Chattisgarh High Court
State Of Chhattisgarh vs Devendra Kumar Sahu @ N. Kumar Sahu ... on 13 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Acquittal Appeal No.127 of 2010
State of Chhattisgarh, through the District Magistrate
Jagdalpur, District Bastar (CG)
Appellant
Versus
1. Devendra Kumar Sahu @ N. Kumar Sahu, S/o Kanhaiya Lal
Sahu @ K.L. Sahu, Aged about 22 years, R/o Shivmandir
Changora Bhatha, Behind Kalimandir, Raipur (CG)
2. Omprakash Sagar, S/o Meluram Sagar, Aged about 20
years, R/o Shivmandir Changora Bhatha, Behind
Kalimandir, Raipur (CG)
3. Jitendra Bhivgade, S/o Salikram, Aged about 19 years,
R/o Kantagtola P.S. Rampalli, District Balaghat (M.P.)
Respondents
For Appellant: Mr.Sudeep Verma, Dy. Government Advocate
For Respondents: Mr.Sushil Dubey, Advocate
Hon'ble Shri Justice Sanjay K. Agrawal and
Hon'ble Shri Justice Sachin Singh Rajput
Judgment on Board
(13.6.2022)
Sanjay K. Agrawal, J.
1. This acquittal appeal is directed against the judgment
and order dated 30.4.2009 by which the learned Special
Court constituted under the provisions of NDPS Act,
Jagdalpur in Special NDPS Case No.23/08 has acquitted
the respondents herein from charge under Section 20(b)
(ii)(C) of the Narcotic Drugs and Psychotropic
Substances Act, 1985 (hereinafter called as 'NDPS
Act').
2. Case of the prosecution, in brief, is that on 7.4.2008
at about 10.40 a.m. the respondents herein were found
in transporting 108 kg. 900 grams of contraband article
ganja in Toyota Qualis bearing registration
No.C.G.04/1725 and thereby committed the offences. The
trial Court after appreciating oral and documentary
evidence available on record, by its judgment dated
30.4.2009, proceeded to acquit the respondents herein
for the aforesaid offences, against which, this
acquittal appeal has been filed assailing the judgment
as unsustainable and bad in law.
3. Mr.Sudeep Verma, learned Deputy Government Advocate for
the appellant / State, would submit that the Special
Court has acquitted the respondents herein by recording
a finding which is perverse to record and as such, it
is a fit case where the judgment of acquittal is liable
to be setaside.
4. On the other hand, Mr.Sushil Dubey, learned counsel
appearing of the respondents, would support the
impugned judgment and submit that the Special Court is
absolutely justified in acquitting the respondents
herein.
5. We have heard learned appearing for the parties,
considered their rival submissions made hereinabove
and also went through the records with utmost
circumspection.
6. Learned Special Judge while acquitting the respondents
herein has recorded the following findings:
(i) That, search panchnama (Ex.P5) was prepared on
7.4.2008 at 1.20 p.m. in which from possession of
respondent Devendra Sahu, 48 kg. 900 grams ganja was
said to be searched. Similarly, from respondent
Omprakash Sagar, 33 kg. 500 grams ganja was said to be
searched and from respondentJitendra Bhivgade, 28 kg.
800 grams ganja was said to be searched and thereafter
seizure was made vide Ex.P6 and measurement was made
vide Ex.P10 at 3.40 p.m. in which exactly the same
quantity of ganja i.e. 46 kg. 900 grams from
respondentDevendra Sahu, 33 kg. 200 grams from
respondentOmprakash Sagar and 28 kg. 800 grams from
respondentJitendra Bhivgade was seized, which is
highly suspicious.
(ii) That, as per the prosecution story, letter of
Superintendent of Police, Jagdalpur (Ex.P26) dated
9.4.2008, 11 sealed samples packets marked as Articles
A1 to K1 from Farasgaon malkhana was sent for FSL
examination, but in property seizure memo Ex.P14, no
such sample packets were seized.
(iii) That, vide Ex.P1 (serial No.44) which is a copy
of malkhana register of Farasgaon Police Station, no
such sample packets were deposited and it has not been
proved by Farasgaon malkhana Incharge head constable
Mahesh Kumar Kunjam (PW1), as such, the prosecution
case is suspicious and the prosecution has failed to
prove the offence beyond reasonable doubt and proceeded
to acquit the respondents herein.
7. It is correct to say that in measurement, seized ganja
was measured vide Ex.P10 and weight of recovered ganja
was obtained by taking measurement and prior to that in
search panchnama (Ex.P5), the exact weight of the
recovered ganja i.e. 46 kg. 900 grams from respondent
Devendra Sahu, 33 kg. 200 grams from respondent
Omprakash Sagar and 28 kg. 800 grams from respondent
Jitendra Bhivgade was found. The prosecution has failed
to establish as to how before the seized ganja was
measured, the exact measurement came to be recorded in
search panchnama Ex.P5, whereas measurement was taken
vide Ex.P10. The trial Court has rightly noticed one
of the suspicious circumstances while acquitting the
respondents herein.
8. Similarly, it is admitted position on record that ganja
in question was recovered from possession of the
respondents herein on 7.4.2008 vide seizure memo
(Ex.P6) and sample packets of the said panchnama was
prepared on the same date and it was sent to FSL vide
Ex.P26 by letter of the Superintendent of Police,
Jagdalpur to Director, State Forensic Science
Laboratory for chemical examination, but it would
appear from Ex.P1 i.e. copy of malkhana register in
which seized articles are recorded, only it has been
recorded deposit of 13 kg. 900 grams and 14 kg. 700
grams and there is no entry of rest of ganja as total
108 kg. 900 grams ganja was recovered from possession
of the respondents herein and even it does not record
of sample ganja packets which were prepared vide Ex.P
11, whereas in accordance with Section 55 of the NDPS
Act, it ought to have kept in safe custody in said
police station.
9. Section 55 of the NDPS Act provides as under:
"55. Police to take charge of articles seized
and delivered.An officerincharge of a police
station shall take charge of and keep in safe
custody, pending the orders of the Magistrate,
all articles seized under this Act within the
local area of that police station and which may
be delivered to him, and shall allow any
officer who may accompany such articles to the
police station or who may be deputed for the
purpose, to affix his seal to such articles or
to take samples of and from them and all
samples so taken shall also be sealed with a
seal of the officerincharge of the police
station."
10. Even malkhana Incharge head constable Mahesh Kumar
Kunjam (PW1) has been examined before the Court by the
prosecution, but he has failed to prove that Assistant
SubInspector T.R.Nag (investigating officer) has not
even deposited any sample packets in malkhana register.
As such, there is complete violation of Section 55 of
the NDPS Act. The Special Court has rightly held that
there is serious discrepancy in prosecution case. Even
otherwise, investigating officer T.R.Nag (PW5) has
been examined as PW5 before the Court. In para25, he
has candidly admitted that during the course of
investigation all the documents were prepared by head
constable Shiv Kumar Sahu and it was not prepared by
him.
11. After hearing learned counsel appearing for the
parties, after going through the records and in view of
the aforesaid findings recorded, we are of the
considered opinion that the Special Court has taken
reasonable view of the matter by holding that the
prosecution has failed to prove the offence under
Section 20(b)(ii)(C) of the NDPS Act beyond reasonable
doubt, which is neither perverse nor contrary to
record. We do not find any merit in this acquittal
appeal.
12. Accordingly, the acquittal appeal deserves to be and is
hereby dismissed.
Sd/ Sd/
(Sanjay K. Agrawal) (Sachin Singh Rajput)
Judge Judge
B/
