^^ ftt e^ HIGH COURT OF CHHATTISGARH AT BILASPUR Cr^App^No. 148/A992 SB: Hoa'ble Shrl Justice R.L. Jhanwar APPELLANT Babulal State of Madhya Pi-adesh JUD6BEEBT Post forjudgment ouGil 07.2009 Sd/- R.L. Jhanwar Judge i ., @ HIGH CQURT OF CHHATTISGARH AT BILASPUR Cr. App. No.148/1992 SB: Hon'ble SIui Justice R.L. Jhaawar APPELLANT Babulal s/o Gopal Agheriya aged about 28 years residence ofvillage Baadurpali TIiana Seriya District Raigarh(MP) (Now C.G.) Versus Stete of Madhya Pradesh tfarough. Station House Ofi&cer, Excise Baramkela. B SItd Sharad Kadam, counsel for fhe appeUa&t. Shri D.K.Gwah-e, Govenxoient Advocate for the State. JUDGMENT (Delivered on^^.07.2009) R.L.Jhaawar, J. This Crimiual Appeal is directed agaiust the judgment of convictioa aud order of sentence dated 24<h January, 1992, deUvered in S.T.No. 149/1990, whereby, fhe learued 2nd Additional Sessions Judge, Raigarh has convicted the appellattt under Section 20 ofthe N.D.P.S. Act, 1985 (hereinafter referred to as the 'Act^ aad sentenced 1iim to undergo R.I. for 3 inonths aad to pay a fine of Rs.$00/'-, in default of paynient of fine to furfher uiidergo R.I. for' l-'inonfh. The case of th.s-prosecutioii ia brief is that on 15.9.1990, P.L.Nayak (PW-1). Ex. Sub-Iuspector, on receiviag information, without obtairiing searcb warraat, went to the house of the appeUant and inade search of his bouse. On search, 5 gins of Gajya aad a chz7am.was recovered froin fhe house ofthe appeBaat. w @/ Cr.App. 148/1992 He exaxiuned the recovered ganja on ttie spot and niade seizure of Gmya aad chilam. He prepared seizure meiao Ex. P/2 aad Panchanama Ex.P/1. He filed charge sheet ia the Court of Magistrate 1st Class, Sarangarh, who coinmitted the case to fhe Court of Sessions, Raigarh. Leamed Sessions Judge raade over fhe case to the 2nd Additional Sessions Judge, Raigarh for tdal, Charge under Section 22 of fhe N.D.P.S. Act, 1985 was fi-axacd against fhe appeUant and it was read over to Tiim, The appellant abjured fhe guflt aiid his defense was fhat he has been falsely iaipUcated ia the crune. The appeUant also stated fhat he was not Uyiag wifh. his fafher and fhere was aaimosity between Tiim and fb.e Investigatmg Officer P.L. Nayak. The leamed Additional Sessions Judge after appreciation of evidence available ou record aad hearing fhe counsel for the pardes held fhat fhe prosecution could oiily prove fhe case under Section 20 aad thereby convicted ttie appeUaut as above aud acquitted him. uiider Section 22 offhe N.D.P.S. Act. I have heard leamed counsel for bofh the parties aad have perused fhe record. Only two witriesses were produced by fhe prosecution. (PW-1) P.L.Nayak -Investigatmg Of&cer, who stated fhat on 15.9.1990 after receivirLg iaformation, he uxunediately went to ttie spot, niade search of house of fhe appeBaat aad seized 5 gms of Ganja aad a Chilam. He also deposed fhat he was haviag experience and also obtained training for testiag rutoxicaats, fherefore, he examined fhe seized iiiaterial ou fhe spot and found the recovered m.aterial to be Gaaja. On perusal ofhis •ft'feole statement, it is clear fhat neither he has any certi&cate, certifying his ability to test iatoxicants nor his service lengfh was long enough to recognize TIJTD as experienced holder ia fhis field. The lengfh of service at that tune was only few monfhs. He did not give details, ia how many cases, he has -4~. 1 ^c Cr.App. 148/1992 t;'i conducted test of m.toxicao.ts. TIierefore, he cannot be treated as aii expert to exanune fhe recovered GaryCt. The recovered niaterial said to be Ganja Iias neitEier been cheniically exam.iiied nor it has been exam.m.ed by an Expert. In this way, prosecutiou. conipletely failed to estabUsh that th.e seized niaterial was Gury'a. P.L. Nayak (PVV-1) did aot disclose froiu which part of the hQuse he recovered tiie material. He slso did not state on what basis he believed that ftie house belongs to tlie appeUant. There is no eviden.ee to estsJaUsh th.at fhe house was in possession of the appellaat, One of the seizure wituesses Gangadhar (PW-2) has aeea produced by the prosecutiort, but he did not support fhe prosecution stoiy aiid on fhe ofher hand, he stated a different story that he amved on fhe spot aud heard noise 'maro maro'. He did not euter iuside fh.e house. Other seizure witaess has not produced by fhe prosecution. Therefore, in. fhese circum.stances statemeut of P.L. Nayak(PW-l) Ex. Sub-Inspector, alone without any corroboration, was not sufficient to hold fhe appeUant gtdlty for possession of the iutoxicaat. Leamed coitasel for fhe appeBaat veheinenfly argued fhat prosecution has not coitlplLed-ivifh fhe provisions of Sections 42 aad 57 of the Act, which prejudiciaBy affects the iaterest of the appeUant saad vitiates fhe trial. He further argued that P.L. Nayak (PW-1) has deposed that after receiving iaformation, he inform.ed Ilis higher officials, but there is nofhhig on record to estabU.sh fh.e stateiaent. Sectio^. 42-'ofthe N.D.P.S. Act reads as under: 42'. •f>ower of entiy, search, seizure aad arrest without warraut or authorization.-'-^-l) Any such ofiicer (being aa officer superior m. raak to a peon, sepoy or constable) of the departaients of Central Excise, narcotics, custoins, revenue inteUigence or aay .oftier departnient of fhe Central Govemnient or of fhe Border Security Force as is eiupowered iu fhis behalf by general or special Cr.App. 148/1992 •r^d ^^ order by fhe Central Govemruent, or a&y such officer [beiug an ofScer superior ia. rauk to a peon, sepoy or constable) of the revenue, drugs conti-ol, excise, poUce or aay ofh.er department of a State Govermnent as is einpowered iu fhis behalf by general or special order ofthe State Govenunent, ifhe has reason to believe from. personal knowledge or infortnation givea by aoy person aud taken dow'n in writing, fhat any narcotic drug, or psychotropic substance ia respect of which au ofFence punishable under Chapter IV has been coxaiaitted or auy docunient or ofher article wbich luay fumisb. evidence of ttie commission of such offence is kept or concealed iu any buUding conveyan.ee or enclpsed place niay, between sunrise aad sunset- (a) enter into aad search aay such building, conveyaace or place; (b) iu case of resistance, break open auy door and reiuove auy obstacle to such entry; (c) seize such drug or substance aad aU. laaterials used in fhe aiaaufacture fhereof and any other article aad aay aninial or conveyauce which he has reason to believe to be Uable to confiscation under this Act and aay docuiuent or other article which he has reason to believe may fumish evidence of the com-mission of any offence punishable under Chapter IV relatiag to such drug or substaace; aad . (d) detain aad search, and, ifhe fhiaks proper, arrest axiy person whom. he has reasou to believe to have coinmitted any offence puiaisliable uader Chapter IV relating to such drug or substance: Provided fbat if sueli ofBcer has reason to believe fhat a . search-warraat or authorization caruiot be obtaiiied without affording opportunity for fhe concealment of evidence or facflily for fhe escape of an. offender, he inay enter aad searcb. such buildiag, Cr.App. 148/1992 ^^} conveyaiice or enclosed place at any tuue between suiiset and sunrise after recording the grounds of his belief. (2} Where an bfficer takes down aay inforDiation ia writtas under sub-section (1) or records grounds for his belief under tbe proviso thereto, he shaU forthwith send a copy therefore to his uninediate official superior. Section 42 is inaadatory. It was iacuinbent on fhe of&cer iiiakuig search to send forthwifb. a copy ofinformation taken down by the officer under sub-section (l) of Section 42 of the Act. He has not com.plied wifh fhe provisions; fherefore, violation of provision is fatal. Section 57 offhe Act reads as under : 57.Report of arrest and seizure.- Wheuever aay person m.akes aay arrest or seizuic under fhis Act, he shaU, within forty- eight hours next after such arrcst or seizure, niake a fuU report of aU fhe particulars of such arrest or seizure to his iminediate ofi&cial supenor. Under Section 57 of fhe Act, a du1y has been cast on P.L. Nayak to niake full report of arrest and seizure to his imiaediate superior withta 48 hours.. P.L. Nayak(PW-l), stated fhat he has coinpUed wifh fhe above requireinent, but fheic is nofhing to establish ttiat conipUaace of above provisions was ruade by Tiim. Alfhough the above provision is not laandatory ia nature, but haviag considered all the facts present ia fhis case, non- couipliance of fhe above provision, casts doubt on the prosecution version. ; ' rfere ia fhe iastant case, the trial Court after fi-aminj charges for conunissioa^if fhe offence puiushable under Sectioa 22 of fhe Act has ta-ied the appeUant under fhat offence but after coinpletion of fhe trial, leamed trial Court acquitted fhe appeUaat of fhe charge under Section 22 of fhe Act aad punished TiiTn for cominission of the offence under Sectiou 20 of the Act. Whefh.er ^-j 'fM^,. Cr.App. 148/1992 1:» law aufhorizes the Courts to punish aa offender in absence of speci&c charge of Section 20 of fhe Act? For appreciation of fhe above question the relevaat provisions ofthe Act are quoted. Section 22 offhe N.D.P.S. Actreads as under: 22. Punishiuent for contravention ia relation to psychotropic substances.- Whoever, ia contraveiition ofany provision. offhis Act or any rule or order niade or condition of Ucence granted fbiereuiider, inauufactures, possesses, sells, purchases, teansports, imports iiiter-State, exports inter-State, or uses any psychotropic substaace shaU. be punishable wifh rigorous im.prisonTnent for a term. which shall not be less fhaa ten years but which inay extend to twenty years an.d shaU also be liable to fine which shaU not be less fhan one lakh rupees but which m.ay extend to two lakh rupees : Provided that the Court laay, for reasons to be recorded ia fh.e judgment, impose a fine exceediag two lakh rupees. Section 20 offhe N.D.P.S. Act reads as under; 20. Punishinent for contrayention ia relation to caTinabis plaat aud camiabis. - Whoever, ia contra.ven.tion of any provision of fhis Act or any rule or order raade or condition of Ucence graiited fb.ereunder- (a) cultivates any caanabis plant; or (b) produces, inanufactures, possesses, seUs, purchases, trausports, imports inter-State, exports inter-State or uses caiuiabis, shaU be purushable- (i) where such contravention relates to gaaja or fhe cultivation of caunabis plant, wifh rigorous iaiprisonraent for a term. which niay extend to five years aad shall also be Uable to fine which niay extend to fifiy thousand rupees; (ii) where such contravention relates to caanabis ofher fhaii ganja, wifh rigorous imprisoainent for a tenn which shaU. not '< ^4-,-J Cr.App. 148/1992 be less fhaa ten years but which ruay extend to taventy years aad sh.aU also be liable to fine which shall not be less fhau one lakh rupees aad whicli may extend to two lakh rupees : Provided fhat fhe Court may, for reasons to be recorded in ttie judginent, impose a fine exceediag two lakh rupees. Accordiag to Section 2 (iii) ''cannabis (heinp)" ineaus- (a) cha.ras, fhat is, the separated resin, ia whatever form whether crude or purified from fhe caunabis plant and also inclydes concentrated preparation aad resin known as hashish oil or Uquid hashish; (b) ganja, fhat is, the Qoweriag or fi-uiting tops of flie cannabis plaat (excluding fhe seeds aud kaves when not accoDipaaied by fhe tops), by whatever, name fhey m.ay be known. or des^nated; aud (c) any mixture, with or wifhout aay neutral inaterial, of a&y of fh.e above .forms of cannabis or aay drink prcpared ftierefrom; (iv) "catuiabis planf lueaus any plaat of the genus caunabis 1 !|[B Sectioa 2 (xxui) of fhe Aet defines, "psychotropic substaace" laeaas aay substance, natural or synfhetic, or any natural niaterial or any salt or preparation. of such substaace or luaterial iacluded m. the list of psychotropic substaiices specified ia the Scliedule. On reading toge'Bier atl the provisions, it is clear fhat fhe offence wMcli fa]ls iinder Section 20 of fhe Act is coinpletely different fhaa fhe ofience under Section 22 of the Act. Offence under Section 20 of tiie Act is not a intuor offence of Section 22 of fhe Act. In absence ofspecific charge under Section 20 offhe Act, it is enougts. to say th.at substan.ti.al uyustice would be caused to ' ftie accused if h.e is convicted aad sentenced under fhsit Section. ^^^ 'i:<. Cr.App.148/1992 The trial Court was not eiupowered ia abseuce of speci&c chai^e uiider Section 20 of the Act to record conviction aild pass senteace again.st fhe appellant. Froia the above discussion, it is evideut that fhe trial Gourt was not coiiipetent to convict aiid pass sentence agaiast flie appeUaiit ia absence ofthe charge luider Section 20 ofthe Act. In fh.e icsult, fhe appeal. is allowed. The conviction and sentence imposed agam.st ttie appeUant under Section 20 of the N.D.P.S. Act are set aside. TIie appeltant is acquitted offhe charge, He be set at Uberty forthwifh. R.L. Jhanwar Judge -. - -----*">