Sing§e 3am?! EN THE HONJBLE {gin ooURT or gmATTIsGARH AT BILASPUR CRIMINAL APPEAL Ne. _ié/ [2004 APPELLANT ; l IN JXIL s vvf WVI‘w ndv .c3‘€ VERSUS 1g {i3 3%P0NDENT 3 cRIMINAL AP§EAL U/s 374(2) OE PENAL oonE R/w SEcrIoN 36w f0? N‘Doposo ACE 1985u wNVI GI‘ ION Navin Kumar singh $011 of late ajkishore singh Rajput, aged about 36 years, resident of Phatuha, Pas. Phatuha. District Patna (Bihar) State 0f Chhattisgam, Through :- P.s. Akaltara, District— Janjgir-Champa (C.G.) f, SENTENCES @x R Navin Kumur Singh ' Versus Sinfe 9f Chha'rfisgarh shri smitendm Dubey, Come! for me appetm. 1 V f j 5mg u.lcs.chmdel,PL.fo.-+he sum. § v JUDGMENT (Delivered on 17$ of February 2006) This appeal is directed against 1he judgmf dated 31.8.2004 delivered inr $pecial Case No.10/ZOO4 by Smf. Amrndha Khare, Special Judge (N.D.P.$.Ac1'), Bilqspur whereby the qppellanf was convicled under section 20(b)(ii)(C) of the Narcotic Drugs ondr Psychotropic &.ibstance€ Act, 1985 Glereinofter referred to as ‘the Act’) and was sentenced to rigorous imprisonment for 10 years and o fine of R54 Iakh and in default, to undergo additional R.I. for one year. 2. Briefly stated the prosecution case is that on 1.2.2004 on _ receiving secret information about the illicit possession of ganja, Assistant Sub-Inspector D.R.Yadav P.W.3 recorded the information vide Ex.P.1 and after sending a copy thereof to his superior proceeded to the spot with police staff and two independent witnesses i.e. Jaipal Singh P;W.1 and Ashok Kumar (not examined by the prosecution). On reaching Wgdmn chowk, Baloda, they found the appellant carrying one blue coloured bag and a water-proof plastic bag. After giving noticeunder Section 50 of the Act and after recording consent of /W @J fhe appellan‘f ‘ro be searched by A.S.I. DRYodnv P.W.3, fhe “two bags were searched. I? was found to carry ganja iike subs'rance. Weighmerrl' Pam/mama was prepared by Kunjbihari Dewangan (nof examined by The prosecu'rion) vide Ex.P.6 md if was found fhnf 1he ‘rofal weigh? of fhe ganja in +he mo bags was 20 kgs. If was no? men‘rioned in Ex.P.6 as 1’9 wha'r was the independent weighf of 'I’he confen'i's of each bag Two samples of 2§ grams each were faker! from v each bag and were sealed. The two bags were also se nled. The blue coloured bag was marked as 'A' and fhe samples taken ‘therefrom were marked as ‘A-1 & A-Z'. The wafer~proof plasiic bag was marked as ‘B’ and #he samples taken fherefrom were marked as ‘B-l 4g 8-2'. A:5.I. D.R.Yadav P.W.3 affixed The specimen impression of seal‘ on fhe seizure memo Ex.P-7 which showed 'rhaf if had fhe impression “EWOgO m3?" and on Top of ii- there ms some impression which is not iegibie and nemaner "waif was wring". Asa; D.R.Vndav P.W.3 handed oiler +he fwo bags and 1he Two samples to JLInkda, Station House Officer, Police Station Akaltara on 1.2.2004 but did not ensure that the Station House Officer would affix his seal on the two s led bags as well as on the samples. An acknowledgment Ex.P.19 was obtained from Head Constable Budhrom Boghel (not examined by the proserution). On 3.2.2004 vide memo Ex.P.16 of the Superintendent of Police, Janjgir-Champa, the samples marked as ‘A-l and B-1' were sent through one Constable Shankerlal (not examined by the prosecution) to the Forensic Science Laboratory and was received on 4.2.2004. 0n 10.03.2004 after conducting various tests, it was opined by F.S.L. that both the packets ‘A-1 at B-1' had contained ganja. Since the quantity alleged to have been seized from the appellant was commercia! qumfify, prosecu‘rion under Secfian 20(b)(ii)(C) was launched against ‘l'he appellant 3. The appe“m¥rabjured 1he guilt, pleaded innocanae and ‘ed no evidence in defence. The prosecution examined independenf wimess Jaipni Singh P.W.1, PaMnri Sheikh Gujar P.W.2 who had prepared ihe spa? map, A.5.I. DRYarinv PrW.3 and 5.14.0. J.L.Lakdu P.W.4 and rgVed fhe repor'r of 1‘he F.5.L. Ex.P.18. The Trial Judge relying upon the evidence led by ihe prosecution convicted md semenced the appfllant 4. Shri as Shailendra aforesaid in Dubey, paragraph learned 1. counsel for the appellant has argued that total non-compliance of Section 55 of the Act vitiates o the prosecution since the prosecution did not lead any evidence to show that the 5.H.O. of P.$. Akaltara had put his seal on the four sealed sample packets and the two sealed ’bags and that these articles were kept in’ Mal/(hand of Police Station Akaltara. The Mal/(hand register of P.S. Akaltara was also not produced and proved. The property i.e. the two sealed bags and the remaining two sealed samples g i.e. ‘A-Z & B—Z’ was not produced before the trial Court for comparison of the seals by the trial Judge. The constable who took the sample for analysis to the F.5.L. was also not’examined. He further pointed that specimen impression of seal on seizure memo Ex.P.7 did not tally with the impression drawn on the report by the F.S.L. Ex.P.18. It was thus clear that the substance which was sent for analysis to the F.5.L. was not the same-which was alleged to have been seized from the appellant. The learned counsel further argued that the evidence led by the prosecution did not prove that the appellant was in conscious possession of the gan‘k alleged to have been seized from him since Jaipal Singh P.W.1 had in his cross—examination para 3 clearly stated thatthe appellant was seen sitting on the table in the hotel /f#&&,,ei of one / (5D Kilnjbihcri md one bag was kep‘r on The fubie and anoi’her bag was kep'r below 1he Table. Since no reliable evidenae was adduced 1'0 show, 'I'haf fhe nccuséd-appeilanf was wen carrying fhose fwo bagg, if was n91 proved fhaf the wbs'l'ance alleged 1'0 have baen seizad from the a§pellnn+ was in his conscious possession. OI The ofher hand, Shri U‘.K.5.Chandel, Panel Lawyer fonj‘he sfaie argued in supporf of 'lhe impugned Judgment fhough on a comparison of fhe specimen iinp‘ré'ssion of ihe seals on 1ne seizure memo Ex.P.7 md the impression of me seal drhwn by me F.s.L. on m repon Exam, he could no+ deny 111m The fwo impressions were absolu‘rely different 5. Having considered the rival submissions, I have perused the record of fhe Special Case No.10/2004. Offence under Secfion 20(b)(ii)(C) of 'rhe Acf involves severe punishmeni' which shall nof be less Than 10 years bu‘r which may exfen‘r 1'o 20 years and also involves a fine which shall no‘l' be less than one lakh rupees but which may extend to two lakh rupees. It is, therefore, the pious duty of the Court trying such offences to apply its judicial mind in minutely verifying whether the mandatory provisions of the Act had been complied with and whether there was any possibility that the substance examined by the F.5.L. could have been tampered with, instead of mechanically recording a conviction. Regrettably, the learned trial Judge failed in her duty. 6. The record of Special Case No.10/2004 clearly shows that at no point of time during the entire trial the two sealed bags or the sampies 'A-Z d: B-2’ were produced before the Court so as to facilitate scamparison of the seals described on the report of the F.$.L. Ex.P.18 and the seizure memo Ex.P.7. The testimony of A.5.I. D.R.Yadav in para 6 shows that he did not think it necessary to obtain any acknowledgment from Shri J.L.Lakda P.W.4 after entrusting him with ’ :\7\. ;The Mo «ealed bags and fhe four sealed samples as menfioned above. iThe Sm'rion House Officer J.L.Lakda P.W.4 had deposed in para 6 ‘fhaf The prosecufion had no? produced me copy of Mal/(hm register in This case. 7. The seizure memo Ex.P.7 shows Tho? n specimen impression of ihe seal was affixed thereon. by A.$.I. D.R.Yadav P.W.3. Seizure memo Ex.P-7 showed fhaf it had fhe impression “Eonogo W" mid on 130p of if_fhere was some impression which is nof Iegible and thereaffer 4 “W was wriffen. The description, of fhe impression of 'rhe weal found on sample packei's ‘A-1 6i B-1' by fhe F.5.L. has been given in 1’he repor'r Ex.P.18. I'l' shows ihaf The seal merely conhined ihe words “OP. 3m m. 31W”. In fact, a copy of when impression of fhe seal oughf to have been sent along wifh mama of 1'he Superinfendenf of Police, Janjgir Ex.P.16 1'o 'the F.5.L. for comparison of The souls. Hod if been done, 'rhe F.5.L. would hove of once no'l'iced ihoi’ The seals on fhe samples senf for analysis were absolufeiy different The impression of ‘rhe seal drawn by ‘rhe F.S.L. on ifs reporf Ex.P.18 leaves no room for any doubf fhaf fhe substance seized from The appellant had been fampered wifh since 'ihe specimen impression of fhe seal on seizure memo Ex.P.7 and The mcimen impression of seal on fhe samples received for analysis and drawn by The F.$.L. on ifs repor-l' Ex.P.18 are absolufely different 8. Secfion 55 of fhe Acf is as under: “55. Police fo fake charge of articles seized and delivered—An officer-in-charge of a police sfafion shall fake charge of and keep in safe custody, pending the orders of ihe Magistrai'e, all articles seized under this Ac? wi'lhin ‘ihe local area of ‘iha‘i police s-l'afion and which may be delivered fo him, and s 6 é? shall aliow any toffioer who may accompany such articles to the police statian 0r who may be depu‘tzd for fhe purpose, *o affix his sea! fo such armies or to fake samplesmf and from fhem and all samples so Taken shall also besealed wilh a seal of fhe officer—in— charge of the police sla‘l'lonf A plain reading of fhe above pravisian goes 'l'o show lha'r ll ensunes fhaf The samples preparéd and sealed during seizure by 1ne concerned ‘ u o. officer are nol' lampered wi'lh. I‘l- has, ‘l’herefore, been provided in Section 55 fhal' fhe 5.H.O. shall also affix his seal 1’0 such articles ar on such samples which have been faken before keeping such articles in The Mg/klmna. In This case, fhere is fofal non-compliance of Secfion 55 of 'rhe Ac'l. Copy of fh‘e Mal/(ham Register was also no‘l proved by producing ‘lhe original regisl'er in Court No? only fhis, ihe properly seized was also no? produced before ‘lhe Court 9. In ,Eiendra and Ann V. Smfe at g3 repor‘led in 2003 Supreme Appealsr‘Reporter (Criminal) 902 the charas and ganja alleged fo have been seized from ihe possession of ‘lhe accused were no? produced before fhe Cour? so as io connect if wi'l'h 'ihe samples sen? fa fhe Forensic Science Laboratory. Neiiher the Mal/(ham Mabarrir was examined during ‘lhe frial’fo prove 'l’ha'l' fhe packefs in which samples were sealed had remained in Ada/Marta from the time of their receipt to the time of their dispatch to the F.S.L. nor the material objects produced during trial. The Apex Court while allowing the appeal and quashing the conviction under Section 20 (b) of the Act, observed as under: “In our view, the view taken by the High Court is s unmstainable. In the trial it ms necessary for the .4 - prosecution to establish by cogent evidence that the alleged quantities of charas and ganja were seized from the possession of the accused. The best evidence would have been the seized materials which ought to have, @ been produaed during 1h: trial and marked as mn'rerial objects. There is no exphm'rion for ‘rhis failure 'l'o produce them. Mere oral evidence as f0 fheir fea‘rures and prodacfion of punehanama does not discharge fhe heavy burden which lies on 1h: prosecution particularly where the offence is punishable with a stringent sentence as under the NDPS, Act.‘ “Against this background, to say that, despite the pancha witnesses having turned hostile, the non- examination of the Investigation Officer and non- . production of the seized drugs, the conviction under the NDPS, Act can still be Sustained, is for fetched." a In 5mm of Rajasihan v. @rmai/ Shqh reported in I (20051 Current Criminal Reports 228 (SC) where the Malkhona register was not produ ed before the Court to prove that the narcotic articles seized were kept in the Malkhana till they were sent to Excise Laboratory and also where no sample of seal was sent along with the sample sent to the Excise Laboratory for comparing with the seal appearing on the ample bottles, while affirming the judgment of acquittal passed by the High Court, the Apex Court held that there was no evidence to prove satisfactorily that the seals found on the samples were in fact the same s ls as were put on the sample bottles immediately after seizure of the contraband. 10. In order to sustain a conviction for possession of ganja under Section 20(b)(ii)(€) of the Act, the prosecution is also required to establish beyond doubt that the appellant was in conscious possession of the ganja. In this regard, the testimony of independent witness Jaipal Singh is in variance with the testimony of D.R.Yadav, A.$.I. P.W.3. While DR‘Yadav A.S.I. P.W.3 has stated in para 3 that he had seen the appellant standing near the hotel carrying two bags, Jaipal singh P.W.1 has in Cross-examination in para 3 stated that on reaching 8 C59 the spot he saw that the appellant was seated in the hotel of Bihari and one of 1he bags was kep‘f on fhe mblz in frohf of him and another bag was kepf down-below. One or fwo o1her persons were also sitting p in the hotel and having snacks. This by itself is not aifficient to I constitute conscious possession of the two bags by the appellant. ‘ Independent witness Ashok J§umar has not been examined by the ‘ prosecution The FIR. Ex.P.13 neither shows that the appellant ms seen standing wifh 1‘he fwo bags nor shows ma? 'rhe appelIoM was senfed in fhé ho'rel while the fwo bags were pinced as shown above. In ‘ cross-examination of A.5.I. D.R.Yadav P.W.3, a specific defence was raised by 1'he accused ihaf 'ihe ganja like substance which was lying in " the hotel of Kunjbihari was seized and a false seizure memo in his name was prepared. Considering the testimony of Jaipal Singh P.W.1 in para 3, this possibility can also not be ruled out. 11. Having considered the evidence led by the prosecution “in its entirety, the following points emerge: (i) The prosecution did not produce the two sealed bags and the sealed samples ‘A-2 & B-2’ in Court; (ii) The specimen impression of the seal on seizure memo Ex.P.7 and the impression of the seal drawn on the report of the F.5.L. Ex.P.18 did not tally; (iii) There was total non-compliance of mandatory provision of Section 55'6f the Act: and 6v) Specimen impression of the seal used to seal the samples and the two bags were not sent to the F.5.L. for comparison. (v) The Mal/(limo register of Police Station Akaltura was not produced to show that the seized samples and the sealed bags were kept m the 7/ Mal/(ham of Police Station Akaltara. K// / / ,/ / 9 @ (vi) The evidence led by the prosecu‘rion did not es'rublish beyond doubt thaf fhe seized substance was in the conscious possession of the appellant ‘ 12. Considering fhe above fads, I am of file considered opinion ‘Hqcf fhe convicfion of flue appellan'r under Section 20(b)(ii)(C) of ihe ‘ Aci and fhe sen'rence awarded'ihereunder ore liable +0 be set aside. $3? In ‘rhe result, ‘rhe appeal is allowed. Conviction of ‘lrhe oppellon‘l' ‘ under ‘Sec‘l'ion 20(b)(ii)(C) of the Act and the sentence awarded thereunder are set asnde The appellant shall be set at liberty forthwnth If not requured In any other case Fine If paid shall be i, refunded to the appellant “m ' ‘ Sdl- ‘ Dilip Raosaheb Deshmukh Judge 17 02 2006