@ IN THE KIGH coanr OF CHHAITISGARK w BIIASPUR. CR.A. N0. L7 ^5 / 200 AFFELLMTT (IN JAII-) //?4- h^. '. ... ^^s .c^ ^ ~^' y^^ S* c^ ,<^';<.A'"'/ °' . ;/'" ^'?^^' •° RESPONDENT ':/f^/ VA J yt/ ^rv^ .; .',.-' / ^ 6 .:fff^J .•'-^ •• .,^/ SuKhchand ©Sudru das aged about^35 years, R/o. Vill.ji Borepadar, p.3. Jagdalpur, Distt. Bastar. VERSUS State of chhattiscfsrh, Through! Distt. Magistrste Jagdalpur, Distt. aastar. CRIM.INMi ApPEAL UNDER SECTION 374(2) OF TKE CRIMINAL PROCEDUR3 CODE. HIGH COVRT OF CHHATTISOARH AT BILASPUR Cr. Appeal No.925/2002 Sin^e Beach: Hon'ble Shri DiUp Raosaheb Deshmnkh, J. Sukbchand @ Sudrudas Vs. State of Chhatdsgarh PRBSENT: - Shri PrafuU Bharat, counsel for fhe accused-appeUaat. Shri Uniakant Singh Chandel, Paael Lawyer for the State. JUDOMENT ~L- " (DeUvered on5o-01-2006) This appeal is directed against the judgment dated 29-07-2002 deUvered by Shri R. S. Shanna, Special Judge, N.D.P.S. Act Bastar at Jagdalpur in Special Case No. 16/2002 whereby the appeUant was convicted under Section-20(b)(u)(C) Narcotics Drugs & aad Psychotropic Substances Act (hereiuafter referred to as the "Acf) and sentenced to rigorous iniprisoninent for 10 years aud fine ofRs. 1 lakh, 2. Briefly stated the prosecution stoiy is that oa 06-05-2002. Town Inspector, PoUce Kotwali, Jagdalpur Shri M.K.Shanna received secret infoniiation that a person was iUegaUy tTaasporting iUicit ganja ia Borpadar. After recordiag the aforesaid iaformation Vide Ex.P-3 and mforuung the C.S.P., Jagdalpur vide Ex.P-23 and also recording the said information ia Roznmnchasariha No. 285 Ex. P-22. Shri M.K.Sharma, Town laspector (P.W.4) accompanied by C.S.P. Shri D.R.Aachla (P.W.3) and witnesses Mukcsh PW-5 & Umesh reached Borpadar aad fouad the accused-appeUaut coming on a cycle, canying two -bags thereon, The accused-appeUant was iaterrogated. Notice under Section-50 of the Act, Ex. P.4 was given and consent of fhe tWS accused-appellaut was recorded vide Ex. P-6. Personal search of the raldiug party was also given to the accused-appeUant. Thereafter Town Inspector Shri M.K. Sharma searehed the two bags carried by fhe accused-appellant on his cycle. It was found fhat the bags contaiaed Ganja Uke substaace aad Panclwnama Ex. P-5 was prepared. Bofh the bags were weighed vide weighiaent Panchanama Ex.P. 10 and it was fouad that the two bags contaiaed ganja Uke substance II K.G, and.IO K.G. respectively. Thereafter, four samples of25 Graias each were lifted from. fhe bags and sealed. The remainiag ganja was also sealed. Sample Panchanafna Ex. P-11 & Sajnpte seal Panchanama Ex.P-12 were also prepared, The accused-appeUant was arrested vide Ex.P-15. Seized gccnja and sample were handed over to fh.e Assistant Sub Inspector Rajendra Kumar Sinha PW-2 of poUce station Kotwali, J^dalpUT for safe custody who kept the artictes iu MaUsfaaua, after makiiig au entey in fh.e Malkhana Register No.46. 3. F.I.R. was registered vide Ex.P-16 aad iutunation ofthe an1est of the accused-appeBaut was sent to Superintendent of Police, Jagdalpur. On 17.5.2002 the sauiples were sent along with ineino Ex.P-17 ofthe S.P., Jagdalpur to the Forensic Science Laboratory, Raipur through Constable Budhraia Mourya. It was received ia fhe Foieiisic Science Laboratoiy, Raipur on 21-05-2002. Vide Report dated 21-05-2002 Ex. P-19, Forensic Science Laboratoiy, Raipur opiaed that boffa the samples A-l & B-l contaiaed gaaja. After conxpletion of iavestigation, fhe accused-appeUant was prosecuted for tlie offences punishable under Section-20(b)(ii)(C) of the Act. The accused-appeUaat abjured tbe guilt, pleaded uinocence and falsc impUcation an.d led no evidence in defcnce. The prosecution examiaed as inany as 6 witaesses. Relyiag upon fhe evidence led by the prosecution, fhe trial Court convicted and sentenced fh& aecused-appeUant as aforesaid iu para-1 (Supra). 4. Shri Prafalla Bharat, leanied counsel for fhe appeUant has assaUed the conviction of the appella&t onty on the ground fhat there has been total non-coinpUaace of Section-52(3) & Section-55 ofthe Act by ^own Inspector SIu-i M.K.Sharma P.W. 4 aad fhe Of&cer-ia-cheffge pf ftie Police Station-KotwaU, Jagdalpur. There is nothiag on record to (§9 show fhat the ganja contnmed ia the bags as weU as fhe saraples taken were sealed and Panchnama of specimen unpression of fhe seal was prepared. It was not shown fhat such specinien impression of the seal was sent to the Forensic Science Laboratorv. There is also nofhing to iadicate fhat fhe Officer-ia-charge of the PoUce Station while icceivuig fh.e seized article had ensured coinpUance of Section-55 of fhe Act. Constable Budhraoi Mourya who was entrusted wifh the articles seized, was not examuied. The sainples were sent to Forensic Science Laboratory, Raipur on 17-05-2002 but were received after considerable delay on 21-05-2002 for which there was no explanation. Therefore, siuce the articles aUeged to have been seized from. fhe appeUaat were not sealed ia accordance with law, the possibflily fhat the sainple sent to fhe F.S.L. had been tam.pered wifh caruiot be ruled out and fhe accused-appeUant was entifled to be acquitted. Leamed counsel for the appellaat placed reUance on Sfate of Rajsthan Vs. Daulat Ram A.I.R.-1980 Page 1314, Gurbax Sirwh Vs. Siate of Hanjana_&..I.fL-2001-Page 1002, Mohd. Jaha.ruiir Pathan Vs. State of Gu£n(_reported in Cr.L.J.-1995-Page 671, Rmesh Vs. State reported in Criines-XII-1989(3) and Amar Bahadur Khadak Bahadur Vs. State of Madhya Pradesh reported m 1999(1) M.P.L.J. 67. On the other hand, Shri U.K.S. Chaudel, leamed Panel Lawyer for the State has argued ia support of the impugned judgment. 5. Having heard rival contentions, I have perused the record ofSpl. case No. 16/2002, Umesh, an independent witness of seizure, was not exaiuined by fhe prosecution aad Mukesh Chand P.W.5 did not support the prosecution story iu his examiuation-ia-chief and stated that the ganja was shown to him in the poUce station but on beiog cross-examined took a soinersault. His testiraonv camiot therefoie be reUed on, D.S.P. D.R. Achala P.W.3 nowhere stated that fhe ganja seized frora fhe appeUant was sealed afler affecting its seizure. Town Inspector M.K.Shanna P.W.4 has ia paragraph 3 stated fhat only two samples were prepared aad were sealed on fhe spot whereas the saiaple Panchanama Ex.P.11 shows that two samples froin each bag were prepared. His testiaiony ia paragraph 3 also does not show • ^KZ^S^'S^ fhat fhe gcutja contained ia each ba% was weighed separately. It only shows that the accused-appeBaat was canying one plastic bagon his cycle which was weighed and found to be 21 kgs. This completely contradicts fhe testunony ofD.R.Achala, D.S.P.(P.W.S) who stated that the accused was cartying two bags on fhe carrier of his cycle. The Roznccmchasana Ex,P.26-C dated 6,5.2002 also does not show that the appeUant was cartying two bags oa bis cycle. Thls contradiction in fhe testimoiiy of two responsible Police Officers creates a senous dent in the prosecution case. 6. M.K.Shama P.W.4 did not specifically state as to which seal was used to seal the samples of garya. Assistaat Sub-Inspector Tillu Siagh Thakur P.W.6 also did not fhrow any light upon ttus. Tliis burden. is on the prosecutioa to prove by leading cogeat evidence as to which seal was used for sealiag the ganja, A specunen of such seal has to be prepared ia presence ofwitaesses for being sent to the F.S.L. to rule out tampering with the sainple. 7. Sections S2 and 55 ofthe Act read as under: S2: Disposal of persons arrested and articles seized._- (1) Aay officer aiTesting a persoa luider section 41, section 42 section 43 or section 44 shaU, as soon as may be, mferm him ofthe groiiads for such arrest. (2) Eveiy person arrested and article seized under warraat issued under sub-section (1) ofsectioa 41 shall be forwarded without urmecessary delay to the Magistrate by whom the Wan-aat was issued. (3) Eveay person arrested aad article seized under Sub- Section (2) ofsection 41, section 42, section 43 or section 44 shatl be forwarded wiffaout unaecessary delay to - (a) the ofBcer-ni-charge of fhe aearest poUce station, or (b) the of&cer eiapowered uader section 53. (4) The aufhorily or officer to whoui any person or article is forwaided under sub-section (2) or sub-section (3) shatl, with all coiiveiuent dispateh, take such measures as niay be necessaiy for fhe disposal accordiag to law of such person or article. s i'-^a 55. Police to take charge of artlcles seized and delivered.—Au ofBcer-iu-charge of a police station shall take chai^e of a&d keep in safe custody, pendiug fhe oiders of fhe Magistrate, aU articles seized under fhis Act wifhia the local area of that police station and wluch may be deUvered to him, and shaU aUow any officer who inay accorapany such ardcles to the police station or who may be deputed for fhe purpose, to afiBx his seal to such articles or to take saiaples of and froiu them aad aU samples so taken shall also be sealed with a seal of the of&cer-in- charge of fhe poUce station. 8, Under Section 52 (3) of fh.e Act, an officer arrcstuig a person under Section 42 offhe Act has to forward fhe person acrested aad the article seized without iMinecessaiy delay to the officer iu charge of the iiearest Police Station. Section 55 of fhe Act reqiiires that seized ganja has to be produced before ftie of5cer-ia-charge of &e police station who shaU af5x his seal upon the packet contairung ganja. This is to ensure fhat tiU the seized substaace was sent to F.S.L. for cheinical aaalysis, it was not tampered with, Assistaat Sub-Inspector Rajendra KLiiuar Siaha P.W.2 stated fhat the two bags contateiing 11 kgs. and 10 kgs. gaiyas and oiily two samples of 25 gracas each along with a Hero cycle were given to tnm for safe custody in fhc Malkhana. He has proved the ISalkhana register entry Ex.P/2-C. .This entiy does not show that fhe two bags contairung II kgs and 10 kgs garyas were eifher iu a sealed condition while being given to this witness or were sealed by fhe 0.1.C. of the PoUce Station. He did not testify that the saoiples white beiug entrusted to tiiTn contaiaed fh.e seal of Town Inspector M.K, Shanna. He atso did not state fhat fhe samples were kept iu the Malkhcma after aSSxing fhe scal of officer-ia-char^e of the police Station. Town Inspector M.K. Sharma also did not state that fhe seized ganja and saniples were entrusted to fhe officer-in-charge of ~the poUce station who had afBxed his seal on it. In. cross-cxaminatioii, be adinits that only two sacaples were prepared on the spot whereas fhe entry ia the Malkha.na register shows fh.at 4 sacaples were haaded I: :1 • "!: -St._.- £3 over to A.S.I. Rajendra Kumar Sinha P.W.2. Thus, the entire evidence led by the prosecution is contradictoiy. Even according to A.S.I. Titlu Singh Thakur P.W.6, only two samples were preparcd. He did not slate that two saniples froin each bag i.e, total 4 saraples were lifted on the spot. "\\ sss^ 9. In order fhat the sample beiag sent to the Forensic Science Laboratory is a representative sample, it is essential that the entire ganja found ia possession of fhe accused-appeUaat has to be mixcd aud thereafter samples are to be taken. D.S.P. D.R.Achala who preparcd SaTncircis Paiwhccncana Ex. P.9 stated ia cross-examination that he did kaow what was meant by 'Sarwas'. Nowhere in his testunony did he state fhat fhe ganja in botii the packets was mixed aad thereafter samples were tifted. Thus, there is nothiug to show fhat fhe samples sent for cheinical examiaation to the Forensic Science Laboratonr represented each bag containmg ganja atleged to have been found ia possession of the appeBaat 10. The entry iu the Malkhana register Ex.P/2-C does not show tiiat the officer-in-chaige had put his seal on fhe samples. This was absolutely essential to rule out tampering vidth the samples. In an offence under Section 20(b)(ii)(C) of the Act, severe piinishinent is involved, therefore, it is fhe duty of the prosecution to prove by legal, reliable aiid cogent evidence fhat saiuples were Ufted after inixing the garya foiuid ia possession of the accused aad were not only sealed with the seal of fhe ofiBcer e£fectm.g search but also that fhe of&cer-in- charge of the police station had also put his seal on the samples entrusted to huu. In this case, the officer-in-chai^e of the poUce station Kotwali was neither entrusted wifh the samples of ganja nor ^did he put his seal upon fhem. It is extremely doubtfal as to whether fhe appeUant was canyiag two bays or only one bag on his cyc}e. It is 'alsb doubtful that the ganja contained iu the two bags alleged to be ia ' possession of fhe accused was nuxed and representative samples were lifted. Chandrasekhar Panigrahi P.W. 1 who is a witness ofweighnient Panchrwma Ex.P.10 also did not say a word that after liftiag the 7 samples they were sealed, As inentioned eariier, the testunony ofA.S.I. Rajendra Kumar Sinha, P.W.2 who was entrusted with the samples as weU as the remamiag ganja is coinpletely sUent as to whether the samples were entrusted in a seated condition aad whether fhe saoiples were tvyo or four, His testimony shfiws coinplete non-coDlpliaace of; Section 55 offhe Act siace the seal ofthe officer-in-charge ofthe poUce station was not put on fhe saniples entrusted to him. 11, The report of F.S.L. also does not show that fhe samples were icceived along with the specitaen unpression of the seal of Town Inspector M.K.Sharma or D.S.P.D.R. Achala P.W.3. !t also did uot show that fhe seal of the ofBcer-ia-charge of the poUce Station had been afBxed on the saniples sent for analysis. The meinoranduin of the Superintendent of PoUce Ex.P. 17 shows that the two samples were sent ia a sealed condition to the Forensic Science Laboratoiy Raipitr through Constable Budhiam. Mouiya who was not examined by fhe prosecution. As per rcport of the F.S.L. Ex. P.19, the samples were received on 21.5.2002. There is no evidence to explaia as to the custody ofthese samples duriug this period or to explam the delay. 12. After haviug considered fhe evidence led by the prosecutiou in its entirety, I am of the considered opiaion. that not only fhe evidence is contradictory in inaterial particulars but also shows coniplete non- coinpMauce of Section 52(3) and 55 of the Act. Neither delay in deUvering the saniples at the F.S.L. has been. explained nor Constable Budhram Mourya was examiaed by the prosecution. The evidence is also doubtful as to the number ofbags camed by the accused and also fhe number of samples lifted. The evidence does not show that a representative sainple was lifted. It also does not prove the description ofthe seal used to seal the saiaples. Aflter entrustraent ofthe sampfcs at police station KotwaU, the seal of the oflicer-iti-charge of the police station was not afBxed on flie samples. Independent witoess Uniesh was not exaiaiiied and fhe testimony of Mukesh P.W.5 is self- contradictory. Thus, the possibiUty fhat the sample examiaed by F.S.L. was tampered wifh, caitnot be ruled out. Therefore, fhe report of the F.S.L. Ex.P.17 camiot form the baste for couvicting the appellant uader Section 20(b) (ii) (C) of the Act. In this view of the luatter, fhe iinpugned judginent deserves to be set aside. 13. In the result, the appeal is allowed. Conviction of the appeUant under Section 20(b)(u)(C) of the Act and sentence imposed thereunder are set aside. The appeUanf is acquitted of the cbarge under Section 20(b)(ii)(C) of the Act after giving him the benefit of doubt. The appeUaat shatl be set at liberty forthwifh, if not required in any ofher case. Fine, ifpaid, shaU be refunded to fhe appeUant. Sd/- Dilip Raosaheb Deshmukh Judge