c9) HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Dilip Raosaheb Deshmukh, J. CrimmalAppealNo. 83 of2009 APPELLANT InJail RESPONDENT Ramraj Kahi'a Versus State ofChhattisgarh JUDGMENT Post for pronouncement ofjudgment ^.7 .03.2009 Sd/- Dilip Raosaheb Deshmukh Judge 'y' HIGH COURT OF CHHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Dilip Raosaheb Deshmukh, J. Criminal Appeal No. 83 of2009 APPELLANT IiiJaU RESPONDENT Rami'aj Kahi'a, S/o Sliri Tulsi Ram, aged about 22 years, R/o Village - Bhatapara, Janjgir, P.8. Janjgir, District Janjgir - Champa (C.G.) Versus State of Chhattisgarh, Through P.S. Janjgir, Dist Janjgir - Champa (C.G.) CREVHNAL APPEAL UNDER SECTION 374 CODE OF THE CMMINAL PROCEDURE Present: Shi'i N. K. Clihatterji, couiisel with Shii Y.V.Raman Rao, counsel for the appellant Shri Rakesh Jha, Dy. GoveiTmient Advocate for the State. JUDGMENT (Delivered on this 27+k' day ofMarch, 2009) This appeal is dii'ected against the judgment dated 23.05.2008 in Special Case No. 11/2007 by the Special Judge under the N.D.P.S. Act, Janjgii' whereby the appellant was convicted under Section 20 (b) (i) (ii) (B) ofthe Narcotic Dmgs and Psychotropic Substances Act, 1985 (henceforth 4the Act') and sentenced to undergo rigorous imprisonment for two years and a fine ofRs.5000/- for having been found in possession of 4220 grams ofillicit ganja on 01.09.2006 at about 18.00 hours near Naila East Cabin. ^ 2. The prosecution case is that on receiving mformation that the appellant is transporting illicit ganja in a motor cycle, Shri J.P.N. Singh P.W.6, Police Station Janjgir saw the appellant coming on the motor cycle and stopped him. On seeing the police, the appellaiit left fhe motor cycle and fled. 4220 grams ganja was seized from a plastic bag and the unregistered Hero Honda motor cycle was also seized vide Ex.P.9. Two samples of50 grams each were separated from the ganja, sealed and kept in safe custody in iheMalkhana ofPolice Station Janjgir. Later it was sent for chemical analysis thi'ough Constable Maliki'am Tandon to the Forensic Science Laboratory, Raipur ^?hich reported vide Ex.P.19 that both the samples contained ganja. After completion of investigation, the appellant was prosecuted under Section 20 (b) (i) (ii) (B) ofthe Act. 3. The appellant abjured the guilt, pleaded iiinocence aiid led no evidence in defence. 4. Shri N.K.Chhatterjee, leamed counsel for the appellant and Slu-i Rakesh Jha, Dy. Goveniment Advocate for the State were heard. Record is pemsed. 5. Shri J.P.N.Singli P.W.6 admitted in paragraph 6 that during investigation he did not make any efTort to enquire about the owner ofthe motor cycle. The seizure memo Ex.P.9 does not show that the plastic bag was being can-ied on the motor cycle. Although weighment panchnama l^ Ex.P. 11 shows that two samples of 50 gi'aiiis each were separated from tlie bag containing 4220 grams ganj'a yet it does not bear the specimen impression of the seal used for sealmg the sample. Ex.P.15 is the Supurdnama receipt given by the Malkhana In-charge and does not show that the two sample packets of 50 grams were received by him and kept m the Malkhana in a sealed condition. The Malkhana register was also not produced. There is no material to show when the sample packets were removed from the Malkhana and sent for chemical analysis. The testimony of Head Constable Awadhram Yadav P.W.2 that he had received the ganja and the two sample packets in a sealed condition is wholly untiiistworthy as it is belied by Ex.P. 15, as mentioned above. It is also pertinent to note that the receipt Ex.P.18 given by Forensic Sclence Laboratoty also does not specifically mention that the two sample packets were received in a sealed condition. The report ofF.S.L. Ex.P.19 shows that the two sample packets were bearing identification marks 'A' and 'B'. However, no such description is found in the weighment panchnama Ex.P.llor Supurdnama receipt Ex.P.15. Constable Malikram Taiidon who delivered the sainple packets to the F.S.L. was also not exaimiied by the prosecution. It is thus extremely doubtful whether the sample packets exammed by the F.8.L. fomied part ofthe substance seized vide Ex.P. 11 and kept in the Malkhana. The possibility oftampering with the samples can also not be mled out. In this view ofthe matter, report Ex.P. 19 can not form the basis for convicting the appellant. The conviction ofthe appellant under Sectiosi 20 (b) (i) (ii) ^ (B) of the Act caimot, therefore, be sustained m the eye of law and the appellant is entitledto tlie benefit ofdoubt 6. In the result, the appeal is allowed. Conviction of the appdlant under Section 20 (b) (i) (ii) (B) of the Act and the sentence awarded thereunder are set aside. The appellant is acquitted ofthe charge after giving him the benefit ofdoubt and shall be set at liberty forthwith, ifnot required in any other case. " Sd/- Dilip Raosaheb Deshmukh Judge