BHOLA RAM Vs. STATE OF C G

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 29-03-2003 delivered by Shri Raghubir Singh, Special Judge (N.D.P.S.), Ambikapur District-Sarguja in Special Criminal Case No. 14/2001 whereby the Appellant was convicted under Section-22 of the Narcotic Drugs and Psychotropic Substances Act. 1985 (hereinafter referred to as "the Act") and was sentenced to undergo R.I. for 10 years and to a fine of Rs. 1,00,000/- and in default of payment of fine to undergo additional R.I. for three years. The Appellant was in jail during trial from 26-07-2001 and is undergoing sentence from the date of judgment.

(2.) BRIEFLY stated the prosecution story is that on 25-07-2001 A.S.I. B.N. Singh PW-4 received secret information at 10 A.M. that the Appellant Bholaram had some psychotropic substance in his possession for sale at Bus Stand, Ambikapur. After recording the oforesaid secret information and informing higher officials, he proceeded to Bus Stand, Ambikapur with Police staff and witnesses Santosh PW-1 and Sudama and apprehended the Appellant. After serving notice under Section-50 of the Act and the Appellant having been consented to be searched by him, A.S.I. B.N. Singh PW-4 searched the Appellant and found in his right full pant pocket brown sugar like substance kept in 3 plastic bags weighing approximately 15 grams. The brown sugar like substance was mixed on a plain paper and was weighed. It was found that the net weight of the substance seized was 12 Grams 800 Milligram while along with the plastic bags it weighed 14 Grams 170 Milligrams. The entire brown sugar like substance was kept in one small plastic bag and was sealed by A.S.I. B.N. Singh along with 3 empty plastic bags. The aforesaid sealed substance was handed over to Head Constable Mahesh Gupta No. 296, Malkhana Moharir of Police Station-Ambikapur for safe custody. On 27-07-2001 vide memo Ex. P-19 of Superintendent of Police, Sarguja at Ambikapur, the aforesaid sealed packet was sent to the Forensic Science Laboratory, Sagar for chemical examination. Vide report Ex. P-20 dated 09-10-2001 it was opined by the Forensic Science Laboratory that the substance sent for examination was Diacetylmorphine (Heroin), After completion of investigation, the Appellant was prosecuted under Section-22 of the Act. The Appellant abjured the guilt, pleaded innocence and led no evidence in defence. The prosecution examined as many as 4 witnesses. Relying upon the testimony of A.S.I. B.N. Singh P.W. -4, Hemant Khare P.W. -3, S.H.O. Ambikapur and the F.S.L. report Ex. P-20, the trial Judge convicted and sentenced the Appellant as aforesaid in para-1 (Supra).

(3.) A.S.I. B.N. Singh P.W. 4 has testified that he had recorded the aforesaid secret information vide Ex. P.I in the presence of witnesses Santosh P.W 1 and Sudama. It, thus, appears that these two witnesses were present with A.S.I. B.N. Singh P.W. 4 right from the time when the secret information was received till the article seized from the possession of the Appellant were sealed. However, Santosh P.W. 1 did not support the prosecution story and stated that the police had taken his signatures on 8-10 papers. Nothing could be elicited in his testimony even after the witness was declared hostile and cross examined by the prosecutor. Another independent witness Sudama was not examined by the prosecution for which there is no explanation. It is settled law that when an independent witness though cited and available is not examined by the prosecution without any rhyme or reason an adverse inference against the prosecution will have to be drawn. The testimony of Station House Officer P.S. Ambikapur Hemant Khare P.W. 3 does not show that he had accompanied A.S.I. B.N. Singh to the Bus-stand Ambikapur for intercepting the Appellant. Navneet Singh who was colled by Assistant Sub-Inspector B.N. Singh after effecting a seizure of the brown sugar like substance from the possession of the Appellant for weighing the substance seized was also not examined by prosecution. It is in the weighment Panchnama Ex. P. 10 that it appears for the first time that the seized substance was kept in a plastic bag and was sealed along with the three empty plastic bags in which the substance was found to have been kept in possession of the Appellant. All other documents exhibited earlier i.e. seizure memo Ex. P.6 at 12.20 hours, homogenous sample Panchnama Ex. P.7 at 12.35 hours, identification Panchnama of brown sugar like substance Ex. P.8 at 12.50 hrs, the weighment verification Panchnama Ex. P.9 at 13.00 hours do not show that the substance seized from the Appellant had been sealed, In this manner, Navneet Soni was also a material witness to prove the factum of sealing the substance alleged to have been seized from the Appellant. Non examination of Navneet Soni thus justifies an adverse inference against the prosecution. Ex. P.l is the Panchnama of the secret information received by Asst. Sub-Inspector at 9.50 A.M. at Police Station Ambikapur and shows the presence of both witnesses Sudama Prasad and Santosh Kumar. It is not clear whether these witnesses were present at the Police Station by chance or were called to be a witness of the secret information received by Asst. Sub-Inspector B.N. Singh. The fact that Santosh Kumar did not support the prosecution story and also the fact that independent witness Sudama Prasad was not examined by the prosecution also justifies an adverse inference against the prosecution.