r INI||ll"IIHIIHIIHIHIHIHI"? 0000061 730 m THE HIGH OOmT OF JUDICATXRE‘M3. @L‘QE‘NAL WPEE O A N . JALU: ABER \7\ OF 1 z H 997 1 ” a Q1 - * GOPAL: DFS, S é “f an of Shri M.Ds, Aged about 41 years, R/o shanti Nagar. BhllaJ.—3 istrict DIRG (M.P’.) -VERS $U— & RESPOISDENT *’ *‘ * THE $TATE OF MADHYA ?RAD3. LLMT ‘3 * ’5“ PPPE ¢ ¢" g Qi‘IMINiga WPEAD UNDER SECI‘Im 374s2g OE‘ THE CODE OF CRIMINAE PROCEDURE k , D S E E/ HIGH COURT OF CHHATTISGARH : BILASPUR Criminal Aggeal No. 1714 OF 1997 Gopal Das Vs. he State of Madhya Pradesh (110W State of Chhattisgarh JUDGMENT T ks The State of Madhya Pradesh (now State of Chhathsgarh) Appellant by Shn R M Pandcy, Advocate s‘fa‘te by Shn Saush Gupta, Dy. A.G. t 1’ x ‘ \ l 1 2. V 997 delivexed in sessions case No * an SE IB g a J U D G M E N ‘l (Dehvered on 25 10 2005) The followmg oral Judgment of the Court dchvered by Dilip Raosnheb Deshmukh J \ Argumenis heard. y‘V_« KShnvastava, the then Sessmns Judge, Durg whereby the appellant was conv1cted under Section 2O ‘hf the Namohc Drugs and Psychotropic Substance Act (heminaiter referred to as ‘the Act3 and sentenced to impnsonment already undergone by the appellant dunng tnal and hne of Rs5 000/ and m default to undergo additional ngomus lmpnsonment for 10 months 3' l This appeal is directed against the judgment dated 24th July 268/ 1994 by 31m Bnef facts are that on 16 07 1994 Sub-Inspector B L 'I‘1wan‘ W 2 upon recelvmg mformatlon that the accused appellant was 1n possess1on of garya sought telephonic permnsion hem C S P N‘agar, R SSmgh Bhilai PW4 3 He for found malung that enquny the appellant and had proceeded 1n 111s possess1on to Shantl oiie plastic bag 1n which Shn 'l‘1wan had susplcxon that the contraband article ganja was kept After givmg nonce ExP4 under Section 50 of the Act and after glvmg the accused-appellant opportunity of searching him as well as Witnesses, Shn B L P W 2 searched the bag 1n possessmn of the appellant at 3.40 P M and seized 6 kg and 600 grams ofgaryawde Ex P 3 A mple of about 200 grams garya was separated and sealed and mammg ganja was also sealed FIR ExP2 was loded at HIGH COURT OF CHHATTISGARH AT BILASPUR Criminal ggal No. 1714 OF 1997 Gopal Das ‘ 'Police Station Bhilai Nagar by Sub-Inspector B.L.'I‘iwari. The sample of oontrabéhd ganja was sent for chemical analysis to the Fomnsic Science Labomtory‘, Raipur which conm'med vide mport EX.P.6 that the sample contained ganja. Prosecution under Section 20 (b) (i) of the Act was launched against the accused appellant. 4. The accused-appellant abjured his guilt, pleaded innocence d false implication and examined one Naxottamlal Som' D W 1 in defense The tnal Judge telymg upon the emdence of Sub— Inspector B L Tlwan P W 2 and the Ieport of the Forens1c Solence Labdxatmy, conwcted the accused-appellant under Section 20 of I the i Act and imftosed sentence as aforesaid. 5. Learned counsel for the appellant has argued that there is no legal and reliable evidence on record to prove the guilt of the appellant under Secnon 20 (b) (1) of the Act He also contended that smce m his ev1dence Sub lnspector B L Tlwan had mentioned that he had seized ganja after seamhmg the house of the appellant there was complete non-compllance of the prov1so to S’ecnon 42 (1) of the Act which mandatomly lays down that the ’ information derived hum any person leading to the belief that the accused had any Narcotic Drug in his possession should be induced to writing. He further contended that there was no évidence to show that the appellant was in conscious possession of t the ganja alleged to have been seized by Sub—inspector B L Tiwari p. On the other hand learned counsel for the State has argued i I’ V. in support of the impugied Judgment i I have heanl uval contentions and have also perused the R record It 1s pertinent to note that the prosecution case 1s that B LTlwan PW 2 searched the plasnc bag on the person of the appellant and not thatEe house of the appellant was searched Independent Witness Kailash Smgh PW3 did not support the prosecution story. Another independent Witness Saush Bansor was not examined by the prosecution. The test'mony of Sub- ‘nspector B.L.Tiwari is rendered. wholly umeliahle due .to the complete somersault taken by him in patagaph—17 of the cross- examination by stating that he had entered the house of the appellant and searched one of the rooms where the contraban t? 1 d garq'a was kept in a plastic-bag. This is a complett departure &om the prosecution casé. In cross-examination paragraph 13 B. L. 'I‘lwan has stated that he entered the house of the ’appellant hem the side of the courtyard and them was a room on the left side of the coultyaxd. It is not clear hom his testimony if the room was locked or not and who lived in that room. He has also expressed ignorance about the other memhers of the family of the appellant living in the same house, which does not inspixe conddenoe. It «t f \ leads to an inference that the prosecution has failed to establish that the ganja was seized h‘om the conscious possession of the apbellant. - 8. Even if implicit reliance was to be placed on the testimony of Suh-Inspector B.L.Tiwari in parag‘aph-13, there is a clear cut l I violation of Sub-Section (1) of Sech'on 42 wherennder before entering in a building or place for ah‘ecting his search upon prior information of connaband gary'a being kept therein the o$cer concerned has to record information so received in writing that contraband article was stored in the premises. Section 42 (2) of intimation th Act lays in Writing down under that where sub-section an oEcer; (1) or records takes grounds down any’/ for his belief under the proviso thereto, he shall Within seventy-two honrs send a copy thereof to his immediate omcial superior. 9. i In the case of State of Punyab v. Balbir Sinqh reported in [1994) 3 80C 299, the Apex Court held that: “Under Sec1ion 42 (1), the empowered oEcer if has a prior information given by any person, that should necessarily be taken down in writing. But if he has reason to believe hem personal lmowledge that odences _under Chapter IV have been committed or materials which may furnish evidence of commission of such oh‘ences are concealed in any building etc.;he:may carry out the arrest or search without a warrant between sunrise and sunset and this provision does not mandate that he should record his reasons of belief.” g p “Under Section 42 (2), such empowered omcer ' who takes down any infbnnation in Writing or‘ records the grounds under proviso to Section 42 (1) should forthwith send a copy thereof to his immediate o$cial superior. If there is total non- compliance of this provision, the same ad'ects the prosecuiion case. To that extent it is mandato ."’ 1% a K; . I ~ V5 . i I‘. s 10.; Reliance was placed in the case of .State of West Bengal v. Babu chakmbony, mported in 2004 cruJ. 4858 which amm's the view taken in Balbir Singh (supra). Inihis‘ case; Sub-Inspector B.L. Tiwali has, clearly stated that upon receiving information he > had proceeded to aEect the seamh. Therefore, it was incumbent upo Shn' B.L.Tiwari to mcord 1'1'1 writing the substance of such informah'on given by any person. Them is not even an iota of evidence to show that before ah‘ecting the seamh Sub-Inspector B L (I‘lwan had recorded the information received by him and had alsd wrmed the supenor authonty 1n wntmg under Sectlon 42(2) The complete departure nom the prosecution case regardmg the place nom Wh1ch the garya was seized renders the tesnmony of B.L.lTiwari wholly unreliable. As mentioned earlier it is doubn'ul that} the ganja was seized nom the conscious possession of the appellant. Conviction of the appellant under Section 20 (b) (i) of the Act can not therefore be sustained. 11. 5 In the result, the appeal is allowed. Conviction of the appellant under Section 20 (b) (i) of the Act and sentence imposed thereunder are set aside. The appellant is acquitted of the charge under Secu'on 20 (b) (i) of the Act. Fine paid if any, shall be efunded to the appellant. W i f Dlhp Raosaheb Deshmukh ‘ ‘5 a ,Jurdgen n , f , r