Chattisgarh High Court
Hemant Singh vs State Of Chhattisgarh on 3 July, 2024
Author: Rajani Dubey
Bench: Ramesh Sinha, Rajani Dubey
Neutral Citation
2024:CGHC:23608-DB
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Criminal Appeal No. 1697 of 2018
1. Hemant Singh Son of Bhim Singh Parihar, aged about 22 years,
resident of Village-Kaima, Thana-Satna, District-Satna (MP)
2. Raju Yadav, son of Badri Prasad Yadav, aged about 23 years,
resident of Village-Paliya, Thana-Satna, District-Satna (MP)
---- Appellants
(In Jail)
Versus
State of Chhattisgarh, through Station House Officer, Police
Station-Mahasamund, District-Mahasamund (CG)
---- Respondent
(Cause-title taken from Case Information System)
For Appellants : Mr. Vikash Pradhan, Advocate
For Respondent/State : Mr. Sangharsh Pandey, G.A.
Hon'ble Shri Justice Ramesh Sinha, Chief Justice
Hon'ble Smt. Justice Rajani Dubey, J
Judgment on Board
Per Rajani Dubey, J
03.07.2024 The appellants in this appeal under Section 374(2) of CrPC has challenged the legality, validity and propriety of the judgment of conviction and order of sentence dated 30.10.2018 passed by the Neutral Citation 2024:CGHC:23608-DB 2 Special Judge (NDPS Act), Mahasamund in Special Criminal Case (NDPS Act) No.H-25/2017 whereby each of the appellants stands convicted and sentenced as under:
Conviction Sentence Under Section 20(b)(ii)(C) of RI for 12 years, pay a fine of
Narcotic Drugs and Psychotropic Rs.1.50 lacs and in default thereof Substances Act, 1985. to suffer additional RI for one year.
02. Case of the prosecution, in brief, is that on 22.6.2017 when Ashok Yadav, Sub Inspector along with staff and witnesses, was checking the vehicles at N.H.53, Ghodari, he intercepted vehicle Maruti Car bearing registration No. UP 16 X 3577 which was coming from Tumgaon in which two persons i.e. appellants Hemant Singh and Raju Yadav were there. The vehicle was being driven by Hemant Singh. They disclosed that they have brought Ganja from Odisha in the said vehicle for the purpose of selling it in Uttar Pradesh. Thereafter, two witnesses Ramesh Kumar and Birjhu Chakradhari were called through notice and on their arrival, they were informed about Ganja being carried in the said vehicle. After obtaining consent of the accused/appellants in presence of witnesses for search of their person and the vehicle, when search was made by Ashok Yadav (S.I.) he found total 27 packets containing Ganja like substance which were kept under the middle seat in a box. After seeing, smelling, tasting and rubbing, it was found to be Ganja. Thereafter, through notice Manoj Mandal was called for weighment with electronic weighing machine and after physical verification, the said machine was found to be working properly. On weighment being done, it was found to be Neutral Citation 2024:CGHC:23608-DB 3 109.200 kg, out of which two samples, each of 100 gm, were drawn, which were marked as Article A-1 & A-2 and sealed. Cash of Rs.2000/- recovered from accused Hemant Singh and the remaining 109 kg Ganja were seized and sealed. Information regarding arrest of the appellants was sent to their relatives Bhim Singh and Badri Prasad through mobile phone. Spot map was prepared and after returning police station, offence under Crime No.308/2017 under Section 20(b) of NDPS Act was registered. Information of the whole investigation was forwarded to the SDOP, Mahasamund. Statements of the witnesses were recorded and the seized Ganja samples were sent to FSL, Raipur for chemical analysis and report was obtained. After completing the usual investigation, charge sheet under Section 20(b) of the NDPS Act was filed against the appellants before the concerned jurisdictional Magistrate. Thereafter, learned trial Court framed charge under Section 20(b)(ii)(C) read with Section 34 of IPC, to which the appellants abjured their guilt and prayed for trial.
03. In order to prove its case, the prosecution examined as many as 10 witnesses. Statements of the accused/appellants were also recorded under Section 313 of CrPC in which they denied all the incriminating circumstances appearing against them in the prosecution case, pleaded innocence and false implication. However, no evidence was adduced by them in defence.
04. Learned trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the appellants as Neutral Citation 2024:CGHC:23608-DB 4 mentioned in para 1 of this judgment.
05. Learned counsel for the appellants submits that the impugned judgment is per se illegal and contrary to the evidence available on record. Learned trial Court has failed to appreciate that the independent witnesses Ramesh Kumar Yadav (PW-4), Birju Chakradhari (PW-5) and Manoj Mandal (PW-6) have not supported the prosecution case and have turned hostile. Further, major contradiction and omission in the statement of the investigating officer (PW-09) have been overlooked. While conducting search and seizure proceedings, the mandatory provisions of the NDPS Act such as Section 50 of the Act have not been followed. In the consent panchanama of the accuse/appellants it is nowhere mentioned whether they were apprised of their legal right of being searched by the Magistrate or the police officer. In this case, the contraband allegedly seized from the appellants was not even produced before the trial court as an exhibit, which is fatal for the prosecution case. There is overwriting in Samras Panchanama (Ex.P/19) with regard to number of packets containing Ganja by applying whitener, but no signature/initial of the concerned authority was made there which makes the said panchanama doubtful. This apart, as per the procedure prescribed in Standing Order 1/89 issued by the Central Government for drawing samples from the seized contraband, the police should have drawn samples from each packet whereas it has not been done in this case. The prosecution has utterly failed to prove its case beyond reasonable doubt against the appellants by adducing cogent and reliable evidence, even then the learned trial Court has held the appellants guilty of the above offence. Therefore, Neutral Citation 2024:CGHC:23608-DB 5 the impugned judgment is liable to be set aside.
Reliance has been placed on the decisions of the Hon'ble Supreme Court in the matters of Jitendra Vs. State of MP, (2004) 10 SCC 562; Ashok Vs. State of MP, (2011) 5 SCC 123; Ashok Kumar Sharma Vs. State of Rajasthan, (2013) 2 SCC 67 and Gorakh Nath Prasad Vs. State of Bihar, AIR (SCW) 2018 0 704.
06. On the other hand, learned counsel for the State supporting the impugned judgment submits that the investigating officer at the time of effecting search and seizure proceedings has substantially complied with all the mandatory provisions of the NDPS Act. Though the independent witnesses have not fully supported the prosecution case but they have admitted their signatures on the seizure memo. This apart, the official witnesses have fully supported the prosecution case and their evidence cannot be discarded merely on the ground of they being official witnesses particularly in absence of any evidence on record to show their ill-intention or animosity as against the appellants for their false implication in this case. Learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of guilt against the appellants which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed.
07. Heard learned counsel for the parties and perused the material available on record.
08. The prosecution examined 10 witnesses to prove its case. PW-1 Jairam Sen is the Constable in Police Station-Mahasamund who Neutral Citation 2024:CGHC:23608-DB 6 deposited the sample packets of seized contraband in FSL, Raipur and exhibited acknowledgment Ex.P/1. As per PW-1, he went to the FSL, Raipur on 18.7.2017 and received Articles A1 & A2 in sealed condition and acknowledgment Ex.P/1 was submitted to the Station House Officer of P.S. Mahasamund.
09. PW-4 Ramesh Kumar Yadav and PW-5 Birju Chakradhari are independent witnesses to the documents of Ex.P/11 to Ex.P/25. Though they have admitted their signatures on these documents from A to A and B to B part respectively but did not support the prosecution case. They have been declared hostile by the prosecution and cross- examined where they denied all the suggestions of the prosecution. They stated that they signed these documents at the instance of police in the police station and they know nothing about the incident or the seizure.
10. PW-6 Manoj Mandal is said to have weighed the contraband but he also did not support the prosecution case. Though he admitted his signature on the acknowledgment of notice Ex.P/29 and weighment panchanama Ex.P/20 but denied to have done weighment of the contraband. This witness has also been declared hostile. In cross- examination by the defence, he admitted that he signed the papers in police station at the instance of police.
11. The official witnesses i.e. PW-2 Bodhanlal Diwan (Head Constable), PW-7 Trilok Singh (Constable), PW-8 SS Thakur (Sub Inspector) and PW-9 DN Yadav (Sub Inspector) have supported the prosecution case and stated as to the manner in which search and Neutral Citation 2024:CGHC:23608-DB 7 seizure proceedings were conducted and the investigation was carried out. PW-3 Neeta Aalsare, Naib Tahsildar also supported the fact that inventory and panchanama were prepared before him which is Ex.P/6 & P/7 and the photographs of the proceedings are Ex.P/8 to P/10.
12. Main objection of the appellants is that it was necessary for the prosecution to establish by cogent evidence that the alleged quantity of contraband was seized from the exclusive possession of the accused/appellants and it was also necessary that all the seizure memo and physical verification proceedings were conducted before any Magistrate but in this case the prosecution did not follow the mandatory provisions of the NDPS Act. It is also clear that the samples were not collected from all the packets which is clear from Samras Panchanama (Ex.P/19).
13. PW-9 Ashok Yadav, Sub Inspector, has stated in his examination-in-chief in para 9 that on the spot itself, from vehicle No. UP 16 X 3577 total 27 packets of Ganja were recovered which were homogenized in presence of witnesses as per Samras Panchanama Ex.P/19 which bears his signature from C to C part, signature of accused Hemant Singh from A to A part and that of accused Raju from B to B part. Relevant part of Ex.P/19 reads as under:
"fooj.k %& vkjksihx.k ¼1½ gseUr flax ifjgkj ¼2½ jktw ;kno ds dCts ls okgu dz- UP16X3577 ls cjken voS/k eknd inkFkZ tSls xkatk dqy 27 [kk[kh jax ds iSdsVksa esa Hkjk voS/k eknd inkFkZ tSls xkatk dqy 27 iSdsVksa dks [kksydj lHkh dks lejl fd;k x;k mijksDr xokgksa ds le{k lejl iapukek rS;kj fd;k x;kA"
In para 12, PW-9 also he states that on the spot itself total 27 Neutral Citation 2024:CGHC:23608-DB 8 packets containing Ganja like substance were recovered and after homogenization of the same, two samples, each of 100 gm, were drawn from it which were marked and sealed as Article A1 and A2. The relevant portion of Weighment Panchanama (Ex.P/20) reads as under:
"fooj.k %& laf{kIr fooj.k bl izdkj gS fd vkjksih ¼1½ gseUr flax ¼2½ jktw ;kno ds dCts ls cjken okgu dz- UP16X3577 esa chp okyh lhV ds ihNs uhps [kk[kh jax ds Vsi ls lhy iSd dqy 27 iSdsV ftlesa vUnj voS/k eknd inkFkZ tSls xkatk Hkjk gS dqy 27 iSdsV dqy otu 01 fDo- 9-200 fd0xzke tqeyk dherh djhc 5]45000¾00 mijksDr lHkh iSdsVksa dk FkksM+k&FkksM+k fudyokdj lHkh dks lejl dj 100]100 xzke ds 2 iSdsV lsEiy vyx fd;k x;kA"
14. It is case of the appellants that the Investigating Officer had not complied with the Standing Order 1/89 and not taken sample from each of 27 packets. Total 27 packets of ganja were seized from the vehicle and only two samples were taken out from the contraband after mixing them, which is not permissible as per law.
15. 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 Neutral Citation 2024:CGHC:23608-DB 9 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 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 Neutral Citation 2024:CGHC:23608-DB 10 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."
16. From perusal of 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 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.
17. 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 Neutral Citation 2024:CGHC:23608-DB 11 packages are identical in all respects, then a representative sample can be taken out after bunching the packages. 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 packets could be performed individually. As the investigating officer before drawing the samples, proceeded to mix the contents of the all the packets without subjecting them to the test by the U.N. Kit, the accused has a right to contend that one of the packets 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 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 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.
Neutral Citation 2024:CGHC:23608-DB 12 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."
18. PW-3 Neeta Aalsare, Naib Tahsildar, has also stated in his deposition that he prepared inventory on 11.9.2017. It is clear that the incident took place on 22.6.2017 and seizure was effected on the spot whereas the Executive Magistrate prepared inventory on 11.9.2017. Section 52 of the NDPS Act provides as under:
"52. Disposal of persons arrested and articles seized.
--(1) Any officer arresting a person under section 41, section 42, section 43 or section 44 shall, as soon as may be, inform him of the grounds for such arrest.
(2) Every person arrested and article seized under warrant issued under sub-section (1) of section 41 shall be forwarded without unnecessary delay to the Magistrate by whom the warrant was issued.
(3) Every person arrested and article seized under sub-
section (2) of section 41, section 42, section 43 or section 44 shall be forwarded without unnecessary delay to--
(a) the officer-in-charge of the nearest police station, or
(b) the officer empowered under section 53.
(4) The authority or officer to whom any person or article is forwarded under sub-section (2) or sub-section (3) shall, with all convenient despatch, take such measures as may be necessary for the disposal according to law of such person or article."
Neutral Citation 2024:CGHC:23608-DB 13
19. Thus, considering the facts and circumstances of the case, the nature and quality of evidence adduced by the prosecution; the fact that independent witnesses have not supported the prosecution case; the manner in which the investigation was carried out where the investigating officer has failed to comply with the instructions given in Standing Order No.1/89; keeping in view the settled legal position referred to above, we are of the opinion that the prosecution has not been able to prove guilt of the appellants beyond all reasonable doubt. Being so, the learned trial Court was not justified in recording conviction of the appellants under Section 20(b)(ii)(C) of the NDPS Act.
20. In the result, the criminal appeal is allowed. The impugned judgment of the learned trial Court is hereby set aside. The appellants are acquitted of the charge under Section 20(b)(ii)(C) of the NDPS Act by extending them benefit of doubt. They are reported to be in jail since 22.6.2017, therefore, they be set free forthwith if not required in any other case.
21. Keeping in view the provisions of Section 437-A of CrPC, each of the appellant is directed to furnish a personal bond in terms of form No.45 prescribed in the Code of Criminal Procedure for a sum of Rs.25,000/- with two reliable sureties in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellants on receipt of notice thereon shall appear before the Hon'ble Supreme Court.
Neutral Citation 2024:CGHC:23608-DB 14
22. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action.
23. Before parting with the judgment, it is worthwhile to observe that earlier this Court while considering Criminal Appeal Nos. 565/2023 and 1196/2023 also noticed such lethargic approach of the investigating agency which led this Court to allow the appeals by giving benefit of doubt to the appellants vide judgment dated 1.5.2024. Hence we directed the Director General of Police, Raipur and other investigating agencies to issue necessary advisory for strict compliance of the mandatory provisions of the NDPS Act so that the accused may not take benefit of such lapses as the offence like the presence one is the offence against the society which weakens the basic structure of the society and so it must be dealt with heavy hand strictly in accordance with law and procedure prescribed therefor to protect the future of this country.
24. The Registry (Judicial) of this Court is directed to send a copy of this judgment to the Director General of Police, Raipur (CG) forthwith for necessary information and further compliance.
Sd/ Sd/
(Rajani Dubey) (Ramesh Sinha)
Judge Chief Justice
Khan