T ^•' ..•'""^ ^^^ ^' ....\^ ..•••^Q^^-' ^C^- ^..'-'_^s^- ^. f\\»Al":v^^^-- .,.-" w ^ ^^' .<-ot d). ^ •^y INTHE HIGH COURT OF 3UDICATURE AT BILASPUR fC.G.) CR. Appeal N6. 5^^ / 2004 APPELLANT ACCUSED (in jail) Kulashwar Dl^ib, S/o. Tulshi Dhrub, aged about^^ears, Occupation - driver, R/o'TA'anapara, Makeshwar Board, Dhamtari, P.S. Kotwali, Dhamtari, Distt. Dhamdari (C.G.) VERSUS State of Chhattisgarh. RESPONDENT PROSECUTION CRIMINAL APPEAL UNDER SECTION 374(2) OF THE CODE OF CRIMINAL PROCEDURE 1973. -<J-~ ^) HI6H COUftT OF CHHATTIS6ARH AT BIb^SPUR Single Bench: Hon'ble Shri DIOP RAOSAHEB DESHMUICH, J. Criminal ApDeal Number-548/2004 Kuteshwar Dhruw Vs. State of Chhatt-isgarh PRESENT: - Ku. Meenu Banerjee, learned counsei for the oppellant. Shri Parag Kotecha, Panel Lawyer for the State, ORA L JU D6MENT (Delivered on 29^-06-2006) Appellont Kuleshwar was convicted under Section-20 (8) (ii) (B) of 1+ie Narcotics Drugs & Psychotropic Substonces Act. 1988 (hereinafter referred to as 1+ie 'Act of 1985") and was sentenced to undergo rigorous imprisonment for 3 years A 6 months <xnd also to fine of fts.15,000/- and in default of payment of fine to unctergo addttional rigorous imprisonment for 1 year by Shri R-S.Sharma, Special Judge (N.D.P.S. Act.), Bastar at Jagdalpur in Special Case Number-52/2003 vide judgment dated 27-02-2004. 2. Briefly stated the prosecution story is that on 27-11-2003 upon receiving secret information that the appellant and one Hemont were transporting contrabond ganja on a motorcycle, Sub Inspector Arvind Kumar Dwivedi PW-1, Station House Officer, Pharasgaon after recording the said information proceeded to the spot with witnesses and intercepted the appellant Kuleshwar who was driving Hero Honda Motorcycle bearing Registration No.C.G.-05-8198. Another person Hemant, who was the pillion rider, was carrying 4 K.<3. & 500 Srams ganja in his lap. 5 k.6. contraband ganja was aJso tied down in the rear of the motorcycle. After completing the necessary legal formalities Sub Inspector Arvind Kumar Dwivedi PW-1 seized the contraband ganja contained in l fertilizer bag alleging it to be in possession of the appellant Kuleshwar along with Hero Honda Motorcycle bearing Registration No. CO-05-8198 vide seizure memo Ex.P-14. Rajkumar PW-4, who was present at the spot weighed amd found the contr<Aand ganja inside the bag to be 5 k.^< Two samptes of 50 6rams each were taken from the aforesaid quantity of ganja and were sealed and remaining quantity of ganja was also sealed. Seal Panchnama was prepared vide Ex.P-17 mentioning that the brass seal bore the impression "Police Station M.P.". However, specimen impression of 1+ie same was not affixed on the Seal Panchnama Ex.P-17. On 27-11-2003, one white fertilizer bag containing 5 K.6. ganja in a sealed conditjon and two sealed sample packets of 50 (Srams each allegedty taken from the aforesaid quantity of ganja and Honda Motorcycle bearing Registration No. C6-05-8198 were entrusted for sttfe custody to Head ConstabIe/Malkhana Moharrir Jaydev Bhoi which was entered into Malkhana Register ExP-32(C) as mentioned above. On 03-12-2003 vide memo Ex.P-30 of Superintendent of Potice, Bastar at Jagdalpur, one sample packet of ganja was sent for diemical analysis to the Forensic Science Laboratory, Raipur through Constable 6end lal Sahu No.80 which was received in the Forensic Science Laboratory, ftaipur on 06-12-2003. Vide report cbted 13-01-2004 Ex.P-31, it was opined that the sample packets contained gflnja. In the report, Forensic Science Laboratory drew the impression of the seal whid'i was found on the sample packet as "Police Station, Pharasgaon, M.P.". After completion of investigation, the appellant was prosecuted, 3. The appelkxnt abjured the guilt, pleaded innocence and led no evidence in defence. TTie prosecution examined 4 witnesses. Relying upon the evidence led by the prosecution. the leamed trial Judge convicted and sentenced the appellant as aforesaid in para-1, 4. Ku. Meenu Banerjee, learned counsel for the appellant has assailed the impugned judgment on two grounds. Firstly that the possibility that the sample analysed by the Forensic Science Laboratory had been tampered with could not be ruled out in view of the fact that the impression of the seal found on the sample packet by the Forensic Science Laboratory did not match with the impresston of the seal described in the Panchnama Ex.P-17. It was pointed out that entry in the Malkhona Register did not show as to on what date the ^ample packet was taken out from the Malkhana for bemg entrusted to Constable 6end hl Sahu No.80. It was also contended that Constable Gend bl Sahu No.80 who was entrusted with the sample packet on 03-12-2003 was not examined and the deloy in reaching the sample packets by him to the Forensic Science Laboratory wos not explained. It was also contended that AAalkh<ma ftegister Ex.P-32 (C) clearly shows that one white fertilizer bag containing 5 K.<5. of ganja in a sea\ed condition was also deposited in the Malkhana for safe custody along with two sample packets of 50 6rams each ganja in a sealed condition. Since, the quantity of 9anja seized from the possession of the appelltxnt was alleged to be 9 K.^., it was extremely doubtful that the samples sent for chemical cinalysis to the Forensic Science Laboratory had been taken from the aforesaid quantity of ganja alleged to have been seized from the appellant. It was also contended that the prosecution had failed to prove that the alleged contraband ganja weighing 5 K.6. was in the conscious pos^ssion of the appellant since Sub Inspector Arvind Kumar Dwivedi PW-1 had admitted that the appellant who was driving the motorcycle was not the owner thereof and it was the pillion rider Hemant who was carr/ing a bag containing contraband ganja in his lap and ano1+ier bag was tied down at the rear of the motorcycle. Lastly, it was contendted that non-compliance of Section-55 of the Act of 1985 by Sub Inspector Shri Arvind Kumar Dwivedi PW-1 renders the conviction of the appellant bad in law. Reliance was phced on Avtea' &noh rf Ortmrs Vs. State of Pun^ab reported in (2002) 7 Suprema Court Cascs 419. Narcofics Coirfrol Btuvau. J'odlttMjf Vs. Mwlidhar Soni and ^^^.reported in 2004 (2) A.N.J. (S.C.) and Tfmath Goudo Vs. ^) State reported in 1996 (l) CRIMES 607 in support of the above contentions. 5. On the other hand, Shri Parag Kotecha, learned Panel Lawyer for the State ar9ued in support of the iinpu9ned judgment whjte contending Ihat there has been substantial compliance witii the provisions of the Act of 1985 regarding sealing of the ^ample po^kets and the evidence led by the prosecution did not show any possibiltty of tampering of the ^aled sample packet sent to the Forensic Science Laboratory. 6. Having heard rival contentions, I have perused 1+ie record of Special Case No.52/2003 and have minutely gone through the evidence led by the prosecution. In a prosecution for an offence under Section-20 of the Act of 1985, it is the dut/ of the prosecution to establish beyond the shadow of doubt that the samples taken from the quantity of ganja alleged to have been seized from the appelbnt were sealed and a specimen impression of the seal was prepared. It is also necessary for the prosecution to establish that at the time of entrustment of the samples in the Malkhana, Station House Officer of the Police Station had affixed his seal on 1+ie sample packets as also the remaining quantity of contraband ganja. In o-Hier words, the prosecution must establish beyond the shadow of any doubt that the seal affixed on the sample packets not only at the time of seizure but also at the time of entrustment in the Malkhona remained intact till 6 the sample packets was delivered at the Forensic Science Laboratory for chemical analysis. 7. A perusal of the specimen impression of the seal prepared by the Sub Inspector Arvind Kumar Dwivedi PW-1 vide ExP-17 clearly shows that specimen impression of the brass seal used to Sea\ samptes was not affixed on the panchnama. However, the description of the seal used to seal sample packets as given in Panchnama Ex.P-17 goes to show that it was a brass seal containing the words "Police Station, fA.?tt A perusal of the report of the Forensic Science Laboratory Ex.P-31 shows that the impression of the seal found on soimple packets was drawn by -t+ie Forensic Science Laboratory as "Police Station Pharasgaon M.P.". It is thus clear that the words "Phorosgaon" were not present on the seal affixed on the sample packets at the time of sealing contraband gouija and the sample packets which does not rule out the possibilit/ that the seal on the sample packet had been tampered with. 8. A perusal of the Malkhana Register Ex.P-32(C) goes to show at item No.l that 5 k.G. of ganja in a white fertilizer bag in a sealed condition was deposited at the Malkhana ond shows at item No. (ii) that two sample packets of 50 grams each ganja alleged to have been taken from the aforesaid quantity of ganja seized were also deposited. If two sample packets of 50 grams each had been lifted from 5 K.6. of ganja allegedly seized from the possession of the '^ ^L^ appellant, the white ferl-ilizer bag would have been contamed 4 K.&. A 900 ©rcuns of gcmja. The ctescription in the A^alkhana ftegister Ex.P-32(C) does not rule out thepossibility 1+iat the sample packets entrusted for safe custody at the AAalkhana did not represent the quantity of ganja allegedly seized from 1+ie possession of the appeJlant. In his testimony Sub Inspector Arvind kumar Dwivedi PW-1 did not state anythin9 about the de^ription of the seal used. He also did not state that before entrustment in the Malkhana he had put the seal of the Station House Officer of P.S. Pharasgaon on the sample. Thus, there has been total non compliance of the Section-55 of the Act of 1985 in the aforesaid facts auid circumstoBices. 9. The entries in the Malkhana Register also do not show the chte on which the sample packets were taken out from the Malkhana for entrustment to Constable 6end lal Sahu No.80 for taking to the Forensic Science Laboratory. The prosecution did not examine Constable 6end lal Sahu no.80 who took the sample packet with a memo of Superintendent of Police, Bastar at Jagckxlpur Ex.P-30. As per memo Ex.P-30 Constabte 6end lal Sahu took the sample packet on 03-12-2003 and reached the Forensic Science Lexboratory, Raipur on 06-12-2003. There is no1+iing on record to show as to where fluid in whose possession the sample packet was kept and in what condition during this period. In the facts and circumstances inentioned abov®, the possibiiity that the sample packet sent for chemical <malysis to the Forensic Science Laboratory had been tampered with could not be ruled out in thls case and on this count alone, conviction of the oppellant under Section-20(B) (ii) (B) of the Actof 1985 is liable to be set aside. 10. Possession is the core ingredient of an offence under Section- 20(B) (ii) (B) of the Act of 1985. The prosecution has to establish that contraband ganja was seized from the conscious possession of the appellant. Sub Inspector Arvind Kumar Dwivedi PW-1 and Head Constable Shekhar lal Kashyap PW-3 have admitt^ed that the oppellant was driving the motorcycle whereas it was the pillton rider Hemant who was holding one bag and one more bag was tied down in the carrier of the miotorcycle in the rear- ftajkumar PW-4 has stated that the other bag was kept inside the dicky of the motorcycle. Para-53 of the impugned judgment clearly shows that the appellant Kule^iwar wos not the owner of the motorcycle. It appears that Hemant was separately prosecuted for the offence under Section-20(B) (ii) (B) of the Act of 1985. It is beyond comprehension as to how Sub Inspectar Arvind Kumar Dwivedi PW-l came to the conclusion that the appelfant was in conscious possession of 5 K.^. of controband ganja which was tied in the rear of the motorcycle. Not being the owner, the appelkant was merely driving the inotorq^cle while it was Hemant wrfio held one bag on his lap while the other bag was tied behind him. In the facts and circumstances mentioned above, it cannot be ruled out that it was Hemant ond not the appellant who was in conscious possession of the 9 fertilizer bag also, tied at the rear con'taining 5 K.6. of contraband ganja at the time of seizure. 11. Having thus considered the evidence led by the proseaition in its entirety and also the rival submissions, the following points emerge:- (A) The possibility 1+»atthe seal on the sample packet examined by the Forensic Science Laboratory had been tampered with could not be ruled out. (B) Conscjous possession of the appellant over the contraband gcinja alleged to have seized is not established beyond doubt. (C) Non compliance of the Section-55 of the Act of 1985 in the facts and circumstances of the case renders the conviction of the appellant bad in law. 12. In the aforesaid facts and circumstance, conviction of the appellant under Section-20(B) (ii) (B) of the Act of 1985 and the sentence awarded thereunder by the learned trial Judge are liable to be set aside. 13. In the result. this appeal is allowed. Conviction of the appellant under Section-20(B) (ii) (B) of the Act of 1985 <md the sentenc® awarded thereunder by the learned trial Judge are set aside. The appellomt is acquitt-ed and shall be set at liberty forthwil+i, if not required in any other case. Fine if paid, shall be refunded to the appellant. Sd/- DilipRaosahebDeshmuldi Judge