STATE OF CHHATTISGARH Vs. TULESHWAR SINHA

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and order dated 13 -5 -2008 passed by the Special Judge, NDPS Act, Jagdalpur in Special Case No. 10/2007 acquitting the accused appellant of the charges under section 20(b)(ii)(c) of the Narcotic Drugs and Psychotropic Substances Act (for Short the "NDPS Act"). The prosecution case, in brief, is that on 17 -1 -2007, a secret Information was received by Sub -Inspector M. Yakub Memon to the effect that that an unknown person would carry contraband Ganja in Maruti Omni bearing Regn. No. C.G. 04 -B/2075. Thereafter, the said information was reduced to writing in the Rosnamcha Sanha, two independent witnesses Mannuram (P.W. 3) and Rame (P.W. 4) were summoned, Mukhbir Soochna Panchnama was prepared and the witnesses were apprised of the said information. Panchnama with respect to not obtaining the search warrant was prepared in the presence of witnesses Mannuram and Rame. Thereafter at about 22.30 hours, the Station Incharge Yakub Memon along with Head Constable (Badge No. 702), two other Constables (Badge Nos. 247 and 713) and the witnesses Rame and Mannu carrying seal, balance and weights etc., had gone to village Tarapur and stood there in front of a school. At that time, they saw that one white coloured Maruti Van bearing Regn. No. C.G. 04/B -2075 was coming towards village Boregoan and on intercepting the said vehicle, they found that there was only a driver who, on interrogation, told that his name was Tuleshwar. Thereafter notice was given to accused Tuleshwar and he was informed that the Police had received information about the contraband Ganja in his vehicle, for which search of the vehicle is to be conducted.

(2.) THE prosecution has examined six witnesses. They are Salik Ram Sahu (P.W. 1), Sukhdeo Singh Baghel (P.W. 2), Mannu (P.W. 3), Rame (P.W. 4, Sub -inspector Yakub Memon (P.W. 5) the investigating officer and head constable Sukal Singh (P.W. 6). This apart, one Ranu Sinha (D.W. 1) was also examined by the defence witness in support of its case. Statement of the accused/appellant was also recorded under section 313 of the Code of Criminal Procedure in which he denied the charge levelled against him and pleaded his innocence and false implication in the case.

(3.) A perusal of the record shows that according to search Panchnama Ex. P. 11, the vehicle was searched on 18 -1 -2007 at about 00.45 hours and in the vehicle, two white coloured plastic bags and two gunny bags containing Ganja were found. It is surprised to note that before conducting search of the vehicle, the investigating officer (P.W. 5) has received information that four bags of Ganja were kept in the Vehicle and then on 18 -1 -2007 at about 00:15 hrs., he gave notice to the accused under section 50 of the NDPS Act (Ex. P -9) informing him that there were two plastic bags and two gunny bags containing contraband ganja in the vehicle and search thereof is to be conducted. However, P.W. 5 Yakub Memon has not explained in his court evidence that before conducting the search of the vehicle how he expressed his doubt in the notice under section 50 given to the accused that there were two plastic bags and two gunny bags of Ganja. It appears that the informer has not informed him that who has kept the Ganja in the vehicle.