EIiii'll B;l. l^il' •1) '•! ':-:J -I ;T'^ •yswsKyasa. 'iwiGitn®AO aaoo^^^a^ 'wvsMfis «>v •[^)-OJ vpewwsa llsiaW^aoi-HO^s'^oHoj »3®o asnoii yo^wg'^no.ita, VBS»WaaVE»SI»3 VtWSS SISBIKi^SBS m^s& ('0"3)«riEiWWsa iwe.md 'S'd '•INra8<^®BN WPIB'T) .BB8BM •uSBmtnqi j0 luapisay -SJ:A ^g »noqv {MSy 'iEpais'siBisiBfunoo/g swwwiaaamt, *fe (•0-0) •.mdn?a ^ 'jE^BtEai^Bi 'spaes, jotBA .naad •(UA 2,t woqv ^wmyifQ/'s •e ^ ,-••'* •^ \^^ ('O'O) •WdiBa JsSBmiireqg 'liOBaiii »vSi.itpjsag-t^eq.aiBiia •WW 'pK^E^qit *8<I lapo"^ agsgiA 'jo 5iuapiBaa's"Aie ^nsqy pagy iHB,ia<^»»®0/S aavsWRKflaiwaiio'T w •f^ i»m :ss^Pi®aay i-a-sl Wfaa/ ^\ OM'wadwivNireso muswna 'AV aratfttTOKtftraoiaaoo aoaa amu, in <1 aT*ON30Vd •^ 10 HI6H COLfltTOF CHHATTIS6ARH ATBILASPUft CriminaIADDealNo. 197/2006 Umedi Kumar Scihu A Others ~ Vs. State of Chhattisgarh -^"l Postfor Judgment: i<3.05.2006 Sd-/ Dilip Raosaheb Judge ""^ K;:;];u. s.-^. HI6H COURT OF CHHATTIS6ARH AT BILASPUft Crminalj^BBeaLNo, 197/2006 Umedi Kumar 5ahu d Others Vs. State of Chhatt'i^arh. Singfe Bench: Hon'ble Shri Diltp Raosaheb^ Oashmukh, J. Present: ShriPrakod't Tiwari, ieamed counsel wi-th Shri Avinash Kumar Mis*tra/ teamed counsel for the appettonts Shri Ashish Shukla, 6.A. for Ihe StatB. JU06MENT (Detivered on .tott~dayofMay.2(X)61 This appeal is directed against the judgment dated 6.2.2006 deliveredbyShri T.K.Jha,SpeciQl Judge, Dwtewada in SessionsTrial N6. 4/2005 wherebythe<^)pellants were convicted under Sectipn 20(b)(ii)(C) of the Narcotic Or'ugsond Psychotropic Substonces Act, 1985 Oiereinafter referred to as 'tihe Act'1) wd were sentenced •to undergo rigorous imprisonment for 10 yedrs ond d fme of Rs.1,00,000/- ond m defoutt of -the same, to undergo additionat 5.1. for l year. 2. ' Brief facts of the case arel+ioton 9.10.2005, upon receivmg 'secret informort'ion thot contraband 90hJa was b®in9tronsported from Suknia to Jagdalpur in a ^unlis vehicte bearin9 No. C6-04/6/2126 Shri 6.N. Singh, P.W. 5 Station House Officer, P.S. Tongpal, Disrtt. &on"tewucla reduced the secret information to writinq and <xfter •^;. • ':• :; '':'.'-1:'''''^ '.;— .'^ informin9^is senior officials, irrtercepted the above mentioned velitcj ;;y^s^S^<6KiBiifi,,Mtt^ • i^E?""'3''.! ,' :^iB^) ^- tn front of P.5. Tongpal , Dustt-. t)<mtewada. The oppellnnt Umesh Kumar Sahu was driving the Qualis arid the crt+ier co-accused appellants were seated inside. After completion of the necessary legal formalities, secu'cttwas Conclucted <md totul quimtity 6f i^ 98 kgs. in 4 packets was seized from the possession of the appetkmts yideseiaire meino Ex.P-12. Two sagiples of 25 gms. each were taken 1 ! - : " ' ::• out fpbnv each packet ond seated vide Ex.P-10. The 4 pactets contdining ganja and the-8 sample packetstmd also the (^atis vehicte bearing No. C6-04/B/2i.26 weire eritrustecl for safe custbdy at •the AAalkhona of P.5. Tohgpal to Head Constdble C. Tigga P.W. 1 who made anventr'y thereof in the Atoilkhana Register' vide ExJ^l (c). On llt2.2©05,4 sample packets ofganja miapked A-l, B-l, C-l and B-l wer®sent for chemical (nnalysis^ te t^ •th® Superin'tendentof Police EX.P-M l+ii^gh'eonsfableSomanWflrkamNb. 505. These 4 sample packets were detiyered by Conslable Somdn ffiarkam No. 505 at the FSL, Raipur on 14.2.2005 videacknowledgment dated 28.6.2005 Ex.P-32. Vide report Ex.P-34, -the F.S.Lconfirmecl that^all -the sdmple packets conlttined ganja. After comptetion of inves1^utio(i,thei^petlcmtsw^eipro»cutedunder^^ •(c):ofthe^ct....' : ; : • ,'-:: :11;: 1: '•. •-:: •'; • . 3i 'T^ofiffeWcmts^ innocence and ted no ^ideniiA^ ih yef^ce.^^ ^^ T^ many txs 5 wjtnesses. 1 The leamefl trial?3u39e ret^ingsupon •t+ie sole testimony of Sub Ihspe<^r ^N/ Singh P.W. ^jeonvic1^:a^ the appellants us aforesaid in-pard 1. 4. Shri Prakash Tiwari, learned counsel'for thec^ ai|^u^ th<rt the independentwt1r»sses;^nWl^ct^P.W.2and^ Sethia P.W. 3 did not support- the •t'^iir^ny ofi^Sub Inspiector| ^ h"^<*< ^-^-^•[^-•T' h"*crt**te^ "•4^^sf^^ ^- Singh P.W.5. There was no evidence to show that the gcnja was seized fronn the conscious possessioh of the appeilants. A Joint seizure menno Ex.P-12 wds prepared by Sub Inspector 6.N. Smgh whereds the evidence of Sub-Inspector 6. N. Sihgh did not diow 1+iat each of the oppellant was seated in the Qualis vdiicle in conscious possession of 1tie contr'aband ganja. The testimonyof l-1ead Constabte f.' -.. • • : • C. TiggaP.W. 1 wasalso referred to'white arguing that it is extremely doubtful that Sub Inspector 6.N. Sin^h P.W. 4 had sealed the sample packets in ttie presence of theflppellants at -the time of affecting the seizure. Ex.P-12 seizure memo was also referred while arguing thdft it was meritioned therein that the entire 4 bags of iganja asalso -the 8 sample packets we.re sedled <rt 1.50 pfli. whereas •the wei9hnient parichncuna showed that •the sdmpte packet^ were sealed dt t.00 p.m. The testiniony of haad constable C. Tiggn^P.W. l credted a serious doubt tha-t- till depositing the entire quantitY of seizedganja in 4 bags at the Mdlkhdna, Shri 6.N. Singh had not taken cny samples therefrom. Lastly, it was argued that •the possibility •riiat sample packets examined by the F.5.L were tampered with, couldnot be ruled out becouse the oonstable to whom ftesample pdcketsweFeentrustedbn. 11.2.2005 by meino Ex.P-31 of the Superihtehdent of Poticie was not exdminecl to explained the reoson for the delcy in delivering Tthe samplesart- theFSLon 14.2.2005. tt- wasalso poirrted out that •the copy of 1+ie Atalkharia Register Ex.P-l ^) did not ishow that |any identifying marks were put on •ttie sample pdckets; Itwois tilso sHown tliat the impression of 1^ seal was alsohoVdeposited atong'withlthe seized substcalce and the seated aimple packets at the Mialkhoria. Therefore, the mention of identifyirig mdrks A-l, B-l, C-t and &-|l to be Superin-t-endent of Police, Dantewada did not ryle out the possib|lity found on the sample packets vide memo Ex.P-3t of ttie tariy>*»ftrtit4*nfn»*n»Ea2g)^^t 4"' •/-.f.. that 1+ie sampiles had been tampered with. On •these grounds. it was prciyed that the conviction of the dppetlants flnd the sentence awarded by the learnect trial Judge was Inble to be set oside. ''tr.-.' '..•'•."•'..• 5. On the otherhand, Shri Astiish Shukla, leamed ©ovemment Adyocate ptaced reliance on Afdufan idl and Anoitier Vs. Stafe of :!„-„:„..- •' - ••^^.^.^.:.. • l-1imadial Pradedf reported in -AIR 2003 Supreme Court 3642 while arguing that -Hie testimony of Sub Inspector 6.N. Singh ctearly esttiblishes thut ttte appellants knew ubout-tiie transportotion of contraband ganja and were travelling together in •the Qualis vehicle. Therefore, conscious possession of each appellant over the quantity of ganja seized was'established. Reliance was also plnced on Afer/p/? Sinah Ancand Vs. Slvte 6f West Benaal WX3Q W Gfimes 390 (SC) wh\\e arguing that the mere fact that Anil Pandey P.W. 2 and Bhayrt Sethia P.W. 3 had turned hostile was notsufficient to disenrd the testimony of Sub Inspector 6.N. Singh. 6. Having cpnsidered -the rival submission, I have perused the record.,' An offence under Section 20 (b) («)(<;)of -the Act entculs verysevere cnd harsh punishment. It is, therefoFe, obligdtory on •the prosecution to prove by leaying legcil, reMable ond cogent evid&nce that from-ri'ie quanti'ty bf ganja sejzed, samples were taken in preserKa of the cppellants/ wew sealed in their pi^sehce^^^m deposited in the Malkhand of the concemed P.S. without undue delay. It iscl»necessary^for the prosecution tb establish^that from the time of seizure and sealing of'tlTe cbrrt'rotiond gtinjaos ialso the !•.....- ..^' .:. . samples takeh therefrom to the time when the sampte pawl<e^ [niil4l^li|Sli<lilKI*nJi ^SiWSS^SS L-5-- li.lU reached the FSL; Ihere was no possibility of tampering with the samples. 7. The recoiti of jtie lower Gourt' shows that the 4 bags conl'ainjng Contrabdnd gonja or the 4 sampte packets retained at the Malkhana and the 4 sample packets returned by the F.S.L werenot ppoduced before the trial Cour|t so as to facilitate a comparison of •the seals affixed on •ri'ie sample packets before -they were sent for examination to 1+ie F.S.L. In the present case, it isalso not disputed that the specimen impressipn pf -the sealused to seal sampte packets wofi not separately sent along with sample packets to the F.S.L,. The specimen impres^ion of the sealon seizure memo Ex.P-12 is whotly ineligible ond does not mtrt'ch with the description of the sealshownon the report of the F.S.L Ex.P-34. The tBStimony of Head Constable C. Tigga clearly Aows that no samples were taken on •the ^ot from the 4 packets of contrabandganja by Sub In^»ector©.N.Singh. It alsoshows total non- Complionce of Section 55 of 1he Acl- smce the Head Constable andnot-the 5.1-1.0. ofP.S.Tongpat had separated and sealed Ihescimples from lhe4 bagsof contn kept at the Malkhana. 8. The seizure memo Ex.P-12 nientions that at 1.50 p.m., •the 4 bcgs conluining 98 ^s ganja twere sei2ed and sedled and^also diows thttt two sampteis of 25 gms each from each packet were prepared sepoircrtely <md sealed, niecming^^^ ^ total number of 8 samptes of 25 gms each were prepaped af the time of affecting the seizure memo. However it js bome out from thej wejghment Pondinama Ex.P-10 •that the samples were prepared any sealed at 'l ' " : ; ^ 1 p.m. which createsa doubt. Nospecimen impresSionof^ affi?®don1he weighment panchncmna. The testimoriy of; C. pFiggaj se^v^^s^ SSet t» ^ SSSSBM vs :1 :'. packets were kept from 11.2.2005 to 14.2.2005. This lacuna also crea-hes doubt in the pr'osecution story and does not rule out the possibitity that the sample packets sent fpr diemical exnmination •to the F5L had been tampered with. 10. IndependentwitneSsAnjlPandeYP.W.2andBhagatSethiaP.W. 3 hdye not supported -the prosecutionstocy in any m<ainer. Nothing hds been elicited in cross-examination to show that their testimony wcis false that crt- the behest of the Police,'rtiey had simply putthe.ir signatureSonthedo<Mn ntsof»izureof^ecorrhxibandgainJa.8oth have admitt-ed that their signatyres wepe taken at 7-8 p.m. at P.S. Tongpal. In the facts cuid cjrcumstdnces mentionedoibove, thisalso renders the testimony of Sub Inspec+or 6.N. Singh P.W. 5 doubtful. 5o far as the case of /W /»»wl^ 5;to;teo?fAieni&2003 (4) Crimes 390 (SC) is concerned, in the facts and circumstances of the cese, it does not help the proseaition in yiew of the materinl omissions 'qnd contradictions in 1^e t^imony of Syblrtspector 6.N. Singh and Head Constable C. Tigga. The testimony of Sub-Inspector 6.N. Singh' that he had taken- 2 sa(npijps of 25 gms each from each bag coolaining contraband ganja on the spot is Thus rehdered unwort+iy of credit. 11. The testimony of Sub Inspectprfi.N. Singh P.W. S also does not. showostowherethecontrabandg<mjatentameclin4b<>gswasl<eptin the Qualis vehicle. In pdra 4 of his testimony, he also doe^ not nientjon •that the 4 bags of contraband ganja was being transport^ by the<ippeltcOTtsina(^disvehiclepr'thattheappelkintUmes^ ,SaHu was driying;'the vehicle and ^at the other co^cuseti ^ seated in the vehicle. In dbsenceiofany^cheviderK»,itisdiffic^ to hojd thc* the oppellants were trWSportjng 98 K^ of eori1^^ ganja in 4 bdgs in -the Qualis vehicle bearing No. C6-04/B/21.26. ^_ y"" ^" -8- mention of the Qualis vehicle bearing No. C6-04/B/2126 is to be found in the entire testimonyof Sub Inspector 6.N. Singh. The case of Madan Lal cnd Ano-lher Vs. Slaie of Himachal Pfadedl KSk 20 Supreme Cdurt 3642 cited by the leamed fiovt. Advocate does not therefore, help the prosecution inany manner. 12. Having thus considered the evidehce led by the prosecution in its entirety, the followin9 pointsemerge: A/ There is-no evidence to show •that98 kgs of ganja was being tronsported by the dppellonts in G^ualis vehicle No.C6-04/B/2126 so as to draw an inference that the appeltants were in conscious possession thereof. B/ The testimony of Head Constable C. TiggaP.W. 1 renders the tesfimQny of Sub Bispector 6.N. Singh wholly unworthyof credit. C/ No explanation is forthcoming as to any detay in reaching the sample packet to the F.S.L. Non ' examination of Constable Somnn Atorkam alsp create^ aserious dent in -riie prosecution story. D/ The^property in the cdse i.e. 4 bags containin9 / contraband ganja ond -the 4 sample packets which were received from the ES.Ldfter the chemical exainination ond the 4 samplepackets retamedat AAalkhana were not pf'oduced befor-e the trial Court. E/ IridependenT witnesses Anil Pondey,P;W. 2 andi Bhagat Sethia P.W. 3 did not support- thel prosecution story. ^: F/ The ppssibility that the sxmple packets examined by the F.S.L could have been tampered wi'th could not be ruledouT. ill II ! ^3SS Se^S?SS^^^S^S^^^® ^- 13. For the foregpirrg reosons, conyiction of theflppellonts under Section 20 (b) (ii) (C) of -rtie Act and the sentence owarded thereunder are lidble to beset aside. ''V:.; . • • •'. . ' • • • . • ' •• • ' 14. In the result, -riie appedl is allotwd. Conviction of the appetlant under Section 20(b)(ii)(C) bf the Act and the sentence nwarded thereunder are set aside. ThejiOppeltants are ttcquil-ted and shall be set at liberty forthwjth, if not-requirecl in'any otlier case. Sd-/ • Dilip Raosaheb Deshmukh Judge ^ Priya