Ajay Kumar Kahar vs State Of Chhattisgarh

This appeal has been preferred by the accused/appellant under Section 374(2) of Cr.P.C. being aggrieved by the judgment dated 25.06.2019 passed by the Special Judge (NDPS Act), Raipur, District Raipur (C.G.) in Special Criminal Case under the NDPS Act No.222/2017, whereby the appellant has been convicted under Section 20(b) (ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short ‘the Act’) and sentenced to undergo rigorous imprisonment for 10 years and fne of Rs.2,00,000/-, in default of payment of fne, additional R.I. for 1 year.

According to the case of prosecution, on 01.07.2017, Peer Mohammad (PW-10), Assistant Sub-Inspector (ASI) received a secret information through the informer that at House No.P-34 situated at Awanti Bihar, Sector-2, Telibandha, Raipur (C.G.), the present appellant is in possession of large quantity of contraband ‘ganja’ and is searching for customers in order to sell the same. Acting upon the information, the preliminary formalities was done by Peer Mohammad, ASI and reached at the spot along with other police staff and witnesses and caught hold the present appellant from the said house. On being search, the alleged contraband was found inside the bed which was inside the appellant’s room wherein contraband ‘ganja’ of 256 Kg 450 grams was found in big and small packets from inside the bed (diwan). After completion of necessary formalities under the Act and after completion of the investigation, charge-sheet was fled. Trial Court framed the charge. Total 14 witnesses were examined by the prosecution. In examination under Section 313 of the Cr.P.C., the appellant denied the guilt and pleaded innocence. Defence was taken by the appellant that the house from where the alleged contraband ‘ganja’ was seized was in the possession of Mehboob @ Babubhai Solanki (PW-3) and he along with other persons (workers of Mehboob @ Babubai Solanki) were residing there. The appellant was not aware of the fact that the alleged contraband was kept inside the bed (diwan), therefore, he was not in the exclusive possession of the seized contraband. However, no defence witness was examined by the appellant. After completion of the trial, the Trial Court convicted and sentenced the appellant for the offence mentioned in paragraph one of this judgment. Hence, this appeal.

Learned Counsel appearing for the appellant submitted that without there being sufcient and clinching evidence available on record, the Trial Court has wrongly convicted the appellant. It is further submitted that there is no evidence available on record to connect the appellant with the crime in question. It is further argued that the alleged contraband was seized from the bed of a room situated in the godown and appellant used to reside there along with other persons, therefore, it cannot be said the alleged contraband was seized from the exclusive possession of the appellant. Seizure of the alleged contraband and samples packets were prepared at about 16:00 PM and mix seal panchnama was prepared at 16:25 PM, thereafter, at 16:50 PM, the sample seal panchnama was prepared, which is not possible. It shows that later on, all the documents were prepared by the investigation ofcer at once. Therefore, statement of the investigation ofcer i.e. Peer Mohammad (PW-10) is not reliable as none of the independent witnesses has supported the case of the prosecution. It is further stated that though sample packets were shown to be prepared from the seized contraband but none of the documents prepared by the investigating ofcer shows that those packets were marked as ‘A’ and ‘B’ and the sample packets which were sent for chemical examination were marked as Article ‘A’ and ‘B’, which also create a doubt that the sample packets which were prepared was sent or some other packets were sent. Rohit Kumar (PW-13), Constable No.2639 who deposited the sample packets for F.S.L. has admitted the fact that the sample packets were obtained by him from Malkhana on 02.07.2017 but entries of Malkhana register shows that the said sample packets were handed-over to him on 03.07.2017. Thus, the case of the prosecution appears to be doubtful. Lastly, it is submitted that provision of Section 55 of the Act has also been not duly complied with. Therefore, the conviction of the appellant is not sustainable.

Learned Counsel appearing for the State supported the impugned judgment passed by the Trial Court and submitted that on the basis of evidence available on record, the Trial Court has rightly convicted the appellant.

I have heard Learned Counsel appearing for the parties and perused the record of the Court below including the evidence both oral and documentary with due care.

Independent witnesses namely Ajay Sori (PW-1), Daulal Yadav (PW-2), Mehbood @ Babubhai Solanki (PW-3), Anil Kumar Wadhwani (PW-4) and Sohan Yadav (PW-5) have not supported the case of prosecution and turned hostile. According to the case of prosecution itself, House No.P-34, situated at Awanti Vihar, Telibandha Sector 2, Raipur, from where the alleged contraband ‘ganja’ was seized, was owned by one Gajendra Singh (not examined) which was given on rent to Mehboob @ Babubhai Solanki (PW-3). Further case of the prosecution is that Mehboob @ Babubhai Solanki (PW-3) used to run catering services and only for this purpose, he has taken the said house on rent as godown. This witness has admitted that in the said godown, there were four rooms, one kitchen and one ofce room. There were total 15 persons (male and female) used to reside in the said house for catering work only and Sohan Yadav (PW-5) was head person among 15 persons. Sohan Yadav (PW-5) has admitted the above fact in his statement. Thus, from the evidence available on record and from the statement of Mehboob @ Babubhai Solanki (PW-3) and Sohan Yadav (PW-5), it is established that owner of the house Gajendra Singh had given the said house on rent to Mehboob @ Babubhai Solanki (PW-3) in which there were four rooms, one kitchen and one ofce room. It is also established that in the said house, total 15 persons (male and female both) including the appellant used to reside.

Peer Mohammad (PW-10), the investigating ofcer of the case in his Court statement has deposed that on the basis of information received from the informer, he reached at the spot and searched the house. According to him, in the said house, there was a room wherein a bed (diwan) was there and the alleged contraband was kept inside the said bed. In paragraph 10 of his cross-examination, he has admitted the fact that during investigation, he came to know that there were many persons (male and female) used to reside in the said house who used to do the catering work. He further admitted that when he reached at the house, the appellant was alone present there. In paragraph 16, he categorically admitted the fact that after reaching the spot, he did not inquire about the possession holder of the said house. Even, he did not inquire about the said house with the owner of the house.

According to the case of the prosecution, at the time of search, Sohan Yadav (PW-5) who was the head person of the workers was also present there. He has categorically stated in his statement that at the time of search, when police ofcials came there, two persons who used to reside in the house had gone to take tea, and upon seeing the police ofcials, they both fed away.

Peer Mohammad (PW-10), investigating ofcer in paragraph 12 of his cross-examination has admitted the fact that seizure memo (Ex.P-14) was prepared at about 16:00 PM in which the alleged contraband ganja and sample packets were seized in sealed condition. In paragraph 13 of his cross-examination, he further admitted that mix seal panchnama (Ex.P-15) was prepared by him at 16:25 PM whereas seal panchnama (Ex.P-16) was prepared at 16:50 PM wherein two sample packets of seized contraband were prepared and sealed. As stated by this witness, if such process had taken place, then at frst if, at 16:00 PM, sealed sample packets of ganja were seized and prepared, then in that condition, it would not be possible to mix ganja at 16:25 PM and then at 16:50 PM sample packets were prepared. He further admitted that in seizure memo (Ex.P-14) he had put the time mistakenly as 16:00 PM whereas seizure memo was prepared at 17:00 PM.

Further, case of the prosecution is that the sample packets which were marked as Article ‘A’ and Article ‘B’ were sent for chemical examination through Rohit Kumar (PW-13), constable No.2639. This witness in paragraph 3 of his cross-examination had admitted that he had received the draft (Ex.P-37) of ofce of Superintendent of Police and sample packets on 02.07.2017. According to the statement of Rajendra Kumar Verma (PW-8), Head Constable No.684, from the Maal Moharir, and from the entries of Malkhana register (Ex.P-27), it is seen that the sample packets were handed-over to Rohit Kumar (PW-13) on 03.07.2017. It is also seen that the sample packets which were sent for F.S.L. were marked as Article ‘A’ and Article ‘B’ but there is no document available on record which shows that the said sample packets which were prepared were marked as Article ‘A’ and Article ‘B’.

As stated by Peer Mohammad (PW-10), ASI and according to the documents prepared by him which are annexed with the records shows that the sample packets and seized contraband were deposited in the Malkhana on 01.07.2017. Peer Mohammad (PW-10), ASI, who seized the contraband and deposited the same in the Malkhana is the Ofcer of rank of Assistant Sub-Inspector (ASI) of Police Station Telibandha. There is nowhere stated in his statement that he was the Ofcer In-charge of the Police Station Telibandha. If he was not the Ofcer In-charge of the Police Station, only Ofcer of the Police Station, who had effected the seizure, Section 55 of the Act required him to handover the entire quantity of ganja allegedly seized by him along with sample to the Ofcer In-charge of the Police Station and it was the duty of the Ofcer In-charge of the Police Station, as mandated under Section 55 of the Act to take charge and keep all the articles in the safe custody. Section 55 of the Act further oblige him to put his seal as Ofcer In-charge of the Police Station and keep the articles in safe custody. There is no material placed by the prosecution before this Court that Peer Mohammad (PW-10), ASI, after return to the Police Station, entrusted allegedly seized ganja in the hands of the Ofcer In-charge of the Police Station and thereafter, the Ofcer In-chage of the Police Station afxed his seal on the quantity of ganja as well as on the packets of samples and then it was deposited in the Malkhana of the Police Station. Even in the FIR or in the Malkhana Register, no such mention has been made. Thus, in the case in hand, there is clear cut non-compliance of Section 55 of the Act is seen.

On minute examination of the evidence adduced by the prosecution, it is clear that the seizure witnesses and other independent witnesses have not supported the case of the prosecution. The case of the prosecution is only based upon the statement of Peer Mohammad (PW-10), ASI and other police ofcials. From the admissions made by Peer Mohammad (PW-10), Mehboob @ Babubhai Solanki (PW-3) and Sohan Yadav (PW-5), it is also clear that the house wherein the search was done, was owned by one Gajendra Singh (not examined) who had given the said house to Mehboob @ Babubhai Solanki (PW-3) on rent. It is also clear that the said house was used for catering purposes and about 15 workers (male and female) used to reside there and Sohan Yadav (PW-5) was head of the workers. As per the admission made by Sohan Yadav (PW-5), at the time of raid (search), when police ofcials came there, two persons who had gone to take tea, upon seeing the police ofcials, fed away from the spot which creates doubt that the alleged ganja which was seized from the house, was kept by the appellant. But there is no evidence available which can establish that the house wherein the alleged ganja was seized from a bed (diwan) of a room, was in the exclusive possession of the appellant. There is evidence available which shows that in the said house, about 15 workers used to reside for catering purpose.

Looking to the above, in the considered view of this Court, it is not established that the alleged ganja which was seized, was in the exclusive possession of the appellant. It is also established that the provisions of Section 55 of the Act was not complied with. Further, there is no document available on record which shows that the sample packets were marked as Article 'A' and Article 'B' and, therefore, it cannot be said that the sample packets which were sent for chemical examination marked as Article 'A' and Article 'B' where made from the seized alleged ganja relating to this case.

Further, from the statement of Rohit Kumar (PW-13), Constable No.2639 and as per the draft (Ex.P-37), the sample packets were received to him on 02.07.2017 but entries of Malkhana register shows that the sample packets were handed-over to him on 03.07.2017. And in this regard, the prosecution has not made any explanation. It is also seen that as per seizure memo (Ex.P-14), at about 16:00 PM, the alleged contraband ganja and sealed sample packets were seized in sealed condition. In this circumstance, mix seal panchnama (Ex.P-15) which was prepared at 16:25 PM and seal panchnama (Ex.P-16) which was prepared at 16:50 PM, appear to be suspicious. Therefore, there is substance on the arguments raised by learned Senior Counsel appearing for the appellant that the above mentioned documents would have been prepared at a glance after 16:00 PM.

Looking to the entire evidence discussed above, in my considered view, the conviction of the appellant under Section 20(b) (ii)(c) of the Act is not sustainable and hereby set aside.

Consequently, the appeal is allowed.

Record of the Court below be sent back along with a copy of this judgment forthwith for information and necessary compliance.