Chattisgarh High Court
Sandeep Majumdar vs State Of Chhattisgarh on 15 January, 2025
1
2025:CGHC:2619
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRA No. 385 of 2020
1 - Sandeep Majumdar S/o Punin Majumdar, Aged About 22 Years R/o
Kalimela M V-67, Police Station - Kalimela, District - Malkangiri ( Odisha ),
District : Malkangiri *, Orissa.
2 - Vishal Rai S/o Vinay Krishna Rai, Aged About 19 Years R/o Kamwada M V-
30, Police Station And District - Malkangiri (Odhisha), District : Malkangiri *,
Orissa.
... Appellants
versus
1 - State Of Chhattisgarh, Through The Station House Officer, Police Station -
Kondagaon, District - Kondagaon Chhattisgarh., District : Kondagaon,
Chhattisgarh.
... Respondent
For Appellants : Mrs. Savita Tiwari, Advocate
For Res./State : Ms. Isha Jajodia, Panel Lawyer
Hon'ble Shri Justice Ravindra Kumar Agrawal
Judgment on Board
15.01.2025
1. The present appeal has been preferred by the appellants under Section 374
(2) of the Criminal Procedure Code, 1973 against the impugned judgment of
conviction and order of sentence dated 29.02.2020 passed by learned
Special Judge, NDPS Act, 1985, Kondagaon, District Kondagaon (C.G.) in
Special Criminal Case (NDPS Act 1985) No. 35/2018 whereby each of
appellants have been convicted under Section 20(b)(ii)(C) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 (henceforth, 'NDPS Act') and
sentenced to undergo rigorous imprisonment for 10 years with fine of
Rs.1,00,000/-, in default of payment of fine, to further undergo additional
rigorous imprisonment for one year.
2. Case of the prosecution, in brief, are that on 13.01.2018, Investigating Officer
- Krishna Sahu (PW-10) received secret information that a Mini Truck
bearing registration No. OR 10 D-9734 is coming from Malkangiri to Raipur
via Jagdalpur, which was illegally transporting contraband article Ganja. The
said secret information was recorded in rojnamcha and independent
witnesses were called after giving them notice. The intimation about secret
information was sent to Sub Divisional Officer (P), Kondagaon and
considering that search without warrant is necessary, otherwise, accused
persons flee along with the contraband, they proceeded towards the place of
incident for search without warrant alongwith the police party. At about 13.25
hours, they intercepted the said truck at Narayanpur Triangle. The persons,
who were occupants of the Truck, have informed their names as Sandeep
Majumdar (appellant No. 1 herein), who was driving the aforesaid vehicle
and Vishal Rai (appellant No.2), who was the conductor. On being suspicion,
the body of the truck was being inspected. The right about their search have
been intimated to the appellants that they are entitled to be searched by any
Magistrate, Gazetted Officer or from the Investigating officer. The appellants
gave their consent to be searched by the Investigating Officer and, thereafter,
Investigating Officers themselves alongwith the police party gave their own
search to the appellants, but nothing incriminating could be found on their
search. From personal search of appellants, key of the truck, one mobile
phone, cash of Rs.1,160/-, driving licence, Voter ID card, Adhaar Card and
two debit cards have been seized from appellant No. 1 Sandeep Majumdar
and Rs.310/- cash, Voter ID and one mobile phone have been seized from
appellant No. 2 - Vishal Rai. When the said vehicle was minutely examined,
it was found that an additional chamber was prepared after cutting its floor
having 8-9 inch deep and when the said chamber was opened, it was found
that certain packets were hidden inside and said chamber which were
wrapped in brown cello-tape. Total 104 packets were found. RTO papers of
the Truck have also been seized. Notice under Section 67 of the NDPS Act
was given to the appellants, but they failed to produce any valid document for
its transportation. Weighment witness - Randheer Singh was also called on
the spot and after verification of the electronic weighing machine, all the 104
packets of ganja were marked as Ex. A-1 to Ex.A-104 and all the packets
were weighed separately and the total weight was 397.810 kgs. Seized
ganja was re-filled in 11 bags and it was sealed on the spot. Dehati Nalishi
was recorded on the spot and thereafter, truck, seized ganja and the
appellants were taken to the police station where the FIR has been
registered and the seized articles were kept in safe custody of Malkhana.
Inventory was also prepared by the Executive Magistrate and after
homogenization of the contraband, two packets of 50 gms each were drawn.
The sample packets were sent for FSL examination to State FSL, Raipur and
in the said FSL examination, contents of samples packets were found to be
ganja. Statements of the witnesses were also recorded.
3. After completion of usual investigation, charge-sheet was filed before the
learned Special Court for the offence under Section 20 (b) of the NDPS Act.
4. The trial Court framed charge against the appellants under Section 20(b)(ii)
(C) of the NDPS Act. They denied the charge and claimed trial.
5. In order to establish the charges against the appellants, the prosecution has
examined as many as 16 witnesses. Statements of the appellants were also
recorded under section 313 of Cr.P.C. in which they denied the material
appearing against them and stated that they are innocent and have falsely
been implicated in the case.
6. After appreciation of the evidence adduced by the prosecution, the trial court
has convicted the appellants and sentenced them as mentioned in the earlier
part of this judgment. Hence, this appeal.
7. Learned counsel for the appellants would submit that the impugned judgment
is per se illegal and contrary to the evidence available on record. The learned
trial Court has failed to appreciate that the independent witnesses have not
supported the prosecution case. There are material omission and
contradiction in the evidence of the prosecution witnesses and they are
inconsistent. The mandatory provisions of Section 50, 52-A, 55 and 57 of the
NDPS Act have not been complied with. In the present case, the contraband
article Ganja allegedly seized from the appellants were not even produced
before the learned trial Court as an exhibit, which is fatal for the prosecution.
The procedure prescribed in standing order No.1/89 issued by the Central
Government for drawing samples from the seized contraband has also not
been followed. The police should have drawn samples from each packets
but the same has not been done in the present case and the prosecution has
utterly failed to prove its case beyond reasonable doubt against the
appellants by adducing cogent and clinching evidence. Yet, the learned trial
Court held the appellants' guilty of the alleged offences, therefore, the
impugned judgment is liable to be set aside and the appellants are entitled
for acquittal.
8. On the other hand, learned counsel for the State while supporting the
impugned judgment has submitted that the Investigating Officer at the time of
search and seizure has complied with all the mandatory provisions of the
NDPS Act. The officials witnesses have fully supported the prosecution case
and their evidence cannot be discarded merely on the ground that they being
the official witnesses, particularly in absence of any evidence on record to
show their ill intention or animosity as against the appellants for their false
implication in the case. The learned trial Court having appreciated the overall
documentary evidence available on record has rightly recorded a finding of
guilt against the appellants, which needs no interference by this Court and
the appeal filed by the appellants is liable to be dismissed.
9. I have heard the counsel for the parties and perused the material available
on record.
10. Jagdish Samrath (PW-1) and Kamlesh Pal (PW-2) are the independent
witnesses, who are not supported the case of the prosecution and turned
hostile, however, they have admitted their signatures in the documents
Ex. P-1 to Ex. P-28. They have admitted in their cross-examination that they
have signed those documents in the Police Station, which have already been
prepared by the Police.
11. Rituraj Singh (PW-3) is the Police Constable and the member of the search
party, who proved the search proceeding as well as alleged contraband
Ganja found in the truck, which was kept in a hidden chamber on its' body. In
his cross-examination, nothing could be extracted from his evidence that he
was not the member of search party and he was not participated in the
search proceeding.
12. Jaiman Mandavi (PW04) is also a Constable and member of search party
and he too have proved the search proceeding that on the date of incident
they intercepted the truck near Narayanpur triangle and Ganja was seized
from the truck, which was kept in the Drum. Total 104 packets of ganja was
seized. In his cross-examination, he stated that in his police statement Ex.
D/2, he disclosed that the said ganja was kept in the drum but, if it is not
there in the police statement, he could not tell the reasons for the same. He
further stated that his statement was recorded in the hand writing of the
Investigating Officer and his statement was not in typed written form.
13. Ranveer Singh (PW05) is the witness of weighment of the alleged ganja
and he, too, has turned hostile and stated that on the instance of police, he
has signed the document but no proceeding of any weighment has been
done in his presence.
14. Umashankar Netam (PW06) is the head Constable, who received the
intimation of secret information and proved the documents Ex. P/34 and Ex.
P/35. He also proved the Informer's Intimation Register Ex. P/36. In his
cross-examination, nothing specific has been asked from him to disbelieve
the fact that he has not received the intimation about secrete information at
the Office of S.D.O. (Police), Kondagaon.
15. Tekram Dhruv (PW07), who is Malkhana Muharir, has stated in his evidence
that on 13.01.2018, Inspector Krishna Sahu (PW10) has handed over the
seized article Ganja, which was in 104 packets and marked as Article A-1 to
Article - 104, which was kept in 11 bags, the total weight of said contraband
was 3 quintals, 97 kilograms & 810 grams, two number plates, two
registration certificates, RTO papers of the truck, truck seized in the offence
mobile phone, cash amount, driving licence and other RTO papers seized in
the case have handed over to him for keeping the same in the safe custody
in the Malkhana. He made relevant entries in the Malkhana Register Ex.
P/37 and issued acknowledgment Ex. P/38. On 29.01.2018, he has taken out
the said articles for inventory proceeding by the Executive Magistrate and
given it to inspector Pramod Kashyap. After the inventory proceeding, he
again received the said articles including two samples of 50 grams each
marked with Z-1 and Z-2, the remaining quantity of Ganja, which was refilled
in bags which were marked as article A-1 to A-22 and total weight of the
same comes to 393.130 kgs, which was also endorsed in the malkhana
Register Ex/P/39. In his cross-examination, he admitted that total 104
packets were filled-up in 11 bags, which was sealed. He admitted that in Ex.
P/38, it has not been mentioned that what type of seal has been impressed in
all those 11 bags. He has not weighed the said 11 bags and he has not put
up his own seal in the seized articles. He further admitted that in the
Register, there is no mention about 11 bags as has been kept at serial No. 8
in the Malkhana Register. He also admitted that from Ex. P/37, it has not
been reflected as to when he kept the said articles in Malkhana after
receiving it on 13.01.2018. The said articles were kept in Malkhana on
13.01.2018 and it was taken out for Inventory proceeding on 29.01.2018. He
further admitted that on oral request made by Inspector Promod Kashyap
(PW-11) he has taken out the articles from Malkhana and after its
homogenization, sampling proceeding was done. There was no order from
any competent Court for taken out the contraband from the Malkhana, when
the contraband was again deposited in Malkhana it was in 22 bags which
was marked as A/1 to A/22.
16. Rajesh Manhar (PW-08) who is the Head-Constable and also a member of
search party, he too has proved the entire process of search and seizure on
the spot. He also proved the procedure, whatever the search party have
done on the spot.
17. Bhushan Chandrakar (PW09) is the Sub-Inspector of Police,who registered
the FIR bearing Crime No. 16/18 against the appellants at Police Station,
Kondagaon, when the police party came back after search and seizure. He
recorded the FIR on the basis of Dehati Nalishi recorded on the spot.
18. Krishna Sahu (PW10), who is Investigating Officer of the case, has stated in
his evidence that on 13.01.2018, he received the secrete information that a
mini truck is going to Raipur transporting the illegal ganja in it, he recorded
the secret information in Rozanamcha and called the independent witnesses,
the intimation about the secrete information was sent to S.D.O. (P),
Kondagaon when the S.D.O. (P) was not found in his Office and he could not
make any contact with him, they proceeded towards the place of incident for
search without warrant considering its exigency to proceed there. When they
reached on the Narayanpur Triangle, the mini truck was seen coming from
Jagdalpur side, they stopped the vehicle, which was being driven by
Sandeep Majmoodar and Vishal Rai was sitting in the said vehicle. They
have been informed about the secrete information and informed about their
rights to be searched either by Gazetted Officer, Magistrate or Investigating
Officer and, then they have given their consent to be searched by the
Investigating Officer. They have also given their own search to the accused
persons but nothing incrementing could be found of their own search. On
being personal search of the accused persons, their mobile phone cash
amount their ATM cards and Aadhar Cards were seized and from the vehicle
R.C. book and other RTO papers were also seized. On being inspection of
the truck, it was found that a secret chamber was prepared in the body of the
truck and when the secret chamber was opened, total 104 packets wrapped
with brown cellotap were recovered. The small quantity of articles of the said
packets have been taken out and from its rubbing, smelling and burning, it
was identified to be of Ganja.
19. Notice under Section 67 of the NDPS was also given to the accused persons
to submit any valid document for transportation of the same but they have
failed to submit any document. The witnesses to the weighment of the said
contraband was also being called and after weighment of ganja, it was found
to be of 4 quintals. The seized Ganja was again re-filled in 11 bags and
sealed on the spot. The vehicle was also seized considering the offence
under Section 20(b) of the NDPS Act, the appellants were arrested and the
arrest memo were prepared and their arrest has also been informed to their
family members and Dehati Nalishi has been recorded on the spot. After
completion of the procedure at the spot, the police party alongwith the
accused persons came back to the Police Station, the truck seized Ganja
and other articles, which have been seized form the appellants, an FIR
(Ex.P-40) has been registered against them. The secret information
roznamcha is Ex. P/41-c, the secret information panchanama is Ex. P/7. The
panchanama with regard to search without warrant is Ex. P/3. All the
proceedings have also been reduced in writing in various roznamchas and
panchnamas were prepared, which have also been exhibited during his
examination. The intercepting Panchanma (Ex. P/4) was also prepared.
Panchanama with respect to the right to be searched by the Gazetted Officer,
Magistrate or Investigation Officer is Ex. P/6 and Ex. P/7, in which, the
appellants have given their consent, which has also been reduced in writing
in Ex.P/6 and Ex.P/7. The consent panchanama is Ex.P/9 and Police party
search panchanama is Ex.P/10. The seizure panchanama of Mobile phone,
cash amount, driving license, voter ID and Aadhar card and debit card
prepared on the spot is Ex. P.11 and Ex. P/12. The seizure memo has also
been prepared vide Ex. P/13, the vehicle Talashi panchanama Ex. P/14 was
also prepared. The recovery panchanama Ex. P/15 was prepared on the spot
with respect to seizure of 104 Packets of contraband. The identification
panchanama (Ex.P/16) was also prepared on the spot. Notice under Section
67 of the NDPS Act is Ex. P/17. The marking on the seized packets from A1
to A104 panchnama is Ex. P/19. The physical verification panchnama of the
electronic weighing operatus is Ex. P/31. The weighment panchanama (Ex.
P/22) was also prepared. The specimen seal panchanama is Ex. P/23 and
seizure memo (Ex. P/24) was also prepared on the spot. Dehati nalishi
(Ex-55) was recorded. Based on which, FIR Ex. P/40 was registered.
The acknowledgment of keeping the articles in safe custody of Malkhana is
Ex. P/38. In his cross-examination, this witness has remained firmed with the
procedural aspect of the investigation that he conducted the search
proceeding of the truck of the appellants and found 104 packets in which
Ganja was there. This witness has not stated that on the spot any
homogenization proceeding was done or any sampling was done from the
seized packets of Ganja.
20. Promod Kashyap (PW11) is the sub-Inspector, who has taken out the ganja
from the Malkhana and took the same to the Office of Tahshildar-cum
Executive Magistrate and produced it there. He stated in his evidence that
the Executive Magistrate has got opened all the packets and after its
homogenization, two samples packets of 50g. each was drawn, which were
marked as Z-1 and Z-2. Both these sample packets were sealed with the
seal of "Kray Utpad Sulk Bhandar, Madhya Pradesh " and thereafter, both the
samples packets were handed over to him for its chemical examination. The
remaining part of the ganja were again re-filled in 22 bags and it was also
sealed in his presence. The cellotap which was found into the packets A/1 to
A/104, they have also sealed it and marked with B/1. The Executive
Magistrate has prepared the document about the Inventory proceeding,
which is Ex. P/55. He again deposited the said articles and samples Ex. P/..
to the Malkhana and obtained acknowledgment Ex. P/39. In his cross-
examination also, it reflects that at the time of Inventory proceeding, the
procedure prescribed in circular No. 1/89 of the Central Government has not
been followed and neither any sample from each packets were drawn nor
any randomly sampling was done.
21. Rameshwar Bhagat (PW-12), is the Police Constable, who has taken the
sample packets to State FSL, Raipur, has stated in his evidence that he
deposited the sample packets of Ganja on 05.02.2018 to State FSL, Raipur.
In cross-examination, he stated that he was orally instructed by the Station
House Officer for depositing the sample packets in the FSL and no duty
certificate was given to him on that day. He did not know as to from where
the said samples Z-1 & Z-2 were given to him by the Constable. In his further
cross-examination, he stated that from 3.2.2018, both the sample packets
were in his possession and he deposited the same on 05.02.2018 to State
FSL, Raipur. He further admitted that on 05.02.2018, Malkhana moharir -
Tekram Dhruv (PW-7) has given him the said sample packets to taking to the
FSL, but he did not know as to from where, he has taken the said sample to
deposit in the FSL.
22. R. Jailu Markam (PW13) is also a Constable, who has taken the sealed
envelope to the office of Sub Divisional Officer (Police), which was sent by
Sub-Inspector - Krishna Sahu (PW-10) and he has handed over the said
envelope to the Office of S.D.O. (Police), Kondagaon and taken the
acknowledgment of the same.
23. Kaladas Padwar (PW15) is a Tahshildar, who did the Inventory proceeding,
has stated in his evidence that on 29.01.2018, the Police party alongwith
electronic weighing machine were appeared at the office of Tahsildar,
Kondagaon alongwith the ganja, which was kept in 11 bags, which was
sealed having seal impression of Police Station, Kondagaon. He got opened
the bags from the persons appeared there and found total 104 packets,
which were wrapped by brown cellotap and numbered as A-1 to A-104. He
also got physically verified the weighing machine and obtained certificate
from the weighing witness, which is Ex. P-59. He separately weighed all the
packets and found total 397.910 kgs, thereafter, all the packets were opened
and homogenized and, thereafter, 2 sample packets of 50 gms. each were
separated, which were marked as Z-1 & Z-2 and sealed with the seal
impression of "Kraya Utpad Sulk Bhandar, Madhya Pradesh ", thereafter, they
got re-filled the entire quantity of Ganja in 22 bags and it was again sealed
and marked as A-1 to A-22. It was again weighed and found total weight of
393.230 kgs. Empty wrapper, which were marked as A-1 to A-104 were also
kept in a single bag and its weight is found 3.470 kgs., which was marked as
B-1 and it was also sealed with the seal impression of " Kraya Utpad Sulk
Bhandar, Madhya Pradesh". He prepared the inventory, which is Ex. P-58
and inventory report under Section 52(A)(2) of the NDPS Act, which is
marked as P-60. The photograph taken out during inventory is Ex. P-61. In
cross-examination, she stated that under the instructions of S.D.O. (P),
Kondagaon, he drawn inventory proceeding. He also stated that all the
witnesses and articles were taken out by the police authority including
weighment witness. He stated that he received 11 bags ganja for inventory
proceeding but by mistake, he returned one bag of ganja vide Ex.P-58. Seal
of the each of the bags were broke open by the police persons.
24. Nemichand Bhandari (PW-16) is a constable, who has taken the samples to
FSL, Raipur and obtained analysis report, which is Ex.P-65. He again re-
deposited it the police station alongwith sample bags i.e. Z-1 & Z-2 and
acknowledgment Ex. P-64. Nothing much significant material would have
been extracted from the cross-examination of this witness, so that the entire
prosecution case would be disbelieved.
25. From the perusal of the aforesaid evidence, it is quite vivid that on the spot
when the accused persons were detained and their vehicle was being
inspected and 104 packets of ganja were seized, no samples were drawn on
the the spot and it was sealed in 11 bags, which were kept in malkhana of
the police station, when the said sealed ganja were taken to the office of
Tahsildar for inventory proceeding provided under Section 52 (A) of the
NDPS Act and it was opened and after its homogenization, two samples
packets, 50 gms. each were drawn, which were sent of FSL of the State FSL,
Raipur for examination.
26. The main objection of the appellants are that it was necessary for the
prosecution to prove the standing order No.1/89 issued by the Central
Government for drawing samples has duly been complied with, which was
provided the procedure for drawing the samples from each of the packets. In
the instant case, investigating officer had not complied with the standing
order No. 1/89 and not taken out the samples from each of 104 packets of
ganja seized from the appellants. Total 104 packets ganja were seized, in
which ganja was there, but only samples of 50 gms ganja each were drawn
by the Tahsildar for inventory proceedings after homogenization, which is not
permissible in the law.
27. Though no procedure is prescribed either in the NDPS Act or in the
NDPS Rules regarding the manner in which the samples are to be
drawn but a Standing Order 1/89 has been issued by the Central
Government in this regard, wherein general procedures for sampling,
storage etc. have been given which reads as under :
"2.1. All drug shall be properly classified, carefully weighed
and sampled on the spot of seizure.
2.2. All the packages/containers shall be serially numbered
and kept in lots for sampling. Samples from the narcotic
drugs and psychotropic substances seized shall be drawn
on the spot of recovery, in duplicate, in the presence of
search witnesses (Panchas) and the person from whose
possession the drug is recovered, and a mention to this
effect should invariably be made in the panchanama drawn
on the spot.
2.3. The quantity to be drawn in each sample for chemical
test shall not be less than 5 grams in respect of all narcotic
drugs and psychotropic substances save in the cases of
opium, ganja and charas (hashish) where a quantity of 24
grams in each case is required for chemical test. The same
quantities shall be taken for the duplicate sample also. The
seized drugs in the packages/containers shall be well
mixed to make it homogeneous and representative before
the sample (in duplicate) is drawn.
2.4. In the case of seizure of a single package/container,
one sample in duplicate shall be drawn. Normally, it is
advisable to draw one sample (in duplicate) from each
package/container in case of seizure of more than one
package/container.
2.5. However, when the packages/containers seized
together are of identical size and weight, bearing identical
markings, and the contents of each package given identical
results on colour test by the drug identification kit,
conclusively indicating that the packages are identical in all
respects, the packages/containers may be carefully
bunched in lots of ten packages/containers except in the
case of ganja and hashish (charas), where it may be
bunched in lots of 40 such packages/containers. For each
such lot of packages/containers, one sample (in duplicate)
may be drawn.
2.6. Where after making such lots, in the case of hashish
and ganja, less than 20 packages/containers remain and, in
the case of other drugs, less than 5 packages/containers
remain, no bunching would be necessary and no samples
need be drawn.
2.7. If such remainder is 5 or more in the case of other
drugs and substances and 20 or more in the case of ganja
and hashish, one more sample (in duplicate) may be drawn
for such remainder package/container.
2.8. While drawing one sample (in duplicate) from a
particular lot, it must he ensured that representative
samples in equal quantity are taken from each
package/container of that lot and mixed together to make a
composite whole from which the samples are drawn for that
lot.
2.9. The sample in duplicate should be kept in heat-sealed
plastic bags as it is convenient and safe. The plastic bag
container should be kept in a paper envelope which may be
sealed properly. Such sealed envelope may be marked as
original and duplicate. Both the envelopes should also bear
the No. of the package(s)/container(s) from which the
sample has been drawn. The duplicate envelope containing
the sample will also have a reference of the test memo. The
seals should be legible. This envelope along with test
memos should be kept in another envelope which should
also he sealed and marked "Secret Drug sample/Test
memo", to be sent to the chemical laboratory concerned."
28. From perusal of Instruction 2.4, it is evident that it is advisable to draw
one sample in duplicate from each package/container in case of
seizure of more than one package/container. Instruction 2.5 provides
an exception to Instruction 2.4. It has been provided in Instruction 2.5
that when the packages/containers seized together are of identical size
and weight, bearing identical markings, and the contents of each
package given identical results on colour test by the drug identification
kit, conclusively indicating that the packages are identical in all
respects, the packages/containers may be carefully bunched in lots of
ten packages/containers except in the case of ganja and hashish
(charas), where it may be bunched in lots of 40 such
packages/containers. For each such lot of packages/containers, one
sample (in duplicate) may be drawn.
29. Thus, in the aforesaid situations, a representative sample can be
drawn after bunching together the contents of numerous packages.
The essential requirement before such an action of drawing a
representative sample can be undertaken is that the contents of each
package have to be subjected to colour test by U.N. drug testing Kit.
Once the test is conducted and the result indicates that all the
packages are identical in all respects, then a representative sample
can be taken out after bunching the packages. Hence, the Investigating
Officer was under an obligation to collect separate samples from each
of the packets so that the analysis of the contents of each of the
packets could be performed individually. As the investigating officer
before drawing the samples, proceeded to mix the contents of the all
the packets without subjecting them to the test by the U.N. Kit, the
accused has a right to contend that one of the packets might not have
contained contraband ganja. If at all the prosecution desired to prove
that all the packets contained ganja, then it was essential for the
samples to have been collected and analysed individually from all the
packets or else, the test by U.N. Kit should have been carried out on
the material present in all the packets. The Hon'ble Apex Court
considered a similar issue in the case of Gaunter Edwin Kircher v.
State of Goa reported in AIR 1993 SC 1456 and observed as below:-
"5. We shall first consider whether the prosecution has
established beyond all reasonable doubt that the accused
had in his possession two pieces of Charas weighing 7
gms. and 5 gms. respectively. As already mentioned only
one piece was sent for chemical analysis and P.W.1 the
Junior Scientific Officer who examined the same found it to
contain Charas but it was less than 5 gms. From this report
alone it cannot be presumed or inferred that the substance
in other piece weighing 7 gms. also contained Charas. It
has to be borne in mind that the Act applies to certain
narcotic drugs and psychotropic substances and not all
other kinds of intoxicating substances. In any event in the
absence of positive proof that both the pieces recovered
from the accused contained Charas only, it is not safe to
hold that 12 gms. of Charas was recovered from the
accused. In view of the evidence of P.W.1 it must be held
that the prosecution has proved positively that Charas
weighing about 4.570 gms. was recovered from the
accused. The failure to send the other piece has given rise
to this inference.
We have to observe that to obviate this difficulty, the
concerned authorities would do better if they send the
entire quantity seized for chemical analysis so that there
may not be any dispute of this nature regarding the quantity
seized. If it is not practicable in a given case, to send the
entire quantity then sufficient quantity by way of samples
from each of the packets of pieces recovered should be
sent for chemical examination under a regular panchnama
and as per the provisions of law."
30. Further, in the instant case, independent witnesses have been turned hostile
and have not supported the case of the prosecution.
31. In the of Sanjeet Kumar Singh @ Munna Kumar Singh Vs. State of
Chhattisgarh, reported in 2022 LiveLaw(SC) 724, the Hon'ble Supreme
Court in paragraph 18 has held as under:-
"18. But if the Court has -(i) to completely disregard the lack of
corroboration of the testimony of police witnesses by independent
witnesses; and (ii) to turn a Nelson's eye to the independent
witnesses turning hostile, then the story of the prosecution should
be very convincing and the testimony of the official witnesses
notably trustworthy. If independent witnesses come up with a story
which creates a gaping hole in the prosecution theory, about the
very search and seizure, then the case of the prosecution should
collapse like a pack of cards. It is no doubt true that corroboration
by independent witnesses is not always necessary. But once the
prosecution comes up with a story that the search and seizure was
conducted in the presence of independent witnesses and they also
choose to examine them before Court, then the Court has to see
whether the version of the independent witnesses who turned
hostile is unbelievable and whether there is a possibilit6y that they
have become turncoats."
32. Thus, considering the facts & circumstances of the case, nature & quality of
evidence adduced by the prosecution and the fact that independent witnesses
have not supported the case of the prosecution and the manner in which the
investigation is carried out, in which the Investigating Officer had not complied
with the instructions & guidelines given in the standing order No.1/89 issued by
the Central Government for drawing samples and keeping in view the aforesaid
settled legal position, I am of the opinion the prosecution has failed to prove its
case beyond reasonable doubt. Being so, the learned trial Court was not
justified in recording a finding of conviction of the appellant under Section 20(b)
(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 .
33. In the result, criminal appeal is allowed. The impugned judgment of
conviction and sentence passed by learned Special Judge is set aside. The
appellants are acquitted of the offence under Section 20(b)(ii)(C) of the Narcotic
Drugs and Psychotropic Substances Act, 1985 by extending them benefit of
doubt. The appellants are reported to be in jail since 13.01.2018, they be
released forthwith, if not required in any other case.
34. Keeping in view of the provisions contained in Section 481 of the
Bhartiya Nagrik Suraksha Sanhita, 2023, the appellant is directed to
furnish a personal bond for a sum of Rs.50,000/- with one reliable surety
in the like amount before the concerned trial Court, which shall be
effective for a period of six months alongwith an undertaking that in the
event of filing of special leave petition against the instant judgment or for
grant of leave, the aforesaid appellant on receipt of notice thereon shall
appear before the Hon'ble Supreme Court.
35. The trial Court record alongwith the copy of this judgment be sent back
immediately to the concerned trial Court for compliance and necessary action.
Sd/-
(Ravindra Kumar Agrawal)
Judge
amita
