LALIT Vs. STATE OF CHHATTISGARH

JUDGEMENT

(1.) The instant appeal has been preferred by the accused against judgment dtd. 31/1/2015 passed by the Special Judge under the Narcotic Drugs and Psychotropic Substances Act, 1985 (henceforth 'the NDPS Act'), Jagdalpur in Special Case No.7 of 2014, whereby the accused/Appellant has been convicted and sentenced as under: <FRM>JUDGEMENT_40_LAWS(CHH)9_2023_1.html</FRM>

(2.) Case of the prosecution is that on 28/7/2014 Sub-Inspector of Police Station Nagarnar, District Bastar, namely, Vimal Vatti (PW10) received information from an informant that one person keeping Ganja in Maruti 800 Car bearing registration No.CG 04 B 2472 was coming from Bajawand to Jagdalpur. He prepared Mukhbir Suchana Panchnama (Ex.P2). In compliance of Sec. 42 of the NDPS Act the information was forwarded to the higher officers vide Ex.P3. On completion of other formalities, he reached the spot along with other staff members. The Maruti 800 Car was stopped. The said car was being driven by the Appellant. After giving him a notice under Sec. 50 of the NDPS Act, his personal search was made by Sub-Inspector Vimal Vatti (PW10) in which nothing was found. Thereafter, the car was searched in which 2 airbags and 2 small bags were found which contained contraband Ganja. In one airbag 8 kgs. Ganja and in the other airbag 12 kgs. Ganja was found. In one small bag 4 kgs. Ganja and in the other small bag 2 kgs. Ganja was found. Total 26 kgs. Ganja was found in total 4 bags. The same was recovered vide Ex.P16. The recovered Ganja was mixed and thereafter total 8 sample packets, namely, A1, A2, B1, B2, C1, C2, D1 and D2 each containing 50 grams of Ganja were prepared. All the sample packets were sealed and a specimen seal panchnama (Ex.P20) was prepared. The recovered material was seized. On completion of other formalities on the spot, Sub-Inspector Vimal Vatti (PW10) returned to Police Station Nagarnar and deposited all the seized articles in the Malkhana of the police station. Acknowledgment of the deposit of the seized articles is Ex.P36C. Dehati Nalishi (Ex.P38) was also recorded. Information of the entire proceedings was sent to the higher officer vide Ex.P6. 4 sample packets, which were marked as A1, B1, C1 and D1, were sent to the Forensic Science Laboratory (FSL) for chemical examination. Report of the FSL is Ex.P41. The FSL found the substance to be Ganja. On completion of the investigation, a charge-sheet was filed. Charge was framed against the Appellant. To rope in the Appellant, the prosecution examined as many as 10 witnesses. In examination under Sec. 313 of the Code of Criminal Procedure, the Appellant denied the guilt. No witness was examined in defence. On completion of the trial, the Trial Court convicted and sentenced the Appellant as mentioned in first paragraph of this judgment. Hence, the instant appeal.

(3.) Learned Counsel appearing for the Appellant submitted that without there being any sufficient and clinching evidence on record the Trial Court convicted the Appellant. The prosecution has totally failed to prove its case beyond all reasonable doubts. It was further argued that the provisions of Sec. 55 of the NDPS Act have not been duly complied with. The Malkhana Register (Ex.P27) shows that total 8 sample packets were deposited in the Malkhana, but, those deposited packets were marked as A1, A2, B1, B2, C1, C2, D1 and D2 is not mentioned in the Malkhana Register. Likewise, there is entry in the Malkhana Register regarding sending of 4 sample packets to the FSL for examination, but, those packets were marked as A1, B1, C1 and D1 is not mentioned in the said register. Therefore, it creates a doubt whether the 8 packets deposited in the Malkhana were marked as A1, A2, B1, B2, C1, C2, D1 and D2 and whether the 4 sample packets sent to the FSL were marked as A1, B1, C1 and D1. It was further contended that in this case first the Ganja recovered from the 4 bags were mixed and thereafter total 8 sample packets were prepared, but, how the marking of the sample packets as A1, A2, B1, B2, C1, C2, D1 and D2 was done is not clear. This also creates a serious doubt. According to the Learned Counsel, Standing Order No.1/88 dtd. 15/3/1988 issued by the Narcotics Control Bureau and Standing Order No.1/89 dtd. 13/6/1989 issued under sub-sec. (1) of Sec. 52A of the NDPS Act by the Department of Revenue, Ministry of Finance, Government of India have not been followed while preparing the sample packets. Reliance was placed on a judgment of High Court of Delhi reported in 2020 SCC OnLine Del 2080 (Amani Fidel Chris v. Narcotics Control Bureau). Reliance was also placed on another judgment passed by High Court of Delhi reported in 2012 (130) DRJ 471 (Basant Rai v. State).