(2) @ IN THE HIGH COURT OF JUDICATURE AT BILASPUR CRIMINAL APPEAL U s. ago K IMINAL PROCEDURE CR xx CHHATTISGARH Cr.A. N06 [ g [2003 Govind Ram, S/o. Dharamsai Aged 35 yeal5, R/o. Bramhapara P.S. Ambikapur District Sarguja (C.G.) VERSUS The State of Chhattisgarh Through P.S. Ambikapur District Sarguja (C.G.) x ”A” F CODE OF 6ovind Rum Versus Sfa‘re o Chhaf'risgarh -‘ f Pos1' for judgmenf : 20.01.2006 ‘ Dilip Raos ah :x HIGH COURT OF CHHA! !;SGARH AT 8ILA§PUR Criminni Appeal No. 658/2003 Sdl- z aheb Deshmukh Judge HIGH COURT OF CHHATTISGARH AT BILA$PUR Cr. Appeal N¢.¢5$/2003 Single Bench: Hon'ble Shri Diliy Raoscheb Dgshmgkh; J. Govind Ram Versus Sfafe of Chha'rfisgarh SmtSavim Tiwari, Counse! for fhe appeHan‘r. Shri Ravindra Agmwal, P.L. for The Sfafe. JUD6MENT (Delivered on‘ 20w January 2006) This appeal is direcfed againsf The judgmenf dwed 3.5.2003 delivered by Shri Raghubir Singh, Special Judgei N.D.P.5.Act. Ambikapur, Surguja in special criminal case No.16/2002 whereby 1'he appellant was convicted under- 5ec1'ion 22 of Narcofic Drugs and Psychotropic Subs'rances Acf (hereinaf'rer- referred 1’0 as '1he Acf') and was senfenoed 1'0 R.I. for Ten year's and a fine of Rs.1,.00,.000_/-'. in defaulf fo undergo addi‘rional RI. for Three years. 2, Briefly slated The prosecufion case is fhaf on 19.3.2002 Sub-V Inspector Haricharan Singh P.W.8 of Police Station Ambikapur'. received secret information that one person was in unauthorized possession of brown-sugar. After complying with the legal formalities; alongwith witnesses Shahid Khan P.W.5 and Anwar Qureshi P.W.1,. he reached the spot near the school situated at Gram Asola. After giving notice under Section 50 of the Act, the appellant was searched. From his full pant, brown-sugar like substance was seized in two white coloured polythenes vide Ex.P.5; On weighment, it weighed 10 gms. ‘ i (Q n.2, and 50 milligrams. The confen‘rs of bow 'rhe packefs were mixed. The pecke'fs were sealed. One white coloured fossil sheet found in cigareffe packefs having sfains showing fha‘r brown-sugar was consumed was also seized. The seized sealed pockets of brown sugar were handed over lo Head Cons‘rable Mahesh Prasad Gup‘la P.W.2 for safe cusfody. On 20.03.2002 bofh 'rhe sealed packeis were serif along wiih memo Ex.P.25 of Superinienden‘r of Police, §urguja for chemical analysis 1’o fhe Forensic Science Laboratory, Raipur. Vide report dated 30*l' March 2002, both the packets were found to contain diacital morphin (heroin). On completion of investigation, the accused- appellant was prosecuted under Section 22 of the Act. The accused abjured his guilt, pleaded innocence and led no evidence in defence. The learned trial Judge relying upon the evidence led by the prosecution convicted and sentenced the accused-appellant as aforesaid in paragraph 1. 3‘ Smt. Savita Tiwari, learned counsel for the appellant has assailed the conviction of the appellant on the following grounds: i) Independent witnesses Anwar Qureshi P.W.1 and Shahid Khan P.W.5 did not support the prosecution story which rendered the testimony of Haricharan Singh, A.S.I. unreliable. Reliance was placed on Bha/a Ram &/.shwaha V. Sink of MP. reported in 2001 SCC (Cri) 1 and Bahadur Sgih V. Stafe of Madhya Prades‘l andanofher 2002 Cri. L..T. 579 (5C) i Chhedi Prasad P.W.6 witness of weighment Panchanama also did not support the prosecution story whereby weighment Panchanama Ex.P.9 was rendered doubtful. iii) A.5.I. Haricharan Singh P.W.8, in the notice under Section 50 of the Act Ex.P.1, did not mention that that. he had informed the accused-appellant about hi legal right to be searched ¢ ~3' before a Guzeffed Officer or a Magisfm‘fe. Failure To do so, caused serious prejudice #0 fhe occused-oppeilanf. Therefore, for non-compliance of fhe mandafory requiremenf of Secfion 5O of fhe Ac‘r, fhe appellan‘r was en'ri'Hed 1'0 be aoquiffed. Relianoe was placed on KMo/mnan V. Smre of Kern/a repor‘i'ed in 2000 $CC (Cri) 1228‘ iv) If was losfly com-ended Thof There was no evidence 1’0 show fhof fhe seized subsfonce was received in fhe Mal/(bane of P.S. Ambikapur offer puffing The seal of fhe officer-in-chorge of P.$. Ambikopur on if. Thus, There was fora! non~compiiance of Section 55 of 1he Ac‘i and if couid no? be ruled oui 'iha? flue sample sen? for examination by 'l’he F‘SL. had been ‘rampered wi'l'h. 4. éhri Rovindra Agrowal, learned P.L. for The—Stale supported fhe impugned judgmenf and submi'H'ed fha‘r fhere has been subsfonfial compliance of Secfion 50 of the Act and Haricharan Singh A.5.I. has in cross-examination para 31 clearly sfa‘red That before giving nofice under Secfion 50 of 'ihe Act he had informed The accused abouf his legal righf under Section 50 of The Act 5. I have considered the rival submissions and carefully perused The record. If is True fhaf independenf witnesses Anwar Qureshi P.W.1 and Shahid Khan P.W.5 did not support the prosecution story. Chhe‘di Prasad P.W.6 also stated that the weighment Panc/tanama was not made in presence of the accused and the police had gone to his shop and asked him to weigh some packets. He has also denied that those packets were seized from the accused-appellant. A.S.I. Haricharan Singh P.W.8 admitted in para-31 of his cross-examination that the accused was an illiterate person, and therefore, his thumb impression was affixed on the documents. In his examination-in-chief ¢ .43“ r n x hi Hg; “Mew xew ,/l @\ -L}... para 6, he did nof sfafe fhaf he had informed 'l'he aCcused 'tha'f he had a legal right under fhe Ac1' +0 gef himself seaf'ched before any Magis'rmfe ar Gaze'Hed Officer. If is only in cross-examinafion para- 31 Thai” if has emerged ‘rhaf he had explained to 1'he accused about his righf regarding being searched under Section 5O of the Act. What was actually said by A.5.I. Haricharan Singh while actually explaining to the accused about his legal right under Section 50 of the Act was not deposed. Moreover, the notice Ex.P.1 does not mention that the accused was informed of his legal right to be searched by the nearest Magistrate or a Gazetted Officer. It only mentions that if the accused ‘wanted, he could'be searched by any nearest Magistrate or S.D.O. (P)/C.5.P. Thus, the notice does not mention that the accused could opt for being searched by any Gazetted Officer.‘ Head Constable Sanjay Tiwari P.W.9 who was present with the A.5.I. Haricharan Singh has also not deposed that the accused was apprised by A.S.I. Haricharan Singh about his legal right to be search under Section 5O of the Act. In para-6, he stated that A.5.I. Haricharan _ Singh had asked the accused whether he would like to be searched by A.S.I. Haricharan Singh or by any Gazetted Officer. Thus, the evidence of this witness does not show that the option of being searched by a nearest Magistrate was given to the accused-appellant. On the one hand, there is a material omission in the notice Ex.P.1 regarding informing the accused-appellant about his legal right under Section 50 of the Act and on the other hand the testimony of A.5.I.' Haricharan Singh P.W.8 and Head Constable Sonjay Tiwari P.W.9 is self-contradictory. Independent witnesses Anwar Qureshi P.W.1 and Shahid Khan P.W.5 did not support the prosecution story. 6. Notice Ex.P.1 clearly shows that merely the opinion-of the accused was sought as to whether he wanted to be searched by a ' -g- nearby Magis'h'afe or S.D.O.(P)/C.S.P. or' no‘r. If does nof even show Thu-r The opfion of being searched by any Gaze'l'fed Officer was given 10 'l'he accused-appellant In KMahanan V. Smfe afKera/a reporfed in 2000 scc (cm 1223, i+ was heid +ha+ if me accused who was subjecfed To search was merely asked whe'i'her he required To be searched in The presence of a GazeTTed Officer or a MagisTraTe, iT cannoT be TreaTed as communicaTing To him ThaT he had a righT under The law To be searched so. The Apex CourT, Therefore, held ThaT There was non-compliance wiTh SecTion 50 of The AcT and consequenTly, The evidence of Sub-Inspecfor of Police could noT be acTed upon in The absence of any oTher independenT wiTnesses To show ThaT The appellanT was in possession of The conTraband arTicle. In The aforesaid case, The packeT recovered from The folder lioncloTh were alleged To conTain 4 small packeTs of brown sugar-*7 The above ciToTion applies To The insTanT case wiTh full force. NoTioe Ex.P.1 did noT show ! ThaT The accused-appellan'i was apprised of his legal righT under SecTion 5O of The AcT. IT also did noT show ThaT The accused- appellanT was given opTion To be searched by any GazeTTed Officer. «(‘ The TesTimony of A.5.I. Haricharan Singh P.W.8 and Head ConsTable Sanjay Tiwari P.W.9 is also conTradicTory as Head ConsTable Sanjay Tiwari P.W.9 did noT sTaTe ThaT The accused was apprised of his legal righT under SecTion 50 of The AcT or was given The opTion To be searched by any nearby MagisTraTe. Thus, There has been ToTal non- complia‘nce of SecTion 50 of The AcT in The insTanT case. 7. SecTion 55 of The AcT reads as under: 55. Police To Toke charge of arTicles seized and delivered—An officer-in-charge of a police sTaTion shall Take charge of and keep in safe cusTody, pending The orders of The MagisTraTe, all arTicles seized under This AcT wiThin The local area of ThaT police sTaTion and which may @ , 7 ,ér be delivered fo him, and shall allow any officer who may accompany such arficles To fhe police sfafion or who may be depufed for fhe purpose, fa affix his seal fo such arficies or To +ake samples of and from Hwem and all samples so Taken shall also be sealed wi'rhv a seal of The officer-in- charge of fhe police Sfafion. .iw A plain reading of Secfion 55 shows fha1' before keeping articles seized in 1'he Mal/(hand, fhe officer-in-charge of The police sfa‘fion is required 1-0 puf his seal on such packefs. However, in this case, 'rhere is fofal non-compliance of Secfion 55 of 1'he Act Neifher A.5.I. Haricharan Singh P.W.8 in para 21 of his evidence nor Mahesh Prsad 6upfa P.W.2 in para 2 sfafed fhaf The seized arTicle were kepT in The Mal/(ham afTer affixing The seal of The officer-in-charge of The police sTaTiom Head ConsTable Sonjay Tiwari also did noT make any such sTaTemenT. The copy of The Ma/khana ‘reg‘isTer Ex.P.16 did noT even reveal ThaT The polyThene packeTs which were alleged To conTain brown-sugar were delivered aT The Ma/k/mna in a sealed condiTion. IT only says ThaT 4 whiTe polyThene packeTs which were kepT in yellow polythene said To conTain brown-sugar and one whiTe cigareTTe foil said To conTain sTain of smoking brown-sugar was delivered. This renders The TesTimony of A.S.I. Haricharan Singh P.W.8 and Head ConsTable Sanjay Tiwari P.W.9 ToTally unworThy of crediT ThaT The seized arTicles were sealed on The spoT. In The above menTioned circumsTances, iT cannoT be ruled ouT ThaT The brown—sugar which was examined by The F.5.L. had noT been seized from The accused-appellant 8. In view of The facTs and circumsTances, in my considered opinion due To non-compliance of SecTion 50 and 55 of The AcT, The convicTion of The appellanT under SecTion 22 of The AcT cannoT be susTained. In fhe result fhe appeai is aHowed and fhe appeHanf is ffed of The charge under Seciion 22 of fhe ACT. The accused if nof required in any ofher case. fhe accused-appeHant s’hau be se+ m ”hem formwam, Fine, if paid, she“ be refunded +0 Dilip Raosaheb Deshmukh 1 Judgex l I 1 ‘ ‘ r