WW §&na§7 iii EHE HiGlj wUKQgiFKQAUDICA’I‘URE “KP 311.1%?UR ( @{MTISGARgL Egggmgi Appmx, Mg, LI g0 /2oo6. f . 7 . V ; EV .uj/ DJ.stt.Ra1pur (c.G.( ‘ “Iv.” V '“H. e / i. FM; ' a“ $L§v$7 \3 .t'.hi\§g$ ' _ " ‘APPE r‘ f UNDnR -\ 53cm N 374 2 ~ ‘ F T$ gala cm 'n H : by W‘ ........... ' ..... . r‘ R. ") gmINJAXJ pRoCEmRE; p73, V - ‘ $ g APPELLMJTS r IN JML) 1. Ranji Jha son {bf Bindeshwari Jha aged 52 years R/o Pachkhuti P. S.Khagdiya (Bihar) .‘ 2.‘ Jeemrm Jeemrm s/o Gochiya scnwani aged 35 years R/o R/o Tedapadi P. S.Khok Distt.Kalahandi shiv son o:E [mandran Thethwar Thethwar aged 3G years a/o Bdi‘kuli District Duzg (C.G;). VEism RESPONDENT 6g PRQSECUEIQN State oi: , Q%$\ 0 Chhattisgarh Thmugh z P.S.‘Daabhog Criminal Apgtal go, 480/2006 si' ue Bench: Hon-hie 5hr: um kaosam‘b ms kh RAMJI & TWO OTHERS Vs. STATE OF CHHATTISGARH 7 Pm fon9r§ge§LJM/i/a \ "T sal- ’ 1% -o7-’2Ob6*'7 7’ "' E Dilip Raosaheb De & A .Judge shmukh x‘ HIE couaT OF CHHATTIseAkH AT muswa cm not A t . " /2006 RAMJI 4} Two omeas 7 Vs. sTAfE OF cummseAkH sangne 3mm Hon'bie sum amp Ragsamb Desmkh. J. Préserrt: - 5hri Yogeshwar Sharma, Ieamd caunsel for fhe appellan'rs. Shri RavTn’dm Agrawal, Pangl,Luwyer for The State. JUDGMENT (Delivered onlg 07-2006) ‘ This appeal is directed against 1ha judgmenf dmd 27—04-2006 passed by Special Judge. W.D.P.5. Act), Ruipur in Special Criminal Case No.52/2004 wheréby The appellams were convicted under swan-20m (mm) of me Narcmics Drugs & Psychompic Subsmnces Act 1985 (hereinafter referred to as Md”) and were sen‘lenoed f0 undergo rigor-oils imprisonment for 10 years and fine of Rs. 1 Lokh and in‘defnulf of payment of fine fo undengo addifional rigorous imprisonmenf for 2 years. ‘2. Briefly sfafed fhe prosecution story is that on 20—11-2004 Station House Officer, Police 5tation~Devbhog, Shri Ashish Shukh received secret information that the appellants were in possession of illicit ganja at Bus Stand, Devbhog. After recording the said information, he proceeded to the spot along with independent witnesses Pram lal PW-1 & Khagesh PW—2 and Head Constable P.L.Jagdqlla PW-7 and saw the uppellqnfs smnding n1- 1he Bus Smd, Devbhog wi'rh a box made of a 'rin, 2 bags and one plastic bag lying near- *hem. Affer comple'fing necessary légal formali‘ries rehfing fa search and seizure, fhe aforesaid can'l'ainers were searched and were found to coni‘ain illici'r ganja. Weighmenf was 901' done by Sfa'tion House Officer Shri Ashish Shukla PW—5 and if was found iha‘r *in box con'fained 13.609 KG. of ganja. 2 bags con‘l’ained 12.500 KG. & 8.500 KG. of ganja respecfiveiy and ‘rhe plasfic bag contained 2.400 KG. of ganja. Thus in all, 37 K6, of ganja was seized from the appellanfs. From each container, fwo samp!es of 50 Grams each were faken and marked as A-1 & A-2, 3-1 & 8-2, C-1 a C-2, D-1 & 0-2 and waded. The illicif ganja so recovered from fhe conscious possession of The appeilam's, was handed over To Head Constable Rajiv Lochan Singh PW—3 on 20-11-2m4 for being kep‘l‘ in The Malkhana a'l' Police S‘iai'ion-Devbhog and entry was made in the Malkhana Register Ex.P-12’C'. On 21-11-2004 vide memo of Superintendent of Police EXP-16, 8 sample packets of 5O grams each were sent for chemical analysis to Forensic Science Labomtory through Constable Dharmendra Kumar Verma, No.808 of Police Station—Devbhog, PW-6, who delivered the samples packets at the Forensic Science Laboratory on 23-11-2004. Vide report Ex.C~1‘dated 24-05-2005, it was opined that all the packets contained ganja. After completing investigation, the appellants were prosecuted under 5ection-20(b)(ii) (C) of the Act. 3. The appellants abjured the guilt, pleaded innocence and led no evidence in defence. The prosecution examined 7 witnesses. kelying ‘* upon the evidence led by The prasecu‘l'ion, learned Trial Judge convic'red and senfenced fhe appellan'rs as aforesaid in para-1. (Supra) 4. Shri Yogeshwur- Sharma, learned counsel for The appellanfs has confended ‘rhaf 1'he evidence led by fhe prosecu'fion falls short of ‘fhe requisi'l'e proof required 'ro convic‘l 1he appellants under Section- 20(b)(ii)(C) of fhe Ac‘r. Independenf wifness Premlal PW-1 & Khngesh PW-Z did no'l' suppor'r the prosecu‘rion story. There was no'rhing in 1'he Testimony of 51a'lion House Officer Shri Ashish Shukla, PW-5 To show 'rha'r ganja was found in The conscious possession of any of the appellants. Malkhana Register Ex.P-12 did not show that the sample packets were entrusted in a sealed condition. Specimen impression of the seal used to seal the sample packets as also the remaining ganjd was not prepared. Specimen impression of the seal affixed on the seizure memo Ex.P-1 was illegible. Constable Dharmendra Kumar Verma PW—6 who had taken the sample packets of ganja for chemical analysis to Forensic Science Laboratory, stated that he had taken the sample packets on 21-11-2004 and delivered it to Forensic Science Laboratory on 23-11-2904. He did not give any explanation regarding possession of sample packets from 21-11-2004 to 23-11-2004. Lastly, it was urged that there was total non-compliance of Section-.55 of the Act since‘the evidence led. by the prosecution did not show that before entrusting the ganja and also the 8 sample packets at the Malkhona, the Station House Officer Shri Ashish Shukla PW-5 had affixed his seal to the aforesaid articles. The seal affixed on seizure memo Ex.P-1 also did not show that it was a seal of the Station House Officer. On these premises, it was urged that conviction of the appellants under Section- 20(b)(ii)(C) of the Act and the sentenceawarded thereunder_byt_he‘__n immed frialJudge is liable 1’0 be se't aside. On ‘rhe o‘rher hand, Slur-i Ravindm Agmwal, Panel Lawyer argued in supparf of ‘rhe impugned judgment x 5. Having considered ‘rhe rival submission, I have perused fhe record of Special Criminal Case No.52/2004. The Testimony of Sfa‘l'ion House Officer 5hri Ashish Shukla, PW-5 reveals 'rhoi‘ he had received secre‘r informa‘rion fha‘r accused Ramji was sianding a1 Bus Sfand- Devbhog wi'rh his two companions and was in possession of illici‘r ganja. However, he did not sTa‘re in his fes'l’imony Tha'i' affer reaching The Bus Stand, he found 'rhe appellan'rs in conscious possession of ganja. His Testimony is silent as to where the containers of ganja were kept at the bus stand, in what manner was it in the possession of the appellants or any one of them and how. In cross examination para-3, he admitted that he also did not mention the aforesaid facts in seizure memo Ex.P-1. It is not the case of the prosecution that the appellants were carrying the containers in hand or on their person. 6. Independent witnesses Premlal PW-1 6i Khagesh PW-2 did not support the prosecution story and were declared hostile. The testimony of Head Constable P.L.Jagdalla PW-7 also does not show as to where the ganja was kept and in whose possession. Thus, there is not even an iota of evidence to‘ show that the ganja mentioned in seizure memo ExP—l was found in the conscious possession of any of the appellants. P.L.Jagdalla PW-7 stated that the appellants were apprehended at the bus stand at 6.30 AM. whereas the secret information Panchnama EXP-2 itself; was prepared at 6.45 PM. and the appellants were #M— searched aT 8.40 AM. Similarly, Head ConsTable Rqjiv Lochan Singh' PW—3 sfafed as per Ex.P—12-C ‘rha‘r fhe seized confmband and fhe sample packe‘rs were received aT The Malkhqna of Police Sta‘rion- Devbhog a? 8.40 AM. on 20-11-2004 whereas fhe appellanfs were arresfed a? 8.55 AM. on 20-11-2004nnd fhe FIR, EXP-15 was given af Police Smfion-Devbhog qf 09.10 A.M. This renders The prosecufion stary and fhe Tesfimony of Ashish shukia PW—5 doub'rfui. 7. Secfion~55 of fhe AcT envisages 1ho‘t before enfrusfing The contraband ganja and fhe sample packefs in The Malkhana, ‘the Sm‘rion House Officer shall affix his seal on such urficles. The Testimony of 5hri Ashish Shuklo, Sm‘rion House Officer, PW-5 does nof show Tim r - before en'rrusfmen‘r of contraband ganja and fhe 8 sample packers, he had affixed his seal on these packers Malkhona Regisi’er Ex P~12 C also x does nof show fhaf confmband ganJa confalned in one ‘hn bag Two bags and one plastic bag as also fhe 8 sample packe'rs were en‘i'rusfed for safe cusfody In a sealed condrhon. There Is abSolufely no menfion in Malkhana Regisfer Ex P-12-C Thai” any seal was found errher on 'rhe /, abovemen‘honed confamers or on 'rhe sample packers and no evudence on record To show Thaf offer affec‘hng The seizure’shri Ashish Shukla, PW—5 had prepared a specimen impression of The seal for being senT along wiTh The sample packeTs To The Forensic Science LaboraTory. The seal affixed on seizure memo Ex.P-1 appears To be a general seal of Police STaTion<Devbhog and noT The seal of STaTion Honse Officer, In This manner, The prosecuTion has also failed To esTablish compliance of SecTion-55 of The AcT. 8, An En‘rr-y damd 21-11-2004 in 1’he copy of *he Mqlkham Register Ex.P—1Z—C shows fhcrr on 21-11-2004 8 seeded sample packefs were handed war To Constable Dhar-mendm Kumar Verma PW-6. IT is no? clear whether fhe sample packe‘l's wem sealed a? fhe Polioe S‘ra'l'ion before en‘rrus’fmen‘r 1'0 Cons‘lable Dhcr'mendm Kumar Verma PW-6. This witness has s‘ra‘red in cross examinal'ion fhaf he wem on 23-11-2004 ‘ro deliver fhe sample packefs a'r ‘l'he Forensic Science Laborafory. Thus, no explana'lion is forfhcoming regarding The possession of sample packe’rs from 21-11-2004 1'ill 23-11—2004. Since, fhe seal affixed on fhe sample packets was nof ‘l'he seal of The Stafion House Officer of Police Sfa'l'ion-Devbhog, fhe possibili‘l‘y 1ha1' during This period 1he sample packets could have been fampered wifh cannof be ruled out // 9, Thus from me above discussion, ihe following pain-rs emerge:- (A) There is no evidence f0 show ‘i’ha‘l’ 1he 4 confainers from which fo'i’al 37 KG. The con‘i'raband ganja was seized, were in conscious possession of fhe appellants. (B) There is fofal non-compliance of Section-55 of The AcT. (C) IndependenT wiTnesses Premlal PW-1 & Khagesh PW-2 did noT supporT The prosecuTion sTory. (D) The possibiliTy ThaT The sample packeTs could have been Tampered wiTh before being enTrusTed To The Forensic Science Labora‘i’ory could noT be ruled ou‘l‘. (E) TesTimony of Ashish Shukla PW-5, STaTion House Officer, Devbhog relaTing To Time of search and seizure is r‘éndered doubTful. ;7/ < 1\ iG‘ Having fhus considered 'i'he evidence led by The prosecufion iv: ifs en‘rire‘iy and 1'he above fac‘i's emerging Therefrom, I am of The camider‘ed opinion ‘i'ha‘i' convici-ion of ihe appelian+s under- Sec‘l‘ion- 20(b)(ii)(€) of The Ac? and fhe senience awarded 'i'her‘eunder are iiabie ‘i'o be se‘i’ asiee. 11. Regreffabiy, i‘i is now‘iced the“? The Two successive ienrned friai Judges ac‘ied mechanicaHy while recording evidence and #he convicfion e’f i‘he appeiian‘rs under Sec?ion—20(b)(ii)(€) of 1"he Ac‘i wi'i'houi’ There being any iegai evidence. Time and again if has been rei‘rerm‘ed fha‘r an offence under fhe Aci’ emails severe penalfy of minimum seni'ence of imprisonmen‘i for 10 years and a minimum fine of Rs.1 iakh. If was, ‘rherefore ‘ihe obiigafion, nay, 'i'ne pious du'iy of ‘ihe Triai Judge no? To have aci‘ed mechanicaiiy while convicfing The accused wiThouT iegai evidence. The manner in which The evidence was recorded and Triai was conducted shows a serious iapse on The parT of The Two iearned Triai Judges. Answers given by The appeiianT Shiv were noT recorded in his examinaTion under 5ecTion—313 of Cr.P.C. on quesTions 5.No.30 To 36. AiThough, The coiumns for answer were iefT blank yeT The iearned Triai ,v Judge signed iT wiThouT even iooking aT iT. The necessary cerTifEcaTe To be recorded afTer examinT-ng The accused under SecTion-313 oT Cr.P.C. was aiso noT signed by The iearned Triai Judge. AnoTher Triai Judge who eariier recorded evidence did noT ask reievanT quesTions To The STaTion House Officer Ashish Shukia PW-5 regarding conscious possession of The appellanfs over The conTraband ganja or abouT The compiiance of $ecTion-55 of The AcT. He aiso did noT ask any quesTion To Head Consfable Rajiv Lochan Singh PW—3 whiie exhibiTing The Maikhana Regisfer, as To why The copy of The regisTer did noT menTion ThaT The sampie packers were seaied. He aci'ed iike a mufe specfa‘i'or- and recorded evidence mechanicaliy. if could be fi'ia‘l' The copy prepared of Ex.P-12~C was an incompiefe copy. Examinm‘ion of accused was also no? prepared in ccnfor'mify wi'rh fhe evidence. Quesfion No.11 é: 12 men'rioried ’rha‘r 3 boxes, 2 bags and one piasfic bag were seized and searched whereas ‘Hne evidence showed Thai oniy one fin box, 2 bags and one pias‘ric bag were seized and searched by Shri Ashish 5hukia, PWvE. If ‘é‘riai is conduci‘ed in ihe manner in which if was done in ‘i’he presenf case and wifhoui' ‘i'herebeing any iegal evidence conviction is recorded and a very severe ‘rhough minimum seni‘ence awarded mechanicaiiy, i‘r erodes 'i'he confidence of peopie in fhe judiciai sysfem. 12. In rhe resui‘é', 'i'his appeal is aiiowed. Convicrion of fhe appeiian'i‘s under Secfion—20(b)(ii)(C) of ‘ihe ACT and sen1'ences awarded i‘hereunder are se‘r aside. The appeiianfs are acquih‘ed and shaii be se‘l' a? “berw formwwh' if m'r required in anY ofher case. , fiii/i V a. ‘ Sdl- i is, X Diiip Raosaheb Deshmukh i Judge 7 ' i Wits —o7-*2*0E3K’ ~W*¢ . -w‘ W. 1