Chattisgarh High Court
State Of Chhattisgarh vs Karam Deva And Another on 28 April, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
ACQA No. 259 of 2010
State of Chhattisgarh Through District
Magistrate, Baster (C.G.)
Petitioner
Versus
1. Karam Deva S/o. Pojja, aged about 23 years, By
Occupation Agriculturist, R/o. Village
Karamguda, P.S. Kalimela, District Malkangiri
(Orissa)
2. Soyam Dulla, S/o. Joga, aged about 25 years, By
Occupation Agriculturist, R/o. Village
Karamguda, P.S. Kalimela, District Malkangiri
(Orissa)
Respondents
For Appellant/State : Mr. Sunil Otwani, learned Addl.
A.G. and Mr. D.C. Verma, learned
Government Advocate.
Hon'ble Shri Justice Sanjay K. Agrawal
Hon'ble Smt. Justice Rajani Dubey
Judgment on Board
28/04/2022
Sanjay K. Agrawal, J.
1. This acquittal appeal has been preferred by the
Petitioner/State calling in question the
legality, validity and correctness of the order
dated 31.03.2009 passed by learned Special Judge,
N.D.P.S. Act, Jagdalpur (C.G.) in Special
N.D.P.S. Case No. 24/2008, by which respondents
herein have been acquitted from the charge
punishable under Section 20(b)(ii)(C) of the
Narcotic Drugs and Psychotropic Substances Act,
1985.
2. Mr. Sunil Otwani, learned Additional Advocate
General would submit that learned Special Judge
(N.D.P.S.) has absolutely unjustified in
acquitting the respondents herein from the
aforesaid charge by recording a finding which is
perverse to record, which deserves to be set
aside by admitting the acquittal appeal.
3. None appears on behalf of respondents.
4. We have heard learned counsel for the
petitioner/State, considered his rival
submissions and perused the material available on
record.
5. The case of the prosecution, in brief, is that
Investigating Office, P.L Tirki (PW3) received a
secret information that two persons are carrying
contraband article cannabis (Ganja) in a bus
bearing Registration No. C.G14F0136.
Thereafter, I.O. recorded the information in
writing and prepared a memo (Ex.P/26) to the
effect that search warrant could not be obtained
without affording opportunity to such persons and
forwarded the same to his superior Officer.
Further case of the prosecution is that, on
20.02.2008 at about 9:00 AM, the Investigating
Officer apprehended a bus, found the respondents
in it with the contraband article cannabis
(Ganja) and recovered the same vide Ex. P/6 & P/7
from them and subjected the same for weighment
and, as such, 60.500 Kg, 101.00 Kg of
cannabis(Ganja) was seized from the illegal
possession of respondent No.1 and respondent No.
2 respectively. The samples were taken out of the
seized cannabis (Ganja) and thereafter, First
Information Report (Ex. P31) was recorded and
charges were framed against them as
aforementioned.
6. In order to bring home the guilt of
accused/respondent, prosecution examined 3
witnesses. Statement of the respondents herein
were also recorded under Section 313 of CrPC
wherein they denied guilt.
7. The learned trial Court, after appreciating the
oral and documentary evidence available on
record, proceeded to acquit the respondents
herein from the aforesaid charge against which
this acquittal appeal has been filed.
8. A careful perusal of the impugned order would
show that the learned trial Court, in para 14,
has recorded its finding, which reads as under:
Þizdj.k esa vkjksihx.k ds fo:} fof/kor fl)nks"k dk fu"d"kZ fn;s tkus
dk iz'u gS rks bl gsrq ;qfDr;qDr lansg ls ijs ;g lkfcr gksuk vfuok;Z
gS fd iz-ih-36 ,Q-,l-,y- ijh{k.k [email protected]&i= esa mYysf[kr
10 ux lsaiy iSdsV dze'k% ,&1] ,&2] ch&1] ch&2] lh&1] lh&2]
Mh&1] Mh&2] bZ&1 ,oa bZ&2 okLro esa vkjksihx.k ds dCts ls tIr fd;s
x;s FksA tgka rd mDr rF; Lohdkj fd;s tkus dk iz'u gS rks ;g
fnypLi gS fd lqlaxr tIrh i= iz0 ih0 14 iz0 ih0 15 esa vkjksihx.k
ds dCts ls dksbZ Hkh lsaiy iSdsV tIr fd;s tkus dk mYys[k ugh gSA
Lor% foospuk vf/kdkjh ¼v-lk-03 ½ mifujh{kd ih0,y0 frdhZ us vius
U;k;ky;hu dFku ds dafMdk 26 esa ;g egRoiw.kZ LohdkjksfDr fd;k gS
fd mlus vkjksihx.k ls dksbZ uewuk iSdsV tIr ugh fd;k FkkA tIrh i=
iz0 ih0 14 ,oa 15 esa tIr 'kqnk xkatk dh tks ek=k mYysf[kr gS
mlls ;g izdV gksrk gS fd cjken xkaats ls dksbZ lSaiy iSdsV rS;kj ugh
fd;s FksA Fkkuk dwdkukj esa eky[kkuk izHkkjh ¼v-lk-02½ jes'k dqekj lkgw
iz/kku vkj{kd dzekad 411 us Hkh vius U;k;ky;hu dFku esa dksbZ Hkh
lsaiy iSdsV eky[kkuk esa tek djuk rFkk jklk;fud izjh{k.k gsrq
,Q-,l-,y- jk;iqj Hkstuk lkfcr ugh fd;k gSA bl izdkj mDr fLFkfRk
esa jklk;fud izjh{k.k gsrq ,Q-,l-,y- Hksts x, 10 ux lsaiy iSdsVksa dk
cjkenxh iapukek iz0ih0 06 esa mYysf[kr xkatk tSls inkFkZ esa ls rS;kj
fd;k tkuk rFkk lsaiy iSdsVksa dk vkjksihx.k ds dCts ls tIr gksuk
izekf.kr ugh gksrk gSA QyLo:i bl U;k;ky; dh jk; esa vkjksihx.k
dks vkjksihr vijk/k esa Qalkus gsrq iz0ih0 36 fdlh Hkh izdkj ls lqlaxr
ugh jg tkrkAß
9. Similarly, Investigating Officer P.L. Tirky (PW
3), in para 26, has made following statement as
under:
Þ;g dguk lgh gS fd] vkjksihx.k ls dksbZ uewuk iSdsV tIr ugha fd;s
FksA ;g dguk lgh gS fd] tIrh irz izih&14 ,oa 15 esa tIr'kqnk xkatk
dh tks ek=k mYysf[kr gS mlls ;g izdV gksrk gS fd cjken xkatk ls
dksbZ lSaiy iSdsV rS;kj ugha fd;s x;sAß
10. A careful perusal of para 26 of the Statement of
Investigating Officer P.L. Tirky (PW3) would
show that no sample packets of Ganja were
recovered from the possession of respondents
herein. It would also show that from Seizure Memo
Ex. P/14 & P/15, no sample was prepared from that
seized Cannabis (Ganja) from them and the Special
Court recorded finding in para 14 that no sample
packets had been prepared and sent it for
chemical examination to the FSL and similarly,
the Special Court has also recorded that no
sample packet were deposited in malkhana and, as
such, learned Special Court has clearly recorded
a finding that 10 sample packets were not
recovered from the seized Cannabis (Ganja) and,
therefore, it could not be established that the
sample packets of cannabis seized, which were
sent to the FSL, was seized from the possession
of respondents herein, therefore, respondents
cannot be held guilty for the offence punishable
under Section 20(b)(ii)(C) of the Narcotic Drugs
and Psychotropic Substances Act, 1985.
11. In our considered opinion, the finding recorded
by the Special Judge, N.D.P.S. Act, Jagdalpur,
that prosecution has failed to establish the
sample packets in which Ganja was found by the
FSL, was actually seized from the possession the
respondents herein is the finding based on
evidence. We are of the further opinion that the
learned trial Court has absolutely justified in
acquitting the respondents from the charge under
Section 20(b)(ii)(C) of the Narcotic Drugs and
Psychotropic Substances Act, 1985. We do not
find any force in the acquittal appeal and as
such, deserves to be dismissed and is hereby
dismissed.
Sd/- Sd/-
(Sanjay K. Agrawal) (Rajani Dubey)
Judge Judge
V/-
