HIGH COURT OF CHHATTISGARH AT BILASPUR \U) Sinqle Bench: Hon’ble Shri Justice Radhe Shyam Sharma Criminal Appeal No.1372 of 1996 Alakhram Verma versus The State of Madhya Pradesh ‘ (now State of Chhattisgarh) JUDGMENT tofttor #42201 Sdl- R.S.Sharma Judge \15 -'l 2-201 ‘I r 1 3n HIGH COURT OF CHHATTISGARH AT BILASPUR Sinqle Bench: Hon’ble Shri Radhe Shyam Sharma, J. Criminal Appeal No.1372 of 1996 Alakhram Verma, S/o Manrakhan Verma, aged 37 years, residgnt of Kharora, Police Station Kharora, District Raipur (MP) (Now State of Chhattisgarh) versus Res‘pondent The State of Madhya Pradesh through Police ‘Station Civil Line Raipur, District Raipur (MP) (Now State of Chhattisgarh) Appellant N Present: i w .Shri HS Patel, counsel forthe appellant. Shri MPS Bhatia, Dy. Govt. Advocate for the State/respondent. r" 0 J U D G M E N T (Delivered on ll-l" December, 201 1) This appeal is directed against judgment dated 315‘ July, 1996 passed by the Special Judge (NDPS Act) and Sessions Judge, Raipur in Special Criminal Case No.100/95, whereby accused/appellant Alakhram Verma has been convicted under Section 20 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth ‘the Act, 1985’) and sentenced to undergo rigorous imprisonment for 18 months. 2. Case of the prosecution, in brief, is as under: On 19.9.1995, at about 4.30 p.m., ChowkiPrabhari Sub—Ihspector Madanlal Negi (PW-4) received information that a person was illegally carrying illicit ganja. ‘ After recording the aforesaid Information vude Ex—P/1 he Informed the same to City Superintendent of Police CiViI Line Raipur He accompanied by Witnesses Ujwal (PW-2) and Gaiendra (PW-3) reached Bus-Stand Pandri Raipur. The appellant was gomg towards an STD PCCWIth a black colour bag in his hand The accused/appellant was interrogated by Madanlal Negi (PW4) and information of rights under Section 50 of the Act, 1985’was given to him vide Ex—P/4 and consent x // of the appellant was recorded vide Ex.P/3. Thereafter, Madanlal Negi (PW-4) l searched the bag carrying by the appellant. During search, ganja like substance was found in 5 packets in the bag. 3 packets contained 2 kilograms each and 2 packets contained 1 kilogram each. Total 8 kilograms ganja like substance was E found, which was seized vide Ex—P/5 and the packets were weighed vide weighment panchnama Ex‘P/6 and it was found that the bag contained 8 kg of ganja like substance. Thereafter, two sets of samples, 25 grams each were lifted from thej packets and sealed. The remaining ganja was also sealed. The accused/appellant’was arrested vide Ex-P/2. Intimation of seizure proceedings was sent tg QSP, Civil Line, Raipur. Seized ganja was handed over to the officer- tin-charge of Malkhana, Police Station Civil Line, R‘aip‘ur for safe custody. The samples weresent to forensic Science Laboratory, Raipurs‘and report was received from there vide Ex;P/10. 'According to the'report (Ex-P/10), sample A was ganja. we After completion of investigation, the appellant was prosecuted for the offence punishable under Section 20 of the Act 1985 The appellant abjured the guilt and examined Mukundram (DW 1) and Shyamlal (DW 2) as defence Witnesses. The prosecution hasexamined asmany as fouriwitnesses and relying upon the evidence led by the prosecution, the trial Court has convicted and sentenced the appellant as mentioned in first para of this judgment. a wt: 3. Shri HS Pate, learned‘icounsel appearing for the appellant argued that there was-no compliance of Sections‘42, 50, 52 and 55 of the Act, 1985. Ujwal (PW-2) and Gajendra (PW-3) are rickshaW~pullers and the police used to make them Witnesses in other cases alsc‘ He further argued that there is nothing on record to show that the bag was containing ganja and samples taken from the H\\packets were sealed and speCImen impression. of the seal was prepared. The \ l \ ! samples were taken on 19.9.95 and a packet of sample was sent to FSL, Raipur on 30.9.95. It was sent after considerable delay, for which, there is no explanation. Therefore, the seizure from the appellant was not in accordance with law. Possibility of tampering of sample sent to the FSL cannot be ryled out. Therefore,lthe appellant is entitled to be acquitted of the charges framed against him. 4. 8hr; MPS Bhatia, learned Dy. Govt. Advocate appearing for the State/respondent, supporting the impugned judgment, submitted that the conviction land sentence awarded by the learned Special Judge do not warrant any 1 u interference by this Court. t 5. Having heard the rival contentions of the parties,rl have perused the record of Special Criminal Case No.100/95. Theprosecution has examined seizure witnesses Ujwal (PW-2) and Gajendra (PW-3). They have supported the prosecution case. Madanlal Negi (PW—4) deposed that on 19.9.95, at about 4.30 p.m., he received information that the appellant was possessing 8 kg of illicit ganja. After receiving the information, he sent the same to CSP, Civil Line, Raipur and superior officers also vide Ex—P/1 and Ex—‘P/Z. Anurag Sharma (PW-1). deposed that at the relevant date, he was posted as CSP at Civil Line, Raipur and Police Stations Civil Line, Ganj and Mandir Hasaud were within his jurisdiction. He further deposed that he receiv‘ed‘the‘information from Police Station Civil Line vide Ex—P/1. In crOSs- examination, he‘ deposed that the said information was received by him through wireless message also. After’perusal of the evidence of Madanlal Negi (PW-4) and Anurag Sharma (PW-1), it appears that substantial compliance of Section 42 of the Act, 19851 has been made‘by the investigation officer. a 6. “Now, l shall examine whether Section 5O of the Act, 1985 has been substantially complied by the investigating officer or not. Under Section 50(1) of \\.\ the Act, 1985, the officer, who is to search the accused, is required to inform the \. 0°? person about his right to be searched by a Gazetted Officer or by a Magistrate. If the person opts to be searched before a Gazetted Officer or a Magistrate, he shall immediately be taken to the said officer or Magistrate. Otherwise, the search can be made by the concerned officer. This requirement of law has been haeld to be mandatory!} in nature and non-compliance thereof vitiates the trial. 7. Sub-Inspector Madanlal Negi (PW-4) deposed that he informed the l appellant labout his right that he is entitled to be searched before a Gazetted Officer or a Magistrate or before him Vide EX-P/4 The appellant gave his written consent Vide Ex—P/3 to be searched by the investigating officer himself i ‘* ‘ t Thereafter he searched the black colour bag of the appellant in which he found total 5 packets of ganja 3 packets contained 2 kg each and 2 packets contained 1 kg each total 8 kg ganja The ganja was seized Vide Ex—P/5 and weighed Vide Ex- P/6 and thereafter samples of 25 gm ganja from each packet were taken and sealed in presence of the Witnesses. Remaining g‘anjawas also sealed. a 8. Ujwal (PW~2) and Gajendra (PW-3) also deposed that Madanlal Negi (PW- 4) informed the appellant about his right vide Ex—P/4 and the appellant had given his written consent Vide Ex—P/3 to be searched by Madanlal Negi (PW 4) They further deposed that the ganja which was seized from the appellant was kept in 5 packets, three packets contained 2 kg each and two packets contained 1 kg each. The samples taken from the packets were sealed and the remaining ganja were i also sealed separately. “K 9. On perusal of the evidence of the witnesses and Ex P-3 and Ex.P-4 it is clearly established that substantial compliance of Section 50 of the Act 1985 was l also made by Sl Madanlal Negi (PW 4) VN 10. V“, Shri Patel“learned'counsel appearing for the appellant submits that possibility of'sample‘analyzed‘ by the FSL had been tampered which could not be \ \ Q ruled out in view of the fact of the impression of the seal found on the packet taken by the FSL did not match with the impression of the seal described in the panchnama. It was also pointed out by the counsel that entry in the malkhana registerlwas not produced by the prosecution The samples were taken on 19 9 95land It was received by the FSL on 30995 Ie after 11 days The constable who was entrusted With the sample packets was not examined and the delay inisubmitting the sample packets in FSL was not explained. i i 11. On the other hand Shri MPS Bhatia learned Dy Govt Advocate for the State argued that sealing of the sample packets and the eVIdence led by the V x- i prosecution would not show any posSIbility of tampering of the sealed sample packet sent to the FSL a 12. l have perused the evidence led by the‘prosecution. SI Madanlal Negi (PW-4) deposed that he’ sent the ganja for chemical examination to Regional Forensic Science-Laboratory,- Raipur and th‘éreport of FSL (Ex-P/1 0) was received vide Ex.P-9. In the report (EXP-10), presence of ganja was found positive. In a prosecution for the evidence under Section ;20 of the Act, 1985, it is the duty of the prosecution to establish the shadow of doubt that sample taken from the quantity Ii of ganja alleged to have been seized from the appellant were sealed and speCimen impreSSion of the seal was prepared. lt-was also necessary for the prosecution to establish that at the timegof entrUstment of the sample in the 6 malkhana, St‘a‘tion’Hous'e Officer of the Po'iice Station had affixed his seai in the sample‘packets as also on the‘remainin‘g ‘qtEantity of ganja- The prosecution must establish beyohd reasonable doubt‘tha‘t‘th’e‘f’seal affixed on the’sample packets not only at the ti'rn‘e‘of'sei‘zure but‘a‘ls‘o ‘at‘th'e tir’h‘e of entrustment in the malkhana are remain intacttill the sample packet was del‘fvered' at FSL for its chemical analysis. avx . w V ' , -:t 13. In the instant case the prosecutton did not examine the officer-in charge of malkhana and officer-in charge of police station It also did not produce the malkhana register in its evidence. Even Madanlal Negi (PW-4) did not state anything about safe custody of seized contraband articles and the samples. In the FSL report (Ex-P/10), it was mentioned that packet A was received on 30.9.95 i from Constable 889 Mohanlat. In the report impression of the seaGI was not appearing. lt was also not mentioned in the report (Ex-P/10) that the sample was received jalong with specimen impression of the seal of the officer-in-charge of the police sttion. Even memorandum of Police Superintendent was not produced in the evidnce. Constable 889 Mohanlal was not examined by the prosecution. The samles were taken 19.9.95 and on ket fsample was received by FSL n 3.9.9. There s n idene o expla th custody o the samples ‘during this period and dela in ubmittin the se i FSL. y sg am n c 14. Aer having considered the evidence led by the prosecution in its entirety, l ft am of the considered opinion th there is non-compliance of Sections 52 and 55 at of the Act, 1985. Neither delay in delivering the sampe at FSL has been l explained nor the malkhana register was produced in evidence. The prosecution di not establish tt the seize ganja was kept in safe custody in malkhana. The prosecution did not examine the officer-in-charge of malkhana, Station House Officer nd Constable 889 Mohaal. Therefore, the‘reort of FSL (Ex-P/10) cannot orm the basis of conviction of the appellant under Section 20 of the Act, 1985. vie f the bo, the‘impgned judgment desrves to be set aside. ln w o ave u e {i p ts 15. In the result, the apeal is allowed. The conviction andentence awarded to the applat under Seion 20 of The Narcotic Drugs a Psychotropic eln ct nd Subtances Act, 1985 are set aside. he appella is acquitted of the charge s T nt framed against him, after giving him benefit of doubt. His bail bonds are cancelled and sureties stand discharged. .3 :wx c, 77 sd/_ V R.S. Sharma Judge Bini/Gopal a e p on e pac o o 35 i o evc t in e f § “ d ha d a nl p f