Nafr High Court
Case Details
1 AMIT PATEL Digitally signed by AMIT PATEL Date: 2025.01.22 17:03:06 +0530 2025:CGHC:3426 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRA No. 193 of 2022 Gaurav Manjhi S/o Jagannath Manjhi, Aged About 45 Years R/o Village Champakari, Post- Panchwati, Police Station And District Mankangiri, Odissa, -- Appellant versus State of Chhattisgarh, Through Police Station Keshkal, District- Kondagaon, Chhattisgarh -- Respondent (Cause-title taken from Case Information System) ------------------------------------------------------------------------------------------------------- For Appellant : Mr. Aman Kesharwani, Advocate. For Respondent/State : Ms. Nandkumari Kashyap, Panel Lawyer ------------------------------------------------------------------------------------------------------- Hon'ble Smt Justice Rajani Dubey Judgment on board 20.01.2025 1. This appeal is arisen out of the judgment of conviction and order of sentenced dated 20.12.2021 passed by learned Special Judge (NDPS Act), kondagaon, District- kondagaon (C.G.) in Special Sessions Case (NDPS Act, 1985) No. 45/2018, whereby the appellant has been convicted for offence punishable under Section 20 (b)(ii)(c) of the NDPS Act and sentenced to 2 undergo rigorous imprisonment for 10 years and fine of Rs. 1,00,000/-, in default, to further undergo rigorous imprisonment for 01 year. Prosecution Story:- 2.
Facts
Brief facts of the case are that, on 15.04.2018, Investigating Officer- Rajesh Jagat (PW-10) was posted in the year 2018 as Inspector/Station House In-charge in the Police Station- Keshkal, received secret information from the informant that in one Maroon coloured Pickup Truck Bearing No. MP-04-GA-8450 carrying ganja for illegal trade and is coming towards from Jagdalpur. The aforementioned information was recorded in the Rojnamcha and informed the Senior Officer about the information and duly preparing the informer information Panchnama (Ex. P/21) and he along with accompanying staff and witnesses, reached the spot and set up a blockade. During the blockade, a maroon coloured Pickup Truck Bearing No. MP-04-GA-8450 coming towards from Jagdalpur side was stopped in which one person was found. On being interrogated, the driver revealed his name as Gourav Manjhi. On being carefully investigating the said vehicle on the back side in a hidden special chamber, he was carrying ganja sealed in 56 packets which were taped in brown coloured cello tape. After giving notice under Section 50 of the NDPS Act to the accused person for search vide Ex. P/24 and his consent was taken. After searching of police party vide Ex. P/25 and witnesses vide Ex. P/26, search Panchnama was prepared vide Ex. P/28. 3. After searching the said pickup truck in the presence of witnesses, Recovery Panchnama was prepared vide Ex. P/29, which is found to be 56 packets of intoxicant like ganja and seized one mobile phone, voter ID card from the appellant. The illegal narcotic substances like ganja recovered from the vehicle owned by the accused was mixed together, some quantity of it 3 was rubbed, smelled, sniffed and burnt and it was found that it contained narcotic substances and Identification Panchnama was prepared vide Ex. P/30. Notice under Section 91 Cr.P.C. was given to the accused vide Ex. P/31 for producing documents in relation to said contraband articles.The substance was found to be cannabis. Notice to weigher Devendra Nag was given vide Ex. P/34. Thereafter on being checked the electronic weighing machine brought by weigher, it was found to be correct. Physical verification of scales Panchnama was prepared vide Ex.P/35. On weighing, the illegal drug ganja recovered from the vehicle owned by the accused at the spot itself, it was found to be 187.860 KG and thereafter, narcotic substances weight Panchnama was prepared vide Ex.P/36. After which sample was taken out of the recovered ganja and sample & samaras panchnama were prepared. At the spot itself, 187.860 KG of narcotic ganja in the possession of the accused and two samples packets of 50-50 grams each prepared from it, 56 packets containing intoxicants like ganja kept in the vehicle of the accused which is marron coloured pickup truck, one mobile phone, Voter ID card were seized from the possession of the accused and seizure memo was prepared vide EX.P/37. Thereafter, the seized articles were sealed in front of the accused and the witnesses and sample seal Panchnama was prepared vide Ex. P/38 . Spot map was prepared by the police in Crime Details Form vide Ex. P/40. When evidence of the crime was found against the accused and he was arrested in front of the witnesses, arrest sheet was prepared vide Ex.P/39. 4. After completion of process, Zero Dehati Nalishi (Ex. P/5) was registered and inventory report of the proceedings vide Ex. P/1 was prepared through the concerned Executive Magistrate. After returning to Kehskal Police 4 Station, a First Information Report vide Ex. P/6 was registered against the accused under Crime No. 50/2018 under Section 20 (b) of the NDPS Act. The sample of seized ganja was sent to Forensic Science Laboratory, Raipur for testing and as per the FSL test report (Ex. P/9) received from Forensic Science Laboratory, Raipur, the seized contraband article was found to be ganja. After thorough the investigation, evidence of crime was found against the accused and the charge-sheet was presented against him in the Court of Special Judge (NDPS Act), Kondagaon. 5. The charges were read over to the appellant, he denied the same and claimed trial. When the accused was examined under Section 313 of Cr.P.C. , he declared himself as innocent and though stated that he has been falsely implicated, but no defence evidence was presented by him. 6. In order to establish the charges against the appellant, the prosecution has examined as many as 10 witnesses. The statement under Section 313 of Cr.P.C. of the appellant has also been recorded in which he denied the circumstances appears against him, plead innocence and has submitted that he has been falsely implicated in the offence. 7. After appreciation of oral as well as documentary evidence produced by the prosecution, the learned Trial Court has convicted the appellant and sentenced him as mentioned in opening paragraph of this judgment. Hence, this appeal. Submission of the parties:- 8. Learned counsel for the appellant would submit that the impugned order of conviction passed by learned Trial court is contrary to the facts and 5 evidence available on record, hence the same is liable to be set-aside. Learned Trial Court did not appreciate the statement of prosecution witnesses without proper corroboration. The independent seizure witnesses namely Jeremia Masih and Mohd. Irfan have not examined by the prosecution, there are various contradiction and omission between the statement of prosecution witness and the learned Trial Court relied upon only of police’s witnesses. He would further submit that learned Trial Court failed to appreciate that the statutory compliance has not been made and illegally the appellant has been falsely implicated without any knowledge of the fact of presence of contraband. It is clear from statement of Investigating Officer- Rajesh Jagat (PW-10) that he did not follow the mandatory provisions of NDPS Act, learned Trial Court failed to consider that there is no evidence with regard to the appellant having conscious possession of the contraband and the appellant is a mere driver of the vehicle. Learned Trial Court has failed to appreciate that the prosecution failed to prove its case beyond reasonable doubt. Hence, the impugned judgment of conviction and order of sentence is liable to be set
Legal Reasoning
aside. He placed reliance on the judgment passed by this Court in CRA No. 1338 of 2023 (Sujeet Kumar Raghav vs. State of Chhattisgarh) decided on 09.08.2024. 9. On the other hand, learned counsel for the State opposes the argument advanced by learned counsel for the appellant and submitted that learned Trial Court has rightly convicted the accused/appellant and there is no illegality or infirmity in the findings of the learned Trial Court, therefore the impugned judgment of conviction and sentence needs no interference. 6 10. I have heard learned counsel for the parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection. Discussion & Analysis:- 11. It is clear from record of learned Trial Court that learned Trial Court framed charges under Section 20 (b) (ii-C) of NDPS Act against the appellant on this ground that he possessed 187.860 KG of contraband article ganja in 56 packets which were kept in Pickup Truck bearing No. MP-04-GA-8450 for illegal trade. Prosecution has examined 10 witnesses to prove its case against the appellant and after appreciating the oral and documentary evidence, learned Trial Court convicted the appellant as mentioned in opening para of this judgment. 12. As per records of learned Trial Court, Birendra Kumar Paikra (PW-01), Omprakash Nareti (PW-02), Ishwar Netam (PW-06) & Rajesh Jagat (PW-10) are members of police party and on the date of incident they stopped the vehicle of the appellant and seized 187.860 KG of contraband article ganja, however, no independent witnesses were examined by the prosecution before the Trial Court. 13. As per Investigating Officer- Rajesh Jagat (PW-10), two independent witnesses were present at the time of all proceedings and they put their signatures in all relevant documents, but prosecution has only examined police’s witnesses before the Trial Court. 14. It is case of the appellant that the Investigating Officer had not complied with the Standing Order 1/89 and not taken sample from each 7 packet. Total 56 packets of ganja was seized from the said vehicle and only two samples were taken out from the contraband after mixing them, which is not permissible as per law. 15. This Court observed in the matter of Sujeet Kumar Raghav (supra) held in paras 16 & 17 as under:- “ 16. Though no procedure is prescribed either in the N.D.P.S. Act or in the N.D.P.S. Rules regarding the manner in which the samples are to be drawn but a Standing Order 1/89 has been issued by the Central Government in this regard, wherein general procedures for sampling, storage etc. have been given which reads as under : “2.1. All drug shall be properly classified, carefully weighed and sampled on the spot of seizure. 2.2. All the packages/containers shall be serially numbered and kept in lots for sampling. Samples from the narcotic drugs and psychotropic substances seized shall be drawn on the spot of recovery, in duplicate, in the presence of search witnesses (Panchas) and the person from whose possession the drug is recovered, and a mention to this effect should invariably be made in the panchanama drawn on the spot. 2.3. The quantity to be drawn in each sample for chemical test shall not be less than 5 grams in respect of all narcotic drugs and psychotropic substances save in the cases of opium, ganja and charas (hashish) where a quantity of 24 grams in each case is required for chemical test. The same quantities shall be taken for the duplicate sample also. The seized drugs in the packages/containers shall be well mixed to make it homogeneous and representative before the sample (in duplicate) is drawn. 2.4. In the case of seizure of a single package/container, one sample in duplicate shall be drawn. Normally, it is advisable to draw one sample (in duplicate) from each package/container in case of seizure of more than one package/container. 2.5. However, when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. of packages/containers, one sample (in duplicate) may be drawn. each such For lot 2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the 8 case of other drugs, less than 5 packages/containers remain, no bunching would be necessary and no samples need be drawn. 2.7. If such remainder is 5 or more in the case of other drugs and substances and 20 or more in the case of ganja and hashish, one more sample (in duplicate) may be drawn for such remainder package/container. 2.8. While drawing one sample (in duplicate) from a particular lot, it must he ensured that representative samples in equal quantity are taken from each package/container of that lot and mixed together to make a composite whole from which the samples are drawn for that lot. 2.9. The sample in duplicate should be kept in heat-sealed plastic bags as it is convenient and safe. The plastic bag container should be kept in a paper envelope which may be sealed properly. Such sealed envelope may be marked as original and duplicate. Both the envelopes should also bear the No. of the package(s)/container(s) from which the sample has been drawn. The duplicate envelope containing the sample will also have a reference of the test memo. The seals should be legible. This envelope along with test memos should be kept in another envelope which should also he sealed and marked "Secret Drug sample/Test memo", to be sent to the chemical laboratory concerned.” 17. From a perusal Instruction 2.4, it is evident that it is advisable to draw one sample in duplicate from each package/container in case of seizure of more than one package/container. Instruction 2.5 provides an exception to Instruction 2.4. It has been provided in Instruction 2.5 that when the packages/containers seized together are of identical size and weight, bearing identical markings, and the contents of each package given identical results on colour test by the drug identification kit, conclusively indicating that the packages are identical in all respects, the packages/containers may be carefully bunched in lots of ten packages/containers except in the case of ganja and hashish (charas), where it may be bunched in lots of 40 such packages/containers. For each such lot of packages/containers, one sample (in duplicate) may be drawn.” 16. Reverting to the instant case, the evidence of Investigating Officer- Rajesh Jagat (PW-10). In para 12, he has clearly stated that in presence of witnesses, 56 packets containing the intoxicant ganja recovered from the possession of the accused were opened, after spreading the Tarpaulin (chadar), all of them were mixed together and reconciled and samaras panchnama was prepared and taken two samples of 50-50 grams of ganja and marked them with S-1 and S-2 and remaining ganja was filled in six bags and prepared Sample Panchnama vide Ex. P/38, which also contained his signature and signature of the accused. 9 17. Thus, it is vivid that the essential requirement before such an action drawing a representative sample can be undertaken is that the contents of each package have to be subjected to colour test by U.N. Drug testing Kit. One the test is conducted and the result indicates that all the packages are identical in all respects, then a representative sample can be taken out after bunching the packages. 18. This Court observed similar issue in the matter of Sujeet Kumar Raghav (supra) held in para 19 as under;- “ 19. Hence, the Investigating Officer was under an obligation to collect separate samples from each of the packets so that the analysis of the contents of each of the packet could be performed individually. As the seizure officer before drawing the samples, proceeded to mix the contents of the packets without subjecting them to the test by the U.N. Kit, the accused has a right to contend that one of the packet might not have contained contraband ganja. If at all the prosecution desired to prove that all the packets contained ganja, then it was essential for the samples to have been collected and analysed individually from all the packets or else, the test by U.N. Kit should have been carried out on the material present in all the 40 packets. The Hon'ble Apex Court considered a similar issue in the case of Gaunter Edwin Kircher v. State of Goa reported in AIR 1993 SC 1456 and observed as below:- “5. We shall first consider whether the prosecution has established beyond all reasonable doubt that the accused had in his possession two pieces of Charas weighing 7 gms. and 5 gms. respectively. As already mentioned only one piece was sent for chemical analysis and P.W.1 the Junior Scientific Officer who examined the same found it to contain Charas but it was less than 5 gms.. from this report alone it cannot be presumed or inferred that the substance in other piece weighing 7 gms. also contained Charas. It has to be borne in mind that the Act applies to certain narcotic drugs and psychotropic substances and not all other kinds of intoxicating substances. In any event in the absence of positive proof that both the pieces recovered from the accused contained Charas only, it is not safe to hold that 12 gms. of Charas was recovered from the accused. In view of the evidence of P.W.1 it must be held that the prosecution has proved positively that Charas weighing about 4.570 gms. was recovered from the accused. The failure to send the other piece has given rise to this inference. We have to observe that to obviate this difficulty, the concerned authorities would do better if they send the entire quantity seized for chemical analysis so that there may not be any dispute of this nature regarding the quantity seized. If it is not practicable in a given case, to send the entire quantity then sufficient quantity by 10 way of samples from each of the packets of pieces recovered should be sent for chemical examination under a regular panchnama and as per the provisions of law.” 19. Thus, from perusal of the aforesaid evidence of the Investigating Officer, who has conducted the investigation, it is quite vivid that he had first mixed all the contraband articles in chadar and thereafter taken only two samples 50-50 grams each and as such, he failed the compliance of Standing Order 1/89. 20. In light of the above judgment, considering the aforesaid facts and circumstances of the case, submissions advanced by the learned counsel for the parties, material available on record, considering the evidence of Investigating Officer- Rajesh Jagat (PW-10) and it is also vivid that prosecution has failed to examined independent witnesses before learned Trial Court, but the learned Trial Court did not appreciate all these facts and convicted the appellant for the said offence. Thus, prosecution has failed to prove its case beyond reasonable doubt and the learned Trial Court has also committed grave legal error in convicting and sentencing the appellant for offence under Section 20 (b) (ii)(C) of the NDPS Act. As such, the judgment impugned deserves to be set aside. 21.
Decision
For the foregoing reasons, the appeal is allowed and the impugned judgment dated 20.12.2021 passed by learned Special Judge (NDPS Act, 1985) No. 45/2018 is set-aside. The appellant is acquitted of the charge under Section 20(b)(ii) (C) of the NDPS Act, 1985. The appellant is in jail since 15.04.2018. He shall be set at liberty forthwith, if no longer required in any other cases. 11 22. The appellant is directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance with Section 437-A of the Code of Criminal Procedure, 1973. 23. The Trial court record along with a copy of this judgment be sent back immediately to the trial court concerned for compliance and necessary action. AMIT PATEL Sd/- (Rajani Dubey) JUDGE