b\ maawauv@.n.;m 3mm mm 3N THE HONoURABLE HI_GH cougg OF JUDICATURE AT BILAS?UR(C.G.~L ggwvo .éf/é-lzoog i cRIM__INAL AypEAL U/s 374 (g) 03 Tgicom OF CRmINAL § ‘ QRocEDtmg. i, 7" APP ELLANT . ‘/ MOhan ais khu _ (IN JAIL) . 3: o 11'. m Yadav S Birkcna)P.S. Koni, Distt. \ A on ~' W ',:\.<;4‘c:ca‘“ . o , \ BilasPur (C°G°) :V ...... ......... .......... DR‘O) ._ . R‘fpgggpomm : ‘v r state of mlgtisgarh Thraugh- Police of P.S. K011i uf Dis/tr” BilaSpur (c.G.) EGH COURT GF CHHATTifbigARH AT gILAsPUR Smgia Bemch: Hoh’bla Shri DRE? RAOSAHEg 5E§HMUKH,'J. {Iri‘mémi Angeai Number—é§5/2OG4 Nwhwj @ Baisakhu ‘5 E§g 5mm of Chhaf?isgar‘n .w § §5hr€ R.N.u ha earnea counsal “For The appelim. Shr' E K Cwame Depury Cw? ACWQCQ’ra for i'he STm‘e ;UDGM NT {Dahvex 22d (m 23—06—2006) This appeai is direcfed uguinsf ”rhe judgmen‘i’ &cd“ed W—Gé—ZOOK; (iéi/ivered in Spacia} Cas‘a No.34/2003 by Shri R.K.Ra+hi, Specid Juége (Narca’fic Brugs and PsychoTr-opic Sub£famces Act), E€§a§pur whereby *rhe appailanf was cmwic’red under faacrim—EGig) (ii) (C) 01'“ “‘rhe Nwco‘r‘ic Drugs cmd Psycho’rmpic $ub$mwces Ac‘f. $85 (heveinaffer Eéfai‘rad “r0 as ’fhe ”m“ of 1985) arid was sari-famed "ra undergo rigwous imprisonmerrr for 10 year‘s md To a firm of RS‘E,OQ,OOG/« cmd 'mx défaulf 0f paymen‘l‘ of fine f0 mu‘ergs adéi‘i“imm§ Pigor‘cus‘ imprimnmei’l? {w i yam“. 2. grim‘iy gmiaa' ’r'na wasacu?§0m swr-y it's ‘x‘ha’r on 20—10—2003 on r’aceiving £€cva informwden 1"‘na‘‘x The; appaiiam was m possessiorl of nugg quam *3 o; gany m m- hausa a? VHaae Bn‘kona Sum Insbecfor‘ q 21g; raw“)? a's‘far reaco%"dmg he said mfarmcx‘rian vide EXP—a and f: J. u. (— g} in'fwmir'rg {33$ guparwrs Vida EXP—1 proceedad ‘fo fhe spa? wi‘rh Sub Impac-i'ar H. Karkaiu PW~6 uha‘ iwéapandeiw wifnesses Rqja Ram PALE: cam’ RakaEh B'Llbey. On r-eachi'ng ‘me house of appeilan'r, Sub Imaggjecmr J. C .;. 4‘ Rcq PWw? informed fha appeHaM’ about his in‘l’en‘rion ifs 'sézm‘cr} l me n! housg fw pagsa’easgion of iHicH ganja and ob‘l’ained éamsigm‘ mg Thé appglEam vidg Ex.P-4. Affar giving The search of his pe‘rsah as; wail as 01" Th9, S‘mff and wiiniaS$ vide Panchanama EXP-5, fhg hwsa sf 'i'he apmiian's‘ wag searched <11“ 5.20 P.M’ If was found 'i‘hm“ in aha m‘ fhe roams or: The Pafai/ ganja was kap‘x‘ ih 6 piasfic bags. Tha ii‘ecavehaci gam'a wag weighad by Nanci Kumar 5ahu a‘i’ 5.25 PM. arid i"r was fouad To ha 87 K6. (Si 9OQ Grams. Twa sampies bf 100 arama‘ aach ware separated from each bag arid were sealed. The ramaiaing ganja ih each pia$i=ic bag was aisa sealed. Seizure memo E;<.P—§ was prepared. Specimen impression of The sea! was affixed on suiwe memo and a separa‘fe panchnama of fhe specimen impression of ’rhe seai was aiso prepared vide EXP-14. 3. FIR EXP43 was wr‘imen a? 06.30 PM. in Police STa‘l'ion—Koni by Sub Inspeci'av Shri H. Kerke‘rfa PW—é. The 6 sealed plasl'ic bags con‘mining ganja and 12 sealed samples of 100 grams each were endrusfed To Head Consi‘able Malkhana Moharir Bandhu Bhaskar- PW~5 an 20—10-2003 "for safe cusw‘ady which was enmered imo Malkhana Regisfer Ex.P-12(C). On 28—10—2003, fhe 12 sealed sample packeTs were en‘h‘us‘l’ed +0 Cons‘l’able Kunj Bihari No.989 along wi‘lh memo of Superin‘ienden‘l of Police EXP—18 for faking ‘i’o The Forensic Science Laborafory, Eaipur. The sealed sample packefs were delivered on fhe same day a“? ‘fhe Forensic Science Labora‘rory. Vide 59¢: por'i’ EX.P~19,H was apihed The? a.” fha 12 sealed sample pucke‘i’s cmmed ganja. Af‘rer camplafion of inves‘l’iga‘tion, ‘i’he appeHam' was prsesu‘uad for "r'r12 0%"f2nce punighable under Secfion~20(B)(ii)(C) of fe N.D.P.5. Ad: The appeHam abjured The guiH‘, mended innocence ad 1ad rm evidence in defame. The prosecution examined as many as 7‘ rned ‘i'rial Judge canvic‘ied and senienced The appellan‘i as uf . aforesaidin para—1. (Supra) rz om o h n wi‘inesses. Relying upon The ei/vidence ied by The prosecu‘l’ion, fhe Ea A 3hri RNJJqa, ‘ learned counsel for The appellam‘ 7 ‘nas assailed Tne imnugned judgrnen‘i’ an The gr‘ognd ThaT The possibili'ly of mpering wiTl’i The samples senT To The Forensic Science LaboraTory auld noT be ruled auT since The specimen impression of The seal ”Found on The sample packeTs which was drawn by The Forensic Science LaboraT’ory in iTs reporT ExF—l9 did noT Tally wiTh The specimen impression of The seal affixed on Ex.P—9 & P-14. There was absoluTely no evidence To show ThaT The panchnama EXP—14 com-aiming The specimen impression of The seal was senT To The Forensic Science LaboraTory for comparison. The memo of The SuperinTendenT of Police EXP-18 also did noT show ThaT The specimen impression of The seal was senT. IT was urged ThaT on These grounds lone, The appellanT was enTiTled To be acquiTTed. 5. IT was also conTended by The learned counsel for The appellanT ThaT The independenT wiTness Raja Ram PW—5 did noT supporT The prosecuTion sTory. IT was noT esTablished by The prosecuTion ThaT ganja was recovered from The conscious possession of The appellaiL 4‘ Z l Ta c a ga’ ime Sub Ingriecfor 5:.5Rcj PW—7 admi‘rfad in ara—8 of his mony fhai’ fhe wife and famiiy mzmbew of ‘rhe appellan‘i’ odsc ve ‘e o An er ir‘dtapandem wi‘mess Rekesh Dubey on 10558 rmam The of map reh’g To recovery of a from oside The hougeof 1‘he plian“? was prepared was nof examined by e procon r wh h an ers ference ough‘r ‘ro have been ‘ n s1 pnon oi H C a dn h rW 5 a mm orae a m io J wpec Ke W 6 r RJ W 7 f? d h Q s P ehow Thaf “lhe specimen impression of l'he seal was also enfrLis‘red. “for safe eusfody. Lasl'ly, i‘l‘ was confended fha‘l' There was a serious violafion of Seei'ion~55 of fhe Ac’r of 1985 in as much as +here was na evidence ‘i‘a show jiha‘i before emrus‘l’ing The con‘iraband ar‘l’icles for safe cusi'ocly a? ’rhe Malkhana, ihe Sia‘lion House Officer had himself affixed his sea on all The aricles. If was also poin‘red ou‘i ’ihaf specimen impression of fhe sel affixed on ExP-9 & P—14 was a ‘ mufine seal of he Felice Sfafion— Universify Thana, Koni whereas ‘l'he enfire seizure and search was canducfed by Police S'rafion-Koni. On fhese graunds, if was argued faf The convicfion and sen‘i'ence awarded by fhe learned frial Judge deserves “r0 be sef aside. 6. Learned ceunsel far The appellam‘ placed reliance on Kanimm Vs. Seam 03" Medi Pradesh reporTed 2062 ) £rimes’457,‘ Jaer’ymam' 5§ha ifs. 5Tm’e reporfed in 1997(3 Krimes 486, Thandi $ p .‘bsii lin m m huQe o h M mm‘n $p rm gma i ape h seuh [o c adve m again ’rhe rwecu I? was also pm'ed ouT The? whne u ead ble Banu 3osk<1r ha sfafed i‘ha‘i‘ The seized cobond 'fie were dehvere for safe cusfody The Maikhana y ub Ik'’mr H rkeTm P ’r was S‘mfec'by Sub Inspector- a P hu“ he had dehvere *rhe con'i'mbend arcies 1'0 The ‘Aelkhancx Mohanir‘ The Makhcma Reglfer‘ EX 12(C) also dld no? l r’ a T h um in (2 ) @b \ ‘ ; Rm W 5327f? of Haryawa reporfed in (2000) 1 Smreme é‘aurf l nag s 3.33 am! 3agdisk Vs 5fa‘i'e of Madhya Pradesh reported m {Eit93} § @wr’gme 60w?“ €ases i§9 m suppor'i' of The above wm‘ar. I mm. k. On fhe ofher hand Shr‘i'D K.6walr‘e Depu‘ry 60W. Advoca‘l‘e (mgggd m suppam of The Impugned Judgmen‘r while confending fha‘r ‘he awdeme lea by me proSecuhon craa‘l’ed a presumption agains? Iha appeilam reimmg f0 The possassmn of con?raband ganJcx which waé, rm rébmfed by The oppexlan'r IT was aiso con’rended ‘Hna‘r ’rhe :proa‘aw'i’ion s’i'or'y couid no? oz dlsbehaved merely because one of fhe Panch wiTneSs was decEared hosi'ile. Reliance was placed on RRFafkiiM Vs. 5mi‘e of Kara/a repor‘l’ed in 2003(4) Crimes~390 (556). 8. Having heard rival com‘en'iions, I have perused The record-of Specioi Casie Number—34/ZOO3‘ In a case under The Ac? of 1985, if is fine du‘i’y of "the prosecm‘ion “i'o es‘rabiieh fha‘i’ “The seals on The sample packefs gen? for chemical analysis 1‘0 The Forensic Science Laborai’ory had remain infac? ‘iill The samples were received in 1’he Forensic Science Labora‘rory and Thai ‘lhere was no possibili'i'y of ‘l'heir being iampered wifh. In fhe present case, fhe specimen impression of fhe seal confained in EXP—14 and Seizure memo EXP-9 do no? ma‘rch a‘l all wi‘l’h “(he impression of fhe seal found on ‘lhe sample packefs by The Forensic Science Labora’rory which has been drawn on fhe repor‘r EXP-19. The words "%‘%." indica‘ring Vishwa Vidyalaya, " Egg.“ indica+ing Madhya Pradesh Police and +he words 331'. wriffem af'fer Tha'words Biia$pur are missing in fhe impression ‘of *i‘he seal drawn by ‘ihe Forensic Science Labora‘rory. Sub Inspecfor‘ 5‘ S. Raj PW—7 has no? sicx‘ied in his fasfimony Tha‘r a specimen impression of The seal was sen? ‘I'o ‘l'he Forensic Science laborai'ory along wi‘rh The samples of con‘fmband ganja. This is also noT borne lou‘i’ from “i'he memo of Superin‘iendeni‘ of Police EXP-18. Copy of The ‘Malkhana Regisier Ex.P-12( C) also does no? show Thai The specimen impression of The seal used “r0 seal The sample packers was also enfmsfed "ro The Malkhana Mohawk. The Tes‘nmony of Malkhana Mo‘rlarir Bandh‘u Bhaskar PW-5 is also silem on ’rhis point a ‘JVN V? :9. Ii is also periinem‘ i0 nofe ihai‘ There is material oon‘iradiciion as i0 who had delivered fhe confraband ganja and “the 12 sample packers for safe cus‘rody a“? Jrhe Malkhana. Head Consmble Eandhu BhaskarrPW-5 sfa‘ied fhaf Sub Inspeci'or H. Kerkei’ia PW—6 had delivered i’he coni‘mband ariicles ai‘ The Malkhana while H. Ker‘ke‘i’i’a PW-6 did no? make any such si'a‘i’emen‘i. Sub Inspector S.S.Ra§ PW-‘F has in para-*5 of his fesi'imony siai'ed on fhe oTher hand ‘i'hai’ he had delivered The seized coniraband ganja and fhe sample packeis io ihe Malkhana Mohar-ir. Thus, a serious doub‘r is erea‘ied as +0 who delivered 'lhe sample packe‘rs and fhe remaining plasi’ic bags of corr‘rraband ganja for safe cusfody ai‘ “rhe Malkhana. 10. There is no evidence on record To show compliance of Secfion—l55 of fhe Ac? of 1985 which manda‘‘ies Tha‘i ’rhe Sfafion House OfT’icer of The concerned Police STa‘I'ion is du'i'y bound To affix his seal on The seized conTraband ganja as also The sealed'sample go :mskai‘g befm‘a ara‘a‘rug'i‘img fhe same ‘For' safe cus‘rody a‘l' fhe ‘fn’xcdkham. A3 haid im Mama? Raw? Vs: 5M2? 0f Hwyami repor‘red in k {gawa} .3 5ww$m€bwf £ase5 31g, non-compiicmce of Section—57 bf Thai Ac? 9f 1985 rander‘s +he canvicfiorq of fhe appelian‘l’ bad in Iaw. 11. Havimg ‘i’hus; cmsider‘ad “the evidence lad by fhe prosecufion, ‘E am tr? The congiderad cpinion ‘fha‘i‘ if canno‘i’ be ruled cu? Tha'r The :Lrnpia§ .‘V‘ 3am fai“ chamical analysis To fhe Forensic 5cience Labmmwry had been tampered wi‘Hri. A ‘12. 17‘ Ee cdeé perfinen’f‘ w‘o no’re fha‘r Rqja Ram PW—5 Independenf 3wimesS m‘ seizure did mi suppor‘r The prosecu‘i’ion sTory. The spo‘r map EXP—16 shows 'rhcri if was prepared by Pc‘rwari Rajendr-a Pmsad, 5hukia on ‘ihe basis of ihformaiion given by independen‘i' wi'mess Rukesh Dubey. However, hei‘i’her Pa‘iwari Qajendm Prosod Shukia nor independeni’ wifness Rakesh Dubey was examihed by The prosecufion ‘ which crea‘i‘es a serious ciem in The evidence of Shri 5.3.Raj PW-7 reio‘i‘ihg “i0 seizure OT' 87 Kfz. & 900 5mms of ganja from fhe coriscious possessioh of fhe appellqgitf. If is also per'l’ineni’ “i"o no‘i'e fhaf aifhough Sub Inspecfor 5.5.Qaj PW—7 had sfo‘red fha’r Sub Inspeci'or H. Kerke‘h‘a F‘W—6 had accompanied To Viiiage-Birkona and was presenf aT The Time of search an‘d seizure in The house of The appeilanT. §ub Ihspecfor H. KerkeTTa PW—6 did noT depose abouf The search and seizure by 5ub InspecTor S. S. Raj PW—7. Sub InspecTor S. S.Raj PW-7 had in para-8 of his TesTimony sTaTed ThaT The wife of The appeiianT and his 3 children also lived in The house of The appeilenT. Sub Inspecfor 5.5.Raj PW-7 in para—7 of his TesTimony $i‘m’ed “Hm? he cou3d m)? say as Te how many rooms wera 'i‘hera in The Eousa of *rhe appeHam. In cross examinm‘iorw he has smJred Tha‘f The ‘;‘ Pamy” $Pom which gmja was seized wa3 in fhe room which was immediafaw in {‘wm” 0h emering The house. This is n0? borne ouT fmm The Spa? map EXP—16 as fhe room is no? sifuafed in The fron‘i’ immediai‘eiy ori eh‘i‘erii‘ig i‘he h‘ousz. ii is also noiewor‘rhy Thai Sub Ii‘ispecibr' 5.5.Raj PW~7 has mi givan cmy expiam’rion as 1’0 why any a f ‘wiihsss i‘i*0m‘Viilagz—&ir'kom was no? caiieci a? “the ‘Hme 9f sear-ch and saiZLira. 4 ‘ Vi3. Thus, The followihg poihTs emerge from The evidence led by The pmsscu'i‘ioh: (A) The possibiiiw “i"ha‘i’ ‘i’he sampies of ganja seni' for chemical amiysis is “the Forehsic Seience Labora'i‘ory had been hampered wifh, couid no? be ruled ou‘i. (B) Ihdepehdehj' wii‘ness Raja Ram PW—5 did no? suppor'r The prosecu’rian s‘i'ory. Ne wii'hess of The localii’y a? Birkona was calied a‘i ihe Time of The alleged search and seizure. (C) Ahaihei“ indepehdeni’ wighess Rakesh Dubey a? whose insiance i’he spoi map was prepared by Pa'lwari, was no‘r examined by The prosecuiiori. (D) Pa‘l'wari, who prepared ‘rhex‘spm" map of The house of The appel'iahT, was also noT examiried by The prosecuTion. (E) There is ToTal non—compliance of SecTion—55 af The ACT of 19-85. (F) Sub EhspecTor H. KerkeTTa PW-6 did noT corraboraTe The TesTimohy of Sub InspecTor 5.5.Raj i3W—7 relaTing To // qV gaarch and seizure of cemmbcmd Ganja from The house of ‘x‘he appeilcmf. 1w) In v%aw offhe preseme of family member's of fha appeHanT imida fha hcusg and fha evidence of Sub Iwspecfor 5.5.Rqj ?W—? confmdicfing fhe spof map EXP-16, if becomes } ‘ clou ffui fhof fhe comj’robcmcl ganja was seizeo from The corXScious po§§a£§ion of fhe appeHam‘. "tf 14. Havfrng ‘i‘hus considered The evidence ied by The prosecufion in ifs ep‘fi‘r'efy on§ fhe obovemenfioned eoinfs emerging fherefrom, I am of i‘he coneidered opiwion fhof convicfian of fhe appeliani‘ under e 5eci’ioi’i—20(B) (ii) (C) of fhe Acf of 1985 and The sen‘l'ence awarded ‘i‘hereunder by The ieorned friol Judge deserves fo be se‘r aside. 15. Iii fhe resuh‘“, ”(he appeal is oliowed‘ Convic‘fion of The appeilon? uhder Eecfion-ZG(%) (ii) (C) of "rhe Ac? of 19?:5 ‘ond fhe senfence awarded fhereunder b'y fhe ieorned friol Judge are sef aside. The oopeiiaaf is acquiffed aad shaH be sef a? iiberfy for‘rhwifh, if no? required ih any ofher case. Fine if paid, shall be refunded To The appellant .S’ sdl- l Dilip Raosaheb Deshmukh Judge l l 2; 06-2006 ‘ K