Chaitu Ram Verma vs State Of Chhattisgarh

The present appeal arises out of the impugned judgment of conviction and order of sentence dated 12.05.2004 passed by the learned Special Judge, Bastar at Jagdalpur (Constituted under NDPS Act, 1985) in Special Case No. 9/2004 whereby, the learned Special Judge has convicted and sentenced the appellant as under :-

Conviction

Sentence

U/s 20 (b)(ii)(B) of N.D.P.S.

R.I. for 5 years and fine of Rs. 30,000/- in default of payment additional R.I. for 1 year.

Brief facts of the case are that on 29.01.2004, Sub Inspector Harinandan Singh (PW-5) received information from the informer that the accused/appellant was coming from Boregaon to Dhanpunji and was carrying with him the contraband article i.e. Ganja. On receiving the said information, mukbir panchnama was prepared vide Ex.P/2 in presence of the witness and police party proceeded to the spot for entrapment, panchnama was prepared vide Ex.P/4, appellant was served with the notice under Section 50 of the Act vide Ex.P/5 making aware of his valuable right to search before any Magistrate or gazetted officer. Thereafter, search panchnama of police was prepared vide Ex.P/6, search panchnama of appellant was prepared vide Ex.P/7 and ganja was found in possession of appellant vide Ex.P/8, same was identified vide Ex.P/9, weighed vide Ex.P/1 but quantity has not been mentioned, samples thereof were seized vide Ex.P/10 and articles were seized vide Ex.P./11. During the course of investigation, appellant was arrested vide Ex.P/12, dehati nalshi was prepared vide Ex.P/17 and on the basis of which FIR Ex.P/19 was registered, after seizure, the investigating Officer sent sample of seized article in two different packets containing 30 grams each for chemical examination to FSL vide Ex.P/22. The report of FSL was obtained and article marked as 'A' was found Ganja vide Ex.P/24.

On completion of investigation, the charge-sheet was filed before the trial Court. The trial Court framed charge against the accused/appellant under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act.

So as to hold the accused/appellant guilty, the prosecution has examined as many as 5 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Cr.P.C. in which he denied the circumstances appearing against him and pleaded innocence and false implication in the case.

Upon consideration of oral and documentary evidence the trial Court held that the prosecution has established the guilt of the accused under Section 20 (b)(ii)(B) of Narcotic Drugs and Psychotropic Substances Act and sentenced him as mentioned above. Hence, this appeal.

Learned counsel for the appellant submits that the impugned judgment of conviction and sentence is contrary to law and facts available on record. He next submits that the learned trial court should have seen and held that both the Panch-Witnesses Jagannath (PW-2) and Buti (PW-3) have not supported the case of the prosecution. He further submits that in this case there is a non-compliance of Sections 42 and 50 of the N.D.P.S. Act which is mandatory provision and vitiates the entire case of the prosecution. He also submits that the defence of appellant is clearly proved from the evidence of investigating officer that he was detained by the police personnels while he was travelling in the bus and they had demanded money from him and when he failed to satisfy their greed he was implicated in the present case. Thereafter, he submits that the notice regarding arrest vide Ex.P/20 bears the date to be 28.01.2004 whereas the case of the prosecution the appellant was arrested on 29.01.2004 and a seizure was made from him. Investigating Officer Harinandan Singh (PW-5) had stated that in the arrest memo the date is mentioned as 28.01.2004. He gives an explanation that by mistake he had written the date as 28.01.2004 instead of 29.01.2004. This very fact speaks volume regarding falsity of present case. He lastly submits that the contraband was recovered on 29.01.2004, the samples were sent to forensic science laboratory on 31.01.2004 same was received in the laboratory on 03.02.2004. The seal was lying in the possession of I.O. The distance between Jagdalpur and Raipur is only 297 Km. The prosecution has not explained the delay in transmitting and receipt of the sample in Forensic Science Laboratory same is fatal to the prosecution case. The report of the Forensic Science Laboratory Ex.P/24 is not admissible in evidence as the person who had given the report was not produced by the prosecution in evidence and he is not an officer exempted from giving evidence. The prosecution has utterly failed to prove the guilt of the appellant beyond reasonable doubt. Therefore, the impugned judgment of conviction and order of sentence is liable to be set aside.

On the other hand State counsel supporting the impugned judgment of conviction and order of sentence submitted that the trial Court has not committed any error of law. It is in strictly in accordance with law and no inference is called for.

Heard counsel for both the parties and perused the material available on record including the impugned judgment.

Jagannath (PW-2) has stated in his statement as under;.

Ex.P/2 to Ex.P/12, part A to A and Ex.P/1, part B to B was signed by him.

He has stated in his cross examination that :

Buti (PW-3) has stated in his statement as under ;

Ex.P/2 to Ex.P/12, part B to B and Ex.P/1 part C to C was signed by him.

He has stated in his cross examination that :

Harinandan Singh (PW-5) has stated about the whole proceedings in his statement in para 11 as under ;

In this case weighed panchnama (Ex.P/1) which was prepared by I.O. and weighed by Mukesh Mishra (PW-1), it clearly reveals the fact that weighed panchnama (Ex.P/1) was signed by Harinandan Singh (PW-5) but quantity of ganja was not mentioned by him and in Mukhbir panchnama (Ex.P-2) name of co-accused Khilawan is not mentioned and instead of his name the name of appellant Chituram is mentioned. At the first instance, from these two documents, proceeding of prosecution clearly creates suspicion. In other statement which is given by Harinandan Singh (PW-5), proceedings of Ex.P/3 to Ex.P-12 has been completed by him but the question remained for consideration is that quantity of weighed ganja has not been mentioned in weighed panchnama. Thus, it is very difficult to hold that how much quantity of ganja was seized. Even otherwise, independent witness Jagananth (PW-2) has stated that he has signed the document on the next day of incident whereas Buti (PW-3) has stated that he has signed documents on the way, when he reached near the tamarind tree at village Churagaon.

In the case of N.D.P.S. investigation is very important stage and the prosecution has to prove its case beyond reasonable doubt, But in this case, it is found that the weighed panchnama (Ex.P-1) and mukbir panchnama (Ex.P-2) are wholly discrepant and untrustworthy, even there is no observance of requisite care and caution while preparing these two documents. The matériel aspect is not supported by independent witnesses, therefore, the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellant.

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 has, thus not found to have proved the charge beyond reasonable doubt against the appellant. There is enough element of suspicion. The possibility of seizure of ganja in the peculiar facts and circumstances can not be ruled out and thus, the benefit goes to the appellant.

In the result the appeal is allowed. The conviction and sentence passed by the Court below are set aside and the appellant is acquitted of the charge. The appellant is on bail. His bail bonds shall stand discharged. The fine amount, if deposited, be refunded to the appellant forthwith.