Chattisgarh High Court
Sujeet Kumar Raghav vs State Of Chhattisgarh on 9 August, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
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2024:CGHC:30134-DB
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 1338 of 2023
1 - Sujeet Kumar Raghav S/o Shri Narendra Kumar Aged About 38 Years R/o
Village Kiratpur, Police Station Chhatari, Tahsil Shikarpur, District Bulandshahar
(Uttar Pradesh)
... Petitioner
versus
1 - State Of Chhattisgarh Through Station House Officer, Police Of Police Station
Bagbahra, District Mahasamund (C.G.)
... Respondent
(Cause-title taken from Case Information System) For Petitioner : Mr. Rajesh Jain and Smt. Kiran Jain, Advocates For Respondent/State : Mr. Hariom Rai, Panel Lawyer Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Ravindra Kumar Agrawal, Judge Order on Board Per Ramesh Sinha, Chief Justice 09/08/2024
1. This criminal appeal is preferred under Section 374(2) of the Code of Criminal Procedure against the impugned judgment of conviction and order of sentence dated 24.05.2023 passed by the learned Special Judge (NDPS Act), Mahasamund, District - Mahasamund (C.G.) in Special Criminal Case (NDPS Act) No.H-17/2020 by which the appellant has been convicted for offence punishable under Section 20(b)(ii)(c) of the NDPS Act and sentenced Digitally signed by RAVI SHANKAR to undergo rigorous imprisonment for 14 years and fine of Rs. 1,00,000/-, in MANDAVI default, to further undergo rigorous imprisonment for 1 year. 2 / 12
2. Case of the prosecution, in brief, is that on 22.01.2020, Sanjay Singh Rajput, Sub Inspector of Police Station - Baghbahara received information from the informer (mukhbeer) that 02 persons in a golden colored Accord Car bearing No.C.G.04/H1323 were traveling carrying ganja with them from Khariyar road Orissa towards Raipur Chhattisgarh. On the information that they were carrying psychotropic substances, after giving notices under Section 160 CrPC vide Ex.P-1 to Tarun Dewangan and Tarun Baghel for confirmation of the information and after registering it in the Rojnamcha Sanha and duly preparing the Informer Information Panchnama (Ex.P-2) and Non Obtaining Search Warrant panchnama (Ex.P-3), along with accompanying staff and witnesses, reached the spot and set up a blockade. During the blockade, a golden colored Accord Car bearing No.C.G.04/H1323 coming from Khariyar road Orissa side was stopped in which two persons were found. On being interrogated, the driver revealed his name as Sujeet Kumar Raghav and the person sitting next to him revealed juvenile. On being carefully investigating the car on the back side in a hidden chamber they were carrying ganja sealed in 40 packets which were taped in brown colored cello tape. After given notice under Section 50 of the NDPS Act to the accused for search vide Ex.P-4 & 5 their consent was taken vide Ex.P-6. After searching of police party vide Ex.P-7 and witnesses vide Ex.P-8, Search Panchnama was prepared vide Ex.P-9.
3. After searching the said Car in the presence of witnesses, Recovery Panchnama was prepared vide Ex.P-10 which is found to be 75Kg of intoxicant like ganja. The illegal narcotic substances like ganja recovered from the vehicle jointly owned by the accused were mixed together, some quantity of it was rubbed, smelled, sniffed and burnt and it was found that it contained narcotic substances and Identification Panchnama was prepared vide Ex.P-11. Notice under Section 91 CrPC was given to the accused vide Ex.P-12 for producing documents in relation to said contraband articles. The substance was found to be cannabis. Notice to weigher (taulkarta) Rambali 3 / 12 Gupta was given vide Ex.P-13. Thereafter, on being checked the electronic weighing machine brought by weigher Rambali Gupta when it was found to be correct, Physical verification of scales Panchnama was prepared vide Ex.P-15. On weighing, the illegal drug ganja recovered from the vehicle jointly owned by the accused at the spot itself, it was found to be 75 kg and thereafter, narcotic substance weight panchnama was prepared vide Ex.P-
16. After which two samples of 100 grams each were taken out of the recovered ganja and Samras Panchnama was prepared vide Ex.P-14 and Sample Panchnama was prepared vide Ex.P17. Statement of witnesses Tarun Dewangan and Tarun Baghel were recorded vide Ex.P-23 and Ex.P-24 respectively. At the spot itself, 75 kg of narcotic ganja in the joint possession of the accused and two samples packets of 100 grams each prepared from it, 40 packets containing intoxicants like ganja kept in the vehicle of the accused which is golden colored Accord Car bearing No.C.G.04/H1323, two mobile phones, two number plates bearing number DL 3C/AK2265 and cash of Rs. 4500/- were seized from the joint possession of the accused Sujeet Kumar Raghav and a seizure sheet was prepared vide Ex.P-20. Thereafter, the seized articles were sealed in front of the accused and the witnesses and Sample Seal Panchnama was prepared vide Ex.P-18. Spot map was prepared by the police in Crime Details Form vide Ex.P-19. When evidence of the crime was found against the accused Sujeet Kumar Raghav and juvenile, they were arrested in front of the witnesses, arrest sheets were prepared vide Exs.P-21 & P-22 respectively and their parents were informed about their arrest vide Exs. P-48 and P-49 respectively.
4. After completion of process, zero dehati nalishi (Ex.P-50) was registered.
Panchnama (Ex.P-40 to 42) and inventory report of the proceedings (Ex.P-
39) were prepared through the concerned Executive Magistrate. After returning to Baghbahara Police Station, a First Information Report vide Ex.P- 51 was registered against the accused under Crime No.23 of 2020 under Section 20(b) of the NDPS Act. The sample of seized ganja was sent to 4 / 12 Forensic Science Laboratory, Raipur for testing and as per the FSL test report (Ex.P-52) received from Forensic Science Laboratory, Raipur the seized contraband article was found to be ganja. After thorough investigation, evidence of crime was found against the accused and the charge-sheet was presented against them in the Court of Special Judge (NDPS Act) Mahasamund on 17.07.2020.
5. The charges were read over to the appellant, they denied the same and claimed trial. When the accused were examined under Section 313 of the CrPC, they declared themselves as innocent and though stated that they have been falsely implicated, but no defense evidence was presented by them.
6. In order to bring home the offence, the prosecution examined as many as 13 witnesses and exhibited 52 documents Exs.P-1 to P-52.
7. Statement of the accused/appellant Sujeet Kumar Raghav was recorded under Section 313 of the CrPC in which he denied guilt. However, he has not examined anyone in his defence.
8. The trial Court after appreciating oral and documentary evidence available on record, by its judgment dated 24.05.2023 convicted and sentenced the appellant Sujeet Kumar Raghav as aforementioned. Hence, this appeal.
9. Mr. Rajesh Kumar Jain and Ms. Kiran Jain, learned counsel for appellant submit that the appellant has been falsely implicated in the present case. The mandatory provisions of the NDPS Act has not been followed by the Investigating Officer. The witnesses of search and seizure PW-1 Tarun Dewangan and PW-2 Tarun Baghel have not supported the case of the prosecution, as such, the statement of Investigating Officer is not found corroboration with the statement of independent witnesses. The witness of weight panchnama, PW-3, Rambali Gupta has also not supported the case 5 / 12 of prosecution. They further submit that the Investigating Officer has not complied with the Standing Order 1/89 and not taken sample from each packet. According to the prosecution, 40 packets of ganja were seized from the vehicle and after opening all the packets it was kept in 3 sacks from where two samples of 100 grams each were taken out from the contraband. They also submit that the Investigating Officer PW-13 Sanjay Kumar Rajput had given joint notice under Section 91 of CrPC and Section 50 of the NDPS Act to both the accused persons, which cause great prejudice to the appellant. They contended that the prosecution has failed to prove the 75 kg of ganja was seized from the possession of the appellant and other accused, because according to Panchnama (Ex.P-40), 75.900 kg, ganja was seized and according to PW-11 Balram Tamboli, the Naib Tehsildar, who conducted compliance U/s 52 of the NDPS Act, found the weight of contraband to be 75.900 kg. They further contended that the 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 aside. They placed reliance on the judgment passed by this Court in CRA No. 718 of 2022 (Bhupendra Singh @ Rana) decided on 22.01.2024.
10. They also placed reliance on the judgment passed by the High Court of Delhi at New Delhi in Amani Filedl Chris Vs. Narcotics Control Bureau reported in 2020 SCC OnLine Del 2020.
11. Learned State counsel has opposed the argument advanced by the learned counsel for the appellant and submitted that learned trial Court has rightly convicted the accused/appellant and there is no legality or infirmity in the findings of the learned trial Court, therefore the impugned judgment of conviction and sentence needs no interference.
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12. We have heard the learned counsel appearing for the parties, considered their rival submissions made herein-above and also gone through the records with utmost circumspection.
13. Independent witnesses Tarun Dewangan (PW-1) and Tarun Baghel (PW-2) have not supported the prosecution case. Witness of weighing Rambali Gupta (PW-3) has also not supported the case of the prosecution.
14. In this way, the prosecution story regarding the action taken at the spot by the panch witnesses and the weigher in the case has not been supported. Now, it is worth considering in the case that if the fact of seizure of drug Ganja has not been proved by the independent witnesses, then whether the evidence of the police witnesses presented by the prosecution can be believed. In this regard, it has been held by the Hon'ble Supreme Court in many judicial precedents that if the evidence of police witnesses is worthy of belief then the accused can be convicted on the basis of their reliable evidence also. Similarly, the judicial precedent Nathusingh Vs. State of Madhya Pradesh reported in AIR 1973 SC 2783, the Hon'ble Supreme Court has opined that there is no law that the statement of a police office or excise officer cannot be accepted in the absence of support. If the police officer's single evidence is of such a quality that it cannot disbelieved, then on the basis of his sole evidence, a conclusion can be drawn about the recovery of something (narcotic substance). In the context of the opinion expressed in the above honorable judicial precedents, it is now to be considered whether as per the evidence in the case, the Investigating Officer has conducted the investigation by following the mandatory and directive provisions of the NDPS Act which is supported by other evidence in the case.
15. 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 packet. Total 40 packet of ganja was seized from the vehicle and only two samples were 7 / 12 taken out from the contraband after mixing them, which is not permissible as per law.
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 8 / 12 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.
2.6. Where after making such lots, in the case of hashish and ganja, less than 20 packages/containers remain and, in the 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 9 / 12 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.
18. Thus, in the aforesaid situations, a representative sample can be drawn after bunching together the contents of numerous packages. The essential requirement before such an action of 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. Once 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.
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 10 / 12 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 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."
20. Reverting to the instant case, the evidence of Investigating Officer Sanjay Singh Rajput, Sub Inspector (PW-13) is most important. In para 05, he has specifically stated that at the spot itself, in the presence of witnesses, 40 packets containing the intoxicant ganja recovered from the joint possession of the accused were opened, after spreading chadar, all of them were mixed together and reconciled and Samras Panchnama was prepared vide Ex.P14 which contain his signature and signatures of the accused and on weighing 40 packets of ganja, it was found that total 75 kg was found to be intoxicant and thereafter, weighing panchnama was prepared vide Ex.P-16, which also contain his signature and signatures of the accused. In para 08, he further 11 / 12 stated that out of 75 kg of intoxicant, he had prepared samples of 100-100 grams of ganja in two plastic boxes and marked them with Article A-1 and A-2 and remaining ganja was filled in 3 bags and prepared Sample Panchnama vide Ex.P-17, which also contain his signature and signatures of the accused. In para 32 of his cross-examination, he has admitted that the weigher had weighed the alleged contraband kept in 3 sacks, total weight being 75 Kg. He also admitted that he did not get the 3 empty packets weighed prior to filling it and he cannot give any reason as to why he did not get the empty packets weighed.
21. 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 100-100 grams each and as such, he failed the compliance of Standing Order 1/89.
22. Considering the aforesaid facts and circumstances of the case and the submissions advanced by the learned counsel for the parties, material available on record and also considering the evidence of Investigating Officer Sanjay Singh Rajput (PW-13) and also considering the fact that instructions given in Standing Order No. 1/89 issued by the Central Government has not been followed in the instant case, we are of the considered opinion that the prosecution has failed to prove its case beyond reasonable doubt and the 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.
23. For the foregoing reasons, the appeal is allowed and the impugned judgment dated 24.05.2023 passed by the learned Special Judge (NDPS Act), Mahasamund (C.G.) in Special Criminal Case (NDPS Act) No.H- 17/2020 is set-aside. The appellant is acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act. The appellant is in jail since 23.01.2020. He 12 / 12 shall be set at liberty forthwith if no longer required in any other criminal case.
24. 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.
25. Let a copy of this judgment and the original record be transmitted to the trial Court concerned forthwith for necessary information and compliance.
Sd/- Sd/-
(Ravindra Kumar Agrawal) (Ramesh Sinha)
Judge Chief Justice
Ravi Mandavi