•WS.W SS&iiSSiw. 'SriRf;'" ^i^^. ^^^ MiSS^&iSSB w»® W ; c*.^:IK' ^'w ^t?; ^y^' t^t-'-;:tn(lj^ u.K'S.-ilin' ::. i <Sl'^lt;.. s®^ §BliA °sw:;®'.: •l^w* ! t^l iS'^ii^ l§ggls|(U? '^'^-':^;i3;^^^MSS^ ^ ^^(^^^^^S^ :f li* •'•^Eaef^^ HIGH COORT OF CKHATTISeAI^I: BILASPOR Crimiaal Aoueat No.223 of 1996 APPELLANT: (In Jafl) RESPONDENT: Ram Charitra Soni Vcrsus State of M.P. (now CMiattisgarh) POST FOR JUDGMENT ON [Q^ AUGUST, 2011 Sd/- Prashant Kumar Mishra Judge HIGH COURTOF CHHATTISGARH AT BILASPUR Criminal Appeal No.223 of 1996 APPELLANT: (In Jail) RESPONDENT: Ram Charitra Soni Versus State of M.P. (now Chhatdsgarh) Present: :) 1 (. Shri Shakti Raj Sinha, counsel for the appellant. Shri Qamrul Aziz, Panel Lawyer for the State/respondent. JUDG^MENT (Delivered on'O'August. 2011) Prashant Kumar Mishra, J. ' 1. This appeal is directed agginst the impugned judgment dated 10-1- 1996 passed by the Special Judge, Arabikapur, Surguja in Special Criminal Case No.120/94 whereby learned Special Judge convicted the appellant under Section 20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'the Acf) and sentenced him to undergo R.I. for 5 years and to pay a fine of R8.5,000/-, in default of payment of fine to further undergo R.I. for 6 months. 2. Case of the prosecution, in short, is that PW-1 H.M. Croutam, Sub Inspector, made a search of the appellant's house on 22-6-1994 and during search, the appellant was found to possess illicit liquor and 50 grams of Ganja kept in 10 pouches (Pudiyct). 2 Grains Ganja taken out in small quandty from each of the pouches was sent for chemical examination and after receipt of positive report, charge sheet was filed. The prosecution examined PW-1 H.M. Goutam and PW-2 Kedar Chakravarty to bring home the charges. The appellant abjured his guilt and pleaded innocence, however, he did not examine any defence witness. After hearing counsel for the respective parties, the trial Court has convicted and sentenced the (ppellant as inendoned above. l^ Ff' K^ :i;LU:ti^il 3. Leamed counsel for the appellant argued that search and seizure operation is contrary to the provisions of the Act. No weighnient Panchanama was prepared and proved to ascertain the weight of the contraband; neither Malkhana register nor the articles were produced in the Court to prove deposit of the contraband in the MalKhana; the alleged contraband was sent to the Forensic Science Laboratoiy after one month i.e. on 23-7-1994 which was received in the office of the Forensic Science Laboratory on 31-8-1994 whichraises a doubt as to whether the seized ardcles were sent and fhe report was obtained with regard to the same articles, which were allegedly seized from the appellant. 4. Seizure of the contraband was made on 22-6-1994. However, seized articles were sent to the Forensic Science Laboratory, Raipur on 23-7-1994 (Ex.-P/6). In this document under the signature of S.P., the date is mentioned as "18/7" meaning thereby the S.P. signed it on 18-7-1994. It appears that Constable No.642 Kurluse Tirki was entrusted to take samples for cheinical exainination to the office of FSL, Raipur. In the report of the Chemical Analysis (Ex.-P/7) dated 5-9-1994, it is ruentioned that one sealed packet brought by Constable No.642 Kurluse Tirki of P.S. Ambikapur was delivered in the office of FSL on 31-8-1994. In Ex.-P/6, an endorsement has been made on the reverse side in the following manner "Consltable No. 642 Kurluse Tirki, P.S. Ambikapur - 29/8/1994", which is suggestive of the fact that the packet was handed over to the said constable on 29-8-1994. . 5. In the charge sheet filed against the accused, Constable Kurluse Tirki has nbt been cited as a witaiess. There is absolutely no explanation or rather there is absolutely no inforination in the charge sheet or in the evidence adduced by the prosecution as to where the sealed contraband was lying during the period 22-6-1994, when it was seized and 29-8-1994 when itwas handed over to Constable Kurluse Tirki for taking it to the office bfthe FSL, Raipur. Thus, these articles were probably lying in the Police Station for more than 2 months because the prosecution has not submitted any proofas to when the seized contraband was deposited in the Malkhana and when it was rtaken out for being sent to the FSL, Raipur for chemical examin&.tion. 6. In view ofthe above, this Court finds that the sancdty ofthe samples was not properiy preserved till the sainples reached the FSL, as there is no evidence as to where the sainples were lying for more than 2 raonths. Moreover, from the record, it does not appear that the seized contraband was produced in the Court in the course of trial. 7. In a case under theAct, itis the duty ofthe prosecution to prove that saniples of the contraband seized from the accused have been properly preserved and its sanctity was not tainted because otherwise there raay be suspicion that during the intervening period proper care was not taken to preserve the samples, which gives a serious doubt to the case ofthe prosecution to prove that the same ardeles were sent for chemical analysis. 8. In the matter of Jugal Kishore Vs. State of Punjab {(2008) 17 Supreme Court Cases 747}, the Hontile Supreme Court has found that when the prosecution was directed by the Magistrate to deposit contraband in the judicialMalkhana, but the same was not deposited there and instead it was deposited in the Police Malkhana, it gives rise to reasonable doubt about tampering of the case property or at least reasonable likelihood of the tanipering, particularly keeping in view the fact that thecase property and the seal both remainedin the custody of the police despite order to the contrary in respect of |the case property by the Magistrafe. The Supreme Court ultimately found that the prosecution has failed to bring hoine the charge against the appellant beyond reasonable doubt and ultimafely, conviction was set aside. 9. In the present case also, the seized ardcles remained in the police station from 22-6-1994 to 29-8-1994 i.e. for more than 2 months. The constable, who took the articles to the FSL, has not been examined, neither Malkhana register nor articles were produced in the Court. Thus, the law laid down by the HonTsle Supreme Court in the matter of Jugal Kishore (Supra) squarely applies in the present case also. lO.Jn the opinion of this Court, the prosecution has failed to prove conscious possession ofGanjaby the appellant and thus, he deshrves •^ c- acquittal. {See Ganga Singroule Alias Akhilesh Singroule Vs. State of C.G., 2009 (2) C.G.L.J. 382}. ll.In the result, the appeal is allowed. Conviction artd- sentence imposed on the appellant under Section 20 (b) (i) of the Act are set aside and he is acquitted of the said charge. The appellant is on bail; His bail bonds are discharged and he need not surrender. Sd/- Prashant Kumar Mishra Judge .1) !f U* 1lllljiUiaitaiartiii