IN THE: HIGH COURT OF_M^DHYA PRADESH AT JASALPUR . ^ .- - . ^ /». ' r Cr.Appeal No._^..^^ /95 Indal son of Kheduram^ aged a^out 45 yearsm resident of Village Godi,P.S. Dharsi@@^@wan, D istt. Raipur^ M.P. , CF0000058213 APPELLANT State of M.p. APPEAL. UNDER .SECTION 374 RE3POSDENT / OF CODE OF CRIKINAL PROCEDURE. HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. App. No.269/1995 SB: Hoai^ble Shri Justice R.L. Jhasiwar APPELLANT RBSPONDEHT Indal s/o Khediiram Versus State of Madhya Pradesh(Now CG) JUDGMBNT Post forjudgment on@. 09.2009 Sd/- R.L. Jhanwar Judge @/ HIGH CQURT QF CHHATTISGARH AT BILASPUR Cr. Apo. No.269/1995 SB: Hon'ble Shri Justice R.L. Jhaawar APPBLLANT ^— RESPONDENT Indal son of Kheduram, aged about 45 yeai's, resident of village Godi, P.S. Dharsiwaii, Distdct Raipur, M.P.(Now CG) Versus State of Madhya Pradesh (Now CG) Appearaiice; Shri Siirfaraj Khaa, counsel for the appellaat. Shri U.K.S.Chaadel, Paael Lawyer for tiie State. JUDGMENT (DeUvered on & .09.2009) R.L.Jhanwar, J. This Crimmal Appeal is directed agaiast fhe judgment of conviction aiid order of sentence dated 15,2.1995, delivered ia Special Crimiaal Case No. 177/94, whereby, fhe learaed Sessions Judge, Raipur has convicted fhe appeUaat under Section 20 of the N.D.P.S. Act, 1985 (hereinafter referred to as 'the Acf) and sentenced him. to undergo R.I, for six xnonfhs. Brief facts are fhat Arviad Dwivedi (PW-3) Assistaat Sub- Inspector, PoUce Station, Dharsiwa received aa iaformation fhat fhe appeUant-Indal was canyiag Ganja on his cycle and staading in tlie Cycle Shop. On fhis, he accoiapUshed wifh a Constable, went to the Cycle shop at village Charoda, aad searched fhe appeUant. The appeUaat was holdmg a white bag, ia which gaaja ia quaatity of 490 gms. was kept m a plastic bag, He asked fhe appeUaiit aad after getting his acceptaace Ex. P/ 1, gave notice to Cr.App. No. 269/95 hmi Ex.P/2 aad seized ganja vide seizure niemo Ex.P/3. He seized fhe ganja ia front ofwitnesses- Kanial Veraia(PW-l) aad BisaIiii(PW~2). The Assistaat Sub Inspector after reachiag to fhe Police Station- Dharsiwa, recorded FJ.R, Ex. P/5. The seized gaaja was sent to the Forensic Science Laboratory. The report Ex.P/7-A has been received from fhe F.S.L., m which, it has been stated that fhe niaterial sent for exainiaation was ganja, After conipletion of fhe iavestigation, charge sheetwas filed before fh.e Sessions Judge. Charge under Section 20 of tiie N.D,P.S. Act was fraiaed agaiast fhe appellant and it was read over to hun, The appeUaat abjured fhe guUt aad his defence was that he has been falsely implicated io. fhe crmie. The Sessions Judge, after appreciation of the evidence available on record aad hearuig counsel for both fhe parties, convicted fhe appellaat zinder Section 20 offhe N.D.P,S. Act and sentenced him as above. I have heard learaed cozinsel for fh.e parties at lengfh axid have also perused the record. Ouly three witaesses were produced by the pro^ecution. Arvitid Dwivedi (PW-3) Assistaat Sub- Inspector, Police Station, Dharsiwa has stated fhat he received uiformation fhat Indal was carryiag ganja on his cycle aad staadiag ia a Cycle shop. On this, he acconiplLshed wifh a Constable aad went to fhe Cycle shop at village Charoda, aad searched fhe appellant. The appeUaat was holdiag a white bag, ia which, gaiya ia quaatily of 490 guis. was kepf ia a plastic bag, He asked fhe appellaat aad after gettmg his acceptance Ex. P/1, gave notice to him Ex,P/2 and seized ganja vide seizure ineiao Ex.P/3, He seized the ganja ui front of witaesses- Kacaal Venria(PW-l) aad Bisahu(PW-2), After reachiag to fhe PoUce Station- Dharsiwa, he recorded F.I.R, Ex. P/5. The seized gaiija was sent to Forensic Science Laboratoiy. The report Ex.P/7-A has been received froni fhe ,,;:^<^^%^, ^^'"^ 'vS^-^" Cr. App. No. 269/95 ^r F,S.L., iii which, it has been stated fhat fhe uiaterial sent for examiaation is gaaja. Kainal Verma(PW-l) is a hostile witaess. Even then he stated m para 5 aad 6 m his cross-examination fhat Ex.P/1, Ex.P/2 aad Ex. P/3 bear his signatures aiid the article (ganja) was seized in his presence frora fhe possession offhe appeUaat, BisaIiu(PW-2) has also accepted that Ex.P/1, Ex.P/2 and Ex, P/ 3 bear his signatures and fhe article(gaaja) was seized in his presence from the possession of the appellant. In this way, bofh fhe witoesses supported the version of Arvmd Dwivedi(PW-S) fhat the article(gaaja) was seized from the possession of fhe appellaat. The seized article was sent to F,S.L. for its cheinical exainin.ation. The F.S,L. report is Ex.P/7-A, ia which, it is clearly stated fhat fhe raatenal sent for exaaiuiation is gaaja. Arvind Dwivedi(PW-S) has stated fhat he had not asked fhe appellaat regardiiig searchiag hiia by a Gazetted Officer or a Magistorate. It should be asked aad written at ftie tiine of seizure and he had not asked aad written it ia Ex.P/2. It is also clear froni flie stateinent of Awind Dwivedi (PW-3) that after receivmg mformation from fhe mformaat, he had not written it ia fhe Roznaincha Sanha aad also had not sent it to tiie higher authorities. So far as coinpUajice of Section 42 of fhe N.D.P.S. Act is conceraed, Section 42 offhe N.D.P.S. Act reads as under: 42. Power of entry, search, seizure aad arrest without warraat or auftiorization.- (1) Any such officer (beiag an. officer superior iii rank to a peon, sepoy or constable) of fh.e departments of Central excise, narcotics, custonis, revenue iiiteUigence or aay ofher department of fhe Central GovemBient or offhe Border Security Force as is enipowered ia fhis behalfby 1 .&, •y^ ^. ^t j ^/ "•^-....^-<<":'- Cr. App. No. 269/95 ^r general or special order by tiie Central Gtoverainent, or any such officer (beiag aii officer superior in. raak to a peon, sepoy or constable) of fhe revenue, dnigs control, excise, poUce or aay ofher department of a State Govemment as is empowered m this behalf by general or special order of fhe State Goveminent, if he has reason to believe froni personal knowledge or iaformation given by aay person and taken down ia wntiag, that aay narcotic drug, or psychotropic substan.ee in respect ofwhich aa offence punishable under Chapter IV has been conuidtted or any document or otlier article which inay fumish evidence of the. coniraission of such offence is kept or concealed ia any builduig conveyance or enclosed place may, between sunrise and siuiset- (a) enter in.to aad search aiiy such buUdiag, conveyance or place; (b) in case of resistaace, break open any door aad reniove any obstacle to such entiy; (c) seize such drug or substaace an.d aU uiaterials used in the raaiiufactiire fhereof aad aiiy ofher article aad auy aaiinal or conveyance which he has reason to beUeve to be Uable to confiscation under fhis Act aad aay docunient or other article which he has reason to believe niay famish evidence of the comniission of any offence punishable under Chapter IV relating to such drug or substaace; aad (d) detaia aad search, and, if he fhiaks proper, arrest aay person whoia he has reason to beUeve to have corandtted aay offence punishable under Chapter IV relatiag to such drug or substaace: Provided that tf such ofEcer has reason to beUeve fhat a search-warrant or aufhonzation cannot be obtamed wifhout afibrdiag opportunity for the concealoient of evidence or faciHty for tiie escape of aa ofiTender, he may enter aad search such .^..^^ 1 "'^"11. ^... ^^ .^/ Cr. App. No; 269/95 @ ^ biiUdmg, conveyance or enclosed place at aay time between sunset and sunrise after recordiag fhe grounds ofhis beUef. (2) Where aa officer takes down aay iafomiation ia writirtg under sub-section (1) or records grounds for his belief under the proviso fhereto, he shall forthwifh send a copy fherefor" to his imniediate ofiicial superior, Section 42 is inaadatory. It was in^cuiabent on the officer niaJking search to send forfhwifh a copy of iafonriation taken downby fhe of&cer under sub-section (1) ofSection 42 offhe Act Section 57 ofthe Act reads as under : 57,Report of arrest aad seizure.- Whenever aay person niakes aay arrest or seizure under fhis Act, he shall, witihuLa. forty- eight hours next after such arrest or seizure, m.ake a fuU rcport of all the particulars of such arrest or seizure to his immediate official superior. Under Section 57 of fhe Act, a duty has been cast on Arvind Dwivedi (PW-3) to make fuU report of arrest aad seizure to his imniediate superipr wifhia 48 hours. Arviad Dwivedi (PW-3) stated that he has coniplied wifh fhe above requirenient, but Uiere is nofhiag to estabHsh ttiat conipUaiice of above provisions was inade by hnn. Although, fhe above provision is not laaiidatoiy ia nature, but haviag considered all fhe facts present ia this case/non-coiapUaace ofthe above provision, casts doubt on flie prosecution version. Thus, ia fhe iastaiit case, the niaadatoiy provision of Section 42(2) of fhe Act has not been coinpUed wifh. ObUgatoiy provision of Section 57 ofthe Act has also been violated. Therefore, in. ray opiaion, fhe leamed trial Judge has wrongly reached to fh-e fiiiduig, beUeviag fhe evidence ofAr^ind Dwivedi (PW-3) and had convicted aad sentenced fhe appeUaiit as above. The order passed by fhe leamed tdal Judge is Uable to be set aside. t' ;r^% ^ ^^iK: K ..^ /:• Cr. App. No. 269/95 In fhe result, the appeal is aUowed. The conviction aad senteuce unposed agamst the appeUaat under Section 20 of the N,D.P,S. Act are set aside. The appeUaat is acquitted of the charge, He be set at liberty, forthwitii, iF not required m aay other case. \.^' Sd/- R.L. Jhanwar Judge sunita