Singie Be'nch IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH Criminal Appeal No^^/2005 Kumar Singh Thakur S/o Gajadhar Singh Aged about 27 years R/o Village- Bija, P.S. Takhatpur,Distt. Bilaspur (C.G.) 0\..\'..-^<:"*" . •• - •N:^''.z^^-':' ^.^^-^;^te 4^\^ RESPONDENT VERSUS State of Chhattisgarh Through Station House Officer P.S. Kota, Distt. Bilaspur (C.G.) CRIMINAL APPEAL U/S. 374 (21 OF Cr.P.C. -i v ^ 4. H?ai_^URT OF CHHATTIS6ARH AT BILASPUR CriwinaS App^t No, 683/2005 Bucthram Si^Qh Maravi Vs. State of Chhattisgarh. Crtmina.1 ADD®a!No.598/2005 Nand Kumar Singh Thakur Vs. State of Chhattisgarh Singie Bench; Hon'bie Shri Dilip Raosah@b De^hmukh^ J. Shri .Atu! Pandey, leamed counsei.for the appellant Budhram Smgh Shri Shaiiendra Dubey/ Searned counsei for the appeiiant Nand Kumar Thakur. Shri Ashish Shukla, le-arned S.A. for the State, J'U beMENT (Deiiyered on t'fflciay of August 2006) Thls judgmerft shaii govern Criminal. Appeai No',683/2005 by Budhrarn Singh Marayi and Criminai Appeal No,598/2005 by Nand Kumar Singh Thakur, Both appelbnts were convicted under Section-8 ^ -Section-20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substanc.es Act, 1985 (hereinafter referred toas lthe Act') and were s^ntenced to undergo rigorous impri^onment for 4 years and a fine of Rs.5,000/--, and in defautt of the same, to undergo additional R.I. for one siionth vide judgment dated 12-07-2005 detivered by Shri A.ECPradhan, Special Judge (N.DP,S.), Bib.spur in -Speciai Criminal'Case No.03/2005. T_. ^- ^wSffsf facts are that Inspector N. Khalkho PW"5 received se€.r®^informoi11oni that the. appeilant Budhram ^along with his c^iiipanion was in unaufhorized possession of ganja •at his house in ViSSage-Dhanras, After recording the said information vide ExP-1, he proceeded to the houfe of appelbnt Budhram at Village-Dhanras. The appellant Nand Kumar Singh .Thakur was sleeping on a cot. Three plastic b.o.9S were kept beneath-the cot. On.being sear'ched, they.were found to contoin 20 packets of ganj'a. The house of Budhram was also searched ond from one room contraband <&anja kept in one bag was recovered. Weighment vms got done. Oanja recovered from the house of Budhram in one plastic bag containing 7 packets was found to weigh 7 K<&. Le, 1 packet of 1-K.6, each whereas 20 packets seized from-the appellat'it Nand Kumar Sirtgh Thakur were found to weigh 20 «.<&..^ut of these 20 samples,of 250 ©ramseo.ch were separated from each. pb.stic bag seized from the appelSant .Nand Kumar ond similarty 7 samples of -250 grams each were separated from -the ganja seized from the house of appellant Budhram. The samples as aiso the 'remainiiig ar'ticies were sealed by the Inspector N. Khalkho PW-5 who was the Officer-in-charg®of Police Station-Kota at the retevant time. Two sample packets prepared from the 9anja seized from each appejlant were entrusted to.Head Constable Santosh Yadav of Poiice Station-Koto. for safe custody on 17-11-2004. On 23-11-2004, with memo Ex.P-32 of Superintendent of Po!ice, Bifospur two sealed packet of 250 grams ea.ch were delivered for chemical analysis to the Forensic Scie'nce Laboratory by Constable Kajju on 25-11-2004* Vide report ExP-39 of Forensic Science Laboratory, it was opined that both'the sampSe packets contained-ganja, After completion of investjgation, the appelbnts were prosecuted... , ,.^ l::Ti 1- -3- 3/ The appe!btits abjured fne guilt, pleaded Innocence and !ed no- evidence in defence, The •prosecutiors ©xamined5 v^itnesses, ReSying upon the evid^nce ied by the prosecution, the ieamed triai Judge convicted and sentenced the appeliants as aforesaid in para-1. (Supra) 4 4. -Shri ShalEendra Dubey, Searned cous^sei for the appeliant Nand |<uma.r and Shri Atu! Pandey, leamed counsel for the o.ppelbnt Budhram have assajled the convictlo'n of the appeilants on the ground that the malkhana register not produced by the prosecution. Reliance placed on Stat^ of R^sthdn Vs. SurmaiS Smgh reported in V^lyme-I (2005)CCR 228' (SC). .It was a!so contended that dthou9h 27 sampies packets were prepared yet ExPnn37 and P-38 revealed that on!y 4 samp'le packets- were entrusted for safe cuslx^dy to Haad Constable S^xntosh Yadav without.explaining for the custody of the remdning articles and the sampte packets. Head Constabie Santosh Yadav was also tiot examined by "E+ie pro^cution. Thus, the yital link evldence wa^ missing and it could.notbe ruled out that the sqmpies examlned by the Forensic Science.Laboratory could have been tampered wlth. The. specimen jmpression of the affsxed on seizure memos were wholiy illegibSe and did no match with the specirnen impression of the drawn on the report ExP-39 of the Forensic Science Laboratory. The memo of Syperintersdent of Poiice did not show-.the narne of the constabb to whom the samples were entrusted for being t-aken to the Forensic Science Laboratory, Lastiy, it was contended that due to non-compliance of the mandatory provisloti of 5ectionw42(2) of the Act by InspectorN. Khalkho PW~5, convictjon of the appellarits was lldble to be set aside. Rellance was. placsd c'n l'Aohind@r' Kymar Vs. Tht. Stat®.Panejl, 6o©reported in A b ,3^.. Coyrt-1157. On the'other hand, Shri Ashish Shukla, iearned Sovt. Advoca-te. wgued in support of the impugned judgment, 5, Having oonsldered rival submissions, I have perused the record, In vieN of the deterrent punishment provided for the offences under th^ Act., it is the duly of the pro.secution to prove that'the sancti-ty of the articbs and the seaSed .samples prepared therefrom was.not breached at any time til! the sampbs reached the Forensic Science Laboratory. In the present case, the prosecution- did not produce the malkhana registar for the reasons best known to it, Although, the t&stirnGny of Inspector N. Khalkho PW~5 reveal&d that 20 sampie packcts were prepared from the ganja seized from the Nand Kumar and 7 sampbs were prepared. from the ganja seized from the appellant Budhram yet no explanccti-on was offered a^ to why on!y two sample^ prepared from the articles.selzed from each' appelSant alone- were eritrusted throu.gh acknowtedgment ^lip^ only i,e, ExP-37 & P-a38. Thare i^ no e.xplanation. why entry was not rnade in th^ MaEkhana ReQJster and for non production thereof. Seal affixed on the seizure memo. ExP-27 and ExP-13 .is who!ly iibgibie and does not match with the specimeii impression of the drawn by the Forensic Science Laboratory its report Ex.P-39< The rnemo of Superintenaent of Po!ice EXcP-32 also does-not rnention that specimen impre^sion of th®.sea! was ·al.so sent with the sampl& packets. It a!so does not ment-ion the name of the ConstabEe to ^hom the &Bamp!e packats were entrusted, There ss absolutely no evldence "to show that the sampies were entrusfed to .Constable Rajju PW-2 irr a sealed condition. His testimony is as va9ue as it could be. It does not show that the samples were received by him.In a ^eaied conditiorL Thus, in the afore^aid ^.-..-. .--„....-..„. <" circumstances relying upors the of S^t'att of Raj^than ¥s/ Svr'maiS Sife-igh. r-eported isi Volurrs@~I (2005)CCR 228 (SC),I am of the considered opinion that there a serious loop holes in the prosecution regarding the sealin9 of the .samples as aiso the. ' entrustmarit thereof as manda'ted by Section-55 of the Act. The !inl< eyidence adduced by the prosecution is wholiy unsatisfactory and render^ the prosecutlors sto^ extremely doubtful, 6, As regord^ the non-compllance of 5ection"42(2) of the Act, althoygh the prosecution has fileda docurnent Ex.P-2 yet it does not show that the superior police officers had rkeceived the information serrt' by Sub Inspector N. Khalkho PW-5< Sub Inspector N, Khalkho PW-5 has admlttecl that at no time after recorciing the secret informatjon did he inform hi^ supersor offlcers of the grounds for his beiief to- aarch the house of Budhmm. Thus, there is a serious violation of the mandatory provlsEon of Section-42(2) of the Act. In vfcw of the dictum of the Apex Court in Mohlnd^r Kymar Vs- The St3t©/PQnQji. r'epor'ted in A.1M. 1995~Supr8@me Court-1157, conviction of the appellants is liabb to be set aside onJy on this coun't 7. Possession is the core ingr'edlent of ars offence under* Section-8 and Sectjon-20(b)(il) (B) of the Act, Prosecutlon has faifed to prove that the appeHants were m conscsous possession of the contraband artlcles, Independent witnesses Scrt'el Ram PW-1 did not support the prosecytion ^tory and stated that he was cailed at the Poiice Statlon and to sign aSI documents. Another Independent witness Pardeshi Kam Vaishnav yros not examined by the prosecution for which there i^ no expSariation. An adver^e inference is drawn against the p.ro^ecytion on that count, Patwari Chandrika Prasad Kashyap PW-3 •& ad.mitted that the appeliants were not present at the time vAen 'h^ pr&pared the spot map Ex.P-35. The testimony of Inspector •M. Khdkho PW-5 cbarly shows that the appeISwst Nand Kym<ir. NB^ sleeping on th®cot, beneath whieh thre;®plastic bags w^re kept. The house did not be!ong to the appetlcsint.Nand Kumw therefore, st. could not be soid that the contrabcmd ganja was recw^red from the consdous possession of the appeiSant Nanci Kvmar, Simibriy, the testimoeiy of N. Khalkho PW-5 did not show as to ^hether other famiiy merr^bers of appeSSarst Budhram wera present in the house. Ther'e is no bga! evidence on record to'show that the house from which gc.nja was alieged .to hwe be®nseized beionged to appeliant Budhrom. Tl-te testimony of Inspector N. KhaSkho PW-5 in para-5 aiso did not give any cogent reason for the conscious possession of cxppelSc^it Budhram ovar the -contraband ganja alle9ed to have been seized from one of the room;s. of the h.ouse of Budhram, The testimony of Patwari Chouncls'ikoi Prasad Kashyap PW-3 who prepared the spot map / Ex.P-35 whoiSy demolishes the testimony of Inspector N. Khalkhoi PW-5 tS^at the ganja was recovered from inside the room of the house of the appelbnt Budhram, slnce it ciearEy shows that the ganja was recovered from the- Saliyam, Thus/there is no cogent evidence to show that the ganja wa.s seized from the conscious possession of appel!ant Budhrkam. 7. Having thus considered the evidence Eed by the prosecution in jts entiret)/, I am of the considered opinion that conviction of the appellants under Section-8 & Section-2.0 (b) (ii) (B) of tSie Act and the sentences awardsd thereunder by the !earned trial Judge are liable to be.setaside, .7.- 8, In the result, both Criminal Appeal No.683/2005 and Crimm'aS Appea! No.598/2005 are allowed, Conyiction of the appellants ynder Section-8 & Section-20 (b) (ii) (B.) of the Act oind the sentences awarcled thereurgder by the tearned trial Jud^e are set aside. •The appellants are acquitted and shall be set at' Siberty forthwith, sf not required in any other case< Fine, if paid, shall b@ refunded. Sd/- Dilip Raosaheb Deshmukh Judge