SURESH DUBEY Vs. STATE OF C G

JUDGEMENT

(1.) This appeal has been preferred against the judgment and order dated 24.07.2007 passed by Special Judge, Bilaspur in Special Case No. 30/2006 convicting the accused/appellant under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'Act of 1985') and sentencing him to undergo rigorous imprisonment for ten years and pay fine of Rs. 1,00,000, in default of payment of fine to further undergo rigorous imprisonment for one year. Facts of the case in brief are that on 16.8.2006, a secret information was received by S.L. Chouhan (PW-4) - Station House Officer, Kota to the effect that one Ramesh Dubey, resident of Kota was keeping ganja in his house. The said information was reduced to writing vide Ex. P-3 and in compliance of Section 42 of the Act of 1985, it was forwarded to SDO (P) vide Ex. P-4. When the police party reached the house of Ramesh Dubey, an information was also given to them that accused/appellant herein namely Suresh Dubey-the brother of Ramesh Dubey was in possession of contraband. Notice under Section 50 of the Act of 1985 was given to the appellant vide Ex. P-5; his consent was obtained vide Ex. P-6 and thereafter personal search memo of police people as well as the accused was prepared vide Ex. P-7 to P-10. Contraband was recovered vide Ex. P-11; its identification was made vide Ex. P-12; verification memo of weighing balance was prepared vide Ex. P-13; weighment memo Ex. P-14 was prepared and vide Ex. P-15 22.650 Kg of ganja contained in four plastic bags was seized each carrying 7 Kg, 8 Kg, 5.150 Kg and 2.500 Kg which was kept in small packets. Two samples of 100 gms each were drawn, samples and contraband were sealed and vide Ex. P-16, the accused/appellant was arrested. After returning to police station entry was made in Rojnamcha sanha vide Ex. P-24, contraband was handed over to head constable for being kept in safe custody vide Ex. P-1 and it was kept in safe custody vide Ex. P-2. Notice was given to the accused/appellant under Section 91 of the Code of Criminal Procedure as to whether he was having any license or authority to keep the contraband, which was answered in negative. Vide Ex. P-27 in compliance of Section 57 of the Act of 1985, a detailed report regarding entire proceedings was sent to SDO (P) Kota and FIR Ex. P-26 was registered against the accused/appellant under Section 20(B) of Act of 1985. Electricity bill Exp-31 was collected to establish the ownership of the premises. Vide Ex. P-28 FSL memo dated 18.08.2006 was prepared, samples were sent to FSL on that day itself and after receiving positive FSL report Ex. P30 challan was filed on 13.11.2006 under the same section. Court below however framed the charge under Section 20(b)(ii)(C) of the Act of 1985.

(2.) In support of its case, prosecution has examined 05 witnesses. Statement of the accused/appellant was also recorded under Section 313 of the Code of Criminal Procedure in which he denied the charges levelled against him and pleaded his innocence and false implication in the case. He has also taken a defence that as he was asked by police people to dump murum, he has been falsely implicated in the present case.

(3.) Counsel for the accused/appellant submits that there is total non-compliance of Section 42 of the Act of 1985 as the secret information was in respect of the contraband in possession of the accused/appellant which was reduced to writing vide Ex. P-3 and sent to superior officer vide Ex. P-4 but in his Court statement the investigating officer has stated that secret information was received in respect of Ramesh Dubey and not Suresh Dubey. According to him, the investigating officer has further stated that while completing the formalities in the case of Ramesh Dubey, he had received a secret information in respect of ganja in possession of the accused/appellant namely Suresh Dubey and thus according to the counsel for the appellant Ex. P-2 & P-3 are nothing but fabricated documents. He submits that out of four plastic bags two samples of 100 gms each were drawn but there is no evidence as to from which bag they were drawn. He submits that Malkhana register has not been produced in the Court and the samples as well as the seized contraband were not produced in the Court durina trial. He submits that independent witnesses have not supported the case of the prosecution and have been declared hostile. According to him, the prosecution has utterly failed to prove the conscious possession of the contraband from the accused/appellant and further that it was the accused/appellant alone who was residing in the said house because the production of the electricity bill is not sufficient to hold that the appellant was in occupation of the house in question as the said bill was a very old one. According to him, the prosecution has not proved the fact that seal put on the seized contraband and samples remained intact throughout the proceedings. He submits that the prosecution has failed to prove the net weight of the seized contraband because according to the case of prosecution 22.650 Kg of ganja was found in possession of the accused/appellant and while making weighment the prosecution has weighed the bags also. He submits that in a case of border line weighment where more than 20 Kg of ganja comes within the category of commercial quantity and less than 20 Kg comes within greater than small but less than commercial quantity, separate weighment of contraband and bag is necessary. He submits that actual weighment was made vide Ex. P-14 at 5.20 p.m. whereas in the recovery memo Ex. P-11 which was made at 4.45 p.m. the weighment of ganja in different bags has been shown and this establishes the fact that prosecution has cooked up false case against the accused/appellant. He further submits that seized contraband has not been produced before the trial Court and on this ground alone the accused/appellant deserves to be acquitted. He submits that there is non-compliance of Section 55 of Act of 1985 also. In support of his submissions, counsel for the accused/appellant placed reliance on the decisions of Supreme Court in the matter of Jitendra and another v. State of M.P.,2003 SAR(Cri) 902, in the matter of Ashok alias Dangra Jaiswal v. State of M.P., 2011 5 SCC 123, in the matter of Noor Agga v. State of Punjab, 2008 CrLJ 655, in the matter of State of Rajsthan v. Gurmail Singh, 2005 CrLR 328 and decisions of this Court in the matter of Sidhartha Gautam v. State of CG, 2009 2 CgLJ 250 and in the matter of Ganga Singroule alias Akhilesh Singroule v. State of Chhattisgarh, 2009 2 CgLJ 382.