ASHOK KUMAR Vs. STATE OF C G

JUDGEMENT

(1.) THIS appeal is directed against the judgment dated 25-06-2004 delivered in Special Criminal Case No.03/2004 delivered by Shri T.P.Sharma, Special Judge (N.D.P.S. Act.) Durg whereby the appellant was convicted under Section-20(b)(ii)(C) read with Section-8(c) of Narcotic Drugs and Psychotropic Substances Act, 1985 (herein after referred to as the "Act") and was sentenced to R.I. for 10 years and a fine of Rs. 1,00,000/- and in default of payment of fine to undergo additional R.I. for 3 years.

(2.) BRIEFLY stated the prosecution story is that on 31 -12-2003 at about 11.30 P.M., Station House Officer of Chowki-Khursipar Shri I.R.Sahu PW-4 while on town duty received secret information about the appellant bringing ganja in a attache and bag for sale to Khursipar and after completion of necessary legal formalities Shri I.R. Sahu proceeded to the spot and saw the appellant holding an attache and a bag. The attache and the bag of the appellant were searched and found to contain ganja like substance. Weighment was done. The attache with its contents was found to weigh 17 K.g. and the bag with its contents was found to weigh 10 K.g. Samples of 25 gm ganja like substance was taken from the attache and the bag, were sealed separately and marked as A-1 & A-2. The attache and bag were also sealed and marked as A-3 & A-4. These articles were entrusted to Head Constable Shri Rajendra Singh PW-1, Chowki Moharir and Officer-in-charge, Malkhana on 01 -01 -2004 who endorsed the receipt on the seizure memo Ex.P-1. On 3/1/2004 vide memo of S.S.P., Durg one attache along with sample marked Article-A and one bag along with sample marked Article-B was sent for analysis to the Forensic Science Laboratory, Raipur which opined vide report dated 12-02-2004 that Packet-A & Packet-B had contained ganja. After completion of investigation, the appellant was prosecuted. On 09-03-2004, the learned trial judge without looking into the documents filed by the prosecution framed the charge under Section-20(b)(ii)(C) read with Section-8(c) of the Act against the appellant for having been found in possession of only 10 K.g. ganja. The accused abjured the guilt. On 12-04-2004, P.S. Chhawani produced the seized attache, bag and sample packets in the Court. It was sealed and sent to Malkhana for safe custody. On 13-04-2004, the trial Judge observed that the quantity of ganja alleged to have been seized from the appellant was shown to be 27 K.g. by the prosecution. It, therefore, directed weighment of the property in Court. On the same day, the property was produced in Court and was weighed. It was found that the attache contained 13 Kg. of ganja and the bag contained 7 Kg. ganja These alongwith the sample packets of 25 g.m. each were separately sealed. The trial Judge cancelled the charge framed earlier and framed charge under Seciion-20(b)(ii)(C) read with Section-8(c) of the Act against the appellant. The appellant again abjured the guilt. The prosecution, in all examined 9 witnesses. No evidence in defence was led by the appellant. The trial Judge relying upon the evidence led by the prosecution and the report of the Forensic Science Laboratory convicted and sentenced the appellant as aforesaid in para-1.

(3.) HAVING heard the rival contentions and after perusing the record of Speciel Criminal Case No.03/2004, the appeal deserves to be allowed. The F.I.R. Ex.P-10 clearly shows that the attache and the bag was weighed along with its contents and was found to weigh 17 Kg. & 10 Kg. respectively. It clearly mentions that one sample of 25 gm. each was lifted from the contents of the attache as well as of the bag and the sample packets were marked as A-1 & A-2 and the attache and bag were marked as A-3 & A-4. These identification marks are found missing in trie memo of S.S.P., Durg dated 03-01-2004 Ex.P-11 which shows that the attache along with sample Article-A and a bag along with sample Article-B was sent for analysis to the Forensic Science laboratory, Raipur. The report of the Forensic Science laboratory also creates serious doubt because it does not mention that it had examined the contents of attache and bag. It only shows that it had received two sealed packets marked as Article-A & Article-B and on examination had found that it contained ganja. Thus, a serious doubt is created as to whether the samples taken from the contents of the attache and bag found in possession of the appellant and marked as A-1 & A-2 had been sent for examination to Forensic Science laboratory, Raipur.