Mukesh Dubey vs State Of Chhattisgarh

Conviction,Sentence

Under Section 20(b)(ii)(C) of the Act,"Rigorous Imprisonment for 10 years and fine of

Rs.1,00,000/- with default stipulation

(PW1), Reader of the office of the S.D.O. (P), Kondagaon has admitted the fact that in the Receipt and Despatch Register (Ex.P1), in which he had",

made entry of receipt of the secret information which was forwarded to the S.D.O. (P), Kondagaon in compliance of the provision contained in",

Section 42(2) of the Act, in the last column where name of the accused is mentioned whitener was applied and some content was deleted. He has",

further admitted that in that column, earlier names of Javed Khan and Washid Ahmed were mentioned. He has further admitted that he had received",

the information at 10:30 a.m. and till that time crime was not registered, but despite that, there is an entry of Crime No.173 of 2010. Referring to the",

statement of Kamod Kumar Chandrakar (PW2), it was further submitted that this witness is a doctor. Though the doctor has not supported the case",

of the prosecution, Investigating Officer Sub-Inspector Manoj Prajapati (PW6) has admitted the fact that in the statement recorded under Section 161",

of the Code of Criminal Procedure, the doctor has stated himself to be a kuli-majdoor, which is not possible. It was submitted that a false and",

fabricated case has been made against the Appellant by the prosecution. It was further submitted that one of the independent witnesses namely,",

Mohd. Khurshid (PW3), who has supported the case of the prosecution, has categorically admitted the fact that on 19.8.2010, including him the entire",

raid/police party had returned to the police station and by that time the entire proceedings were completed and the documents were prepared in the,

police station later on and he had put his signatures on those documents in the police station. Referring to the documents Ex.P6, P7, P8, P10, P11, P12,",

P13, P14, P15 and P16, it was further submitted that from perusal of these documents, it reveals that preparation time of these documents was earlier",

left blank in these documents which was filled in later on by different pen, which shows that all the documents were prepared after completion of the",

entire proceedings collectively at a time. Therefore, the entire case of the prosecution becomes doubtful.",

Learned Counsel appearing for the State opposed the above submission and supported the impugned judgment of conviction and sentence.,

I have heard Learned Counsel appearing for the parties and perused the record minutely.,

With regard to the argument advanced by Learned Counsel appearing for the Appellant regarding non-compliance of the provision of Section 55 of,

the Act, I have examined the entire record of the Court below. According to the entries of Rojnamcha Sanha (Ex.P32), after return to the police",

station, all the seized articles as well as the sample packets were handed over to Malkhana Moharrir Naresh and an acknowledgment thereof was",

also obtained from him, but the prosecution has neither produced the Malkhana register nor has produced the acknowledgment issued by Malkhana",

Moharrir Naresh. The prosecution has also not examined Naresh in this regard. In his Court statement, Sub- Inspector Manoj Prajapati (PW6) has",

even not stated a single word in this regard. At the relevant time, Manoj Prajapati (PW6) was posted as a Sub-Inspector in Police Station Kondagaon.",

He was not the Station House Officer of Police Station Kondagaon. Station House Officer of Police Station Kondagaon was Mohsin Khan. Before,

depositing the seized articles in Malkhana, Station House Officer Mohsin Khan had affixed his seal on the seized articles, no statement of Mohsin",

Khan in this regard has been recorded by the prosecution nor has the prosecution submitted any such document in this regard. Thus, in my considered",

view, the prosecution has totally failed to comply with the provision contained in Section 55 of the Act. Thus, the finding of the Trial Court in this",

regard is not in accordance with the evidence available on record.,

As regards other argument raised by Learned Counsel appearing for the Appellant, I have gone through the entire statements of the witnesses and",

other evidence adduced by the prosecution. According to the entries of the FIR (Ex.P33), the FIR was registered on 19.8.2010 at 18:40 hours. As",

admitted by Head Constable Samaylal Pandey (PW1), entries were made by him in Receipt Despatch Register (Ex.P1) at 10:30 a.m., but in that entry",

Crime No.173 of 2010 is mentioned. Samaylal Pandey (PW1) has tried to justify in this regard, but his explanation is not satisfactory. From perusal of",

the documents Ex.P6, P7, P8, P10, P11, P12, P13, P14, P15 and P16, it also reveals that earlier preparation time was left blank in these documents",

and were filled in later on by different pen at a time, which finds support from the admissions made by Mohd. Khurshid (PW3), one of the independent",

witnesses, because in his cross-examination, Mohd. Khurshid has categorically admitted that till 11 a.m., the whole proceedings were completed and",

they had returned to the police station by that time and thereafter the documents were prepared in the police station and he had put his signatures on,

these documents in the police station itself. Furthermore, Constable Afzal Khan (PW4) has also admitted the fact that on 19.8.2010, a photograph",

(Ex.D2) was taken out in the police station at about 12-1 p.m. in which presence of the Appellant and other two persons appear along with few bori,

(bags). From this also, it is clear that the raid party had returned to the police station till 12-1 p.m. and thereafter itself all the documents were",

prepared in the police station collectively at a time and time was mentioned in these documents at a time. Furthermore, according to the case of the",

prosecution and statement of Constable Afzal Khan (PW4), on the direction of Investigating Officer Manoj Prajapati (PW6), he had gone to a poultry",

farm situated in Bazarpara and had brought an electronic weighing machine made of Onyx company. The capacity of that weighing machine was of,

50 Gms. to 50 Kgs. But, Constable Salim Javed (PW5), who had weighed the recovered Ganja, has deposed that the capacity of the weighing",

machine by which he had weighed the recovered Ganja was of 30 Gms. to 50 Kgs. He has further admitted in paragraph 6 that in the morning when,

he had gone to the police station he had seen that weighing machine kept in the police station. Therefore, the statement of Constable Afzal Khan",

(PW4) that he had gone to Bazarpara and brought a electronic weighing machine from there is suspicious. Moreover, the prosecution has not",

examined Malkhana Moharrir Naresh as also Constable Vrittnarayan, who had taken the sample packets to the FSL nor any entry of Malkhana",

register was produced. Therefore, from 19.8.2010 to 27.8.2010, the seized Ganja and the sample packets were kept at which place, in what condition",

and in whose possession, the prosecution has failed to give any explanation in this regard. Therefore, the statements of Naresh and Vrittnarayan were",

essential in this regard. From 19.8.2010 to 27.8.2010, the sample packets and the seized Ganja were kept at which place, in what condition and in",

whose possession, since the prosecution has failed to give any explanation in this regard, possibility of tampering of the sample packets cannot be ruled",

out.,

For the foregoing reasons, in my considered view, the Trial Court has wrongly convicted the Appellant. The Appellant is entitled to get benefit of",

doubt.,

Consequently, the appeal is allowed. The impugned judgment of conviction and sentence is set aside. The Appellant is acquitted of the charge",

framed against him. He is reported to be in jail. If he is not required in any other case, he be set at liberty forthwith.",

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