n W @ Singha; Bench Before Hon'ble High Court of Chhattisgarh at Bilaspur Cr.Ag9eal NoSft 106' ” $ Criminal Appeal und‘e‘r 37 (2) of the code ofCriminaI Procedure - 1973 L 9 PELLANT : Ghansu Alias Ghanshyam S/o Ganesh, :I M 5 m L w W Aged about - 25years, Working as- Labour, u‘ j! We? R/o - Bairagi Mohalla, Powar House, Wk N3 o _‘ _, g,\ . f.» P.S. Chawri, District — Durg (C.G.) VERSUS a "f RESPONDENTS - State of C.G. HI WWM.“ W 6H COURT OF CHHATTISéARH AT BILASPUR' Cr. Aggeal No.54/2006 Ghansu Aiias Ghanshyam Vs. S‘m‘ra of Ch‘nc‘r‘fisgarh ‘ r PosT for Ordzrs ‘. 3i.,07.200é !I!J-— Sd/— DILIP RAOSAHEB DESHMUKH Judge HI6H COURT OF CHHATTISéARH AT BILASPUR Before: Hon'ble Shri Jusfice Dilip Raosaheb Deshmukh Criminai Appeal No.54/2006 Ghansu Alias Ghanshycm ‘Vs. r STaTe of Chha‘r'i'isgarh $‘f Shri Suryakanf‘Mishi‘o, learned Counsel fer ‘rhe uppeiiant Shri M.P.S.Bha‘ria, Panel Lawyer for The S‘ra'l'e. $ J U D 6 M E N T (Delivered on fhis 3f'3ay of July 2006) This appeal is direc‘red againsl' The judgmen? dafed 30lh November, 2005 delivered by Shri A.R.Dhruv, Special Judge (NDPS M Ac?) Durg in Special Case No.7/2005 whereby 'l'he appellan‘l wae convicfed under Secfion 20 (b) (ii) (B) of ‘ll1e Narcoi'ic Drugs and Psychoiropic Subs‘rances Act 1985 (hereinaf‘rer referred To as The Ac?) and seni'enced To rigorous imprisonmeni for Three years and a fine of Rs.10,000/- ana in default fo undergo addifional rigorous imprisonmenf for six monfhs. 2. Briefly si‘afed ‘l'he prosecufion sfory is fha'f on 8.2.2005 Sub— Inspecfor Shri B.L. Ramfeke P.W.‘I.i of Police Sfafion Chhawni whiie on Town patrolling received secre'l' informafion Tha‘r The appelianT was bringing conTraband ganja in a packeT. AfTer recording The informaTion‘so received and informing his superiors, he apprehended The appellanT near Bus-sTancl. The appellanT was carrying a bag in his hand AfTer serving noTice under SecTion 50 of The AcT and obTaining &ywu.wwwm‘ M, mzswWUMD. “my. WM. ., W H — mw @ consem' of ‘i'he appeilan‘l', ‘i'he bag was searched. Upon finding con'i'mband ganja iike sub'sfance inside The bag, The con‘i'en‘i's of The bag were weighed and found ‘ro be 5 kiiogr‘ams and 750 grams. Three samples of 5O grams each were faken from The confen‘i's af The bag and were sealed. Remaining ganja in 1’he packe? was also sealed. The appellan‘i' was i'aken 'i'o Police Sfa'i'ion Chhawni. The seized con‘rr-aband ganja and The sample packe'l's were handed over To Head Cons‘mble Khemlal for safe cusi'ody. An en'i'ry was made in fhe Maikhana regisfer Ex.P.7fi. On 14.2.2005 wifh memo Ex.P.21 of ‘l‘he 16R and Senior Superintendeni’ of Police, burg, Two sample packei's were deiiverid a1“ ‘i'he ‘F;5.L., Raipur by Consi'able Naro‘r‘l’am Singh P.W.8. Vide repor'i' Ex.P.23, i1' was opined Thai bofh fhe sample packe'i's com‘ained ganja. Affer comple‘rion of inveS‘riga‘rion, The appellanf was prosecufed under Section 8 (c) read wifh SecTion 2O (b) (ii) (%) of fhe Act as t 3. The appellan‘l' abjured fhe guilt pleaded innocence and led no evidence in defence. The prosecu'non examined as many as 8 wanesses. Relying upon The evidence led by The prosecafion, The learned 'friai Judge convicted and senfenoed The appellan'r as aforesaid in para — 1. 4; Shri S.K.Mishra, learned counsel for The appeHanT conTended ThaT The convicTion of The appellanT under SecTion 20 (b) (ii) (B) of The ACT and The senTence awarded Thereunder were liable To be seT aside due To The ToTai non-compliance of SecTions 55 and 57 of The AcT. IT was also urged ThaT a specimen impression of The seal was noT prepared aT The Time of sealing The sample packeTs and The remaining conTraband ganja due To which There is noThing on record To show The descrip‘rion of ‘rhe seal used a‘r fhe 1'ime of sealing of fhe sampie packej‘s. If was also poin‘red ou‘i' Thaf Vida memo Ex.P.21 The sample packei’s were handedrover' 1'0 Consfabb Rohi'l' Kumar No.369 on 11.2.2005. Acknowledgmen‘r of F.S.L. Ex.P.22 shows 1‘ho‘i‘ ‘rhe sample packe‘i‘é were delivered on 14.2.2005 by one Consfabie Naro‘h‘am Singh No.864. This cieariy revecded The? ‘l'he sompie packefs moved fhrough differen‘i‘ hands before reochin9,'fhe F.5.L. and The possibilify fho‘r ‘rhe sompie anoiysed by The F.5.L. had been. fampered wifh could no? be ru‘ied out If was dso urged Thaf independen? wi‘rnesses Hurendm V’adav P.W.5 and Ponchuram P.W.6 did no? supporf fhe prosecu'l'ion s‘i'ory z and There . were maferiol . . mferpoio‘i’non . . In 1'he weighmem . Panchnama Ex.P.14 and sample Panchnama Ex.P.3 which creoi'ed a serious dem‘ in The prosecui’ion sTory. On The oiher hand, 5hri M.P.S.Bha1'ia, learned Panel Lawyer argued in supper? of impugned Judgmen‘i‘. vs 5. Having considered 'ihe rival submissions, I have perused fhe record. In an offence under SecTion 20 (b) (ii) (B) of 'rhe Ac‘r ‘ihe prosecu‘iion is required 1’0 prove beyond doub'i' 'i'ha‘? The sample packe‘is analysed by 'ihe F.5.L. were The same which had been prepared and sealed aT The Time of seizure. The prosecuTion has To eSTabiish ThaT a specimen impression of The seal was prepared aT The Time of sealing The samples so as To faciiiTaTe comparison from The descripTion of seal given in The reporT of The TESL. and To ensure ThaT The seals found on The sample packeTs by The F.5.L. Tallied wiTh The seals puT on The sample packeTs aT The Time of sealing Them. SecTion 55 of The AcT also provides ThaT before enTrusTing The sample packeTs aT The Malkhana, The STaTion House Officer shall puT his seal on The sample packeTs. This ensures ThaT The sample packeTs ape noT Tampered wH'h. IT is aiso 'the dufy of fhe prosecu‘fion 1'0 accounT for fhe possession of The. sample packefs affer They are Taken ou'r from the Malkhana and Ti“ They reach The F.S.L. ”.6. Consmbie Ashok Kumar P.W.3 who was presenf during fhe alleged search and seizure did no? “resfify Tha'r The conTraband ganja was sealed or any samples faken fherefrom were sealed. I1' renders l’he very vague Tesfimony of B.L. Ram'l'eke P.W.7 in paras 5 and 6 dqub‘l'ful. Harendra P.W.5 also si'a'red Thai in his presence no search was conduc‘red and he was asked by The police To accompany Them To P.§ Chhawni where all papers were prepared and goT signed from him. Panchuram P.W.6 also Turned hosTile and did noT supporT The prosecuTion case. D. Pradhan P.W.Z who-did The weighmenT of The conTraband ganja also did noT supporT The prosecuTion sTory. l BLRamTeke P.W.7 also did noT specifically sTaTe in paras 6 and 7 Thar 3 samples of 50 grams each were separaTed from The ganja found 1h l possession of The appellanT and were sealed. He also did noT give any descripTion of The seal used by him To seal The sample packeTs and gave no explanaTion for noT affixing The specimen impression of The seal on The seal Farm/mama Ex.P.15. V The evidence led by The prosecuTion does noT show in any manner ThaT a specimen impression of The seal was prepared by A.S.I. Shri B.L.RamTel<e P.W.7 while sealing The samples, alleged To have been Taken afTer effecTing The seizure of The conTraband ganja.‘ AlThough a seal Pancfmama was prepared vide Ex.P.15, yeT a specimen impression of The seal was noT affixed on iT. The seizure memo ‘ Ex.P.16 also’does noT conTain a specimen impression of The seal. The memo Ex.P.21 of The Senior SuperinTendenT of Police, Durg, dew shows ‘rhaf on 11‘22005 Consmbie Rahif Kumar‘ No.369 was aufhorized +0 Take The sample packe1's To 1'he F.S.L. Raipur. However, fhe acknowledgmeri‘r Ex.P.22 of ?he F.S.L. clearly shows fha‘r The sample packe'i's were received frcm Cons‘i’able Narofi‘am 5ingh No.864 on 14.2.2005. ConsfaHe Rohi? Kumar was no? examined by fhe prosecuTion. Consfable Narof‘mm Singh P.W.8 did ne‘r give any expiana‘i’ion as f0 who enfrusfed ‘i‘he sampie packei's 1'0 him on 14.2.2005 for- being Taken ‘l'o The F.S.L. Thus, i'i appears 'i‘ha'i offer being faken ouT from The Mal/(harm on 11.2.2005, The sample packeTs passed in_ differenT hands. The specimen impression of The seal drawn by The F S L shows ThaT The sample packeTs received m The F 3L bore The impression “K.R.B.5.C. OTC/MPP The seal Pane/mama Ex.P.5 also does noT give any descripTion of The seal used for sealing The sample packeTs. The words “K.R.B.S.C. O.T.C./M.P.P" do noT have any resemblance wiTh RS. Chhawni or A.S.I. B.L.RamTel<e P.W.7. s9. f a. 5hri B.L.RamTeke P.W.7 did noT depose ThaT before enTrusTing The sample packeTs aT The Ma/Irhana on 8.2.2005 The S.H.O. of P.S. Chhawni had affixed his seal on The sample packeTs. Thus, There has been ToTal non-compliance of SecTion 55. The record of The Trial CourT also shows ThaT The remaining sample packeT and conTraband ganja were noT produced before The Trial CourT. Thus, The possibiliTy ThaT The sampie senT To The F.5.L. could have been Tampered wiTh could noT be ruled ouT. .193 In l/aiis‘a/a v. Siafe of Kern/a 1994 (1) M.P.W.N. 137 (SC) where The conTraband ganja was produced in CourT afTer The long delay of Three monThs and There was no evidence To show wiTh whom The samples were lying and wheTher iT was sealed, The appellanT was acquif'i'ed. The Apex Cour‘r observed The? “.,.... No doub‘r The ‘rmfficking in narco-i'ic drugs is 'a menace To ‘rhe sociefy bu? in The absence of safisfoc‘rory proof, The Cour-1‘s canno‘r convicf". In The present case also fhe seized con‘rmband ganja and The remaining sample packei‘s were no? produced before The Trial CourT so as To faciliTaTe comparison of The seais on iT wiTh The reporT of The F.S.L. No expianaTion was forThcoming regarding The possession of The sample-affer' iT was Taken ouT from The Mal/(hang. ConsTabIe RohiT ¢$gmar who was auThorised by The Senior SuperinTendenT of Poiice for deiivering The sample packeTs was noT examined by The prosecuTion. Igwas noT'explained as To how The sampie packeTs were deiivered To ConsTable NaroTTam Singh and possession of The sample packeTs from 11.2.2005 To 14.2.2005 was also noT‘accounTed for. There is noT even an ioTa of maTerial on record To show The descripTion of seal which was used To seal The sample packeTs. There is ToTal non-compliance of SecTion 55 of The AcT also. g» 'mr To” Having Thus considered The evidence led by The prosecuTion in iTs enTirely, I am of The considered opinion ThaT in View of The facTs menTioned above, convicTion of The appellanT under 5ecTion 20(b)(ii)(B) of The AcT and The senTence awarded Thereunder are liable To be seT aside. 11} In The resulT This appeal is allowed. ConvicTion of The appellanT under 5ecTion 20 (b) (ii) (B) of The AcT and The senTence awarded Thereunder are seT aside. The appellanT is acquiTTed and shall be seT aT liberTy forThwiTh if noT required in any oTher case. Fine, if paid, hall be refunded. /) Sdl— DILIP RAOSAI-{EB DESHMUKH Judge s