j HIGH COURT OF CHHATTISGARH, BILASPUR g (Sinqle Bench: Hon’ble Shri Sunil Kumar Sinha, J) Criminal AgLeaI No. 1139 of 1991 p Laxminarayan Vs. § ‘ . State of Madhya Pradesh (Now State of Chhattisgarh) JUDGMENT F ” Post for Judgmgmggg§1Qw/ J/ Sd/- Sunil Kumar Sinha J a,Jyd9e 3J08/20’1o @ 2 . m HIGH COURT OF CHHATTISGARH BILASPUR‘ (Single Bench: Hon’ble Shri Sunil Kumar Sinha, Ji G Criminal Agpeal No. 1139 of 1991 APPELLANT I Laxminarayan son of _ Chadilal Devangan, aged about 33 years resident of Torvanaka, Bilaspur, P.S. Torwa, District Bilaspur (M.P.)‘ (Now Chhattisgarh) ’Versus K ‘ RESPONDENT State of Madhya Pradesh (Now State of Chhattisgarh) through Excise Department, District Circle-3, Bilaspur (M.P.) (Now Chhattisgarh) t (Aggeal under Section 374 (2) of The Code of Criminal Procedure: 1973) Aggearance: Mr. Ashok Dubey, Advocate for the appellant. p _ Mr. U.N.S. Deo, Govt. Advocate forthe State. JUDGMENT (30.08.2010) Sunil Kumar Sinha, J. ‘ul 0 (1) The challenge in this appeal is to the judgment dated 11.12.91 passed in Special Criminal Case No. 50/91 by the Sessions Judge, Bilaspur, whereby, the appellant has been convicted u/s 20 of the Narcotic Drugs and Psychotropic Substance Act, 1985 (hereinafter referre‘d to as the N.D.P.S. Act or Act) and sentenced to undergo R.l. for 1 year and to pay fine bf Rs.500/—, in default of payment of fine to further undergo R.l. for 6 months. 2 Criminal Appeal No. 1139 of 1991 (2) The facts, briefly stated, 'are as under:— On some secret information received by the Excise Sub— tnspector, S.S. Parihar (PW-1) on 30.8.90, he made a search in the house of the appeltant and found 130 grams of ganja in £15 small packets. A seizure ‘memo to this effect (Ex.-P/1) was prepared in presence of two panch witnesses namely Shiv Prasad (PW-2) and Baburam. A sample of 10 grams was taken from the said packets and the sample and contraband were sealed on the spot. The representative sample was sent for its examination to Public Analyst on 11.9.90 and a report dated 10.10.90 (Ex.-P/4) was received. According to the‘said report the representative sample sent to the Public Analyst was containing ganja. / (3) At th{e trial, the_prosecution examined two witnesses namely S.S. Parihar (PW-1) and Shiv Prasad (PW-2). _ (4) The learned Sessions Judge, relying on the testimonies of above two witnesses, held that the appellant was found in possession of 130 grams of ganja and was liable for punishment under the aforementioned Section of the N.D.P.S. Act. l (5) Mr. Ashok Dubey, learned counsel appearing on behalf of the appellant, argued that there was no compliance of Section 42 (2) of the u“ N.D.P.S. Act; representative sample was not taken from all the packets; there is no document to show that the representative sample was sent by the Excise Department to the Public Analyst; it does not come on record that where the sample and contraband were kept from the date of seizure to the date of sending'to the Public Analyst as entry of Malkhana register has not been proved; even the investigating Officer did not depose about all this and the entire link evidence was missing. Therefore, riminal Appeal No. 1139 of 199 C 1 looking to the statutory safeguards provided to the accused of thé category of the appellant, he is entitled for acquittal. (6) On the other hand, Mr. U.N.S. Deo, learned Govt,‘Advocate appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Sessions Court. “g (7) 31 have heard the learned counsel for the parties at length and have also perused the records of the sessions case. , (8) So far as non-compliance of'Section 42 is concerned, Section 42 provides for procedure and power of entry, search, seizure and arrest without warrant or authorization. An empowered officer has the power of entry into andisearch of any building, conveyance or place, break open a any door, remove obstruction, seize contraband, detain, search and arrest any person between sunrise and sunset in terms prOvided in sub- section (1) of Section 42. Sub-section (2) of Section 42 is a mandatory provision. ln terms of this provision a copy of information taken‘down in writing under sub-section (1) or ground recorded for the belief under the proviso thereto, is required to be sent by the officer to his immediate superior official. lt is clear from the language of sub-section (2) of Section 42 that it applies to an officer contemplated by sub-section (1) thereof and not to a gazetted officer contemplated by sub-section (2) of Section 41, when such a gazetted officer himself makes an arrest or conducts search and seizure The above legal posmon has been reiterated by the Supreme Court Inm M Prabhulal Vs- AsSIstant Director Directorate of Revenue Intelligence, (2003i 8 SCC 449 It was further taken note of by the Supreme Court In the matter of Union of India —Vs- Satrohan, ¢ 4 Criminal Appeal No. 1139 of 1991 (2008) 8 SCC 313. if we examine the present case on the above principles, it would be clear that S.S. Parihar (PW-1) was an empowered officer u/s 42 (1) of the N.D.P.S. Act. He admitted ingPara-Q in examination-in-chief that when he received information about the possession of the contraband by the appellant, he made an entry in information register Ex.-P/7 (copy of Ex.—P/7 is not avaiiabie on record). After making entry, he made search of the house of the appellant and seized the contraband in abo,ve manner. However he never deposed that u; ’ he sent any information of the seizure to the concerned authority as per provisions'of sub-section (2) of Section 42 of the Act. The Supreme Court said time and again that the offences committed under the N.D.P.S. Act are grave offences and procedural safeguards to the‘accused provided under the statute require strict compliance and if it is not proved by the prosecution, the same would be fatal to it (Please see- Ritesh Chakarvarti —Vs- State of Madhya Pradesh, 2006 Cr.L.R. (SC) 874). ln v the above facts and circumstances of the case, we find that there was non-compliance of the provisions of Section 42 (2) of the. N.D.P.S. Act which was mandatory provisions and the same was fatal to the prosecution. $ U‘ (9) So far as manner of taking representative sample is concerned, in Bal Mukund —Vs- Central Narcotics Bureau, 2006 (III) MPJR 365, the Madhya Pradesh High Court held that if the contraband was kept in more than one packet, then representative packet must be made after taking sample from each packet. In .the present case, accOrding to the prosecution, the contraband was kept in 15 small packets, ‘whereas, as per evidence of S.S. Parihar (PW—1), the representative packet was 5 Criminal Appeal No. 1139 of 1991 prepared after taking sample from 2-3 packets. Therefore, it cannot be said that the remaining packets were also carrying some contraband of which a representative packet was made and it was a circumstance 9 which goes against the prosecution. (10) The most alarming circumstance which creates doubt on the prosecution case is that no document has been filed by the prosecution to ‘ show that the representative packet and the sample of the seal were sent to the Public Analyst. it comes in the Public Analyst report (Ex.-P/4) that he received 5 packets sent to him by the Excise Officer, Bilaspur through memo No.‘ 2011 dated 11.9.90. According to the said report, it was received by the Public Analyst on 14.9.90. As stated above, the said memo and sample of seal have not even filed in the prosecution w document. It appears that 5 representative packets were sent to the, Public Analyst out of which one was of the present case butin absence of proof thereof, it cannot be held that it was established by the prosecution t that they sent the representative packet of this case with the sample of , seal put on the packet for its proper identification. Even the document related to allnthis are not in the ‘B’ me of the case which contains unproved documents. That is to say that no such document was filed before the Sessions Court along with charge-sheet. Rf //"\ $ (11) Apart from the above, there is no evidence to show that where the contraband and representative sample were kept from 30.8.90 to 11.9.90, i.é"i the alleged date of sending it to the Public Analyst. ln The State of Raiasthan —Vs- Daulat Ram, AIR 1980 SC 1314, where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody the seats on the samples were not tampered with, the Supreme Court held that the inevitable effect of the omission was that the prosecution failed to rule out the possibility ‘of‘the samples being changed or tampered with during the period in question which was a fact which had to be proved affirmatively by the prosecution. ln the present case, there is absolutely no evidence to show that where the contraband and representative packet was kept from 30.8.90 to 11.9.90. No entry of Malkhana register has been proved. The Investigating Ofhcer did not depose that in the said period where the samples Were kept;‘even there is no oral assertion that the samples were kept in Malkhana in the said period. (12) In State of Raiasthan -Vs- Gurmail Sinqh, AIR 2005 SC 1578, it was said that the seized articles were kept in the Malkhana on 20th May, 1995 but the Malkhana register was not produced to prove that it was so kept in the Malkhan till it was taken over by the concerned person on June 5, 1995.‘ No sample of the seal was sent along with the sample of Excise Laboratory for the purpose of comparing with the seal appearing on the sample bottles. The Supreme Court hejd that in such circumstance, the link evidence adduced by the prosecution was not at all satisfactory. There was no evidence to prove satisfactorily that the seals found were in fact the same seals as were put on the sample bottles immediately afterse‘izure of the contraband. Affirming the judgment of acquittal passed by the High Court, the Supreme Court dismissed the appeal saying above as loop-holes in the prosecution case. i\ ‘ 7’ ( _\ i WV ‘ l ‘1 “I _. ” Criminal’AppéalNo’1'13‘96f1991 m, i (13) As stated above, the link evidence relating to keeping of sample; sendihg it to Public Analyst with the sample of seal etc. are completely missirlg which vitiate the search and seizure of ‘ganja’ held to be proved ' by the Sessions Judge. g / / \_ (14) For the foregoing reasons, the conviction recorded by the Sessions Judge} u/s 20 of the N.D.P.S. Act cannot be sustained. The appeal is allowed. The conviction and sentence awarded to the appellant u/s 2O of the N.DwFES. Act are set-aside. He is acquitted of the charges framed against him. It is stated that the appellant is on bail. His bail bonds are cancelled and suretystands discharged. W,’ V _ Sunil Kumar Sinha . Judas, , Mfg is p sw- 1 : % z i i s j