'ssa'ss^ ^^^^^^ ;si%^^ii^l HI6H COURT OF CHHA66IS6AR AT BILASPUR Cr.ADpeal No. 799/2006 Prakarfi Smgh Vs. State of <ihhatt-isgarh Post for Judgment; 06.03.2006 Sd-/' saheb' Judae <<; T.' oi> 181U Sil WW COUKT OF WHATTIS6ASW AT BILASPUR Cr. Appeal No.799/20(» Singk Bench: Hon'ble Shri Ojljp Raosateb Deshmukh, J. Prakash Sin9h Versus State of Chhatl'isgarh Shri Adiok Kumar Shukla, Counsel fw the appelfant. Shri U. K. S. Chandel, P. L. for the State. JUD6MENT (Oed'vered on 06th <fay of March 2006) This appeal is directed against the judgment dated 24.92.WW delivered by 5hri Konak Prosad Kurre, ^wcial Judge, N.OP.S. Aet, Ambikopur in Special Crime Case No.5/2003 whereby the dppelkmt was convicted under section 21 Qf) of the Narcotic Drugs nnd Psychotropic Substcnces Act (hereinafter referred to as the AcY) for hwing been found in possession of Heroin weighing 16 groms 740 milligrams on 21.3.2W3 ond sentenced to undergo rigorous imprisonment for 5 years and a fine of Rs.1,000/-, in defauh- of the same, to undergo additional simple imprisonment for 1+iree mon-ths. 2. Brief facts are that upon recewing secret mformation •Ihat some person was proceeding towards NamndJcaki for selling brown sugar {Heroin), Assistant Sub-IriSpector S.C.Shukta P.W.l of the District Crime Squond, Ambikapur apprehaided the appelhnt ort- Noronakala and after giving him notice under Section 50 of the Act, searched the aippellant. In thp right pocket of the full pant of the appellant brown coloured aibstance like brown aigcu' m -rtiree white ^. ii.iN- small polythene bags and one white paper packet vms foimd. The contents of the three polythene bags and the white paper packet were seized vide Ex.P.6, and thereafter, the contents of each packet were mixed to make a homogenous content. The substcnce was weighed by Kishorilal Saraf P.W.9 triio found vide wei^iment Panchncana Ex.P.10 •t+iat -the total weight of -the subshmce Seized from the appejlant vws 16 grams 740 mitligrams. The art-ictes wen? sealed and were honded over to Head Constable Raindos P.W.3 for safe custody in Mattc/iana an 21.3.2003 and acknowledgment Ex.P.18 was ob'hainetl. On 23.3.2003 vide memo of Ihe Supernitendent of Police. Surguja ExP.20, atl the four packets along with specunen impression of the seal were sent for chemicoJ analysis. Forensk: Science Laboratory, Raipur vide report ExJ*^2 dated 4.4.2003 opined Ihat all the four packets contnined diacital moiyhine Oieroin). 3. After coropletionof investi9ation, the qipellant was prosecuted and charged under Section 22 of the Act. The appelhnt ofcjured the guilt. The prosecution examined as mony as 9 witnesses. No evidence in defence was led by tiie appetlant. Relying i^wi 1(ie CTidence led by the prosecution, the leamed trial Judge cbnvicted •the appellant under Section 21(b) of the Act and sentenced him asaforesaid in paru 1. 4. Shri Adiok Kumar Shukk, leamed counsej for the cppellant has assailed the conviction of Itie at^iellant on Ihe ground liwt the evidence led by the prosecution does not estafalish the guilt of the appellant under Section 21 (b) of ihe Act. He argued ttot independent witnesses Rajendra Prasad P.W.7 and Jhunku Prasad P.W.8 dkl not aipport the prosecution story. Constable L<n4aBh P.W.6 who had accompanied A.SX Shri S.C.Shukb at the ^)ot did not storte that the artk:les seized had been sealed. 5eizure memo Ex.P.6 tdiich was effected at 1830 hours bore the apecimen inyression of -the seal. o'•>-.' E^ Thereafter, Samaras Pcsiehncma ExP.7 was written on 1835 hours \ mecning thereby Ihat the seal must have been broten wfthout which the contents of 1he packets coutd not hwe been mB<ed. The weighment Panchnama Ex.P.10 did not mote any mention abmit the plastic bags or paper pocket in which the farown suyar ia<e substance uws alfeged to have been seized. It was pointed out that witnea Kidiorilol Saraf P.W.9 had initialty stated that the Inqwctor had brou^it only one pocket to his shop for weighment ond krter improved upon his statement ond stuted that three packets uwsre weighed by him. He did not depese as to what was -the weight of contents of each packet. It therefore became extrenaly doubtftil as to »rfietherfour unsealed packets hod been token to Kishorilal Saraf P.W.9 for weighment after they were seakd because Kishorilal Sorof P.W.9 did not state Ihat <av/ of the packets were sealed. There was totally non- compliance of Section 55 of •the Act smce 1(wre wws no evidence to ^iow that the SMO. of P.S. Ambikapur had affixed his seat on the four sealed packets entrusted by A.SJ. S.C.Shukk» P.W.l to Head Constable Rajendro Prasad P.W.7 for safe custody. Thwe was also no evidence to show that Shri S.C.Shukla, A.S.I. hdd prepared a ^wcimen impression of seal which was sent atong with •the aeded pad<ets to Forensic Science Laboratory. Constable ISakeshwar P.W.4 wiho took •the sealed packets to the F.SJ- also did not state tint those pactets had con'tained the seal of the S.H.O. On these grouwls, leamed counset for the dppellant contendal Ihat -the prosecution hdd faited to establidi the guilt of •Hie appellant under Section 2l0>) of the Act. On the o1her hand, Shri U.K.S.Oiondet, tearned Pcnel Lawyer for the State aryed m si^port of Ihe impugned jud9ment. 4. Having heard the rival contenttons, I haw gone •thr'ou^i the re<»rd. A.SJ. S.C.Shukb, P.W.l deposed -that after giving notice 4W under Sect-ion 50 of the Act to •the appellant, he had searched the appellant and found three snwll Nfhite polythene bags ond one white paper packet in the right pocket of the full pant cwitaming brown coloured powder Uke substance wbich eypeared like brown aigar. Tlierecfter, he had prepared the seizure memo Ex.P.6 and had affb<ed the ^iecimen impression of the seal thereon meening -thereby that ofter effecting the seizure of Ihe 1hree small polythene bags and one paper packet, -rfiey were sealed by A.5J. S.C.Shukta. A.SJ. S. C. ^iukla has further stated that he had prepared 5eanarae Paicfincma vide Ex.P.7 at 1835 hours. However, in •ttiis Pcsidincma. it has not been stated that the seal on the three small polythene bags wtl one white paper packet were broken and thereaft'er a homogermis admixlure of the contents of the four pockets (KHXS prepared. Untess the seals, if euiy, on the four packets were broken it would be imposdbte to prepare a homo^nous admixtum of tfie contents of each pactet. It also does not state that 'the pockets t»eresealed thereafter. This by itself creates a serious doubt whelher A.SJ. Shukla had sected ihe four pactets ufter preparing seizure memo Ex.P.6. 5. Kishorilal Saraf P.W.9 who had wsaajtwd the contents of the packets also did not state that he had weighed Ihe conten-ts of aS four pockets. In para 3, he stated that the Sub-Inspector had brought only one packet to his shop for weghment. In para 4, he stoted ihat he had weighed three pactets. He did not depose the weight of ecah packet. He also <(id not (fepose •tiiat each packet NUS seated after weighroent. It is beyond comprehenswn •thaf if Stmujras Pcnchnama was prepared after effecting the seizure and'sealing the packets, then how Ifae contents were <»gain sepamted in four different packets. The testimony of Kishori(al Saraf P.W.9 also 5f^.! ^ss creates doubt that the seized packets were sealcd by A.SJ~ S. C. Shukla. 6. Constabte Lawkush P.W.6 who was present -throu^iout the proceedings by A.SJ. S.C.Shukta also did not s'tate that four pactets had been seized from Itie full pcnt pocket of the appelknt. According to him, upon being searched onty one polythene packet contcnnir^ brown sugar like substonce had j^een seiad. He did not state -rtiat .,i: A.SJ. S.C.Siukla had sealed Ihe seized packets. This further creates a serious dent in the testimony of A.SJ. S. C. Shukh. 7. Independent wtilnesses Rajendra Prasad P.W.7 and Jhunlai Prasad P.W.8 also did not aipport' the prosecution story. According to Rajendro Prasotd P.W.7, A.S.I. S.C.ShiAla came to him cnd osked to siyi some documents whereupon he had signed 1he various documents alleged to have been executed by S.C.Shukh, A.SJ. on 1he spot. He has specifically denied that the potice hod seized brown su9ar like aibfftance from the •fiill pant pocket of the appellant. Jhunku Prasad P.W.8 had also dq>osed that •the Tnspec'tor had stopped him while he was retuming from Namnakala to his house and ad<ed him to siyi some docunwnts and upon his refusal, Jnspec'tor had assured him that he ^iould sign the documents as nothing would hoppen. He hos denied that he went with Ihe police and that cny seizure of brotm sugar was effected in his presence by S.C.Shukkk This further weakens the e.o^f-. prosecution story* 8. A.SJ. S.C.Shukla P.W.l has in pera 21 stated ttwt he had handed over the four seakd packets to Head Constoible Rnmdas P.W.3 and obtained acknowledgment Ex.P.18. Head Constabfe ftamdas P.W.3 has also corroborated the above statement. Howewr, bolh these witnesses have not stuted that the Station House Officer of Police Station Ambikdpur hod affixed his seat on •tfw sampte packets whidi 6^% were entrusted for sarfe custody in the AhtMiew of Police Station Ambikapur. 9. Section 55 of the Act reods as under: 55. Police to tak« chargB of articles sriz<d and delhxred.—Anotficer-in-charge of a police sfation shaH tatas chda^e of and keep in safe custody, pwidmg the orders of -the Magistrate. all drticles seized un<ter this Act wi-thin -the local area of Ihot police sttrtion and which mcy be (telivered to him, ^ind shall allow any officer wA>o moy cfficompcny such artictes to -thepolice statton or who moy be deputed for •ffte purpose, to affix his seal to such articles or to tdte soimples of cnd from them nnd all somtpfes sa taken shall also be sealed with a seal of the officer-in- charge of Ihe police Station. A pfain reading of Section 55 shows that before keepin9 articles seized in •the Malldiaiwi, the officer-in-charge of Ihe police station is required not only to ensure that the officer Occompanying sudi articles has affixed his seal on such articles but also required to put his seal on such packets. This provision acts as a safeywrd ogainst tompering with the OTtictes seized. It is •the duty of the prosecution to lead evidence to establish -that right from Ihe time when the articles were seized, uyto the time when the art'icles were received for cheroicat analysis in the F.S.L they were prqwrly sealed os required by -the Act. However, in this case, there is total non- compliance of Section 55 of the Act. In view of Ihe aforesaid disaission, a serious doubt is created whether the contents of Ihe four packets alleged to have<been seized from the appellont had teen sealed by A.SX S.C.Shukh. "Tlie to'tal non-complkince of Section 55 also does not rule out -the possibility that the subslance sent for chemical amalysis to Ihe F.S.L. could have been tnmpered. 'ia i ^Si' 10. Hwhig •thus considered the evidence led by the prosecution h \, its entirety, •the folloumg points emerge: a) Independent witnesses Rajendra Prosad P.W.7 and Jhunku Prasad F.WS did not support •tfte prosecution story. •V b) Constuble Lavkush did not depose that the substanoe affeged to hme been seized from "tfie (ypellant was sealed. He serioudy conlradicted the testimony of A.SJ. S.C.Shukla P.W.1 by statmg Ihat only one packet containing br<nm sugar like substonce had been seized from Ihe full pant of the appellait. c) Kishoritat Saraf P.W.9 also did not depoae •that the contents of •the packet weighed by him were sealed. He also contrudicted ^.SJ. S.C.5hukla by statuig at one place that only one pad<et had been brought to his shop for weighment and at ano'ther place by stating -thut he had weJ9hed Ihree packets. He did not depose •the weight of each packet. d) There is total non-compltoice of •the provision of Section 55 of the Act. e) The time of execution of Samwws Pmdinama Ex.P.7 clearty indicated that the seul of ihe four puckets must have been brokwi open fcr making a homogenous admixture of the contents of all Ihe four packets. A.SI. Shukfa did not depose so. fhwe is no evietence 1+iat tiie flrticles were seated egain after pr^xiring the Sosnaras Paidiniima. In yiew of Ihe above facts, conviction of the oppellant undei" Section 21(b) of the Act and the sentence imposed thereunder deserves to be set aside. .^•\ ^ 11. In -the result, the appeal is atlowed. Convwtion of the appelhnt under 5ection 210»)of the Act ond -the sentence imposed thereunder are set aside. The appelknt is acquitted and shall be set at liberty forthwith, if not required in ony other cose. Rne, if paid, ^ialt be refunded to 1he a(^>elkint. Sd-/ Ra; Judge S^s. \: