iiGn Lfw‘Rx OF brim; r1 muAm-I AT i ‘ru SFB'R Dmi Dhbu ui (E; o ae of Cr‘s Stt hhatigaxh RF§§§DET E§K Judgmént post 101‘05 1 U/ ‘ 6 AU sw— DmENDRA MI i (m 4 SHRA F’KbsE Shri Prafuiia Bharat Ac‘wocate for the appal‘lant fv . DIaIC d U U i1 M b N i (of—magm; "Dhiren&ra iviishra, J This appeai is; directed againSt the jucigment of conviction and order of S€nt€nce datet‘i 27-4~’2004 passa‘l in Speciai Case No. 1/2UU4 wnereby 5pec12u (mun, N UPS, 5astar at uagdaipur has; conviqted th€ appailant under Section 20-b[ii]B of Narcotic Drugs and Psychotropic Substanccs Act (Fort short hereinafter referred to as the Act) anti eentenced 111m to undergo K 1 tor 4 yeam anti to pay a one ol Ks. AU UUU/ 111 default ox payment 01 tme to turtner undergo K 1. tor one vear. '2. The case of the prosecution is that on l7-1—2004, Asstt. Sub inspector Diwakar Upadhyay after receiving secret information that a person in Kumnarpara is, carrying cannabis in a suitcase Ior saie, recoraed that information in Rojnamcha Sanha and thereafter fomiarded‘ the information to City Superintenrient of Pohce, Jagdaipur and proceedeo tor the place or occurrence along With Stan and Witnesses and alter completing fonnaiities as per the proceoure prescribed in Lnapter o of the Act seized b 250 hg cannabis which the appeuant nan Kept 1n a suitcase in a Winte eoioreo plastic bag 1W0 samples or do gins, eacn were diawn Irom tne seized contraband and weighinent of seizeci contraband was tione. Mter arresting the accuseii, the seized contraband, sample bags and the accused were brought to Bodhghat police station. The contraband and the samples were handed over to lvlalkliana for safe custody. Thereafter Crime No. 20f 2004 was registered vide EX. P—l8. lnfonnation regarding seizure, alESt alla ’1”€glStl"ati011 OI OH€BC€ ’WaS f01‘Wal’Cl6C1 t0 U1€ Superintendent of Police, Jagd‘alpur and samples of the contraband , were forwarded to Forensic Science Laboratory; Raipur throuh r‘ “V“’ "'1 ' hi an g APP—‘LLANTT Dundi (f1 Dhobu, ‘b/o Lxove dh , aged aLOLt 5 “e 1‘s P10 1r f Colonv Jvwv, “I Boungnat Uistt Bastai (poi Vs, RESPdffDEliiT State of Chhattisgarh, through the District MaglStratp Jagdalnnr nlaH; Radfgr ((‘F‘ )b. ~ SupErhltandsnt of Po}ics and mcgi‘pt of EX. P—‘24 waS obmjned. FSL r€port of the contraband confmned that tbs seizad article was; cannabis whereupon charge Sheet was E1661. 3. During trial, the prosecution examined 5 Witnesses. After récoroling otatement of the Witnesses and hearing the counsei for the parties, the trial Court convicted and sentencec‘t the appeiiant as mentioned above. 4. Learned counsei for the appellant submits, that as per the case of the prosecution, weighment of the se‘med contraband, secret notice, search recovery identification memo, seal panch memo, seizure memo etc. were prepared in presence of the witnesses. After seizure, the contraband and samples of the contraband were sealed and specimen seai memo of Ex P— 1’2 was aiso prepared there, however, after return to the poiice station, there is no evidence that the contraband was handed over to the iii—charge of the pohce station and there is also no evidence that after taking the charge of articles seized, the ill-charge of the police station had affixed his seal over the articles and samples ‘ias per requirement of Section 55 of the Act. The appellant was also not feiwarded to the iii—charge of the police station in accordance with Section 52 of the Act and in report of arrest and seizure provision as contemplated under Section 57 has also not been complied with sealch memo, information memo, 5. Referring to the judgment 1n the matter of Gur’bax Sing} —v— State of liaryanal, it was argued that the provisions of Sections 52, 55 and 5'7 of the Act are directory and violation of these provisions would not ipso facto violate the trial or conviction: However, the LO. cannot totally ignore these provisions and such failure will have a l%aring on appreciation of evidence regarding arrest of the accused or seizure of the article. lt was further argued that the version of the investigating Officer Diwaliar Upadhyay is not only tin-corroborated from the statement of the only panch witness examined during trial but he also stands contradicted by the statement of Domar Singli Pipariya (Ffw''. l) as both the witnesses gave different version with respect to mode conveyance by which they went to the place of i e: V\\ ncident, the place from where the contraband was seized and th K a a juclgment of this Court in §ukhchan& (it; Sudru f)as -v- State‘ ofw i‘fhhattisgar‘hK The com! 0f the Malkhana registar of EX. P—Q—c mantions that 1116 \sampie. was sent to F‘SL through constabie Raiauram on 20th January, 2004, however he has not béen examined. 6. On th€ other hand, hailed cowsei for the State haS supported the impugned judgment. ’ '7. I have heard the learned counsei for the parties, I have perused the record. \ 8. The independent Witness Viiendra has not been. examined whereae witness Kamal Sai haS not ’supported the case of the prosecution and he has turned hostile. Even in the cross- examination, the proeecution could not eiicit anything incriminating against the appeiiant and which corroborates the statement of the EW. 3 LO. Diwakar Upadhyay. PW. 3 Diwakar Upadhyay, the inveetigating Officer, has stated that after completing the‘ neceesary fonnaiities, suitcase of the accused was searched and a plastic bag containing White powder, like Ganja was recovered vide recovery memo of EX. P—lf}. Cannabis was got identified by smelling and burning vide Ex. P-l‘l. "Weighment was done by Constable Domar Singh (P‘W. l) and on Weighinent, the cannabis was fonnd to be 6.1250 kg. After drawing two samples of 25 gm each, the samples were packed and sealed and remaining cannabis was sealed in the bag and the same was again kept in the suitcase and the suitcase was sealed and accordingly weighment memo was prepared which is bx P-l. Thereafter,’ seizure memo of the contraband and samples was also prepared vide EX. P- l3. After returning to police station, offence was registered vide Ex. 1118 and information was sent to the \NTa§strate and superior: officers and thereafter the contraband, samples and other seized ‘articles were deposited in the Malkhana for safe custody from where two samples were sent to the FSL through Superintendent of Police for chemical examination. This witness in para 3 of statement has stated that they proceeded for Kumharpara Warehouse Road by Motorcycle where he found the accused carrying , {suitcase on the road. ln paragraph 8, he has further stated that they :proceeded forithe place of occurrence at about 14.10 p.131. which is“ at a distance of l-ll’é km They proceeded in three differeht‘i i ‘2‘rv.. , bxrtwOJaJ/L A x: an: n A: UJ u“0iu‘ .: ,1 J r motorcycles. They Were six in numbers including witnesses whereas _ RW. l Constabk Damar Singh Pipariya who was aiso a member of the rafting party hasdeposai that after leceiving secret i11fdxmétion that some person shaii be Going t6wards VRaipur road with earmabis , he along Wltn A131 umaxar Upaanyay and two Wlmessee auci other stait went on a 1eep t0 baKet Lolony wnele mey founu the accused, standmg on tue road wamng ‘Ior me buS. He was oanying a suitcase. in paragraph 4, he hag stated that the piace was oniy V2 km. away from the poh'ce station and they took just 5 niinuf$ to reach because V they hae‘l gone by jeep. 9. _: it is true that ASI’ Diwakar Unadhyay‘after effecting search, seizure anti arrest, did not hand oVer the charge to the ill-charge of mepohce station after return to the pohce station and as such did ' not comply With prov1s10ns ot sections oz so and o/ ol the Act. 1n _ the light o: the magment 01 the bupreme bourt 111 the matter of Gurbax Singhl, the Violation ol the above prov1s1ons ipso facto‘ wouid I HOt VlHaLe U16 CODVILTJOD. i10W€V€T It VVE EXEuIlmC U16 $tai€nl€11t OI U16 investigating umcer umaliar Upaanyay uJ w ‘5} and Lnnstable J Uomar smgn l—‘manya (P w l), we 11nd that meie 1s conuadlction 1n ‘ mE VEY$10D OI H1656 WO VVlUl€SS€S WILD 1€$p5Ct t0 11106.6 OI ' > conveyance the mace Where the appellant was tound and the ‘ distance and tune taKen to leach the place ol mCident the above discrepancy becomes still more Signlficant 1n the hght 0t the tact that the independent Witness Kamal bal (P w o} has categorlcallv denied that the secret mtonnauon memo, notice under bectlon bu ol the Act sealch memo ot police partv sealch memo ot the accused recovery f ‘memo menttncanon memo oi contraband weighment memo and J seizuie memo were prepaled in ms presence l-ie has stated that he Was engaged in the construction work in the police station when poh'ce‘personnei calied him and obtained his signatune on the hiank papers ln the eioss examination also he has categorically denied v that the investigation as claimed bV the pohce was done in his presence Non examination oi second Witness bv the prosecution > compels me to diaw adveise interence against the piosecution this Lourt 1n the matter 0t suknchand {a}: Sudru Dasz cons1dermg none r CompilallC€ OI bECtlOD. bZL5} and. bi) OI U16 Act €Xp1€SSIJlg U16 ClOllDt (:OVEI‘ U16 V€TaClUI OI U16 bbL I‘BDOIT and C01131§€Img Ulat U161€ WaSi