Smsfe Beneh IN THE HIGH COURT OF JUDICATURE AT BILASPUR fC.G.) \ CRIMINAL AWEAL N0. ^72-72005 Karan Singh,S/o.Hmchha Ram, Dhuri IA^ 'i.i •^i, MMINAL APPEAL UNDER SECTION 374 (2} OF THE CODE OF CRIMINAL PROCEDURE (-Q^ ,oA •^"' ;:;;;:.;;^i;<.^.- COURT OF CHHATTZSeARH AT.BILAS Karan Singh -Versus- State of Chhattisgarh Appellant by Shri Arun >tate by Shri Ashish Shukla, ©ovt.Advocate/Additional Pubtic Prosecutor. (befivered on 20/02/2006) 1. This appeal is directed ngainst 16.8.2005 delivered by Smt Maitrae Mathui Raipur In special Criminal Case No. appetismt was conyicted U/S 20(b)(i) of the Judge, by the ; bruqs i-t 19R; •ilrf i referred to as the 'Act') cmd was sentenced to undergo igorous imprisonrnent for 3 years and a fine of Rs. It of 25,000/ ngorous for 6 rhs. 2. Brisfly sta+ed t'ne prosecution story is that on 6.4.2002, the Asstt. Sub Inspector, District Crirnes Squad, ^. Dhamtari Shri Ashok tSwivedi P.W. 3 received secret information that two persons, in unauthorized possession of gcmja vvere going towards /Aakeshwar Ward. Afte" completion of necessary tegai formalities, he reached the /iAdkeshviiar War-d along with witnesses Chabilal P.W. 1, Santosh P.W. 2 cmd police staff. Near the pubEic utiiit)' ;n 1 M.akeshwar Ward, the appetlant who was carr^ing a white ^ plastic bag in his hand was apprehended. After serving the appeilant with a notice under Section 50 of the Act, the bag in possession of the appeilant was searched. It was found to contain 6anja like substance. Upon weighing, the substance of the bag was founcl to be 5kg and 2009ms. Two samples of lOOgms each we.re taken and were s^a!ed. Tne bag and the two samp!es were seized vide Ex.P-5 as also on 6.4.2002, and on the same day were entrusted for safe custody in ttie AA.aikhana P.5. City Kotwali, &hoitntari vide Ex.P-13 (Q. A specimen impression of the seal used to sea! the samples was alsc entrusted for safe custody. On the same day vide menw Ex.P-15 of the Superintendent of Police, Dhamtari the white plastic bag and the ti,vo sample packets wer-e sent for anaiysis to t'ne Forensic Science Loboratory, Raipur through Constabia Bheesham Singh Netam. Tfie.se. articles were received in the F.S.L, Raipur on 8.4.2002. Vide report dated 18.4.2002, the Forensic Science Laboratory' opined that ail the 3 packets which were sent for chemical analysis contained Ganja. After completion of investigation, the appellant was prosecuted under Section 20(b)(i) of the Act. 3. The appellant abjured the guilt and p!eaded 'nnocence. The prosecution examined two independent witnesses Chabilal P.W. 1 and Santosh P.W. 2, A.S.I. Ashok Dwivedi P.W. 3, Malkhana Moharrir Rathram Patel P.W. 4., &.S.P. Ashok Pipare P.W. 5 and Constable Bheesham Singh Netum P.Vi/. 6. No evidence was led by the appeilant. 4. The prosecution did not tender the report of the \, Forensic Science Laboratory as evidence under Section 293 Cr.P.C. No mention about the report was to be found in the testisflony of either A.S.I. Shri Ashok Dwivedi P.W. 3 or Constable Shri Beheesham Sin9h Netam P.W. 6. buring examination, under Section 313 of Cr.P.C also, no question was put to the accused regarding thg^ report of the Forensic Science Laboratory. t5espite there being cny !egal proof of the report of the Forensjc Science Laborator/ and aiso the fact that the independefil witnesses had not supported the prosecution story, the leamed trial Judge relying upon the te.stimony of A.5.1. Shri Ashok Dwivedi P.W. 3 convicted and sentenced the appeilant o.s aforesaid in para 1. IB.;:,..,......_,... !*':':S!K'iaES 5. Shri Arun Kochar, iearned counset for the appellant has o.rgued that there is no legal evidence to show that the substance seized fpom the appellant was 6cnja. He contended that prosecution having failed to tender the report of the Forensic Science Loiboratory as evidence as required under Section 293 Cr.P.C., the evidence of A.5.1. •Ashok Dwivedi (P.W. 3) it could not form the basis for convicting the accused under Section 20(b)(i) of the Act. It was further ciraued that since no opportunity was given to the appeliant to explain the report .of the F.S. L. as an evidence appearing against him, fne conviction undsr Section 20('o)(i) of the Act could not be sustained in the eye of iaw. He also contended that the evidence led by the prosecution feli short of the requisite proof required for convicting a persdn under Section 20(b)(i) of the Act since independent has ssses Chabilal and Santosh P.W. 2 had not supported the V, non story and mandoitory provision of Section 55 of had not been complied with. On the other hand, Ashish Shukla, iearned counsel dppearing for the State argued in support of •rtie impugned judgment, though ormaily. w[ssa 6. In an offence under Sectjon 20(b)(i) of the Act, severe punishment which may extend up to 10 years <md a fine whlch may clso extend up to I lack rupees is prescribed. It is tlierefore the pious obligation, nay, duty of the Court trying offences under the Act to minutely examine whether the mandatory provisions of the Act hwe been compiied with and a!so whether thsre was !ega! proof on record to show that the substance seized from the oppeilant was Sanja, instead of mechanically recording a convicting and awcrding sentence. Regrettabty. the learned trial Judge failed in her duty. Aithough in para 19 of the jud9ment, the trial Judge has referred to the testimony of A.S.I. Shri Ashok &wiyedi P.W. 3 and mentioned that there was nothing to disbelie'/e the statement of the witness that the sealed packet of sample had been sent to the Forensic Science Laboratory and a positive report regarding (Sanja had been received, yet on a minute perusat of the entire testimony of \ A.5.1. Shri Ashok bwivedi P.W. 3, I find that there is no indication whatsoever, in his testimony that either the sample was sent for chemical analysis to the Forensic Science Laboratory or that the report of the Forensic been received or had positively llil that the sampie wois opined to contain Sanja. It V, appears that the learned tria! Judge perfunctorily observed In para 19 of the judgment without eyen going through the record once. It is settled law that every piece of evidence that is to be used by the pr'osecution against the accused shouSd be put to the accused while examining him under Section 313 of Cr.P.C. The learned trial Judge did not even consider it necessar-y to examine the accused on the report of the Forensic Science Laborcitory before using it as evidence against the accused. The approach of the trial Cour't shocks the judicial conscience of this Court. |";:s'!R3gge?, 1 7. Tne record does not show that at caiy time during triai, the evidence of th®Forensic science Laboratory was tendsred by the prosecution and was exhibited as evidence required under Section 293 of Cr.P.C. There is also nothing in the testimony of A.S. I. Shri Ashok bwivedi P.W. 3 which Vifould show that he had any reason to beiieve that the substance seized from the appellant was ganja. The prosecution has therefore failed to establish tliat the substance alteged to hwa been seized from the appellant was ganja. 8. Independent witnesses Chabilal P.W. 1 ond Santosh \ P.Vi/.2 did not support the prosecution story. Although seizure memo Ex.P-5 beo.rs specimen impression of the seal used by A.S.I. Shri Ashok Owivedi P.W. 3, yet the report of the Forensic Science Laboratory does not give any description whatsoever, of the seals found on the 3 packets which were sent for examination. Seizure memo Ex.P- 5, \,, FJ.R.Ex.P-14 and Malkhana Register Ex.P- 13 (C) do not show that any identification marks were given by A.5.1. shri Ashok Dwivedi P.W. 3 on the plastic bag or ths two sampies. Malkhana Register Ex.P.13(C) also does not show that the piastic bug was entrusted in a sealed condition. The testimony of Head Constabte^athram Pate! P.W. 4 does not show that as required under section 55 of the Act, before entrusting the aforesaid articles to the safe custody of the Malkhana, the Station House Officer had affixed his seal on the articles so as to prevent any tampering with the sampies. From the time of seizure til! the time of entrustment to the Malkhana, no identification marks were given on the sample packets as well as the piastic bag. Therefore, no explanation is to be found as to how Packets se.nt to the Forensic Science Laboratory were found to contain identification rnarks A, Al & A2.. 9. Although copy of the Malkhana Register Ex.P-13 (C) shows that the specimen impression of the seal used for sealing samples had also been entrusted for safe custody to the Malkhana Moharrir yet the report of the Forensic Science Laboratory does not show that any such seal was •sither received or was compared by the Forensic Science Laboratory bsfore examining the contents of the packets sent for examination. The record also does not show that the seized articles and the specimen impression of seal were produced before the trial Court. @? 10. Having considered the evidence led by the '*>', prosecution tn its entirety, the following points emerge:- ^vs i) The prosecution has failed to establish that the substance seized from the appellant was Sanja since the report of the Forensic Science Lsboratory was not tendersd in eyidence oind exhibited and the accused was not^giyen opportunity to explain the same in his examination under Section 313 of Cr.P.C. ii) In view of the total non-compliance of Section 55 of the Act coup!ed with the fact that no spec'imen impression of seal was sent for comparison to the Forensic Science Laboratory, the possibility that the substance examined bv the Forensic Science Laboratory was tampered with cannot be ruied out. iii) Indspendent witnesses Chabilal P.W. 1 and Santosh P.W. 2 had not supported the prosecutjon story. iv) Thers was absolutely nothing in testimony of A.S.I. Shri Ashok &wiyedi P.W. 3 to conclude that the substance seized from the possession of the appellcnt was fianja. 11. In the above mentioned circumstances, the oppea! deserves to be aliowed. Conyiction of the appellcmt under Section 20(b)(i) of the Act an<J the sentence awarded thereunder are set aside. The appellant shall be set at libsrty forthwith, if not required, in amy other case. Fine, if paid, shall be refunded to the appellant. Sd-/' Judge