AJAY KUMAR KAHAR Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) pjudgment dtd. 25/6/2019 passed by the Special Judge (NDPS Act), Raipur, District Raipur (C.G.) in Special Criminal Case under the NDPS Act No.222/2017, whereby the appellant has been convicted under Sec. 20(b) (ii)(c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 (in short 'the Act') and sentenced to undergo rigorous imprisonment for 10 years and fne of Rs.2,00,000.00, in default of payment of fne, additional R.I. for 1 year.

(2.) According to the case of prosecution, on 1/7/2017, Peer Mohammad (PW-10), Assistant Sub-Inspector (ASI) received a secret information through the informer that at House No.P-34 situated at Awanti Bihar, Sector-2, Telibandha, Raipur (C.G.), the present appellant is in possession of large quantity of contraband 'ganja' and is searching for customers in order to sell the same. Acting upon the information, the preliminary formalities was done by Peer Mohammad, ASI and reached at the spot along with other police staff and witnesses and caught hold the present appellant from the said house. On being search, the alleged contraband was found inside the bed which was inside the appellant's room wherein contraband 'ganja' of 256 Kg 450 grams was found in big and small packets from inside the bed (diwan). After completion of necessary formalities under the Act and after completion of the investigation, charge-sheet was fled. Trial Court framed the charge. Total 14 witnesses were examined by the prosecution. In examination under Sec. 313 of the Cr.P.C., the appellant denied the guilt and pleaded innocence. Defence was taken by the appellant that the house from where the alleged contraband 'ganja' was seized was in the possession of Mehboob @ Babubhai Solanki (PW-3) and he along with other persons (workers of Mehboob @ Babubai Solanki) were residing there. The appellant was not aware of the fact that the alleged contraband was kept inside the bed (diwan), therefore, he was not in the exclusive possession of the seized contraband. However, no defence witness was examined by the appellant. After completion of the trial, the Trial Court convicted and sentenced the appellant for the offence mentioned in paragraph one of this judgment. Hence, this appeal.

(3.) Learned Counsel appearing for the appellant submitted that without there being sufcient and clinching evidence available on record, the Trial Court has wrongly convicted the appellant. It is further submitted that there is no evidence available on record to connect the appellant with the crime in question. It is further argued that the alleged contraband was seized from the bed of a room situated in the godown and appellant used to reside there along with other persons, therefore, it cannot be said the alleged contraband was seized from the exclusive possession of the appellant. Seizure of the alleged contraband and samples packets were prepared at about 16:00 PM and mix seal panchnama was prepared at 16:25 PM, thereafter, at 16:50 PM, the sample seal panchnama was prepared, which is not possible. It shows that later on, all the documents were prepared by the investigation ofcer at once. Therefore, statement of the investigation ofcer i.e. Peer Mohammad (PW-10) is not reliable as none of the independent witnesses has supported the case of the prosecution. It is further stated that though sample packets were shown to be prepared from the seized contraband but none of the documents prepared by the investigating ofcer shows that those packets were marked as 'A' and 'B' and the sample packets which were sent for chemical examination were marked as Article 'A' and 'B', which also create a doubt that the sample packets which were prepared was sent or some other packets were sent. Rohit Kumar (PW-13), Constable No.2639 who deposited the sample packets for F.S.L. has admitted the fact that the sample packets were obtained by him from Malkhana on 2/7/2017 but entries of Malkhana register shows that the said sample packets were handed-over to him on 3/7/2017. Thus, the case of the prosecution appears to be doubtful. Lastly, it is submitted that provision of Sec. 55 of the Act has also been not duly complied with. Therefore, the conviction of the appellant is not sustainable.