IN THS HIGH_COURT OF JUDIGATURS OF CHHATTISGARH AT BILASPUR. CRI'MINAL _APPSAL N0. ^6^ / 200 3» APPELLANTS. 7-IN JAIL CUST ODY) n'.rN.'^f^ [f\l ^ \\" ' ^^. RE3POHDEIW t 1. Ranu Son of Chinta* age<3 about 60 years, Occupatlon- Labour, resident of Village- Kumhali» P.S. Nagamar* Distt.- Baster(C.G.) 2. .Pra*Eull Son of Kistakya» aged about 35 years» Occupation- Labour»resi- dent of village- Jadigudapara Markel, | P.S. Nagarnar, Distt.- Baster<G.G») 3. Gangaram Son of Mohan? aged about- 22 years, Occupation- Labour, resldent. of village- Jadigudapara Markel, P»S.- NaCTamar» Distt,- BasterCC.G.) 4, Paklu Son of Kuleshwer Mati, ageQ ^ about 50 years, Occupation- Labour, resident of village- Borgaon, Pclice Ghowki- Bade Amda< Distt.- Navarang- pur, (Orrissa) • 5. 3ali Son of Sonadher, aged about 35 years, Occupation- Labour, resident of village- Borgaon, Police ehowki- Bade Amdar Dlstt.- Navarangpur (Orissa) . 6. Sukaldher Son of Sonadher sged about 35 years» Occupation^-Labour* resident of village - Borgaon, Police chowki- Bade Amda< Dlstt.- Navaranqpurforissa) VERSUS State of Chhattisqarh, Through; P.So Nagarnar, Dlstt.- Bgster, Jagadalpur(C.Gs) • a •/- * ® CRIMINAL APPSAL UNDSR SECTION 374' (25, _Cr,P,C, RBAD WITH SECTION ,36(KHA) N.D.P.S. ACT_19_85. GONVICTION SENTENCB years R.I. and fine of Rs. 1,00/&QO/- In def-ault 2 years addl, R.I. for accused RanUo ^:!t"" 10 years K.I. and flne of Rs« c^ (i) u/s 20 te) (ii) te). N.D.P.S. Act 1985. (25 U/S 20 (B) (II) (C) read with section. 29 N.D.P.S. Act 1935. 1,00,000/- in default 2'years ^" addl. R.I. for accuseds Prafull, Gangsram, Paklu,Bali & Sukaldher, Beinq aggrievsd by the prder passed by Shrl R.S. Sharma< Spsclal Judcre, spscial court j^D.P.S. Baster plaee at Jacrac3alpur, Dlstt.- Bsster(G.G.) in spl. criml.nal case no. l7/ 2003 State Vs« Ranu and others, OEder passed On l6-09-20!03 and this appeal Is submitted herewlth. ^ ^- '-y\ • •a- c^ t-fT'-'l&? .'^ sfi^-i EE'ST" it;E'^ESr .^E <? » ^. •-^u-»'""/'£?^ A EE».; i ^ T* ??,'^tT Ja ^"si ti M-gy_CQVRT Gi- CHHATTISfenRH AT BILASPUR Cr. No.ll65/20C K&nu and five others rare of LnnaTTiSos Post for Judoment: 2-? .08.2006 .-/ Judge « lAC?,;- iH ©F AT B: ;<SBEJft .terf't 'e-^S-S, :riminai AoDeci No. 1165/200: Befor'e: Hon'bis Stiri &ilio Raosaheb Deshmukh. ';';"?;3' Ranu cnd five others. •../< State bf Chhattiscsarh S-; 3~ i &,,. •"•.•*!^ ?^^'?^<? Fi, Snri'W.t'.&LipTa, iearnsd counse. T'O|- appeilanTs N0.1 "o ;>. Shri P-afu!s N. Bharct, isc-ned ccunssl for appeliants No.4 to Snri AA.P.S-Bhatia. leamed Pane' Lawyer for ths Stnte. u .u to m (beHw-ed on this Zlsr dw of Auaust, 2006) Zn this cppeai, the appeiisnts have cssoiied thei" ccnviction under Section 20 (b) (;i) (C) read with Section 25 of the Narcotic &"ugs and Psychotropic Substances Act, 1°85 (herainaftep "eferrsd to es the Acfi cnd the sentence of rigorous i"n3"isonmen~ for 10 ysars cna a fine of Rs.l iakh each o.Ra jn defcajit "o undergo "igorous iiTiprisonmen" of two yecrs ew&r'dec by Shri R.S.Sha~n'a, the then Speciai Jucgs, Jagdcipu" in Specici Case No. 17/2003 vide judcment dated 16 Seot. 2003. i. } ne TacTual mcTrix, in Dnet, is Thcrf upon receivsng secret infor'mation that the ccosilont-Ranu had. Vuith the sssistance cf 5 - 6 ^^?f>^£c ^^f^"^ -^^r<!l*?'^=?*4r^-^'r*>^*^ <^-^?"1 //" sy^ ^ :I^FIr^7'*?'^^ y^f^^^ ?^^ ^ itf ^-^3 1^?..-0 ^T'^^'*^'?-^^ p^rsyrs.s i\s^p i -—Ut'i5 i'uyufs;.j y^fs/u K-I p'u^siiw ouys ui isss ?iuu5»s, w?iuSiUi'i Houss Office" Aiim Khcn P.W.7 of Poiiee Statisn Naoamcr. sfter recordinu the saia inforinction vide Ex.P.l and also tha "easons for not -^-?ft^ i^ ayt*^ -^ ^£^3'?'^^sl.vA3^ '-^.^^^vs/^^^ ^fif^.f^ ^^^ y ^ < rf^^-^ i^~?TA ^^"s ly^^ ~t'i/s .^ ^tl ^'i^i'^1?^^?^ ? «;Uiutu U;i^ U SS/^i~4d> i ^KUs'i'i^.J i 1 V i^'S- w--"\>f .>£*^ ^Aia^ Uij^'i'UiKi^ ifi;i£' ^i(iiJU' 1 iV? i^! ^f Stiperlntendent of PoiiA Jagdaipur vide Ex.P.24, pr-oceeded to viiiage jd.imhii ciong with witnesses Sadhuram F.W.l and Mohd. Hcfiz P.W.2. Upon reo.ching the house of -tne appe!iant, a nQtiee was served on the cppeiiant-Rcnu informing feim about fhe secret inforiTiction rsceived. Search of the house wcs conducted. As shown i" the m'sy Ex.P.26, 10 bcigs were found inside one of tiie rooms of the hcuse of the <'f. cppeiSant-Ranu. On weighmen*; it was found to be 1 quiritci 3 Kgs.ana s, 360 gms. Two sampies of 30 grams of each we"e taken f"on', each bcg and we"e seaied. ^Kemalning bcgs were also secieci. Seizure memo Ex.P.14 was prepcred. Upon information receiyed from tiie appeilant- Rcr;u., Sonc?r>cni P.W.3, dcught®" of qspsiSant-Kcnu cnd Smt. ChcnderbcttE P.W.4, wife of the appeSiant-RanLs, the remaininQ co- accused ws"e aiso aDSrehenced on the seme dcv in JadSyiidaoara Marhsl o.t 5.50 P.M. ana fnom •tneii' possession one bsiTiboo Kanwad (& piece of batTiboo used to baSance the acgs ccErries ct both ends by baliincing the baiTiboo on the shouider) and 'rope were seized from esch of the five appelicnts i.e. qspsliants No.2 to 6. The scrnpie packets cs d.sa 'the remainina 10 bags of ganja were entrusted for scfe custody at ~r.e Malkhana cf P.S. Nagcrnar' to Hsad Constabie Jankush Toppo F.W.6 who entered the detaiis in Ma'ikhana registe" Ex.P.27. The five Kai'swac's ancf repe "ecovered f"om the aDDeiiants No.2 to 5 were aisc entrus-ed and entered in Maikhana "eoisfer Ex.P.21 A (C). On 22.4.20Q3 vide memo Ex.P.36 cf the Superintericefit of Poiics, JsgdcSpur, 10 sample packets marked as "A to J" we"e sent for chemsco.i anaiysis to the Forensic ScieRce LeboF'atory, Raipur through Cohstcble No. 76 Linus Kujur. The sciTiple pnckets were "ecsivec o" 24.4.2003 at the F.S.L. Vioe report Ex.P.38, ir v»o;s opined that a!i the ten sampie packets contained ganja. After compSetion of ^. iRvestigotion, "he appeii&nts were prosecuted uncer Section 20(b)(ii)(C) "ead with Section 29 of the Act. 3. The. appaliants abjured the guiit, pleaded innocence cnd examined Vansincjh A.W.l and teotiram A.W.2 as defence witnesses who stated thct the appeiiant No.l-Ranu had falseiy imDiicated the appeiian-s No.2 to 6 cue to pfl'svious animosity. The prosecution s. -s 1 . .. . 1 1 . e.xcniineci as incny as seven witnesses^ Relying upor. the evidence ieo by ti'e prosecution, the ieamed triai Juoge convicted asnd sentencec the appeSlcnts as aforesaid in parcgraph 1. Shri B.P.Supta, iearned counsei apoearinq for the ODpeiiants !'4o.l ts 3 asscilec ths impuaned judgment on the ground that it was nct established ti^at ganja was seisec from the conscious possession of cippsSiant-Ranu. It was also arguec that non-complicOTce of sub- ssction (2) of Section 42 of the Act by Sub-Inspector Alim an P.W.7 yitiated the prosecution. It wc.s clso contended that the indeoendent witnssses Sadhuraw P.W.l and Mohd. Hofiz P.W.2 did not support ths prosecution story and the cppellants No.2 ana 3 couid not r'rt?ii''i.°"'^'?sTl 'r^^.r'^iv E*yi "h;» "ina;i<; ^-? 't-h;3>. ?>yAi sin~'°'^'rt^v ^'i'rt'i'is'-i^iis'.r';'" rtiv.^'n ~^'^f ~<tf<^./^ 3 *? ^^ i ^lw! 1 ^1^*1 ^oj y u'; S -: i i ^ ^^^^,5^^ ^ ? 3 c |<^ ^^<^ri-l s^i^h. a ^ ^ Y ^3 '^ i ^S 311^1! i i ^i'f'^'i i 4-.»*;^v) t St >' 'iWfSiff.i'^i-ti-y /',4- -^>l"i-» »ii-^?^.f>; t.n ;*-•"•_15 ii"-•!'»!" UV ifis^ E<LAU;;sy ibiS.ijiU<S"'.3 ^ ; U'i<£. uiyiJa/it'u.ii i "<!SU?iU. 5. Shri Prafuii N. Bharat, iea"ned counsei appearing for ths appeilants No.4 to 6 argued that there was totai non-compiiance ef sub-aastion (3) of Section 52. fteliancs was picced on Rajash v. State 1989 (3) Crlmes"&38. It was also contended tha" if the tastirno"y of Sonamani P.W.3 and Chanderbati P.W.4 was ressd as G whoie, it did not establish corisCious possession ot the cppsi.cnt-Rcnu over the •? . _ . •- 4 iS . .... !~-.,. ?S ^ ^ .?- - -i- . —1.. ...- ..i .;;.' - .. >•- _'-i i^^ll.-^gl^ j"; l.;^^-"S-^\^ /^•?' /-$.'"?" y? .f;A/-;'n S—VE^ ./f*~n ^ Bg?.?* •l i1/ •^i'iri'S.^iyi T;'1?^T T:n5?> •^ :VUi»ii'1 i i iy iu> | -S.^iiiff JU. ?V\'~i.y • ^-^s.F > i— ^i' ^>i£«'-Li.i-i y -5?.-;iu1 ^^eSftri ; ? 3-^ ; i ]' sS" ^. contraband ganjaond the piastic bags vie.re. found inside the room of t'he house of sppelIant-Kanu along with Kanwads w'nich rendsred fhe factum of seizure of Kanwads and r-ooe from each of the aDDellcnts No-4 to 6 extremeiy coubtful. Relicnce was Dicced on Avta" Singh and others v. S-tate of Ptinjab 7 SCC 419. eopal y. State of M.P. rf»^^,.43^^TS:1i. ^. ^ ^ ^R! F^*i{sh.SE - --. _f ' /^^. -. - ^- _ - - /A-'. - - f- .^.j"- - ^?- _ ^ f' }.. .. . . .. '^^-.A ^ ^^L\ '"on^i ^ .^i^^ ^^^' rtnrf /'Tt ^-hf^-y ^ff^/?^? :// .S-f?~^'?:? /"^' h^/^ f^/rfff^ ]??r?P-1E ^_es'<; \£t.''w'-wf&ij SS ^u^^^rf t^f'S--^ i-Af iiis i^i^t i^itiffyf\ ^yts t^i f Vr ^sv.sv^f v ^ -f s^.^'y^^i'^ Ssi'i^\^ •ac'-'s^iS^ SCC 28 whiie contending that n<?n-compiiance of Section 55 of the Act Vitiatefi ~he prosecution. 6, On the other hand, Shri AA.P..S.Bhat;a, iecrned Pansi Lawyer for ths State argued in support of ths impugned judgrr.ent cnd contended that seizurs memo Ex.P.14 and seai Panchnama Ex.P.S had the imarint or rne seai uaea TO sec! me ssmple pacKeTs as aiso ~he remaining ganja which tallied with the impression cf the seal crawn in "he "eport of the F.S.L. Thus there was substcnticl comDJiance of Section 55 of ~he Act. It wcs aiso arouec thct al'i'hcijqh Sadhuram P.W.l ond Md. Hisfiz P.W.2 did not support the prosecution story, yet ths testimony of two ciose reiatives of qspeiIant-Kcnu i.e. daughtsr Sonamani P.W.3 and wifs Chc-iderbati P.W.4 oroved bsyond doubt "hct contraband ganja in 10 bac;s was recovered by the Poiics frcm the house of ilOy©USlHT°Ki2HU. 7. Having considei-ed the rivai submissions, I hcve also perused the "ecc-rd of Speciai Sessions Go.se No.17/2003 with utmost circumspection. Tirne and again, it hcs bean "eitercted in a numbe" of decisions rendared bv this Cosjrt thct ths offence under Section 20(b)(ii)(C) of the -Act entciis minimum severs psnaity of imcrisonment upto 10 years and a fine of Rs.l lakh, and the"afo"e, it was necesscry for the prosscution to estQblish that the saiTipi&s which wers taken J1'ilT-: from the seized contntband were not only duiy seaied by the Police •Officer affectii'sg the seizure but aiso by the Sta-ion E-jouse Officer' of the coricernec' Police Station befor-e entrustins the contrabanc ganja and the scmpie p«:kets for< safe custoc'y c.t the A'lai'kkana of the Poiice Station. When it is shown by the prosscution thsr out of "he 20 sampie packets which were seaEed by the Sub-Znspector Aiim Khsn. oniy 10 sawois. oacket^ were ssn* for chemica! anaivsis to the Forensic Science Labonatory, it teas absoluteiy necesscry for the prosecution to ha.ve. Droduced tiie remaining 10 sealed sctmple packets and ths "emnining quaritity of gesnicor 1 qufrifaS 2 kgs exnd 760 gms. in 10 seeiec bags in the f"Eal Court. Had this been done, the iearned t'iai Judgg wouid haye an opportuniiv of comparing "he secis on the remainir'g 10 sampte packets with the specimen inipressio!" of the sea! affixeo' cn the ssizurs.memo Ex.P.14 and seel Pcnchncma Ex.P.o. It woLfEd also have enu"ed to tne benefit of ths apoeisants inasmuch as they also sculd have demons-nited thct the scmp'es were not properiy secled. as "eauired by Section 55 of the Act. Order sheet dcted 20.6.2003 of the tr'ic! Court ciecr'iy shows tha" the reinciininQ 10 sample packets cs also the quantity of ganja ssaled In 10 packets was :d before the triai Judqe. no~ Qr-ai 8. In Jitendr'a and anoiher- v. State of A'i.P. 200-3 S.A.R. (CrimiReS) 902. it was heid by the Suprerrie Court that in a trisi for an offence unde"' Section 2Q (b) of .the Acr, it wos necssswy for the prosecution -to establish by sooent evidence -hat the CiiSegec quo;ntit;es of charcs and gattiawe.re seized fro>n tha possessio" of the cccused. The best svidence uvouic' hcve been the seized materiais which ouqht to hoye. bee" produced durinq tfte tr'ial ond msrked as mcteriai objects. There was no exptanation for"this'faiiure by the *S;K ^•-••*!--tlr n^ srosecution to Droduce ~he articles before the trici Courf. I- wos heid thaf sincs the Pcnchas had turned hostiie, ~i'he seizure Panchnama uyas nothing but c documeRfwritten by the concerned Poiice Officer. It wos furthe" he!d "hat {aliure of the proseeution to produce -he cof;t>-abcnd ganja snd the remcining sampie psckets before the tricl Court IA'IIS no~ a mere procedurai irregLilarEt')' a"a caused prejudice to the accused. In the present cdse, non-procuction of ths 10 baqs of sars/s ond the 10 ssalea scmoie oackets before the trici Court amounted to suppression of the best evidence by the pr-osecution which has coa-sed serious prsjudice to tiie accusec. No expiariation for faiiur'e to Droduce the aforescid articies before the rria! Judge by the prosecution is for-Acomlng. This circumstance strongly miiitates cgaJns" ~ne prosecut;on. Q Uie>^a"i..-i\-!' ?^i j i".< 's>ir; ".j-^tf ^'/^ '^'^£r- n "rt!S3'.As'•fl'^L'^ • "'rt s?'s°~"i^.*^Ii'i?ift 'u'lfcf~t^ '^'.^'. 7 . r'j^£.uyv LaUi'^^fi ^'J^S vs'i i f li^ Ui'V^Stt'idU 1 iV;i \v s--s iu'rf' i i-srs i ? i-s-ii s 3 a i'Si ssizsd articies were properiy secled and kept in propsr custody tii! it recched the r.S.L. for anclysis. I~ is imperative on the prosscutio?! to provs that the sanctity of the case propertt,' had at no point of tims been destroyed o" vioiated r-'igm from the tiins of ii-s salzure upto the Si'A'-"t:^S' /^f ]*f°'S y'-ffi"£5''3y)"' f"S ^"llnS> ,-^w'?]^*i^ A^ i.ln sS>w'i/'•/^ 1 ?-Yrf~f'ln^i?1i??' ^ -4"h,ni ??nh S. i U^-S; su- ; = S 3 i -S'4s.te/iiJ i iU ( ? it^ i^ £ i iicA^a w J ^•F i'^ii'i ii iLiUs £-/l.inijiii iSi-. ?^i i !' luUi^i i Sub-Inspector Alim Khan P.W.7 stated In para 4 tha* after recovering 1 quintai 3 kgs. and 360 gms of ganj'a kept in 10 bagS from the house of uppeliant-Sanu and getting its weighment done he had iifted two sampies of 30 grams from sach bag and had seaied esch sample packst and fhe rsmalning ganj'a separateiy and had clso prepc.red sec! Panchnama \'\de. Ex.P.S which had the imprint of the seal used by him. Howeve" in pcra 8, it was not stated by him that the seized bags canto.in ing gan/a and. the sample packets were entrustsd to Malkhana Moharrir Jankush Toppo P.vV.6 in a sealed condition': Prosecuticn ^y examined Jankush Toppo, Malkhana Mohar'fir c-f P.S. Nagcrnar as P.W.6 who did not state that he hcsd received 20 satripfe packets each containing 30 gretms ganja in a seaied condition for safe custody at the Malkhaita. He proved the entry I" Malkhana register Ex.P.27(C) which aiso does not show thc- the ten bcgs contcining ganja and ths 20 sample packets wer's entrusted for safe custcdy in a sedied •'/. condition. This renders tha te^timonv of Sub-InSDector Aiim Khor; P.W.7 untrustworthy and creates c'sar'ious dcubt that the sample packets w'ere s-ecied. at the tiiris of cffecting seizure vide Ex.P.14. Sub-Insoecto" ASim Khan P.W.7 aiso did not state that cs Station Hc.use Officer of P.S. E'>!agarnar, before handing over' the 10 bags of contrabcRd ganj'a wid fhe 20 sampie p&ckets for sc.fe custody in P.S. Mo.gttrna" to Head Constable Jankush Toppo P.W.6 he hcd cfflxed hls seai on the 20 sampie packets. Thus, there hcs been totsE non- con'ipficince of Section 55 or the Act. A vital link svidence is thus missing -n 1t,e DresenT ccse. yft-'^n 'A?t'£'*^-rtl<^"'^ irt'" '^s" i» •^^rt4" K', f £^isht—^i^^?li!s>./*°^'-'^!rt ^ U a^ !;»^r1^ —i^% i i i& liiuy yi'e/.yn.i.'ss'^j 'LA ': ; i' is^ -3yv i a^y i.>/uy"^>i isys-^ i i^r r";is 153 r^; ii.^ i P.W.7 "ide Ex.P.26 ciearly shows -hat 5 Kanwads wlth two baqs attached to esch were kspt inside the house of the appeilat-t-Ranu. This clecriy rencer-s his testimony of selzure of one ^3»i»2K/anaa piecs of "ope from each of the cppe'lants No.2 to 6 on the snrne dcy from another placa l.e. •jadigud-s.paf'a Marke! douWWi. Sub-lnspector .ff,]^yfi Vil-t^"! ^ ',/[} ^ .^;f^m\"~"£f•f^ \yi. p^.?~v*- 1.*? '"i*!jf*FA '-^'c'yi.^k? i~s^ •?'^t^> l^-'^-si^ ^*4° '^•ln. r^;^?i r •>¥'¥,/'ijiw'iSii i^y in yuru A*£. Kftni iii;6S.i'^;¥ ^'?i afis' Li?u^>i.2 ^; !i'3- infopmction glyen by the cppeiiant-Ranu and his famiiy members, he had proceeded agcinst the qipeiiants No.2 to 6. Sonamani P.W.3 and Chandarboti P.V/.4 deposed that on that day one (ycngararn fflid Far-su had kept the contraband gcnja inside their house. They did not name the aDoeiicnts No.2. 4, 5 and 6. It aoes not smsfos from their ^ testimony that (Sangafam cmd the appeilant No.2 wie.re the sarne person. Both these witnesses did not identify the cppeiicnt No.2 in Court as the person who had kept the ganja in the house of the cppello.nt-Ranu, Sub-Inspector Aiim a" stated that jf -me familv rnembers of appellant-Rcnu hnd no.med any persons othe'- than eppei'ants No.2 to 6, he wouid have proceeded aaalnst those persons. Thus no effort was made by 'niFn to independently iRvestigate o.s to who had kept the 10 bags containing ganjaat the house of (^ipe'iant- Ranu. .'iAerely on.the sxculpator/ stctements of an accLised o" hls relatlyes no inference co.n be drcwn agcinst tiie appeiionts No. 2 to 6. In the facts o.nd circumstances mentioned abo'/e, It bacosT-ies hiahiy doubtfui that the appeilants No.'2 to 6 had kep" the cor.trabar'd ganjc In ti"e house of appeliant-Ranu on 21.4.2003. As stoted ear'iier, the spot mcp Ex.P.26 prepat'ed by Sub-Inspector Alim Khan shows that Kaiwrads with two bags of gsnja attached to it were found inside the house of the appeilcnt-Ranu. In this view of the mctter, the prosecution has utterly faiied to prove the compiicity of the osoeSlants No.2 to 6 for the contraband ffffff/a seized from t'ne hcuse of fhe qspel'cOTt Mo.l-Ranu. 11, It is pertinent to note that the entry dated 21.4.2003 in the M.alkhana register Ex.P.21 A (C) does not show that 20 sample packsts were entrusted in a sealed condition to Head Constable Jankush Toppo P.VV.6. It, however, shows an entry that on 23.4.2003, 10 scniple packets in a seaiea consition ware sent to F.S.L., Raipu" but no evic'ence Es [ed to show who seaied those ten scmpie packets ar'ci when. If the sample packets had not been entrusted at the MalKhana in a seaied conoition and there was no evidence to show the compliance of -Section 55 of fhs Act 1tie msre endorsement da1-ed'~23.4.2003 in the @) m fAalkhana register Ex.P.2^. A (C) does not help the prosecution in cny manner especiaily becauss Head Constcble Jankush Toppo P.W.6 also did not depose ir, para 2 that on 23.4.2003, the sample packats we"e sent throLigh Constabie Nikis Kujur in a seaied condition to the F.S.L. Non-coiTipiieLnce of Saction 55' of the Act, would thus have a bearinq on cypi-eciaticn of eyidence regcrding seciing of sampie packets at the tiir.e of seizura cr befo"e en4'rustment at the Malkha'iw at P.S. Ncgarnor and ivoulci crecte c serious dent in the prosecution story aid "ender the testimoRy or Sub-Inspector" Aiisri Khan D.\V.7 doubtfu!. 12. Possession is the core inqredient of an offsnce under Section 2Q(b)(ii)(C) of the Act. It is the eiuty' of the prosecution to estabijsh that -he 10 ba.gs of contraband gaffja were found in the exclusive and consdcL's possession of'the oppellnnt No.l. Sadhur'am Kotwa" P.W.: and A'iohd. Hafiz P.W.2 who were independent witnesses and had sccorr.ponied Sub-Inspector Aiim Khan to viilsge Kumhii did not support the prosecution story cnd stated that they we.rs called at Poiice Station and had siqned the cocuments there. Both denied the seizure of 10 bags of ganja from the house of appelIant-Ranu irt their presence. Shri /A.P. 5.3hatia, learned Panei Lawyer for the State Said str-ess on the testimony of Sonamani P.W.3 nnd Chcriderbcti P.W-4 whiSe c.rguing thct thess two witnesses were ciose relatives of the cppellant No.l-Ranu and their testimony estcblishes that garija was seized fr-oiT. the conscious possession of the nppeii&nt-Ranu. However, "his a"gutrient cannot be accepteo. If reiiance is to be placed on the testiniony of Sonamcni P.V/.3 arid Chanderbati P.W.4, their testiinony has to bs read as a who!e. Son'amani P.W.3 and Chcnderbati P.WA stated that two persons nniT.eiy Songaram and Farsu had kept the bag-s in their house saying that it conrained Mahua. The testimony of 10 ^°> SonamaR! P.Vv.3 does no* show that at that time the appellarit-Ranu wns present. Cnanderbnti P.W.4 also stated that only two or th"ee bo.gs contcinlng Mahua was kept in hsr house by 6ongaram 'and Foirsu. In cross-examination, she admitted that she did not see cs to who had kept the ganja in hsr house. It appea'-s thot both these witnesses in or'der to shield appeiiant-Ranu have tried ~o pass "ne blame OR Sangaram and Fa"su. As airefady stated, their testimony does not s. show that fiangaram and appelicmt N6.2 were the same parson. In this view of the matte",.the testimony of Sonamani PAV.3 and Chande.-'bati P.W.4 does not come to the aid of the pr'osecution in proying conscious possession of appelbnt-Ranu ovsr the ten bags containing contrabend ^an/ffaileaediy ssizea from his house. 13. Sub-Inspector A|im Khcm P.W.7 admitted in cr'oss-exaffl'ination pa"ag"uph 12 t'hat at the tim®of search, other family members of cppeiicnt-Ranu were aiso prssent m the house. He stated that since he had received secret infor'mation only cbout appeilant-Ronu, hs did not deem it fit to enquire whether any other member of the famiiy had kept t'ne contraband ganj'a inside the house. It was adrnitted in paragroph 13 that viiiagers v<ere Wi'atching the procesdings from a distance but he did not ask any villager to be a witness of ssizure. He clso admitted that wife and childran of appelittnt-Ranu wers aiso present in the house atong with other farniiy members. Testlinony of Sonaniani P.W.3 and Chanderbati P.W.4 shows that thev' v-iere ths persons who had received the bags kept in their house by Sangaram and Farsu. Sub-Inspector A!im Khan did not deem it necessary to enquire independently as to who'iiud kept the contraband ganja 'm the "Quse of appeilcnt No.l and merely implicuted the appeHants No.2 to 6 on •fhe basis of the exculpatory stafement mcde by the famUv- f«S»'S"m"9E~8' 11 •i'":'fsw rsernbers of appeiicnt No.l. The spot map Ex.P.26 aiso shows that eontraband ganja wois kept aiong with 5 Kanwads inside the house of appellant No.l. There is no'eyidence on record to show thct the house in question was in exciusivg possession of appelian* Mo.l-Sanu since it wics admitted by Sub-Inspecto.r Alim K'nai that other fcmi'iy members as a!so ths wire and chiidren of qapeilant-Ranu were aiso prssent in •t'l. ths house. Non-examinatioh of indepsncient witnesses though ndmittsdly present at the sp&t aisb renders the testimony of Sub- Inspector Aiim Khan doubtfui. The evidencs adduced by ths Drosecution is thus viiholiy insufficient to show thct whc.t was seized was in ~he conscious possession of the QDpellant No.l aione. 14. -n. The prosecution did not excmlne Constable Nilus Kujur No.70 who wcs entrusted wlth .10 sampie packets vide memo dated 22.4.2003 Ex.P.36 by the Superintendent of Poiice, Jagdalpur fo" tcking to the F.S.L. Neither the entry in Malkhana register Ex.P.21 A (C) nor the seizure rrierno Ex.P.14 shows thct ths sampie packets had any marks. I~ is slso not shown by the prosecution as to w'no hnd put the mo.rkings A TO 3 on the ten sealed sample packets sent for chemico.i analysis to the F.S.L. Seizure memo Ex.P.14 shows that the ten bags wer',s marked as *'A to J" but not the sample packets. It is ~hus not clear as 1-s which sampie packet corresponded to which bag of contraband ganj'a cnd who had put the markings "A to J" on ths ten scrnpie pc.cksts before sending it *o t'ns p.S.L. Non-examination of Cons'S'able L.inus Kujur, who took the sampie packets fo" chemiccl anaiysis, aiso shows thct an impcrtQnt iink evidence in this case is missing. 15. Thus, the foliowing facts emsrgs from the above discussion; 1 ESXM"S' 12 A) —«iy; C) H) Witnesses 3'adhuram P.W.l and Mohd. Hafiz P.W.2 did not support the prosecution stofy regardino seizure of 1 quinl-al 3 kgs. ayid 360 grams of ganjafrom the conscious ;ossessEon of the o.DDeilant No.l. Independent witnesses i.s. villagers though adrnittediy present at the tims of the sear'ch and seizu"e by Sub- •'•!• . . Inspector A'lim Khan were not cltsd as wnnesses. Spot Mi2p Ex.P.26 renders the prosecution story relating ~o comp«city of appeliants No.2 to