Subhash v. State'of Chhatt'isgarh

Before: Hon'ble Shri Ditip Raosaheb Deshmukh, 3. Subhash Vs. State'of Chhatt'isgarh Present: M Shri Shailendra Dubey, teamed counsel with 5hri Rajneesh Dubey for the appellont Shri Arun 5ao, ©overnmentAdvocate for the State. JUD6MENT (belivered on 27th day of June 2006) In this appeal, tiie appellant has dssailed his conviction under Section 20 (b) (ii) (C) of the Narcotic Dnigs and Psychotropic Substances Act, 1985 (hereinafter referred to as 'the Act of 1985') and the sentence of ri9orous imprisonment for ten years and a fine of Rs.l in default of the same, to undergo additional R.I. for one year and six months, awarded by Shri R.S.Sharma, Special Judge, N.D.P.S. Act, Bastar, place Jagdalpur in 5pecial case No.27/2003 vide Judgment dated 12.11.2003.

2. Brieffy stated the prosecution story is that on receiving secret information that the appetlant was in possession of contraband ganja, Sub-Inspector Pramila Mandavi P.W.4, Station House Officer of Police Station Narharpur, after complying with the necessary formalities went to village Dumai^iani and found the appellant possession of 5 ptastic bags containing gmja like substance. The suspected contraband article was weighed by Mohd. ydiya AAemon P.W.3 vide Ex.P.9 and found to wreigh 50 kilograms 200 grams. Two samples of 100 groms each were taken and were sealed. The remaining ganja was also sealed in two different packets. The seal bore impression "M*. F.I.R. was lodged vide Ex.P.17 by Sub-Inspector Pramila Mandavi on the same day. The ymja was entrusted for safe custody to the Malkhana vide Ex.P.l(C). On 6.6.20)3 the two samples were detivered by Constable Kush Kumar Sahu No.512 in the Forensic Science Laborotory, Raipur. <,In its report Ex.P.29, while opining that the subslwice in both the sample packets was gemja, the impression of the seal found on the sample packets was also drawn ond dnown os "Police Department, Narharpur". After completion of investigation, the appelkmt was prosecuted under Section 20(b)(ii)(C) of the Act of

3. The appellant abjured the guitt, pleaded innocence ond led no evidence in defence. The prosecution examined only four witnesses. It is shocking to find that the statements of witnesses in three different cases were recorded simultaneousty caid carbon copies were prepared and blemk space was left for name of counsel and weight of ganja seized etc., which were filled in tater. Relying upon the sole testimony of Sub-Inspector Pramila Mandavi P.W.4 ond the report of Forensic Science Laboratory, the trial Judge convicted ond sentenced the oypellant os aforesaid in paragroph 1. After a very lengthy discussion of the evidence from parographs 16 to 29 in about eight pages, the trial Judge concluded that there was sufficient complunce of Section 50 of the Act of 1985 and ignored the decision of the Apex Court in Surbax Sinah v. State of Harycsw 2001 CRI.L.J. 1166 <md State of Pmyds v. Baldev Singh 1999 (6) SCC 172 that the provision contained in Section 50 of the Act of 1985 applied only to personal seafch and was not attracted in the present case at alt. It is also shocking to find that the leamed trial Jud9e had perused the report of F.S.L. ^aragrcyh 56) ond desp'rte the glaring difference in the impression of seal on the panchmimaEx.PAO and the seal the sample packets by the F.5.L., yet held in paro 57 of -the the seal affixed on the sample packets matched wi1h the found on judgment specimen impression of the seal prepared by Sub-Inspector Promita Mandavi P.W.4.

4. Shri Shailendra Dubey, leamed counsel for the oypeltant has argued that the possibility that the samples sent for chemical analysis to the F.5.L. had been tampered with could not be ruted out since the specimen impressron of seal on pawfianama Ex.P.10 ond the impression of seal drawn by the F.5.L. we.rs completely different. It was also contended that -the Malkhana register Ex.P.1 (C) did not show that the seized quantity of ganja os also the sampte packets were entnisted in a sealed condition for safe custody. Complkmce of Section 55 of the Act of 1985 was also not proved due to which conviction of the appellant was bad in hw. It was also contended that the evidence led by 1+ie prosecution did not establish that the ganja was recovered from the conscious possession of the appelhnt since the testimony of Ashok Kumar P.W.2 revealed that three persons, carrying contniband ganja in 15 bags weighing 1 quintal and 58 kilograms, were oyprehended, ond thereafter cyport-ioning the gwija on rondom basis, all the three persons were separately prosecuted. On the other hand. although Shri Arun Sao, teamed Sovemment Advocate argued in support of the impugned judgment formalfy, yet he did not dispute the aforesaid factual ajbmissions made by the learned counsel for the appellont.

5. Having considered the rival submissions, I have perused the record. At the very outset, it must be said that the manner in which Shri R.S.Sharma, the then Special Judge, N.D.P.S. Jagdalpur recorded the evidence of witnesses by making carbon copies in three different cases, after leaving blank space for quantit/ and name of counsel the deposition to be filled in later, shocks the judicial conscience of this Court and shows the most perfunctory monner in which Shri R.S.Sharma, teamed Special Judge conducted the trial. In an offence under Section 20(b)(ii)(C) of the Act of 1985 which mvolved minimum imprisonment for 10 years andi.a minimum fine of Rs.l lakh, the learned trial Judge before placing relionce on the report of F.S.L. did not apply his mind to the glaring difference in the impression of the seal drawn by the F.5.L. and the specimen impression of the seal drown on EX.PIO. It appears that Shri R.S.Sharma, without opplication of judicial nnind, mechanically recorded the finding that the seal on the sample packets matched with the ^iecimen impression of -the seal Ex.P.10 and convicted the oppellcmt.

6. Specimen impression of the seal used for sealing the samples was affixed on Ex.P.10 which shows that either the seal had the mark "M" °W" whereas the report of the F.S.L. clearly shows that the found on the sample pockets had the impression "Police Department Narharpur". Head Constable Shiv Pnisad Sonwani P.W.l did not depose that the contraband ganja in two bags and two sample packets were entrusted to him for safe custody in a sealed condition. Copy of the Malkhana register Ex.P.l(C) ulso did not mention that the two bags or the two sample packets were entrusted in the Malkhana in a sealed condition. Constable Kush Kumar Sahu No.512 who took the samples to the F.S.L. was not examined by the prosecution. Thus, it cannot be ruled out that the sample packets sent for chemical analysis had been tampered with. Sub-Inspector Pramila Mandavi P.W.4 did not depose in her -testimony that the seal affixed on the two sample packets prepared by her were of the 5.H.O. of P.5. Narharpur. Thus, ~^MB ? there wos total non-compliance of Section 55 of the Act of 1985 which also renders -the conviction of the appellant bad in law in the aforesaid circumstances.

7. The testimony of Mohd. Yohya Memon P.W.3 also shows that the d^»osition of the witness in absolutely three different cases was recorded at one time by the leamed trwl Judge by making carbon copies and leaving bkmk qwce<for the quantity of ganjasnA the name t-fis testimony clearly shows that contraband gcnja was of counset etc. recovered from -three different accused-persons by the Police cmd was weighed by hifn ond found to be one quintnl 58 grams and 400 grams. It appears that Sub-Inqsector Pramito Atodavi randomly apportioned the gasnja and prepared three different cases. t-1er testimony the appellant alone was consciously carrying contraband gcmja in 5 bags is rendered wholty unreliable due to the aforesaid facts ond circumstonces.

8. Madhu Ram, independent witness of seizure was oilso not examined by the prosecution in this case. The issue of conscious possession has also been dealt wi-th in a most perfunctory manner in paragraph 43 of the judgment by the trial Judge Shri R.S. Sharma, without application of judiciat mind. Independent witness Adiok Kumar P.W.2 who is the Sarpanch of village Dumanpani has categorically stated that 15 bags of ganjawios kept in the bushes and the Police had dpprehended the three accused persons who were present in Court. This atso shows that the evidence of this witness in three distinct and different cases was recorded simultaneously by opplying carbon sheets omd leaving blank space for weight of ganjaand name of counsel. In cross-examination also, this witness admitted that the Police had.seized 15 bags of gcsnja from a pit. Mohd. Yahya Memon P.W.3 also deposed that 1 quintal 58 kilogramsand 400 gnxms yinja was recovered from three persons and the recovery was niade from the three accused-persons who were present in Court. Again it shows -that the three-accused persons in three distinct and separate in Court and evidence of this witness was cases were present recorded simultaneously in atl the three cases after leaving blonk space for the name of counsel and weight of gan/s. The testimony of Sub-In^iector Pramifo Mandayi P.W.4 also shows that on the same date she had proceeded against Prashont Aroro and Budhrom. Her statement was atso recorded with the aid of carbon copy ond necessary corrections were made relating to exhibits and btank space relating to the name of counsel which was filled in later on. Her testimony does not show the place where the 5 bags of ysnja were kept by the accused. Considering the weight of gcanfs alleged to have been seized from the appellant, it is impossible that the appellant was carrying 5 bogs of ^anyo on his person. This testimony of Sub- Inspector Pramila Mandavi P.W.4 does not show at all the places where the contraband ganja in 5 bags was kept and the reasons to show that it was in conscious possession of the appetkint. It is also noteworthy that recovery memo Ex. P.5 also does not diow the place where contraband ynja was kept in 5 bags. Weighment Panchnama Ex.P.9 shows that the ganja contained in 5 bags after weighment was transferred to two bogs. However, the 5 einpty bags in which the contraband gcaija alleged to have been seized from the oypellant were neither %ized nor produced by the prosecution before the trial Court. Thus, there is no legal and reliable evidence on record to show that 50 Kgs. oaid 200 grams ganja was found in the conscious possession of the

9. Having thus considered the evidence led by the prosecution in its entirety, the fottowing points emerge: -! a) The possibility that the two sampte packets sent for \ chemicai analysis to Ihe F.S.L. had been tampered with could b) Total non-compSiance of Section 55 of the Act of 1985, in the facts and circumstances of this case, renders the conviction of the appellant bad in iaw. c) The testimony of <|-iead Constable Shiv Prasad Sonwani and the Malkhana register Ex;P.l(C) clearly show that sampte packets as also Ihe ganja we.re not entrusted for safe custody at the Malkhana in s sea!ed condition. d) Tnere is no legal and reliable evidence to show that 50 Kgs. ond 200 grams ganja was in the conscious possession of 1+ie uppeilant. In view of 1+ie aforesaid facts and cir-cumstances, conviction of the appe!!(mt under Section 20(b)(ii)(C) of the Act of 1985 and the sentence awarded thereunder deserves to be set aside.

10. In the resuit, the appeal is aliowed. Conviction of the appelSant under Section 20(b)(ii)(C) of the Act of 1985 and the antence awarded thereunder are set aside. The appellant Is acquitted and shai! be «tat Siberty fori+iwith, if not required in any otiier case. -/ Judge