;?^7 •/•• f-.PPF^L OF "KTSONEI; CF0000067229 Ku- . -3C'?Z%cc_3 Father's nsrne Name ^T^T ^T§~T 'L^^....^^..H^I^ Resider.ee l's:^'i.'TS:T)—sH'5:<3-?ToT '. A ) —~ .i_<3' ^ r» /? " -.^..^. _ (~- y- ' z'/» ;•'- 'asTv-'sthTT-rr&n-s •3ffyyg~(y^'svFi7"SWr^i)S^' • : ^^> -v/-i<4 • -— sentericed"fsA?i.MET6S&5?;_lA//2,^—-°" .:..2,.9--.'3.~A6C'3 ^rr^y-2-^-^-^P-s" fi^f'- , ^,^ „ .^ / ;Jp.der section _.;^@r^;^^g^-..._._,__ ^Y i cf.'^S'.^X'uvST^'W'. S'l.'-'^^ff^ 1-N'<T£S".~:^vj~•w'^'fyU^-iTf'"i^hf ytf- "---— 'yCd- -7^TJ?^?)7J?" ?R?5?n-('^"c »-p; it is e?qilained to tlie prison.er that if he states or wtshes to be represented by legal practitioner the Appeliste CQurt will rsot proceed with the base for seven days unless the.legal practitioner aypears. If the legal practitioner cioes.'not appear with-in seven days he rnay not heard at a.1.1. ! If fche ;' prisoner sfcafcea thsfc he does not;wisVi to be represented by •/!- IflQ^l •[•-vra:ctiotionRr thc cour'fc m^ procGed cit o;'tce wlth. fchu ase and '.•.•ill p.ot be obliged to .gi'O'e. a hearinc; to any legsl |ractitioner who should appear. Date of Applicatio'i for; cc.py of Judgsment _2_Q-_3.'-,,£t&.6.3. Date or whicb copy receivc-c', 09 • ''-r - SCr8S Dat:e.i..on uhich appeal sent ..__.___. . .. _..,^.S .:^.:..'3.£;?-.3,. Whether the prisoner v/ished to be representec1 or not-,^?sAJo I'0- J3>fe^'/'5J5 0.2-__..„. Name _^^T[gyq:^,^^g^^^.3^- , I'ontinued ui ..^F3JT£J:--....„Ja;L1'_S&S35Tg^ AQ.^pSI.^S-M^ |I°- ..^S.A^Q-,.- Da^d ,^^].(S}.....- lw -.'..--,..--.,--.-.- 'orward to thi'^^W^S^M^SS^S^S^''^^^ ^•fctn7i^rci'~^'^w^'\ •o gather whicli a copy of order passed in the co se for fctvour if transmission to the proper Appelliate Court. .Jf'C^J'f' /'D,cpc)- Superlntendent Date of receipt in C.J.M's Offics Date of receipt rscord to acconpany Memo or .-'.ppeal of the Appeliate Court Ko. ^ ' •Dated Forwardec1 to the itopiu 19' C.j. I'agistrate Date of receipt in Appeliate Court //SURGUJA TY.// ^•^n^NfiAtft^hia^l ll^(efirtof(N»':t{.'r"iN t6 <e»K»..<..—......5:^. Recefpt Ctef^^— [ llfgh eofiTt, •SBaspnr Uffi'-y^ MT.'SM r.n«e' IATTT" "?F"i5^ E l Ai Cr. No.481/2003 State o'f Chliattisgarh .^- > <?-. T^ st®Bench; Hon'bi®Shrs Dllip Raosahsb Deshinukh.J. Post for orders 3-& L(' c c Sd-/ -^- ^ ?~ • •v4 ^,rt COURT OF^H Cr. No.481/2003 ^!ttinl? =^"<^ Statd of ffnhattisgarh CRcSENT; - Shr-i A. K. Shukia, leamed counse! for the Sh"i Ashish Shukla, t?o"t. Advocate with AA.s. Sunita Jain, Pane! lawyer for' the Sto.te. (Delivered on^-04-2006) This appeal is directed against the Judgment dated 29-03- 2003 delivered by Shri Raghublr Singh, Special Judge (N.&.P.S.), .Ambikapur District-Sarguia in Speciai Criminai Case No.14/2001 whereby the lant wus convicted under Section-22 of the Narcotic Drugs and Psychotropic Substcnces Act. 1985 Qiereinafter referred to as "the.Act") and was sentenced to undergo R.I. for 10 years aid to a fine of Rs.1,00,000/- and in default of payment of fine to undergo additionat R.I. for three years. 2. The o.ppellant was in jail during tria! from 26-07-2001 csnd is undergoing sentence from the date of judgment. 3. Briefiy stated the prosecution story is that on 25-07-2001 A.5.1. B.N. Sinoh' PW-4 received secret information at 10 A.M. that the appello.nt Bholaram had some ps'/chotropic substance in his possession for sale at Bus Stand, Ambikapur. After recording the aforsso.id secret inf&rmation and informing higher officials, he pi''oceeded to Bus Stand, Ambikapur with Police staff artd witnesses "Santosh PW-1 & Sudama and apprehended the appeliant. After serving •^- usai ice under Section-50 of the \, consented to be searched by him, A.5.1. B.N. Singh PW-4 searched the appeilant and found i" his right fu!! pont pocket brown sugar like substance kept in 3 plastic bags weighing approximately 15 grams. The brown aigar iike substance was mixed on a piain paper and wcs weiahed. It wqs found that the net weight of the substance seized was 12 Grams 800 Miiligram whiie^along with the plastic bags it ,..(. weighed 14 Grams 170 Mi!lig"ams. Tbe entire brown sugar like substsnce was kept in one smail pSastic bag and was sealed by A.5.1. B.N.Singh aSo'ng with 3 empty piastic boigs. The aforesaid sealed substui'ice was ho.ridei:! over to Head Constable AAahesh i?upta No. 296, Maikharia Moharir of Police Stal-ion-Ambikopur for safe custody. On 27-07-2001 vide memo Ex.P-19 of Superintendent of Potice, Sarguja at Ambikapur, the aforesaid sea'ed packet was sent to the Forensic Science Laboratory, Sagar for chemical examination. Vide report Ex.P-20 dated 09-10-2001 it was opined by the Forensic Science Labor'c.tory that the substance sent for excmination was &;acetj/lmo"phine ('neroin). After compietioh of investigation, the tippelio.nt wcs prosscuted under Section-22 of the Act. The appellant abjured the guiit, pieaded innocence cnd led no evidence in defence. Tne pr'osecution examined as many as 4 witnesses. Relying upon the testimony of A.5.1. B.N.Singh PVi/-4, Hemant Khare PW-3, S.H.O. Ambikupur and the F.5.L. report Ex.P-20, the trial Judge convicted and sentenced the appeiiant as aforesaid in para-l(Supra). 4. Shri A.K.Shukla, learned counse! for the appellant has assctiled the conviction and sentence awarded to the appeilant on the ground that the evidence led by the prosecution failed to estabtish the guitt of t'ns appeliant under Sectio/i-22 of the Act of 1985. It was contended that Heroin, a Drug commoniy known as brown sugar was a Narcotic trug and contravention in respect thereof was an offence -^^ '^^} c^, under 5ectlon-21 of the Act of 1985. The conviction of the \ under Section-22 of the Act of 1985 was thus erroneous. It was also argued that independent witness Santosh PW-1 did not support the prosecution cas®and another independent witness Sudama was not examined by the prosecution, for which an adverse inference ought to 1'iavs been drawn against'the prosecution. Learned counsel also urged that non-compiiance of Section-5,5 vitiates the whole prosecution .since neithei* t'ne Malkhana Mohat'rir^ea.d Constable AAahesh 6upta PW-3 to whom the property was entrusted for safs custody, was examined nor' was any evidence ied by the prosecution to show that ths Station House Officer of P.S. Ambikapur had affixed his sea!on the seized and sealed substance handed over by A.5.1. B.N.Singh PW-4 for safe custody. Lastiy, it was contended that the report of Forensic Science Laborator^ did not show that the packet sent for chemicat analysis contained 3 Plastic bags. Therefore, it could not be '••u.Sed out that the substance sent for chemica! examination had been tamosreo' with. On the other hand, 5hri Ashish Shukla, learned (Sovt. Advocate with h\s. Sunita Jain, Pansl Lawyer argued in support of the irnpugned judgment. 5. Having consldered rival submissions, I have perused the racord of Specia! Cr'iminal caseNo.14/2001. The offence under Section-22 of the Act entails rigorous imprisonment for a term which shatl not be isss than 10 year-s but which may sxtend to 20 years and also to a n-.H-tirrium fine of R.s.l Lakh whi.ch may axtend to Rs.2 Lakhs. It was thus obtigatory on the prosecution to prove beyond reasonabte doubt that the substances .aileged to have been seized from the possession of the appetiant was the same.which was received for chemica! anaiysis at the For&nsic Science Lai •r~r~'sj 6. Section 55 of the Act lays down that before entrustment of the article seized and delivered at the Malakhana, the Officer-in- Charge of the Potice Station is required to affix his seal on the sarnples seized and seaied by the Investigating Officer. In the present case, A.5.1. B.N. Singh P.W.4 has in paragroph 19 of his testimony stated that he had entrusted the sealed packets containing brown suaar Sike substance fo Ma/khana Mohafrir Head Constable Mahesh Supta (No.296) for safe custody. However, the prosecution ho.s neither produced the Malkhana Register nor examined Matkhana Mohar'r'ir' Head Constable Mahesh Supta to prove the aforesaid fact. Station House Officer, Police Station Ambikapur Hemant Khare P.W.3 c'id not state that the articlss entrusted by A.S.I. B. N.Singh P.W.4 to the Malkhana Mohas'ri.r we.re also sealed by him. Thus, in ths present co.se, non-exarnination of Malkhana Mohafrif, non-production of .Mafkhana Register- and the fact that the Station House Officer did iiot affix 'nis seal on the substance entrusted for safe custody by A.5.1. B.N.Singh P.VV.4 shows 1-otal non-comptiance of Section 55 of the Act. 7. A.5.1. B.N.Sing'" P.W-4 has testified that he had recorded the aforesaid secret information vide Ex.P.l in the presence of witnesses Santosh P.W.l & Sudama. It, thus, cppears that these two witnesses wei-e present wit'n A.5.1. B.N.Singh P.W.4 right from the time when the secr-st information was received till the article seized from the possession of the appellant v»ereseo,ted. However, Santosh P.W.l did not support the prosecution story and stated that the police had taken his signatures on.8 - 10 papers. Nothing couid be elicited in his testimony even after' The witness- was dectared hostile and cross examined by the prosecutor. Another independent witness Sudama was not exumined by the prosecution for which there is no explanation. It is sattled law that when on independent witness though cited and L •^- avaiiable is not examined b^ the prosecution without any rhyme or reason an adverse infer-ence against the prosecution wil! have to be arawn. 8. The testimony of Station House Offi&cr P.S. 1-ieniant Khare P.W.3 doeg not show that he had accornpanied A.S.I. B.M.Singh to the Bus-stand Ambika^ur for intercepting the dppellant. ..(. Navneet Slngh wiho wns cnlled by Assjstant Sub-Inspector B.N.Singh after effecting o. seizur®of the brown sugar like substance from the possession of the appellant for weighing the substance seized was also not examined by prosecution. It is in the weighment Panchnama Ex.P.10 that it appears for the fir-st time that the seized substance was kept in a piastic bag and was sealed along with the three empty piastic bags in which the substance was found to have been kept in possession of the cppe!!ant. Ail other documents exhibited ear!ier i.e. seizure merno Ex.P.6 at 12.20 hours, homogenous sample Panchnama Ex.P.7 at 12.35 hours, identification Panchnama of brown sugar like substancs Ex.P.8 at 12.50 hrs, the weighment verification Panchnama Ex.P.9 at 13.00 hours do not sliow that the substance seized from the appel'ant had been sealed. In this manner, Navneet Soni was also a i'nateria! witness to prove the facturn of seaiing the substance alleged to have been seized f"om the appeliant. Non-examination of Navneet Soni thus justifies an adverse inference against the prosecution. 9. Ex.P.l is the Panchnama of the secret information roceived by Asst. Sub-Inspector o.t 9.50 A.h'\. at Police Station Ambikapur and shows the presence of both witnesses Sudama Prasad and Santosh Kumar. It is not ciear .whetner these witnesses were present at the Poiiee Station by chari'ce or we.re ca!!ed to be a witness of the secret infor'iTiation received by Asst. Sub-Inspector B.N.Singh. The fact 1'hat Santosh Kurnar- did not support the prosecution story and also ^. the fact that ino'ependent w'itness Sudama Prasad was not examined '^^ by the pr'osecution aiso justifis^S an adverse inference against the '•ys&c-t. ^ ^ i'(J Tl- The seized substcmce is atleged to have been entrusted to Head Consto.bSe Mdhesh 6upta No.296 on 25.7.2001 by A.S.I. B.N.5in9h. Non-pr'odustion of ths Mafhhaha r@gister a!so creates a serious dent in the prosecution stopy. The msmo of Superintendent of Police dated 27.7.2001 shovvs that the sealed substance was sent through Juhar Sai Nu.543 of Police Station Ambikapur. However, the report of Foi-ensic Science Laboratory Ex.P.20 shows that the sample packet was recelved at F.5.L. Sagar on 30.7.2001. Constable Juhar Sai was aiso not exami'ned by the prosecution would have thrown light as to in who.t conditioi'i the sample was kept during these 4 days by him. The P,a.i'ichnafria of the weighment and seaiing articles Ex.P.10 clearly shows that ths seaied po.cket contained one white-pdper in which there were emp-iy polyt'nene packets and another polythene packet containing 12 grams 800 milligrarns brown sugar. The report of the F.S.L. does not sho'iiv tnat it eontained a white-papsr or three empty plastic bags insic'e the packet. Although A.S.I. Sub-Inspector B.N.Singh has stuted tha't he had affixed the specimen imprsssion of the seal on the Panchiwma Ex.P-9, yet there is absoiutely nothing on record to show +ho.1 o. specimen irnpression of the seal was deposited along with the sealed substance in the Malkhana. Tne report of the F.S.L. also does not show that a.speclmen impression of the seal was sent separatety with the sarnple. The memo of Superintendent of Police Ex.P.19 also doe;s not show that a specimen impresslon of the seal was also sent to ths F.S.L. In view of ths fact that independent witness Sudama Praso.d, iSoids-rnith Navneet Soni, Constable Juhar 5ai, Malkhana /msharrir Head Constabie /Aahesh Gupta were not examined by the W Rt? ^ pr-osecution and also the fact that the seized substance entrusted for safa custoa'y o.t the Malkho.na did not bear the seoil of the Station h'ouse Office" of P.S. Ambikapur-, the substance which was sent for chsfriicai exo.n'iino.tion couta have been tampered with cannot be ruied out. ii. T<[t is u!so to be noticed that in Ek.P.16-A, A.5.1. B.N.Singh P.W.4 was shown to haye been accornpanied •'by l-1ead Constoble No.06, Consto.ble No.123, Constabie No.227, Constable No.603, Constable .So.njay Singh and Constdble No.622. However, none of these witnssses wers exarnined by the prosecution for which there is no e.xplanation. Ti'ieir non-examination becomes important since Sudama Prasad, 'ndependent witness of the seizure, was also not examined by the pr'&secution. A.S.l. B.N.Singh P.W.4 has also admitted in pcragraph 23 thut at the time of effecting the seizure of the brown sugar !ike substance from the appeliant vide Ex.P.6 he had not seaied tii8 artictes. h'e has also admitted in paragraph 24, that he did not separ-ately weighed the quantity' of brown sugar !ike substance !n each piastic bag. il -» Su. The seized articles were produced before the triai Judge who noted the dstails of its contents in paragraph 27 of the testimony of A.5.1. B.N.Singh. It does not find mention that there wcs a white papsr inside the packet. It does not mention that it contained the •wr'apper of the packet containing the seal aileged to have been used by A.5.I. B.N.Singh fpr- sealin9 the samples, as shown in Ex.P.10. Thus, this ul.so creates a serious doubt that the samDles sent for chemica! onuJysis to the F.S.L. could have been tampered with. 13. It is a!so per-tinent to note that the appeilant was chargsd under Section 22 of the ,4ct of 1985 for possessing brown sugar ^whicri is a naccotic drug and the conviction of the appellant by the trial Judge is also under Sectibn 22 of the Act. However. Section 22 of the Act of 1985 deais with punishment for contravention in relation to psychotropic substcirices. Schedu!e - I of the Rules framed under ths Act of 1985 ciear!y shows. that Diacet/lmorphine (Heroin) is a nar'cotic drug and not a psychotropic substance. Therefore, the charge frairied against the appeilant under Section 22 of the Act 'f-h 1985 and the conviction thereunde.ri.was wholly contrcr'y to law. A chai'ge undsr Section 21 of the Act' 1985- ought to have been framed agoinst the appellcnt. 14. Having thus consldered the evidence led by the prosecution in its entirety', the following points emerge:- o 2>- Sudama Prasad, independent witness of seizure was not examined by the prosecution for which there was no explonation. Another independent witness Santosh P.W.l did not support The prosecutlon story. Head Constable AAahesh Gupta No.296 to whom the seized substance was alleged to have been deiivered for safe-custody by .4.5.1. B.N.Singh was clso not sxamined for which no exptanation was given. The Matkhana register was also not produced to prove the condition, date and time on which the somple was entrusted for safe custody and was taken out from the Malkhana. Constable Ju'nar Sai who was entrusted with the sample for- being taken for chemica! analysis to the F.5.L..was also not examined by the prosecution. There is no explanation for the custody of the sample from the time when it was taken out from the Malkhana up to the tirne when it reached the F.S.L. » ^ff f^f^ The specirr.en impression of the seal used by A.5.I. B.N.Singh was also not sant along with the memo of Superintendent of Police to the F.S.L. —3 @ T The propert/ 'produced in the Court also did not show that it contained the wrapper bearing the seal of (A.S.I. B.N.Singh in which the sample was alleged to have been sent to the F.S.L. There is tota! ncui-compliance of Section 55 of the Act sincs the Station House Officer of Police Station Ambikasur Shri Hemant Khare did not affix his seal on the substance allsged to haye been deposited, byi A.S.l. B.N.Singh in the Charge framed against and conviction of the appello.nt under Section 22 of The Act 1985 was contrary to law since Diacetylmorphine (Heroin) is o. narcotic d"ug covered under Section 21 of the Act. 15. In view of the above, conviction of the appeliant under Section-22 of ths Act of 1985 and the sentence avi/arded thereunder by the iearned trial Judge are liable to be set aside. 16. In the result the dppea! is allowed. The conviction of the appellant under Section 22 of the Act and the sentence awarded thereunder by tne learned tria! Judge are set aside. The appellant is acquitted and he shal! be set at liberty for'thwith, if not required in any other' case. Fine, if paid, shall be refunded. -/ Judge