H16H COURT OF CHHATTIS6ARH AT BILASPUR CRIMINAL APPEAL NO.381 of 2006 P051 FOR JUDGMENT ON HEM‘ARCH 2008 Sdl- gig- ’ 1' 1 Dhirendra Mishl‘a Judge J_Z_.3.2008 : r APPELLANT$ (In Jaii) POONAM KOCHAR & ANOTHER Vs RESPONDENT STATE OF CHHATTISGARH Page 1 of5 HIGH COURT OF CHHATTISGARH AT BILASPUR RIMINAL APPEAL NO.381 OF 2006 ‘;<<,_ Present: Mrs. Renu inchnr, Advocam for appellanfs. Mr. Ajay Dwivedi, Dy. Governmenf Advooa'l'e for The Sfa're. J U D e M E N T (Denvcred on [$3.2008) Dhirendm Mishm, J; 1. This appeal is directed agains‘r fhe judgmenf dafed 2'” May, 2606 passeialgi by learned 5pecial Judge under N.D.P.S. Acf, Buster a‘f Jagdolpur in Sessions Trial No.44/05 whereby The appeHanfs have heen convicted under Section 20 (b) (ii) (C) of 1'he Narco'i'ic Drugs and Psychotropic substances Act, 1985 (for short ‘the Act) and each of them has been sentenced to undergo RI. for 10 years and to pay a fine of Rs.1,00,000/-, in defauit of payment of fine to undergo additional R.I. for 03 years. 2. Case of the prosecution, in brief, is that on 26.8.2005 Deputy hanger Mr. R.K. Netam, was in the night patrolling duty in the Forest Range, Sarona, Kanker. At about 6.00 am. he received information that illegal forest produce is being transported by a white Maruti Van bearing registration number C607/5857. He recorded the information in the presence of witnesses vide EXP-4. V Around 6.00 a.m. they saw a white Maruti Van and tried to stop it near barrier, however, the vehicle did not stop. They chased the Maruti Van by government vehicle and stopped it near Bhanupratapdeo College, Kanker. After obtaining their consent, he conducted personal search of both the appellants but he did not find APPELLANTS _ 1. Poomm Kochur', 25 R/o (In Jail) Kochar,‘ aged about year's, Dis‘l'. Knm+hi Line, Rnjnandgaon, Rqinandgoon (C.G.)‘ 2. Shyam Shuklu, 5/0 Lafe dbouf Shambhuna'l'h Shukla, aged R/a 18 acre polioc linz, Ly’ 28 ymrs, Rqjnandgaon, Dist Rajnnndgaon. ‘v Vs P.5. ‘ RESPONDENT Sfafe of Chha‘H‘isgarh, fhrough *¥ ‘f Knnker, Districf Norfh Basmr. Page 2 of5 anyfhing incriminafing from 1hem. Thereuffer, he searched The vehicle and recovered cannabis kep+ in a bag and three packers. Affer- preparing Search memu of EXP-6, fhe con'rmband was seized from Them vide seizure memo of Ex.P~8. Confraband was also weighed by him and weighmenf memo of Ex.P-1O was prepared. Af‘rer complefing inves‘riga‘rion, Mr. R.K. Nefam' (PW—4) sen'i bofh #he accused persons and cannabis wi'rh The vehicle To Police Sfafion Kanker Through memo of Ex.P- 24. Investigating Officer namEiy Ms. Pramiia Mondawi (PW-7) affer receiving fhe seized confraband and accused persons in The poiice sfafion drawh a sampie, prepared homogenous mix‘iure of cannabis and sample and again measured the cannabis vide Ex.P—2. On weighmenf, cannabis recovéred from :l‘he appellan‘l's was found 25.5 kg. Two samples of 50 gm each were drawn from ‘l'he seized confraband. Marufi Van used in fhe offence was also Taken info possession on being produced by Depuiy Ranger Mr. R.l<. Nefam. Offence was regisfered in fhe Police Sfafiont Kanker vide EXP-29. Accused persons were arresfed vide arres'i‘ memo: :3 of EXP-14. Information abouf 'rhe arresf was forwarded fo fhe Town Inspector of Ci'ry Kofwali, Rajnandgaon. Seized ar‘iicles were handed over to Maalkhana Moharrir vide EXP-32 for safe cusi'ody. Samples were sen'i for chemical analysis fo The Forensic Science LaboraTory, Raipur vide Ex.P-33 and fhe report of FSL is EXP-35. InformaTion abouT The offence was forwarded 'l’o fhe Superior Officer vide Ex.P-36. 3. AfTer comple‘ring invesTigaTion, charge sheeT was filed againsT The appelianfs in The CourT of Special Judge, Jagdalpur. During Trial, The prosecuTion in order To esTablish The charge againsT The appellanTs examined 07 wiTnesses in all and Thereaffer The sTaTemenT of appellanTs were recorded under SecTion 313 of The Cr.P.C. in which They denied The circumsTances appearing againsT Them and pleaded innocence and false implicaTion. However, learned Special Judge, afTer hearing learned counsel for The respecTive parTies, convicTed and senTenced The appellanTs as menTioned in Para—1 of This Judgment as / \ \ Page 3 of5 4. Learned counsel for- fhe appelian+s submifs Tha'f There is absolme non- complianoe of Secfions 41 & 42 of the Act, as he search and seizure were effecfed by 'rhe Deputy Ranger (PW—4), who is no? empowered under Sec‘rion 42 (1) of The Ac‘r #o effecf search and Seizure. Relying upon fhe judgmem in ‘rhe maf’rer of Shaiiendra Kumar .Turri Vs. Sm'te of C.6. reporfed in 2007 (2) C.G.L.J. 524 i'r was argued that oniy empowered officers or duly au'rhorized officers, as enumerafed in Sec‘l'ion 41 (2) 6i 42 (1) of The 6d, can acf under fhe provisions of lhe Act If such arresf or search is made under fhe provisions of the Acf by un?dne oj’her 'rhan such officers, fhe same would be illegai. . On ofher hand, learned counsel for The Sfo‘fe has supporfed The impugned judgment . If is no? in dispufe fha‘l Depufy Ranger namely Mr. RK. Nefam (PW-4) while on nighf patrolling dufy received a communicafion fhaf illegal fores‘l' produce is being fronsporfed by Moru’l'i Von. He tried 'l'o slop The Van, however, The vehicle did noT sTop and Thereof-Tar he chased if and made: ad chance recovery of 25.5 kg of cannabis conTained' in four packeTs from The cusTody of The appellanTs. Whole invesTigaTion under the AcT was conducTed on The spoT by said Mr. R.K. NeTam including search and seizure of The conTraband as also MaruTi Van. Affer effecting search and seizure, he senT The accused as also seized conTraband To The Police STaTion concerned where The conTraband was again seized by The invesTigaTing officer from said Mr. R.Ki NeTam. . In The maTTer of Shailendra Kumar Jurri (supra) also Flying 5quadof The ForesT DeparTmenf while checking various vehicles near foresT barrier Charama sTopped a TaTa Sumo vehicle and recovered 25 k9 of cannabis kepT in The vehicle and accordingly seizure was effecTed by The DepuTy Ranger. ThereafTer The STaTion House Officer of The Police STaTion Charama was informed and seizure of narcoTic drug was effecTed from fhe DepuTy Ranger by The police. This Courf relying upon The judgmenTs in The maTTer of SToTe of Punjab Vs. Balbir Singh reporTed in AIR 1994 ’§ Pagc 4 of 5 g3 5C 1872 & Beckodan Abdul Rahiman Vs‘ Sfa'l'e of Kemla reporfed in AIR 2002 SC 1810 has held fhusz- “16.In me presen'r case, when 'rhe fares? officers came f0 know Thu-r fher'e was Ganja in 'I'he vehicle and fhey were faced wifh insfance chance recovery, then i1’ was incumbent upon ’rhem fo inform 'rhe empowered officer who shouid have immediui'ely ‘iuken in ‘ihe charge of invesi'igo'rion and should have proceeded wifh fur'rher invesi'igofion in accordance with The provisions of N.D.P.5. Aci'. Admif‘redly fhis was no'r done by 'I'he foresf officers and They fhemselves si'epped imo furi'her invesfigafion and proceeded with i masking seiiure memo, Ta/ Pane/mama, and affecfing fhe arresf of fhe accused persons and fhereaffer on fhe nex‘i’ morning, when The inves’rigafion was compie'red by Them accused persons along wi'l'h vehicle and con‘iraband were handed over by fhem fo +he police; Thereafter, fhe police officer made anofher recovery memo undeneg’. .1 Ex.—P/8 and fook fhe above arficles along wi‘i'h 8 documenfs in his possession." 8. In the insfanf aiso the forest officer i.e. Deputy Ranger after defecting the cannabis, instead of handing over the appeilants and contraband to the custody of police, he himself proceeded with further investigation in accordance with the provisions of the Act. He prepared consent memo of EXP-5, search memo of EXP-6, preliminary identification memo of narcotic drug of EXP-9, recovery memo of EXP-8, weighment memo of EXP-10 and personal search memo of EXP-10. Thus, whole investigation has been done by the forest officer under the Act and the police officers have affected seizure of narcotic drug from the Deputy Ranger. Therefore, from the above it is evident that the investigation under the Act was conducted by the person who was. not empowered under Sections 41 (2) 6i 42 (1) of the Act and thus, mandatory provisions of Section 41 (2) _& 42 (1) of the Act have not been complied with and seizure of contraband has not been effected by the empowered officer from the appeliants, as the some was seized from the forest officer i.e. Deputy sift. Page 5 of 5 Ranger. As such, The prosecu‘fion has nof been able +0 prove fha‘r during invesfign‘rion mandatory provisions of fhe Ac? were complied wiih and fha'r cannabis was seized from the cus‘rody of fhe appelianf and fherefore, 'l’he impugned judgmen'r convicfing fhe appeiianfs under Sec-Hon 20 (b) (ii) (C) of ‘l’he Acf conno'r be sus'rained. . In 'l'he result, the appeal filed by the appellants succeeds and the same is aiiowed. Convic‘rion of fhe appellants under Secfion 20 (b) (ii) (C) of The Narcofic Drugs and Psychofropic Subsfmces Ac‘r, 1985 and sentence imposed under Thaf sec‘l’ion are hereby se'r aside and They are acqui‘l'red of 1ho‘r charge.~'ihe_appellanfs be set at Iiberiy forfhwifh, if nof required in any ofher case. Sdl- Dhirendra Mishra ® {in Roshan/— A ,- - Judge r