State Of Chhattisgarh vs Devendra Rai

Arvind Kumar Verma, J

Heard.

Admit.

With the consent of the parties, matter is heard finally.

This appeal has been filed by the appellant/State against the order of acquittal dated 29.01.2020 passed in Special Case (NDPS) No.04/2018 by which learned Special Judge, (NDPS Act), Bemetara (CG) acquitted the respondents/accused of offence under Section 8 (ग), 20 (ख) (II)(B) of the NDPS Act.

Brief facts of this case is that on 20.12.2017, the Police of PS - Bemetara received secret information from the informer that respondents/accused are possessing illegal contraband (ganja) and searching for the customers to sell it. On receiving said information, they called the witnesses, prepared search information Panchanama, reached on spot and caught the accused/respondents. During course of search, total 04 packets of illicit contraband ganja (containing 9.500 kg) was seized from the possession of accused/respondents. On the basis of seizure, FIR was registered against the respondents and they have been arrested. Statements of witnesses were recorded under Section 161 of Cr.P.C.

After completion of investigation, charge-sheet/challan was filed against the accused and based upon which trial Court framed the charges against them.

In order to prove guilt of accused, prosecution examined total 08 witnesses and their statements were recorded. However, no defence witnesses was examined. Statement of accused were recorded under Section 313 CrPC in which they pleaded innocence and false implication.

After completion of trial, trial Court acquitted the accused/respondents as mentioned in paragraph -1 of this judgment. Hence this petition.

Learned counsel for the appellant/State submits that learned trial Court acquitted the respondents on the ground that the prosecution has failed to comply the mandatory provisions of N.D.P.S. Act, whereas the prosecution has conducted the investigation/proceeding strictly in accordance with law and have been duly complied with the mandatory provision of the NDPS Act. The trial Court has failed to consider the factum of seizure of illicit contraband (ganja) from the possession of respondents/accused. He further submits that learned trial Court failed to appreciate the statement of the witnesses, wherein, they have stated about the prosecution case and seizure of illicit contraband from the accused, however, despite these evidences the learned trial Court acquitted the respondents/accused.

On the other hand, learned counsel for the respondents/accused supporting the impugned judgment would submit that general procedure for sampling provided in Standing Order No.01 of 1989 dated 13.06.1989 has not been complied with by the prosecution. The entire action of seizure and sampling is wholly illegal as it was done in violation of the mandatory provisions of Section 52A(2) of the NDPS Act. Learned trial Court having appreciated the overall oral and documentary evidence has rightly recorded a finding of acquitted, which needs no interference by this Court. Therefore, the present appeal being sans merits is liable to be dismissed.

Heard learned counsel for the appellant/State and perused the record of trail Court including the impugned judgment of acquittal.

In order to test the above facts and submissions/evidences, it would be appropriate to refer to the mandatory provisions of the NDPS Act.

Relevant Sections of the NDPS Act read as under :-

“52A. Disposal of seized narcotic drugs and psychotropic substances.-

1……

(2)…...Where any [narcotic drugs, psychotropic substances,

controlled substances or conveyances] has been seized and forwarded to the officer-in-charge of the nearest police station or to the officer empowered under section 53, the officer referred to in subsection (1) shall prepare an inventory of such [narcotic drugs, psychotropic substances, controlled substances or conveyances] containing such details relating to their description, quality, quantity, mode of packing, marks, numbers or such other identifying particulars of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] or the packing in which they are packed, country of origin and other particulars as the officer referred to in sub-section (1) may consider relevant to the identity of the [narcotic drugs, psychotropic substances, controlled substances or conveyances] in any proceedings under this Act and make an application, to any Magistrate for the purpose of

(a) certifying the correctness of the inventory so prepared; or

(b) taking, in the presence of such Magistrate, photographs of [such drugs or substances or conveyances] and certifying such photographs as true; or

(c) allowing to draw representative samples

of such drugs or substances, in the presence of such Magistrate and certifying the correctness of any list of samples so drawn.

(3) Where an application is made under subsection (2), the Magistrate shall, as soon as may be, allow the application.

(4) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) or the Code of Criminal Procedure, 1973 (2 of 1974), every court trying an offence under this Act, shall treat the inventory, the photographs of [narcotic drugs, psychotropic substances, controlled substances or conveyances] and any list of samples drawn under subsection (2) and certified by the Magistrate, as primary evidence in respect of such offence.

Standing Order No.01 of 1989 dated 13.06.1989 provides that the police was required to draw a sample from each packet allegedly recovered with the help of field testing kit. The mixing of the material from all the packets and then drawing of representative sample is not provided in the Standing Order, as if, such a course is adopted the sample would seize to be representative sample of the corresponding packet

Perusal of records would show that on the date of alleged incident during course of search, total 04 packets of illicit contraband ganja (containing 9.500 kg) was seized from the possession of accused/respondents. However, only two sample packets containing 50 grams each were prepared for testing out of 04 packets of contraband. The samples were not taken in each of the packets by the Investigating Officer (IO) and before taking samples, IO has mixed-up the 04 packets of contraband. At this point of time, it cannot be ascertained whether all the 04 packets contained the alleged contraband of ganja or not. There is no evidence available on record that the representatives samples were drawn in the presence of the Magistrate and the list of the samples so drawn were certified by the Magistrate. Thus, it is clear that there is breach of general procedure for sampling prescribed in Standing Order No.01 of 1989 and complete non-compliance of mandatory provision of Section 52(A) of the NDPS Act.

Hon’ble Supreme Court in the matter of Muralidhar @ Gidda & Another vs. State of Karnataka, reported in (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 has utterly failed in proving its case beyond reasonable doubt.

Having gone through the oral and documentary evidence available on record, keeping in view the settled legal position regarding the scope of interference in the appeals against acquittal, this Court finds no such illegality or infirmity in the impugned judgment of the trial Court acquitting respondents of the charge under Sections 8 (ग), 20 (ख) (II)(B) of the NDPS Act. The said finding is based upon the proper appreciation of overall evidence available on record. It is trite law that if two views are possible in the given set of evidence, the appellate Court should not ordinarily interfere with the judgment of acquittal until and unless the said finding is found to have been arrived at by ignoring relevant facts and considering the irrelevant ones. However, no such illegality is noticed in the impugned judgment warranting interference by this Court. Being so, the instant appeal is without any substance and is liable to be dismissed.

Accordingly, the instant appeal is hereby dismissed.