IF!CAT!0?i+iQ. S::6a'D-2870/; B/C.G./05 AS SPEGrrlcD IN SCHEDULE [ &H OF THE COURT FEES ACT 1 870. IN THE HIGH COURT OF JUDICATURE AT BILASPUR CR.M.P. N0. APPELLANT: ACQUITTAL APPEAL N0.iJ^fc'3 r.».;^>3t(^ /2009 RESPONDENTS: 1. ^ 5)nP 2-&3 Tfae.State of Chhattisgarh Thrbugh - District Magistrate, Bastar (C.G.). VERSUS Kamlesh Jurri S/o.- Late Mangtu Ram Jurri, (G.R.), Aged about - 29 Years, Occupation - Vehicle Diver, R/o.- Harradula, P.S. Charama, District - Kanker (C.G.) Harprasad S/o.- Late Dharam Singh, Caste - Halba, Age.d'about- 33 years, Occupation - Agriculturist, R/o,- Kewtintola, P.S. Korar, District - Kanker (C.G.) APPLICATION FOR GRANT OF LEAVB TO APPEAL U/S 37^ (3) AND MEMORANDUM OF APPEAL U/S 378 (1) OF CODB OF CRIMINAL PROCEDURE '1973. ^/y/ ^/^>'. / ^^c ^ ^Y" ^^A^ yyws- <? HIGH COURT OF CHHATTISGARH :^ILASPUR AcgyittaLAi3peal_Na J_36_oL20,10 M^-s. ./"-. Appellant The State of Chhattisgarh Versus Respondents ' Kamlesh Jurri & another CRIMINAL APPEAL U/S 378(11 OF THE CODE_OF CRIMINAL PRQCEDURE DB: HonTale Mr. I. M. Quddus 8s Hon'ble Mr. G.Minhajuddin, JJ. Shri Rajendra Tripathi, Panel Lawyer for the State/appellant. Shri Parag Kotecha, Advocate for the respondents. JUDGMENT lOrall (Passed on this 21st day of November, 2011) Per I. M. Quddusi, J. The present appeal arises out of the judgment and order dated 31st March, 2009, passed by the Special Judge (NDPS Act), Jagdalpur in Special N.D.P.S. Case No, 26/2008, acquitting the accused/respondents from the charges under Section 20 (b) (2-C) of theNarcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPSActl. Brief facts of.the case, as per the prosecution story, are that on 5.4.2008 at about 7.10 a.m. under the instructions of the Station House Officer, Police Station - Farasgaon, the Assistant Sub-Inspector Shri B. P. Yadav along with the police party started checking of vehicles on the barrier, in front of the police station. At about 9.50 a.m. they saw one white colour Maruti Car was coniing from the direction of Kondagaon but when the police party gave. signal to the .^'Bcln'Msr^Io^stop the vehicle, the driver did:not stop the vebicle and tried t«, 3. to Qee away to the direction of Raipur. The police party chased fhe Maruti Car by Jeep and Motorcycles and could be successful to stop the Maruti Car, bearing registration No. C.G. 04-ZD/1013 near Rituja Petrol Pump. Two persons going frorn the spot were requested to becoine witness to the panchnama, in whose presence the accused persons were asked to narrate their name and accordingly the driver told his name as Kamlesh Jurri and the person sitting by the side of the driver told his name as Har Prasad. At 10.00 a.m. the search panchnama (Ex.P/1) was prepared. Accused Kamlesh Jurri and Har Prasad were given separate notice under Section 91 of the Code of Criminal Procedure and thereafter the notice under Section 50 of the NDPS Act, 1985 was also given by Shri Yadav, A.S.I.. After obtaining the consent of the accused persons tHeir personal search was conducted and thereafter the vehicle was searched. In the personal search no objectionable thing was found, however, ten jute bags, containing total 102 kilogram and 100 gram ganja was found from the Car. The samples were drawn from the seized contraband and were sent for chemical examination. The FIR (Ex.P/23) was registered on 5.4.2008 itselfat 18.40 hours, the offence under Section 20(B) of the Act , was registered at Crime No. 48/2008 and the accused/respondents were taken to the custody. The seized articles were sent to the Malkhana. The report (Ex.P/25) of the entire proceeding under Section 57 of the Act, 1985 was prepared and was sent to the Sub Divisional Officer (Police) Kondagaon. Vide letter dated 9.4.2008 of the Superintendent of Police, Jagdalpur the samples were sent for chemical examination at F.S.L. Raipur from where the report (Ex.P/28) was received. After conducting. the enquiry the challan was filed on 19.6.2008. ' 7. 8. Learned trial Court framed the charges under Section 228 of the Code of Criminal Procedure and the statement of the accused persohs were recorded under Section 313 of the Code of Criminal Procedure, who abjured the guilt and prayed for trial. Learned counsel appearing for the State/appellant submits that the police party had seized the contraband from the car occupied by the accused/respondents, which was contained in ten jute bags, having the quantity of 102 kilogram and 100 grams, which comes under the 'commercial quantity. Further, as per the F.S.L. report the seized article was ganja and the police had conducted the entire enquiry following the practice and procedure in accordance with various provisions ofthe Act, 1985. However, learned trial Court has held that the possibility of tempering with the seized contraband while keeping the same in safe custody of Police Station cannot be ruled out and thereby the accused persons/respondents have been extended the benefit of doubt. On the other hand, learned counsel appearing for the respondents supporting the impugned judgment submits that the findings of the trial Court are strictly in accordance with law. He further submits that the provisions of Section 55 of the NDPS Act have not been followed and the independent witnesses to the seizure have not supported the prosecution case, therefore, no interference is warranted by this Court in the findings of the learned trial Court. We have heard learned counsel appearing for the parties and perused the record. It is evident that the prosecution has examined Raj Kumar Sahu (P.W.l), Mahesh Kumar Kunjam (P.W.2), Khushwant Singh Badesa (P.W.,3), Rajendra Singh Painkra (P.W.4) and B. P. Yadav (P).W;5):' Out -:—'\ of the.se, five prosecution witnesses, three are police pfHcers-arid two are independent witnesses to the seizure, who have turned hostile. Thus, even recovery of the contraband from the possession of the accused/respondents could not have been proved by the prosecution. 9. Section 55 of the Act, 1985 provides that "An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who rnay be deputed for the purpose, to affix his seal to such articles or to take sainples of and from them and all samples so taken shall also be sealed with a seal of the officer-ih- charge of the police station. However, learned Trial Court has found that according to the entry made at serial No. 39 of theMalkhana Register (Ex.P/18) there is no mention about deposit of the sealed articles. Therefore, we are of the considered opinion that in view of the evidence on record learned trial Court has not committed any manifest error under the law in acquitting the accused/respondents from the charges. 1Q. In view of the foregoing, there is no scope of interference in the iinpugned judgment and order, in the facts and circumstances mendoned above. 11. Resultantly, the appeal fails and is dismissed. No order as to^ccists—— Sd/- I.M-Quddusi Judge Sd/- G. Minbaiuddin Judge Thakur