-X ^ -^ ^ HIGH COURTOF CHHATTISGARH AT BILASPUR Slngl^Bench : Hon'ble Shri Rajeshwarlal Jhanwar, J. Criminal Appeal No. 163 of 1994 Feru Verma versus The State of Madhya Pradesh (now State of C.G.) JUDGMENT fr; Post for pronouncement of Judgment z<\ -10-2009 Sd/- R.L.Jhaewar Judge / ' -*1»- •'^.:. HIGH COURT OF CHHATTISGARH AT BILASPUR Sinflle Bench : Hon'ble^hri R^jeshwar Lal Jhaiiwar, J. Appellant (injalD Crl. • SaffApDeal No.163 of 1994 ^- • . versus Respondent Feru Verma, aged about 55 years, S/o Mangalu Verma, resident of village Karchua, Police Chouki Khandsara, P.S. Bemetara, District Durg, (M.P.) The State of Madhya Pradesh (now State of Chhattisgarh) Through Excise Deputy Inspector, Bemetara, Tahsil Bemetara, District Durg, M.P.) CRINIINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE. 1973 Present: Shri H.BTAgrawal, Senior Advocate with Smt. Meera Jaiswal, counsel for the appellant. Shri R.R.Sinha, P.L. forthe State/respondent. JUDGMENT (Delivered on this 2°1 day of October, 2009) This criminal appeal is directed against the judgment of conviction and order of sentencedated 31.01.1994 delivered in Sessions Case No. 381/90 whereby the learned Sessions Judge, Durg, has convicted the appellant under Section20 (b) (i) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the Act') and sentenced him to rigorous imprisonment for three years and 6 months. 2. Brief.facts of the prosecution in a nutshell are that on 28.08.1990 -r/'~; on an information received from the informer Excise Sub-lnspector Gopal Ram Sinha that the appgllSrrt was selling ganja illegally at the village '.Karchuva, he prepared Panchnama vide Ex.P.2 and thereafter he gave Rs.20/- aftersigning it to the witness Ram Charan and directed him to purchase ganja from the appellant. Ram Charan purchased the ganja frpm th6 appeNant and on the same date at 14.40 hours Excise Sub- ~-.' .^ss^ "•^. @? Inspector Gopal Ram Sinha along with witnesses Mehtaru P.W.3 and Dashrath P.W.2 went to village Karchuva and searched the appellant before the witnesses. On being searched, Excise Sub-lnspector seized the note of Rs.20/- as also 4 grams of ganja and also recovered 10 grams of ganja kept in other packets. Seizure of ganja was effected vide Ex.P.1. After comptetion of formalities, the appellantwas arrested on 28.08.1990. 3. After completion of investigation. charge sheet was filed against the appellant under Section 8 (c) of the Act before the A.C.J.M. Bemetara, who in due course committed the case to the Court of Sessions Judge, Durg for trial. Charge under the above Section was framed against the appellant and was read over and explained to him, who abjured the guilt and led no evidence in defence. 4. The learned Sessions Judge after evaluating the evidence available on record and hearing the counsel for the respective parties, convicted the appellant under Sections 20 (b)(i) of the Act and sentenced the appellant as above. 5. I have heard learned counsel for the parties at length and have perused the 'record. Excise Sub-lnspector Gopal Ram Sinha P.W.4 deposed that on 28.08.1990 he has received information from the informer that accused appellant - Feru Verma was selling ganja. On this, he firstly prepared Panchnama vide Ex.P.2 and thereafter he gave note of Rs.20/- to the witness - Ram'Charan to purchase ganja from the accused appellant. Number of note was JL/35356 and Ram Charan purchased ganja from the accused and brought the same. This witness stated that he had visited the shop of the accused along with one Constable and after ,. having been searched by the accused and witnesses, he made search of theappellant. Dui;ing search of the appellant, he seized 4 grams of ganja from th& a^pellant. Seizure memo Ex.P.1 was prepared and note of Rs.20/- which was given to the test purehaser was also recovered. *». According to him, he also seized 10 grams of ganja, which was kept in 'packets, 'from the purchaser who was deputed as test purchaser for purchase of gan/'a from the accused appellant and its seizure was Ex.P.3. TMis withess further stated that he seized ganja from the pocket of the accused appellant. It is evident from his testimony in paragraph 4 that he ^' -» 1 ^yk J himself had tested seized ganja and found it to be ganja and prepared a report to this effect vide Ex.P.4 and then he recorded statement of Ram Charan and Dashrath. After recording their statement, he filed challan in the Additional Chief Judicial Magistrate, Bemetara. 6. The testimony of Exdse Sub-lnspector Gopal Ram Sinha P.W.4 that firan/a was seized from the accused appellant was not supported by the testimony of independent witnesses/f'.e., Dashrath P.W.2 and Mehtaru P.W.3 since they were declared as hostile witnesses. 7. Manrakhan Lal P.W.1 deposed that on 28.08.1990 he had been to village Karchuva accompanied by Excise Sub-lnspector to seize ganja from the accused appellant. He stated that on being received information from informer, Excise Sub-lnspector gave me note of Rs.20/- to purchase ganja from the accused appellant and thereafter he along with Excise Sub-lnspector reached the hotise of the appellant where the accused appellant was present. After having been searched by the accused,they searched the house of the appellant where they found a polythene packet which was kept in paddy gunny bag, in which 4 grams of ganja was found by them. Excise.Sub-inspector Gopal Ram Sinha P.W.4 seized the ganja vide Ex.P.1 before the witnesses. According to this witness, he did not know the actual weight of the seized ganja. 8. It is evident from the evidence of Gopal Ram Sinha P.W.4 that he seized ganja from the pocket of the accused whereas Manrakhan Lal P.W.1 stated that ganj'a was seized from the house of the appellant in paddy gunny bag. The testimony of Manrakhan Lal about the seizure of ganja is not corroborated by the testimony of Gopal Ram Sinha P.W.4. The prosecution has utterly failed to prove the fact regarding the ptace from where gan/a/was seized. . / • 9. llt is also pertinent to mentjgn here that the seized ganja was not sent for its chemical examination to Forensic Science Laboratory. The Exci^e Sub-lnspector P.W.4 has, after seizing thearticle, examined it and found it to be ganja. It is clear from the statement of Excise Sub- Inspector that he did not produce any certificatejo that effect nor did send \.-'^,.' /' the seized article to its chemical test. In this view of the matter, the prosecution has failed to prove that the seized article was found to be ganja. 10. A perusal of the testimony of Excise Sub-lnspector Gopal Ram Sinha P.W.4, it is also clear that he seized 4 grams of ganja from the accused appellant and thereafter prepared Panchnama. Vide Ex.P.2 he gave note of Rs.20/- to test purchaser' to purchase the ganja from the appellant. Vide Ex.P.3 i.e. seizure panchnama of test purchase, 10 grams of ganja was purchased. In this view of the matter, it is clear that 10 grams of ganja was seized from the test purchaser whereas after perusal of Ex.P.1, seizure memo, it is evident that one note of Rs.20/-, 4 grams of ganja which was kept in polythene bag and 10 grams of ganja which was kept in paddy gunny bag were seized from the accused appellant. In the seizure memo Ex. P.1 it was shown that ganja containing 4 grams was seized as also note of Rs.20/- as well as 10 grams of ganja whereas in Ex.P.3 which is also seizure panchnama from test purchase, it was also shown that another 10 grams of ganja was seized from the accused appellant. This also creates a serious dent in the prosecution story. 11. It is also pertinent to mention here that when Excise Sub-lnspector Gopal Ram Sinha P.W.4 received information that accused was selling ganja, he had not taken that information in writing and had also not sent any report to his superior'officers and after investigation and completing formalities, he also did not think it fit to sent the seized article for its chemical examination to Forensic Science Laboratory. More so he himself conducted the test on seized article. There is no document on jecOrd which would show that report was flet-sent to his superior officers <A'— nor there is any dacument to show that seized article was sent to F.S.L. ,/ for itschemio&l examination. "<? . 12. In the present case, seKure of ganja is doubtful. If ganja was Seized frbm the accused appellant by the Excise Sub-lnspector Gopal Ram Sinha P.W.4, then a duty is cast on this witness that before effecting seacch of the appellant, he should_have given options as to whether the 'll 'a^, appellant desired to be searched in the presence of Gazetted Officer or Magistrate, as envisaged underSection 50 oftheAct. 13. Section 50 of the Act reads as under: "50. Conditions under which search of persons shall be conducted.:- (1) When any officer duly-authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall if such person so requires, take such person without unnecessary delay to the neare'st Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer orthe Magistrate referred to in sub-section (1). (3) The Gazetted officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made. (4) No female shall be searched by anyone excepting a female. (5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched fo the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973. (6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated sucb-'search and within a seventy-two hours send a copy thereof to his immediate official superior. A bare perusal of the above, it is clear that Section 50 of the Act confers a valuable right on the person to be searched in the presence of a Gazetted Officer or a Magistrate if he so requires and the failure to provide that option to^he accused vitiates his conviction. In the present case, the Excise Stib/lnspector P.W.4 did not comply with the above Section despite the' fact that the prsey'sions of Section 50 of the Act to be mandatory, the non-compliance whereof would vitiate the conviction. W. Sub-section (1) of Section 42 ofthe Act also clearly envisages that .before entering in a building or place for affecting his search upon prior informatiQn.of contraband ganja being kept therein the officer concerned ^ has to record information so received in writing that contraband article was stored in the premise. Sub-section (2) of Section 42 of the Act which lays down that where an officer takesdown any information in writing under sub-section (1) or records grounds for his belief under the proviso thereto, he shall forth send a copy thereofto his immediate official superior. Even if the testimony of Gopal Ram Sinha P.W.4 is taken at its face value, there is clear cut violation of sub-section (1) & (2) Section 42 of the Act. 15. In Ali Mustaffa Abdul Rahman Moosa vs. S(ate of Kerala, 1995 (1) EFR 16 (SC), the Supreme Court held that before the authorised or empowered officer conducts a search, he should give the accused an option to be searched either in the presence of a Gazetted Officer or Magistrate. In the present case, nothing was complied by the Excise Sub- Inspector P.W.4. 16. For the foregoing reasons and in the facts and circumstances of the case, 1 am of the view that the prosecution has utterly failed to prove its case beyond reasorrable doubt, therefore, conviction of the appellant under Section 20 (b) (i) of the Act and the sentence awarded thereunder are liable to be set aside. 17. In the result, the appeal is allowed. Conviction of appellant under Section 20 (b) (i) of the Act and the sentence awarded thereunder are set aside. The appellant is acquitted and shall be set at liberty forthwith, if not required in any other ease. Sd/- R.L. JhaBwar ^ / -n»-