^ (^ HIGH COURT OF CHHATTISGAItH AT BILASPUR Ct.APP.Np.1026^1991 SB: Hon'ble Shri Justice R.L. Jhanwar Tejram. The State of Madhya Piadesh (NowCG) JUDGMENT Post forjudgment orig,9.07,2009 Sd/- R.L. Jhanwar Judge HIGH COURT OF CHHATTISGARH AT BILASPUR Cr. App. No. 1026/1991 SB: Hoa'ble Shri Justice R.L. Jhanwar Tejram sou of Nanliu Aghariya aged about 45 years resident of Kachor Tahsil Kharsiya, District Raigarh(MP) (Now C.G.) RESPONDEKT Versus The State of Madhya Pradesh Through S.H.O. Pifhora, District Raipur Appearaace: Shri Sarfaraj Kbaa, coT.uisel for the appeUaat. Shri D.K.Gwalre, Govemnient Advocate for fhe State. JUDGMENT (Delivered on.^ .07.2009) This Criminal Appeal is directed against titie judguient of conviction aad order of sentence dated 23.10.1991, delivered ia Sessions Trial No. 161/1991, whereby fhe learaed Special Judge, Maliasaiaund, District Raipur has convicted fhe appeUant under 'Section 20 offlie N.D.P.S. Act, 1985 (hereiaafter referre^to as 'fhe Acf) aad senteticed him. to undergo R.I. for two years and to pay a fine ofR^.1000/-, m. default ofpaynient offine to further undergo R.I. for six nioaths. Brief facts are fhat on 6.8.1990, Ramlal Chouhan, Sub !nspector, PoUce Station, Pifhora received infonuation fhat fhe appeUaiit was cariyuig' Gauja. He accoiapUshed wiih som.e ofher Police officials, went to search fhe appeUaut. AppeUaat holding a ,. bagwas found atviltage Khaparakhol. Itwas found fhat Ganja Uke Cr.App. 1026/1991 substauce was kept ia a bag, wbich was found to be 2 kg aud 100 gm.. Seizure was inade' froia tlie possession of fhe appeUant. After com.pletion of necessary legal proceedio.gs, seized Gauja was sent to fbie Excise Inspector- Barjnafh Gupta(PW-3), who examiued and found it to be Ganja. After conipletion of fhe investigatiou, charge sheet was filed before the Special Judge, Mahasamund, District Raipur. Charge underSection 20 of fhe N.D.P.S. Act was fraiaed again.st the appeUant aad it was read over to him. The appella&t abjured tiie guilt axid his defence was fhat he has been falsely impUcated in. fhe ci-irae. The Special Judge, after appreciation of the evidence available on record axid heamig counsel for bofh the parties, convicted fhe appeUant under Section 20 of fhe N.D.P.S. Act aad sentenced him. as above. I have heard leamed counsel for fhe parties at length and have also perused fhe record. Only three witaesses were produced by fhe prosecution. Ramlal Chouhaa (PW-2) Iiad stated fhaton 6.8.1990, after receiving iufomiation, he iuunediately weut to ftie spot at vfllage- Khaparakhol aud saw fhe appeUaat, who was conung wifh a ba^ and after search, he found Ganja and seized fhe same in presence ofwitnesses Hiralal (PW-1) aad ChaDiaia(DW-2). Seizure m.eino Ex.P/1 was prepared. The weight of Ganja was found 2 kg and 100 giu. He recorded Deb.ati NaUci on the spot and after i^achtuj to ttie Police Statioa recorded FIR. Ramlal Chouhan(PW-2) stated that the'infonnation was given to higher ofBcers. Only one seizure ~.®itaessHiralal(PW-l)has been exaiuiaed, who supported fh.e seizure Dieino. Aecorduig to Rainlal Choulian.(PW-2) seized articleSgauja) was sent for its cheraical examiuation. The Excise Sub-Inspector- Baijnafh Gupta(PW-3) deposed that he icceived 3 packets froia Police Station -Pithora w r'T.App. 1026/199: aiid after openiug ttie packets, he tested fh.e substaiice aad found it to be Ganja. His 'report is Ex.P/4. In this case, seized article was not sent to F.S.L. for its cheinical exaiiunation and ifwas sent to fhe Excise Sub-Iaspector. He deposed fiiat he was having experience and obtaiaed trauiin^ for testing iutoxicaD.ts, fherefore, he examined fhe seized niaterial aud foiuid the recovered inaterial as Gaaja. On perusal of his stateiuent, it is clear fhat he has not produced any certt&cate of trauitag. He also did not apply auy chemical test. It is clear that provision ofSection 42 (2) oftheN.D.P.S. Act has not been complied wifh. Section 42 ofthe N.D.P.S. Act reads as under: 42. Power of entiy, search, seizure and arrest wifhout warrsiit or authorization.- (1) AiL)r such of&cer [being ari ofEcer superior ia rauk to a peon, sepoy or constable) of the departments of Central excise, narcotics, custoiiis, revenue in.teUigence or any other departraent of the Central Govemm.ent or of fhe Border Security Force as is em.powered ia this behalf by general or special order by ffae Central Goveranient, or aay such of&cer (being an of&cer superior io. rauk to a peon, sepoy or constable) of the revenue, drugs control, excise, police or aay other department ofa State Goverrunent as is empowered m. fhis behalf by general or special order of fhe State Goveminent, if he has reason to beUeve froiti persoual knowledge or iirfonuation given by any person aad tsken .down in. writiag, fhat any narcotic drug, or psychotropic substance in respect of which aa offence puilishable under Chapter IV has beerL^coniiuitted or auy docuinent or other article which m.ay fumish evidence of the conunission of such offence is kept or concealed in auy building conveyaace or enclosed place niay, between suiirise and sunset- (a) enter iato aud search any such bltildiag, conveyaace orplace; .-.••^•S'iSS^W^. '~^?' sa /' 5S"~'^ »•;%•. sl Wss^ ? Cr.App. 1026/1991 [b) tu case of icsistance, break open any door aad reiuove ajuy obstacle to such'entry; (c) seize such drug or substaace aad aIL inaterials used iu. fh.e inaaufacture thereof and any ofher article and aiiy aaim.al or conveyaace which he has reason to believe to be liable to coafiscation uuder fhis Act and aay docunient or ofher article which he has reason to beli.eve m.ay furrush evMence of the com.niission of any ofFen.ee punishable under Cbapter IV relatmg to such drug or substance; and (d) detam. aud search, and, if he thinks proper, arrest aay persou whoin he has reason to beUeve to have coininitted any offence punishable under Chapter IV relatiag to such drug or substaace: Provided fhat if such officer has reason to beUeve fhat a search.-warraat or authorization caiuiot be obtaiited wifhout affording opportunity for the conceaknent of evidence or facUity for fhe escape of an. offender, he m.ay enter and search such building, conveyance or enclosed place at any tiiae between siraset and sunrise after recordiug the grounds of his belief. (2) Where an officer takes down any inforaiation in writirig under sub-section (l) or records grouiids for his belief luider the proviso fhereto, he shaU forthwifh send a copy therefore to his icdiate official superior. Section 42 is m.aiidatoiy. It was iacuinbent on the officer inaking search to send forthwifh a copy of information taken down by fhe/officer under sub-section (1) of Section 42 offhe Act. From. fhe ewidence of Ramlai.^houhaii(PW-2), nofhiag has been brought to support fhat the provisions of Sectioa 42 of fhe Act have been coxnplied wifh. Therefore, violation of provisiou is fatal. Section 57 of the Act reads as under ; 57.R.eport of arrest aad seizure.- Whenever any person inakes aiiy arrest or seizure uiider fhis Act, he shaU, within forty- ^l Cr.App.1026/1991 e^ht houi's next after such arrcst or seizure, niake a fuU report of aU the particulars ofsuch arrest or seizure to his imiuediate official supenor. Under Section 57 of fh.e Act, a duly has been cast on Ramlal Chouhan(PW-2) to niake fuU report of arrest aad seizure to his iniiuediate superior withiu 48 hours. Ratalal ChouIiaa(PW-2) stated fh.at he has coniplied with fhe above requireineut, but there is nofbing to estabUsh tttat coinpliance of above provisions was m.ade by him. Alfhough tlie above provision is not m.an.datoiy in nature, but haviug considered aU fhe facts present in this case, noa-corapUance of fhe above provision, casts doubt oa fhe prosecution version. Thus, ia fhe instaat case, fhe inaiidatory provision of Section 42(2) of fhe Act has not been coruplied wifh. ObUgatory provision of Section 57 of the Act has also been violated. Even fhe seizure inaterial has also not been tested by cheinical process. In the result, fhe appeal is allowed. The conviction aad senteuce im.posed against the appellant under Section 20 of the N.D.P.S. Act are set aside. The appeUant is acquitted offhe charge, He be set at liberty, forthwith, ifnot required ia any ofhei^cags^. Sd/- R.L. Jhanwar Judge sunita