State Of Chhattisgarh vs Neeraj Meshram

This acquittal appeal has been preferred by the appellant/State against the judgment dated 30.03.2015 passed by the Special Judge under N.D.P.S. Act, Rajnandgaon (C.G.) in Misc. Criminal Case No.01 of 2013 whereby respondent has been acquitted of the charge punishable under Section 20(b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as “N.D.P.S. Act”).

Brief facts for disposal of this appeal, are that, on 27.01.2013, Assistant Sub-Inspector Ashok Kumar Mishra (PW-5) posted at Police Station Basantpur, District Rajnandgaon received an information that Ganja has been kept by accused Neeraj Meshram in his betel cart for illegal sale. Then, Constable Devcharan Dhruv (PW-1) and Constable Bholaram Yadav (PW-8) prepared information Panchnama (Ex.P/1) and gave information to CSP for taking action without search warrant under Section 42 of the N.D.P.S. Act, which was received by Head Constable Raju Meshram (PW-2), who was posted there as a Reader. Manoj alias Lallu (PW-3) and Ranjit Malik (PW-4) were called as independent witnesses. They went to the spot and conducted a search. Upon search, a total of 1.585 Kg. of ganja in two packets was recovered from betel cart of accused. Sample packets of 50-50 grams were prepared and weighing process was conducted by Vinod Soni (PW-6). The seized substance was sealed, returned to police station and the substance was handed over to Moharrir Head Constable Ramvilash Netam (PW-9). The statement of witnesses was recorded by Sub-Inspector Harprasad Pandey (PW-7). The sample packets stored in goods section (Malkhana) of police station were sent to State Forensic Science Laboratory for its examination and in the FSL report, substance was described as “Ganja”.

So as to hold the accused/respondent guilty, the prosecution has examined as many as 9 witnesses. The statement of the accused/respondent was recorded under Section 313 of Code of Criminal Procedure, 1973 (hereinafter referred to as “Cr.P.C.”), in which, he denied the charges levelled against him and pleaded innocence and false implication in the case. In order to prove his defence, no one has examined on behalf of the accused/respondent.

After appreciating the oral as well as documentary evidence on record, learned trial Court found that entire proceedings of seizure and search etc. have not been proved by independent witnesses; witness of weighing Panchnama has also not proved the prosecution case beyond all reasonable doubt; in a case of above nature, the punishment is harsh and hence, the onus is upon the prosecution to prove its case beyond reasonable doubt, if not supported by independent evidence; statements of investigator and his supporting staff can be trusted beyond doubt only if there is no irregularity or suspicion in proceedings narrated by them, but prosecution proceedings have been found irregular and suspicious; hence, the same is not believed beyond doubt; provisions of N.D.P.S. Act have not been strictly followed and by the impugned judgment dated 30.03.2015, acquitted the accused/respondent for the aforesaid charge. Hence, this appeal has been filed by the State.

The learned State counsel submits that independent witnesses have proved the Ganja seizure proceedings after being declared hostile. Vinod Soni (PW-6) has also spoken about weighing process. He further submits that seized property has been sealed as per Rules and deposited in goods section of police station and has been sent to State Forensic Science Laboratory. He also submits that senior officer has also been informed about the action being taken without informer’s information as well as search warrant and even after the entire proceedings and arrest, information has been given to senior officer. Thus, prosecution has proved its case beyond reasonable doubt. It is lastly submits that trial Court has not properly appreciated the facts and evidence presented in the light of law and therefore, judgment of acquittal does not deserve to be sustained and instant acquittal appeal be allowed.

Per contra, learned counsel for the respondent supported the impugned judgment of acquittal and submits that prosecution witnesses utterly failed to prove its case beyond reasonable doubt. Hence, after evaluating the entire evidence, has rightly acquitted the respondent for aforementioned charge levelled against him.

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

Manoj alias Lallu (PW-3) and Ranjit Malik (PW-4) are independent witnesses of entire proceedings in the case. While signing the documents at police station, they have stated that they do not know the accused. Even when they were declared hostile and upon asking a leading question, the only fact has been emerged from their statements that police had come to take action against Ganja. But witnesses have not stated that any action was taken against them. On the suggestive question, they have stated that police had come to the house of accused, whereas as per prosecution case, seizure process has been stated to have taken place from betel cart of accused. In such a situation, if we look at the entire statement of independent witnesses, it is clear that they have not proved the search and seizure proceedings as per prosecution case. They have even stated that when they signed, accused was not present there. Thus, it is clear that proceedings described by investigator of the case are not proved by these independent witnesses.

The entire proceedings of the case have been conducted by Assistant Sub-Inspector Ashok Kumar Mishra (PW-5), according to him, weighing proceeding was conducted by Vinod Soni (PW-6). Vinod Soni (PW-6) has proved the fact that he had taken weighing action on the call of police. But on the one hand, case of prosecution is that weighing process was conducted at the seizure site of alleged betel cart at Shikaripara and on the other hand, Vinod Soni (PW-6) has stated that on the call of police, he had gone to Basantpur police station with electronic weighing machine and got weighing done there. In such a situation, statement of Vinod Soni (PW-6) does not corroborate the fact that substance which he weighed was recovered from betel cart of accused. His statement also does not prove the fact that weighing process was done at betel cart situated at Shikaripara. He has also not proved the fact that alleged seized substance was sealed in his presence. Thus, third independent witness neither supported the case of prosecution that Ganja was seized from the betel cart of accused nor weighing process and sample preparation established beyond doubt.

In the above situation, now the issue which is to be considered is that what is the nature of irregularities that have been found in the proceedings of the investigator as well as provisions of the N.D.P.S Act were not strictly followed ?

In this context, basically the statement of investigator has to be examined. If I consider the statements of investigator Ashok Kumar Mishra (PW-5) and other witnesses, it has come that without search warrant Panchnama (Ex.P/2), of which, (PW-2) Head constable Raju Meshram (posted as Reader in CSP Office) stated to give an acknowledgment, there is no seal of the office below on it and in informant information Panchnama (Ex.P/1), there is no acknowledgment of CSP office of Postal Receipt, Rajnandgaon. Head constable Raju Meshram (PW-2) has admitted that CSP (Officer) is not present in the office and there was no contact even on phone. In this situation, there is serious doubt arises whether information has been given before the action in the CSP office under Section 42 (ii) of the N.D.P.S. Act.

It is noteworthy that as per the informer's information, there was information about the accused bringing Ganja for sale and keeping it in his betel cart, but in the notice (Ex.P/4) given to accused under Section 50 of N.D.P.S. Act, there is no mention of the fact that his betel cart has to be searched. The investigator stated that accused was sitting on his betel cart and there were no customer. But on the contrary, it is mentioned in recovery Panchnama that accused was made to open betel cart and searched. It is not clearly mentioned in search Panchnama or seizure as to upon which part of betel cart, gunny-bag of alleged substance was kept, i.e. whether it was in plain sight or was kept hidden. The said situation has not been made clear. It is also noteworthy that neither any documentary evidence has been collected in this regard nor statement of any witness from neighborhood have been recorded that betel cart was owned or occupied by accused. There is also a lack of clear and proper evidence regarding betel cart being owned by the sole accused. Even the independent witnesses have not stated about the seizure from betel cart in front of them. Vinod Soni (PW-6) has not stated about the seizure from betel cart in front of him. At this stage, alleged search and seizure proceedings are questionable.

In the seizure memo (Ex.P/15), there is not clearly mentioned that Ganja was seized, sample was sealed and sample packet was marked with A-1 and A-2. Similarly, in goods register (Ex.P/23) of police station, there is no mention of sample packets being marked with A-1 and A-2. At this stage, when independent witnesses and Vinod Soni (PW-6) have not stated that sample packets were prepared on the spot and were marked with A-1 and A-2, the said fact has not been mentioned in seizure memo. The said fact has also not been mentioned in Malkhana register. But the said fact has been mentioned in draft to be sent to Laboratory. At this stage, it cannot be said beyond doubt that no omissions were made in preparing the sample.

After the complete proceedings and arrest under Section 57 of the N.D.P.S. Act, the investigator has asked to send information to higher authority vide Ex.P/25, but there is no clear mention of the mode, through which, information was sent. There is no acknowledgment or seal of the office of higher authority in Ex.P/25. If the said information has been sent through post, then postal book has not been presented and it has not been proved. Thus, trial Court has held that provisions of Section 57 of the N.D.P.S. Act have not been established.

The Hon’ble Supreme Court in case of Muralidhar alias Gidda and Another v. State of Karnataka, (2014) 5 SCC 730, has held that if two views are possible, the appellate Court should not interfere with the judgment of acquittal, even otherwise, the prosecution, thus utterly failed in proving its case beyond reasonable doubt.

Applying the aforesaid legal proposition in the present case as well, it is quite vivid that the prosecution had to prove the case against the respondent beyond all reasonable doubt, but the prosecution has failed to do so. As such, the finding recorded by the learned trial Court acquitting the respondent of the aforesaid charge is based on the material available on record, which is neither perverse nor contrary to the record. Hence, this Court finds no illegality in the impugned judgment acquitting the respondent of the aforesaid charge levelled against him, particularly when there is a settled legal position that if on the basis of record, two conclusions can be arrived at, the one favouring the accused has to be preferred. Even otherwise, the prosecution has utterly failed to prove its case beyond reasonable doubt and the trial Court is fully justified in recording the finding of acquittal, which is based on proper appreciation of evidence available on record. However, no such illegality is noticed in the impugned judgment warranting interference by this Court. Being so, instant appeal is without any substance and is liable to be dismissed.

In the result, the acquittal appeal is hereby dismissed.