APPELLANT HIGH COURT OF CHHATTISGARH AT BILASPUR FSB: Hon'ble MrT.P.Sharma.J.1 CRIMINAL APPEAL No. 711 of 2008 Hanuman Charan Tiwari sg VERSUS RESPONDENT State of Chhatisgarh. ^^ Post for pronouncement of judament on 2J-9-2008 Sd/- T.P. Sharma Judge -y 's .OHIGH COURT OF CHHATTISGARHAT BILASPUR rSB: Hon'ble Mr.T.P.Sharma.JLl Criminal Appeal No. 711 of 2008 APPELLANT VERSUS RESPONDENT Hanuman Charan Tiwari sonof Shri RaiT. Ratan TKvars, agsd about 24 years, resident of Amadand, P.S. Rajnagar, Tahsil Kotma, Distrtef Anup Pur (M.P.) Stete of Chhatysgarh through the District Magistrate, BiSaspur (CG) Shri Shaitendra Dubey counsel for the appe!lant. Shri Sushii Dubsy G.A. for the respondsnfState. CRIMINAL APPEAL UNDER SECTION 374(21 OF TME CODE OF CRSMINAL PROCEDURE JUDGMENT (ZS.9.200S) This appea! is directed against the judament of convSction and order of sentence dated 9.7.2008 passed by the Special Judge, (NDPS) Bilaspur, in Sessions Case No. 19/2007 convicting the accused/appellant for the offence punishable under section 20 (B)(2)C) of the Nareotic Drugs and Psychotropic Substances Act (for short the "AcH and sentencing him to undergo rigorous imprisonment for ten yeare and pay fine of Rs. 1,00,000.00 in defeult of payment of fine to further underoo rigorous tmpftsonment for one year. 2. The judgment of the trsal Court is challenged on the ground that wsthout there being any evidence regardlng the contraband being in conscious possession ofthe accused/appellant and overiooking the factthat the prosecution has not complied the mandatory provisions of the Act, learned Specia! Judge has committed and illegality in convicting and sentencing the accused/appellant as mentioned above .•rsl^^ •r' ^i ^. ^/ '^^^^ '^ ^' 3. Case of the prosecution in brief is that Smt Sadhna Singh, Station House Officer, Masturi (PW-7) received a secrete information thattenant d? Ku. Sudama Rani Kaewat resident of Ward No. 9, Jairam Nagar, was In possession of contraband Ganja for sale. She recorded the information in the Rojnamcha Ex. P-20 and sent one constable for calting thewifrsesses. In presence of witnesses Rajsa and Mohd. Safs she prepared the information Panchnama Ex. P-1 and copyofthesamewassenttosuperiorofRcer-She also prepared the Panchnama Ex. P-2 for not preparing the search warrant copy of which was sent to the superior ofRcer She atong with police peopte went to the spot and gave notice Ex P-3 to the accused/appetlant informing him aboutthe tegal right ofsearch before any Gazetted OfRcer or Magisfrate upon which he consented for search by her. Consent Panchnama is Ex. P-4 Witness Sudama Rani searched hervide Ex. P-5 Other police peopte w^e searched by the accused/appeliant vide Ex P-6. Witness Rajia was searched by Sudama Rani vide Ex- P-7. Thereafter; Panchnama regarding search of the house of the accused/appellant was prepared vide Ex. P-8. During search of the house, three plastic bags containing greenish-brownish cotour leaves with seeds were found from under the cot of the accused/appellant. Seizure Panchnama Ex. P-9 was prepared Contraband was identified vide Ex. P-10, weighing instrumente were verified vide Ex.P- 11 and the contraband was weighed vide Ex. P-12 whteh on weighment came out to be 15.5 Kg. 14 Kg. and 550 Kg. (total 35 Kg) contained in three separate bags. Two samptes of 25 grams @ach were taken vide Ex. P- 13. Weighing instruments such as balance and welght as weli a$ th@ contraband were seized vide Ex. P-14 Information of the seizure of contraband and arrest of the accused/appellant was given to the superior officervide Ex. P-15. Accused/appellantwas arrested on 14.7.2007 vjde Ex. P-17. Smt. Sadhana Singh (PW-7) came back to the pollce station and handed over the seized contraband to consteble Batmik Singh (RW-5) for 3 c?^1 '"S ^ ^' -.7' being kept in Maalkhana. On the same day Inspector Sadhna Singh received the information that the land lady Sudama Rani was ateo in possession of the contraband. She recorded the infonnation in the Rojnamcha Ex. P-20 and called the witnesses from ttie locality. She sent the information to the superior officer vide Ex. P-22. Memo for non preparation of the search warrant was recorded in Rojnamcha vide Ex P-23. Before leaving for the spot she recorded Rojnamcha Ex. P-24. Intimation of arrest wasqiven to the relatlves of the accused vide Ex. P-26. Detaits of proceedings wwe recorded in Rojnamcha Ex P-26. Dehati Nalisi Ex P-27 was prepared FIR Ex. P-28 was reglstered. Intimation of arrest was given to the superior police officer vide Ex- P-30. Samptes of the contraband were sent to the Forensic Sclence Laboratorv for examinationvide Ex. P-32 which was received vide Ex. P-16. On examination the contents of thesamptes were found to be Ganja vide report Ex. P-33. Spot map Ex P-35 was prepared. 4. After recordina the statements of the witnesses under section 161 of the Code of Criminal Procedure and completion of the mvestigation, the charge sheet was filed in the Court of Speciat Judge, where the trial proceeded. 5. In order to prove the guilt of the accused the prosecution has examined as many as seven witnesses. Statement of the accused/appellant was recorded under section 313 of the Code of Crimina! Procedure Jn which he denied the material appearing against him in the prosecution case and pleaded his innocence and false implication in the case- 6. After affording opportunity of hearing to the parties, the trial Court has convicted and sentenced the accused/appellant as mentioned above V" 3 7- Heard counsel for the parties and perused the material available on record indudina the iudament impuaned. 8. It is argued on behalf of the accused/appellant that the prosecution has utterly failed to prove the fact that the accused/appellant was the tenant of Sudama Rani and the alleged contraband was founding his consdous possession. Evidence adduced by the prosecution is contradictory. The prosecution has not complied with the mandatory provisions meant to safeguard the interest of the accused from being dragged into the frivolous accusation. He argued that the offence is punishabte under the special Act in which severe punishment is provided. !t is argued that the prosecution has not called the witnesses from the localitv and the statements of Ramjilat Ratghore (PW-2) and M.L. Dahariya (PW-3) ars self contradietory- Property seized was not Droperiv seated nor was it kept in the Malkhana, no seal impression was taken after the seizure by the Police Officer, which is in violation of the provisions of section 55 ofthe Act. 9. On the other hand the judgment impugned is supported by the counsel for the respondent/State and it is argued that the prosecution has proved its case beyond any shadow of doubt and the accused/appellant was found in conscious possession of the contraband while staying as tenant in the house ofSudama Rani. 10. Smt.Sadhna Singh, Police Inspector (PW-7) has stated in her evidence that after receiving secrete information regarding the factthat the accused/applicant was keeping confraband Ganja in his room, she prepared the information Panchnama on the spot and issued notice to him under Section 50 of the Act vide Ex. P~3 on which he consented for search by her by consent memo Ex P-4 Police people were searched by the accused/appeltant vide Ex. P-6. On search by the accused/appellant constabte Arun Mishra was having one sealed plastic bag which was eariier seized from Sudama. However, nothing was found in possession of the rest of the police people. Thereafter, during the search of the house, three plastic bags containing greenish-brownish colour leaves with seeds emitting Ganja like odour, were seized from the room of the accused/appeilant kept under the cot. Samples of 25 grams were taken from all the three bags vide Ex. P-13. After coming back to police station FIR Ex. P-28 was registered and accused/appellant wastaken into custody- 11. In this case, the accused/appellant has attacked the tegalrty and propriety of the findings recorded by the trial Court mainly on the basis of absence of seal imDression, evidence of tenancv of the accused in the house of Sudama Rani, non production of property before the Court, non production of Rojnamcha said to be recorded at different times- 12. This is a case of possessson of contraband artictes weighing about 35 Kg. (huge quantity) punishabte under the special Act (NDPS Act). Certain guideljnes have been provided by the legislature to save the accused from false and frivolous litiaation and to ensure that the real culorit should not escape from accusation on the ground of infirmity in the evidence. 13 The statutory control ov@r narcotic drugs was exercised in India through a number of Central and State enactments. The princjpal Central Acts, namely, the Opium Act 1857, the Opium Act; 1878 and the Dangerous Drugs Act, 1930wereenacted a long time ago. However, with the passage of time and the developments in the fseld of illicit drug traffic and drug abuse at national and international level, many deficiencies in the existing laws have come to notice andthe present law is a result of v/arious intemational treaties, protocols and conventions on the narcotic drugs. Prior to this enactment when the country was jncreasingly facing the problem of transit trafflc of drugs, the laws were not suffident to meet the challenge of we!l organized gangs of smugglers. 14. This case is based on conscious possession of the articles with the accused/appetlantwho was residing as tenant in the house of Sudama Rani at Jairam Nagar; Ward No. 9 which is reflected from Ex. P-4 The contraband articte has been chemiGally examined by the Forensic Science Laboratory, Raipur vide Ex. P-33. Seal of samples were tallied wrth the seal impression. Witnesses have stated about recording of Rojnamcha but copies ofthe Rojnamcha have not been produced. Prosecution has not filed any document relating to taking of seal impression and sending the same for being tallied. 15. Sukhdev Dahariya (RA/-3) is the constebte He has not explained the possession of sample for two days tt was the duty of the prosecution to produce the properiy in the Court during trial and same should be exhibited by the witnesses. Courts are under obligation to ensure the fair and impartial trial and are not expected to sit as a silent spectator. In this case the trial Court has not recorded its finding on the aforesaid points. There is infirmity in the judgment of the trial Court on the aforesaJd points. 16 Consequently, the fsndings of conviction and sentence recorded by the trial court are not sustainable The appeal is allowed. The judgment impuaned is s@t aside The case is remanded back to the trial court for providing opportunities to the parties to adduce evidence on the aforesaid points and after providing opportunities to the parties, the trial Court shali pass judgment afresh. Sd/- T.P. Sharma Judge