitted the accused persons/ respondents of the aforesaid charge I have heard learned counsel for the parties, perused the impugned udgment and record of the trial Court . Learned counsel for the State/appellant vehemently argued that the eVidence of R.C. Verma (PW-5) is suffICient for drawmg inference that the respondents are the persons who were in possession of the hidden Ganja of 118 Kgs., but the Court below has not considered the evidence of R C Verma (PW-5) and the admission made by the respondents before the EXCIse Inspector not before the Police Officer which is admi55ible in eVIdence \f~ :On the other hand, learned counsel for the respondents supported the judgment impugned and submitted that the statements made by the accUsed persons before the Excise Inspector are not admissible ‘in evidence. Learned counsel further argued that even if the evidence of R.C. Verma {.RW-S) is assumed to be correct, no questions relating to commission of offence have been asked to the accused under Section 313 of the Cr.P.C. and in absence of such . questions & explanation of the accused/respondents, conviction & sentence of the accused persons or conversion of the judgment of “acquittal into the judgment of conviction would not be possible. i .After‘ appreciating the evidence available on record \\\: . C e j ._ ‘ R.C. Verma (PW-5) is Excise Sub Inspector, he is not the Police Officer, he has recorded the statements of ail the accused persons who have specifically admitted the possession of Ganja. Even I otherwise, he has deposed that he has recovered 118 kgs. of Ganja fromr the possession of Banmali who was Chowkidar of kitchen garden which was surrounded by fencing & gate, and the (ganja was found in hidden position under the paddy grass (W). . . Learned Additional Sessions Judge has not considered the facturn of admissibility of admission of the offence made' by the accused persons before the Excise Officer and conscious possession of Ganja relating to respondent No.1 Banmali, and thereby committed illegality Judgment of acquittal is not sustainable under the law. V .. 10 Examination of the accused under Section 313 of the Cr P C reveals t that the Circumstances adverse to the respondents espeCIally possessmn of Ganja their admissmn work of Banmali as watchman have not been put to the accused/respondents and no explanation hasibeen offered by the respondentsin respect of the same In absence of putting such questions and offering sufficient opportunity of explanation, the evidence adverse to the respondents cannot be used. li.For the foregoing reasons, the appeal is allowed. Judgment of acquittal is liable to be set aside and it is hereby set aside. The case is remitted back to the 4th Additional Sessions Judge, Raipur for providing opportunity to the respondents to explain the adverse circumstances appearing against them by asking specific questions and providing them opportunity of adducing defergce evidence, and decide the case afresh. é 12.Parties are directed to present themselves before the trial Court on —- i V VSd/— T. P. Sharma Judge t Soa . 1792009. i m