State Of Chhattisgarh vs Kailash Pal
2022 Latest Caselaw 4109 Chatt

                                        1

                                                                           NAFR
                HIGH COURT OF CHHATTISGARH AT BILASPUR
                     Acquittal Appeal No. 118 of 2010


         State of Chhattisgarh, through District Magistrate,
         Jagdalpur, Bastar, Chhattisgarh.

                                                              ­­­Appellant

                                   Versus

         Kailash Pal S/o Gajadhar Prasad Pal, Aged about 30
         years, Caste Masih, R/o Dhamtari, Tikrapara Ward,
         Near the Church P.S. Dhamtari.

         Permanent    R/o     Village       Yadav     Tola   Sahakar,    P.S.
         Shahapur, Distt. Reeva (M.P.)

                                                             ­­­Respondent



         For Appellant/State :­ Mr. Sunil Otwani, Addl. A.G.
                                  and Mr. Sudeep Verma, Dy. G.A.
         For Respondent:­Mrs. Fouzia Mirza, Senior Advocate
                                with Mr. Naveen Shukla, Advocate


                Hon'ble Shri Justice Sanjay K. Agrawal
               Hon'ble Shri Justice Sachin Singh Rajput
                           Judgment on Board
                               30/06/2022
Sanjay K. Agrawal, J.

1. This acquittal appeal is directed against the

impugned judgment dated 30/04/2009 by which learned

special Judge (NDPS) Act, Jagdalpur has acquitted

the respondent from charges punishable under

Sections 20(B)(ii)(C) of NDPS Act.

2. Mr. Sunil Otwani, learned Additional Advocate

General appearing on behalf of respondent/State,

would submit that learned Special Judge is

absolutely unjustified in holding that prosecution

has failed to prove the offence beyond reasonable

doubt by recording a finding which is perverse and

contrary to the record. He would further submit

that the representative samples were duly drawn

from the ganja seized from the possession of the

respondent herein vide Exhibit P/12 and it was

deposited in the maalkhana vide Exhibit P/13 and

thereafter, the sample was sent for FSL vide

Exhibit P/28. As such, the finding recorded by

learned Special Judge is perverse and the impugned

judgment acquitting the respondent from the

aforesaid charges deserves to be set aside. He

would rely upon the decision rendered by the

Supreme Court in the matter of State of Punjab v.

Makhan Chand1 to buttress his submission.

3. Mrs. Fouzia Mirza, learned senior counsel appearing

on behalf of respondent, would submit that the

provisions contained under Section 52A of the NDPS

Act have not been followed and as such, learned

Special Judge has rightly acquitted the respondent

herein from the aforesaid charges, as such, the

instant appeal deserves to be dismissed. 1 (2004) 3 SCC 453

4. We have heard learned counsel for the

appellant/State, considered his submissions and

perused the record with utmost circumspection.

5. Learned Special Judge has acquitted the respondent

herein on the ground that there is no evidence

available with the prosecution to prove that

seizure of sealed samples of ganja has been seized

from the possession of the respondent.

6. A careful perusal of the record would show that

vide Ex. P/7 ganja to the extent of 102 kgs was

seized from the possession of the respondent and

thereafter, vide Ex. P/8, the substance so seized

was identified to be ganja and pursuant thereof,

samras panchnama (Ex. P/9) was prepared and the

ganja was measured to be 102 kgs and then sample

panchnama was prepared vide Ex. P/12.

7. A careful perusal of Ex. P/12 would show that 50­50

cms of ganja was taken out from 8 bags of ganja and

in total 16 sample packets were made which were

sealed vide Ex. P/13 and thereafter, the said

sample packets are said to have been deposited into

maalkhana on 07/09/2007 and thereafter, these

samples are said to have been sent from maalkhana

to F.S.L, Raipur for chemical examination on

11/09/2007 vide Ex. P/18C.

8. In order to prove Ex. P/18C, Malkhana Incharge

Ghanshyam Markam (P.W.­3) has been examined. He has

admitted the fact that in Ex. P/18C, which are

entries in the register of Malkhana, it has not

been mentioned that the ganja so deposited was

sealed. He has further stated that 8 bags were

deposited in the malkhana and there were no

identification marks on them. He has also admitted

in paragraph 5 of his statement that in Ex. P/18C,

he overwrote the entries and has changed B­2 to B­

1, C­3 to C­1, D­4 to D­1 and E­5 to E­1. He has

also stated that A­1, B­1, C­1, D­1, E­1, F­1, G­1

and H­1 mentioned in Ex. P/18C were not deposited

in Malkhana. As such, it is evident that there is

complete non­compliance of the provisions contained

under Section 55 of NDPS Act. Apart from that,

witnesses of sample panchnama (Ex. P/12) being

Surendra Soni (P.W.­1) and Nirmal Patel (P.W.­2)

have turned hostile and the Investigating Officer,

G.P. Ansari has been examined as P.W.­5 who has

attempted to prove sample panchnama (Ex. P/11) but

he did not say that the respondent was present when

the representative samples were being drawn from

the sacks. As such, in view of the aforesaid

finding, we are of the considered opinion that

learned Special Judge is absolutely justified in

acquitting the respondent herein from the aforesaid

charges. We do not find any perversity or

illegality warranting interference by way of this

appeal.

9. Accordingly, the instant appeal stands dismissed.

                Sd/­                                    Sd/­
     (Sanjay K. Agrawal)                     (Sachin Singh Rajput)
           Judge                                    Judge


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