State Of Chhattisgarh vs Atul Gadewal

Deepak Kumar Tiwari, J

The present Acquittal Appeal has been preferred under Section 378 (1) of the CRPC against the judgment dated 9.2.2018 passed by the Special Judge (constituted under NDPS), Janjgir-Champa in NDPS Case No.04/2017 whereby the learned Special Judge has acquitted the respondent/accused of the charge under Section 20 (b)(ii)(B) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short “the Act”).

Case of the prosecution, in brief, is that on 25th December, 2016 at about 6 pm Sub Inspector SC Chouhan (PW-11) has received a secret information that one person coming from Janjgir Basti on his motorcycle is illegally transporting contraband Ganja and is going towards Bongapar. Thereafter notice has been given to the independent witnesses namely, (PW-5) Keshav Singh and Nanki @ Tankeshwar (PW-6) and in their presence Mukhbir Panchnama (Ex.-P/16) was prepared. The information has been sent to the superior police officers in compliance of Section 42(2) of the Act vide Ex.-P/17 and the same has been recorded in the Rojnamcha Sanha vide Ex.-P/11. Near ‘Kuan Tiraha’, Bongapar, the respondent/accused was asked to stop his motorcycle Hero Deluxe bearing registration No.CG-11AF/6893. The respondent/accused was given notice under Section 50 of the Act vide Ex.-P/18 and consent of the respondent/accused was also taken to be searched by the Police Officer vide Ex.-P/19. Thereafter consent for search of the motorcycle was also obtained vide Ex.-P/20. Panchnamas in respect of Sub Inspector SC Chouhan and other police officers regarding search were also prepared vide Ex.-P/21 & P/22 and no objectionable material was found. Upon search of the accused, contraband Ganja in plastic bag was recovered vide Ex.-P/26. Identification Panchnama was prepared vide Ex.-P/27. Before weighing the contraband, verification of the weighing scale has been done vide Ex.-P/28 and Tol Panchnama was prepared vide Ex.-P/29. Total 4.760 kg Ganja was found, out of which 2 samples of 50 gram each were separated. Specimen seal Panchnama was prepared vide Ex.-P/30. The contraband Ganja, motorcycle and the sample packets were seized from the respondent/accused vide Ex.-P/31.

Crime details form and sketch map were prepared vide Ex.P/32. Patwari Suresh Kumar Panda has prepared the spot map vide Ex.-P/34. The Executive Magistrate has prepared the Panchnama vide Ex.-P/35. Statements of the witnesses were recorded. The FIR has been registered vide Ex.-P/44. The proceeding conducted during investigation has been entered in the daily diary. The seized contraband has also been sent for chemical examination and the FSL report (Ex.-P/3) also confirmed the said contraband to be Ganja. After completion of investigation, charge sheet was filed. During trial, the respondent/accused abjured his guilt and claimed to be tried.

In order to prove its case, the prosecution has examined as many as 11 witnesses and exhibited 46 documents (Ex.-P/1 to Ex.-P/46). In the statement recorded under Section 313 Cr.P.C., the respondent/accused has pleaded false implication and did not adduce any defence evidence. After evaluating the evidence, the trial Court has acquitted the respondent/accused of the charge under Section 20 (b) (ii) (B) of the Act. Hence this Appeal.

Learned counsel appearing on behalf of the appellant/State would submit that as there is reliable statement of the Investigating Officer namely SC Chouhan (PW-11), therefore, the finding recorded by the trial Court acquitting the accused is absolutely unjustified. He prays to allow the Appeal.

I have heard learned counsel for the State, considered his submission, and perused the impugned judgment of acquittal as also other material available on record with utmost circumspection.

It is well settled that even in the matter of independent witnesses turning hostile, cannot be a ground for acquittal under the NDPS Act. The said proposition has also been reiterated in the matter of Rizwan Khan Vs. State of Chhattisgarh, {(2020) 9 SCC 627}. Similarly, it is also well settled that if evidence of a police officer is found to be reliable and trustworthy then basing the conviction thereupon cannot be questioned. However, when the prosecution comes up with a story that at the time of search and seizure, there are two independent witnesses and both have turned hostile which creates a gaping hole in the prosecution theory about the very search and seizure, in such circumstances, the Hon’ble Supreme Court in the matter of Sanjeet Kumar Singh Alias Munna Kumar Singh vs. State of Chhattisgarh {(2022) 16 SCC 58} has materially observed at Para 18, which reads as under:

“18. But if the Court has (i) to completely disregard the lack of corroboration of the testimony of police witnesses by independent witnesses; and (ii) to turn a Nelson’s eye to the independent witnesses turning hostile, then the story of the prosecution should be very convincing and the testimony of the official witnesses notably trustworthy. If independent witnesses come up with a story which creates a gaping hole in the prosecution theory, about the very search and seizure, then the case of the prosecution should collapse like a pack of cards. It is no doubt true that corroboration by independent witnesses is not always necessary. But once the prosecution comes up with a story that the search and seizure was conducted in the presence of independent witnesses and they also choose to examine them before Court, then the Court has to see whether the version of the independent witnesses who turned hostile is unbelievable and whether there is a possibility that they have become turncoats.”

Reverting back to the facts of the present case, independent witness (PW-5) Keshav Singh, Nanki @ Tankeshwar (PW-6) and (PW-7) Mohan Lal have completely turned hostile and not supported the case of the prosecution at all. (PW-5) Keshav Singh has deposed that on the date of the incident, while he was going for repairing the light, the police called him to the Police Station and obtained his signatures on various papers. He admitted his signature in the documents (Ex.-P/15 to P/35). Similar is the statement of Nanki @ Tankeshwar (PW-6). Both the witnesses have categorically deposed that in their presence, no proceeding has been conducted by the police officers regarding seizure of contraband from possession of the respondent/accused. (PW-7) Mohan Lal has also deposed that while he was present at the betel shop, the police has asked him to sign some papers, but in his presence weighing of contraband Ganja has not been done. This witness has admitted his signature on the weighing scale verification vide Ex.-P/28 and Tol Panchnama Ex.-P/29. In cross-examination of these witnesses, nothing has been elicited by the prosecution. (PW-5) Keshav Singh and Nanki @ Tankeshwar (PW-6) have also denied the fact that any notice has been served on them.

SC Chouhan (PW-11) has also failed to state as to on which place the notice has been served on the independent witnesses. Although the said witness has deposed that all the proceedings have been done in presence of these witnesses (i.e. PW-5 & PW-6), but the fact remains that independent witnesses have turned hostile. The prosecution has also failed to bring any fact regarding any possibility that they have become turncoats to the case of the prosecution. From their statements, story of the prosecution creates a gaping hole about the very search and seizure.

The trial Court also recorded a finding that the prosecution has failed to establish as to on which date the seized contraband has been removed from the custody of the Malkhana, for the reason that the same was sent for chemical examination on 27th December, 2016 and no daily dairy entry has been produced or proved and as such there is possibility of tampering with the seized packets.

Furthermore, this Court in the matter of Narendra Bhushan Dubey vs. State of Madhya Pradesh (now CG)1 has laid down the consequences of non-compliance of Section 55 of the Act in Para-18 of the judgment, which reads thus:

“18. The Investigating Officer, who was the officer incharge of the police station and who seized the contraband has been examined by the prosecution as PW-4. In his cross-examination, he has stated that seized ganja was sealed with the seal of the police station. In his cross-examination, he admits that he has seal in his own name. The mandate to Section 55 requires the officer in-charge of the police station to seal the sample with his own seal. However, no explanation has come forth from the prosecution even in the cross-examination of R.K. Rai (PW-4) as to why the officer in-charge did not affix his seal as required under Section 55 of the Act. This aspect assumes importance as in the cross-examination, a suggestion has been given that the incident happened in the night at some other place and the accused was sent to the police station along with the constable and the Investigating Officer had gone to Sakari where signatures of the witnesses were taken on all the documents. Section55 of the Act of 1985 requires the officer-in-charge of police station to take charge of and keep in safe custody all seized articles. The statutory scheme of the Act engrafted under Section 55 requires the officer-in-charge of the police station to seal all the samples with his own seal. The legislative intention is that there should be fair investigation for keeping the seized article in safe custody of the highest officer of the concerned police station so as to eliminate the possibility of the sample being tampered with till the same reaches the hands of the chemical examiner. Under provision contained in Section 55 such a duty has been enjoined upon the officer in-charge of the police station with the manifest object that the senior officers can be trusted to be fair in investigation and not indulging in dubious practices. When the prescribed procedure is abandoned, it gives rise to gnawing suspicion particularly when in the present case, the officer in-charge/S.H.O. himself had seized the articles.”

12.In the present case also, samples and seizure were made with the seal of the police station whereas the seal of the Officer-in-charge of the concerned Police Station is missing, which is required as per Section 55 of the Act.

In the matter of Budh Singh vs. State of U.P. [(2006) 9 SCC 731], the Hon’ble Supreme Court held that in a matter of Appeal against acquittal, the High Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, although the view of the Appellate Court is a more probable one. However, while dealing with a judgment of acquittal, it is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the trial Court were perverse or otherwise unsustainable. It is also entitled to consider as to whether in arriving at a finding of fact, the trial Court has failed to take into consideration admissible evidence and has taken into consideration evidence brought on record contrary to law.

14.Further, in the matter of V.N. Ratheesh vs. State of Kerala, (2006) 10 SCC 617, the Hon’ble Supreme Court held that there is no embargo on the Appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The Hon’ble Supreme Court said that the golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. It is further held that the paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted for the purpose of ascertaining as to whether any of the accused really committed any offence or not. It was also observed that the principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference.

15.Recently, in the matter of Constable 907 Surendra Singh & another vs. State of Uttrakhand, 2025 INSC 114, the Hon’ble Supreme Court has observed that the interference with the finding of acquittal recorded by the trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.

16.Considering the aforesaid infirmities found in the case of the prosecution and the view taken by the Hon’ble Supreme Court in the aforesaid judgments, this Court is of the opinion that the view taken by the trial Court is possible one.

17.In the result, no case is made out for interference in the impugned judgment. In consequence, this Appeal fails and is hereby dismissed.