i-egR^ i-«!»it^"<a>^*.- & • /4F^ A 2-3 •^'•/7 --^ HIGH COURT OF CHHATTISGARH. BILASPUR (Single Bench: Hon'ble Shri Sunil Kumar Sinha. J) Criminal Appeal No. 698 of 1995 Itwariram Vs. State 6f Madhya Pradesh (Now State of Chhattisgarh) JUDGM&NT Post for Jud@nent:2--S/06/2011 Sd/- Sunil Kiimar Sinha Judge •• / '««>. eiii AF^,@ ~^=- ^3^-(J. HIGH COURTOF CHHATTISGARH, BILASPUR (Single Bench: Hon'ble Shri Sunil Kumar Sinha, J) APPELLANT RESPONDENT Criminal Aopeal No. 698 of 1995 Itwariram, aged about 30 years, S/o Chetiu-am Sahu, R/o Ramsagarpara, Bhatapara, District u Raipur, M.P. (Now Chhattisgarh) VersuS State of Madhya Pradesh (Now State of Chhattisgarh) (Appeal under Section 374 (2) of The Code of Criminal ProcedyreLl9731 Appearance: None for fhe appellant. Mr. Sandeep Yadav, Dy. Govt. Advocate for the State. JUDGMENT (2S.06.2011) (1) This appeal is directed against the judgment dated 25th of April, 1995 passed in Special Criminal Case No. 95/94 by the Special Judge (NDPS) 8s Fourth Additional Sessions Judge, Raipyr. By/'the impugned judgment, the appellant has been corivicted y/s 20 (b) (i) reqd with Section 8 of the Narcotic Drugs atid Psychotropic Substances Act, 1985 (NDPS Act) and sentenced to imdergo R.I. for 6 months and to pay Gne of Rs.500/-, in defaultto further undergo R.I. for 1 month. Criminal Apueal No. 698 of 1995 (2) The facts, briefly stated, are asunder:- On 2.4.94, appeUant- Itwariram. was traveling in passenger bus No. OR-08-2213 belonging to Orissa State Road Transport Corporation. On a secret infonnation Sub- Inspector - L.K. Pandey (PW-4) stopped the bus at forest bamer, Gariyabeind and made a search in the bus. He found that the appellant was carrying a bag which was containing ^ ganja. He took the appeUant.. to the police station and prepared seizure memo Ex.-P/l, According to the seizure m.em.0, he seized 2 kilograms of ganja. A sample of 100 graras was separated and sample and the reinaining ganja both were sealed in 2 different packets. On 12.4.94, the saraple was sent for its examination to Excise Inspector - A.N.Saluja (PW-2), who prepared a report and expressed his views that the sample' was that of ganja. However fqr confinnation, he adyised .for chemical examination from Forensic Science Laboratory (F.S.L.). Thereafter the sainple was sent to F.S.L., Raipur, froni where, a report (Ex.-P/2) t* was received. According to the F.S.L. report, the article sent was ganja. After CQmpletion of investigation in the above manner, the charge-sheet was filed and the appellant was prosecuted u/s 20 (b) (i) read with^Section 8 of the NDPS Act. During the trial, out of 2 panch witaiesses namely- Vishwanath Sinha (PW-1) and Shivkumar Dubey (PW-3), Shivkumar Dubey tumedj-iostile. The leamed Special Judge ^ceUed on the testimonies of Vishwanath Sinha (PW-l) and Sub-Inspector - L.K. Pandey (FW-4) and held that it was prove<i. ^iSLt the appellant was foiind in possession of 2 •kUograins of ganja, therefore, he was liable for punishment '^.. 1: • • under the aforementioned Sections ofNDPS Act. (3) I. have heard learned Dy. Govt._Advocate appearing on behalf pf the State .who supported the judgment of Special Court. f^) Criminal Aopeal No. 698 of 1995 (4) I have also peinsed the records of the Special Court. (5) Vishwanath Sinha (PW-1) deposed fhat ganja which was seized by the police was in quantity of 5 kilograms. He remained iinassailed on the fact that the ganja was in quantity of 5 kilograms. According to the prosecution and further according to tJle seizure memo the quantity of ^anja was 2 kilograms. Even the Investigation Officer has also stated that the quantity of ganja was 2 kUograms. This contradiction in the evidence of 2 witaesses as also documents prepared by the police was a material contradiction. The leamed Special Judge, vide Pgu-a-5 of the judgment.has simply said that on account ofmistake, PW-1 may, have said fhe quahtity as 5 kilograms in place of 2 kilograms, therefore, it was not very material. I am unable to accept the views of the Special. Judge. I am of the view that where the contraband was weighed before the witnesses SB fhe poUce, and a pancknama was prepared in presence pf the witnesses, such difference in the quantity of contraband iri the evidence of witnesses was raaterial and the credibUity of the seizure becomes shadowed. L6)-" It is an admitted position that the contraband came mto the hands of the/police at forest barrier, Gariyaband, but the seizure -. / ~ • - memo was.not prepared ^at that place. The Investigation Officer aod the panch witnesse-s have stated fhat the seizure memo was prepared in poJlice station, Gariyaband. Even the seizure memo Ex.-P/l shows that it was prepared in police station, Gariyaband. If the cohtraband was" seized at forest barrier, normaUy, the ^'/'' ^r ; y Vs- % ••s; 1 9] ^:,,,£,,-<"' Criminal Aooeal No. 698 of 1995 seizure memo would have been prepared at fhat place and fhe police would not have taken the contraband in its possession without prepsiration of the seizure meino at the place of seizure itself. (7) Though it is inentioned in the seizure inemo that the contraband and the saniple of ganja were sealed after fhe seizure in poUce station, but no document relating to saiaple of seal was prepared. Even it does not appear that the sample of seal wassent along with the sample of ganja either to Excise Inspector- A.N. Saluja (PW-2) or to the F.S.L., Raipur from where the report (Ex.- P/2) was received. This create? ,a doubt that fhe same sample was sent to these authoritiea. Th& sample of the seal is an identification mark on the sample to prove that itwas fhe same sample which was seized from. the possession of an accused. k Where the sample of the sealwas hot prepared nor it was sent to the examiner's of fhe sampl& thexe. remains every possibility of tampering with and change of sample allegedly seized. (8) In the present case, the ganja was allegedly seized on 2.4.94. It was'sent for physical examination to Excise Inspector,- A.N. ^Saluja (PW-2) o^i 12.4.94 who opened the seal of the sample and examined it and thereafter gut anofher seal on the sample and handed over it to the concenied constable. Thereafter, as it appears froin the-;F.S.L. report Ex.-E/2, this saraple was sent to E.S.L., Raipur on 9.5,94. There is no evidence to show that where the sample was-kept from 2.4.94 tiU 9.5.94. \/Ty) \ ^ •'^•\ ^ ••-•^ H •s^ .-^ Crminal Apoeal No. 698 of 1995 '^ (9) In The State of Rajcisthan -Vs- Daulat Ram, AJR 1980 SC 1314, it was held that "Where fhe samples of opium changed several hands before reachirig the public analyst and yet none of those in whose custody the' samples remained were examined by the prosecution to prove fhat while in their custody the seals on the samples were not tampered with, the inevitable effect of the omission was that fhe .prosecution failed to rule out the possibility of the saraples being changed or tampered with during the period in question, a fact which had to be proved Eiffirmatively by the prosecution." (10) The Investigation Officer has riot said even a single line relating to keeping of the sample in safe custody in between 2.4.94 to 9.5.94. It is not their case that in this period the sample ^' was kept in Malkhana. Even the entries of Malkhana register have not been proved to show "fhat the sample was kept there. Therefore, it creates doubt that in fact the sample sent to fhe Excise Inspector -A.N. Saluja (PW-2) as also the Forensic Science Laboratory (F.S.L.) was the same sample which in fact was taken from the alleged seized contraband and there was no tam.pering in / the seal-of 1±ie'sampleafter putting the seal of fhe police officer at the tim.e ofthe selzure. J •••..'..' {11] The leamed Special Judge has not looked into the above facts and has simply.relied fhe evidence ofVishwanath Sinha (PW- vatti -^ Criminal Aroeal No. 698 of 1995 1) and held fhat it was proved beyond all reasonable doubts that the appellant was found in possession of 2 kilograms of ganja. (12) For the reasons aforesaid the irapugned judgment cannot be sustained sind the same deserves to be set-aside. (13) Accordingly, the appeal is allowed. The conviction and sentences awarded to the appellant u/s 20 (b) (i) read with Sesction 8 of the N.D.P.S. Act are set-aside. The appellant is acquitted of the charges framed against him. Sunil Kiimar Sinha Judge - / ~