Chattisgarh High Court
Gurvinder Singh vs State Of C.G on 16 June, 2022
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRA No. 86 of 2002
Order reserved on : 25/03/2022
Order delivered on : 16/06/2022
Gurvinder Singh, S/o Sardar Amarjeet Singh Bhatiya, aged
about 26 Years, R/o Budhawaripara Dongargarh, District-
Rajnandgaon (C.G.).
---- Appellant
Versus
State of Chhattisgarh, Through Police Station- Dongargarh,
District- Rajnandgaon (C.G.).
---- Respondent
For Appellant :Mr. Arun Kochar, Advocate along with
Mr. Rahil Arun Kochar, Advocate
For Respondent/State :Mr. Himanshu Sharma, P.L.
Hon'ble Smt. Justice Rajani Dubey
CAV Order
16.06.2022
1. This appeal is preferred against the impugned judgment of
conviction and order of sentence dated 09.01.2002 passed by the
learned Special Judge (NDPS Act) Rajnandgaon in Special Case No.
69/2001 whereby, the trial court has convicted the appellant and
sentenced him as under:-
S.No. Conviction Sentence Default
1. U/s 20(B)(1) R.I. for 5 years and In default of payment of fine
of NDPS Act to pay fine of further R.I. for 1 year
Rs.5000/-
2. Brief facts of the case are that on 16.04.2001 at about 11:40 pm,
information was received by Sub-Inspector- Josh Kurwila regarding
illegal possession of contraband ganja by the appellant. On the basis
of secret information, police personnel intercepted and found the
appellant in possession of contraband ganja which was weighed to be
2 KG. Seizure memo was prepared vide Ex.P/8. FSL report was
prepared vide Ex.P/9. The matter was invested, FIR (Ext.P/13) was
registered and after completion of trial, the trial court convicted the
appellant as mentioned above.
3. So as to hold the accused/appellant guilty, the prosecution has
examined as many as 7 witnesses. Statement of the accused/appellant
was also recorded under Section 313 of the Cr.P.C. in which he denied
the charges leveled against him and pleaded his innocence and false
implication in the case.
4. On the basis of oral and documentary evidence, trial court has
convicted the appellant under Section 20(B)(1) of the NDPS Act and
sentenced him as mentioned in para 1. Hence, this appeal filed by the
appellant.
5. Leaned counsel for the appellant submits that the impugned
order and judgment of sentence is bad, illegal and improper & there is
no legal evidence to establish that the cannabis were seized from the
possession of the appellant. Prosecution has failed to prove its case
beyond reasonable doubt. Both the independent witnesses did not
support the prosecution case, therefore, the prosecution has failed to
prove that the alleged ganja was seized from the exclusive possession
of the appellant. The learned trial court has convicted the appellant
only on the basis of testimony of Investigating Officer without
corroboration by any independent witness and the statement of I.O. is
also full of contradictions and material omissions as per Narcotic
offences. He submits that the burden is on the prosecution to establish
that right from the time of seizure and seized article to be kept properly
sealed and in safe custody till its reaching to the Forensic Science
Laboratory, but in the present case, the prosecution has failed to prove
this burden, therefore, conviction is liable to be set aside. In the
present case, mandatory provisions of Sections 42, 50, 52 & 57 of the
NDPS Act, have not been complied with by the Investigating Officer,
therefore, the conviction is liable to be set aside.
6. On the other hand, learned counsel for the State supported the
impugned order.
7. Having heard counsel for the parties and perused the material
available on record.
8. Before the trial court, prosecution has examined 7 witnesses.
Ramesh (PW-3) and Umesh (PW-4) are independent witnesses of
search and seizure-memo but they did not support the prosecution
case before the trial court and have only admitted their signatures on
Ext.P/2 to Ext.P/11. Prosecution has cross-examined and declared
them hostile witnesses however, they did not admit any suggestion of
the prosecution and denied all suggestions. Rajesh Khare (PW-7) has
stated in his cross-examination that he has lodged FIR (Ext.P/13) and
admitted his signature in A to A part.
9. Josh Kurwila (PW-1), ASI, Investigating Officer has stated in
examination-in-chief, that he intercepted and seized 2 kg of ganja from
the possession of the appellant & has admitted in paras 4 & 7 of his
cross-examination that,
"4. ममुखबबिर कक ससूचनन पमुललिस अधधीक्षक महहोदय कहो बमलिधी थधी तथन ममुझझ उन्हहोंनझ
कनयर वनहधी कझ ललिए बनदरबशित बकयन थन। ममनझ इस ससबिसध मम रबक्षत कमद रनजननसदगनव कझ सनन्हझ मम
इसदनज बकयन हहै। वह सनन्हन प्रकरण मम पझशि नहह हहै।
उसकझ बिनद ममनझ तलिनशिधी वनरसट कझ ललिए एस.डधी. ओ. पधी. डहोंगरगढ़ कझ पनस आरक्षक कहो भझजन
थन। तलिनशिधी वनरसट कझ ललिए बदयन गयन आवझदन इस प्रकरण कझ अबभलिझख मम नहह हहै।
7. तनरधीख कझ आगझ टनइम कन स्थनन प्र.पधी.1 मम खनलिधी छहोड़न गयन हह ह इसकन कनरण
जल्दधी मम ललिखनन भसूलि गयन हहै। प्र.पधी.5 और प्र.पधी.6 मम बदननसक व समय मझरधी हस्तललिबप मम नहह
हहै। सनथ मम जहो थन उसनझ ललिखन हहै सबि इसस्टपझक्टर नझतननम नझ ललिखन हहै।"
10. Hon'ble Apex Court in the matter of Alakh Ram Vs. State of U.P.
Criminal Appeal No. 36 of 2004 (Arising out of SLP (Crl.) No.
1453/2003) has held that,
"prosecution also have not given any evidence to show that
this property belongs to appellant from which contraband was
seized. In this situation, conviction is not sustainable."
11. Under Section 42 of the NDPS Act is prescribed as under:-
"the empowered officer can enter, search, seize and arrest even
without warrant or authorization, if he has reason to believe from his
personal knowledge or information taken down in writing, that an
offence under Chapter IV of the said Act has been committed. Under
proviso to sub-section (1), if such officer has reason to believe that a
search warrant or authorization cannot be obtained without affording
opportunity for the concealment of evidence or facility for the escape
of an offender, he may enter and search such building, conveyance or
enclosed place at any time between sunset and sunrise after
recording the grounds of his belief and send the same to his
immediate official superior in terms of sub-section (2) of the Section."
Section 50 of the NDPS Act prescribes the conditions under which personal
search of a person is required to be conducted. Being the pivotal provision,
the Section, (as amended by Act 9 of 2001 - inserting sub-sections (5) and
(6) with effect from 2nd October 2001) is extracted in full. It reads as under:
"50. Conditions under which search of persons shall be conducted.--
(1) When any officer duly authorised under section 42 is about to
search any person under the provisions of section 41, section 42 or
section 43, he shall, if such person so requires, take such person
without unnecessary delay to the nearest Gazetted Officer of any of
the departments mentioned in section 42 or to the nearest Magistrate.
(2) If such requisition is made, the officer may detain the person until
he can bring him before the Gazetted Officer or the Magistrate
referred to in sub-section (1).
(3) The Gazetted Officer or the Magistrate before whom any such
person is brought shall, if he sees no reasonable ground for search,
forthwith discharge the person but otherwise shall direct that search
be made.
(4) No female shall be searched by anyone excepting a female.
(5) When an officer duly authorised under section 42 has reason to
believe that it is not possible to take the person to be searched to the
nearest Gazetted Officer or Magistrate without the possibility of the
person to be searched parting with possession of any narcotic drug or
psychotropic substance, or controlled substance or article or
document, he may, instead of taking such person to the nearest
Gazetted Officer or Magistrate, proceed to search the person as
provided under section 100 of the Code of Criminal Procedure, 1973
(2 of 1974).
(6) After a search is conducted under sub-section (5), the officer shall
record the reasons for such belief which necessitated such search
and within seventy-two hours send a copy thereof to his immediate
official superior."
12. In this case, the prosecution did not produce any evidence that
the seized article was kept properly sealed and in safe custody till its
reaching the Forensic Science Laboratory. The burden is on the
prosecution to establish the fact but prosecution did not examine
Malkhana Nazir or other document to prove the fact that from the date
of seizure i.e. 16.04.2001 to the date of receipt of FSL, property was
kept in safe custody. FSL report did not show that they were received
sealed packet.
13. In the present case, there is no any oral and documentary
evidence to show that after seizure of cannabis, they were kept till
sending to Forensic Science Laboratory, therefore, in this case,
Investigating Officer did not follow the mandatory provision of the
Narcotic Drugs and Psychotropic Substances Act, 1985.
14. In the light of above discussion, conviction of appellant is not
sustainable. Accordingly, the appeal is allowed and judgment of
conviction and sentence of order dated 09.01.2002 is set aside and
appellant is acquitted of the charges under Section 20(B)(1) of the
NDPS Act.
15. Appellant is on bail, no order with regard to his surrender etc. is
required. His bail bonds stand discharged.
Sd/-
(Rajani Dubey)
JUDGE
Ruchi
