Krishna Bala vs State of Chhattisgarh

Radhe Shyam Sharma, J.—These appeals are directed against the judgment and order dated 29th April, 2008 passed by Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth ''the Act, 1985''), Rajnandgaon in Special Case No. 10/2007. By the impugned judgment, appellants Krishna Bala, Ranjit Chaudhary, Probhash, Nakul Vishwas and Ashutosh have been convicted u/s 20(b)(ii)(c) of the Act, 1985 and sentenced to undergo R.I. for 10 years and to pay fine of Rs. 1,00,000/- each, in default of payment of fine, to further undergo R.I. for 3 months. The case of the prosecution, in brief, is as under:

On 6-9-2007, Assistant Sub-Inspector Manilal Maheshwari (PW-9) was posted as Assistant Sub-Inspector in Police Station Gandai. On that day, he received information from the mukhbir that some persons were bringing ganja in a truck from Orissa and they were going towards Kawardha. He recorded mukhbir suchna panchnama (Ex. P/13) and also entered it in rojnamcha sanha (Ex. P/3). He transmitted the same information to SDO(P), Khairagarh vide Ex. P/34. Thereafter, he proceeded for further action. One truck was going towards Kawardha from Gandai. He stopped the truck. In the truck appellants Ranjit Chaudhary, Probhash, Nakul and Krishna Bala were sitting. On being enquired, the appellants told their names. The appellants were informed about their right u/s 50 of the Act, 1985. The consent of the appellants regarding search were recorded vide Ex. P/15 to P/19. Thereafter, Manilal Maheshwari, Assistant Sub-Inspector (PW-9) searched the truck bearing registration No. MP 09 KA 5965, in which near about 9 bora (bags) were found. Identification of recovered article was conducted vide Ex. P/33. After physical verification, it was found that the recovered article was ganja. Ganja was weighed on the spot and it was found that out of 9 bags, one bag had contained 3.500 kg., one bag had contained 31.900 kg., third bag had contained 32.180 kg., fourth bag had contained 31.110 kg., one plastic bag had contained 8.650 kg., one small bag had contained 15.190 kg. and other bag had contained 3.800 kg. Search panchnama (Ex. P/2) was prepared. Ganja was seized vide Ex. P24. 18 samples of the seized ganja were prepared separately. Truck bearing registration No. MP 09 KA 5965 was also seized vide Ex. P/26. The appellants were arrested vide Ex. P/27 to P/31. Spot map (Ex. P/32) was prepared.

Manilal Maheshwari, Assistant Sub-Inspector (PW-9) came back to Police Station, Gandai along with the appellants and seized articles and recorded First Information Report (Ex. P/46) in Police Station, Gandai. Action taken report was sent to SDO(P), Khairagarh and Police Superintendent, Rajnandgaon. The seized ganja and its samples were kept in Malkhana. 18 samples of the seized ganja were sent to Forensic Science Laboratory (FSL), Raipur for their chemical examination vide Ex. P/39. A report (Ex. P/49) was received therefrom in which the test of ganja was found positive in all the 18 samples.

After completion of the investigation, charge-sheet was filed against the appellants in the Court of Special Judge under the Act, 1985, Rajnandgaon, who conducted the trial and convicted and sentenced the appellants as mentioned above.

Shri Praful N. Bharat and Shri Sunil Sahu, learned counsel for the respective appellants argued that there was no compliance of provisions of Sections 42, 50, 55 and 57 of the Act, 1985. They further argued that there are material contradictions in Ex. P/13 and further argued that there are material contradictions in Ex. P/13 and Ex. P/41. In Ex. P/13, it is mentioned that Manilal Maheshwari, Assistant Sub-Inspector (PW-9) received secret information from the mukhbir that some persons coming from Orissa by a truck and going towards Kawardha and bringing ganja in the truck. In Ex. P/41, the name of appellant Ranjit Chaudhary was mentioned. If secret information had been received by Manilal Maheshwari, Assistant Sub-Inspector (PW-9) and if he had prepared mukhbir suchna panchnama immediately then Ex. P/13 would have also contained the name of appellant Ranjit Chaudhari. It appears that he had not complied the provisions of Section 42 of the Act, 1985. They further argued that the ganja was not sealed by the Station House Officer before handing it over to Malkhana, the samples were sent to FSL, Raipur belatedly. There is no explanation therefore. Therefore, there is possibility of tampering of the samples. The investigating officer did not prepare seal panchnama and specimen seal was not affixed on the seizure memo and other requisite documents. The search of the appellants was not conducted according to the provisions of the Act, 1985. Hence, the appellants deserve to acquittal.

Shri Anup Majumdar, learned counsel appearing for appellant Ashutosh argued that appellant Ashutosh is not owner of the seized truck. He was not present on the spot. He was arrested on 27-10-2007 i.e. after about one month and 20 days of the incident. He further argued that the prosecution has not adduced by evidence to show the existence of any criminal conspiracy between appellant Ashutosh and the other appellants to transport the contraband. There is nothing on record even to suggest that this appellant and other appellants were closed or even known to each other. In such circumstances, appellant Ashutosh cannot be convicted for offence u/s 20(b)(ii)(c) of the Act, 1985 and he deserves to acquittal.

Shri Ashish Shukla, Govt. Advocate and Shri Mahesh Mishra, Panel Lawyer appearing on behalf of the State, supporting the impugned judgment, submitted that the conviction and sentence awarded by the learned Special Judge do not call for any interference by this Court.

I have heard learned counsel for the parties at length and have also perused the record of Special Case No. 10/2007.

The prosecution examined Mela Ram (PW-1), Ganga Ram, Head Constable/Malkhana Moharir (PW-2), Budharu (PW-3), Mangla (PW-4), Head Constable Sukalu Ram (PW-5), M.V.D. Prasad Rao (PW-6), Sub-Inspector Ram Gopal Soni (PW-7), Constable Shyam Thaver (PW-8), Assistant Sub-Inspector Manilal Maheshwari (PW-9), Patwari Shakti Kumar (PW-10). The appellants did not examine any witness in their defence.

Now, I shall examine whether provisions of Section 42 of the Act, 1985 has been substantially complied with or not.

Manilal Maheshwari, Assistant Sub-Inspector (PW-9) deposed that on 6-9-2007, he was posted as Assistant Sub-Inspector in Police Station Gandai. On 6-9-2007, he received a secret information that the appellants were bringing ganja in a truck from Orissa and they were going towards Kawardha for selling the same. He further deposed that he recorded the mukhbir suchna panchnama vide Ex. P/13 and also entered it in the rojnamcha sanha vide Ex. P/3 with its copy Ex. P/3C. He further deposed that the secret information was sent to SDO(P), Khairagarh in a closed envelop through constable Shyam Thavre (P.W. 8) and to that effect, an entry was made in rojnamcha sanha No. 5 vide Ex. P/6C. Shyam Thavre (PW-8) deposed that he went to the resident of SDO(P) Khairagarh and handed over it to Reader to SDO(P), Khairagarh and obtained acknowledgment vide Ex. P/35. Sukalu Ram (PW-5) deposed that he was posted as Reader in the office of SDO(P), Khairagarh. He further deposed that he had received mukhbir suchna panchanama vide Ex. P/34 and had acknowledged the same vide Ex. P/35.

Manilal Maheshwari, Assistant Sub-Inspector (PW-9) specifically deposed that he received mukhbir suchna panchnama and recorded it in rojnamcha sanha and also prepared mukhbir suchna panchnama vide Ex. P/13 and transmitted the same to SDO(P), Khairagarh vide Ex. P/34. His evidence is duly corroborated by Constable Shyam Thavre (PW-8) and Sukalu Ram (PW-5) and also Ex. P/34 and Ex. P/35.

Looking to the evidence of Manilal Maheshwari, Assistant Sub-Inspector (PW-9), Constable Shyam Thavre (PW-8) and Sukalu Ram (PW-5), it appears that the Assistant Sub-Inspector Manilal Maheshwari (PW-9) received a secret information, recorded the same vide Ex. P/13 and communicated it to the SDO(P), Khairagarh.

In Karnail Singh Vs. State of Haryana, the Hon''ble Supreme Court held thus:

In conclusion, what is to be noticed is that Abdul Rashid Ibrahim Mansuri Vs. State of Gujarat, did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham Vs. State of Kerala, hold that the requirements of Sections 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a) The officer on receiving the information (of the nature referred to in sub-section (1) of Section 42) from any person had to record it in writing in the register concerned and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of Section 42(1).

(b) But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of Section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith information the same to the official superior.

(c) In other words, the compliance with the requirements of Sections 42(1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is, after the search, entry and seizure. The question is one of urgency and expediency.

While total non-compliance with requirements of sub-sections (1) and (2) of Section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance with Section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending of a copy of such information to the official superior forthwith, may not be treated as violation of Section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of Section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of Section 42 of the Act. Whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to Section 42 by Act 9 of 2001. (See also Rajender Singh Vs. State of Haryana, .

Section 42(1) and 42(2) of the Act, 1985 is mandatory in nature and need to strict compliance and which ought to be construed complied with strictly compliance of furnishing information to the superior officer should be forthwith or within a very short time, while total non-compliance for requirement of Section 42(1) and 42(2) is impermissible, delayed compliance for satisfactory explanation for delay would be acceptable and whether there is adequate or substantial compliance with Section 42 or not is a question of fact to be decided in each case.

In the instant case, Assistant Sub-Inspector Manilal Maheshwari (PW-9) received secret information and he entered it in the rojnamcha sanha and also prepared mukhbir suchna panchnama and transmitted it to SDO(P), Khairagarh immediately, therefore, there was substantial compliance of Section 42 of the Act, 1985.

Now, I shall examine whether provision of Section 50 of the Act, 1985 has been substantially complied with or not or whether provision of Section 50 of the Act, 1985 is mandatory in the instant case.

The officer, who is to search a person, is required to inform the person about his right to be search by a nearest Gazetted Officer or by a nearest Magistrate. If the person gives his consent to be searched before a Gazetted Officer or before a Magistrate, he should, without unnecessary delay, be taken to a Gazetted Officer or a Magistrate, otherwise the search can be made by a concerned Police Officer. The requirement of law has been held to be mandatory in nature and noncompliance thereof vitiates the trial.

Manilal Maheshwari (PW-9) deposed that before making search, he had given notice to the appellants. Appellant Ranjit gave his consent vide Ex. P/15, appellant Probhash gave his consent vide Ex. P/16, appellant Nakul gave his consent vide Ex. P/18. In the instant case, ASI Manilal Maheshwari (PW-9) did not depose that appellants were informed that they were entitled to be searched before a nearest gazetted officer or a nearest Magistrate.

In the instant case, Assistant Sub-Inspector Manilal Maheshwari (PW-9) did not produced notice u/s 50 of the Act, 1985 which indicates that he informed the appellants that they were entitled to be searched before a nearest gazetted officer or a nearest Magistrate. It reveals that Assistant Sub-Inspector Manilal Maheshwari (PW-9) did not inform the appellants that they were entitled to be searched before a nearest gazetted office or a nearest Magistrate.

Now, I shall examine whether noncompliance of Section 50 of the Act, 1985 is fatal to the case of the prosecution or not?

In Jarnail Singh Vs. State of Punjab, the Hon''ble Supreme Court observed as follows:

12A. This Court in the case of Kalema Tumba Vs. State of Maharashtra and Another, ), discussed the provisions pertaining to ''personal search'' u/s 50 of the NDPS Act and held as follows:

.....if a person is carrying a bag or some other article With him and narcotic drug or psychotropic substance is found from it, it cannot be said that it was found from his person.

Similarly, in the case of Megh Singh Vs. State of Punjab, ), this Court observed that:

A bare reading of section 50 shows that it applies in case of personal search of a person. It does not extend to a search of a vehicle or container or a bag or premises.

The scope and ambit of Section 50 was also examined by this Court in the case of State of Himachal Pradesh Vs. Pawan Kumar, In paragraphs 10 and 11 (Paras 9 and 10 of AIR), this Court observed as follows:

We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad common-sense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most, appropriate meaning of the word "person" appears to be-- "the body of a human being as presented to public view usually with its appropriate coverings and clothing". In a civilized society, appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside one''s home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.

A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some, extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance, it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act."

.............

In Madan Lal and Another Vs. State of Himachal Pradesh, and Megh Singh Vs. State of Punjab, the Hon''ble Supreme Court observed that a bare reading of Section 50 of the Act, 1985 shows that it only applies in case of personal search of a person. It does not extend to search of a vehicle or a container or a bag or premises. The language of Section 50 is implicitly clear that the search has to be in relation to a person as contrasted to search of premises, vehicle or articles. The position was settled beyond doubt by the Constitution Bench in State of Punjab Vs. Baldev Singh, etc. etc.,

In view of the above settled legal position Section 50 of the Act, 1985 would not be applicable when search is made of a house or a vehicle or a container or a bag or premises. In the instant case, the search was made of the truck bearing registration No. MP 09 KA 5965, therefore, Section 50 of the Act, 1985 would not be applicable.

Learned counsel for the appellants argued that the evidence of Assistant Sub-Inspector Manilal Maheshwari (PW-9) has not been supported by the independent witnesses. The evidence of Budharu (PW-3) is full of contradictions. Therefore, the conviction of the appellants cannot be based on the evidence of Assistant Sub-Inspector Manilal Maheshwari (PW-9).

In Girja Prasad (Dead) by LRs. Vs. State of Madhya Pradesh, , the Hon''ble Supreme Court observed thus:

In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima Vs. The State of Saurashtra, , Venkatarama Ayyar, J. stated: (AIR p. 230, para 40)

....The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distract and suspect him without good grounds therefore. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.

In Tahir Vs. State (Delhi), , dealing with a similar question, Dr. A.S. Anand, J. (as his Lordship then was) stated: (SCC p. 341 (p. 3080-3081 of AIR), para 6)

.......Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.

In State of Punjab Vs. Nirmal Singh, the Hon''ble Supreme Court observed that there is no legal bar on recording the conviction on the basis of evidence of official witness and Section 50 of the Act, 1985 has no application as there was no personal search. (See also Lopchand Naruji Jat and Another Vs. State of Gujarat,

25 Karamjit Singh Vs. State (Delhi Administration), the Hon''ble Supreme Court observed thus:

........The testimony of police personnel should be treated in the manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to instruct and suspect them without good grounds. It will all depend upon the facts and circumstances of each case and no principle of general application can be laid down....................

Assistant Sub-Inspector Manilal Maheshwari (PW-9) specifically deposed that the truck bearing registration No. MP 09 KA 5965 was going towards Kawardha from Gandai. He stopped the truck. In the truck, appellants Ranjit Choudhari, Probhash, Nakul and Krishna Bala were sitting. The truck was being driven by appellant Ranjit Choudhari and other appellants Probhash, Nakul and Krishna Bala were sitting inside the truck. On being enquired, the appellants told their names and admitted that they kept ganja in the truck. Assistant Sub-Inspector Manilal Maheshwari (PW-9) deposed that 9 boras (bags) were kept in the truck. Identification of the articles was conducted on the spot and panchnama was prepared vide Ex. P/33. After verification, it was found that the recovered articles were ganja.

It appears that in the instant case, search was made of boras (bags) which was being carried by the appellants Ranjit Choudhari, Probhash, Nakul in the track.

Assistant Sup-Inspector Manilal Maheshwari (PW-9) deposed that he searched the track in which near about 9 bora (bags) were found. Ganja were recovered from the bags. The recovered ganja were kept in jute bags. Identification of recovered article was conducted vide Ex. P/33. After physical verification, it was found that the recovered article was ganja. Ganja was weighed on the spot and it was found that out of 9 bags, one bag had contained 3.500 kg., one bag had contained 31.900 kg., third bag had contained 32.180 kg., fourth bag had contained 31.110 kg., one plastic bag had contained 8.650 kg., one small bag had contained 11.430 kg. and other bag had contained 11.750 kg., one small bag had contained 15.190 kg. and other bag had contained 3.800 kg. Search panchnama (Ex. P/2) was prepared. Ganja was seized vide Ex. P/24. Samples of the seized ganja were prepared separately. Truck bearing registration No. MP 09 KA 5965 was also seized vide Ex. P/26. The appellants were arrested vide Exs. P/27 to P/31. Spot map (Ex. P/32) was prepared.

Manilal Maheshwari, Assistant Sub-Inspector (PW-9) deposed that he came back to the Police Station, Gandai along with the appellants and seized articles and First Information Report (Ex. P/46) was recorded in Police Station, Gandai. Action taken report was sent to SDO(P), Khairagarh and Police Superintendent, Rajnandgaon. The seized ganja and its samples were kept in Malkhana.

Budharu (PW-3) deposed that he had gone to Nadiya Tirana along with police officials. He further deposed that the truck was stopped by Assistant Sub-Inspector Manilal Maheshwari (PW-9). In cabin of track, ganja was kept in jute bori (bag). He further deposed that weight, identification and seizure were conducted by the Assistant Sub-Inspector Manilal Maheshwari (PW-9). The evidence of Assistant Sub-Inspector Manilal Maheshwari (PW-9) was corroborated by independent witness Budharu (PW-3) and to some extent by Mangla (PW-4) also.

Head Constable Ganga Ram (PW-2) deposed that he brought Malkhana register of Police Station Gandai which is Ex. P/10 and its copy is Ex. P/10C. Assistant Sub-Inspector Manilal Maheshwari (PW-9) deposed that he handed over the seized article to Malkhana Moharir for its safe custody. He further deposed that entry of the same was made in Malkhana register (Ex. P/10C).

Looking to the evidence of Assistant Sub-Inspector Manilal Maheshwari (PW-9), Head Constable Ganga Ram (PW-2) and Ex. P/10, it is clear that the seized ganja and the samples were handed over by the Assistant Sub-Inspector Manilal Maheshwari (PW-9) to Malkhana Moharir for their safe custody.

Assistant Sub-Inspector Manilal Maheshwari (PW-9) deposed that he mixed and made homogenous. 9 bags of sample containing 50 grams and sample bags of 25 grams were prepared and sealed on the spot and samras panchnama was prepared vide Ex. P/22. He further deposed that he prepared namuna seal panchnama vide Ex. P/23. Ganja was seized vide Ex. P/24.

Looking to the evidence of Assistant Sub-Inspector Manilal Maheshwari (PW-9) and Ex. P/23, it appears that Assistant Sub-Inspector Manilal Maheshwari (PW-9) after taking samples, he sealed the samples and seized articles separately and affixed seal on the packets and he deposited the seized articles and samples and entrusted the samples and contraband articles for their safe custody in Malkhana in sealed condition and evidence in record would show that Assistant Sub-Inspector Manilal Maheshwari (PW-9) prepared specimen of seal.

Looking to the evidence of Assistant Sub-Inspector Manilal Maheshwari (PW-9), it is clear that the seized articles and samples were sealed by Assistant Sub-Inspector Manilal Maheshwari (PW-9) and namuna seal panchnama was also prepared on the spot and were handed over it to the Malkhana Moharir for its safe custody.

The seized samples were sent to Forensic Science Laboratory (FSL), Raipur for their chemical examination vide Ex. P/39. A report (Ex. P/49) was received therefrom. In Ex. P/29 it is mentioned that the article was received from Constable 582 Shyam Thavre, Gandai is sealed condition on 10-9-2007. In Ex. P/49 relevant part is as under:--

(Vernacular matter omitted -- Ed.)

Constable Shyam Thavre (PW-8) deposed that he was posted as Constable at Police Station Gandai. He further deposed that he took the sample from Police Station Gandai to FSL, Raipur for chemical examination and delivered the same at FSL, Raipur. In acknowledgment thereof (Ex. P/38) it is mentioned that the article was received from Constable 582 Shyam Thavre Police Station Gandai on 7-9-2007.

In acknowledgement letter No. FSL/N/268/2007, Raipur date 11-4-2008 appears specimen seal of FSL. It appears that the samples were taken on 6-9-2007 and the same were received in the FSL, Raipur on 10-9-2007, i.e., after 4 days.

In Jarnail Singh Vs. State of Punjab, the Hon''ble Supreme Court observed as follows:--

.......The trial court as well as the High Court, on examination of the entire material, concluded that there was sufficient independent evidence produced by the prosecution regarding the completion of link evidence. Therefore, the delay in sending the sample parcel to the office of Chemical Examiner pales into insignificance. We are of the considered opinion that mere delay in sending the sample of the narcotic to the office of the Chemical Examiner would not be sufficient to conclude that the sample has been tampered with. There is sufficient evidence to indicate that the delay, if any, was wholly unintentional. This Court had occasion to deal with a similar issue, in the case of Balbir Kaur Vs. State of Punjab, . The Court made the following observations:--

As far as delay in sending the samples is concerned, we find the said contention untenable in law. Reference in this regard may be made to the decision of this Court in Hardip Singh Vs. State of Punjab, wherein there was a gap of 40 days between seizure and sending the sample to the chemical examiner. Despite the said fact the Court held that in view of cogent evidence that opium was seized from the appellant and the seals put on the sample were intact till it was handed over to the chemical examiner, delay itself is not fatal to the prosecution case.

..............

Therefore, mere delay of 4 days in sending the sample to the office of the chemical examiner would pot be fatal to the case of the prosecution.

Appellants Krishna Bala, Ranjit Choudhari, Probhash and Nakul have not been able to prove that the seal put on the articles and the samples were in any manner tempered with before the samples were examined by the chemical examiner. There was merely a delay of 4 days in sending the samples to the FSL, Raipur. It is not proved as to how the aforesaid delay of 4 days affected the said examination. When it could not be proved that the seal of the samples were any manner tampered. In the circumstances when the seal was found intact at the time of examination by the chemical examiner and the said fact was recorded by him in his report mere delay sending the samples to the chemical examiner itself would not be fatal to the case of prosecution.

Therefore, in the instant case, from the above, it is apparent that provisions of Sections 42, 55 and 57 of the Act, 1985 are substantially complied with. I find no infirmity in the impugned judgment of conviction and sentence passed by the learned Special Judge, against Krishna Bala, Ranjit Choudhari, Probhash and Nakul.

Now, I shall examine whether appellant Ashutosh Mandal was rightly convicted on the basis of above evidence.

Learned counsel for appellant Ashutosh Mandal argued that appellant Ashutosh Mandal is not owner of the seized truck. He was not present on the spot. He was arrested after 1 month and 20 days of the incident. The prosecution has not been able to prove that appellant Ashutosh Mandal knowingly permitted the other co-accused persons to use his truck for transporting the contraband ganja.

Assistant Sub-Inspector Manilal Maheshwari (PW-9) deposed that appellant Ashutosh Mandal was not present during the search proceedings. Sub-Inspector Ram Gopal Soni (PW-7) deposed that he had arrested appellant Ashutosh Mandal on 27-10-2007 vide Ex. P/48 i.e. after 1 month and 20 days of the incident. Assistant Sub-Inspector Manilal Maheshwari (PW-9) deposed that it is true that except appellant Ashutosh Mandal is owner of the seized truck, no other evidence available against him.

M.V.D. Prasad (PW-6) deposed that he was posted as Assistant Grade-III in office of Regional Transport Authority, Raipur. He received a letter No. 08/G/162/07 dated 25-10-2007 from Police Station Gandai regarding the owner of truck No. MP 09 KA 5965. He further deposed that he sent the information to the Police Station Gandai vide Ex. P/36. On the basis of office record the said truck has been transferred in the name of Ashutosh Mandal s/o. Anand Mandal, r/o. Abdulla Roadways Station Road, Raipur.

Looking to the evidence of Assistant Sub-Inspector Manilal Maheshwari (PW-9) and M.V.D. Prasad (PW-6), it appears that the seized truck was transferred in the name of Ashutosh Mandal on the basis of affidavit and sale letter Ex. P/29 in the RTO office, Raipur.

Prosecution has not been able to prove conclusively that appellant Ashutosh is owner of the said truck. For sake of argument, it is accepted that appellant Ashutosh is owner of the seized truck, but prosecution did not produce any conclusive evidence which indicates that appellant Ashutosh knowingly permitted the other co-accused persons to use his truck for transporting the ganja.

The prosecution has not been able to prove that the ganja was in conscious possession of appellant Ashutosh. For the foregoing reasons, the presumption u/s 35 of the Act, 1985 is not attracted in the case of appellant Ashutosh and, therefore, his conviction cannot be sustained.

In the result, Criminal Appeal No. 741 of 2011 relating to appellant Ashutosh is allowed. The conviction and sentence awarded to appellant Ashutosh u/s 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 are set aside. He is acquitted of the charge framed thereunder. It is stated that he is in jail. He be set at liberty forthwith, if not required in any other case. So far as Criminal Appeal No. 546 of 2008 relating to appellant Krishna Bala and Criminal Appeal No. 612 of 2008 relating to appellants Ranjit Chaudhari, Probhash and Nakul Vishwas are concerned, they are, being devoid of any merit, liable to be and are hereby dismissed.