APPCHfcU.it v. Stat®of Chhatt-isgarh

Single Bench: Hon'ble Shri Dilip Raosaheb beshmukh, J. Shri Prafull Bharat, learned counsel for -rfie appeilant. Shri Ashish Shukla, leamed 6.A. for the State. JU&6MENT (Delivered on rl-1ftday of August 2006) This oppeat js directed tt9ainst the judgment dated 06-09-2004 delivered by Shri Sandeep Buxy, Special Judge, (N.D.P.5.) Raipur in Special Criminal Case No.63/2003 whereby the appellont was convicted under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Acf) and was sentenced to undergo rigorous imprisonment for 7 years and a fine of Rs.25.000/-, in default of the same, to undergo additional R.I. for six months.

2. Brief facts are that Assistont Sub Inspector K. Pradhan PW-5 of Police Station-Kurud received secret information that one person was tronsportin9 ganja in a motorcycle from Dhamtari to Kurud. After recording th® said information and completing necessary formolities as required under the Act, Assistant Sub Inspector K. Pradhan PW-5 in presence of witnesses Alim Khan PW-1 and Sushil Kumar Chandrakar PW-2 apprehended the oppellont while he was going •2. on a motorcycle at Sandha Chowk. After giving notice to the appelkmt, a search was conducted. 5 K.6. of contraband ganja was found tied to the hondle in a Air Bog, 2 K.S. of ganja was found inside the dieky wrapped in a newspaper and white pofythene and 10 K.6. of gcaija was also found wrapped in a newspdper and polythene under the seat. Three sampies of 100 Sroms each were prepared and seated. Seizure memo Ex.P-5 was prepared, The accused-appellant and the seized art-icles were produced before the Officer-in-charge of Police S'hation-Kurud Ku. Bharati Sori PW-6 who entrusted the same to the custody of 1-tead Constable Suresh Singh Bais, Malkhana Incharge PW-

4. The same was entered in the Matkhana Register Ex.P-12. On 21-07- 2003, tiiree sealed sample packets of 100 gmms each as also the remaining quanti-ty of ganja in sealed packets were sent for chemical analysjs to the Forensic Science Laboratory through Constable Radhe Raman Pandey vide memo Ex.P-16 of Superintendent of Police, Dhamtrari. Vide report Ex.P-17 of the Forensic Science Laboratory, it wcss opined that all the packets contained ganja. Prosecution was lounched against the q)pellant. The appellant abjured the guilt, pleaded innocence and led no evidence in defence. The prosecution examined 7 witnesses. Relying upon tiie evidence led by the prosecution, the learned trial Judge convicted and sentenced the appellant as aforesaid in para-1. (Supra)

3. Shri Prafull Bharat, leamed counsel for the appellant has assailed the conviction of the appellant on the ground of non- comptiance of Section-52(3) & Section-55 of the Act. It uus contended that neither the Malkhana Register Ex.P-12 nor testimony of l-1ead Conslubfe Suresh Singh Bais PW-4 or Ku. Bharati Sori, Officer-in-charge of Potice Station-Kurud PW-6 reveated that the sample packets were either entrusted for safe custody at Malkhana or were afso sealed with the seal of Officer-in-charge of Police Station-Kurud. A reference was made to Rojnamchasana Ex.P-14 ( C) which reveated •that contrabcnd ganja alleged to have been seized was in a brick like ^iape wheredS the ganja examined by the Forensic Science Laborcttory was not so. It was also pointed out that while ganja was entrusted to Constable Radhe Ramcui Pandey vide memo Ex.P-16 of Superintendent of Potice, Dhamtari on 21-07-2003. reached Forensic Science Laboratory on 23-07-2003 through Constabte Radheshyam. It was urged that Malkhana Register Ex.P-12 did not show that samples were taken at any time after the contraband gonja 4.900 K..6., 1.900 K.6. and 9.900 K.6. was deposited in the Malkhana in a sealed condition. It was also argued that Atim cn PW-1 and Sushil Kumar Chandrakar PW-2 did not support the prosecution stpry and were declared hostile. Lastly, it wais argued that •the possibility of the tampeFing with the contraband articles ond samples examined by the Forensic Science Laborotory coutd not be ruled out. On the other hand, Shri <<shish Shukla, leamed 6ovt. Advocate argued in support of the impugned judgment.

5. Having considered rival submissions, I have perused the record. ^lim Khan PW-1 stated that while he was having tea in a hotel at Kurud, his signatures wrere obtained on tiie documents while the cppellont was not present. He specifically asserted that the potjce did not seize any articles from the appellant. Sushi! Kumar Chandrakoy PW-2, a labourer also stated that no seizure was affected in his presence but his signatures were obtained by the Police on the documents. Thus, independent witnesses who were alleged to haye been called by the A.S.1. K.. Pradhwi PW-5 after receiving secret iii-^-iiaa l':il ^t^^^{^!F^^^^^^^^?B; l^^^^^??113^i^%N:B;i'::^:? A. information at Police Station-Kurud vide Ex.P-1 w\d were allegedly present at the time of search ond seizure did not support prosecution story.

6. Assistan-t 5ub Inspector K. Pradhan PW-5 testified that after recording 1+>e secret information ond calling witnesas, he proceeded to Sondha Chowk ond intercepted -Hie appellant vAo was coming on a motorcycle. A search was conducted ond contrabond ganja was recovered from the motorcycle of the appeltant as stated in para-2. (Supra). He has specifically stated that he prepared a sample of 100 Grams each from each of the 3 containers in which ganja was recovered <md sealed the aimple packets as also Ihe remaining ganja.

7. An offence under the Act involves deterrent punishment which may extend up to 10 years and a fine which may also extend up to Rs. 1 Lakh. The intention of tegislature in enacting Section-55 of the Aci is clear that it reposes confidence in the Officer-in-charge of the Police Station who is a senior police officer and who is expected to take charge of the art'icles ^ized from the accused and to allow any officer who accompanies sudi articles to the Potice Station or who may be deputed for the puryo^ to affix his seal to such art-ictes or to take samples of and from them and all samples so taken shall also be sealed with a seal of the Officer-in-charge of the Police Station. The Legislative in-t'ent behind Section-55 of the Act is to ensure that the aimples so prepared are not tampered with titl they reach the Forensic Science Laboratory for chemical analysis.

8. In this case, 5ub Inspector Ku. Bharati Sori, PW-6, Officer-in- charge of the Pofice Station-Kurud did not depose in her testimony whether the articles were produced in a sealed condition by the Assistant Sub Inspector K. Pradhoui PW-5 before her or whe+her samples had already prepared and sealed by Assistant &jb Inspector {, t.C.Vl. K. Pradhan. She also did not state that samples were taken and seoled in her presence before she entrusted the seized articles for safe custody at the Malkhana. She also did not depose that she had affixed the seat of the Officer-in-charge of Potice Station-Kurud on the articles produced before her by Assistant 5ub Inspector K. Pradhan PW-5 or on the aimptes prepared therefrom. It is pertinent to note that the testimony of Head Constable Suresh Singh Bais PW-4 does not show that three samples of 100 grams each bearing the %at of Assistant Sub Inspector K. Pradhan PW-5 were deposited in the Malkhana on 17-7-2003. AAalkhann Register Ex.P-12 also does not ^iow +hat any such sample packets were deposited at the Malkhana. It merely riiows that three containers carrying 4.900 K.&., l.900 K.6. and 9.900 K.6. ganja in a sealed condition ond one motorcycle were deposited. If three sample packets were thus sent to the Forensic Science Laboratory along with the aforesaid quantity of ganja for chemical analysis on 21-07-2003, it is not explained as to from which articles three samples of 100 grams each had been taken, because the quantities mentioned in AAatkhana Register are shown to have been received at the Forensic Science Laboratory in toto. It thus become extremely doubtful as to who separated the samples from the art-icles deposited in Malkhana and when. The Matkhana Register also does not show on what ctate the samples were prepared and remaining artictes were taken out from the Malkhana. It also does not diow the name of the Constable to whom the articles were entrusted for being taken to the Forensic Science Laboratory cuid also the date thereof. A perusal of the memo of Superintenctent of Police 6- Ex.P-16 shows that the sampte packets were sent through one Constable Radhe Ramon Pandey whereas the report- Ex.P-17 of ttie Forensic Science Laboratory shows That the sample packets were received from one Constable Radheshyam. Constable ftadhe Rcunan Pandey or Radheshyam was not examined by the prosecution. Thus, •the vital link evidence is also missing in this case. 5eal affixed to seizure memo Ex.P-5 appears to be a personal seal of Assistant Sub Inspector K. Pradhon PW-5 bearing impression K.P. and not an official seai Entries in the Atalkhona Register Ex.P-12 also did not show that qaecimen impression of the seal wos deposited along with the seized articles.

9. From the above discussion, the following points emerge:- (A) Independent witnesses Alim an PW-1 and Sudiil Kumar Chandrakar PW-2 did not support -riie proaajtion story. (B) The Constable who took the sampte packets to the Forensic Science Laboratory wms not examined by the prosecution. (C) (0) Malkhona Register Ex.P-12 did not show that sample packets were deposited in the Malkhona. There was total non-complionce of Section-55 of the Act fn as much as 5ub Inspector Ku. Bharati Sori PW-6, Officer-in-charge of Police Station-Kurud did not affix •riie seal of the Officer-in-charge of the Police Station- Kurud on the ar'ticles delivered to her by Assistant Sub Inspector K. Pradhan PW-5. (E) It was extremely doubtful as to when the samples were separated from the articles deposited in the Malkhana 1 ? for being sent to the Forensic Science Laboratory and by whom. (F) The description of the articles given in Rojnamchasana Ex.P-14 (C ) and the description contained in the reporf- the Forensic Science Laboratory Ex.P-17 did not -rtiat the match and thus did not rule out the possibility art'ictes sent to the Forensic Science Laborator/ could haye been tampered wi1+i. (6) Head Constable Suresh Singh Bais PW-4 did not deposa that duly sealed sampte packets were deposited in the Mnlkhana.

10. Having thus considered the evidence led by the prosecution in its entirety, I am of the considered opinion that conviction of the oppellant under Section 20 (b) (ii) (B) of the Act and the sentence awarded thereunder by the learned trial Judge are liabte to be set aside.

11. In the result, the appea! is allowed. Conviction of the appellant under Section 20 (b) (ii) (B) of the Act and the sentence awarded •thereunder by the teamed trial Judge are set oside. The appellcint is acquitted and Aall be set at liberty forthwith, if not required in any other case. Fine. if paid, shall be refunded. __-1—• A^-——' Dilip ,.pRaos^ebDesnmukh