PRAKASH CHANDRA AGRAWAL Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) THIS appeal has been preferred against the judgment and order dated 18 -4 -2007 passed by Special Judge, (N.D.P.S. Act) Janjgir, in Special Case No. 24/2006 convicting the accused/appellant under Section 20(b)(ii)(C) of the Narcotic Drugs and Psychotropic Substances Act (for short the "Special Act") 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 undergo rigorous imprisonment for two and a half years. Facts of the case in brief are that on 2 -7 -2006 when Sub Inspector Rahul Tiwari (P.W. -6) of police station Champa was on his duty, he received a secrete telephonic information that one person was passing through bypass road, Geman bridge carrying ganja in large quantity for sale. This information was reduced to writing vide Ex. P -18; it was forwarded to S.D.O. (P) vide Ex. P. -19; police party went to the spot accompanied by Panch witnesses namely Laxminarayan Pradhan (P.W. -2) and Amritlal Dewangan (P.W. -3); apprehended the accused/appellant; gave notice under Section 50 of the Special Act to him vide Ex. P -7; consent of the accused/appellant was obtained vide Ex. P -8; personal search of the accused/appellant was taken vide Ex. P -4; personal search of police party was afforded vide Ex. P -5; during search of the accused/appellant, Rs. 220/ -, a dot pen and a railway ticket were recovered; accused/appellant was found carrying a carton on head and a bag in his right hand vide search memo Ex. P -9; personal search of attesting witnesses was offered to the accused/appellant vide Ex. P -6 and nothing objectionable could be found. Contraband was recovered from the bag and carton vide Ex. P -10; it was identified vide Ex. P -11, balance and weight were physically verified vide Ex. P -12; contraband was homogenized and on weighment being done total quantity of ganja came out to be 37 Kg. vide weighment memo Ex. P -13. 4 samples of 50 gram each were drawn; they were duly sealed and after drawing the samples remaining contraband was again weighed vide Ex. P -14. Seizure memo Ex. P -15 was prepared and the accused/appellant was arrested vide Ex. P -16. After returning to police station, contraband and the samples were deposited in Malkhana register Ex. P -16 -A, FIR Ex. P -20 was registered under Section 20(b) of the Special Act. Samples were sent to FSL together with memo dated 3 -7 -2006 which were received vide acknowledgement dated 4 -7 -2006 vide Ex. P -2. FSL report was received on 14 -9 -2006 and after completion of investigation charge -sheet was filed under Section 20(b)(1)(ii)(C) (it should have been under Section 20(b)(ii)(C)) of the Special Act.

(2.) IN support of its case, prosecution has examined 06 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.

(3.) COUNSEL for the appellant submits that the investigation carried out by the prosecution is biased, partial and unfair and that the entire exercise has been completed by Sub Inspector Rahul Tiwari (P.W. -6) but in fact after raid the investigation should have been done by some other officer. He submits that after completing seizure part, investigation should have been done by an independent officer and not by Sub Inspector (P.W. -6) himself and likewise case diary statements of the witnesses should have been recorded by the independent investigating officer. He submits that during trial the prosecution has not produced the seized contraband and even the samples before the trial Court for marking the same as material object and as such the entire trial vitiates for the reason that it would cause prejudice to the accused/appellant because he could not inspect the seized contraband or the samples and also could not verify even affixing of the seal on both the objects. He submits that there is total non -compliance of Section 42 of the Special Act because the person who received the information from Sub inspector (P.W. -6) while giving acknowledgment Ex. P -19 has not been examined by the prosecution. He submits that independent witnesses namely Laxminarayan Pradhan (P.W. -2) and Amritlal Devangan (P.W. -3) have not supported the case of the prosecution and have been declared hostile and therefore the accused/appellant cannot be convicted merely on the basis of statement of Sub Inspector (P.W. -6). Counsel for the appellant further submits that there is non -compliance of Section 55 of the Special Act because impression of the seat affixed in the seizure memo has never been given to third man or produced before the Court for verification. He submits that impression of seal was also not sent to Forensic Science Laboratory for comparison. He submits that even the provisions of Section 50 of the Special Act have not been complied with by the prosecution while making personal search of the accused/appellant. According to him, though no contraband has been recovered in the personal search but yet the prosecution should have strictly complied with the provision of Section 50. He further submits that while making seizure and weighment of the contraband, procedure laid down under the law has not been followed and after completing the investigation and other formalities seizure was made vide Ex. P -15. In support of his submissions he placed reliance on the decisions of Supreme Court in the matter of Narcotics Central Bureau v. Sukh Dev Raj Sodhi reported in : 2011 Cr.LR. (SC) 545; in the matter of Ritesh Chakravarti v. State of Madhya Pradesh reported in : 2006 (2) CAR (SC) 874; in the matter of Jitendra and another v. State of M.P. reported in : AIR 2003 SC 4236; in the matter of Dilip and another v. State of M.P. reported in : 2007 SAR (Criminal) 204; on the decision of Rajasthan High Court in the matter of Nathiya and another v. State reported in (Crimes) 11 -1992 Page 537; on the decision of Orissa High Court in the matter of Bata Krushna Sahu v. State of Orissa reported in : (2010) 45 OCR 606 and on the decision of High Court of CG in the matter of Shiv Kumar v. State of CG reported in, 2006 (1) CCLJ 426.