. SB: Hon’R ble Shri Justice R.L. Jhanwar chironji Lal Vu erss The Stat of Mad _ CG.) ‘ hya Pradesh (Now tM S 1 Sdl— ’ o R.L.Jhanwar s Judge ' / J Z) . 1m09 '1?) Cr. A23. No. 1114i 1991 a AIPPELLANT ‘ e RESPONDENT JUDGMENT Eost for pronouncement of Judgmei N 23 &M’” \ HIGH COURT OF. CHHATTISGARH AT BILASPUR Cr. Agy. No.1114[ 1991 a \ SB: Hon’ble Shri Justice R.L. Jhanwar APPELLANT Chironji Lal son of Ramlal, aged 46 years resident of Amadand, P.S. Chirimiri, district Sarguja, (Ambikapur) M.P. Versus V RESPONDENT State of Madhya Pradesh (Now CG) Agpearance: Shri Sarfaraz Khan, Advocate appears as Amicus Curie for Shri Arvind Shukla, Panel Lawyer for the State. the appellant. J U D G M E N T (Delivered ongg‘l 1.2009) This Criminal Appeal is. directed against the judgment of conviction and order of sentence dated 02.12.1991, delivered in Sessions Trial No.197/1991 whereby the learned Additional Sessions Judge, Manendragarh, District Surguja convicted the appellant under Section 20 (A) (1) of the Narcotic Drugs and ‘Act’) and sentenced him to undergo RI. for 1 year and to pay a fine $ for 6 months. (Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the of Rs.IOOO/—, in default of payment of fine to further undergo R.I. 2. Brief facts of the prosecution case are that after receiving information on 17.1.1991 that the accused/appellant had cultivated plants of Ganja in his Badi, Excise Sub—Inspector, Matin a Ahmed Quereshi, reached the village Amadand to the house of accused/appellant — LC‘hironjilal and after effecting search, seized 64 plants of Ganja by uprooting them in front of Witnesses— Q g Munnaram and Daduram, which he cultivated in his Badi. Seizure jmemo Ex. P/1 was prepared and after completion of E necessary ‘ legal proceedings, investigation took place. 3. After completion of the usual investigation, charge sheet was Etiled before the Judicial Magistrate First Class, Mandendragarh, iwho in turn, committed the case to the Sessions Judge. The learned Sessions Judge, Manendragarh made over the case to th Additional Sessions Judge Manendragarh, who framed charge ;against the accused/appellant under Section 20 (A) (1) of-the N.D.P.S. Act and read over and explained it to him, who abjured the guilt and stated that he is innocent and has been falsely implicated in‘ the case. 4. The learned Additional Sessions Judge Manendragarh, after appreciation of the evidence and hearing the counsel for respective parties convicted and sentenced the accused/appellant as above. 5:. I have heard learned counsel for the parties at length and ‘ have also perused the record of the Sessions Case. 6. After perusal of the record, it is clear that in this case Excise Sub—Inspector— Matin Ahmed Quereshi (PW—3) had examined all the Ganja plants and found it to be Ganja. He stated that he had taken training of examining narcotic drugs and was having experience of examining Ganja. He also stated¢that he got training certificate for it. But, he had not produced afny certificate to this effect. It is evident from his statement that he had also not informed the accused about his legal rights to be searched by the nearest Magistrate or Gazetted Officer. Prosecution has not sent theiiGanja plants for their chemical examination. Moreover, the Excise Sub-Inspector had not reduced the same in writing and also had not sent it to his superior officers and thus statutory e though it is mandatory. 7. It is also evident from the statements of Munna (PWal) and Daduram (PW—2) that they had not seen the Gana plantsand were not seized in front of them. They only admitted that ty signd g he e seizure mem EX.P/ 1. Ganja Was not sen to the F.S. L. for its hemical examination and nly Matin Amed Quereshi (PW-), xcise Sub—Inspector had tested it. He stated that he has taen raining of examining narcotic drugs and was having exp ce of exaining Ganja. Hoever, he had ot produce any rtificate to m w n d ce that effect. He also did not apply any chemical tt. The vidence as to he himself examined the Ganja is not re refore, his liable and prosecution has failed to prove that the seized article was Ganja. He had also not proved that t house frm whe te Ganja plants have been seized by him, s in exclusive possession of the he o er h pellnt. He has also not sent the report after com iestigation and chic tst to his superior officers t o Section 57 of the Act reads as under : 57.Report of arrest and seizure.- Wheneyer any person makes any arrest or seizure under this Act, he slmll, within forty- eight hours next after such arrest or seizure, make a full report of ,all the particulars of such arrest or seizure to his immediate official pletion of within 48 hours. Thus, provision of Section 57 of he Act has als been io vlated. superior. 9. A perusal of Section 57 of the Act would show that a duty has been cast upon Matin Ahmed Quereshi (PW—3) to make full report sof arrest and seizure to his immediate superior within 48 hours. ‘ j J o t c o h 3 E k t er1 n es e wa apa nv emal e However, there is nothing on record to establish that the 1 compliance of above provisions was made by him. Although this ‘ provision is not mandatory in nature, but having considered all the l facts present in this case, non-compliance of the above provision, l casts doubt on the prosecution version. i 10. Considering the facts and circumstances of the case, I am of the View that mandatory provisions of Sections 42 (1) 85 (2), and j Section 57 of the Act have been violated even the seizure material has not been tested by’chemical process and 1t was also not proved that the house was 1n exclus1ve possessmn of the appellant therefore, the conv1ct10n of the appellant under Section 2O (A) ( ) of thaAct cannot be sustained. B 11. Having considered the facts and circumstances, I am of the View that the trial Court has erred in believing the statements of Matin Ahmed Quereshi (PW-3) Excise Sub Inspector, hostile witnesses Munna (PW—l) and Daduram (PW-2). It has also erred in appreciating the evidence that the ganja plants, which were seized from the Badi, was in his exclusiveipossession of the appellant, as no proof has been produced in this regard. 12. In the result, the appeal is allowed. The judgment of conviction and order of sentence passed by the trial Court are set laside. The appellant is acquitted of the charge under Section 20'( ) (1) of the N D P S Act He shall be set at liberty forthw1th 1f not required 1n any other case Sd/- ‘ 7., R.L. Jhanwar ; i Judge / f” >’?'.\