HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal Agpeal No.98l2006 Single Bench— Hon’ble Shxi Dilip Raosaheb Deshmukh, J. ‘ Banshi Niandave Vs. State of Chhattisgarh Present:- Shn' Abhay Tixxfari, leaxned counsel for the appsllant. Shri U.K.S. Chandel, learned Panel Lawyer for the State. ORAL JUDGMENT (Delivered on 21$ of March, 2006) This appeal is directed against the judgment dated if, 28—09—2005 delivened by Shli A.R. Dhmv, Special Judge, I“ Distt. Durg in Special Case No.26/2004 whereby the appellant was convicted under Section 2O (b) (ii) (B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as the Act, 1985) and was sentenced to rigorous imprisonment for l year and fine of Rs‘1,000[- and in default of payment of tine to further additional rigorous imprisonment for 6 months. Brieily stated the prosecution story is that Sub Inspector Anita Sagar PW-8 posted at RS. Supela, upon receiving secret information about the transportation of illicit liquor by the appellant, went along with the police staff and witnesses Tiharu Yad-av P.W. l and, Bahadur Ram RW. 6 and apprehended the appellant near his house in village 2. i/ Kosana. Thereafter, Sub Inspector Anita Sagar P.W. 8 searched the house of the appellant at 6.40 p.111. Without obtaining a search warrant and also Without recording the information received by her as required under Section 42 of the Act. Inside the house of the appellant, 1 kg and 500 gms of Ganja was found wrapped up in a printed green saree and was; seized Vide Ex. P~2. The Ganja was weighed by Makhan Nishad P.W.. 2 and found to be 1 kg 500 gins. Out of the substance so recovered, 2 samples of 50 gms each were takeh and marked as ‘A’ and ‘B’. The 2 samples marked ‘A’ and ‘B’ along with the remaining Ganja i.e. 1 kg 400 gms wrapped up in a green saree was entrusted for safe custody to Head Constable Bheekamchand P.W. 7, RS. Supela, Distt. Durg. On 2.9.2004, the 2 sample packets were sent for chemical analysis to the Forensic Science Laboratory. Vide report EXP-20, both the packets were found to contain Ganja. After completion of investigation, the appellant was prosecuted under Section 20 (b) (ii) (B) of the Act. The appellant abjured the guilt, pleaded innocence and false implication and led no evidence in defence. The prosecution examined as many as 8 witnesses. Relying upon the testimony of Sub Inspector Anita Sagar P.W. 8 and the report of the Forensic Science Laboratory, the learned trial Judge convicted and sentenced the appellant as aforesaid in para 1. a! ?2‘ I‘ I 3. Shri Abhay Tiwari, learned counsel for the appellant has assailed the conviction and sentence imposed on the appellant on the ground that independent witnesses of seizure Tiharu Yadav RW. 1 and Bahadur Ram P.W. 6 did not support the prosecution story. There was absolumino i evidcnce on record to Show that th€ substance seized from the appellant or the samples taken therefrom were sealed on the spot. It was urged that there was also no evidence to show that the aforesaid articles were received in the Malkhana of PS. Supela after ‘the Station House O$cer had aiiixed his seal thereupon, as required under Section 55 of the A\ct‘ It was also contended that Makhan Nishad RW. 2 witness ‘ of -weighment has also not supported the prosecution story. Lastly, it was contended that before effechng a semre at 6.40 p.m. i.e. after sun set, Sub Inspector Antta Sagar RW. 8 did not secure a warrant of search before eh'ecting the search and also did not record the substance of the information received by her relating to possession of the Narcotic Drug by the appellant at his house. Thereby a serious non—compliance of Section 42 of the Act had taken place. On these grounds, Shri Abhay Tiwari, learned counsel for the appellant prayed that the conviction and sentence awarded by the learned trial Judge be set aside. On the other hand, Shri U.K.S. Chandel, learned counsel for the State has argued in support of the impugned judgment. 4. Having heard the rival contentions, I have gone through the record. ’I‘iharu Yadav RW. 1 and Bahadur Ram RW. 6, both witnesses of seizure of Ganja from the appellant have not supported the prosecution story. A perusal of EXP-2 seizure memo clearly shows that the Ganja was recovered from the house of the appellant at 6.40 pm. meaning thereby that the recovery was made after sun set. There is absolutely nothing in the testimony of Sub Inspector Anita Sagar P.W. 8 to Show that before effecting seizure/shiel/ 25 had obtained a search waxTant or had mcorded the substance of the information mlafing to possession of Ganja by the appellant in his house. Thus, serious non—compliance of the mandatory provisions of Section 42 of the Act Vitiates the prosecution. ‘ v Sgt The testimony of Sub Inspector Anita Sagar RW. 8 does not Show that at the time of seizure, she had sealed the 2 sagnple packets or the remaining substance alleged to have been seized from the appellant. The testimony of Constable Dinesh Singh P.W. 4, Makhan Nishad RW. 2 is also Wholly silent on this point. Head Constable Bheekham Singh P.W. 7 who was the incharge of Malkhana at RS. $upela also did not state that he had received the articles in a sealed ~ condition. A perusal of the copy of the Malkhana Register ’ EXP—l6 clearly goes to show that the 2 sample packets marked ‘A’ and ‘B’ and the remaining Ganja was entrusted for safe custody at the Malkhana in an unsealed condition meaning thereby that the Station House Officer had also not aihxed his seal on the articles so entrusted at the Malkhana. Thus, there was a serious non-compliance of Section 55 of the Act. The possibility that the substance sent for chemical analysis to the Forensic Science Laboratory could have been tampered with, cannot be ruled out. 6. Having thus considered the evidence led by the prosecution in its entirety, I am of the considered opinion that in View of the serious non-compliance of Section 42 and Section 55 of the Act, conviction of the appellant under Section 20 (b) (ii) (B) of the Act and the sentence awaided thereunder by the trial Court deserves to be set aside>/. mm W " 7. In the result, the appeal is allowsd. The conviction of tho appellant undor Section— 20 (b) (ii) (B) of the Act is set aside. The appellant is acquitted and shall be set at liberty forthwith, if not requiled in any other case. Fine if paid, shall «f7 be refunded to the appellant. l SdL ‘ DILIP RAOSAHEB DESHMUKH a f Judge '3 Phya