Shamshad Khan @ Manna vs State Of Chhattisgarh

Sanjay S. Agrawal, J

This appeal has been preferred under Section 374(2) of the Code of Criminal Procedure, 1973 questioning the legality and propriety of the judgment of conviction and order of sentence dated 05.02.2021 passed by the Special Judge, (NDPS Act) Ambikapur, District Surguja (CG) in Special Criminal Case No.14/2019, whereby, the appellant has been convicted for the offence punishable under Section 21(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘the NDPS Act’) and has been awarded rigorous imprisonment for 12 years and fine amount of Rs.1,10,000/-, in default to undergo 3 years additional rigorous imprisonment.

Briefly stated the facts of the case are that an information was furnished by one Amit Gupta, the Sub-Inspector of Police Station, Ambikapur vide Ex. P/42-C to the Investigation Officer i.e., the Deputy Superintendent of Police (Trainee) with regard to the fact that he received secret information from an unknown person on 16.05.2019 at 11.05 hrs. that the accused Shamshad Khan @ Manna has possessed huge quantity of contraband article (cough syrup) for the purpose of sell while waiting for the customers behind Alaknanda Talkies at Ambikapur. After receiving the said information, it was accordingly registered by the said Investigation Officer in the General Register (Rojnamcha Sanha) on 16.05.2019 vide Ex. P/43 and intimated to the City Superintendent of Police on the same day at 12.25 hrs vide Ex.P/1 and thereafter, issued a notice under Section 42(2) of the NDPS Act to him for proceeding with the search and seizure of the alleged suspected person without search warrant as it would take some time and by the time, the appellant/suspected person may misappropriate the alleged contraband article in order to destroy the evidence. While furnishing the notice as such, the Investigation Officer, proceeded with the matter and the appellant was served with a written notice (Ex. P/15) under Section 50 of the NDPS Act on 16.05.2019 at 14.40 hrs. informing him about his legal right either to be searched in presence of the Magistrate or any of the gazetted officer, who then opted to search by the Investigating Officer and has acknowledged the same vide Ex.P/16 at 14.50 hrs.

During the search and seizure proceedings, the Police has seized RC Kuff Plus Cough Syrup each 100 ml (44 Nos.) having batch No.RPLS-1127, Elturex-T Cough Syrup each 100 ml (32 Nos.) having batch No.SD18052 and Phencyrex Cough Syrup each 100 ml (44 Nos.) having batch No.59128 – SMB1, total 120 Nags. Cough Syrup bottles in sealed position from the black colour bag, which was carried by the appellant on 16.05.2019 at 17.15 hrs. vide seizure memo (Ex.P/26). A notice under Section 67(b) of the NDPS Act was served upon him vide Ex.P/24 at 16.40 hrs. demanding valid documents with regard to the alleged seized article, but he has stated that no document for the said purpose is available with him. Further, 04 nos. Cough Syrups from each of the said articles were sent for its physical verification to the Drugs Inspector on 17.05.2019 vide Ex.P/5 and report was accordingly submitted to the Station House Officer, Ambikapur by the Drugs Inspector on 17.05.2019 vide memo Ex.P/7, while opining that the contents involved therein could be verified by chemical examination and after chemical examination, it was found to be positive vide Forensic Science Laboratory(FSL) Report (Ex.P/62) and after completion of the investigation, a Final Report was submitted against the appellant for the offence punishable under Section 21(c) of the NDPS Act.

In order to substantiate the charges framed against the appellant, the prosecution has examined as many as 13 witnesses, while the appellant has examined one of his witness in defence.

After considering the evidence led by the parties, the trial Court has convicted the appellant for the offence punishable under Section 21(c) of the NDPS Act and awarded the sentence as mentioned herein above.

Learned counsel appearing for the appellant submits that the attesting witnesses to the alleged seizure memo (Ex.P/62) have not supported the prosecution story, yet the appellant has been held liable mainly on the testimony of the Investigating Officer. It is contended further that there are lot of discrepancies in the search and seizure proceedings, therefore, the conviction as made by the Court below without considering the same is liable to be set-aside.

On the other hand, learned Panel Lawyer appearing for the State has supported the impugned judgment of conviction and order of sentence.

We have heard learned counsel for the parties and perused the entire record carefully.

From perusal of the record, it appears that on the fateful day, the alleged contraband article was said to have been recovered from the possession of the appellant on 16.05.2019 vide seizure memo (Ex.P/26) in presence of two witnesses, namely, Ajay Gupta(PW-8) and Sunil Gupta(PW-9). It appears that the samples of it were sent for chemical examination in 3 sealed and/or closed envelopes through Constable- Budhkumar Singh(PW-5) on 21.05.2019 as evidenced by the Register (Ex. P/62), which was made with regard to the articles seized from the appellant in connection with the said crime. But, the said fact is, however, not found to be corroborated by him as according to him(Budhkumar Singh), it was handed over to him for its chemical examination on 20.05.2019 and not on 21.05.2019 as alleged by the prosecution. No explanation whatsoever has been offered by the prosecution to this effect as to how it could have been sent for chemical examination on 20.05.2019, when it was handed over to him for the said purpose on 21.05.2019. Therefore, under such circumstances, it cannot be said that the article seized from the appellant was sent for its chemical examination through said (Budhkumar Singh).

Pertinently to be noted here further that the Station House Officer, Ambikapur vide its memo (Ex.P/60) dated 27.05.2019 has requested the Tehsildar Ambikapur for the preparation of Najari Naksha (spot map) through the Halka Patwari, while mentioning the name of only one of the attesting witnesses of the alleged seizure memo, namely, Sunil Gupta, though the alleged article was alleged to have been recovered in presence of another witness also, namely, Ajay Gupta, for the reasons best known to the prosecution. Be that as it may, the Tehsildar in pursuance to the said direction as contained in the said memo (Ex.P/60) has directed one Ashok Shukla, the Patwari for preparation of Najari Naksha as evidenced by the endorsement made therein, but, instead it was prepared by the revenue inspector, namely, Shivmohan Dhusiya(PW-3) in presence of said two witnesses i.e. Ajay Gupta and Sunil Gupta. No explanation has, however been, offered by the prosecution to this effect also, as to why it was prepared by someone else contrary to the said direction of the concerned Tehsildar, Ambikapur and we do not find any material placed on record that such a direction for preparing the Najari Naksha was issued to the said revenue inspector, which, therefore, creates a serious doubt regarding its preparation as well. It appears further that although the alleged Najari Naksha (Ex.P/4) was said to have been prepared in presence of the said two witnesses, but no question was even put to them as to whether it was prepared in their presence or not in order to prove its authenticity. Furthermore, a bare perusal of the statement of the attesting witnesses of the alleged seizure memo (Ex.P/26) in whose presence the entire proceeding was carried, would however, show that they have not supported the prosecution story as according to them nothing was done by the police authorities in their presence except for obtaining their signatures in the Police Station. It, however, appears from their testimony that they put their signatures only because of the pressure of the police authorities as they were under apprehension to be implicated in a false criminal case, if refused to sign on those papers, as desired by the police authorities.

In view of the aforesaid background, it is, thus, evident that although the prosecution has claimed that everything has been done in their presence, but these independent witnesses, as observed herein above, have not only denied their presence and participation at the time of alleged search and seizure proceedings, but have offered their explanation as to how their signatures have found placed in those documents. A serious doubt is, therefore, cast upon the alleged search and seizure proceedings alleged to have been made by the Investigation Officer.

Consequently, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 05.02.2021 passed by the Special Judge, (NDPS Act) Ambikapur, District Surguja (CG) in Special Criminal Case No.14/2019, is hereby quashed. The appellant shall be released forthwith, if he is not in custody in connection with some other case.