'l/ IN THE HIGH COURT OF CflHATTTSGAJ'H AT BILASPLT?. CPJMINAL APPEALNO. "<7'-> ,/2004 a Custody) Versus Hirma Markami S/o Dama Markami Aged about 30 Years, R/o Village Jute Palli, Gram Panchayat Tumsa Palli, P.S. & Dist:, Malkhangiri (Orissa) l<f- ^^ lespondent State ofChhattisgarh Through the Disfaict Magistrate Jagdalpur Dist: Jagdalpur -(C.G.) CRIMINAL APPEAL U/S 374 (2 1 OF THE CRBMINAL PROCEDURE CODE. "*\ HI6H COURT OF CHH.4m5@ARH AT BIL.4SBJI C", No,94S/20Q4 Sinuie Sench: Honble Shri- 1-tirma AftarKami Vs. State of Chhattisaarh ~i?^. r~ /" ?~ & i ~~. rKfcafciNl: - Shri Prafull N. Bharat, 'sarned counsel for "riie a< Shn' U.K.S.Chandei, Panel Lawyer for the State. OR.4L JU&6MENT (&eliyered on 31-03-2006) This appeal is directed against the judg'nerst dated 12-0i-2004 delivered by Shri R.5. Sharma, Special Judge (N.D.P.S. Act.'), Bastar at Jagdalpur in Sessions Case No.47/2003 "•'he"eby the appellant was convicted under 5ection-20(b)(!i)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (herei"afte" referrec! to as the "Act") and wgs sentenced to R.I. for 5 ysars and a f'ns of Rs.25,000/- csnd in default of payment of 'fln©t'o und^fQo sdcii'f'!on<xj R.T, 'for 1 vssr, 2. Briefly stoted the prosecution stor)' is that on 29-09-2003 u!3on "scsiviHQ ^scrs't in'fonn-3tiQ?i th^'t' 01 D^FSOH WGS 'tT^nSDQrtino ganja '" Payal Bus coming from Konta to Durg and was seated at Ssat No.23, Assistant Sub Inspector &ivt'akar Uppadhya)' PV/-1 of Pofice Station-Bodhghat after recording the said infor'matfon "ide Ex,P"l Drocssds-d t^o 't'hs SDoT, A.'t 't'hs bus s't'snd. Jr-3EGdoJDL'ifl ths aDS^H^nt ws.s sestsd in^ids ths bu3 <3^d s f^ddish QFSSH <xir bQQ was kept below his seat. After observing necessary legal ^ 1-fr . '' •r-'^i "-^'-'F?^. formali+jes, the air bag was searched and it wcs found to contain 4 ^,, packets in which ganja like subst<mce was kept. Upon being weighed the 4 packets, weighed 4.500 Kiiogram, 2.500 kilogram, 1.500 Kilograra and 650 Srams respec+ively thus weigh'ng in all 9.150 KiSogram of ganja. From each packet, two samptes of 25 gro.ms each were taken and sealed snd remaining gcnja was also sea'ed. TTie 8 sample packets o^ 25 grams each and the remaining ganja kspt in a seated condition in the aforesaid air beg, was entrusted +o B.P.Joshi, Malkahana Moharrir, PW-2 P.S.-Bodhghat on 30-09-2003 and on the same doy entry was made in -rtie AA.alkhana Register Vide Ex.P-23(C). On 02-10-2003 four pcckets along with the specimen impression of sea! were sent through constable Rajash Singh to Forensic Science Laboratory and entry to that effect was made in tiie A^alkhana Register on 05-10-2003 vide Rojnamchasana No. 269. Four sampls packets aiong w!l+i a memo Ex.P-19 of Superintendent of Pclice, Bastar at Jagdalpu" were delivered, not by Constable Rajesh 5'ngh but by another Constable Jeetu Ram No.90 of P.S.-Bodhghat to the Forensic Science Laboratory after considerabte delay on 10-10-2003. Vide report dated 05-01-2004 Ex.P-25 it was opined that atl the four packets contained guija. After completion of investigatlon, the appellant was prosecuted under 5ection-20(b)(ii5(B) of the Act. The appellant abjured the guilt and pleaded innocence and led no evidence. Tlie prosecution examined 4 witnesses. ReSying upon the evidence !ed by the prosecution, the learned trial Judge convicted and sentenced the appellant as aforesaid in para-1. (Supra) @ •^-yly^l Shri Prafu!! N. Bharat, leamed counsel for the appellant has \, assailed the conviction and sentence awarded by the learned tria! Judge on the fotlowing grounds ;- (A) That the prosecution has failed to establish that +he aii- bag containlng ganja like substance was jn the conscious possession of the appellsn* at the time of selzure. (B) Total non-cotnpjiance o^ Section-52(3) and Section-55 of ,.,'.' the Act vjtiates the prosecution. (Cj In view of the fact that 'the four sample packets changed h'ands after being entrusted to Rajesh Singh on 02-10-2003 and were uttimately delivered on 10-10-2003 by Constable Jeetu Rarn did not rule out the possibilit^' that the seais were tampered 'A'ith arsd the subs+ance examinsd by the Forensic Sclence Laborato"/ was not tiie same which was alteged to have been seized from the appe'lant. 4. Reliance was olaced on Pradesh reported in 2002 (Velu>Be-9)Supreme Court Cases~5%, ,4viw -S ys. State of reported in 2002 (Vclume-7) Suprems CourS" -Cases-419. Bhelo maan: Cour!'-229. of Rafsthan Vs. Oa'jtat reported in A.I.R.-l°80-Supneme Court-1314 and also the decision rendered by this Court in case of Sukhchand @ Sudr"d Vs. of Chhati'Isaarh in Criminal Aooeat No.925/2002 decided on 30-01-2006 in support of the above contention. On the otiier hand, Shri U.K.S.Chande', learned Pcne! lawyer argued in support of the impugned judgment. ^- w^ 5. Httv'ng heard rivcl ^ontentions, I have perused the record. It is now well settled by a catena of decisions, that In a prosecution under Section-20(b)(ii)(B) of the Act, •rfie prosecu+io" has to estab'ish beyond doubt that 1+ie substance examined by the Forensic Science Laboratory, was the same which was aileged to have bsen seszed from the possession of the appellant and that there was no possibilit^' of tampersng with the seals. To ensure this, the prosecution has +o establish two things. Firstly that at the time when the ganja 's alleged to have been seized the Officer effecting the seizure also prepareci the specjrnen impression of the seal used by him to seal the substances and the scmples •haken therefron'. Such specimen impression of seal shoufd also be sent to the For'ensic Science Laboratory fo" comparison. Secondly, compliance of Section-52(32 A Section-55 of the ,4ct ho,.s atso to be ensured and before entrusting the sample packets fc.r safe custody at the Malkhana, the Station House Officer of the concerned Police Stat'on should affix his seal on the samDle packets as also the remaining substance which were delivered for safe custody at i<Aalkhana in a sealed condstion. The provision contained in 5ection-52(3) & Section-55 of tiie Act enure to the bsnefit of tiie accused-appe'lant in -order to estab!ish hi's t^y^f\^'g»»s^i 2i it ;,-^J'-^^?5 i^^'4 6. In th®present case, seizure memo Ex.p-12 does not show ff- that specimen Impression of seal uWto seal sampie packsts or the rsmaining substonces was prepared and sent to F.5.L. alongwitii the 4 sarnple packets tho"33" or a separate specimen of the seal 'ifas prepared. The ganja is alleged to have been seized on 30-09-2003 and was entrusted for safe cus+ody on the same day to A4alkhana Aloherir B.P.Joshi PW-2. However, 1+iere is sbsoiutely no evidence to show that o+ the time of entrustment of the sample packets as a!so 1+ie remaining substance, 1+!e S+ation House Officer of P.5. Bodhahat had also affixed his sea! thereon as required under Section-55 of the Act. Thus,there is total "on- corop'iante of Section 55 of the Act. The entry in •rtie Malkhana Registe" Ex.P-23(C) also doerf not show that the specinien impression of tt'ie sec! used to seat tiie cforescid articles, was also entrusted along with the aforesaid articles. Ex.P-24 is the duty certificate given t" Constable Rsjesh Singh No. 243 of P.S. Bodhghat for taking the four saraple packets to the For-ensic Science Laboratory for examination on 02-10-2003. However, there is no explanation as to why an entry to that effect WGS not made in the Rojncmchasana or at teast in the Atalkhana Register Ex.p-23(C) on tiie same day. The entry in the Malkhana Register Ex.P-23 (C) in column No.8 shows that the four ssmple packets wer'.s sent throuqh another Constable No.192. The name of this Constable has a!so not been mentioned. fi. perusal of the report of the Forensic Science Laboratory shows that the four scmple packets were received for chemical nnalysis thrpugh one Constable Jeetu Ram No.90 of P.S.-Bodhghat on 10-10-20P3. It is thus clear 1+iat four sample packe+s sent for analysis to the Forensic Science Lcboratory, changed hoinds from Constable Rajesh Singh No.243 on 02-10-2003 to Constable No.192 and finclly o" 10-10-2003 w*-£ Constable Jeetu Ram No.90 who ultimately delivered the packefs at the Forensic Science Laboratory. There is absolutely no+hing to show as in whose custody the four ssmple packets we.re. kept after beinq taken out from the A4a!khuia on 02-10-2003 and before de'iyerv.on 10-10-2003. In view of "Hie fact that at Ihe time of ^- •'.!;. ;%ssa effecting the seizure, a specimen impressio" of the seal was not prepared, the totsl non-comptiance of Sectio" 55 of the Act ond also the circumstancs in whjch the samp!e packets changed hands after being taken out from the .AAatkhana for eight days teads to an irresistible inference that the possibi!!ty of tampering with the seal on the sample packets cannot be ruled out. Placing re!iance upo" State of Ra.isthan Vs. iQaulat Ram reported in A.I.R. 1980-Suprsme Court-1314, I am of the considered opinion l+int on this count alone, the conviction and ssntence awarded by the learned tria! Judge deserves to be set aside. 7. It is aiso weli ssttted that where the ganja is not alleged to ha'.'e besn ssized during search of the person of the accused,the prosecutior! is a!so required to establish that the container in which the ganja was alleged to hnve been found was in the conscious possession of the appelln"*. A perusat of 1+!S seizure reemo Ex.P-12 does not show any description of the place where the air bag was kept inside the bus. Assistant Sub Inspector Diwakar Uppadhyay stated in paro-13 that tiie air- bag was kept beiow the seat on which the appsllant was seated. Chhabila! Nsgi PV7-3 stated that the appellant was in posassion of one bag but did "ot state the place where the bag wcs kept inside the bus. 'Aanoj Jain PW-4 has stated in cross-examinatio" para-2 that the air bag was kept nsar the feet of tiie appellant. He further stated that after entering 1+se bus, 1+i& police lifted •rtie bag and took the accused-appellant wi'rfi them. I+ is a!so perfinent to note 1+iat in ths examination under Section-313 of Cr.P.C., rso question was asked to the appellant in this regard. In Avtar Sinah S. CHhers Vs. State -sf Kifi.iab reported in 2002 (Vslufne-7) Supretns r^ ^ Court Cases-419- it was he!d that Dossession is ths core V, ingredient to be establ'shed before the appelisnt can bs convicted under Section-15 of the Act. I" that case, the appe'lants were seated on the bags of poppy husk ioaded on the truck. Another appellait was driving the yehicle. TTie question was whethe" on tiie basis of *he. evidence available on record, it could be sald that the three appellants out of which ane was driying the vehicle and the other two were seated on the bsgs were having such custody or control of the poppy husk so as to constitute conscious possession. In the facts a"d cfrcumstancs of tiie case, •tiie Apex Couct held that it was difficult to "each such a conclusion beyond rsasonabts doubt since the appeltants were not the only persons in the'vehicle. Persons, who were merely sitting on the bag in the absence of iroof or •aiything more, could not be presumed to have any conscious possession of the goods. In the afor' circurostances, the Apex Court set aslde the conviction sentence of the appellants under Section-15 of 1+is N.&.P.5. Act. 8. In the present case, the appeilant WQ.S ssated inssde the bus a"d there were other passengers also traveling in •t+ie bus. Aters!y because the air bag was kept be!ow the saat on which the fcfc- appeS'ant was sea+ed cannot said to constitute conscious possession of the appeltant over the said air bag and its conten+s. In the absence of any positive evidence to constitute conscious possession of the appellant and a!so in the absence of any detaits having been given i" the seizure memo Ex.p-23 (C ) regarding ths place where the air bag was actually kept, I am of the considersd opinion 1+iat 'n the facts and circumstances of ths case the ^ "!t:'i-.-i%E.BSi prosscution has failed to prove beyond doubt that the appellant 'l,, was in conscious possession of air bag ond its contents. 9. Having thus considered the evidence led by the prosecution ir, its entirety', I am of the considered opinion that the convictio" orid sentence awarded by the learned trial judge dsserves to be 10. In the result, the appe'at is aliowed. Conyiction of appeliant under 5ection-20(b)(ii)(B5 of the Act and the sentences awarded thereunder are set aside. The appellant is acquit+ed and shall be set at liberty forthwith, if not required in any ol+isr case. Fine if paid, shal! be refunded to the appellcnt. Sd-/ saheb E Judge