V:W-"'^BSK- •s'ssas j^ HIGH COURT OF CHHATTISGARH AT BILASPUR SB: HON'BLE SHRI R.N. CHANDRAKAR., J Criminal Appeal No. 345 of 2000 Appellant Tiharoo Respondent Vs. The State of Chhattisgarh. POST FOR PRONOUNCEMENT OF JUDGM Sd/- LN. Chandrakar Judge Sd/- JUDGE ^.fc -10-2009 Aopellant (injail) HIGH COURT OF CHHARTTISGARH AT BILASPUR Criminal Appeal No. 345 of 2000 Tiharoo, aged about 41 years, son of Sanau, God, resident of Seonipal, Police Station Keshkal, Tahsil - Jagdalpur, Distt. Bastar (MP) now Chhattisgarh. Respondent yersus State of Madhya Pradesh through Police Station Keshkal, Tahsil, Jagdalpur (now Chhattisgarh) Criminal appeal u/S. 374 (2) of the CnminaLProcedure_Code (SB: Hon'ble Mr. Ranganath Chandrakar, J.) Present: Smt. Kiran Jain, counsel for the appellant. Shri Rakesh Jha, Dy. Govt. Advocate for the State. JUDGMENT (Delivered on this day ofa.b -t^-October, 2009) This criminal appeal, presented under Section 374 (2) of the Code of Criminal Procedure, is directed against the judgment of conviction and order of sentence dated 4-12-1999 passed by the Special Sessions Judge, Bastar at Jagdalpur (constituted under NDPS Act, 1985) in Sessions CaseNo. 64 of 1999, whereby the aceused/appellant has been convicted under Section 20(A) of the Nareotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act, 1985") andsentenced to suffer R.l. for three years and to pay a fine of Rs.5,000/-, in default of payment of fine to suffer further Rl for 6 months. (2) Briefly stated, the facts of the case are that on 23-7-1999, Sub Inspector K.K. Nag (PW/1) received information from the informer that the accused/appellant was possessing some contraband article i.e., Ganja in his courtyard. On receiving the said information, the Police party went there for y'^'i"v9i '%, l^ '» 1, ^Sfej. f ,. "WS .s; entrapment, searched the courtyard of the appellant and seized 183 plants of Ganja. Sub Inspector K.K. Nag (PW/1) stated that Ganja plants were weighing 2.250 kgs. He prepared panchnama and informed this incident to his senior officers. He gave notice to the appellant under Section 50 of the NDPS Act and arrested the accused/appellant vide Ex.P/15. After seizure, the Investigating Officer sent four plants of Ganja in two separate samples "A" and "B"( 2 plants in each) out of the seized plants to Forensic Science Laboratory for chemical analysis vide Ex.P/20 and 179 plants of Ganja were kept in Malkhana of Police Station, Keshkal. The report of FSL was obtained vide Ex.P/21 which was marked as articles A-1, A-2, B-1 and B-2. Sub Inspector K.K. Nag (PW/1) lodged Dehati Nalsi vide Ex.P/16 and first information report vide Ex.P/17. On completion of investigation, the charge sheet was filed before the trial Court. 3) The trial Court framed charge against the accused/appellant under Section 20(A) of the Act. After recording the evidence of the witnesses, the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing againsf him and pleaded innocence and false implication. On evaluation of the evidence and materia] available on record, the Special Court convicted and sentenced the accused/appellant as noted above. Aggrieved by this judgment, the appellant has preferred this appeal. 4) Smt. Kiran Jain, learned counsel appearing for the appellant submits that there is no dependable evidence about search and seizure and that the appellant has been wrongly held guilty. Learned counsel further submits that the learned trial Court should have acquitted the appellant on the ground of non-compliance of Section 50 of the Act which is also mandatory in nature and in the present case, it is not clear that from where the contraband article was seized, therefore, the report is doubtful. It should have been held that the investigation of the case was conducted by the same officer who seized the f &..."1 ''1 1 I .e .--^ contraband article and independent witnesses have not supported the prosecution story. It is further submitted that learned trial Court ought to have acquitted the accused/appellant on the ground that the courtyard was not belonging to the accused/appellant alone as it was not proved by the prosecution by proceeding any documentary or oral evidence and further the courtyard was open and it might be possible that the accused/appellant is being falsely implicated by his enemies. Learned counsel further submits that the conclusions arrived at by the trial Court are based on presumptions and surmises and the grounds mentioned herereinabove, amongst others, the impugned conviction and sentence of the appellant is bad in law and the same deserves to be set aside and the appellant be acquitted of the charge. 5) Per contra, Shri Rakesh Jha, Deputy Govt. Advocate for the respondent/State supporting the impugned judgment of the trial Court submits that there was no infirmity warranting any interference in appeal. 6) I have heard learned counsel for the parties and perused the record of the trial Court as well as the impugned judgment. 7) I proceed further to examine the woof of the rival contentions. 8) Sukhdeo (PW/2) and Shivlal (PW/3) are the independent witnesses who have not supported the prosecution version and the material documents marked as Ex.P/1, P/2, P/4, P/5, P/8 to P/13, P/15 and Ex.P/23. The independent witnesses are declared hostile. They categorically ascertained that they do not know about the seizure which was made in the courtyard of the appellant. Sub Inspector K.K. Nag (PW/1) and Minda Prasad Pandey (PW/5) are the departmental witnesses. Minda Prasad Pandey (PW/5) stated in his deposition that he was authorized by the Police to prepare Nazari Naksha of the spot. He prepared Nazari Naksha vide Ex.P/25 but he stated in his cross examination that he did not prepare Nazari Naksha by admeasuring the spot. KUU~lia» i'^ 1: ~<SK:. He also stated that in Nazari Naksha, it was not mentioned that who was in possession of that land in that particular year. Thus, Patwari Minda Prasad Pandey (PW/5) has not supported the case of the prosecution and it is not clear from the evidence that the appellant was in exclusive possession of the land from where the alleged Ganja was seized. Ganesh Ram (PW/4) who is the witness of weighing panchnama (Ex.P/11) also stated that he did not weigh the alleged plants of Ganja and did not know anything about the case. He further stated in his cross examination that he did know what was written in the papers signed by him. 9) Sub Inspector K.K. Nag (PW/1) stated in his deposition that he received information from the informer about the presence of some contraband article i.e. Ganja in the courtyard of the appellant. On this information he prepared documents vide Ex.P/1 and Ex.P/2. He also stated that he informed about the incident to his higher authorities vide Ex.P/3. He did not get issued the search warrant against the appellant. During investigation, relevant documents were prepared as mentioned above in para 8 but the independent witnesses Sukhdeo (PW/2) and Shivlal (PW/3) did not support the statement of Sub Inspector K.K.Nag (PW/1). 10) On reappraisal ofthe above evidence, it is found that the evidence about search and seizure is wholly discrepant and is untrustworthy. The material aspect is not supported by independent witnesses. The story is demonstrably apocryphal. Even about search, there is no observance of requisite care and caution. 11) Hon'ble the High Court of M.P. in Laxmibai vs. State of WI.P. 1988 (1) MPWN Note No. 137 observed as under: "In absence of independent corroboration to the accused being in possession of opium and being unable to influence witnesses (as in the present ®3.., raju case) it was considered highly unsafe to base conviction of the accused on the interested testimony of Police witness. Similar view was taken in Madhavnath v. State of M.P. reported in 1990(1) MPWN Note No. 166" 12) Having considered all the facts and circumstances of the case and in view of the aforesaid discussion, 1 am of the considered opinion that the prosecution is, thus not found to have proved the charge beyond reasonable doubt against the appellant. There is enough element of suspicion. The possibility of planting in the peculiar facts and circumstances is not ruled out. Thus, the benefit goes to the appellant. 13) In the ultimate analysis, l find that this appeal is worthy of being allowed. It is accordingly allowed. The conviction and sentence are set aside and the appellant is acquitted of the charge. The record of the court below is directed to be returned. 14) The appellant is on bail. His bail bonds shall stand discharged. He is directed to be set at liberty forthwith, if not required in any other case. The fine amount, ifdeposited, be refunded tothe appellantforthwith. R.N. Ghan'drakar ^SIM