Chattisgarh High Court
Karan vs State on 7 September, 2022
Author: Rajani Dubey
Bench: Rajani Dubey
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 2560 of 2000
Order reserved on : 22/06/2022
Order delivered on : 07/09/2022
Karan, S/o Kheru Ram, Aged about 25 years, R/o
Bramhpura, Ambikapur, Police Station- Ambikapur,
District- Surguja, M.P.
---- Appellant
Versus
State of Madhya Pradesh, through Police Station-
Ambikapur, District- Surguja, M.P. (Now CG).
---- Respondent
For Appellant : Ms. Savita Tiwari, Advocate For Respondent/State : Mr. Vinod Tekam, P.L. Hon'ble Smt. Justice Rajani Dubey CAV Order 07.09.2022
1. Present appeal is preferred against the impugned judgment of conviction and order of sentence dated 22.08.2000 passed by the learned Special Judge, Raipur (C.G.) in Criminal Case No. 116/1999 whereby, the trial court has convicted and sentenced the appellant as under:-
Conviction Sentence
Under Section 22 of the R.I. for 10 years and to pay fine of
NDPS Act Rs. 1,00,000/- with default
stipulation
2. Brief facts of the case are that on 26.07.1999, Shri B.N. Singh, A.S.I., Police Station- Ambikapur received an 2 information from the informant that appellant/accused was selling brown sugar at Brahmpura, Ambikapur. He recorded the information and sent its copy to Superior Officer and they arranged a party to raid the place. Shri B.N. Singh, A.S.I along with member of raiding party rushed towards the place and caught hold of the appellant/accused. He gave him notice under Section 50 of the NDPS Act and made him aware the fact that the appellant/accused can be searched before the Gazetted officer or Magistrate as have right to do so. On being searched, accused was found in possession of 40 small packets of brown sugar. Seizure-memo was prepared and after all formalities, specific seized property was sent for chemical examination and on examination, it was found to be brown sugar which is known as heroin also. After completion of the investigation, charge-sheet was filed against the appellant and charges were framed under Section 22 of the NDPS Act.
3. So as to hold the accused/appellant guilty, the prosecution has examined as many as 6 witnesses and statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges levelled against him and pleaded his innocence and false implication in the case.
4. On the basis of oral and documentary evidence, trial court has convicted the appellant for the offence punishable under Section 22 of the NDPS Act, and sentenced him as mentioned in para 1. Hence, this appeal filed by the appellant.
5. Learned counsel for the appellant submits that the impugned judgment and conviction of order is bad in law and hence, it is unsustainable. Learned trial court has failed to consider that police has not complied with Section 50 of the NDPS Act in its true sense. The search of the appellant and seizure of packet of brown sugar is very doubtful. The police has not complied with the requirement of Section 100(4) of 3 Cr.P.C. and did not make any attempt to secure the presence of the independent witnesses of the same locality. Learned trial Court has failed to appreciate the difference in the number of the seized packets of the brown sugar and overlooked the roznamcha Sanha (Ex. P/18), wherein it has been reported that 70 packets of brown sugar has been seized from the accused/appellant but as per seizure-memo, 40 packets were seized from the illegal possession of the appellant. Seized property was sent for chemical examination after 30 days and no any explanation was given by the prosecution regarding the seized property kept in safe custody for a long time, therefore, prosecution has failed to comply with the legal provisions of Section 50 of the NDPS Act and further provision of Section 57 of NDPS Act as well, as the concerned police official did not make any report about the seizure to his Superior officer, as such the learned trial Court has failed to appreciate the evidence on record of the case in its proper perspective therefore, the impugned judgment of conviction and oder of sentence is liable to be set aside and appellant is liable to be acquitted. In support of his argument, learned counsel for the appellant has placed reliance in the matter of Raja Sonkar v. State of Chhattisgarh passed in ILR 2020 Chhattisgarh : AIR Online 2020 Chh 373 & Narcotics Central Bureau v. Sukh Dev Raj Sodhi passed in 2011 CRI. L. J. 3107.
6. Learned State counsel has supported the impugned judgment of conviction and order of sentence passed by the learned trial Court.
7. Heard counsel for the parties and perused the material available on record.
8. Manjesh Kumar (P.W.-2) & Mahendra Singh (P.W.-5) are independent witnesses of seizure but they did not support the prosecution case. Manjesh Kumar (P.W.-2) has admitted his 4 signature on Ex.P/4 (B to B part) and Mahendra Singh (P.W.-5) has also admitted his signature on Ex.P/4 (C to C part) but they did not support the prosecution case and both have stated that they were not accompanied by B.N. Singh (P.W.-1). Prosecution has examined both the witnesses but they did not admit any suggestion of prosecution in their cross- examination and were declared hostile witnesses.
9. Sanjay Soni (P.W.-3) did not identify the appellant/accused in Court and he has stated that he weighed 40 packets of brown sugar and on being weighed, total quantity of the brown sugar was found to be 5.100 Gms and he has admitted his signature on Ex.P/11 (B to B part). Santosh Prasad (P.W.-4) also did not support the prosecution case but he has admitted his signature on Ex.P/2 (B to B part).
10. Investigating Officer, B.N. Singh (P.W.-1) has stated in his examination-in-chief that he was posted as Assistant Sub- Inspector at Police Station- Ambikapur. He has also stated in para 8 of his cross-examination that he gave notice to the accused/appellant vide Ex.P/6 under Section 50 of the NDPS Act. In Ex.P/6, name of two witnesses were written i.e. Mahendra Singh & Manjesh Kumar but only Manjesh Kumar's signature was there.
11. Hon'ble Apex court in the matter of Narcotics Central Bureau v. Sukh Dev Raj Sodhi passed in 2011 CRI. L. J. 3107 has held in para 5 is as under:-
"5. The obligation of the authorities under Section 50 of the NDPS Act has come up for consideration before this Court in several cases and recently, the Constitution Bench of this Court in the case of Vijaysinh Chandubha Jadeja v. State of Gujarat [(2011) 1 SCC 609] : AIR 2011 SC 77 : 2010 AIR SCW 6800 : 2011 AIR SC (Cri) 110) has settled this controversy. The Constitution Bench has held that requirement of Section 50 of the NDPS Act is a mandatory requirement and the provision of Section 50 must be very strictly construed."5
12. B.N. Singh (P.W.-1) has admitted in para 40 of his examination-in-chief that, iz-ih- 18 esa lkUgk dza- 1842 esa iqfM;k tIr gksus dk mYys[k fd;k x;k gS rc lk{kh ls iwNk x;k fd D;k 40 iqfM;k tIr gksus dh ckr xyr gS rFkk 70 iqfM;k tIr gqbZ gS rc xokg dgrk gS fd iz-ih- 18 dh lR; izfrfyfi eSa Hkwy ls 40 iqfM;k ds ctk; 70 iqfM;k fy[k fn;k x;k gS og tks vksfjtuy jkst0 lkUgk dh dkcZu izfr yk;k gS mlesa 40 iqfM;k gh mYysf[kr dh xbZ gSA vksfjtuy lkUgk esjs }kjk ns[kk x;k rc ;g Kkr gksrk gS fd lkUgk dk ys[kd fgUnh vadks dk bLrseky djrk gS lkUgk dza- 1842 esa lkUgk dza- 1840 esa tks 4 dk fgUnh dk vad cuk;k x;k gS og vaxzsth ds NksVh fyfi ds vkj tSlk gS blesa dksbZ ?kqM a h ugh gSA pwafd ys[kd fgUnh vad dk bLrseky dj jgk gS rc v{kj 4 dks vaxzsth esa 7 dk vad fy[kdj 70 fy[kk;s tkus dh mldh izsDVhl Kkr ugh gksrhA vfHk;kstu i{k dks dgk x;k fd og iz-ih- 18 dh izfrfyfi dks lgh lR;izfrfyfi lIykbZ djs rFkk vksfjtuy lkUgk vFkkZr~ vksfjtuy ys[k ls bl izfr dk feyku djkosA
13. As per the statement of B.N. Singh (P.W.-1), date of incident was 26.07.1999 and sample was sent to FSL on 11.08.1999 vide Ex.P/25. From 26.07.1999 to 11.08.1999, it was not stated by the prosecution that whether seized property was kept in safe custody or not and Malkhana Nazir was also not examined by the prosecution.
14. B.N. Singh (P.W.-1) has admitted in para 21 of his examination-in-chief that, iz- ih- 19- lkUgk ua- 1843 fnukad 26-7-99 ds eqrkfcd eSus tIr czkmulqxj lhycan iSdsV esa Fkkus ds eqa'kh dks fn;k Fkk vkSj mlls ikorh fy;k FkkA eky izkIrh dh ikorh iz/kku vkj{kd us nh gS og iz-ih- 20 gS ftlds v ls v Hkkx ij eky eksgZfjj ftrsUnz flag ds gLrk{kj gSA
15. Malkhana Nazir's register was not produced before the trial Court and he was not examined by the prosecution.
16. As per Section 50 of the NDPS Act, conditions under which search of persons shall be conducted are as under:-
"(1) When any officer duly authorised under section 42 is about to search any person under the provisions of section 41, section 42 or section 43, he shall, if such person so requires, take such person without unnecessary delay to the 6 nearest Gazetted Officer of any of the departments mentioned in section 42 or to the nearest Magistrate. (2) If such requisition is made, the officer may detain the person until he can bring him before the Gazetted Officer or the Magistrate referred to in sub-section (1). (3) The Gazetted Officer or the Magistrate before whom any such person is brought shall, if he sees no reasonable ground for search, forthwith discharge the person but otherwise shall direct that search be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to believe that it is not possible to take the person to be searched to the nearest Gazetted Officer or Magistrate without the possibility of the person to be searched parting with possession of any narcotic drug or psychotropic substance, or controlled substance or article or document, he may, instead of taking such person to the nearest Gazetted Officer or Magistrate, proceed to search the person as provided under section 100 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall record the reasons for such belief which necessitated such search and within seventy-two hours send a copy thereof to his immediate official superior."
Section 55 of the NDPS Act reads as under:-
"An officer-in-charge of a police station shall take charge of and keep in safe custody, pending the orders of the Magistrate, all articles seized under this Act within the local area of that police station and which may be delivered to him, and shall allow any officer who may accompany such articles to the police station or who may be deputed for the purpose, to affix his seal to such articles 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."
In this case, the Investigating Officer stated that he is the Assistant Sub-inspector, but he is not the Gazetted Officer.
717. Learned trial Court found in para 11 of its judgment that in this case, Investigating Officer had not followed the provisions of sections 42 (2) & 57 of the NDPS Act.
18. In this case, prosecution has not proved this fact that whether seized property was kept in safe custody or not, therefore, procedure of Sections 42, 50, 55 & 57 was not properly followed by the Investigating Officer and FSL report has also not been filed by the prosecution.
19. In para 12, learned trial Court found that photocopy of report was called and accused has not challenged the report of copy of FSL. Learned trial Court found that 40 packets of brown sugar were found and identified and on being weighed, weight of 40 packets was found to be 5.100 Gms including paper. After separating the paper, from the packets, the weight of brown sugar was found to be only 1.540 Gms. But this is the case of the prosecution and prosecution is duty bound to prove its case beyond all reasonable doubt against the accused/appellant. FSL report was not exhibited by the trial Court and as per para 12, photocopy of report was called but that photocopy was not listed in exhibited documents.
20. On minute examination of above stated evidence, it is clear that in the instant case, prosecution has not complied with the provisions contained in Sections 42, 50, 55 & 57 of NDPS Act. Independent witnesses also did not support the prosecution case. Statement of Investigating Officer is also not reliable, thus conviction of the appellant is not sustainable.
21. Looking to the above discussion, this Court finds that prosecution has not proved its case beyond reasonable doubt against the appellant. The finding of the trial Court is not in accordance with law and the evidence on record, therefore, the appellant is entitled to get benefit of doubt.
22. Consequently, the appeal is allowed and the impugned 8 judgment of conviction and order of sentence is hereby set aside. The appellant is acquitted of the charges framed against him. He is reported to be on bail. His bail bond shall stand discharged. Fine amount if deposited by the appellant be refunded to him.
Sd/-
(Rajani Dubey) Judge Ruchi