Chattisgarh High Court
Tula Ram vs The State Of Chhattisgarh on 11 December, 2009
HIGH COURT OF CHATTISGARH AT BILASPUR
Criminal Appeal No 455 of 2001
Tula Ram
...Petitioners
Versus
The State of Chhattisgarh
...Respondents
! Smt Kiran Jain counsel for the appellant
^ Shri Akhil Agrawal Panel Lawyer for the State
CORAM: Honble M r Ranganath Chandrakar J
Dated: 11/12/2009
: Judgement
JUDGMENT
Delivered on this day of 11th December 2009 Criminal appeal U S 36 B N D P S Act read with Section 374 2 of the C r P C This criminal appeal, presented under Section 36 (B) NDPS Act, read with Section 374 (2) of the Code of Criminal Procedure, is directed against the judgment of conviction and order of sentence dated 25.04.2001 passed by the Special Judge, Bastar at Jagdalpur (constituted under NDPS Act, 1985) in Special Case No. 41 of 2000, whereby the accused/appellant has been convicted under Section 20(B) (1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as "NDPS Act, 1985") and sentenced to undergo R.I. for 1 + year and to pay a fine of Rs.3,000/-, in default of payment of fine to undergo further RI for 4 months.
(2) Briefly stated, the facts of the case are that on 8-7- 2000, Sub Inspector Alok Shrivastava (PW/1) received secret information from the informer that the accused/appellant, standing near the bus stand was having some Ganja in two bags. On receiving the said information, he prepared panchnama Ex.P/1 of the same and proceeded to the spot for entrapment along with the staff and witnesses Sheikh Mashuk (PW/2) and Massu Ram (PW/3). After issuing notice under section 50 of the NDPS Act, he searched the appellant before witnesses and seized 2.766 Kilograms Ganja from the two bags in his possession. Sub Inspector Alok Shrivastava (PW/1) stated that the Ganja found in two bags from the possession of appellant was separately weighed on the spot. The appellant was found in possession of 1.420 Kilograms of Ganja in one bag and 1.346 Kilograms in the other. He prepared weighing panchnama Ex. P/10, taken out four samples of 24 gms. each (2 from each bag), seized the Ganja vide Ex. P/11, arrested the appellant vide Ex. P/12, deposited the seized Ganja in Malkhana vide Ex. P/13 and sent a detail report of this incident to his senior officers vide Ex.P/17. Thereafter, the Investigating Officer sent all the four samples (two samples from each of the bag) out of the seized Ganja to Forensic Science Laboratory for chemical examination vide Ex.P/19 from where FSL report Ex.P/20 was obtained. Sub Inspector Alok Shrivastava (PW/1) registered the first information report vide Ex.P/14. On completion of investigation, the charge sheet was filed before the trial Court.
3) The trial Court framed charge against the accused/appellant under Section 20(B) of the Act. After recording the evidence of the witnesses, the statement of the accused/appellant was recorded under Section 313 of the Cr.P.C., in which he denied the circumstances appearing against him and pleaded innocence and false implication. On evaluation of the evidence and material available on record, the Special Court convicted and sentenced the accused/appellant as noted above. Aggrieved by this judgment, the appellant has preferred this appeal.
4) Smt. Kiran Jain, learned counsel appearing for the appellant submits that there is no evidence about search and seizure in the case as both the independent witnesses have turned hostile. Learned counsel further submits that the learned trial Court should have acquitted the appellant on the ground of non-compliance of Sections 42 and 50 of the Act which are mandatory in nature. In the Roznamcha Sanha recorded by the Investigating Officer with respect to the secret information, it is nowhere mentioned that the information was correct to his satisfaction and the consent given by the appellant to be searched by the Investigating Officer cannot be treated as free consent. Learned counsel further submits that section 55 of the Act has also not been complied with as is clear from Ex.P/19, letter of Superintendent of Police by which the seized article was sent to FSL and Ex.P/20, the FSL report. The seized article was sent to FSL under Ex.P/19 through Constable R. Ramkrit Taram while the FSL report Ex.P/20 shows that the same was received through Constable no. 347 Ramdin Markam. Thus, it cannot be held that the seized article was in safe custody and there was no likelihood of tampering with the samples. Learned counsel lastly submits that there is no evidence on record that the seized article was weighed by any independent witness and the seized article was not produced before the Court during trial. In the present case, it is clear that the appellant has been convicted by the Trial Court only on the basis of solitary evidence of the Investigating Officer which is not corroborated by any independent witness. Learned counsel further submits that the conclusions arrived at by the trial Court are based on presumptions and surmises and the grounds mentioned herein above, amongst others, the impugned conviction and sentence of the appellant is bad in the eyes of law and the same deserves to be set aside and the appellant be acquitted of the charge.
5) Per contra, Shri Akhil Agrawal, Panel Lawyer for the respondent/State supporting the impugned judgment of the trial Court submits that there was no infirmity warranting any interference in appeal.
6) I have heard learned counsel for the parties and perused the record of the trial Court as well as the impugned judgment.
7) I proceed further to examine the woof of the rival contentions.
8) In a case under section 20 (B) (1) of the Act it is the bounden duty of the prosecution to prove beyond the shadow of any doubt that the contraband article was seized from the possession of accused/appellant. Further more it is also the duty of the prosecution to prove beyond doubt that the substance which had been examined by the FSL was the same which had been seized from the appellant and there was no possibility of tampering with the same.
9) The independent witnesses of the seizure and other proceedings were: Sheikh Mashuk (PW/2), a taxi driver and Massu Ram (PW/3), rikshaw puller. Both the witnesses have not supported the prosecution version and the material documents marked as Ex.P/1, Ex.P/2, Ex.P/3, Ex.P/4, Ex.P/6, Ex.P/7, Ex.P/8, Ex.P/9, Ex.P/10, Ex.P/11, and Ex.P/12. The independent witnesses are declared hostile. They categorically ascertained that they do not know about the seizure. They were called in the Police Station and made to sign certain papers. In the leading questions put to them, they categorically denied going to the spot and giving consent by the appellant for being searched by Investigating Officer. The evidence to prove that the alleged ganja was recovered from the possession of the appellant consisted of the evidence of Investigating Officer (PW/1) and panch witnesses Sheikh Mashuk (PW/2) and Massu Ram (PW/3). The panch witnesses turned hostile. Thus, apart from the testimony of the Investigating Officer, there is no independent witness as to the recovery of alleged ganja from the possession of appellant. It is also evident that the ganja alleged to have been seized from the possession of the appellant was not even produced before the trial court, so as to connect the same with the samples sent to the Forensic Science Laboratory. Further more, Ex.P/19, letter of Superintendent of Police goes to show that the samples of the seized article were sent to FSL through Constable R. Ramkrit Taram whereas Ex.P/20, the FSL report demonstrates that the samples were received through Ramdin Markam, constable no. 347. It is strange that the samples were received by the FSL on the same day on which it was sent i.e. 13.7.2000 but the person who reached to the FSL with the samples was not the same to whom it was assigned. It is also pertinent to mention here that the documents Ex.P/19 and Ex.P/20 goes to show that the sample of seal pertaining to seizure of the contraband article from the appellant was not sent to FSL for examination. Thus, it cannot be held that the samples sent to FSL were taken out from the substance seized from the possession of appellant and there was no likelihood of tampering with the same.
10) There is no material produced in the trial, apart from the interested testimony of the investigating Officer, to show that the ganja was seized from the possession of the appellant or that the samples sent to the FSL were taken from the substance seized from the possession of the appellant. In the trial it was necessary for the prosecution to establish by cogent evidence that the alleged quantity of Ganja was seized from the possession of appellant. The best evidence would have been the seized material which ought to have been produced during the trial and marked as material object. Mere oral evidence as to its feature and production of panchnama does not discharge the heavy burden which lies on the prosecution, particularly where the offence is punishable with a stringent sentence as under the NDPS Act. In this case, it is noticed that the panch witnesses have turned hostile so the panchnama is nothing but a document written by the police officer concerned. Learned counsel for the appellant rightly placed her reliance on Jitendra and Another Vs. State of M.P. reported in 2004 SCC (Cri) 2028.
11) So far as the compliance of provision under section 50 of the NDPS Act is concerned the Investigating Officer (PW/1) stated that he issued notice under section 50 of the NDPS Act to the appellant and informed him about his legal rights that he was free to be searched either before any Executive Magistrate/ any Gazetted Officer or by the Investigating Officer. On this, the appellant gave his written consent to be searched by him. This statement of the Investigating Officer is untrustworthy and the consent given by the appellant cannot be held as free consent as both the independent witnesses have turned hostile and categorically denied the fact that any notice was issued to the appellant or any consent was given by him to be searched by the I.O. If, for the sake of argument it is admitted that the appellant gave his written/free consent to be searched by the I.O., it cannot be ruled out that the consent was not obtained under pressure. Thus, in the instant case it is held that the provision under Section 50 of the NDPS Act was not complied with.
12) The provision under section 42 of the NDPS Act is meant for power of entry, search, seizure and arrest without warrant or authorization. In connection with this, the Investigating Officer (PW/1) stated that on the date of incident, he received secret information from the informer who came to the Police Station, alongwith Head Constable No. 320, Dayaluram but he was not examined by the prosecution though cited as prosecution witness in the final report and he was present during the whole proceeding of search and seizure of the alleged contraband article from the appellant. Further, it is admitted in para 18 by the Investigating Officer that he did not think it necessary to obtain search warrant from SDO (Police). Thus, it is not established that the alleged Ganja was seized by following the provision under section 42 of the NDPS Act. Apart from this, on perusal of the weighing panchnama, Ex.P/10 it is not clear that by whom the seized article was weighed. It is simply mentioned in Ex.P/10 that the alleged Ganja was found in possession of the appellant kept in two bags. On weighing the same, it was found 1.420 kilograms in one bag and 1.346 kilograms in the other. It is nowhere mentioned whether the same was weighed by any of the Police Official or by any other independent witness. Thus, it is not established that the alleged Ganja was weighed by any independent witness. In such condition the weighing panchnama Ex.P/10 cannot be held reliable and trustworthy.
13) On reappraisal of the above evidence, it is found that the evidence about search and seizure is wholly discrepant and untrustworthy. The material aspect is not supported by independent witnesses. The story is demonstrably apocryphal. Even about search, there is no observance of requisite care and caution. The provisions under sections 42, 50 and 55 have not been fully complied with in the instant case.
14) Hon'ble the Supreme Court in Dilip & another Vs. State of M.P. (2007) 1 SCC (Cri) 377 observed as under:
"20. It is well known that if two views are possible, benefit of doubt should be given to the accused.
21. We may notice that a three-Judge Bench of this Court in Jagdish v. State of M.P.3 had set aside the judgment of conviction where panch witnesses denied that search and seizure of the opium took place in their presence. (See also Ritesh Chakarvarti v. State of M.P.4)"
15) Having considered all the facts and circumstances of the case and in view of the aforesaid discussion, I am of the considered opinion that the prosecution is, thus not found to have proved the charge beyond reasonable doubt against the appellant. There is enough element of suspicion about search, seizure and safe custody of the samples sent to the FSL. Thus, the benefit goes to the appellant.
16) In the ultimate analysis, I find that this appeal is worthy of being allowed. It is accordingly allowed. The conviction and sentence are set aside and the appellant is acquitted of the charge.
17) The appellant is on bail. His bail bonds shall stand discharged. He is directed to be set at liberty forthwith, if not required in any other case. The fine amount, if deposited, be refunded to the appellant forthwith.
JUDGE