Paras Kumar Razak @APPELLANT@Hash State of Chhattisgarh

Conviction,Sentence

Under Section 20(b)(ii)(B) of the Act of 1985,"Rigorous Imprisonment for 3 years and fine of Rs.8,000/-

with default stipulation

received from the informant and vide Ex.P5 and P6, he gave them a notice under Section 50 of the Act of 1985 for their personal search. Vide",

Ex.P28 and P29, both the Appellants consented to be searched by him. Therefore, he and his staff gave their search to the Appellants vide Ex.P7.",

Thereafter, bag of Appellant Paras was searched vide Ex.P8 and bag of Appellant Umakant was searched vide Ex.P9. Ganja like substance was",

found from both the bags. After identification of the substance found from the bags, identification memo (Ex.P12 and P13) was prepared. The Ganja",

recovered from the Appellants was weighed vide Ex.P10 and P11 in which it was found that each of the two bags had contained 4 kgs. of Ganja, i.e.,",

total 8 kgs. Thereafter, 2-2 sample packets each containing 50 grams of the seized Ganja were prepared and sealed. Specimen seal panchnama",

(Ex.P16 and P17) were prepared. Both the Appellants were arrested vide arrest memo Ex.P18 and P19. This witness has further deposed that he,

returned to the police station along with the seized articles and the Appellants.,

After the return, Crime No.154 of 2003 was registered in the police station vide Ex.P31 and the seized articles were handed over to Malkhana",

Moharrir Jaidev Bhoi (PW1) and an acknowledgement (Ex.P1) was obtained from him. Thereafter, he informed to the S.D.O. (P) vide Ex.P34 in",

compliance of the provision contained in Section 57 of the Act of 1985. He has further deposed that the seized packets were sent to the FSL vide,

memo dated 25.11.2003 (Ex.P35) for chemical examination. Acknowledgement of the FSL is Ex.P36. FSL report is Ex.P37. The report is positive. In,

his cross-examination, he has stated that he reached the spot at 5:35 p.m. He has admitted the fact that in the spot-map (Ex.P39) at column No.8, he",

mentioned the time about his arrival on the spot as 17:00 hours. He explained about this that the time of 17:00 hours mentioned in the spot-map is of,

preparation of the said spot-map. He has admitted the fact that in the spot-map (Ex.P39) there is over-writing on the date mentioned therein because,

it appeared to him that there was a mistake in writing the month in Ex.P39. He has also admitted the fact that in Ex.P38 also, some over-writing is",

pesent. He has also admitted the fact that in all the documents, he has not mentioned the exact place of the incident. He has also admitted the fact",

that in compliance of the provision contained in Section 57 of the Act of 1985, he informed about the incident to his higher officer after about 22 days",

from the date of incident. He has admitted the fact that on 27.11.2003, the sample packets were sent to the FSL for chemical examination through",

Constable Shiv Kumar.,

Malkhana Moharrir Jaidev Bhoi (PW1) has deposed that on 22.11.2003, he deposited the seized Ganja, sample packets and other seized articles in",

the Malkhana and gave acknowledgement thereof vide Ex.P1 and made relevant entries in the Malkhana Register (Ex.P2) at Sl.No.136. He has,

further deposed that 2 sample packets were sent to the FSL for chemical examination through Constable Shiv Kumar.,

A minute examination of the above statements of Investigating Officer Vikaschandra Rai (PW5) and Malkhana Moharrir Jaidev Bhoi (PW1) and,

the exhibited and other documents annexed with the charge-sheet makes it clear that the FIR (Ex.P31) was registered on 22.11.2003 at 17:20 hours.,

In the FIR (Ex.P31), the place of incident is mentioned as In front of Police Station Farasgaon situated 100 metres in the east on National Highway",

No.43. Apart from the FIR (Ex.P31), in none of the documents available on record, the actual place of incident is mentioned. In the seizure memo",

(Ex.P14), place of incident is mentioned as Village Farasgaon. In Ex.P15, only Village Farasgaon, N.H. 43, Main Road is mentioned. In no other",

document, place of incident is mentioned. Search panchnama (Ex.P7) contains time as 15:45 hours, search panchnama (Ex.P8) contains time as 15:50",

hours, search panchnama (Ex.P9) contains time as 15:55 hours, weight panchnama (Ex.P10) contains time as 16:05 hours, weight panchnama",

(Ex.P11) contains time as 16:15 hours, identification panchnama (Ex.P12) contains time as 16:25 hours, identification panchnama (Ex.P13) contains",

time as 16:20 hours, seizure memo (Ex.P14) contains time as 16:30 hours, seizure memo (Ex.P15) contains time as 16:35 hours, specimen panchnama",

(Ex.P16) contains time as 16:45 hours, specimen panchnama (Ex.P17) contains time as 16:40 hours, arrest memo (Ex.P18) contains time as 16:55",

hours and arrest memo (Ex.P19) contains time as 16:50 hours.,

As per the prosecution story, all these documents were prepared at the place of incident. But, all these documents contain Crime No.154 of 2003.",

While the FIR (Ex.P31) was registered at 17:20 hours. Thus, it is clear that mentioning of time in the FIR (Ex.P31) is not correct or all the aforesaid",

documents were prepared at a time after registration of the crime (FIR). While discussing this issue, the Trial Court was of the view that the column",

of crime number was left blank in all the aforesaid documents and the said column was filled up after registration of the FIR. But, on what ground the",

Trial Court arrived at this conclusion has not been stated by it. Investigating Officer Vikaschandra Rai (PW5) has also not given any explanation on,

this issue. Therefore, this finding of the Trial Court is based only on presumptions. Apart from this, the entries of Malkhana Register (Ex.P2) show",

that sample packets were handed over to Constable Shiv Kumar on 27.11.2003. But, as per memo (Ex.P35), these articles were sent to the FSL on",

25.11.2003. As per the acknowledgement of Ex.P36 issued by the FSL, the FSL had received 2 sample packets marked as Article A1 and Article B1",

on 28.11.2003 along with memo dated 25.11.2003 (Ex.P35). Memo dated 25.11.2003 contains entry of sending Article A1 and Article B1, but the",

entries of Malkhana Register are of 27.11.2003 in which only handing over of 2 sample packets to Constable Shiv Kumar is mentioned. But, the",

Malkhana Register does not contain entry of sample packets marked as Article A1 and Article B1, which were handed over to Constable Shiv Kumar",

on 27.11.2003. In these circumstances, statement of Constable Shiv Kumar is essential in this case because he was the only person who could state",

that which sample packets were received by him and in what condition he had received the sample packets.,

With regard to compliance of the provision of Section 57 of the Act of 1985, from the evidence on record, it is clear that the alleged incident took",

place on 22.11.2003, but the intimation thereof (Ex.P34) was not sent to the superior officer, i.e., the S.D.O. (P) within 48 hours of the incident, but it",

was sent to him on 12.12.2003. Though it is settled law that conviction should be made only on the basis of the statement of the Investigating Officer if,

his statement is otherwise reliable, in the case in hand, looking to the above evidence, in my considered opinion, the statement of Investigating Officer",

Vikaschandra Rai (PW5) is doubtful. It seems that the whole proceedings were completed and all the documents were prepared at a time sitting in the,

police station after registration of the FIR (Ex.P31). Apart from this, which sample packets were sent to the FSL is also doubtful. Statement of",

Constable Shiv Kumar, who had taken sample packets to the FSL for chemical examination, is essential in the case, but he has not been examined by",

the prosecution. The provision of Section 57 of the Act of 1985 has also not been complied with in this case. In these circumstances, the offence",

alleged against the Appellants under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 is not proved beyond",

reasonable doubt.,

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

framed against them.,

It is reported that the Appellants are on bail. Their bail bonds shall continue for a further period of six months from today in terms of the provisions,

contained in Section 437A of the Code of Criminal Procedure.,

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