State of Chhattisgarh vs Tuleshwar Sinha

I.M. Quddusi, J.—This appeal has been preferred against the judgment and order dated 13-5-2008 passed by the Special Judge, NDPS Act, Jagdalpur in Special Case No. 10/2007 acquitting the accused appellant of the charges u/s 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act (for Short the "NDPS Act"). The prosecution case, in brief, is that on 17-1-2007, a secret Information was received by Sub-Inspector M. Yakub Memon to the effect that that an unknown person would carry contraband Ganja in Maruti Omni bearing Regn. No. C.G. 04-B/2075. Thereafter, the said information was reduced to writing in the Rosnamcha Sanha, two independent witnesses Mannuram (P.W. 3) and Rame (P.W. 4) were summoned, Mukhbir Soochna Panchnama was prepared and the witnesses were apprised of the said information. Panchnama with respect to not obtaining the search warrant was prepared in the presence of witnesses Mannuram and Rame. Thereafter at about 22.30 hours, the Station Incharge Yakub Memon along with Head Constable (Badge No. 702), two other Constables (Badge Nos. 247 and 713) and the witnesses Rame and Mannu carrying seal, balance and weights etc., had gone to village Tarapur and stood there in front of a school. At that time, they saw that one white coloured Maruti Van bearing Regn. No. C.G. 04/B-2075 was coming towards village Boregoan and on intercepting the said vehicle, they found that there was only a driver who, on interrogation, told that his name was Tuleshwar. Thereafter notice was given to accused Tuleshwar and he was informed that the Police had received information about the contraband Ganja in his vehicle, for which search of the vehicle is to be conducted.

On 18-1-2007 accused was given notice u/s 50 of the Narcotic Drugs and Psychotropic Substances Act and legal formalities were completed for conducting search of the vehicle. On search being made, they found that the accused was in possession of two plastic bags and two gunny bags containing contraband ganja. Accordingly, the police seized the contraband Ganja from the vehicle and weighment Panchnama was prepared. On weighment being done, it came out to be 14 Kgs. from one gunny bag, 13 Kgs. from another gunny bag, 13 Kgs. from a plastic bag and again 10.300 grams from another plastic bag, total being 50 Kgs. and 300 grams. Out of which, 8 samples packets of 25 grams each were prepared and they were sealed. The accused was arrested. The statements of witnesses Rame and Mannuram before the Police were reduced to writing. On the spot, Dehatinalishi was also reduced into writing. The seized material was handed over to Malkhana. On 18-1-2007, the First Information Report was registered for the offence punishable u/s 20-B of the NDPS Act. The site map of the place of incident was prepared. On 20-1-2007, 4 sample packets of seized ganja marked as A-1, B-1, C-1 and D-1 were sent to the Forensic Science Laboratory, Raipur and after receiving the FSL Report and after completing the investigation, challan was filed u/s 20-B of the NDPS Act.

The prosecution has examined six witnesses. They are Salik Ram Sahu (P.W. 1), Sukhdeo Singh Baghel (P.W. 2), Mannu (P.W. 3), Rame (P.W. 4, Sub-inspector Yakub Memon (P.W. 5) the investigating officer and head constable Sukal Singh (P.W. 6). This apart, one Ranu Sinha (D.W. 1) was also examined by the defence witness in support of its case. Statement of the accused/appellant was also recorded u/s 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.

The trial Court acquitted the accused of the charge punishable u/s 20(b)(ii)(c) of the NDPS Act giving him benefit of doubt.

A perusal of the record shows that according to search Panchnama Ex. P. 11, the vehicle was searched on 18-1-2007 at about 00.45 hours and in the vehicle, two white coloured plastic bags and two gunny bags containing Ganja were found. It is surprised to note that before conducting search of the vehicle, the investigating officer (P.W. 5) has received information that four bags of Ganja were kept in the Vehicle and then on 18-1-2007 at about 00:15 hrs., he gave notice to the accused u/s 50 of the NDPS Act (Ex. P-9) informing him that there were two plastic bags and two gunny bags containing contraband ganja in the vehicle and search thereof is to be conducted. However, P.W. 5 Yakub Memon has not explained in his court evidence that before conducting the search of the vehicle how he expressed his doubt in the notice u/s 50 given to the accused that there were two plastic bags and two gunny bags of Ganja. It appears that the informer has not informed him that who has kept the Ganja in the vehicle.

The independent witness Mannu (P.W. 3) has stated in his court evidence that he put his signatures on Ex. P. 3 to Ex. 18, but 4-5 months back, police called him to the police station and obtained those signatures from him. He has further stated that he had not seen the accused with Ganja. According to him, he has put his signatures at a time on all the Panchnamas. The other independent witness Rame (P.W. 4) has also stated in his evidence that Ex. P. 3 to P-18 bear his signatures. But in this regard he has stated that 3 months back, Police obtained his signatures on blank papers. Further according to this witness (P.W. 4), he was called by the police and was asked to sign all Panchnamas and due to fear he signed all the Panchnamas. It is noteworthy that the accused is resident of village Mulgahan, P. S. Arjuni, Distt. Dhamtari, whereas witness Mannu and Rame both are residents of village Tarapur, P. S. Nagarnar, District Bastar and the distance between the two places is more than 300 K.Ms. Therefore, under the circumstances, it does not appear that there was possibility of nexus between the accused and the independent witnesses. It is also pertinent to note that under the provisions of section 55 of the NDPS Act, the Officer-in-charge of Police Station Nagarnar has not put his seal on the bags of seized Ganja which was deposited by the Investigating Officer P.W. 5 Yakub Memon in the Malkhana.

We are of the opinion that due to non-corroboration by independent witnesses, the evidence of P.W. 2 Inspector Sukhdeo Singh Baghel and P.W. 5 the investigating officer Yakub Memon (Sub-Inspector) cannot be believed and conviction of the accused cannot be based on their evidence. Since the allegations against the accused were not supported by the independent witnesses, the story of prosecution becomes doubtful.

It is also essential to mention that there was no confessional statement of the accused respondent. The respondent due to his giving consent for his search to be conducted by the police officers had not been taken to any nearest Gazetted Officer or the Magistrate and the vehicle which was allegedly loaded with contraband Ganja was also searched in the presence of two witnesses namely Rame and Mannuram. These witnesses became hostile and they did not support the prosecution story. They had stated that their signatures were obtained at the police station. They had neither seen the accused respondent nor admitted their presence at the time of recovery of contraband ganja from the possession of accused and due to fear of police they signed some papers.

Section 100 of the Code of Criminal Procedure is relevant here and quote below:

Persons in-charge of closed place to allow search.--

(4) Before making a search under this Chapter, the officer or other person about to make it shall call upon two or more independent and respectable inhabitants of the locality in which the place to be searched is situate or of any other locality if no such inhabitant of the said locality is available or is willing to be a witness to the search, to attend and witness the search and may issue an order in writing to them or any of them so to do.

(5) The search shall be made in their presence, and a list of all things seized in the course of such search and of the places in which they are respectively in the course of such search and of the places in which they are respectively found shall be prepared by such officer or other person and signed by such witnesses; but no person witnessing a search under this section shall be required to attend the Court as a witness of the search unless specifically summoned by it.

(6) The occupant of the place searched, or some person in his behalf, shall, in every instance be permitted to attend during the search, and a copy of the list prepared under this section, signed by the said witness, shall be delivered to such occupant or person.

(7) When any person is searched under sub-section (3), a list of all things taken possession of shall be prepared, and a copy thereof shall be delivered to such person.

A bare reading of the above provisions would show that the prosecution has not complied with the provisions of section 100, Cr.P.C. According to the prosecution, the search was conducted in presence of two independent witnesses but those witnesses denied their presence and became hostile and they did not support the prosecution story. Under the circumstances, the search cannot not be said to be proved due to non-availability of some other corroborative evidence. This apart, there was no confessional statement of the respondent accused as already mentioned above.

Shri Vinay Harit, learned Deputy Advocate General has submitted that recovery cannot be doubted for want of corroboration from independent witnesses. He has placed reliance on a decision of the Supreme Court in M. Prabhulal Vs. The Assistant Director, Directorate of Revenue Intelligence, . However, after going through the said decision, we found that there was confessional statement of the accused which was a corroborative evidence but in the instant case no such confessional statement was recorded and the recovery was not proved because the prosecution version was not corroborated by the independent witnesses in whose presence the search was allegedly conducted and they denied their presence. Therefore the case relied upon by learned State Counsel is distinguishable from the facts of the present case. In view of the abovementioned facts and circumstances of the case, we do not find any good ground warranting interference in the impugned judgment and order passed by the Court below. Therefore, the appeal fails and is dismissed.