i.9960/D-287Q«XI IN THE HIGH COURT_OFJUD!CATUREAT BILASPUR "^CR. M. P. N0. ^ livision ~t-'~T ACOUiTTaE-SF^AL N'O.j^ /lo720©&: APPELLANT : RESPONDENTS: ^ <""s^// ^'^^y . ^^'.^/ ^vt. ^'^•' .^^ ^/ -«r^ The State of Chhattisgarh Through - District Magistrate, Raigarh (C.G.) VERSUS 1. Govind @ Penter Sarthi S/o.- Anuj Ram Sarthi, Aged about - 24 years Occupation - Driver, R/o.- Village -Reda Khalhepara P.S. - Dabhara, District - Janjgir-Champa (C.G.) 2. Surendra Patel, S/o.- Shyamlal Patel, Aged about - 24 years, Occupation - Agriculturist, R/o.- Village Reda Manjhapara P.S. - Dabhara, District - Janjgir-Champa (C.G.) APPLICATION FOR GRANT OF LBAVE TO^&PPEAL U/S 378 (3»AND MEMORANDUM OF APPEAL U/S 378 (f) OF CODE OF CRIMINAL PRQCEDURE '1973. ry HIGHCOURT OF CHHATTISGARH : BILASPUR AcauittalADpeal No. 139 of. 2010 . Appellant. ; '^;':THeStateofChhattisgarh ." : Versus '. ' .. .'. -^. . Respondents . ' . <31bvind.@ Penter Sarthi SE another CRIMINAL APPEAL U/S 378(1) OETHE GODE OF CRIMINAL PROCEDURE DB: HonTile MlF.-I. M. .Quddusi 8s HonTsle'Mr. G. Minb'ajuddin, JJ. Shri Rajendra Tripathi, Panel Lawyer for the State/.appellant. ' ^- . ; . Shri Sushobhit Singh, Advocate for the respondents. , .^. :: . JUDGMENT (Orall (Passed on tbis 9th day ofDecember, 2011) Per Dr. I. M. Quddusi, J. The present appeal arises out of the judgment dated 5th Januaiy, 2009, passed by .the Special Judge (NDPSAct), Raigarh in Special; Criminal Case No. 5/2008, acquitting the accused/Tesporidents frpm the charges under Section 20 (b) (2-C) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the NDPSAct'). Brief facts of the case, as per the prosecution story, are that on 28.10.2008 at about 16.00 hours Shri Bhagwat Yadav, Assistant Sub Inspector of Police Station - Saria received information from the informant that two persons in a Maruti Van, bearing registration N6. C.G. 10-F/0119 are going to Chandrapur for selling of Ganja.whi.ch fKey Have. brought from: Orrissa. On receiving this information, after summoning the witnesses, Assistant, Sub Inspector along wifh Constables Mohar Sai and Ashish Sharma went tp Kudhargadhi turning for checking. They stopped the Maruti Van, asked fhe .natnes of both the passengers and enquired about the.'articles.kept4n:the V.. 1 .?i'"11 ^ •%„. vehicle. When it was found that the p.assenger-s of the Maruti .Van were carrying Ganja, fhey were asked t6 give their consent as tp.'- whether they want their/searct'iing be.fo.re a Magistrate or before the: Police. After obtain.ing their consent Assistant Sub Inspector made'a search.and found that in five bags (Borili Ganja.was kept (n the Maruti Van. On weighing total 58 k.g. Gahja.was found,il6ut pfwhich samples in the qyantity of 100 g.m. Ganjswere; prepared'-arid were kept in sealed packets for sending for chemical examinatioTi.; . The seized Ganja and accused persOns.were broughf .to the'police station where the offence was regisfered;:and:thesei2edGanja.was. kept in the Malkhana. The special reportof the proceedings was sent to the Deputy Superintendent of Police, SaFangarh and ..after.. completing the .entire investigation the charge sheet wa's.filed^against the accused persons. Learned trial Court fraraed the charges against the aecused persons under Section 20 (b) (2-C) read with Section 8 of the Narcotic Drugs and Psychotropic Substances Act,,1985,. The; accused persons denied the charges and prayed for friah , • We :have heard learned counsel appearing for the parties and perused the records. . ' Learned' counsel appearing for the State/appellant submits that learned trial;Court has discarded the prosecution evidence only.on the basis of/minor omissions and contradictions in their statements irt rega.rd .t6 colour of the Maruti Van. He further submits that learned trial Court is not justified in discarding the prosecution version.only because the attesting witnesses have turned hostile and ndt supported the prosecution case'. He submits that the po.lice party had: seized. the contraband from .the Maruti Van OGCUpied by~ :the. accused/respondents, which was contained in 5ve bags, hsiving tfae 1 .f- €%<- ^ • ^••:^KS.:i'S£'^ ^- ^ ^..J/- Xi. '¥"•*'<;•"' ,. '"^s^-s^ 7. quantity of 58 kilograra, which comes under the 'commercial quailtity. Furfher, as per tfae F.S.L. report the seized article was ganja arid. tKe; pOlice had conducted the en.tire enquiiy following the pracfice and- procedure in accordance with various. provis.ions of the Act, 1985; However, learned trial Court has held:th^t the possibility oftempering: witti the seized contraband while'keeping the same in safe custody of Police Station cannot be r.uled,:put atid ^ thereby the accused persons/respondents have been extende.d the benefit of doubt. Leamed trial Court, without any basis, h.as incbrrectly opined that the entire enquiiy was conducted in the police Station itself. On the other hand, learned counsel appearing for the responderits supporting the impugned judgment submits that the firidings of fhe trial Court are strictly in accordance .witM .law. He furth.e'r. sutymits; that various mandatory provisions of the NDPS Act':.have..not been followed and the independent witness'es 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. On perusal, pf the record it is evident that the prosecution has examined Kotwar:.Jairam...(P.W.l), Driver Lal Chand (P.W.2), Kushav Pradhan (P.W;3), Constable Mohar Sai (P.W.4), Constable Mukesh Chouhan (P.W.5), Head.Cpnstable;Samay Lal (P.W.6), Assistant Sub Inspector Bhagwat Yaday-(P..W.7), Sub ;Ihspector Swayambar Singh :(P.Wl8.j., Constable Prakash Kumai- tP.W.9), Constable Ashish Sharma (P.W..10). and Home Guard Galaldhar (P.W.ll). Out of .these 11 prosecution :witnesses, 9 are police officials/officers an<l:.two are independent. witnesses to the seizure. These two indepenaerit witriesses as: well as the driver of the 'police Jeep (P,W;.2) have not; supported the prosecution case and have turned;hostae;.;Thys,. everi Y. 1 :i.;« tf recovery of . the . co.ntraband from the possess.ion. of the accused/respondenf's could not have been proved by the prosecution. 8. It is also evident that the mandatory provisions of Section 42, 50, 55 and 57 of the Act, 1985 have not been followed in their letter and spirit. 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 t6 the police station or who may be deputed for the purpose, to affix his seal to such articles or to take samples of and from them and all samples so taken shall also be sealed with a seal of the officer-in- charge of the police station. However, learned Trial Cpurt has .found that the Incharge of Malkhana has committed various mistakes in preparing the receipt (Ex.P/28) viz. instead of 10 packets he had written 11 packets and instead of 104 number for seized article he had written .103, which was related to some other offence. 9. It has come in the evidence of the prosecution witnesses that they have put their signature on relevant papers in the police station itself. Therefore, we are of the considered opinion that in view of the evidence on record learned trial Court has not committed any error under the law in acquifting the accused/respondents from the charges. Thus, there is no scope for interference in the impugned judgment, in th.e facts and circumstances mentioned above, 10. In the result, the appeal fails and is dismissed. No order as to costs. Sd/- I.M. Quddusi -o».judge Sd/- G. Minhajuddin Judge Thakur