RESPONDENT: HIGH COURT OF CHHATTISGARH. BILASPUR Criminal Appeal No.652 of 2008 Kumari Sudama @. Rani Kewat vereus State of Chhattisgarh Post for pronouncement of judament on •z-'? September, 2008 Sd/- T. P. Sharma Judge ..^j;n.^i. •^ft '%... "^ -^' (Sn Sn Jsi!) Criminal AppeaS No.852 of Kumari Sudama @ Rani Kewat, D/o Shakku Kewat, aged 25 years, R/o Jairam Nagar, P.S. Masturi, Distt. M;Saspur (CG). Versus The State of Chhattisgarh, through the District Magistrate, Bilaspur (CG). (^•^). {Crimina! appeat under Section 374 (2) ofthe Code of Criminal Procedure, 973} Present: Mr. Shailendra Dubey, counsel Mr. Sushil Dubey, Govt. Lawyer for the State/respondent. the appelfant. with Miss Sanaeeta Mishra. P< Sinale Berich: Hon'bte IVIr. T.P. Sharma. J jyDGMENT (Delivered on 2-^, September, 1. By thls appeal, the appellant has challenged legality & propriety of the judgment of convlctjon and order of sentence dated 9 July, 2008 passed by the Special Judge (Narcotics), Bilaspur, in Special Case No.20/: whereby learned Special Judge after hoiding the appeilsnt guilty for commission of offence under Section 20 (b) (ii) (B) of the Marcotic Daigs and Psychotropic Substances Act, 1 985 (t'or short 'the Act'), sentenced Jie:- to undergo R.l. for 2 yeare & pay a fine of Rs.2,000/-, in default of payment of flne fo further undergo R.l. for three months. 2. The judgment is challenged on the ground that without any reliable evidence relatjng to conscious possession of the atieged contraband article ana without complying with the generat proyisions meant to safegusrd the accused, learned trial Court has convicted and sentenced the appellant in the aforesaid manner. !ion, in brief, is that on 14-7-2(X)7 Sadhna Singh (PVV- was posted as Statlon Incharge Masturi, recei 3. Case of the 6), Inspector, who information from the informant that the accused/appellant is in possession of the contraband articte Ganja. After recording the Roznamcha, she called the Vv'itnesses vide Ex.P-9, prepared Panchnama vide Ex.P-10 and sent copy to her superior officer. She has also prepared the Panchnama for not procuring the search warrant vide Ex.P-11. She ieft for the spot along with the fbrce and Panch witnesses. Affer recordina the Roznamcha and after reaching to the spot, she informed the accused about her right to conduc'i seareh by gazetted offlcer of the State vide Ex. P-12. The accused gave her vi.'ritten consent vide Ex.P-13 for search by Inspector Sadhna Singh anfi Sadhna Singh made search in presence of the witnesses. Firstiy, Inspector . Sadhna Singh made search of her own vide Ex.P-14 and thereafter; search the force & witnesses was made vide Exs.P-15 & P-16. Thereafter, the Inspector made search of the house of the accused on which Ganja was found in one packet under the plw/ood In her courtyard. Panchanama of search was prepered vide Ex.P-17 and recovery Panchanama v/as prepared vide Ex.P-18, same was .qot identjfied vide Ex.P-19. VVelahing apparatus of Kishore Rathore has been verified vide Ex. P-4 and the seized article was weighed vide Ex. P-5. The Ganja was found to be of 4 Kgs. 200 gms. Two samples of 25 gms. each were teken and marked as A-1 & A-2 ylde Ex. P-6. Ganja was seized along with two mobile phones vide Ex. P-20 and seai impression was marked. Dehati Naiishi was recorded at 'the spot vide Ex.P-26 and on the basis of Dehati Naiishi, the F.t.R. was lodged vide :x.P-27. The accused w»as arrested vide Ex.P-21. Seizure and arrest was informed to the superior officer vide Ex. P-22. Seized articles were deposited In the Potice Station vide Ex. P-8 and same was recorded in Malkhana register vide Ex.P-7. The samples were sent to the F.S.L. for chemical anaiysis vide Ex. D-1 and the sampies were found to be Ganja vide report Ex. P-25. 4. After recording the statements of witnesses under Section 161 of tne Cr.P.C. and sfter compietion of investigation, charge sheet was filed before the Special Judge (Narcotics), Bitaspur. 5. In ordsr to establish the guilt of the appeitant, the prosecution has examinea as many as six witnesses. Statement of the appeilant vvas recorctea under Section 313 of the Cr.P.C. in which she denied the circumstances appearing aaainst her and pleaded innocence & false imptication. 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Shafeeq, S/o Mohd. Ishaq, sgea 30 years, R/o Belgahna, Poiice Station Kota, Distt. Bi!aspur vide Ex.P-9 and prepared the Panchnama vide Ex.P-10. She sent copy of' the same to the superior officer. She has also recorded the Panchnama for not procurina the warrant vide Ex.P-11. in her detailed evidence she has stated that she went asong with Panch witnesses & police force to the house of the appeltant, the appelSant was present in her house, she was Informed about her right to search by the gazetted officer or Magistrate, the appellant has consented fc'r search by her (PW-6), then she made the search on which one piastlc packet containing Ganja was found in the courtyard under a plywood, same was recovered and weighed. Samples were also taken out and seized. She has proved She documents from Exs.P-9 to P-27. lO.Mohd. Shafeeq (PW-5) has stated in hls evidence that he went aiong with his sister-in-law Razia to search hls misslng wife. They reachsd Police Station Masturi and after lodging the F.1.R. he went to Jairam Nag.ar, there he saw crowd near the house of the appellant and he came to knovi? that the appellant is keeping Ganja In huge quantity, the accused was shouting. Her house was searched. 36 Kgs. of Ganja was found from the house of Sudama and 4 Kgs. 200 gms. of Ganja was found from the house ot" tne present appetlant. The documents were prepared. 11.Va!mik Sinah (RA/-3) has stated in his evidence that he received the artictes and entered the same in Malkhana register vide Ex.P-7. On 17-7-2007 he sent one packet of sample through Constable Sukhdev to the F.S.I-. Sukhdev Dahariya (PW-4) has stated that he deposited one packet of sample to F.S.L. vtde Ex.P-9. In his cross-examination, he has admitted that the memo Ex.D-1 was prepared by the Superintendent of Police. He has not deposited the sample in the F.S.L. on the same day, he deposited it in the Poiice Statlon, where the Roznamcha was recorded and agatn took the property from the Police Station and deposited the same in the F.S.L. According So the report of F.S.L., Raipur, one article in sealed packet was received bv the F.S.L. seal was tallied with the seal impression and found correct. l2.Defence has argued that separate seal impression was not prepared by Sadhna Singh (PW-6). Valmik Singh (PW-3) & Sukhdev Dahariya (PW-4) have stated that one packet was given to Sukhdev, he deposited one packet the F.S.L., if oniy one packet was deposited by the prosecution betore the F.S.L. Raipur, then on what basis they have tallied the seat impression of the pacRet. The Investigating Officei- has not stated anything relating to preparing the sea! impression separately. The Act is a speclal act which provides severe punishment for possesston and use of contraband articles; but at the same tlme, the Legislation has enacted some provisions to safeguard the accused from false & frivolous accusation. The prosecution is required to compty with the provisions of the Act. Sadhna Singh (RA/-6) has stated that she has recorded Roznamcha Sanha Nos.696, 698, 69° & 700, but the prosecution has not filed copies of the said Roznamcha Sanhes and it has atso not deposited the said articies in the Court. The prosecution was required to seat the article in accordance with Section 55 of the Act an keep it in safe custody of the Police. 13.1n this case, the impugned judgment has been chaltenaed by the appetlsnt mainly on the ground of non-production of property before the Court durinL3 trial which was made in the absence of documents and evldence regardjng possession of the house where the aforesaid contraband article was found. Non-preparation of separate seal impression on the sample shows tamperlng of the sample of the contraband article. Possession of sample for two days after taking the same by Sukhdev Dahariya (PW-4), recording of different Roznamchas at the stage of different proceedlngs and non-filing of the Roznamchas is fatat to the prosecution case. instant case, vide report Ex.P-25, the F.S.L. has examl sample and before examining the same, they have taHied/compared She seai of sample wifh the seal impression, but the prosecution has not fi!ed any document relating to seal impression. The property was not producec! durina the course of triat before the Court for execution by due procsss. No document relating to possession of the alleged house finds pjace in the record of the prosecution. The witnesses have stated regarding recordlng of different Roznamchas. but no Roznamcha was produced before the triat Court at the time of inquiry. But it appears that these vi/itnesses ars availabie and the evidence has not been adduced in proper way. 15.1n this case, the accused/appellant has attacked legality and propriety of'the findinas reeorded bv the trial Court mainly on the basis of absence or sest 6 impression, non-production of property before the C-ourt and non-production of Roznamcha said to be recorded at different times. IS.This is a case of possession of contrabandarticle weighing about 4 Kgs. 200 gms. punishable under the special Act (NDPS Act). Certain guidelines have been provided by the legislature to save the accused from false and frivolous iitigation and to ensure that the real culprit shouid not escape from accusation on the ground of infirmity in the evidence. 17.The statutory control over nar"ottc drugs was exercised in India through a number of Central and State enactments. The principal Centra! Acts, nameiy, the Opium Act, 1857, the Opium Act, 1878 and the Dangerous Drugs Act, 1930 were enacted a tong time ago. However, with the passage of time and the developments in the field of iilicit drug traffte and drug abuse at nationai and intemational leveJ, manv deficiencies in the existing laws have come to notice and the present iaw is a result of various international treaties, protocols and conventions on the narcotic drugs. Prior to thls enactment when the country was increasingly facing the problem of transit traffic of drugs, the iaws were not sufficient to meet the challenge of well organized gangs ofsmuggiers. IS.This case is based on conscious possession ofthe contraband article from the house of the accused/appellant. The contraband article has been chemically analyzed by the Forensic Sclence Laboratory, Raipur vide Ex.P- 25. Seal of the samples were taliied with the seal impression. Witnesses have stated about recordina of Roznamcha but copies of the Roznamcha have not been produced. The prosecution has not filed any document relating to taking ofseal impression and sending the same for being taitied. 19.Now-a-days, the Courts have become active in trial of the cases and the Courts are not sitting as simpte spectators. In this case, the triat Court has not recorded its finding on the aforesaid points. There is infirmity in the judgment of the trial Court on the aforesaid points. ZO.Consequently, the finding of convlction & sentence recorded by the trial Court are not sustainabie. The appeal is allowed and finding regarding conviction & sentences is set aside. The case Is remanded back to the trial Court for providlng opportunlties to the parties to adduce evidence on the aforesald points and after providing opportunities to the parties, the trial Court shalt pass judgment afresh. ——'—;" Sd/- T. P. Sharma 1 J"dge ^^-Li^